RAYMOND C. LOEHR: NEW YORK STATE COLLEGE OF AGRICULTURE, CORNELL UNIVERSITY, Ithaca, N.Y., July 16, 1971. Senator EDMUND S. MUSKIE, DEAR SENATOR MUSKIE: As a member of the panel of environmental advisors to the Committee on Public Works, I would like to offer comments on the 1971 Amendments for major revisions in the Federal Water Pollution Control program. To be consistent, the points will be presented in the same order as they appear in the compilation of Amendments. Pg. 2, Section 104, (a) (4)-These advisory committees should not be a return to the use of study sections to review proposals and award research and development grants. Rather the advisory committees should assist in the maintenance of quality control of the research and developmental activities and funds to assure that the current and future needs of the nation are covered adequately in the awarding of available grant funds. As such the committees should be advisory to the Administrator rather than to the various offices and programs of EPA. The committees should have the authority and ability to examine and evaluate water pollution research and development activities in other govern mental agencies such as USDA, AEC and others as they advise the Administra tor. In this sense these duties may overlap those of the Council of Environmental Quality. Pg. 3, Section 104 (b) (5) and (6)—These subsections do not specify the role of public, non-profit educational institutions as recipients for training grants. These institutions are conspicuous by their absence in subsection 5 since they are specifically noted in subsection 6. Current training grants to educational institutions are being used for the education of individuals with the first profes sional degree in environmental engineering and science area of air and water pollution control, the MS students, and undoubtedly will be used to a greater extent for training at the operator level and at the undergraduate level. Research fellowships are being used to support doctoral students in this area with each fellowship application being reviewed separately. It is in the best interests of the nation to permit educational institutions to receive training grants and to so specify this interest in subsection 5. The large proportion of water pollution control talent can be trained in this manner. Pg. 4, Section 104 (o) and (p)-These two sections are very appropriate and represent a positive approach toward the solution of pollution from agricultural sources. The dollar amounts are reasonable for this approach provided that the EPA has the authority and funding to add sufficient personnel for these purposes. At present the Agricultural Pollution Control Branch of EPA is understaffed to meet current needs. These subsections would inundate them unless additional qualified personnel were added to the program. Section 515, pg. 30 provides for funds to carry out the Act although the dollar values are to be determined. As an order of magnitude, funding not to exceed $2,000,000 would be appropriate for manpower needs to administer subsections o and p and the other subsections dealing with agricultural pollution control coupled with specific authority to add the necessary personnel. Pg. 5, Section 105(d)-EPA, through the Administrator should have the authority to suggest if not direct the course of action of all agricultural pollution control activities in all federal agencies, such as those in USDA, especially in the research, development, and demonstration areas to assure quality control and avoid overlap. EPA should have the authority for final comment on recommendations concerning agricultural pollution abatement procedures supported by all federal monies and encouraged by all federal agencies to assure that the ideas and concepts that are put forth by the other agencies are sound and represent best procedures and the latest available information. Although it is not specifically noted in the Amendments, it might be pertinent to consider the possibility of a type of construction grants approach for agricultural waste management facilities in this or future legislation. The large agricultural producers may require sizable investments to develop satisfactory waste management processes and systems. It may be in the public interest to assist in the construction of such systems. Pg. 16, Section 301 (f) (1)—The concept of increased technology transfer as outlined in these subsections is excellent. Increased emphasis on such information transmittal is needed in these areas. Because all of the items noted in this subsection represent a relatively small proportion of current EPA activities, adequate funds and personnel will be needed to implement this subsection. Sufficient authority and funds should be provided in the Amendments. In this subsection, specific mention of irrigation operations, discharges, and return flows might be made to emphasize this problem. Pg. 19, Section 303 (a)(2) (F)-The concept of monitoring effluents is very appropriate to obtain information on the volume and constituents of discharged material. However, the type of monitoring to be required is vague. The term monitoring could be construed to include information on flow only, on all elements of nature in the wastes, or any combination in between. Are there other words, phrases, or definitions that could convey the breadth of monitoring that is envisioned? Pg. 21, Section 304 (a) (1)—Requesting states to provide implementation plans to control non-point sources is a necessary step for national consideration of this problem. However, the number of months for adoption and submission should be long, say about 12, rather than short. Most states have few personnel working on such problems and lack adequate knowledge of the problem in their states. A reasonable period of time will be necessary for both the learning and identification steps in each state as well as for the shift or acquisition of personnel. Pg. 21, Section 304 (a) (2)-Four months for approval or disapproval of plans for items A through F of this subsection may be unduly short, given the current personnel in EPA in these areas, unless authority for additional personnel is noted in the Amendments. Pg. 22, Section 304 (b)—One might consider providing financial assistance to the states to implement these actions since at present most states have few capable personnel in these areas. Pg. 22, Section 304(a) (2) (D)-This subsection should be expanded to include identification and classification of eutrophic conditions in all surface waters, lakes, reservoirs, streams, estuaries, and perhaps off-shore waters where appropriate. Pg. 24. Section 206(A) (1)-One might consider a specific definition of "Latest available control technology", as used here and elsewhere in the amendments. Who decides what is "latest"? Does the term infer economic or only technical aspects? At what level should the latest technology be demonstrated before being required, i.e., pilot scale, full scale, how many places throughout the nation? Who has the responsibility for defending the concept of "latest technology", EPA? consulting engineers? or those espousing the technology? Although the concept of getting the newest processes used fastest is an excellent one, is it possible that the lack of a suitable definition for this term may actually retard the rapid use of new technology until legal and political actions and definitions are settled? Pg. 24. Section 304 (A) (1)-The term "no discharge of pollutants" is unclear. Does this mean zero pollutant discharge or does it mean a discharge consistent with the national water quality standard but which allows something less than drinking water quality or river water quality to be discharged? It is possible the zealous interpreters of this statement would define it to mean no discharge of pollutants, i.e., discharge of the highest quality water possible. Technology exists such that the highest quality possible could be drinking water quality and better than existing stream water quality. At this time, I do not believe that such a strict interpretation is desirable or in the best national interests, and would suggest a better definition of the term or more explicit use of words to indicate the desired interpretation. Pg. 24, Section 306(b)(1) (A)-To emphasize the animal waste problem, it might be appropriate to list "feedlots", and "confined animal production operations" as part of the categories of stationary sources. While in the past, these types of operations were thought of an noncontrollable sources, they are now large and less diffuse. As such they are controllable pollution sources. Pg. 26, Section 307 (c) (1)-The term secondary treatment means specific percent removal levels of oxidizable matter such as BOD and solids. High nutrient removals are not implied when this term is used. How do nutrient removal requirements fit in this definition? Is it the intent to set specific removal requirements or effluent standards for nutrients? It is unlikely that national nutrient effluent standards are the best approach since nutrient, i.e., nitrogen and phosphorus, discharges will have different effects in different bodies of waters. Will components of industrial effluents not amenable to the secondary treatment approach be covered under this Section? Is the secondary treatment definition satisfactory for strong industrial wastes where the residual pol lutants can still be potent since secondary treatment implies a percent removal rather than effluent standards? How will the concept of secondary treatment be applied to agricultural, espe cially animal wastes, where land discharge is the better method of disposal? Pg. 37, Section 402-It is unclear how the disposal of agricultural wastes on land, the most common practice, would be affected by this section. In such cases, there is always the possibility of land runoff. Some of the runoff contains only a minor portion of the original wastes and could be thought of as “natural” land runoff. However, since these pollutants do originate from a manufacturing, Le, animal or food processing, operation, are they to be considered under this section! The same questions could be asked about the loss of excess fertilizers from crop production systems, about feedlots, about irrigation return flows, and about the wastes from more diverse agricultural operations. Can wording be included to indicate how these types of problems and wastes are to be interpreted? As now written, it infers that no pollutants shall be permitted to be discharged. While we recognize the existence of the above types of agriculturally caused pollutants, and they are to be incluled in implementation plans of the Amendments, control measures for these pollutants are not well defined. Pg. 38, Section 402 (2) (8) (vi)-The encouragement of the use of the land for waste disposal and waste recycling is highly desirable and should receive greater emphasis when the Amendments are implemented. It is possible that many of these comments and questions have been discussed and evaluated as the drafts of the Amendments have been developed. Clarity on several of the above points is likely to help the implementation of the Amendments after they become law. If I can provide further information on the above or other points, I will be pleased to do so. Sincerely yours, WILLIAM H. RODGERS, JR.: Hon. EDMUND S. MUSKIE, RAYMOND C. LOEHE, Professor of Civil and Agricultural Engineering. JULY 8, 1971 Chairman, Subcommittee on Air and Water Pollution, U.S. Senate, Washington, D.C. DEAR SENATOR MUSKIE: Please consider these comments on the Federal Water Pollution Control Amendments, released as a Committee Prin by the Subcommittee on Air and Water Pollution in July 1. I recently completed a lengthy article on the Refuse Act of 1899 which will be published shortly by the University of Pennsylvania Law Review. In February, I testified before the Hart-Reuss subcommittee in connection with the Refuse Act Permit Program. I will confine myself to a few principal points and apologize for the sketchy nature if some of the comments. 1. Charges Upon Industrial Users of Treatment Works Section 204 (b), declares in part that "[t]he amount of project costs recovered from each industrial user shall be based on the proportion which the volume and strength of such user's wastes treated by the project bears to the volume and strength of all wastes treated by the project. . . ." This is an improvement over the present practice in parts of the country to charge on a volume basis only, with the result that the municipality ends up subsidizing high strength industrial wastes. Dairies are good examples of industrial users of municipal plants who receive free rides under a volume only user schedule. Contributing to the problem is the fact that municipalities believed the volume standard is the handiest; it is not difficult to measure how much is going in. Figuring out schedules based on the strength of wastes, on the other hand, is sufficiently complex so that nobody gets around to doing it. This inertia will be difficult to overcome, especially since there is not much incentive for the local people to get tough by collecting money, most of which will revert to the federal treasury. The prob lem, then, becomes how to make sure that federally decreed user charges based on "volume and strength" do not become in practice volume only charges. One precaution would be to have the Administrator prepare and publish "typical" fee schedule based on strength criteria for the usual industrial wastes. There is precedent for this in EPA's recently published suggested "emission" standards for specified industrial sources to be considered by the states in preparation of their air pollution abatement plans. I believe the power to do this exists in the committee print but it might be advisable to spell it out further in a new Sec. 204 (c). Section 204 (b) goes on to say that user charges "shall include charges which shall be adequate to encourage reduction in the quantity and character of such wastes.” I read this as calling for something above and beyond a cost-dictated user charge, namely an effluent charge. My guess is that if the industries detect this distinction, they will be generally supportive of a user charge and wildly resistant to an effluent charge. The effluent charge of course is based on the simple proposition that the power to tax is the power to destroy. All discharges can be made uneconomic if a sufficiently generous charge is assessed. Though I understand you are generally opposed to the effluent charge concept, let me offer a brief defense of effluent charges in this context. First, I firmly believe that the federal government now has the power to impose effluent charges under the Refuse Act, which in principle is essentially a "no effluent" statute. Congressman Reuss generally supports this view. The administration of course has rejected the idea in its implementation of the Permit Program, although through the use of "fees" for permits and requirements for industry-financed studies some skeleton of paying for what you put out remains. Presently, with municipalities exempt from the Refuse Act, there is an obvious incentive for industries to connect up to a municipal system to avoid the 1899 Act. I can't justify amendments this year that would make it possible for an industry to avoid charges that otherwise could be imposed by the simple expedient of shifting the outfall pipe over to a municipal system. Moreover, I strongly agree with the sentiment expressed in the Print that charges should be "adequate to encourage reduction in the quantity and character of the wastes." Encouraging maximum feasible water re-use and recycling is the objective. Consequently, I favor a provision requiring a charge reflecting the volume and strength of wastes and, in addition, acknowledging the necessity for relying upon an assessment to discourage discharges. The proposed language, with additions underlined and ellipses to indicate omissions, would read as follows: "(b) Notwithstanding any other provision of this title, before approving grants for any treatment works under section 202, the Administrator shall determine that the applicant (1) has imposed, or will impose, a system of charges to assure that each user of any treatment works participates equitably in the operation, maintenance, depreciation and replacement cost of such works; (2) has imposed, or will impose, a system of effluent charges adequate to assure that each industrial user of any treatment works is encouraged to reduce the quantity and character of its wastes and (3) has legal, institutional, managerial and financial capability to assure adequate operation, maintenance, expansion and replacement of treatment works throughout the applicant's jurisdiction. as determined by the Administrator. The amount of project costs recovered from each industrial user shall be based on the proportion which the volume and strength of such user's wastes treated by the project bears to the volume and strength of all wastes treated by the project and may include additional effluent charges which shall be adequate to encourage reduction in the quantity and character of such wastes to the maximum extent of available technology; (c) The Administrator shall, in a rulemaking proceeding, prepare and publish a suggested user charge and effluent charge fee schedule to assure satisfaction of the purposes of this section." Acceptance of this idea would require a definition of effluent charge in § 502 or a redefinition of "effluent limitation" to include the anticipated type of charges. Also, my references to "best technology" here and elsewhere would require a general definition allowing something less if the sourse sustains its burden of proof. See discussion infra. 2. Remedy for Violation of Contract to Impose User Charges Or If Required Matching Funds Are Not Appropriated by the State The remedy is most difficult. In the event of non-appropriation of matching funds, I believe the United States should be expressly authorized to commence an action to recoup funds owing under the legislation. This plainly is to be preferred to dismantling or taking over the project and undoubtedly is the remedy for the breach of contract that non-compliance would dictate. For violation of the user fee obligations, I believe citizen suits should be authorized. 3. Treatment of Refuse Act Permit Program I believe that it would be wise to vest the Corps' § 13 permit powers in the Administrator of EPA, just as it anticipated in 8 402 of the Print. Moreover, the present § 13 loopholes for municipal discharges and ocean and dry land dumping should be closed, as was done in the draft. In this latter connection, I don't believe it makes sense to condition federal authority (under § 402 (a) (1)) to discharges "on the bank of any navigable waters," or on the bank of any tributary of any navigable waters having water quality effects. The idea is that there are undoubtedly discharges away from the "bank" that will have adverse effects and should be reached. I would take away the lawyer's proximate cause arguments by replacing the "bank" language with a reference to "dry land" or its equivalent. Of crucial importance is the standard against which permit applications will be tested. Instead of the secondary treatment minimum proposed in § 402 (a) (1) I would suggest this formulation: if he determines such discharge will have received the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the latest available control technology, processes, operating methods, or other alternatives, unless the applicant demonstrates that a lesser degree of effluent reduction is economically justifiable but in no case let than a minimum of secondary treatment or its equivalent and will not violate . .... What I've done awkwardly is to move your "best technology" language from § 306 (a) (1), giving the applicant an opportunity to demonstrate that something less will suffice in his case, so long as he conforms to the secondary treatment floor. Here's the justification: (1) it is widely acknowledged-most recently by CEQ's citizen advisory committee-that secondary treatment is not enough in many of the nation's waterways; (2) the present formulation will have a tendency to freeze us into secondary treatment where the preferred standard undoubtedly is the more fluid "best technology" principle; (3) if the "best technology" is sound policy for new sources, it is equally sound for existing sources, recognizing only that logistical and economic problems make it more illusory; (4) if a discharger wants to do less than his "best" to control, then he should have the burden of establishing the justification which is invariably an economic one; (5) the formulation imposes no pie-in-the-sky standards since I believe it simply restates an engineering and ecological ideal which is implicit in the Refuse Act; but it does shift the burden to the one who would depart from this ideal; (6) for precedent on the burden point, I see no reason for distinguishing between the generator of chemicals into the water from one who must carry the burden of safety on the registration of a new drug or pesticide. The suggestion in § 402 (d) (1) that EPA "shall delegate" its permit powers to any state with a permit program is disastrous. My recollection is that 49 of the 50 states already have some type of permit program and presumably would qualify for this delegation. The consequence would be that Senator Muskie's deference to the states would go far beyond the administration's acquiescence to the states' judgments about discharges into intrastate waters and for which it has been roundly condemned. I fully appreciate the political delicacy in developing a role for the states in any permit program. My own preference would be to apply accepted principles of res judicata, making the degree of later federal intrusion turn on the extent to which a state authority explores the relevant issues. This would condition the federal permit-granting authority not on the existence of a state program but rather on its viability. The administration has been moving along similar lines by allowing the Corps to waive § 13 hearings if no evidence beyond what is adduced at the state level is likely to be forthcoming. Section 401 (d) (1) would read as follows: "Whenever, as part of an approved plan of implementation under section 303 of this Act, a State, or, if appropriate, interstate agency, establishes a mandatory permit or equivalent program for all discharges of any pollutants into the interstate and intrastate waters of such state, the Administrator shall take into account such program in exercising his authority to grant permits under subsection (a) of this section as it relates to such waters. The Administrator, by regulation, may prescribe categories of applications upon which additional federal consideration is unnecessary in view of full consideration of the issues under a state or interstate permit program. My reasons for preferring an abstention by regulation to a delegation coupled with an authority to review a permit "for consistency with the pur |