This is a very important subject and there is a lot of public discussion and concern and perhaps some uncertainty about it so I think that any opportunity of this sort to improve the committee's understanding as to how this is proceeding and for us to understand better some of your concerns, can only be very valuable. I hasten to say my own familiarity with the details of administration of the program is not terribly great. I do not stay very close to the day to day administration, especially with the responsibility of the corps and of EPA. One thing that our Council tries to do is keep out of the operational responsibilities of the agencies to the extent that we can. We are, of course, involved in policy, such as the policy that went into the development of the permit program and its announcement by the President last December, and we recognize we can't separate policy from administration in any very clear sense and that many of the administrative and enforcement aspects of the program really do go to overall policy as well. So I am not saying that I have no concern over the matters that are before you but simply pointing out that perhaps Mr. Carroll and General Groves may be more familiar with the specific aspects of administration. I have glanced at the letter from the Iron & Steel Institute to Chairman Randolph. I gather the two points that they bring up primarily go to the time for compliance, they are requesting an extension of the July 1 effective date of the program, I think by some 6 months. I am not too sure whether it is 3 months or 6 months, but a substantial extension of time. They also refer, I gather in the letter, to their own estimates of the cost of the program which they urge upon you as being excessively burdensome. Senator MUSKIE. I think what they ask is 90 days from receipt of the permit application. Mr. TRAIN. On both of these points let me make the general comments and be more specific, I don't think this program is one that has been sprung without notice upon industry at all. Now it is true, I believe, as they point out in the letter, that application forms may not have been distributed until the first of June or something on that order, but the general permit program announced by the President and outlined in draft Corps regulations, last December was the subject of extensive briefings of industry groups, I am sure including the Iron & Steel Institute. At or about that same time the committees of Congress and, of course, individual Members of Congress received similar briefings. I was questioned, as I recall, by your committee last August at the hearings on our first annual report on Environmental Quality about a permit program and the implementation of the Refuse Act and I indicated at that time that the corps, particularly, was moving ahead as rapidly as possible with the development of the implementation of a permit program. You may also recall that Congress supplemented the apropriations for the corps so they could start administration of the permit program. It has also been brought to my attention, of course, that the 1899 act in section 10, which is the section which deals not with the Refuse Act aspects but with the obstructions to navigation aspects, has called for many years for permit applications, detailed drawings, specifications with respect to discharges, and all of this I think General Groves would be able to amplify on. I think many of the things we are talking about have been matters that have been required for some time and whether they have been enforced over the years is something perhaps else again, but my main point here is I don't think this has been a matter of taking industry really by surprise. They have had a great deal of notice and simply based upon the record which is made in that particular letter I would not be persuaded that a case has been made for extension. Obviously the administration of any program such as this has to be an exercise of reasonable discretion in the handling of applications of this sort, taking into account the particular circumstances, but that is a far cry from saying that we should at this point give a blanket extension to discharges in the Nation's waterways under the permit program. Insofar as costs are concerned I have no way of analyzing these costs myself. I would note that the permit program isn't requiring new water quality standards; the permit program is simply a mechanism for bringing more certainty and efficiency and effectiveness into the implementation of the water quality law. Perhaps these gentlemen could amplify on that. I think for an opener that might be my remarks. Senator MUSKIE. I think I would like to divide the discussion in two sections, if the committee has no objection. First of all, the discussion will be dealing with specific points raised by the steel industry's memorandum. Then we can evaluate what the industry has said. And then, I would like to get to the broader question of how this permit program and whatever guidelines established under it relate to the water quality standards program which we are rewriting in this legislation. What we are concerned about is whether we are going to have two parallel water quality programs, one developed under the permit program, for which there are very skimpy statutory guidelines; all you have is the 1899 law. We want to know what kind of water quality standards we are setting up in that program, what its relationship may be to the program which we are undertaking to revise. May I say to the members of the committee who have just come. in that Mr. Train has just given us a general opening statement. I have suggested to him that we divide our discussion into two sections; the first section dealing specifically with the positions raised by the steel industry's letter, and the second dealing with the broader question of the relationship between the permit program and the water quality standards program. General Groves, I wonder if you would like to address yourself now to the first part of that discussion, the steel industry's letter and the points that have been raised. I would like to suggest to Members that we vote quickly at the desk so that we can come back. There will be another vote at 11:45. If we go up and come back, we can have quite a bit of time. Why don't we do that now. (Whereupon, a short recess was taken.) Senator MUSKIE. I wonder if we might start. Senators are notably slow in returning to the scene of action. General Groves, I think you may proceed in any way that you like, and then we will turn to questions of the committee. General GROVES. Thank you, Mr. Chairman. I believe it would be useful for the committee if we reviewed very briefly the chronology of events relating to the permit program as they would be visible to industry. I go back in the beginning to May 1970. At that time we issued notice that as a part of the section 10 permit we would require detailed description of effluents. This went out to the field, the section 10 permits are now being received on that basis. The next significant event in the period July-September where Mr. Jordan, the special assistant for Civil Works, appeared twice before the Senate Commerce Committee and announced we would have this permit program. December 23 was the Executive order announcing it and at the same time the President announced the effective date of July 1. On December 31 we published draft regulations in the Federal Register and we specifically described at that time what would be required in the way of information on discharges, we asked for comments. On the 23d of April the permit form was published in the Federal Register for comments. On the 7th of April the final regulations were published in the Register. On the 13th of April we distributed the application form that we intended to use. It was available to industry, we would expect, about the 25th. However, on the 16th of April it was included in the "Environmental Reporter." On the 6th of May there were two meetings held in Washington with industry, one under the sponsorship of the Office of Management and Budget and another one under the auspices of the Department of Commerce, the National Industrial Pollution Control Council. This led to some revisions in the form at the request of industry, primarily, which is the reason why the final form has been delayed until recently. Based also on those discussions we agreed to slip the due date on the information required by what is now section 2(b) of the permit application form, the quantitative data relating to effluents. At the same time we issued instructions to our field and we also made available to the industry through the news media that we would continue to use the old application form, anybody who had filed one could continue to use it and we would accept it. On the 21st of May it was officially announced by Mr. Ruckelshaus and Secretary Beal that section 2 (b) would be slipped until October 1. Again we said that old forms previously filed would be processed. On the 22nd of May we issued the revised form, part I, part II, and part II (A). We expect that this was probably available to industry at the end of May. In the meantime during the month of May we had a number of conferences all over the country with industry, with the associations representing them, the high light was probably on the 26th of May when there was a closed circuit television program in which all agencies participated jointly with the National Association of Manufacturers. The current status of the program forms as of today is part I is out, part II and part II (A) are out, and in the hands of industry; part II (B), the part that is not needed until October 1, is now being printed, we expect it will be available on the first of July. The permit form which is now being finalized, we expect this to be done on Friday and it will be available soon thereafter. Turning now to the matter raised in the letter, we feel on this basis that the July 1 deadline is not unreasonable because industry has certainly been aware or should have been aware for a long time that July 1 was coming upon it and the information that they were required to furnish or will be required to furnish again has been well noted. I should point out, sir, that most of the people we are dealing with in this letter, the steel industry, should probably have section 10 permits. They probably are in need, if they don't have them, of a section 10 permit and if that was the case they would also have on file with us in the proper form the necessary maps and drawings in order to obtain a section 13 permit and they probably would also have on file with us detailed information on the effluents, so they may well in many occasions have that. Senator MUSKIE. I wonder if you would describe what a section 10 permit is, what a section 13 permit is. General GROVES. Yes, sir. We are talking about two sections of the 1899 River and Harbors Act. Section 10 requires that anyone who constructs or places an obstruction to navigation in a navigable water can do so only with a permit from the Secretary of the Army. Section 13 in the Refuse Act says that no one can deposit or permit to flow into a navigable waterway of the United States or a tributary thereof or place it on the bank in such a way that it will enter those waterways any refuse without a permit from the Secretary of the Army with the exception that refuse flowing in a liquid state from streets or sewers is accepted. Section 10 permits we have been requiring for many, many years, we process about 8,000 applications per year. We estimate that there are probably on the order of 100,000 of these permits in effect today. Senator MUSKIE. And do those permits include effluents? General GROVES. Since last May, sir, we have required detailed information on effluents passing through a section 10 structure, May of 1970. Senator MUSKIE. What kinds of standards were related to the section 10 permit before May? General GROVES. This basic information-I can provide to you the regulation for the record. Senator MUSKIE. That would be helpful. (The regulation referred to follows:) Regulation No. 1145-2-303.* DEPARTMENT OF THE ARMY, CIVIL REGULATORY FUNCTIONS: PERMITS-POLICY, PRACTICE, AND PROCEDURE 1. Purpose and Scope. This regulation prescribes the policy, practice and procedure to be used by all Corps of Engineers installations and activities in connection with the issuance of permits for construction or other work in and adjacent to navigable waters of the United States, 2. Laws Authorizing Issuance of Permits. a. Section 10 of the River and Harbor Act approved 3 March 1899 (30 Stat. 1151; 33 U.S.C. 403) prohibits the placing of any structure in or over any navigable water of the United States outside established Federal harbor lines, or where no harbor lines have been established, or excavating from or depositing material in such waters, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. The instrument of authorization is designated as a permit. The authority of the Secretary of the Army to prevent obstructions to navigation in the navigable waters of the United States was extended to artificial islands and fixed structures located on the Outer Continental Shelf (43 U.S.C. 1333 (f)). b. Section 14 of the River and Harbor Act approved 3 March 1899 (30 Stat. 1152; 33 U.S.C. 408) provides that the Secretary of the Army on the recommendation of the Chief of Engineers may grant permission for the temporary occupation or use of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States. c. Section 1 of the River and Harbor Act approved 13 June 1902 (32 Stat. 371; 33 U.S.C. 565) provides that any person or persons, corporations, municipal or private, desiring to improve any navigable river, or any part, at their own expense and risk may do so upon the approval of the plans and specifications of the proposed improvement by the Secretary of the Army and the Chief of Engineers. d. Work and construction in navigable waters by all Federal agencies are subject to the laws for the protection and preservation of navigable waters, including such work and construction performed by the Corps of Engineers in the capacity of a construction agency for other branches and services. Approval of plans and specifications by the Corps of Engineers does not constitute the approval contemplated under these laws. Division and District Engineers will therefore advise such agencies accordingly and cooperate to the fullest extent with a view to facilitating the issuance of permits and furnishing such assistance as may be desired in connection with the permit applications. c. The laws do not require permits for pipe, wire, or cable crossings when attached to the fixed parts of bridges if the pipe, wire, or cable does not reduce the headroom or clear width of boat passages under the bridge. Such attachments will be considered a part of the bridge, and the bridge owner will be responsible for them under his bridge approval. f. For minor structures and work in unimproved waterways or in improved waterways where such structures and work are well removed from the fairways used by navigation, authorization may be by a letter of permission. The letter of permission will be in letter form and will contain substantially the language on the face of ENG Form 1721 (Civil), ENG Form No. 96c, W.D., Eng., or ENG Form 2029, as appropriate. District Engineers may reproduce locally a form This Regulation rescinds ER 1145-2-303, 10 Apr. 63. |