PANEL CONSISTING OF WALTER C. HAZLITT, CHAIRMAN, SUFFOLK COUNTY WATER
AUTHORITY; LOUIS W. WEINFURT, GENERAL MANAGER, SUFFOLK COUNTY WATER
AUTHORITY; HERBERT KOEHLER, P.E., ASSISTANT GENERAL MANAGER FOR
CONSTRUCTION MAINTENANCE, SUFFOLK COUNTY WATER AUTHORITY; AND AUGUST
GUERRERA, CHIEF CHEMIST, SUFFOLK COUNTY WATER AUTHORITY
Mr. HAZLITT. Thank you very much.
Mr. Ambro, Congressman Wright, just for a point of information, the
Suffolk County Water Authority is a revenue agency. It is operated
under the public authorities law of the State of New York. The only
source of revenue that we have available to us is that by virtue of the
sale of water.
Just to condense my comments today, since we are running behind, I
will give you a brief capsule of the problem that we are dealing with.
In the course of construction of the Southwest Sewer District at one
time there were a maximum of 10 contractors running concurrently among 6
successful bidding contractors and operating 80 construction crews in
the area at one time.
In order to meet the situation it was necessary for the water
authority to employ additional personnel in order that we could comply
with the regulations that are presently in force of marking our
facilities out in advance of construction and operating and checking
valves in order that if we did run into a problem that we would be able
to control the situation and minimize the effect on the customers to the
best of our ability.
I am not that naive that I realize a contractor is not in business
for a profit and this in itself most certainly is not immoral. But my
concern is the effect of the activity of the contractors upon the
facilities of the Suffolk Water Authority.
I can cite streets in the course and history of the construction
whereby there were 5,132 incidents relating to the facilities of the
water authority.
I am also not that naive not to recognize that in some cases we are
right, and in other cases we are wrong. Out of those 5,132 incidents,
approximately 1,250 of them we realized and would accept the
responsibility for and, in our judgment, most certainly no obligation
was to be presented to the contractor.
Presently we have in the neighborhood of $669,287.34 of building
damage incidents applied to the different contractors. We have been
able and successful to receive $157.123.51. We have written off /(())
$16,192.71 as a result of meeting with these particular individuals and
saying, yes, in further review, this, in addition to the other 1,200
incidents, are our fault.
When we are talking about accepting responsibility over the past 5
years or the life of the construction of this project, the authority has
written off in excess of $250,000 in damages, which we realize were due
to errors on our part.
I would also be less than honest if I did not state at this time that
county government, particularly the Commission of Environmental
Control's office, has attempted to be as cooperative as they possibly
can. By that I am saying that initially when we met with them and
attempted to resolve the problem between the water authority and the
contractors, they offered the good use of their office whereby they
would not finalize any contract or payment to the individual contractors
unless the problem between the water authority and the contractors was
resolved.
Unfortunately, in further investigation, I was advised by their
office that this was illegal. They could not do it. But at least there
was an attempt on their part.
We were also able to successfully negotiate with the commissioner's
office as to the degree of responsibility when there was a conflict
between the existing facilities of the water authority and the proposed
sewerage. We arrived at what was considered to be a fair position.
If it was a county road, then, of course, the county having authority
and control over it, we would not have to pay for any particular
alteration. If it was a town or village road, then it would be a factor
for us.
I would like to outline briefly, if I may, Mr. Chairman, some of the
problems that have become very apparent and have been a source of
problems to the water authority as far as our dealing with the
contractors.
Mr. AMBRO. Mr. Hazlitt, if I may interrupt you just for a moment, I
wonder if you could tell us how much of the Southwest Sewer District
comes within the purview of the Suffolk County Water Authority.
Are there any other water districts or special districts serving
water needs in the Southwest Sewer District?
Mr. HAZLITT. I would say probably the public water supply that
serves the Southwest Sewer District is about 96 or 97 percent the water
authority franchise area. There would be a small piece of East
Farmingdale Water District and possibly a very small portion of South
Huntington Water District.
Mr. AMBRO. I do not want to shift the focus of your testimony
because certainly the problems encountered between the Suffolk County
Water Authority and Southwest Sewer District are important. But it
would seem to me that here the most vital part of all of this has to do
with not the many encounters that you have with the southwest sewer
district construction, but with your view of the impact of the project
on both the quality and the quantity of the water, both now and in the
future, and if you could or have other members of the panel address
themselves to that, I think that would be most interesting because at
least it would dovetail not only with the prior testimony of Mr.
Guerrera, but some of the environmental-ecological concerns of many who
are here and which have been registered and broadcast in both the
newspapers and other media. /(())
So that is a vital question to us and if you can touch on that, I
would appreciate it.
Mr. HAZLITT. Well, most certainly, Mr. Ambro, for the record, in
1968, I believe, when the original concept of the Southwest Sewer
District was conceived the water authority by resolution endorsed the
project, but only if it provided for recharge.
We have seen a comprehensive water supply report that projects that
we have a safe yield up to the year 2020.
I speak strictly for myself and my own feelings. Any water
reclamation project in Suffolk County most certainly must consider
recharge.
While it is not germane to the subject this morning that we are
talking about, there are areas existing in Suffolk County today --
namely, the east end of the county -- which probably within the next
several years could conceivably become critical. The water authority is
a regulatory agency. We most certainly would be remiss if we did not
consider the long-range plan as to whether we have to treat water on the
way up, the possibility of that, the possibility of desalinization, and
most certainly the ongoing investigation that is presently being
conducted by the Brookhaven National Lab as far as recharge being a
vital aspect of any water problem in Suffolk County.
Our system is fragile, to say the least.
Mr. AMBRO. Well, I appreciate your comments.
I think we recognize that without clean drinking water, and in view
of the fact that New York City is pumping water from the upper reaches
of the United States and Canada, we might very well lose the supply of
water.
There are a number of programs kicking around which would pipe water
from east to west into New York City, thereby diminishing our aquifers
as well.
The question of water is bedrock, if I can mix a bad metaphor, to the
survival of all of us on this island. I would like to ask you, as I
asked others, your view of the impact of this Southwest Sewer District
on the water supply and what you would recommend in terms of your
expertise and those of your panel members with respect to the
continuation of the project.
Anyone can address that; but I think it is fundamental to this whole
inquiry.
Mr. HAZLITT. Well, I think basically when you talk about dropping
the water table 20 feet you are going to have an esthetic effect. You
are going to affect most certainly surface waters, which are extensions
of the underground water supply.
We draw from wells that could be anywhere from 150 to 800 feet deep.
As far as the water supply is concerned, I think initially it would have
not an immediate impact but a long-range effect would be there.
If Mr. Guerrera or anybody else wants to make any comments, they may.
Mr. GUERRERA. As I stated earlier, the position of the saltwater
interface is directly related to the elevation of the water table above
sea level and if this system is taken out of equilibrium, then there may
be a response to that water table.
Mr. AMBRO. You said the Suffolk County Water Authority approved the
project initially with the proviso that there would be some form of
recharge of tertiary treatment. /(())
Have you ever communicated any official document to any of the
authorities with respect to the thought that we now have secondary
treatment with an outflow pipe of 30 million gallons a day?
Have you ever released your view officially or broadcast it?
Mr. HAZLITT. No; we have not.
The resolution as it was formulated in 1968 or 1969 was forwarded to
the county board of supervisors and then Executive Dennison. I do not
think the attitude of the members or their staff has changed.
We have participated in a lot of studies. We are involved in the
South Forks study. We are involved in the 208 study, which is really
beyond our scope of authority, so to speak.
We also are involved with the USGS project, their ongoing project,
whereby they are conducting a study of developing a computer bank of
information relating to the water situation.
Our attitude is that we are interested in anything that gives us an
insight into the quantity and the quality of the water.
I think we made our position very clear not only in public statements
that we have made, but most certainly in our billing inserts that reach
220,000 homes in Suffolk County.
I would say we have expressed our position numerous times.
Mr. AMBRO. I have a copy of the fliers that went out to the citizens
of Babylon and Islip urging an affirmative vote on the referendum for
the southwest sewer district with the underlying proviso that the
planned referendum includes assurance that all purified effluent is
recharged into the underground reservoir as to insure that the water
resources are not depleted.
Now, without question that was a commendable proviso, but what gave
anyone any thought that under the present or then present design concept
in technology that there would be tertiary treatment and recharge?
That was the whole argument of those who opposed the setting up of
the Southwest Sewer District and I do not think there was any rebuttal
to the thought that there would not be recharge in this design.
How did that come about?
Do you have any idea?
(Discussion off the record.)
Mr. AMBRO. I just wondered while you are talking about that if
really the citizens of the Southwest Sewer District understood that
rather esoteric language and the distinctions between primary,
secondary, tertiary, recharge, and impact.
So I say again, while the proviso is commendable, I do not remember
any hope that there would be recharge in the system and all the thoughts
that came from those critics who demanded recharge was that the cost
would be so overwhelming that we just could not get it and this would
not have any adverse impact on the water supply.
In any event, if you would like to comment on anything I said, feel
free to do so.
Mr. HAZLITT. Well, Mr. Congressman, of course at that time the
technical feasibility of recharge was questionable and I think through
the early 1970's that question was raised as to whether we had the
ability or the expertise to do it.
You could get one set of engineers who would say it is physically
impossible and we could come up with another set who would say no
problem to it; it can be done. /(())
In the early 1950's, of course, we never thought we would get to the
Moon either.
I think the feeling at that time was even though it was not feasible
at that time, it was something that had to be accomplished. We have to
do it. It is as simple as that.
We were in a drought period. The water table probably was much lower
than it is today. I think there were people who were aware of the
limitations of the water supply.
Mr. AMBRO. There were people aware of it without question.
Bulletin 62 of the consortium of the USGS New York planners indicated
before an irreversible course is set that for regional purposes and
water supply on Long Island there had to be a water budget, a water
management study done, in order to assure that our drinking water supply
be protected.
Just recently, and long after the fact, this project was approved. I
think every indicator even then was what we have to have on this island
is some system of recharge and it is just unfortunate that we are here
talking about recharge even at a time when technology might exist and
the cost is still way beyond our means.
I serve on the Science and Technology Committee where just recently
we included millions of dollars in order to develop modular units and
better technology for these kinds of systems to insure better recharge.
That comes long after the fact, but between the time that we do these
things and the time they become available, all kinds of horrors can
happen and I think the constant talk about recharge is one which might
put each of us on this island in a period of expectations far beyond our
hopes.
So I think we have to deal with the realities of the situation and
try to get some recommendations as to how best to proceed, either to
continue the project, modify the project, change formulations of cost,
diminish the impact in terms of taxes on people who live in it, and a
whole host of other things.
That is why this hearing is broad based. That is why the
investigators have been here for months. That is why they will continue
even after this. That is why this committee will continue to review
this even after this.
Hopefully with all of your help and the help of all of the others who
will be before us we might come to some kind of a hopeful conclusion.
Mr. WRIGHT. Mr. Chairman, may I ask a question?
Mr. AMBRO. By all means.
Mr. WRIGHT. Mr. Hazlitt, I came here today quite considerably less
knowledgeable about this matter than my colleague, Mr. Ambro. I had a
couple of questions in my mind.
The first was whether the design of the project was an appropriate
design of adequate size and scope and an appropriate size and scope to
attend to the needs of this area?
You have just been discussing that.
There was a second question in my mind. I could scarcely conceive of
reasons why the anticipated cost of completion has escalated so wildly
to more than twice what it was initially expected to cost.
Now, a comment you made earlier begins to shed some light on at least
a part of this question.
You stated that Suffolk County Water Authority had sought to collect
damages from some seven contractors and I believe you said /(()) in the
sum of $669,000. Then you say that of that sum, $157,00 have been
recovered from these contractors. So the water authority just canceled
some $16,000 of supposed damages. This leaves a difference, if I am
correctly adding and substracting, of something like $495,000 that still
is in question. That is an astounding figure.
I have the impression that you might have a list of these accounts
and I wonder if you would make that available for the committee?
I am not asking you to read it to us, but I am asking that you make
it available for our files.
Mr. HAZLITT. Absolutely, Mr. Chairman. No problem at all.
In addition, though, with your figures there, I would just like to
call your attention that we have accepted responsibility for incidents
that total an additional $250,000 or $260,000 that were not billed to
the contractor, that job orders were written up on, but no invoice
submitted.
Mr. WRIGHT. Well, now, you are saying that the county water
authority has gone ahead and paid $250,000 or assumed responsibility to
pay $250,000, but you cannot properly identify it?
Mr. HAZLITT. We can identify it, but we have to accept
responsibility whether it was a mismark or an omission or a commission
on our part.
Mr. WRIGHT. Now, on top of that, you still have in question and
being contested some $495,000 worth of damages that you are claiming
against these various contractors?
Mr. HAZLITT. That is correct.
Mr. WRIGHT. Is that correct?
Mr. HAZLITT. Yes.
Mr. WRIGHT. That is almost half a million dollars. What kinds of
problems could account for this?
What kinds of problems occurred during construction that amount to
this claimed damage?
Mr. HAZLITT. If I may refer to my notes, Mr. Chairman.
Just to give you an idea as to the nature of the problems that we
have become involved with and we feel that we are entitled to redress
on, one is with regard to improper backfilling procedures.
These are all items that are covered under the specifications of the
contract that the contractors bid on.
Mr. WRIGHT. It is your contention?
Mr. HAZLITT. That is our contention.
Mr. WRIGHT. That the contractors in these instances failed to live
up to the terms of the contract; is that correct?
Mr. HAZLITT. That is correct.
Mr. WRIGHT. You mentioned backfill.
Mr. HAZLITT. Right.
Mr. WRIGHT. What else?
Mr. HAZLITT. Backfilling and just under that that the contract
provides handtapping under water mains during the backfilling procedure,
which if they do not do can cause uneven settlement. If you have uneven
settlement you will eventually have a main break.
Riding equipment, heavy equipment over recent excavations which have
not properly been backfilled --
Mr. WRIGHT. Excuse me, sir.
I do not mean to interrupt you, but my curiosity impels me to ask you
something. /(())
Have there been any actual breaks in these?
Mr. HAZLITT. Absolutely.
These are just a cross section of the job orders of incidents that we
have been involved in during the construction.
Mr. WRIGHT. They lay the mains, put the soil on top of the mains,
and you contend it was done in an unprofessional and inadequate way the
mains as a result have broken?
Mr. HAZLITT. Yes, sir. That is our contention.
Mr. WRIGHT. How many breaks in the mains?
Mr. HAZLITT. Well, we have suffered, as I say, 5,000 incidents. I
should say they are either main breaks or house services. That is the
connection from the main to the residence. This is in excess of 5,000.
Mr. WRIGHT. Is there something peculiar about the topography or the
soil conditions of this island that would lend themselves to that?
That is most unusual, it seems to me.
Mr. HAZLITT. I would say no.
We feel that in 3,800 of those particularl cases or 3,820 it is the
direct responsibility of the contractor and he failed to comply with the
specifications of the particular contract he bid on.
Mr. WRIGHT. Meanwhile, if a main breaks, a water main, people are
without water; are they not?
Mr. HAZLITT. That is correct.
In a lot of cases the incidents were with regard to house services,
which are usually a 3/4-inch connection running from the main to the
house. The contractor, according to the specifications, is supposed to
go no closer than 2 1/2 feet on either side of the marked facilities and
he is then to locate it by hand before they proceed with the
construction; and in a lot of cases they have cut right through it.
They have crimped the ends of the pipe in order to restrict the water
coming out of the main and have gone right through with their work.
About 4:30 or 5 o'clock in the afternoon we will get a call that we
have a problem in such and such an area and, of course, we are involved
in overtime on that, so that just compounds the cost to the Authority in
dealing with the problem.
In other cases they do not even bother telling us. We are not made
aware of it until the customer calls and says, Hey, I'm out of water.
Mr. WRIGHT. What kind of future problems do you anticipate as a
result of this?
Are there going to have to be extra repairs in future years?
Mr. HAZLITT. Well, there is no doubt that with the improper
backfilling that we will be plagued in incidents. It could be for the
next 2, 4, 6, 8 even as much as 10 years. Periodically we will
experience main breaks. There is no doubt about it.
In order to protect the residents of the area we have increased the
coordination in the area. We have taken extra samples of the product to
make sure that we have no problems with it. We have taken every measure
to protect the consumer that we can conceivably think of.
Mr. WRIGHT. Do you have any estimate as to the likely amount
annually that you might anticipate?
Mr. HAZLITT. Yes. /(())
We would estimate, Mr. Chairman, in the course of a year it results
in a financial impact on the authority of about $1 million. That is
talking about operating costs and damage claims.
Of course, the contractor, when you are dealing with him, and you
start filing claims against him, these are professionals. They are not
exactly choir boys you are dealing with. They turn around and they
countersue us for the same amount. They figure when we get into court
it is going to be a Mexican standoff or, most certainly the judge will
reduce the financial impact of the claim.
This is what we are faced with.
Mr. WRIGHT. I am not trying to prejudge that question, of course.
Perhaps you will wind up in court. Those equities will have to be
resolved by means other than those concerning us here today. It would
be very presumptuous of me, of course, to attempt to assess the right
and wrong of each of these things.
I just wanted to get a feel for your relief.
If I am correct, I believe you said that all these breaks in mains
that have occurred, the damages have been suffered by the citizen as a
result of the stoppage of water service and extra costs in going in and
replacing and repairing, which comes to some half a million dollars;
but yet is unresolved?
Mr. HAZLITT. That is correct.
Mr. WRIGHT. That is your contention and that extra costs which may
be incurred by the Suffolk County Water Authority as a result of this
deficient performance of the contract, in your judgment, might come to
as much as $1 million a year.
Mr. HAZLITT. Well, the total cannot all be applied to the claims we
have against the contractor. Just the normal construction of a project
of this magnitude requires that we must hire additional personnel to
comply with the State law as far as underground facilities are
concerned.
Mr. WRIGHT. So that that $1 million a year figure is not necessarily
attributable to the failure of the contractors to live up to the
contract?
Mr. HAZLITT. That is the total impact of the project known as the
Southwest Sewer District.
Mr. WRIGHT. The whole thing.
It is going to cost you $1 million a year to operate, maintain, and
keep it going?
Mr. HAZLITT. Yes.
Mr. WRIGHT. All right.
Thank you, Mr. Chairman.
Mr. AMBRO. Thank you.
You will, Mr. Hazlitt, comply with the chairman's request and provide
us with those records and I would hope you would provide us with any
other written statement that you would like to make for the record
incorporating your remarks that you made here.
(The material referred to follows:)
STATEMENT OF SUFFOLK COUNTY WATER AUTHORITY, WALTER C. HAZLITT,
CHAIRMAN
The Suffolk County Water Authority is a public benefit corporation
which operates by virtue of the Public Authorities Law of the State of
New York. Its only source of revenue is from the sale of water to its
customers. It has no taxing /(()) powers and any costs that are
incurred by the Authority must be paid for by the sale of water to its
customers.
The Authority came into being as an operating and revenue producing
agency in 1951. The predecessor company, South Bay Consolidated Water
Company, consisted of a number of geographically isolated areas that
were supplied with public water, i.e. Village of Amityville, Village of
Bay Shore, Village of Patchogue, and the surrounding areas. The water
supply systems in some of these villages were small privately owned
companies and many were constructed in the early 1900's. Because of
this, records of the older areas of the Authority's distribution system
are not complete.
Whenever underground facilities are installed, there will be
interference and difficulties with other facilities already in the
ground, and installation of sewer lines in the Southwest Sewer District
was no exception. However, the magnitude of the problems was much
greater than it should have been.
In 1972 the Suffolk County Department of Environmental Control
started construction of sewers in the Southwest Sewer District. Many
sewer contracts were let almost immediately and by the middle of 1974,
there were ten contracts under construction by six contractors using
eighty construction crews working in the many areas of the Southwest
Sewer District.
To protect Authority facilities, it was necessary for the Authority
to hire additional personnel. Additional work required of the Authority
personnel included the locating and marking of our underground
facilities in the field, and inspection at the construction sites to
protect Authority facilities. In addition to this, it was necessary to
expedite our program of locating and testing all valves and raise all
valve boxes in the areas of sewer work and also inspect hydrants prior
to construction and inspect and repair the hydrants immediately after
they were used by the contractors. At our Bay Shore and Babylon
District Offices, this workload increased because of complaints
generated by sewer construction. This required additional office and
field help. It was necessary to increase the number of maintenance
crews in order to handle the large volume of maintenance work caused by
the installation of sewers (broken water mains and water services).
Sewer contractors or any contractors are in business to earn money,
and the more sewer pipe installed in any given day means they earn that
much more money.
There is no comparison between the speed of digging a trench by
machinery as compared to using hand tools. Therefore, any time a water
service or a water main interferes with a sewer line, it can slow down
progress of sewer installations, and reduce the contractor's profit. As
an example, when a sewer line has to be installed beneath a 3/4-inch
service line supplying water to a house from the main in the street, the
Authority locates and marks this service in the field and the sewer
contractor is required to hand dig around this facility in order to
accurately locate it and protect it. This is required in their contract
with the Department of Environmental Control, and more recently it is
required by State Law. Too many times a contractor ignored the markings
and kept digging with mechanical equipment until the water service was
broken. Since only a comparatively small amount of water leaked from
these lines, many times the leak was ignored or the end of the broken
copper line was simply crimped to stop the flow of water until quitting
time. A request for assistance was then made to the Authority requiring
that our repairs be made on an overtime basis.
Due to the numerous contracts in progress at one time, and the large
number of work crews, our limited number of inspectors could not cover
the entire area. In the beginning, we did not have the close
cooperation of the sewer inspectors in protecting our facilities.
The specifications of the Department of Environmental Control
required the contractor to survey each street prior to the commencement
of construction to make sure all utility marks were visible, in most
cases this was not done. Another problem encountered was that a
contractor would cover up the marks and later claim the marking was not
there. This and other instances where the contractors did not follow
Department of Environmental Control specifications, are indicated in
Annex V.
Another phase of construction that the Authority feels was not
handled properly and has cost the Authority many thousands of dollars
was backfilling of trenches. Three specific actions that caused
problems were: first, proper care was not taken where the fill material
was pushed into the hole; second, the backfill material /(()) was not
properly compacted in and around our facilities; and third, large
chunks of hard material, i.e. broken pavement, rocks, were carelessly
thrown on top of our facilities. Some of this improper backfilling
caused leaks to appear within a day or two and some leaks appeared weeks
afterwards. We expect to find similar leaks months and years from now.
The contractors have made statements that some of these facilities were
quite old, and if they were new, they could withstand the abuse. If the
sewer had been properly installed and the facilities properly protected,
most of the damages we experienced would never have happened.
Another major problem the Authority experienced on small service
lines was that with full knowledge and forethought some sewer
contractors, without approval of the Authority, did deliberately cut the
water service line in order to speed sewer installation. The Authority
was made aware of this only when a customer called complaining of no
water.
There is another clause in the contract between the sewer contractor
and Department of Environmental Control which generally states that
contractors will protect other underground facilities while those
facilities are exposed. Many times comparatively long lengths of water
mains were left exposed and unsupported so they eventually settled and
broke, and at other times they were left exposed overnight during winter
months and froze.
In 1971, the year before sewer construction was started, the
Authority had a total of 463 leaks in the Babylon District. In 1974,
the Authority had a total of 1,740 leaks in this same district. In
1971, our Bay Shore District of the Authority, had a total of 338 leaks
and in 1974, the Authority had a total of 1,001 leaks in this district
(see Annex 1). Considering that, annually, sewer construction was going
on in about only ten percent of the geographic area of our Babylon and
Bay Shore Districts, whereas the record of leaks for all of 1971 covers
the entire area of these Authority districts, the phenomenal increase in
leaks that we experienced directly due to sewer construction is
apparent.
Over the past four years, Authority inspectors, engineers, and
management personnel met with representatives of Bowe, Walsh &
Associates, representatives of Suffolk County Department of
Environmental Control, and various contractors, in order to help
alleviate some, if not all, of these problems. More recently, the
Authority has been more successful in obtaining the cooperation of the
Bowe Walsh & Associates inspectors and the Department of Environmental
Control.
Since the beginning of sewer construction, whenever there was any
damage done to the Authority's system, Authority records were
maintained, and where our investigation indicated that the contractor
was at fault, an invoice was forwarded covering our costs and a carbon
copy sent to the Department of Environmental Control. There may have
been some inaccurate markings by Authority personnel and where damage
was caused to a facility because of this, no invoice has been forwarded
to a contractor. During the early phase of construction, except in one
or two cases, these invoices were ignored. However, as time went on the
Authority did take some action; and then some contractors in turn
billed the Authority for time lost caused by broken water mains and
services.
The Authority has no obligation to pay any monies to sewer
contractors because of lost time. It is their legal and moral
responsibility to survey the area ahead of time and make themselves
aware of any utilities and underground facilities that might conflict or
interfere with the sewer construction. As an example, the Authority has
been installing an average of 130 miles of pipe per year for the past
fifteen years and we do all the preliminary work indicated above before
any water main is installed.
In addition to this, the following is quoted from the specifications
of the Suffolk County Department of Environmental Control:
"The Contractor shall at his own expense make good any direct or
indirect damage that may be done to any utility structure in the
prosecution of his work. The liability of the Congractor is absolute
and is not dependent upon any questions of negligence on his part or on
the part of his agents, servants, or employees and the neglect of the
Engineer to direct the Contractor to take any particular precaution or
to refrain from doing any particular thing shall not excuse the
Congractor in case of any such damage. Special precautions shall be
taken by the Contractor to protect his men, equipment and property of
others while working in the vicinity of utilities." /(())
Our early investigations indicated the vast majority of claims for
lost time were unfounded and, if nothing else, greatly exaggerated.
More recently, the Authority had meetings with one contractor and
indicated that we would institute legal action to collect damages. This
resulted in an immediate reaction from this contractor and we received
invoices for lost time totalling almost the exact amount we were billing
them. Each of his claims were investigated and our records indicated
that at best, only about 8% of his total charges had some legitimacy.
By legitimacy, we mean that the water service or water main was
inaccurately marked and the time lost by the contractor appeared to be
correct.
We feel very strongly that if the sewer contractors followed the
specifications in their contract with the Department of Environmental
Control, and if the specifications were properly enforced at all times,
the damages experienced by the Suffolk County Water Authority would have
been minute compared to what we actually experienced. It is interesting
to note that where the danger is great as in the case of damage to gas
lines, disruptions were miniscule as compared to the damage done to the
water facilities (see ANNEX I & II).
Mbnies expended by the Authority since sewer construction started has
been a great burden to all of our consumers. In fact, it has been so
great that it was partially responsible for our first rate increase in
fifteen years.
We should like to point out typical Authority costs in our fiscal
year 1975 that were necessary to protect the Authority system and assist
in the installation of sewers.
1. It was necessary for us to hire and/or assign two engineers and
four inspectors to do this work on a full time basis. The annual cost
has been $102,000. This money is not collectible.
2. It has been necessary for the Authority to hire additional
personnel and assign additional crews to do nothing but to locate and
mark our existing facilities. The annual cost has been $91,000. This
money is not collectible.
3. We have had to hire additional personnel in order to assign
additional valve locating crews. The annual cost has been $79,000.
This money is not collectible.
4. It is estimated that we have written off an average annual damage
cost of $56,000 because it was felt that the contractor could not be
held responsible. This money is not collectible.
5. It was necessary for the Authority to handle all of the telephone
and written complaints received from our customers caused by the
installation of sewers, and some of the homeowners had to be visited
personally by Authority representatives and/or the complaint checked in
the field. This also increased the workload in the office. It is
estimated that at least two employees' time was used in each of our
district offices. The annual cost has approached $70,000.
6. Because of frequent breaks, the Authority had to increase the
rate of chlorination at all of our pumping stations in the area of the
Southwest Sewer District and for the same reason it was necessary to
take additional water samples in the distribution system. This
increased our workload in the Laboratory for the Bay Shore and Babylon
Districts by approximately 25%.
7. The additional costs of supplying larger doses of chlorine,
taking more samples, and processing more samples, it is estimated to be
$10,000. This money is not collectible.
8. We are facing a number of law suits for alleged damages due to
sewer related work. Among these are where people have tripped over
stakes that we were requested to install as a method of marking our
facilities, and damages caused by discolored water because of
contractors use of Authority hydrants. Cost of this is unknown.
9. We have billed various sewer contractors for a total of $669,000,
for which we received a total payment to date of $157,000, leaving an
outstanding balance of $512,000. It is obvious that to collect a
portion of the remaining monies, it will be necessary for the Authority
to expend additional monies in the form of legal action. (See ANNEX II
& IV).
In summary, the installation of sewers in the Southwest Sewer
District has placed a substantial financial burden on the Suffolk County
Water Authority, which cost will in turn have to be absorbed by our
customers. It also has caused problems, inconvenience, and
interruptions of service to many thousands of water Authority customers.
/(())
ANNEX I
RECORD OF THE NUMBER OF BROKEN WATER MAINS AND WATER SERVICES
GRAPHIC OMITTED
ANNEX II
NUMBER OF WATER MAINS AND SERVICE LEAKS CAUSED BY SEWER CONSTRUCTION
.......................... Total number . Number of .... Number of
.......................... of breaks in . breaks SCWA .. breaks con-
.......................... each contract did not bill . tractor at
.......................... zone ......... contractor ... fault
Contractor and contract number
J.D. Possilico, Inc.
... 1004 /1/ ..... ..... 165 ............. 32 ............ 133
... 1-9 ............ ...... 68 .............. 2 ............. 66
... 2004 /1/ ..... ..... 198 ............. 74 ............ 124
... II-IIR /1/ ... ...... 73 .............. 6 ............. 67
... II-8A .......... ...... 18 .............. 4 ............. 14
... 3002-3-4........ ..... 245 ............. 91 ............ 154
... 3001-7 /1/ ... ..... 622 ............ 134 ............ 488
... III-8 .......... ...... 64 ............. 26 ............. 38
... 5004 ........... ...... 33 ............. 13 ............. 20
... 6008 ........... ..... 146 ............. 42 ............ 104
... VI-7B /1/ .... ....... 15 .............. 3 ............. 12
... Total ........ ..... 1,647 ............ 427 ........... 1,220
Davis Construction:
... 2003 /1/ ..... ..... 558 ............ 156 ............ 402
... 2009 ........... ..... 351 ............. 54 ............ 297
... Total ........ ....... 909 ............ 210 ............ 699
Marvec Allstate
Inc.: 6001 1 ..... ....... 125 ............. 27 ............. 98
S. Zara &
Sons: 2005 1 ..... ....... 152 ............. 33 ............ 119
Lizza Industries:
... 1OC5-7-10 /1/ ....... 271 ............. 77 ............ 194
... 1-7 ........... ........ 2 ............................... 2
... 2007........... ....... 64 ............. 24 ............. 40
... 6004 /1/ .... ...... 300 ............. 20 ............ 280
... 6006 .......... ...... 111 .............. 7 ............ 104
... 3005-6 ........ ....... 22 .............. 7 ............. 15
... Total ......... ...... 770 ............ 135 ............ 635
Hendrickson Bros., Inc:
... 1001 /1/ .... ...... 160 ............. 53 ............ 107
... 2001 1 ........ ...... 190 ............. 89 ............ 101
... 1-10 1 ........ ....... 79 ............. 33 ............. 46
... 1008-9 1 ...... ...... 189 ............. 77 ............ 112
... 11-1OAR ....... ....... 49 ............. 12 ............. 37
... Total ......... ...... 667 ............ 264 ............ 403
Schneider Assoc.:
... 1002-3 /1/ .. ...... 248 ............. 46 ............ 202
... 2012 1 ........ ...... 372 ............. 92 ............ 280
... 3005-6 ........ ...... 190 ............. 44 ............ 146
... V-8A 1 ........ ....... 28 .............. 7 ............. 21
... VI-7A ......... ....... 24 .............................. 24
... Total ......... ...... 862 ............ 189 ............ 673
... Grand total ... .... 5,132 ........... 1,285 ......... 3,847
((/1/ Contracts 1 year past 95 percent completion date. Note: These
totals are up to Aug. 31, 1976, and only include number of breaks from
start of construction to 1 year past 95 percent completion of each
individual contract.)) /(())
ANNEX III
RECORD AND RESULTS OF MEETINGS WITH SEWER CONTRACTORS AND CONSULTING
ENGINEERS
GRAPHIC OMITTED
ANNEX IV
SUFFOLK COUNTY WATER AUTHORITY-SEWER-CONNECTED DAMAGES BILLED TO DATE
GRAPHIC OMITTED
/(())
ANNEX V
LIST OF ACTIVITIES BY SEWER CONTRACTORS IN CONTRAVENTION OF SUFFOLK
COUNTY DEPARTMENT OF ENVIRONMENTAL CONTROL AS OBSERVED BY SUFFOLK COUNTY
WATER AUTHORITY PERSONNEL
(1) Improper backfill procedure:
(a) Not hand tamping under water main during the backfilling
procedure which causes uneven ground settlement.
(b) Riding heavy equipment over recent excavations which have not
been properly backfilled.
(c) Failure of contractor to visibly inspect the contents of backfill
material used in the construction process.
(d) Contractor having the practice of delaying his backfill procedure
until late in the day, causing us to have a peak demand for repair crew
during our off hours.
(2) Improper support of water mains during the construction
operation.
(3) Contractor not maintaining marks by:
(a) Failure to transfer existing markings depicting water mains and
water service locations, when they are going to be obliterated during
the construction process, causing the same water main and service
sometimes to be broken more than once.
(b) Failure of contractor to transfer existing markings before
placing construction equipment and supplies on job site which cause
markings to be covered.
(c) Failure to align header pipe suction systems, which are used in
de-watering operations, in such ways, to avoid the covering up of
existing values. This results in causing a much larger and unnecessary
shut down of the consumers water supply while damages caused by
construction procedures are being remedied.
(d) Failure of contractor to look for existing marks by the simple
means of sweeping the dirt off the street.
(4) Failure of contractors to adhere to specifications in reference
to sheeting support in various open trenches. This practice causes
unnecessary cave-ins and undermining of trench walls which results in
damage to utilities.
(5) Contractor having the practice of working into and past the hours
of darkness, causing unnecessary breakage of utilities.
(6) Contractor not hand digging within the two and one-half (2 1/2)
feet specification.
Record of complaints received by district office and investigated in
field
.................................................... Number of
Babylon district: .................................. complaints
... 1971............................................ .. 9,000
... 1972(Sewer construction started March 1972) .... . 10,500
... 1973............................................ . 14,750
... 1974............................................ . 12,800
... 1975 ............................................ 11,450
Bay Shore district:
... 1972 ............................................ .. 9,732
... 1973 (Sewer construction started in October) .... . 10,485
... 1974 ............................................ . 11,787
... 1975 ............................................ . 13,143
Mr. AMBRO. I appreciate your appearance, each of you. I am sorry we
did not get to each of you, but we do have, as I said earlier, a long
agenda.
Mr. AMBRO. I would like to call next Mr. James Tripp, who is an
attorney with the Environmental Defense Fund; and Mr. John Black, an
associate professor Suffolk County Community College.
After the segment with Mr. Tripp and Mr. Black, we will have Mr.
Barry Andres, who is commissioner of the Department of Environmental
Control, Town of Islip, and Mr. Robert Ritzert, who is the Director of
the Department of Environmental Control of Babylon.
This segment is to discuss the impact of the proposed outfall need
and the environmental concerns generally.
So if you will, Mr. Tripp, you may proceed.
HRG COR
760924
JAMES T. B. TRIPP JOHN A. BLACK PAUL D. MOSKOWITZ
ATTORNEY, ENVIRONMENTAL DEFENSE FUND LONG ISLAND AUDUBON COUNCIL NORTH
FORK ENVIRONMENTAL COUNCIL SCIENCE MONITOR, ENVIRONMENTAL DEFENSE FUND
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
IMVESTAIGATAIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT ( REVIEW OF
THE SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK )
1976, PANEL CONSISTING OF JAMES T. B. TRIPP, ATTORNEY, ENVIRONMENTAL
DEFENSE FUND, AND OTHER, (PP 54 TO 69)
--
--
94-2
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CW220344 CW220359 /
04493
(())
PANEL CONSISTING OF JAMES T. B. TRIPP, ATTORNEY, ENVIRONMENTAL
DEFENSE FUND; JOHN A. BLACK, LONG ISLAND AUDUBON COUNCIL/NORTH FORK
ENVIRONMENTAL COUNCIL; AND PAUL D. MOSKOWITZ, SCIENCE MONITOR,
ENVIRONMENTAL DEFENSE FUND
Mr. TRIPP. Thank you very much.
Mr. Ambro and Mr. Wright, perhaps I should call you both chairman. I
am a little confused.
We have a third person up here, Mr. Paul Moskowitz, who is a marine
scientist, who works with us.
We thought the appropriate way to proceed would be to have Mr. John
Black begin with some discussion of the hydrology. Then Mr. Moskowitz
can discuss some of the impacts of the bay and the shellfish industry.
Then I will follow with some additional comments.
Mr. AMBRO. I think that would be fine.
We understand a bit about this. If you work within very tight time
constraints in terms of opening statements, I would appreciate it.
Your statements will be made a part of the record.
(The statements referred to follow:)
STATEMENT OF JAMES T. B. TRIPP, COUNSEL AND PAUL D. MOSKOWITZ, SCIENCE
MONITOR, ENVIRONMENTAL DEFENSE FUND, INC.
Mr. Chairman and Members of the Committee:
The Environmental Defense Fund (EDF) is a non-profit, tax-exempt,
nationwide coalition of scientists, lawyers and economists dedicated
through litigation and involvement in administrative governmental
proceedings to the preservation and improvement of environmental
quality. It is supported by a nationwide active membership of some
38,000 citizens. We appreciate the request of the Chairman of the
Subcommittee to present testimony.
EDF's active participation in monitoring the sewering programs on
Long Island began on June 29, 1971 when it sent a petition to the U.S.
Environmental Protection Agency (EPA), Region II, requesting that an
Environmental Impact Statement (EIS) be prepared pursuant to Section
102(2)(C) of the National Environmental Policy Act of 1969, relating to
wastewater management in the groundwater area of Nassau and Suffolk
Counties, New York (1). Subsequent to this petition, EPA prepared an
EIS, dated July 1972, on Waste Water Treatment Facilities Construction
Grants for Nassau and Suffolk Counties, New York (2). When two more
years transpired without implementation of a water quality management
planning process under NEPA (3) or Section 208 of the 1972 Federal Water
Pollution Control Act Amendments (3,4), EDF initiated legal action on
July 16, 1974 against EPA and the New York State Department of
Environmental Conservation (NYSDEC) in a 60-day notice letter to correct
this continuing lack of a management plan. (5) Suit was initiated on
December 3, 1974 (6). Shortly thereafter, the Nassau-Suffolk Regional
Planning Board was designated as a 208 planning agency.
In addition to these activities, EDF is a member of the
Nassau-Suffolk 208 Citizens Advisory Committee and has participated in
several administrative hearings on Long Island sewering projects.
In view of the complexity of water quality problems in this
groundwater area, wastewater management planning which is capable of
identifying and evaluating all significant environmental, economic and
social implications of alternative facilities plans is essential.
This Committee is interested in the impact of the Southwest Sewer
District (SWSD) facility on a local community. We shall discuss the
environmental benefits and water quality objectives claimed for the
project, and the environmental liabilities. All of these environmental
impacts are economically significant over time. We shall also discuss
how various aspects of the SWSD project reflect institutional or legal
problems with existing federal water legislation or implementation of
that legislation by EPA. /(())
ENVIRONMENTAL OBJECTIVES OF THE SOUTHWEST SEWER DISTRICT
The SWSD appears to have three implied water quality-public health
objectives. They are:
(1) the improvement of the quality of groundwater, particularly
in the Glacial Aquifer, in the SWSD.
(2) improvement of the quality of the waters of Great South
Bay, a major shellfishing estuarine area; and
(3) a reduction in the number of cesspool failures in the SWSD
and attendant public health problems.
In our review of documents relating to the SWSD, we have found very
little, if any, documentation defining these objectives and little
supporting evidence indicating that the District will achieve these
objectives. Thus, although the project will cost some $640 million, it
is not clear what it will accomplish in terms of specific water quality
improvements.
(1) First, with respect to objective (1), although it cannot be
denied that collection of cesspool (or septic) wastes in the SWSD will
improve Glacial water quality, particularly by reducing nitrate
contamination of this water, we have seen little data indicating what
degree of improvement in existing groundwater quality can be expected,
and whether the anticipated improvement in water quality will be
sufficient to restore the Glacial Aquifer underlying the SWSD as a
source of public water supply with cost effective wellhead treatment.
At the present time, most of the drinking water for this area comes from
the Magothy Aquifer which, fortunately, is not being contaminated by
Glacial Aquifer water near to the south shore. Since the Magothy
Aquifer is recharged through the Glacial Aquifer further inland, a
program designed to minimize pollution of the groundwater to protect
water supplies should concentrate on implementation of pollution
controls, including watershed management, in inland recharge areas,
roughly located in the middle third of the island (7). Since Glacial
waters near the south shore cannot loom as a significant source of
public water supply, the usefulness of very expensive projects designed
to restore the potability of such waters must be open to doubt.
Furthermore, sole emphasis on the contribution of household pollutants
has led to the underemphasis of the significance of stormwater runoff as
a source of contaminants, particularly auto-related toxic materials (8,
9, 10, 11, 12).
(2) With respect to the second objective, we have not seen
quantitative data assessing what water quality improvements in the form
of reduced coliform concentrations or nutrient levels, which may lead to
eutrophication, will occur in Great South Bay as a result of the
construction of the collection system and ocean disposal of treated
wastewaters. Undeniably, cesspool or septic systems near enough to the
shoreline to be tidally flushed cause coliform contamination. However,
the limited data which we have seen suggests that stormwater runoff may
play a far larger role in coliform contamination of Great South Bay than
leaching of domestic wastes (9, 10, 12, 13). Bulkheading and
destruction of wetlands have also contributed to pollution of the Bay in
developed areas. In this connection, the New York State Tidal Wetlands
Land Use Regulations, proposed by the NYSDEC, provide for a setback of
100 feet for new septic systems or cesspools along Great South Bay and
other tidal wetlands (12). We have been advised by the Department that
existing evidence could not support a more stringent setback
requirement. Ipso facto, that same Department has very little, if any,
data to indicate that the SWSD will improve Great South Bay water
quality. Alternatively, if the SWSD is necessary to improve Bay waters,
the lack of controls over new subsurface systems along the south shore
of Suffolk County will lead to conditions requiring construction of
other massive sewering systems.
(3) With respect to the third objective, we have also not seen
quantitative data indicating the significance of the cesspool failure
problems in the SWSD and the magnitude of the public health problem. If
cesspool failures constitute a major justification for completion of
this project, a cheaper and more cost-effective solution to this
problem, including a geographically more circumscibed district, should
be considered (7)
THE ADVERSE ENVIRONMENTAL IMPACTS
The SWSD has several identifiable adverse environmental impacts which
have long-term economic implications for the county and its residents.
USGS scientists estimate that the groundwater table in the SWSD will
decline from natural /(()) conditions between 20 inches and 5 feet.
They further estimate that the cumulative impact of outfall sewering in
the SWSD and in southeastern Nassau County will result in the decline of
the water table of the Glacial Aquifer in southwestern Suffolk County
and southern Nassau County ranging from 20 inches to 20 feet (15).
Reduced groundwater table levels will cause an overall reduction of
streamflows in the SWSD between 20 25% from natural conditions due to
SWSD sewering alone and 40% due to sewering programs in the SWSD and
southeastern Nassau County (15). In the area which will be
hydrologically affected by this sewering program extending from the
Queens border on the west to Champlins Creek, on the east, nine major
groundwater-fed stream systems and numerous samaller streams discharge
into Great South Bay. Several of these are designated C(T), i.e.
suitable for trout fishing and are stocked with trout by the NYSDEC
(16). As a result of the hydrologic effects of outfall sewering, these
streams will shrink in length (15) and they will become considerably
less viable as trout fishing streams than at present (16). Furthermore,
we have determined that within and contiguous to the nine major streams
alone there are approximately 1500 acres of fresh water wetlands (17).
The vegetation of these wetlands is dependent on the height of the
groundwater table. Declines in the water table will therefore
predictably have a severe adverse effect on these wetlands.
Significant reductions in freshwater flows to Great South Bay will
significantly increase salinities in affected portions of the Bay (18).
Our analysis indicates that the salt water intrusion induced by outfall
sewering in Great South Bay will be similar to those observed impacts
brought about by the drought of the 1960's. As a consequence of that
drought, salinities rose by some 3 parts per thousand in many parts of
the Bay (19). These increases in salinity adversely affected shellfish
spawning and the growth and survival of juvenile shellfish (19, 20).
Great South Bay also witnessed an unprecedented invasion by starfish, a
major shellfish predator. As an aftermath of the drought, in very crude
terms, shellfish productivity was reduced by some 50% (19, 20). Thus,
outfall sewering in southern Nassau and Suffolk Counties may reduce
shellfish productivity in affected portions of the Bay by a comparable
amount. In view of the fact that the Great South Bay shellfish industry
harvests some 50% of the hard clam production in the country (13), is
said to be a $100 million industry and employs several thousands of
persons, this environmental and economic impact is considerable (19).
INSTITUTIONAL AND LEGAL PROBLEMS
Although the adverse environmental effects of the SWSD and other
comparable projects will be significant, they have never been properly
identified and evaluated. For example, the July 1972 program EIS on
Waste Water Treatment Facilities (2) prepared by EPA says nothing about
the impact of these projects on freshwater wetlands, the biota of Great
South Bay, the significance of the shellfishing industry of Great South
Bay and the predictable impact of the project on that industry (19).
The failure to evaluate environmental impacts as required by NEPA, is a
basic reason why we are confronted today with fundamental predicaments
in the SWSD.
The inadequacy of the environmental analysis for the SWSD, as well as
many other wastewater projects in the county, results in part from a
failure to place facilities planning in an overall environmental
management context. This also contributes to inadequate analysis of
alternatives. Institutionally, it may result from the fact that
personnel employed in the construction grants program of EPA and NYSDEC
play a more important role in designing and reviewing projects such as
the SWSD facility than personnel in the planning or environmental impact
analyses branches of these agencies (22).
Institutionally, furthermore, EPA, as the operating agency, has had
little incentive to heed the advice or requests of other federal
agencies which have expertise in identifying and evaluating fish and
wildlife issues. The Fish and Wildlife Service, the National Marine
Fisheries Service and the National Park Service, have written EPA and
the Army Corps of Engineers repeatedly since early 1972 about the
environmental complexities of wastewater management in groundwater areas
and the adverse environmental impacts inherent in outfall sewering in
Long Island, including the SWSD (23, 24, 25, 26, 27, 28). At worst, EPA
has ignored the potential severity of these problems, despite warnings
from sister agencies. At best, EPA's response has been that
construction and use of outfalls are necessary, even if they do great
harm because no other alternatives are available. /(())
In turn, therefore, we must ask why is it that alternatives, which
can mitigate groundwater pollution from cesspool-septic wastes while
avoiding significant adverse hydrologic-ecological effects, are not
available, if we accept, arguendo, this position.
A limitation on alternative wastewater strategies, such as recharge,
available for evaluation, may arise in part from the inadequacy of
program funds to support water resource management planning and research
efforts. Although the 1972 Amendments called for "a major research and
demonstration effort + + + to develop technology necessary to eliminate
the discharge of pollutants" (29) into receiving waters and stated as a
matter of national policy that "areawide waste treatment management
planning processes be developed and implemented (30), the Act also
called for and appropriated massive federal financial assistance for the
construction of waste treatment works (31). Thus, a multibillion dollar
public works construction program was accelerated relying upon
conventional technological processes that existed prior to 1972, without
the benefits of areawide planning or the results of major research and
demonstration efforts. This problem has been intensified by the delay
in the implementation of the 208 program and by the pitifully small
scale of EPA's research and development effort under the 1972
Amendments. Because of the lack of research and demonstration projects,
local water managers are given very few options with which to develop
wastewater management programs. This is certainly true of Long Island.
The absolute number of dollars spent on advanced wastewater treatment
research has declined from $12.7 million in 1968 to approximately $6.3
million in 1976(32). These funds are for research intended to implement
Section 201 of the 1972 Amendments which calls for "the development and
implementation of waste treatment management plans and practices which
will achieve the goals of this Act" and which: "+++ shall provide for
the application of best practicable waste treatment technology before
any discharge into receiving waters, including technology before any
discharge into receiving waters, including reclaiming and recycling of
water, and confined disposal of pollutants +++" (33)
In contrast, the construction grants program grew from $203 million
in 1968 to $4 billion in 1975 and more than that in fiscal year 1976.
Thus, research monies have declined while construction grants have
increased. The annual EPA research budget for wastewater effluent land
application systems is also small, currently about $900,000 (34), and
clearly inadequate to construct, operate and evaluate demonstration
projects. Similarly, EPA's research for stormwater pollution control
has been reduced from $6 to $1.8 million per year around 1970 to less
than $1 million in fiscal year 1976 (35).
Similarly, research and demonstration activities to improve the
efficiency and effectiveness of individual residential subsurface
systems have also been minimal, despite the fact that Section 104(g) of
the 1972 Amendments calls upon EPA to: "conduct a comprehensive program
of research and investigation and pilot project implementation into new
and improved methods preventing, reducing, storing, collecting,
treating, or otherwise eliminating pollution from sewage in rural and
other areas where collection of sewage is conventional, community-wide
sewage collection systems is impractical, uneconomical or otherwise
infeasible + + +"
Recently, EPA's overall research program has been severely criticized
for offering only short-term solutions to massive long-term
environmental problems by the United States Congress Office of
Technology Assessment (36). In our own lawsuit, we have been told
repeatedly by EPA that the feasibility of recharge by advance waste
treatment, land application, improved management of individual systems
or other methods in a groundwater area has not been demonstrated because
of lack of demonstration projects and possible health related
contaminants in renovated wastewater. Although we consider these
problems to be manageable and recharge to be feasible (37, 38, 39), if
arguendo, they are not, these research-demonstration budgets don't begin
to be adequate.
This lack of adequate research has limited the development of cost
effective technology necessary to implement the goals of the 1972
Amendments (32). When it comes to research and development for
municipal wastewater pollution control, the leadership must necessarily
come from the federal level.
Part of the problem is that Congress and EPA appear to have thought
in 1972 that we had the technology to control water pollution. However,
experience both under the 1972 Amendments, as well as the Clean Air Act,
suggests that there is no way to tack on control technology to an
inherently polluting system, relying /(()) on energy and intensive
end-of-the-pipe treatment which in large part only transfers the
pollution problem to another arena (40, 41). The only way to move to
non-polluting systems, as required by Section 201 of the 1972 Amendments
(42), is to fund the necessary research and development efforts.
Unfortunately, just the opposite has occurred.
Thus, in the SWSD we find an ongoing commitment to the use of
conventional technology which is simply not designed to cope with the
complex water quality problems at hand.
Furthermore, EPA takes the position that the 1972 Amendments do not
grant it authority to control point discharges into ground water (43).
Because of the limited definition of "injection wells" in the Safe
Drinking Water Act (44) at the present time there is no comprehensive
federal program to control pollution of groundwater by most point source
discharges. In part for this reason, there is almost no federal or
state program to control the installation of or monitoring effects of
new subsurface residential subsurface systems. This jurisdictional
problem is compounded by the fact that EPA and NYSDEC and, to some
degree, the 1972 Amendments themselves, fail to make appropriate
distinctions between the wastewater management problems of surface water
areas and groundwater areas. For example, although the generic-1977
"secondary treatment" requirement (45) may make some sense for some
surface water areas, it makes little sense for groundwater areas since
secondarily treated wastewater is generally considered unsuited for
recharge. As a consequence, the 1972 Amendments serve as an inducement
to "solve" groundwater pollution problems by way of disposal of wastes
through outfalls into coastal waters, a disposal system which plays
havoc with natural hydrologic cycles.
If the objective of a wastewater management program is to protect
Long Island's water supply, a watershed management program, designed to
control or limit development in key recharge areas, might achieve that
objective far more effectively than massive sewering. Recent evidence
suggest that street and urban runoff and other non-point sources of
pollution are significant sources of pollutants, including toxic
substances (8, 9, 10, 11, 12, 13, 38). However, neither the 1972
Amendments nor the Safe Drinking Water Act authorizes grants of federal
monies to acquire or otherwise gain public control of recharge area
watershed lands in order to protect public water supplies at source.
These statutes have a "technological-fix" bias which cannot help but
prejudice local decisions towards structural solutions. Furthermore,
although federal monies and state monies can be made available to
acquire lands for recharge purposes (46), administratively it is very
difficult for Suffolk County or any other local area to obtain such
funding for the acquisition of recharge areas preemptively before
development precludes use of such lands and before detailed facilities
planning has been completed and approved.
ALTERNATIVES
Since the environmental impacts of the SWSD as presently designed
have never been properly identified and evaluated by the appropriate
agencies, comprehensive evaluation of the present project relative to
alternatives is difficult. In our view, an adequate analysis of the
environmental impacts (15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27,
28, 47, 48, 49, 50) of SWDS outfall sewering would point to the
desirability and necessity for a recharge management and/or watershed
management program. Further, an adequate analysis and evaluation of the
importance of sources of contamination of the groundwater would point in
the direction of a stormwater management program (8, 9, 10, 11, 12, 13,
38).
Given the data available to us, alternatives to the SWSD plant and
outfall which would mitigate the potential adverse environmental impacts
of the project include: (1) redesign of the SWSD as a recharge
management system, incorporating certain features of the present
project, supplemented by immediate identification and acquisition of or
other means of control over inland recharge areas, stream augmentation,
advance waste treatment and/or land application treatment processes;
(2) scaling down the size of the present SWSD and improved maintenance
and operation of existing subsurface systems following a re-evaluation
of the projects (7), or (3) expenditures of unexpended funds on other,
cost effective groundwaters protection programs, such as watershed
management or sewering of inland areas designed to protect important
recharge areas.
Construction of the outfall without a proper analysis and evaluation
of environmental impacts will predictably cause long-term environmental
and economic /(()) difficulties, impose further burdens on taxpayers and
jeopardize future implementation of a recharge program.
The 1972 Amendments do allow for the additional federal funding for
the SWSD as a recharge system under Section 202(b) (51). We do not
understand why the responsible agencies have not made a concerted effort
to implement Section 202(b) of the 1972 Amendments. That provision was
inserted to provide funding specifically for the SWSD in view of the
fact that construction of its collection system and implementation of
recharge to avoid adverse ecological effects is very expensive, given
the present design of the system. To our knowledge, EPA has not
included in any budget proposal specific funding to fulfill the mandates
of Section 202(b). Section 202(b) funding will increase the number of
management alternatives in the SWSD, while easing tax burdens on local
taxpayers.
REFERENCES
1. Petition of the Environmental Defense Fund for Preparation of
Environmental Impact Statement, June 29, 1971 before the Office of Water
Quality, Environmental Protection Agency.
2. Environmental Impact Statement on Waste Water Treatment
Facilities Construction Grants for Nassau and Suffolk Counties, New
York. Environmental Protection Agency, Region II, July (1972).
3. The National Environmental Policy Act, 42 U.S.C. section 4321, et
seq.
4. 33 U.S.C. sections 1251 et seq.
5. Letter from Environmental Defense Fund, Setauket, New York, dated
July 16, 1974 to the Honorable Russell E. Train, Administrator,
Environmental Protection Agency, Washington, D.C. and Mr. Gerald
Hansler, Regional Administrator, Environmental Protection Agency, Region
II.
6. Complaint, Civil Action No. 74-C-1698 (E.D.N.Y. December 3,
1974), Environmental Defense Fund, et al. v. Train, et al.
7. Lambert, Richard G. 1976. Report of the Special Committee on
Technical Aspects of Southwest Sewer District. Suffolk County, New
York.
8. Slimak, Karen M., Robert H. Harris. 1976. Preliminary Analysis
of Organic Chemicals and Heavy Metals in Existing and Potential Recharge
Waters. Versar, Inc., Springfield, Va.
9. Shaheen, Donald G. 1975. Contributions of Urban Roadway Usage to
Water Pollution. Biospherics Inc. for the U.S. EPA. Environmental
Protection Technology Series, EPA-60012-75-004.
10. Colston, Newton V., Jr., 1974. Characterization and Treatment
of Urban Land Runoff. EPA, Office of Research and Development, December,
1974. EPA-607/2-74-096.
11. Pitt, Robert E. and Amy, Gary, 1973. Toxic Materials Analysis
of Street Surfaces Contaminants. U.R.S. Research Company for the U.S.
EPA, Environmental Protection Technology Series, EPA-R2-73-283.
12. Sartor, James D. and Boyd, Gail B. 1972. Water Pollution
Aspects of Street Surface Contaminants, U.R.S. Research Company for the
U.S. EPA, Environmental Protection Technology Series, EPA-R2-72-081.
13. Jensen, Albert C. 1973. Managing Shellfish Resources Under
Increasing Pollution Loads, Proceedings of the Gulf and Caribbean
Fisheries Institute, 26th Annual Session, October, 1973.
14. New York State Tidal Wetlands-Land Use Regulations. Draft for
Public Hearing Purposes, Section 661.6(a) (2). Section 661.6(a)(3) also
provides for a minimum of 2 feet of soil beneath the cesspool.
15. Kimmel, Grant E. and Arlen W. Harbaugh, 1975. Analog-model
Analysis of Hydrologic Effects of Sewerage in Southeast Nassau and
Southwest Suffolk Counties, Long Island, New York. United States
Department of Interior -- Geological Survey Open File Report 75-53.
16. Deposition of Mr. Anthony S. Taormina, Director, Division of
Marine and Coastal Resources. New York State Department of
Environmental Conservation dated September 17, 1975.
17. Beitel, Joseph. 1976. A Vegetative Survey of the Freshwater
Wetlands of Nine Major Streams in Southwestern Suffolk County and
Southern Nassau County, New York. Environmental Defense Fund, Setauket,
New York.
18. Moskowitz, Paul D. 1976. An Analysis of Salinity Variations
Within Great South Bay, New York. Limnol. Oceanogr. 21:740-743.
19. Affidavit of Mr. Stephen G. Lane, Sayville, New York, dated
October 2, 1975.
20. Affidavit of Mr. Nelson Slager, Sayville, New York, dated
October 6, 1975. /(())
21. Report -- Comprehensive Public Water Supply Study, Suffolk
County, New York CPWS-24. Prepared by Holzmacher, McLendon and Murrell
-- Consulting Engineers, Melville, New York 1970.
22. Fensterstock, J.C. and D.M. Speaker. 1974. Use of
Environmental Analyses on Wastewater Facilities by Local Government.
EPA-600/5-74-015.
23. Letter from the Fish and Wildlife Service, Washington, D.C.
dated March 6, 1972, to the Director of the Office of Environmental
Project Review and the Office of the Assistant Secretary -- Program
Policy Assistant, Washington, D.C.
24. Letter from Mr. P. A. Buckley, Chief Scientist, North Atlantic
Region, National Park Service, Boston, Mass. dated October 20, 1975 to
Mr. Gregory DeSylva, Environmental Impacts Branch, Environmental
Protection Agency Region II.
25. Letter from Mr. William G. Gordon, Regional Director, National
Marine Fisheries Service, Gloucester, Mass., dated January 27, 1976 to
Mr. Gerald Hansler, Regional Administrator, Environmental Protection
Agency, Region II.
26. Letter from Mr. Robert H. Shiclolp, Acting Regional Director,
Fish and Wildlife Service, Boston, Mass., dated March 4, 1976 to Mr.
Gerald Hansler, Regional Administrator, Environmental Protection Agency,
Region II.
27. Letter from Mr. William G. Gordon, Regional Director, National
Marine Fisheries Service, Gloucester, Mass., dated May 26, 1976, to
Colonel Thomas C. Hunter, Jr., District Engineer, Corps of Engineers,
New York District.
28. Letter from Mr. William C. Ashe, Acting Regional Director, Fish
and Wildlife Service, Boston, Mass., dated August 3, 1976 to Col. Thomas
C. Hunter, Jr., District Engineer, Corps of Engineers, New York
District.
29. Section 101 (a) of the 1972 Admendments, 33 U.S.C. section
125(a)(6).
30. Section 101(a)(5) of the 1972 Amendments, 33 U.S.C. section
1251(a)(4).
31. Section 101(a)(4) and 207 of the 1972 Amendments, 33 U.S.C.
section 1251(a)(4) and 1287, and 40 CFR section 35.910-3 to section
35.910.5.
32. Overview of the Advanced Waste Treatment Research Activities of
the Municipal Pollution Control, John J. Convery, Acting Director,
Advanced Waste Treatment Research Section, Environmental Protection
Agency, Cincinnati, Ohio, July 1975.
33. U.S.C. section 1281(a) and (b).
34. Personal communications with personnel, EPA, Robert Kerr
Laboratories, Ada, Oklahoma. This budget includes about $600,000 for
extramural work and $300,000 for intramural staff in the first four
quarters of fiscal year 1976. The budget has been at or near this level
for the last three or four years, except fiscal year 1975 when Congress
appropriated a one-time supplemental fund of $2.5 million.
35. Personal communications with personnel, EPA laboratories,
Edison, New Jersey. The EPA four-quarter 1976 fiscal year extramural
budget is about $729,000 and intramural budget is for $230,000 for storm
water pollution control research and demonstration projects.
36. A Review of the U.S. Environmental Protection Agency.
Environmental Research Outlook FY 1976 through 1980. U.S. Congress
Office of Technology Assessment, August, 1976, OTA-E-32.
37. Affidavit of Dr. Robert H. Harris, Washington, D.C. dated
October 29, 1975.
38. Harris, Robert H. 1975. Water Quality Management on Long
Island: A Case for Recycling Municipal Wastewater by Ground Water
Recharge. Environmental Defense Fund, Setauket, New York.
39. Affidavit of Dr. Samuel Fogel, Cambridge, Mass., dated October
16, 1976.
40. Affidavit of Dr. Holger W. Jannasch, Woods Hole, Mass., dated
September 12, 1975.
41. Woodwell, G. M., 1974. Letter to the Editor. Scientific
American (Vol. 231, No. 3)
42. U.S.C. section 1281(a) to (d).
43. See U.S. v. GAF, 7 ERC 581 (S.D. Tex. February 5, 1975).
44. Section 1421 of the Safe Drinking Water Act, 42 U.S.C. section
300 h and EPA proposed regulations, 40 CFR Part 35, 41 F.R. 36726
(August 31, 1976).
45. Section 301 (b)(1)(B) of the 1972 Amendments, 33 U.S.C. section
1311(b)(1)(B).
46. 40 CFR section 35.925-lS and Section 212(a)(A) of the 1972
Amendments, 33 U.S.C. section 1292(2)(A). /(())
47. Letter from Mr. Donald Swift, Marine Geology and Geophysics
Laboratory, Miami, Florida, dated June 17, 1975 to Mr. Robert Carl
Olsen, Environmental Protection Agency, Region II.
48. Letter from Mr. Richard L. Caspe, Chief Construction Grants
Section Environmental Protection Agency, Region II, dated July 1, 1975
to Mr. John V. N. Klein, Suffolk County Executive.
49. Affidavit of Mr. Dennis Puleston, Brookhaven, New York, dated
October 17, 1975.
50. Affidavit of Dr. Anthony E. Cok, Jamaica, New York, dated
October 21, 1975.
51. Section 202(b) of the 1972 Amendments, 33 U.S.C. section
1282(b).
A CONSIDERATION OF THE SOUTHWEST SEWER DISTRICT
(By John A. Black, Long Island Audubon Council, North Fork
Environmental Council)
The Southwest Sewer District, the largest and most costly public
works project in the history of Suffolk County, will not only fail to
solve environmental problems in a cost effective manner but will, in
reality, be environmentally detrimental. Suffolk County is solely
dependent on its groundwater resources for its domestic water. It is
anticipated that the Southwest Sewer District will not only fail to
upgrade the water quality of the aquifers appreciably, but will also
reduce the water quantity to an extent sufficient to destroy much of our
fresh water resources.
As noted above the subsurface aquifers are the sole source of fresh
water on Long Island. These aquifers receive water via the recharge of
rainwater, which percolates into the ground and enters the aquifers. Of
the 44 inches of precipitation it is estimated that approximately 50%
actually enters these aquifers.
There are three major aquifers underlying Long Island: the Glacial,
the Magothy and the Lloyd. The Glacial Aquifer is the shallowest;
water recharged to this aquifer to the south of the moraine tends to
move laterally in a southerly direction toward the Great South Bay.
When the Glacial Aquifer intercepts the surface it forms fresh water
seeps, bogs, streams, rivers and lakes. Thus the total precipitation
entering the aquifer via precipitation is not available for domestic
use. A portion of the Glacial Aquifer enters the marine environment as
subsurface springs. Glacial water is also brought to the surface by
shallow wells to provide water for anumber of homes on Long Island. A
portion of the water in the Glacial Aquifer also tends to move
vertically and recharge the Magothy Aquifer along the central moraine.
The Magothy Aquifer lies below the Glacial and, as above mentioned,
receives water from the Glacial. The area of most efficient recharge is
in the central portions of the island in the vicinity of the moraine.
The water in the Magothy south of the moraine, also tends to move
laterally toward the Great South Bay. The Magothy Aquifer provides the
majority of domestic water in the western portions of Suffolk County. A
portion of this water also tends to move vertically and recharge the
Lloyd Aquifer.
The Lloyd is the deepest aquifer on Long Island. At present its use
is restricted by the New York State Department of Conservation to areas
where salt water intrusion has contaminated the upper aquifers. It is
to be noted that all three aquifers are interconnected by vertical flow
-- primarily in the central portions of Long Island.
Prior to the building boom of the fifties it appeared that dilution
would be sufficient to offset contamination. In other words, with a low
population density and only a minimal portion of the island covered by
impermeable surfaces (roads, parking areas, etc.), the contaminants from
cesspool seepage were sufficiently diluted in the aquifer and, for the
most part, the Glacial Aquifer was of sufficient water quality to
provide water for much of Long Island. As population density increased
and more land area was paved, asphalted, etc. water quality of the
Glacial Aquifer began to decline drastically. This was due, in part, to
the increased cesspool density. However one must not overlook the other
sources of aquifer contamination -- namely landfill sites, agricultural
and residential fertilizers and pesticides, as well as recharge basins
accepting runoff from roadways, etc. It is also to be noted that much
of the building on Long Island occurred during the drought (1962-1966)
when groundwater levels were at their lowest. Thus many builders
erected houses in areas that in non-drought years would be wet. These
/(()) types of building practices must be kept in mind when considering
some of the peculiar problems of the Southwest Sewer District.
As water quality of the Glacial Aquifer continued to decline it
became common practice to exploit the Magothy as a source of
uncontaminated water. As this occurred, water was taken from the deeper
aquifers, used, contaminated and released, via cesspool seepage, into
the Glacial. Thus water was taken from one aquifer, contaminated and
released, along with the above mentioned additional sources of
contamination, into the Glacial Aquifer. This hastened the decline of
water quality in the Glacial. As the Glacial continued to decline in
quality, so did the streams, lakes, etc. which were fed by Glacial
water. In addition submarine springs were bringing in low quality
Glacial water to the marine environment. It is to be stressed, at this
point, that cesspool leachate is only a portion of the total problem.
As noted previously landfill sites, runoff, etc. contribute and will
continue to contribute significantly to the total problem.
Pumping water from the Magothy Aquifer and releasing it into the
Glacial also brought about an additional problem -- that of drawdown.
As water is removed from the Magothy the water pressure in this aquifer
is reduced. This is known as a reduction in the hydrologic head. As
the water pressure of the Magothy decreases an increased vertical flow
from the Glacial occurs. Since the Glacial is contaminated, however,
reduction in the hydrologic head serves to hasten the contamination of
the Magothy.
The Southwest Sewer District proposes to sewer an area from the
Southern State Parkway south to the Great South Bay. The majority of
the water used in this area is from the Magothy. This water will be
taken to the treatment plant, after use, subjected to secondary
treatment and will then be released to the marine environment. The
rationale given is that this district will increase the domestic water
quality, improve the water quality of the fresh water systems within the
district, improve the quality of the Great South Bay and in the southern
portions of the district, solve the cesspool overflow problems -- at a
cost of over $1 billion.
The Southwest Sewer District will fail to appreciably improve the
water quality since, as noted previously, the zone of maximum Magothy
recharge is in the center of Long Island along the moraine. This area
is, for the most part, unsewered. Consequently the cesspools and septic
tanks located in this region will continue to add material to the
Glacial Aquifer. Since this is the zone of maximum recharge into the
Magothy, these contaminants have the highest probability of entering the
deeper aquifers in this area. The collection system, located far to the
south, will have virtually no effect on improving Magothy quality.
The Southwest Sewer District will not improve surface fresh water
quality. Since this district will release 30 mgd of secondarily treated
waste water to the marine environment it will tend to decrease
groundwater levels in the central portions of the island. This
reduction in Glacial water will directly affect the surface fresh waters
in the area by decreasing stream flow, lake levels, etc. That this is a
real concern is illustrated by the Suffolk County Department of
Environmental Control's tentative plans for stream augmentation of the
Carll's River. Unfortunately, according to John Flynn, federal monies
have not been allocated for stream augmentation. Therefor it is
recommended that stream augmentation, along with recharge per se, be
considered as an alternative to the destruction of surface fresh water
systems. If stream augmentation is undertaken, however, it must be
carried out with the intent of preserving all, or at least the most
significant, fresh water systems within the district and not only the
most obvious system -- namely the Carll's River system. In addition it
is to be stressed that the water used in this process must be Class "C"
water or better.
The Southwest Sewer District will not, in all likelihood, improve the
water quality of the Great South Bay to any appreciable extent since
many other sources of water contamination will continue unabated. In
addition the outfall will release 30 mgd of secondarily treated waste
water into the Atlantic Ocean. This will have a deleterious effect on
the marine environment in this area and will further increase the
possibility of beach contamination in the future.
In conclusion the Southwest Sewer District will fail to significantly
raise the water quality of the aquifers and will, in fact, deplete these
aquifers. This will, as noted previously, lead to the destruction of
fresh water systems. Consequently this district is an extremely
expensive project with little, if any environmental benefit, as
presently conceived. Activity on this project should be confined to
only those areas presently under construction or those projects that
have been funded to date. The district should simultaneously be
reevaluated in terms of scope, recharge and/or stream augmentation and
redesign to either reduce the costs, increase the environmental
benefits, or both. /(())
Mr. AMBRO. Mr. Moskowitz.
Mr. MOSKOWITZ. I think, Mr. Black will go first.
Mr. TRIPP. Let me say since we have submitted statements if you want
to open it up to questioning right away, I think that is agreeable.
Mr. AMBRO. Go ahead.
Mr. BLACK. Just to summarize, we feel that the Southwest Sewer
District will fail to solve environmental problems in a cost effective
manner, which is what we have been hearing all day. We also feel it
will be environmentally detrimental because it will fail to upgrade the
quality of the groundwater and it will, in fact, reduce the groundwater
quality and destroy various fresh water resources within the Southwest
Sewer District.
Just briefly to more or less summarize what Mr. Guerrera tried to
point out this morning, the Magothy is the major source of the domestic
water in the southwest sewer district and the zone of maximum recharge
is toward the central portion of the island, along the terminal moraine,
which is virtually unsoiled and subject to not only cesspool and septic
tank contamination, but also fertilizers from home use, pesticides from
home and agricultural use, nonpoint sources, some recharge basins.
Mr. WRIGHT. The Magothy formation is vulnerable and susceptible to
this kind of intrusion?
Mr. BLACK. Definitely, especially along the central portion of Long
Island; along the central spine of the island is where the majority of
the water gets down into the Magothy and, as Mr. Guerrera pointed out,
that is the portion of the water that is not going to be sewered by the
Southwest Sewer District.
The water from the central portion of the island, talking about the
area where we are considering, tends to move southward toward the Great
South Bay.
My own feeling and the feeling of many people is that by not sewering
the central portion of the island or by constructing the correction
where it is far south of the zone of maximum recharge, you are not going
to upgrade the water quality of the Magothy to any appreciable extent.
In addition to that, by pumping the water from the Magothy you will
in all likelihood cause what they call drawdown from the glacial. More
water will be leaching from the Glacial when entering the Magothy. This
will lead to the reduction in the water tables from about 3 to 4 meters.
That will cause a reduction in stream flow and a reduction in our lake
levels, our stream levels, and our fresh water levels.
Mr. WRIGHT. If I might, I will interrupt for another question, Mr.
Black.
Perhaps I did not quite completely understand what Mr. Guerrera had
said. I got the impression from him that it took so long for these
waters to intrude into the Magothy formation that he felt that it was
not vulnerable to this kind of intrusion and the supply being drawn from
the magothy water probably was not susceptible to the dangers of this
kind of intrusion from the septic disposal and so forth into the glacial
formation.
I do not believe that is your contention. You feel otherwise, I
think.
Mr. BLACK. Well, basically what I am saying here is that if you are
going to construct a collection system to preserve the Magothy, and
/(()) that is basically the reason we are doing this, we are having
contaminated drinking water, so forth and so on, that was the original
rationale.
If a collection system is going to be built to preserve the Magothy
or upgrade the Magothy, the place to do it is not along the south shore
of Long Island, but along the moraine.
Mr. TRIPP. Mr. Wright, I think what Mr. Guerrera is saying is it
takes hundreds of years for water to recharge in the middle of the
island and to get down to the Magothy and down to the south shore. It
does not take near that long.
I think water quality data from the Suffolk County Water Authority
establishes that a contamination of the Magothy aquifer is taking place
in the middle of the island at the present time. This is certainly true
in Nassau County.
Mr. WRIGHT. Well, then, if you could start all over again and design
a system expressly for this area, what would you do?
Mr. BLACK. Not to sound like a radical environmentalist, but to
start all over again would be very hard.
Mr. WRIGHT. I understand.
Mr. BLACK. There is a very high population density and so forth. If
you were going to start all over again, I would assume you would start
over in the middle of the island and build your collection system there.
Mr. WRIGHT. I see.
That would have been your optimum solution?
Mr. BLACK. Right.
Well, it would have been a solution. I do not want to say it would
be the optimum solution.
Mr. WRIGHT. What would be your optimum solution?
What would be the best way and most cost-effective way to achieve the
maximum benefit to the living environment?
Mr. BLACK. Well, philosophically I fail to see why we have to spend
$641 million, excluding interest, on constructing pipes or laying pipes
and constructing sewer plants.
This is a philosophical discussion now.
Philosophically, $641 million, to my way of thinking, could have been
much better spent in preserving the watershed originally. In other
words, buying up tracts of land along the terminal moraine and leaving
them undeveloped.
Mr. WRIGHT. Keeping people from moving out here?
Mr. BLACK. Right.
Mr. TRIPP. Just in that area.
Mr. BLACK. Right in that area. In the sensitive area. In the area
that is subjected to maximum Magothy recharge.
Now, since that has not been done, it would be very hard to move the
Long Island Expressway industrial parks.
At this stage, most likely, if you were sincerely interested in
cleaning up Magothy water, the collection system should be located up
toward the central portion of Long Island.
Mr. TRIPP. If I again may just add something. Mr. Black has talked
about watershed management.
Most of the surface water supply systems in New England and many
other parts of the country -- I know this is true of Arkansas and a lot
of the west coast -- have significant watershed protection programs.
/(()) These water utilities are on tens of thousands of acres of land.
This was done in the latter part of the last century. This would
protect the watershed so the water that fell there would not become
polluted.
Mr. WRIGHT. I do not really quite understand what you are saying.
You're saying to buy up sections of land and just keep it pristine
and do not let anybody move there?
Mr. TRIPP. That is done in many parts of the country. It has been
done since the 19th century as being an effective way of preventing
pollution.
That does not mean you buy all the land. What you do is designate
your most significant parts of your basin area, your drainage area, or
your recharge area, and you protect that land.
You asked Mr. Black what is a cost effective approach. If you could
identify the recharge areas for the Magothy aquifer or parts of the
glacial aquifer, which are most important, it might be a far cheaper way
of protecting the water supply and it would not affect population
densities elsewhere on the island.
Mr. WRIGHT. Then what would we do with the sewage from the people
that live in other parts of the area?
Mr. TRIPP. You would not have to worry so much about their sewage,
however it was disposed of, polluting your water supply.
Mr. WRIGHT. All right.
So you think that might be then an idea?
Mr. TRIPP. That might.
Mr. BLACK. That might have been an idea.
I think, frankly, to speak of that now, especially in the area of the
Southwest Sewer District and the more densely --
Mr. WRIGHT. People already live in those areas?
Mr. BLACK. Right. Right.
There are still some large tracts, but for the most part it would
probably prove a very workable solution now for Eastern Brookhaven on
out east.
I think we ought to think what we are doing in the Southwest Sewer
District. I think We ought to think about dropping water table levels
so that our streams and our fresh water environments effectively are not
going to be destroyed by the system.
I was a little disappointed to hear you mention in the course of this
hearing that we really could not count on any further Federal funding.
Mr. WRIGHT. I did not say that. I said I would not encourage you to
anticipate a higher percentage of Federal funding.
We would like to see it happen, but I do not want to be guilty of
giving you false encouragement.
Mr. BLACK. Right.
But to go on to my point, I think we are confronted now with a system
that is under construction. I think the first thing we ought to think
about now today is how we are going to preserve our freshwater
environment. That should be one of the first things.
Mr. Flynn has mentioned many times the stream augmentation program
for the Carll's River. He has also mentioned there is no Federal
funding available for this. I do feel that stream augmentation is not
an alternative, but something that should seriously be considered by
this committee. /(())
Mr. WRIGHT. Stream augmentation.
You would allow the treated effluent to go into this stream to
augment flows downstream?
Mr. BLACK. Right.
As you drop water table levels, your stream flow, your adjacent
freshwater wetlands, et cetera, are going to suffer. There has to be a
way to maintain the stream flow, maintain the water levels upstream, so
that you can maintain the freshwater wetlands.
I would strongly recommend that we do consider seriously some
mechanism of stream augmentation; but I do want to stress that the only
stream augmentation that Suffolk County D.C.E. is talking about is for
the Carll's River and primarily, in my opinion, for cosmetic purposes.
It is the largest river. It flows through Belmont Lake State Park.
It exits in the town of Babylon where all the brides get their pictures
taken on their wedding day, that type of thing.
I would recommend that the major water systems be considered for
stream augmentation, not just the Carll's River.
Mr. WRIGHT. You say Suffolk County D.E.C. What is this, now?
Mr. BLACK. Department of Environmental Control.
Mr. WRIGHT. If you had your way right now, the three of you, given
what has already happened, recognizing the point at which Suffolk County
and the Southwest Sewer District and citizens of Long Island have
arrived at, what would you do?
Mr. BLACK. Basically, what I would recommend is definitely consider
stream augmentation.
Mr. WRIGHT. Instead of pumping it all out into the ocean, you would
pump some of it into the streams?
Mr. BLACK. As necessary. Right.
I think you will find that during drought years you may have to point
as much as 10 million gallons a day to the various streams in order to
maintain stream flow.
Mr. WRIGHT. You are talking now about the stream?
Mr. BLACK. I am talking about sewage that goes to the plant, is
treated, and probably meets at least class C water standards and then is
taken from the plant upstream, up the various streams, and then released
to augment the stream flow.
Mr. WRIGHT. Upstream by means of what?
Mr. BLACK. Force mains.
You would have to pump it upstream.
Mr. TRIPP. I would like to answer that question, if I could, in a
somewhat different way.
The law, the 1972 amendments, has as an objective the maintenance and
restoration, biological and chemical and physical restoration, of our
waters.
We do not understand the point of vesting large sums of money that is
going to deteriorate streams and deteriorate the quality because of the
salt water intrusion.
Generally, what we would recommend is:
One: Some system of compensation.
You have to have some way of sustaining the cycle so these adverse
effects do not happen. /(())
Two: I would like to point out one of our concerns, at least as far
as we are concerned, is that the environmental impact of this project
has never been properly assessed. Therefore, it is very hard to say
specifically what should be done.
Three: I try to make this point in our statement. Whenever you are
asked for what you can do, we respond with recharge or the stream
augmentation, and we are constantly told these things are not feasible.
There have been no demonstration projects. It has not been shown it can
happen.
One of the principal concerns in the way this law has been
implemented or construed by EPA has been the very low level of funding
and very low budgetary allocations in the EPA budgets for research and
demonstrations. It is less than $1 million a year. There is less than
$1 million going into land application work. There is less than $1
million going to research. There is very little money going into trying
to improve the quality and efficiency of the individual home surface
systems.
In view of this fact, how can we respond to this?
It is 4 years after the act was passed. We are spending billions of
dollars a year in these treatment plants and I have talked repeatedly to
EPA scientists. They know what the problem is. I have talked to
engineers and they say there are no demonstration projects.
Ninety-nine and nine-tenths percent of the sanitary engineers in this
county will not design a project unless it has been proved on a
full-scale level. I think that is one of the great problems.
Mr. AMBRO. Just beyond that, to augment the record, the low level of
funding has been completely used by EPA.
Mr. TRIPP. That may be true.
I am not here to assess who bears the responsibility with it, whether
it is OMB, EPA, and so on. I say it is simply a fact. There is almost
zero EPA money at the present time for research.
Mr. WRIGHT. On another point, Mr. Tripp, you mentioned the amounts
and purposes of the 1972 law with respect to biological purity of the
waters and the streams.
I think you probably are aware that this project originally was
applied for and a grant approved prior to the enactment of the 1972 law.
Mr. TRIPP. I am aware of that fact. I believe the predecessor act
had a similar kind of objective.
Mr. WRIGHT. Well, the fundamental objective was quite the same; to
clean up the streams. The 1965 law, under which the application was
made, had fundamentally similar objectives but it was not nearly as
sophisticated a law.
Mr. TRIPP. That is correct; but I think we have to realize when we
look at a project like the Southwest Sewer District we are dealing with
here in Suffolk County and a ground water system that there are enormous
complex water problems.
Here was a project basically designed to solve a particular problem,
which was nitrate contamination of the ground water.
In my opinion, the only way we can design projects -- I am not
talking about just the southwest sewer district project, but I think it
typifies a problem we have seen elsewhere in the country -- is to do the
research and demonstration work and do the planning work so we can
design a project to cope with the complexities and the problems. /(())
You punch the system here to deal with a problem and it comes out
some place else. We have to know what is going to happen so we can
constructively use this.
Mr. WRIGHT. Thank you.
Mr. BLACK. I would like to make one or two more points, if I may.
Mr. AMBRO. Mr. Black, I think we asked each person who has testified
to consign their verbal or oral comments to 5 minutes. We are running
way behind and I really would like you to condense it.
One of our colleagues is here. The GAO is here. The EPA is here.
DEC is here. Other environmentalists are here.
I would like you to submit anything you like for the record in
writing, but to condense as much as you possibly can your verbal
testimony.
Mr. BLACK. Fine.
My last point here is that we have been told that the Southwest Sewer
District is going to appreciably improve the water quality of the Great
South Bay.
Again, what we are doing here is only handling one segment of the
problem, namely, the cesspool problem. We have a lot of sources going
into the bay that are not being considered in this project.
That is my last point.
We have to look at the total picture, not just the cesspool, septic
tank problem.
Mr. AMBRO. Thank you.
Mr. Moskowitz, and Mr. Tripp, did you want to say a word?
Mr. MOSKOWITZ. Mr. Chairman, Mr. Ambro, thank you. I will be brief.
In the area to be hydrologically affected by the Southwest and Cedar
Creek Sewage Districts, nine major stream systems and an approximate
number of minor stream districts exist. The streams are 90 to 95
percent ground water fed and are thus entirely dependent upon the ground
levels to maintain their viability.
Mr. WRIGHT. Fed by springs?
Mr. MOSKOWITZ. Underground springs; that's right.
Mr. WRIGHT. Not by surface runoff?
Mr. MOSKOWITZ. That is correct; just 5 to 10 percent is surface
runoff.
The U.S. Geological Survey scientists have predicted that the
combined effect and the hydrological effects lower the ground water
tables by approximately 20 inches to 20 feet in large areas of Nassau
County and western Suffolk County. This will result in a diminution of
the viability of these streams to support the sport fisheries as well as
the wetlands within and contiguous. Reduced stream flows will also
affect the salinity region of the Great South Bay, which is supporting a
valuable shellfish industry in excess of $100 million which produced
approximately 50 percent of hardshell clams produced in this country
annually.
All of the data available that we have looked at indicates to us that
the drawdown in the water table has both significant impacts on the
freshwater streams in their communities as well as the communities
existing within the Great South Bay.
We have more detailed information which is contained within our
prepared statement, and I think that I have nothing else to say at this
time. /(())
Mr. AMBRO. Thank you, Mr. Moskowitz. Mr. Tripp?
Mr. TRIPP. As I said a few minutes ago, one of our concerns is we
think because of saltwater intrusion in the Great South Bay, there may
be a significant impact on the shellfish. This problem has never been
assessed and we think that is regrettable, to say the least.
We would also encourage the committee to acquaint itself with the
views and comments and opinions of the U.S. Fish and Wildlife Service
and National Marine and Fisheries Service on this particular problem.
I have already spoken about the shortage of research and
demonstration funds.
I would like to get back finally to one other point that we were
discussing earlier and that is watershed management.
If I can just sort of make a general point of evaluating the act, I
think part of the problem that we find ourselves in here in Suffolk
County, and I think this is true elsewhere, is you can get Federal and
State moneys to do certain things, but not other things.
For instance, it is very difficult to get moneys to acquire large
chunks of land for recharge purposes in a timely enough fashion before
development occurs.
For instance, if Suffolk County now wanted to acquire recharged lands
for some kind of future land application system before development takes
place, they would have to do it now before they do a detailed facilities
plan. As far as I know, there is also no land available for protection
of the water supply. I think more flexibility in that regard would be
of benefit.
Thank you.
Mr. AMBRO. Well, we thank the three of you. We appreciate you
coming and your testimony.
If you would like to have, through a written statement, anything to
augment what you said, we would be happy to have it.
Mr. TRIPP. We appreciate this opportunity to appear.
Mr. AMBRO. I would like to depart a bit from the schedule. I did
say that we had another panel. I would like to move, however, to call
on one of our colleagues, Representative Tom Downey, who represents most
of the Southwest Sewer District, who through his efforts has elevated
the consciousness of the entire Congress to the problem.
This subcommitttee is deeply indebted to Tom Downey for his
cooperation, his input, his concern, and all of the work he has done
with respect to this.
We are delighted, Tom, that you can take the time to come before us
and make a statement.
Mr. WRIGHT. Mr. Chairman, at this point, may I simply add emphasis
to what you have just said. Mr. Downey has been extremely diligent in
bringing to the attention of this subcommittee the problems with respect
to this immediate area and this immediate project.
While his contributions to the Congress most certainly are not
limited in any sense to this particular concern, he certainly is not in
any degree lacking in the diligence he has pursued in this concern.
I look forward to your testimony. /
HRG
760924
THOMAS J. DOWNEY
US REPRESENTATIVE, NEW YORK
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
TESTIMONY OF HON. THOMAS J. DOWNEY, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF NEW YORK, (PP 70 TO 75)
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TESTIMONY OF HON. THOMAS J. DOWNEY, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF NEW YORK
Mr. DOWNEY. Mr. Chairman, I would like to thank the subcommittee for
this opportunity to appear before you here today. I would also like to
compliment the subcommittee for its efforts and fine work in pursuing
this inquiry. And, finally, I would like to congratulate my good friend
and colleague, Congressman Jerome Ambro, of the Third Congressional
District. This hearing today is a testament to his efforts, and we
thank him for his interest and his dedication to this issue. I would
like also to thank my good friend and colleague, Jim Wright, who I
believe is without parallel as a speaker in the House of Representatives
and one of its finest Members.
Mr. Chairman, my remarks will be relatively brief. I have but a
single, but I believe crucial point to stress: Government must begin to
talk sense to the people about the Southwest Sewer District. Government
must determine the facts and tell people the truth about the project.
And Government must present the people with the facts concerning this
project on a regular, sustained basis.
In November 1969, the residents of the Southwest Sewer District
approved a referendum proposing the sewer project. They approved the
project based on the following cost estimates: (a) the cost of
constructing the project would be about $269 million, and (b) the
interest charges attendent to the financing of the project would raise
the cost by another $252 million.
I might add at this point, Mr. Chairman, that the $252 million was
the latest publicized and, in fact, many people made their decision on
the basis of whether or not they were in favor or opposed to the sewer
district, based on the $269 million figure alone.
Today, Mr. Chairman, current estimates place the cost of the project
at $1.5 billion -- almost $600 million for construction and more than
$900 million in interest charges.
In other words, the cost figures presented to the taxpayers in
connection with the 1969 referendum underestimated the total cost of the
project by nearly $1 billion. The original cost estimates turned out to
amount to only one-third of the ultimate cost of the project.
Earlier this year, I directed the U.S. General Accounting Office to
conduct an investigation of the project, in an effort to determine the
source of these outrageous cost increases. In my letter to the
Comptroller General of the United States, I remphasized the need for an
investigative body like GAO to examine the project. The GAO has
prepared a preliminary report on its findings, and will appear before
you shortly to testify.
During the course of its investigation, GAO held briefings for myself
and my staff on some of their conclusions. One of the things that
became apparent to us during these briefings was the lack of candor at
the outset concerning the projected cost of this project.
The initial cost estimates presented to the taxpayers in connection
with the 1969 referendum were stated in 1969 dollars. That is, the
figures included no allowance whatsoever for inflation. Project
planners at the time estimated that the sewer project would take at
least 5 years to construct. And even in good times, inflation may run
about 5 percent per year. Yet no allowance for inflation was included
in the original cost estimates for the project. /(())
How responsible public officials felt that they could honestly
estimate the cost of this massive project without allowing for inflation
is beyond my comprehension.
If we ever wonder why the people of Suffolk County have so little
confidence and trust in their government, we need go no further than
examine the unfortunate history of the southwest sewer district.
Construction costs, originally estimated at $269 million, now stand
at $612 million. Most of this increase is attributable to the
unaccounted-for inflation which we have experienced since 1969,
compounded by the fact that the project will take about 10 years to
construct, rather than the 6 years initially estimated.
But there are other sources of inflation in construction costs: the
extension of the length of the outfall pipe by 66 percent, the length of
time it took EPA and the State to approve portions of the project, and
the method of paying for consulting engineering services. All of these
points will be discussed in greater detail by GAO, in testimony which I
know the subcommittee will find revealing.
Let me turn for a moment to the extent to which financing costs have
been underestimated. In 1969, financing costs were estimated at $252
million. Since 1969, those costs have tripled. Today they stand at
more than $900 million.
One of the reasons that financing costs were so badly understated is
that, in 1969, it was assumed that the then maximum interest rate of 5
percent would be the maximum interest rate throughout the life of the
project. Just as the original cost estimates assumed no inflation in
the cost of construction, so they also assumed no inflation in the cost
of money.
We all know what happened. We know in retrospect that the estimate
failed to prepare the taxpayers for what was really to come.
In October 1971, the county sold $19 million in long-term bonds at an
interest rate of 5.25 percent.
The county then shifted to short-term financing until December of
this last year. In 1972, the county sold $18 million of 1-year bond
anticipation notes, at rates ranging from 3 to 3.3 percent. These notes
were renewed in 1973, 1974, and 1975 at interest rates ranging from 4.2
to 6.8 percent.
In April 1976, $54 million in bond anticipation notes were sold at
6.75 percent. In July 1976, $60 million in notes were sold by the
county at 9.35 percent.
The country began to issue long-term obligations once again in
November of last year. After initially receiving no bids, the issue was
sold at an interest rate of about 9.8 percent. In August 1976, the
county sold an additional $150 million in long-term bonds at 8.9
percent. It has been assumed that future long-term issues will be sold
at about 9 percent.
GAO has made some observations about the basis for the county's
decisions in this regard and I will leave detailed analysis to them. I
will only point out once again the unrealistic cost estimates which were
provided to the taxpayers in 1969.
Mr. Chairman, I will repeat now what I said at the beginning of my
testimony: Government has got to begin to talk sense to the people of
Suffolk about the Southwest Sewer District.
Cost escalations have become the trademark of this project. People
have been told so many things by so many Government officials /(()) that
they just do not know what to believe any more. And at this point, Mr.
Chairman, the hardship which has been caused to the people of this
district by the outrageous growth of the cost of the project is exceeded
only by the suffering which stems from the uncertainty about what is
ahead.
People have got to know the truth about the future of the project.
They need to have the facts.
Let me divert from my testimony, at this point, for a minute,
gentlemen.
For the last several months, I have gone door to door and made phone
calls into the district. About half of my district is included in the
Southwest Sewer District. I have found, going door to door, making
phone calls, a disturbing incidence of people who are literally moving
from the district on the basis of erroneous information concerning the
cost of the project. It is something that is deeply alarming.
People who are living on fixed incomes, for instance, who have seen
press reports of cost growth, cannot translate them literally into what
they are paying, and rumor is rampant that the cost of the project, for
instance, for someone who has a home of full value of $30,000 will pay
$400 and $500.
I have seen this firsthand.
People will not buy or build in this sewer district until Government
assembles once and for all its best estimates for the future of the
project, and declares that it is willing to stick by them.
People will not have faith in Government again until Government lays
out a plan of action for completion of the project and pledges to stick
by it.
I would propose that the county of Suffolk henceforth, at county
expense, mail to each taxpayer in the southwest sewer district, on a
bimonthly basis, a detailed statement concerning the cost and status of
the project. People need to know the facts.
Congressman Ambro and I have discussed just yesterday a possibility
of taking a package to the county executive to facilitate the mailing
and disseminating of that information since we both have contiguous
districts that lie within the district.
Let me close, Mr. Chairman, with some final points.
First, I am now preparing legislation which will establish limits
upon the amount of time in which the State and EPA must decide whether
or not to grant the required approvals for this project. The GAO has
pointed out -- and I am sure that they will elaborate on this point here
today -- that Government delay contributed to the spiraling costs of the
project. This is inexcusable. If more EPA staff are needed to shorten
the deadlines, so be it. I am sure that the savings in decreased
construction and financial costs will exceed many times the small
outlays which may be required to improve EPA staffing.
We also need more Government inspections of construction and audits
of financing. I propose to this committee that EPA staffing be expanded
in these areas, and especially in the area of financing. We must have a
governmental body upon which we can rely for straight facts come in and
audit the project on a regular basis. This will also be a part of my
proposed legislation.
These steps will save the Federal Government, as well as the people
of the Southwest Sewer District, great amounts of money. They are well
worth the needed investment. /(())
Finally, we reach the most important point: Federal funding. We
need more help from the Federal Government for the sewer district's
costs. Those of us who have been continually fighting for increased
Federal support ask this committee to aid us in our efforts.
The Federal commitment under Public Law 84-660 at the present time
totals $119.7 million, or 38.9 percent of the eligible costs. The
State's share amounts to $92.3 million, or 30 percent of the total
eligible costs. As of August 31, 1976, about $15 million had been
released under this grant.
The county has also submitted a grant application under the
provisions of Public Law 92-500 for lateral sewers and certain
interceptors which were ineligible under the old law. The application
covers $145.9 million in eligible project costs, of which the Federal
share is $109.4 million.
We have tried literally everything. I have even introduced
legislation to make sewer assessments tax deductible for purposes of our
Federal income tax. But the bottom line is that we need whatever help
and support this subcommittee can provide us.
Thank you again, Mr. Chairman, for coming from the great State of
Texas and you, Mr. Chairman, from the Third District. I stand ready to
answer any questions that you may have.
Mr. AMBRO. I would like to thank you, Mr. Downey, for your
testimony.
A good deal of the GAO testimony will develop some of those figures
which you have provided for us.
I want to thank you for your genuine concern.
The proposal that you alluded to is your proposal developed from that
genuine concern about the reality of what is happening in the absence of
accurate information. It is an excellent proposal. It is, of course,
one that the county will have to adopt if they feel it has merit, as I
certainly do.
There are a number of county legislators here. So, you see how hard
that proposal flies.
I think it is certainly an excellent suggestion.
Mr. DOWNEY. It is my hope, Mr. Chairman, I might be able to sell my
former colleagues on the proposal.
Mr. WRIGHT. Mr. Chairman, I want to join you in congratulating my
colleague, Mr. Downey, for his deep and vital interest in this concern
and for his leadership in seeking solutions.
The only caveat that I would have, otherwise it is an excellent
presentation, is when you speak of the feeling on the part of the
people, and surely it is understandable, that the folks in the local
government have not told them the truth from the beginning about the
project. Lest we be too hard on those of the county government, at the
time this project had its inception in 1969, I do not suppose you or I
or anyone else in this room would have anticipated that the inflation
rate, which then was running at about 5 1/2 or 6 percent annually, would
have skyrocketed last year to 12 percent, annually, at one point. It
would be pretty clairvoyant to know those things.
Nor, in my wildest nightmares, would I have assumed that Government
bonds, starting at 5.25 percent since 1961, would skyrocket to 9
percent.
If someone had asked me in 1969 if that was going to happen, I would
have said, "For heaven's sake, the Government would never let that
happen." /(())
Mr. DOWNEY. Jim, I think you make a good point.
I am not at this point suggesting that these people were not
responsible.
I lived in this district and at that time in 1969, I was commuting
between New York and my home. I was privy to a certain amount of the
education, if you will, that the county government gave the people of
the southwest sewer district concerning this project. I can tell you
quite simply that at that time they thought the project would cost them
$291 million and the interest rates, for instance, were not detailed.
This was really, I think, a somewhat less than a candid way of
explaining how this project was going to be financed and there was no
mention of the fact that this project was estimated in 1969 dollars and
that inflation was not included in this estimate.
One of the things that disturbs me most, is that the county
government never really came forward and explained to the 250,000 people
of the Southwest Sewer District this is what it is costing us.
We had public meetings. The amount of accurate information
disseminated to the public, I think, was really appallingly small. I
think that needs to be changed.
Having been a member of the Suffolk County legislature and having
supported this project, as I still do, I understand some of the
frustrations the people have.
Mr. WRIGHT. Tom, you certainly did make an excellent point there and
it has a broad application. I do not want the public to become alarmed
when it hears rumors.
The only antidote to that is the availability, the constant
availability of the truth and factual and reliable information.
When I was a very young man, perhaps a tiny bit younger than you now,
a very wise old lawyer the city attorney in the town where I was mayor,
said to me: Jimmy, there are two mistakes you can make in public life.
You ought to avoid both of them. One of them is to overestimate the
public's information. In other words, to assume that they know all of
these things that are available to them. The other is to underestimate
the public's intelligence."
I think no wiser or safer advice have I received.
But, this is true of government at all levels and you make an
extremely valid point.
The public can bear the truth if it has the feeling that they are
being told the truth and if that information is available to them on a
regular basis, as you suggest.
I think you make a significant contribution in that sense.
Mr. DOWNEY. Thank you.
Thank you, Mr. Chairman.
Mr. AMBRO. Thank you. I would like to once more depart from our
schedule because we have a spokesman for the Civic Association who has a
time problem.
I would like to call up Mr. Thomas Fessenden, accompanied by James
Lyman, Mrs. Olson and Mr. Charles Pulaski.
Mr. Moore. Can I speak?
Can I say something as a citizen?
Mr. AMBRO. Not now. We have a very tight agenda. Maybe later on.
We will set aside some time. /(())
Mr. MOORE. But, it concerns the environment. I have a written
statement.
Mr. AMBRO. I understand that. If you would like to provide us with
a statement, we will include it in the record. Right now, no, you
cannot speak.
Mr. MOORE. You said if I would provide you with a statement you
would put it in the record?
Mr. AMBRO. Absolutely.
Mr. MOORE. All right.
You heard that.
Thank you.
Mr. WRIGHT. I will guarantee I will read it.
Mr. MOORE. I hope you believe it.
Mr. AMBRO. All right. Mr. Fessenden, you may proceed.
HRG
760924
THOMAS FESSENDEN JAMES LYNAM E. W. OLSON CHARLES PULASKI TAXPAYERS
LEAGUE AGAINST THE SOUTHWEST SEWER DISTRICT
PRESIDENT, WEST ISLIP JOINT CIVIC COUNCIL
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
PANEL REPRESENTING WEST IS LIP JOINT CIVIC COUNCIL, AND OTHERS (PP 75 TO
87)
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04495
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PANEL REPRESENTING WEST ISLIP JOINT CIVIC COUNCIL; TAXPAYERS LEAGUE
AGAINST THE SOUTHWEST SEWER DISTRICT; AND OTHER GEOGRAPHICAL GROUPS,
CONSISTING OF THOMAS FESSENDEN; JAMES LYNAM; MRS. E. W. OLSON; AND
CHARLES PULASKI
Mr. FESSENDEN. Congressmen, members of the staff: My name is Thomas
Fessenden. I represent the West Islip Joint Civic Council, which is an
amalgamation of active civic organizations in West Islip.
We joined together for civil purposes. One is to undertake joint
action in representations of the town and other governmental units of
problems affecting the areas as a whole. I serve as president.
In addition to this organization, I speak for two other organizations
that have been formed over the last several years to oppose the
Southwest Sewer District as it was and is now conceived. The
organizations include the Committee for Water Preservation, Inc., and
the Taxpayers League Against the Southwest Sewer District.
These organizations, in turn, have included civic organizations in
addition to West Islip. There is a labor union, the Conservation
Committee of Suffolk County, American Legion, conservation groups,
Citizens for a Clean Environment, and the Long Island Association.
This morning you have heard many speakers speak of the shortcomings
of the sewer district. I am not going to concentrate on that. We have
been well aware of the shortcomings for many years. I would like to
give a different story this morning. That is, what the citizens have
tried to do about it.
I think all too often people in Government do not understand or we
are drowned out by the fact that there have been active organizations
trying to correct the situation.
Opposition to the southwest sewer district as it was and is presently
conceived, is not new. It dates back to prereferendum days when there
was a hue and cry from people in Government and outside of Government
that the tactics employed by the sewer agency were disgraceful and
reprehensible. These events are covered in exhibits 1 and 2 of the
letter sent to the New York State Attorney General Louis Lefkowitz,
dated May 28, 1973, and made available to your staff member, Robert
Prolman. /(())
Exhibit 3 of the same letter further indicates that the State
Department of Audit and Control said in 1973 that the sewer ads
propgandize rather than inform voters, and was, therefore, not legal
under State law as an expenditure of taxpayers' money. On the basis of
the propaganda, the referendum was held and did pass by a narrow margin.
I will not go into detail as to why we are against it. We would be
glad to answer any questions in that regard.
However, it is my opinion that my testimony today can and should give
you an idea what the citizens have been attempting to do.
In July 1972, the Committee for Water Preservation, after several
months of evaluating courses of action available to them, decided upon a
public confrontation with the county legislature.
Prior to that time, we assessed there were three basic approaches
available to us. These were:
First. Educate the taxpayer public as to the facts of what was going
on and to enlist the support of the taxpayers en masse;
Second. With appropriate timing, determine the position of
candidates running for the county and town governments and actively
support those candidates responsive to our position; and
Third. Take legal actions through the court systems against the
county legislature and the Department of Environmental Control.
By July 1972, item 1 of the above had been accomplished by developing
presentations and attending as many civic and group meetings as
possible.
The reaction of the heretofore apathetic and uninformed public was
excellent and it was believed that the ability to bring out an
enthusiastic and large crowd was at hand.
Exhibit 10, the previously referenced letter gives a news data report
of that meeting and I would like to quote just a couple of significant
quotes from that article.
At the meeting sponsored by the Committee for Water Preservation,
they claimed that they had been deceived. If the costs continue to
increase at the present rate, they said they would be paying $1 billion
by the time the project is completed in 1978. Environmental
commissioner John Flynn assured them that the project would not exceed
$500 million. They still did not want it. So, they called for:
First. A moratorium;
Second. Public hearings by the county legislature on why residents
were not told what the inflated cost of the system would be;
Third. Another referendum to see if the people who wanted the sewer
in 1969 still wanted it; and
Fourth. A study of the feasibility of individual secondary sewer
treatment units as alternative to sewers with cost estimates in a county
controlled plan.
So, you observe, gentlemen, that we did not wait for the sewer
project to spend $200 million before calling for a halt, but rather at a
point when approximately $50 million had been committed.
What really took place that night was that a group of citizens
presented what they could and any and all questions and suggestions were
grounded and submerged by the Department of Environmental Control with
staff and the county legislature.
Another meeting was suggested that night by the legislature where
only several members of the citizen groups would be in attendance as
spokesmen for the people. This meeting did take place and, again, /(())
whatever was brought up was cast aside by the environmental control
experts.
One thing that was becoming apparent was that the county legislature
was saying that the people had mandated that the sewer be built and
until the $291 million had been spent nothing could be done. This was
repeated to us over and over again.
The Federal Government started playing a role, knowingly or
unknowingly, at about the same time. Whenever costs were questioned,
the subject of Federal and State aid would be brought in to cloud the
issue. Pictures would appear in the press showing members of the
legislature about to take off for Washington to seek Federal aid for the
Southwest Sewer District.
Since the legislature had more information than we did, how could we
question that they were not going to get more aid to keep the Southwest
Sewer District flowing?
This quieted the public because Uncle Sam could always pay the bill,
or so the people thought.
All through the period of escalating costs the Government has done
very little to actively inform the public as to the cost impact of the
project to the individual. The paying public has a right to know.
As recently as this past spring, the town supervisor felt the need to
set up an advisory committee to investigate costs for the residents of
Islip. I served on that committee and can say firsthand it is difficult
to obtain access to enough data to do the job as it should be done
through the outside.
We are not just talking about the future sewer tax for the
individual, but also the tax increase to the school districts, municipal
buildings, fire departments, churches, et cetera, also being taxed by
the sewer district. Also, there are the hookup charges, and use
charges, that need to be defined.
Just to add one other aspect that Congressman Downey touched upon,
the fact is today the sewer tax is not tax deductible in the eyes of the
IRS. Very few of the public realize this.
Rather than confuse the issue with State and Federal aid, I would
suggest that the county prepare and distribute to every tax-paying
citizen in this district a simple-to-understand explanation of aid
already in hand and then the costs in graduated steps of expected aid.
Let us keep these two things separated: Expected aid versus aid in
hand.
It would be necessary to accommodate varying equalization rates. The
index of the table should be assessed value for that is what everyone
has on his and her tax bill and not true valuation.
If this is done, and I believe it is something the county owes the
public, then I will expect that there will be a substantial change in
the attitude of many legislators or there will be different legislators
after the next election in 1977.
Our next step was to launch a petition drive with the support of the
tax-paying public.
Mr. AMBRO. Mr. Fessenden.
Mr. FESSENDEN. Yes, sir.
Mr. AMBRO. If you could summarize the key points of your statement,
I would appreciate it immensely.
Mr. FESSENDEN. I will attempt to do my best. /(())
I thought, Mr. Chairman, just some of these events of what has been
going on would be valuable to you. I will try to compress them.
Mr. AMBRO. Just as an example, we do have that clip that you read
from. The headline was, incidently, "Who's for a Once Popular Sewer
Project or Plan?"
I do not know if it was ever once popular, but we have all read that.
Mr. FESSENDEN. Fine. Exhibit 11 of the previously referenced letter
records 3,289 signatures that were obtained and delivered without any
further action on the part of the legislature. Although probings and
strategy meetings continued, it appeared that we were beating our heads
against a stone wall.
In the summer of 1973, we elected the second approach, that of
determining the position of candidates running for the county
legislature, as well as town positions, and to actively support these
candidates responsive to our position. This was done under the banner
of the Taxpayers' League Against the Southwest Sewer District.
Three rallies were held prior to the elections and in attendance were
both candidates and the public was most gratified. Unfortunately, few
candidates took strong anti-sewer positions and the resulting
legislature, either through lack of understanding or through
indifference, did not change the situation at all.
The third approach, that of the legal approach, was investigated and
due to the large cash involved it was discarded.
A public hearing took place on August 21, 1975. This was a public
meeting called by the county legislature as required by law before the
$291 million authorized by the referendum could be exceeded.
There were two types of citizens appearing at that hearing, those who
were interested in the sewer jobs and those who were concerned
taxpayers, environmentalists, et cetera, who are looking toward the
long-term future of their communities. Each had the same right to be
there, but each were not evidently given the same consideration for the
county legislature voted unanimously to increase the amount to $640
million, a 100-percent increase.
Two points were brought out at this meeting that were most disturbing
to the residents. They were as follows:
Since the minority of the legislators are representing constituents
within the district who are paying the sewer taxes, why cannot our
legislators vote on such an increase?
Second, is it fair that the county can get initial authorization by
referendum and then without coming back to the people they can spend two
to three times that amount?
Needless to say, the citizens opposing the sewers for reasons stated
earlier were dealt a devastating blow by the unanimous vote, having been
led to believe we had a voice. We felt we had been victimized.
Now, although the citizens are angry, they started giving up in
despair. One bright light rekindled the flame and started rocking the
boat. From our point of view, it was long overdue, but certainly
refreshing.
Legislators Lambert and Mrazek have taken the time to study the
matter in depth and with their access to information they have uncovered
further discrepancies and shortcomings. Unfortunately, County Executive
Klein is still able to persuade the majority with his action and this
has to be changed. /(())
The most recent example is the blue ribbon committee report which was
submitted out of hand because Suffolk County was on the verge of
default. Yet, several weeks later, Mr. Klein was asking for $20 million
for a farm program, which he received.
Now, for a short summary.
The southwest sewer district has been a positive project since 1969.
Its true costs to the taxpayers have never accurately been unveiled.
Its needs are questionable. Its functional value is on the negative
side of the liabilities with the loss of the shellfish industry, the
environmental impact to the lakes, streams and ground waters and further
pollution of the sea and beaches, and its financial burden is beyond the
means of the tax-paying resident.
The Federal Government could best serve our interests by withdrawing
any further funding for the project.
This sounds precipitous. But, we suggest that on the grounds that
any project of questionable value should be stopped, no matter what tax
base is paying for it.
Thank you. (Applause.)
Mr. AMBRO. Thank you, Mr. Fessenden.
The proposal that you make, as you have heard, is pretty much the
same as that of Congressman Downey who preceded you. I guess dedicated
minds run the same channels.
I think that, as I said earlier, that proposal is an excellent one.
We will present it as best we can to those legislators who are here and
John Klein later.
You make some recommendations.
You are accompanied by three outstanding people in the community. I
wonder if you speak for them and those are your bottom line
recommendations.
Is that a consensus report?
Mr. FESSENDEN. That is a consensus report.
Mr. AMBRO. I would like to ask each of you, for the record, in your
own voice, to tell me, Mr. Lynam, Mrs. Olson, and Mr. Pulaski, if indeed
you do support the recommendations of Mr. Fessenden.
Mrs. OLSON. Well, first, of course, I do want to thank you
Congressman Ambro, for the opportunity of being here. You did initiate
this congressional hearing.
It is very frustrating to the average homeowner and taxpayer to
attend these meetings year after year and just be stifled and
frustrated.
I do not think anyone mentioned the fact that this outfall pipe is
only going out into the ocean 2 1/2 miles.
I attended the Army Corps of Engineers hearing last month and the
Department of Environmental Control mentioned that the pipe was only 2
1/2 miles out into the ocean.
Now, I come from a community called the Willetts Point area. It
consists of 117 homes, many of which abut the Great South Bay, Willetts
Creek, Sagtikos Canal. Most of our homes do. We have about 30 homes
just off the water.
We have a prevailing southwest wind in our area.
Now, if this outfall pipe going out into the ocean develops breaks,
or due to labor strikes, which can happen very easily, raw sewage will
be dumped out through this outfall pipe into the ocean. /(())
As I said, our prevailing southwest winds will bring this back
through the Fire Island Inlet into the Great South Bay. Our beaches,
our commercial fishing, as well as recreational fishing, recreational
boating, everything, will be affected.
I feel that the biggest mistake that will be made will be just this
outfall pipe. I definitely feel that if sewage treatment is the answer,
that it should be with a recharge system where it can percolate into the
ground and where we will not be throwing 30 million gallons of our fresh
underground water into the ocean, just throwing it away, as far as I am
concerned.
Mr. WRIGHT. Mr. Chairman, at this point, it is obvious that there
are among the citizens and among certain groups a degree of consensus,
and individual members of those groups have separate and individual
thoughts to add. Our time is limited and we are not going to be able to
hear personally from everyone who has something to say.
Particularly in line with the young man who seemed rather incredulous
with the thought that we would accept his statement and present it in
the record and make it available for all of our colleagues to read and
study, let me ask unanimous consent at this point that any citizen,
either present at this hearing today or not, who wants us to read and be
exposed to his or her views, may have that privilege by submitting a
statement in writing. I ask that we keep open the record of today's
proceedings for 2 weeks for the express purpose of permitting any
citizen and any individual who wishes to do so to submit a statement in
writing to us for inclusion in the record of these hearings.
Mr. AMBRO. Without objection, so ordered.
Mr. LYNAM. May I just make a few remarks, and they will not be
things that we have gone over. They will be very brief.
The question of the sewers, Mr. Ambro, you had asked everybody: What
would you do?
I am in the insurance field, not in the sewage business. However,
what I would do with the Southwest Sewer District right now is, I would
plug it up and leave it in the ground because it was a mistake from the
very beginning. It is solving nothing.
To support that, I would like to quote something which took place in
the Public Works Committee, House of Representatives, Washington, D.C.
in July of 1971. Mr. James Grover, who was our Congressman in the
Second Congressional District at the time, brought in Mr. Flynn, who was
the commissioner of sewers of Suffolk County. Mr. Flynn made this
remarkable quotation. Mr. Grover was presenting Mr. Flynn and
questioning him to sort of get information out for the committee.
Mr. Grover said, and this is a direct quote:
Well, Mr. Flynn, you have painted this picture that under the present
law system a program as you have undertaken must be voted in by the
people. You suggest that if the tax burden of the Southwest Sewer
District of the 57 square miles and 250,000 people is so heavy or
burdensome that people in the adjoining parts of the county reject
subsequent bond issues for additional sewer district, that this effort
may well be wasted.
Mr. Flynn answered: "That is correct."
In other words, we have a situation here where he said that if the
Southwest Sewer District is the only one sewering the small 15 percent
of Suffolk County, then it could well be wasted. /(())
It seems foolhardy to be spending millions, hundreds of millions, and
then billions of dollars, if there is any validity to this statement,
and there must be because he is supposedly an expert in Suffolk County.
I think that is a very significant statement.
Just a couple of other things I might mention.
You mentioned, Mr. Wright, about what it is going to cost the
homeowner. Of course, nobody knows what it is going to cost the
homeowner.
I checked Nassau County, I made a personal inquiry. I checked with
contractors. I was told it can cost up to $20 a foot to install a line
for which the taxpayer will have to pay, to connect to the sewers in the
streets. If you were unfortunate enough, and many people do have to go
100 feet to go to that line, it could cost them, conceivably, $2,000
initially, which they would have to finance themselves on top of the
cost of the sewers.
Another thing is just to give you an idea of the cost of this
project, I figured it out and our national debt of the United States,
per capita, is less than the per capita debt of the Southwest Sewer
District. We broke it down to the 240,000 people.
Now, if you told that to people, they would say that is unbelievable,
but it is true. I am not allowing for aid from the Government.
The final statement I would like to make is this: The gentleman from
the Suffolk Water Authority stated, I believe, there were 5,000 breaks
or incidents of damages to county water equipment.
I have watched the sewers go in and I feel very bad. I hope to God
the pipes that are in the ground are all fully connected or not broken.
I think we are going to have tremendous difficulty. The workmanship
is poor. I think it is evidenced by the remark by the Suffolk County
water commissioner.
Thank you very much.
Mr. FESSENDEN. Mr. Chairman, I would like to make one note about
something that has come up before and should be straightened out.
There has been quite a bit of talk about 60 cents per hundred true
value.
Let me assure you, to the best of my knowledge, there has never been
any assurance made to the taxpayers in the Southwest Sewer District that
our tax stops at 60 cents.
I believe there was a resolution put into the county legislature some
time ago and it was not passed, determining as to what point would this
1 percent sales tax take over. That has never been determined.
So, what I am basically saying is we are still overly liable for the
cost of this project and it does not stop at 60 cents per hundred.
Mr. PULASKI: Mr. Chairman, may I say something?
Mr. AMBRO. Mr. Pulaski.
Mr. PULASKI. I am glad I came here today, but I truly believe that
this committee and all the people and all the statements that are made
here today unfortunately, are coming about $250 million too late.
In 1969, I was quoted in the newspaper as saying that before we get
finished it will be a billion dollar boondoggle and I was branded as an
ecological nut and I still say this project is ill-conceived. It is
placed in a part of Long Island where it will do the least good, which
is no good at all, and if it is going to devastate our Great South Bay,
/(()) which we have been told, and if it is going to ruin our $100
million shellfishing industry, then all we can look forward to is some
day to be indicted by a silent stream or bay and sit there on the banks
just watching the filth and garbage sloshing back and forth with the
tide.
I think it is high time we say we made a mistake and let us just
abandon this project once and for all.
Thank you, Mr. Chairman.
(Applause.)
Mr. AMBRO. Thank you, Mr. Pulaski.
I thank the panel very much.
Mr. WRIGHT. I just want to ask one qestion of the members of this
panel.
You have suggested an abandonment of the project, stopping it. What
would you propose to do then with the sewage?
Mr. PULASKI. The same thing we did with the SST, Congressman.
Mr. WRIGHT. You cannot do that.
This is a serious question.
What would you do with the sewage?
Mr. FESSENDEN. We would continue using the septic systems, the
cesspools.
Mr. WRIGHT. You would go back to the septic tanks?
Mr. FESSENDEN. We still have them.
As I noted in one of the exhibits, we had made a suggestion to the
county legislature in 1972 that there were units coming onto the market
that had been used in other areas and these units treat waste material
in a secondary level in your backyard.
If we are goint to start talking about alternatives, I can come up
with some other alternatives.
Do not get the impression that we represent citizen groups that feel
there should be no sewering in Long Island. We will be the first to
agree there are some areas next to the water that something should be
done about. However, we could do it on a much smaller scale and at much
smaller cost to the county of Suffolk and that would be far more
advisable.
Mr. WRIGHT. That was my point, really. It was not a point, but a
question to you.
If one proposes doing away with or abandoning a plan that has been
developed, then one has, I think, responsibility to come forward with an
alternate plan that would achieve the results.
That was the reason for my question.
It mystified me just a little bit. I appreciate your answer.
Mr. LYNAM. I would like to mention I have here a statement from the
State commission on the water supply needs of southeastern New York. I
sent for this. It was written in 1974 after a 4-year study. I am
amazed it has never been used.
It compares nine counties, including Suffolk County, Nassau County,
and Queens County. Suffolk County is by far in a better position than
any county of the nine as regards to water supply.
In here, it says that there is no problem, no critical problem, for
Suffolk County until the year 2020, as far as watcr is concerned. At
that point, and with the increase in population, it is conceivable that
the use of the water will equal, just equal, at that time, the outgo of
the water. /(())
This report is very interesting because it is a bipartisan report.
But, we are going along, for instance, with the report from the
sewers committee that we are going to have an imminent disease if we do
not put a sewer system in.
Incidentally, Mr. Ambro, I have the original sewer program here which
did provide for a recharge program up in your area in 1969. This is the
one that was defeated by 6 to 1. It is sewer project No. 1.
It is 1967. I am sorry.
That showed a recharge system.
I have a map here that was put out by the sewer commission.
So, they were fooling the people too because they never had any
intention of putting in a recharge system.
Thank you.
Mr. AMBRO. I think it is important to note that that report deals
with quantity of available water per capita in each county, but does not
specifically focus in on high density areas where the water coming
directly from beneath those residences that would use it is polluted and
would be polluted and, therefore, something would have to be done.
Beyond that, there is no question Suffolk County right now is in good
shape, which is why everyone in surrounding areas would like the water
pumped into their areas, thereby later on affecting us.
I would like to make another point, and that point has to be made for
the sake of the record.
Even if we immediately abandon the project, those costs incurred by
virtue of the sale of bonds would not disappear. You would be paying
for them.
I just want to make it abundantly clear.
In any event, I would like to thank you very much for appearing and I
would like to once more encourage your written testimony. It will, as a
result of Chairman Wright's resolution, be incorporated in the record,
as will all statements for the next 2 weeks.
Once more, thank you for coming.
Mr. FESSENDEN. I would like to comment on your last comment, Mr.
Ambro.
We obviously represent large citizen groups. We talk to our
citizens.
It is on that very basic issue I would say, by and large, the
majority of us are willing to pay for the mistake that has already been
made. We are not trying to get out of that liability. We recognize it
exists. But, we feel that is a better alternative than to increase that
liability many times over.
Mr. AMBRO. I understand, thank you. The full text of your prepared
statement will be made a part of the record at this point.
(Statement referred to follows:)
STATEMENT OF THOMAS E. FESSENDEN, PRESIDENT, WEST ISLIP JOINT CIVIC
COUNCIL
My name is Thomas E. Fessenden and I reside at 16 Secatogue Lane
East, West Islip, New York. I appear before you today representing the
West Islip Joint Civic Council which is an amalgamation of active civic
organizations in West Islip which are jointed together for several
purposes one of which is to undertake joint action in representations to
the town and other governmental units on problems affecting the area as
a whole. I serve as President of the West Islip Joint Civic Council.
/(())
In addition to this organization, I speak for two other organizations
that have been formed over the last several years to oppose the
Southwest Sewer District as it was and is now conceived. The
organizations include the Committee for Water Preservation, Inc. and the
Taxpayers' League Against the Southwest Sewer District. These
organizations in turn have included civic organizations in addition to
West Islip's, a labor union, the Conservation Committee of the Suffolk
County American Legion, conservation groups, Citizens for a Clean
Environment, and the L. I. Baymens Association.
Opposition to the Southwest Sewer District as it was and is presently
conceived is not new. It dates back to pre-referendum days when there
was a human cry from people in government and outside of government that
the tactics employed by the Sewer Agency and a private pro-sewer group
were "disgraceful and reprehensible." These events are covered in
Exhibits 1 and 2 of a letter sent to New York State Attorney General
Louis J. Lefkowitz, dated May 28, 1973 and made available to your staff
member, Robert Prolman. Exhibit 3 of the same letter further indicates
that the State Department of Audit and Control said in 1973 that the
Sewer ads propagandized rather than informed voters and was therefore
not legal under state law as an expenditure of taxpayers' money. On the
basis of this propaganda, the referendum was held and did pass by a
narrow margin.
Although I can go into details as to why large groups of citizens are
against the Southwest Sewer District as presently conceived, I will only
summarize here with the anticipation that many other more qualified
experts than myself will give testimony on the technical and financial
shortcomings of this project.
1. The lack of recharge in the system is a fundamental deficiency
which tends to defeat the reported need for the sewers, that of
protecting our water supply. The outfall system not only will deplete
30 million gallons per day but it will lower the water table as well as
add pollutants to the sea just 2 1/2 miles off our beaches.
2. With the dropping of the water table, the salinity of the bay
will be increased, thereby endangering a $85 million shellfish industry.
It is a fact that approximately 75% of the hard clams harvested in this
country come from the Great South Bay.
3. In the Southwest Sewer District and to the North the ground water
flows vertically down and at the same time it flows laterally to the
South. Therefore the water which the Southwest Sewer District attempts
to keep pure is exposed to the cesspools and septic tanks to the north
while some of the water under the SWSD is actually flowing out under the
bay and sea.
4. The financial mismanagement of the SWDS is in itself a disgrace
for the county. A voters' approval of $291 million has now been
escalated by the county to $640 million. The total cost (including
interest) was originally estimated at $521 million and now that has been
estimated by the county to exceed 1.4 billion. Where will it stop? No
one can be sure for there has been a long track record of number
changing in this arena with only one reasonably consistent pattern, that
of larger and larger numbers with the passing of time. The potential
financial burden to the taxpayer and the economic impact on home value
is more than can be tolerated at this point.
Enough on why the citizens and taxpayers of the Southwest Sewer
District are up in arms. It is my opinion that my testimony today can
and should give you an idea of what the citizens have attempted to do in
the past and how the county government has ignored all of our efforts to
bring about change or correction until very recently.
In July 1972 the Committee for Water Preservation, after several
months of evaluating courses of action available to them decided upon a
public confrontation with the County Legislature. Prior to that time we
assessed that there were three basic approaches available to us. These
were:
1. Educate the tax paying public as to the facts of what was going
on and to enlist the support of the taxpayers enmass.
2. With appropriate timing, determine the position of candidates
running for the County and Town government and actively support those
candidates responsive to our position.
3. Take legal action through the court systems against the County
Legislature and the Department of Environmental Control.
By July 1972 Item 1 of the above had been accomplished by developing
presentations, and attending as many civic and group meetings as
possible. The reaction of the heretofore apathetic and uninformed
public was excellent and it /(()) was believed that the ability to bring
out an enthusiastic and large crowd was at hand. Exhibit 10 to the
previously referenced letter gives a Newsday report of that meeting and
I quote from the article"They were angry. In 1969 they had voted for a
sewer system that was to cost them $291,000,000. This year, the
estimate is that the project will cost them as much as $800,000,000.
And last night they crowded, standing room only, into the assembly hall
at the county center here to try to kill the whole thing."
And I skip to the fourth paragraph of the same article to quote "At
the meeting sponsored by the Committee for Water Preservation, they
claimed they had been deceived. If the costs continue to increase at
the present rate, they said, they would be paying $1,000,000,000 by the
time the project is completed in 1978. Environment Commissioner John
Flynn assured them the project would not exceed $500,000,000. They
still didn't want it.
So, they called for:
A moratorium on construction of the sewer system.
Public hearings by the County Legislature on why residents were not
told what the inflated cost of the system would be.
Another referendum, to see if the people who wanted the sewers in
1969 still want it.
A study of the feasibility of individual secondary sewer treatment
units as alternatives to sewers, with cost estimates and a county
control plan."
So you observe that we did not wait for the Sewer Project to spend
$200,000,000 before calling for a halt but rather at a point when
approximately $50,000,000 had been committed.
What really took place that night was that the citizens presented
what they could and any and all questions and suggestions were drowned
and submerged by the Department of Environmental Control with staff and
the Legislature. Another meeting was suggested by the Legislature where
only several members of the citizens groups would be in attendance as
spokesman for the people. This meeting did take place and again
whatever was brought up was cast aside by the Environmental Control
experts. One thing that was becoming apparent was that the County
Legislature was saying that the people had mandated that the sewer be
built and that until the $291,000,000 had been spent, nothing could be
done. This has been repeated over and over again.
The Federal Government started playing a role, knowingly or
unknowingly, at about this time. Whenever costs were questioned, the
subject of Federal and State aid would be brought in to cloud the issue.
Pictures would appear in the press showing members of the Legislature
about to take off to Washington to seek Federal aid for the SWSD. Since
the Legislature had more information than we did, how could we question
that they were not to get more aid to keep the SWSD on an even keel?
Unfortunately this action tended to quiet the public for Uncle Same
could always pay the bill so some people thought.
It is on this financial point that I most severely fault the County
Legislature. All through the period of escalating costs, that body of
government has done very little to accurately inform the public as to
the cost impact of the Project to the individual. The paying public has
a right to know but as recently as this Spring Peter Cohalan, Islip Town
Supervisor, felt the need to set up an Advisory Committee to investigate
costs for the residents of Islip. I served on that committee and can
say first hand that it is difficult to gain access to enough data to do
the job as it should be done from the outside. We are not just talking
of the future sewer tax to the individual but also the tax increase due
to school districts, municipal buildings, fire departments, churches,
etc. being taxed. Also there are the hook up charges, use charges etc.
that need to be defined. Just to add one other aspect is the fact that
as of today the sewer tax is not tax deductible in the eyes of IRS.
Rather than confuse the issue with State and Federal aid, I would
suggest that the county prepare and distribute to every taxpaying
citizen in the SWSD a simple to understand cost publication showing the
accurate costs with the aid already in hand and then the costs in
graduated steps of expected aid. It would be necessary to break the
table into towns so as to accommodate varying equalization rates. The
index of the table should be assessed value for that is what everyone
has on his or her tax bill and not in terms of true value which is a
term not common to the average home owner. If this is done and I
believe it is something that the county owes the public, then I will
expect that there will be a substantial change in the attitude of many
Legislators or there will be different Legislators after the next
election in 1977. /(())
Our next step was to launch a petition drive with the support of the
taxpaying public. Exhibit 11 of the previously referenced letter
records that 3289 signatures were obtained and delivered to the County
Clerk by mail dated September 14, 1972. These were hastily obtained to
determine if any action would be taken and again it resulted in no
measurable action whatsoever.
Although probings and strategy meetings continued, it appeared that
we were beating our heads against a stone wall. In the summer of 1973
we elected the second approach, that of determining the position of
candidates running for the County Legislature as well as Town positions
and to actively support those candidates responsive to our position.
This was done under the banner of Taxpayers' League Against The
Southwest Sewer District. Three rallies were held prior to the
elections and attendance by both candidates and the public was most
gratifying. Unfortunately few candidates took strong anti-sewer
positions and the resulting Legislature, either through lack of
understanding or indifference, did not change the situation at all as
will be seen.
The third approach was investigated but not attempted due to large
cash requirements.
It is redundant to review all events prior to a public hearing which
took place on August 21, 1975. This was a public meeting called by the
County Legislature as required by law before the $291,000,000
authorization could be exceeded. There were two types of citizens
appearing at that hearing, those who were interested in their sewer jobs
and those who were concerned taxpayers, environmentalists, etc. who were
looking to the long term future of their communities. Each had the same
right to be there but each were not evidently given the same
consideration for the County Legislature voted unanimously to increase
the amount to $640,000,000 or a 20% increase. Two points brought out at
this hearing which are most disturbing to the residents are as follows:
1. Since a minority of the Legislators are representing constituents
within the districts who are paying the sewer taxes, why can all
legislators vote on such an increase. This is taxation without
representation.
2. Is it fair that the County can get initial authorization via a
referendum and then without coming back to the people, they can spend
three times what the people voted?
Needless to say the citizens opposing the Sewers for the reasons
stated earlier were dealt a devastating blow by the unanimous vote.
Having been lead to believe that we had a voice once the $291,000,000
was exceeded we felt that we had been victimized by the system.
Now, although the citizens were angry, they started giving up in
despair. One bright light that certainly rekindled the flame occurred
during the Spring of 1976 when the press and a very small contingent of
the Legislators started rocking the boat. From our point of view it was
long overdue but it certainly was refreshing.
Legislators Lambert and Mrazek have taken the time to personally
study the matter in depth and with their access to information, they
have uncovered further discrepancies and shortcomings. Unfortunately,
County Executive Klein is still able to sway the majority with his panic
acts and this has got to be changed. The most recent example of this
was the Blue Ribbon Committee's report which was dismissed out of hand
because Suffolk County was on the "verge of default." Yet several weeks
later Mr. Klein was asking for $20,000,000 for a Farm Program in the
Eastern End which he received. There are two inconsistencies here. One
is obvious and the second is Mr. Klein's short range vision vs. long
range vision. He certainly has short range vision on the Sewer Project
while he demonstrates long range vision on his Farm program. A
definition of short vs long range vision may be in order. With the
objective walking a straight line the short range visionary starts
across a wide field freshly covered with snow and he watches the
placement of every footstep with diligence. By the time he crosses the
field, if he is successful in crossing it at all, the path is crooked.
The long range visionary will watch a fence post on the far side of the
field only occasionally glancing to the ground to avoid obstacles. The
result is a straight path. It is my hope that Mr. Flynn does not sewer
the field and leave open man holes prior to Mr. Klein's short range
visionary trip across the field.
Now for a short summary. The SWSD is a closeted project since 1969,
its true cost to the taxpayer has never accurately been unveiled, its
need is questionable, its functional value is on the negative side with
the liabilities of loss of the shellfish industry, the environmental
impact to the lakes, streams and ground water, and /(()) further
pollution of the sea and beaches, and its financial burden is beyond the
means of the taxpaying residents. The Federal Government could best
serve our interests by withdrawing any further funding for the Project.
This sounds precipitous but we suggest it on the grounds that any
project of questionable value should be stopped, no matter what tax base
is paying for it.
Let me quote from a recent speech by Mr. Klein to demonstrate the
panic mode which he seems to pursue. This was from his statement at the
public hearing held by the U.S. Corps of Engineers on August 24, 1976.
I quote his opening paragraphs:
"I appear here tonight in support of the prompt issuance of the
necessary authorizations for construction of the outfall for the
Southwest Sewer District. There are several very basic points which
must be made.
"The Southwest Sewer project is the largest single public works
project in the history of Suffolk County. The investment in the project
of local, state and federal funds now approximate $200 million. The
completion of the project within current cost estimates of $611 million
in a timely manner is absolutely vital to the interest of all three
levels of government who have financially supported the project and the
constitutuencies which they serve if the investment of those enormous
amounts of public funds is to provide the proper return by producing a
working, practical and economically viable sewage collection and
treatment system. A material delay in the completion of the project or
as some have suggested, an indefinite moratorium or abandonment of the
project would produce economic and environmental wreckage in Suffolk
County for years to come."
May I submit that the very approval of such a project will produce
economic and environmental wreckage in Suffolk County for years and
years to come. Let's not let ego and face saving blind us with short
range vision.
And I quote, again from some speech of Mr. Klein's "In my judgment,
this project and the County of Suffolk should be given every possible
element of encouragement and support as it is now designed because it is
the manifestation of a public awareness of a problem and a determination
and commitment to combat that problem within the ability to pay of those
who must pay. How much better is this effort than the situation that
prevails in the City of New York where every day of the year 400 million
gallons of untreated waste is dumped into the bodies of water
surrounding the City of New York, much of which then finds its way to
Long Island to pollute and destroy commercial fisheries and recreational
facilities? The environmental realities demand that we discontinue
dumping 30 million gallons of untreated water per day into our natural
resources.
The economic realities flatly preclude either abandoning the project
and our current investment or proceeding with a vastly more expensive
system. The result is we must continue and we must continue in a timely
manner. I respectfully urge the issuance of the appropriate approvals
by the Corps of Engineers."
And now I comment that short range vision is clouding the situation.
Is this project really within the ability to pay of those who must pay?
Let's let the citizenry decide that after they are told accurately by
the county what they must pay. Let Mr. Klein be aware that ocean and
beaches are just as much a part of our natural resources as our ground
water. Let Mr. Klein be aware that our shellfish industry can be dilled
more quickly by his project than by cesspool pollution. The economic
realities do not flatly preclude abandoning the project for common sense
tells us not to put more money into a bad and deteriorating scheme. We
must not continue in a timely manner per Mr. Klein for his timetable is
panicsville. Let's stand back and evaluate this folly. Let's cease
needless spending when much cheaper and effective alternatives are
available. Mr. Klein should remember that we had the same speech when
only $50 million was at stake back in 1972.
Mr. AMBRO. The last people we will invite up prior to a lunch break
will be the second part of the panel that we had earlier.
I would like to invite Mr. Barry Andres, who is commissioner of the
department of environmental control, town of Islip, and Mr. Robert
Ritzert, director of the department of environmental control, town of
Babylon, to come forward, along with Dr. Wenig, if he is here. If he
would like to sit in and participate, he is welcome.
Gentlemen, we are very happy to have you.
I would appreciate it if you would give your statement in as brief a
fashion as possible.
HRG GRA
760924
BARRY ANDRES KENNETH FEUSTEL STEWART BUCKNER
COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL CONTROL, TOWN OF ISLIP TOWN OF
BABYLON TOWN OF ISLIP
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
PANEL CONSISTING OF BARRY ANDRES, COMMISSIONER, DEPARTMENT OF
ENVIRONMENTAL CONTROL, TOWN OF ISLIP, AND OTHERS (PP 88 TO 93)
--
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94-2
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CW220378 CW220385 /
04496
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PANEL CONSISTING OF BARRY ANDRES, COMMISSIONER, DEPARTMENT OF
ENVIRONMENTAL CONTROL, TOWN OF ISLIP; KENNETH FEUSTEL, TOWN OF BABYLON;
AND STEWART BUCKNER, TOWN OF ISLIP
Mr. ANDRES. Hopefully, my remarks will be considerably brief.
I represent the lowest form of government, as has always been stated,
a township.
I would like to simply state two areas in which we are impacted by
this project.
Ours is an administrative agency. It is not the inspective type
thing, but rather it runs physical facilities, one of which is the
scavenger waste treatment plant. That has been very popular in the
papers lately.
We have a plant that was built in 1968 which was designed to handle
really 40,000 gallons per day. We have triple-shifted that facility.
We can get it up to 120,000 gallons per day and that is about it.
That facility costs us about $422,000 a year to operate, including
the principle and interest payments on the bonded indebtedness.
The point is that we are processing 36 million gallons per year of
material which is pumped out of field cesspools. These facilities are
failing at an increased rate. In the first quarter of 1976, we had
something in the order of half a million gallons more than the first
quarter of 1975.
These cesspools are going to continue to be required to have pumping.
Mr. AMBRO. Mr. Andres, maybe you would talk up a bit. We find it
difficult hearing everything you say.
Mr. ANDRES. I said these pools continue to fail. They will continue
to be pumped.
The only reason that I bring that matter to your attention is we had
anticipated closing this facility pending the operation of the Southwest
Sewer District. That was part of the arrangement. They would take over
at Bergen Point the processing of scavenger wastes.
With the conversations that have gone on before today and with the
other conversations in the news media, moratorium cancellation, and that
sort of thing, whatever is done must be done with what I would call
business-like solidarity in order to give the local township an
opportunity to design and build its own scavenger waste treatment
facility.
If the southwest district does not proceed, the townships will have
to plan on increasing the operation relative to gallonage and upgrading
from the very primitive primary, physical kind of things, that we are
now using up to probably tertiary. These will be expensive. It takes a
long leadtime to plan and also to build.
The other areas in which this program impacts on us is related to
cesspool failure, and population, and that is the Great South Bay.
I do not know whether you can see this too well from this vantage
point, but these are the areas close to shellfishing.
As of April 1, 1975, if you notice, it is progressing from west to
east.
The closing is relative to population. It is relative to a number of
things. Partially failing cesspools. Partially storm water runoff.
Partially a whole mass of various problems. /(())
OVERSIZE FOLDOUT(S) FOUND HERE IN THE PRINTED EDITION OF THIS VOLUME
ARE FOUND FOLLOWING THE LAST PAGE OF TEXT IN THIS MICROFICHE EDITION
SEE FOLDOUT NO 2
/(())
Areas closed to shellfishing on 1 April 1975
GRAPHIC OMITTED
/(())
Mr. AMBRO. At this point, I would like you, if you could, to provide
us with a copy of that so that the record will have it.
(The map referred to faces this page.)
Mr. ANDRES. I can leave this one.
Mr. AMBRO. That is fine. I appreciate it.
Mr. ANDRES. We, in Islip, started a shellfish management program
some 3 years ago. Our budget on it is only $250,000 a year, but it
effectively is about the first pragmatic program that has occurred in
the Great South Bay on an ongoing basis.
I brought Mr. Buckner with me, who is the Waterways Management
Supervisor, in case there are any technical questions relative to it.
I would refer to the commentary that was made earlier relative to the
wiping out of the Great South Bay, and the absolute destruction of the
shellfish industry, et cetera. I do not believe these impacts are as
imminent as were stated, although there is great concern on our part
that there is a virtual ignorance of what is truly going on with that
industry.
The $100 million number that has been bandied about is effectively a
retail value. The personnel involved is some 4,000 that are effectively
full-time.
We have been advised by New York State D.E.C. that another 1,200
acres of the bay is about to be closed shortly to shellfishing. This is
going to preclude these people from earning a livelihood.
There is some kind of direct relationship between population, the
pollution of the streams, each of which is enclosed within the
provincial area of Islip. There are some 23 streams and virtually all
of them produce an effluent which is above the shellfish standards,
thereby impacting on areas.
Mr. AMBRO. The outfall pipe is 5.5 to 6 miles, going beyond the
South Bay through the Barrier Beach into the ocean. Projected outflow
is 30 million gallons a day.
Do you see any impact on the diminution of salinity in the Great
South Bay as a result of that kind of an outflow pipe?
Mr. ANDRES. There have been three or four studies made recently and,
depending on which one you believe, you can make your own conclusion.
The one I read recently by Hydro-Science indicated a maximum
3-percent increase in salinity due to the 30 million gallon depression
of incoming streamflow.
Now, I also might add that 3 percent occurred in a time frame up to
1995. The optimum growth salinity for shellfishing is in the 26 parts
per thousand or 26,000 parts per million range.
Now, the normal fluctuations in the bay at that time expand up to
about 27 and down to around 20.
So, no one can factually state at this moment what will occur with
the increase of 3 percent.
If the projections of the others are correct, in fact, then there
will be a depression of the industry, but no one has defined it.
Mr. AMBRO. Wait a minute now. I do not think I got that.
If there is an increase in salinity in the Great South Bay to the
extent indicated by projections, then are you saying that there will be
appreciable damage to the shellfish industry? /(())
Mr. ANDRES. If the highest up to 30 and 31 parts per thousand are
true, then the normal oceanic predators would come in, those which we do
not normally have in the bay. The optimum growth is 26 parts per
thousand.
So again depending upon which study you read, if the Hydro-Science
study is correct, then there is only a 3-percent increase in salinity
and virtually no effect. If others are correct and it goes into 30 or
31 parts per thousand, then there is a potential problem.
But, unfortunately, again, no real long-term studies have been done
in the Great South Bay. We have only started a couple of years ago and
we have a very minimal budget to do this work.
So it is obvious that more defined information must be derived.
That, effectively, was my commentary.
Mr. AMBRO. Well, you and I have worked together before. I know of
your capability and your background.
You have a responsibility not only in the area of environment, but
you serve in the local administration which has its taxpayers affected
by the costs here.
What is your bottom line view of all of this, not only
environmentally but in terms of impact on all of those people you and
your administration serve?
Mr. ANDRES. I very honestly cannot speak for my supervisor.
My purview on this project is not one of looking at the economics,
but rather of the specific eological impacts with which we are dealing.
Obviously, there are costs, but there are costs going on now as well.
The operation of this scavenger plant, for instance, is costly.
These are failing facilities and the fees for which we are paid does not
reflect the total pumping cost. Our fee is $5 per thousand gallons.
The carter normally gets about $20 per thousand gallons.
Mr. AMBRO. Those are costs related to some of the services that you
provide.
What about the overall environmental impact of the project in your
town? Do you have an assessment with respect to that?
Mr. ANDRES. I do not have an overall assessment.
It is my opinion that that area, which is supposed to be sewered, the
failing cesspools that are in there now or the ones that are, in fact,
leaking at the immediate shore front or immediately in the streambeds,
are those which are impacting on our shellfishing and other industries.
By sewering those areas, it is hoped that the greatest portion of that
pollution would be removed.
For instance, one stream which we surveyed not too long ago, had 80
pipes sticking into it over the length of the stream. We are attempting
to define which of those were legitimate storm drains and which were
overflows from cesspools. So far, we have only run about 10 percent of
them down, but there are other flows.
Getting these kinds of lines off the system, and by system I refer to
the stream system, by getting these kinds of things off, it is going to
help the bay and there is an economy in the bay.
I cannot comment on the overall economy.
Mr. AMBRO. Is there anything your associates would like to say to
augment or supplement what you say?
Mr. FEUSTEL. Mr. Ambro, and Mr. Chairman, my name is Kenneth
Feustel. I am staff environmentalist with the town of Babylon,
department of environmental control. /(())
Mr. Robert W. Ritzert, our director, as well as supervisor Thomas
Doland and members of the town board, were going to try to make an
effort to get here today, but an earlier budgetary hearing has, in all
likelihood, run overtime and they are unable to attend. I am certain
they would like to be here and make their comments.
Mr. AMBRO. As you have been hearing all day long, we will be happy
to accept any written statement they would like to have included in the
record.
So if they would like to provide us with a written statement, we
would be happy to have it.
Mr. FEUSTEL. Thank you very much.
I would just briefly like to say that the Bergen Point and the whole
southwest sewage district project falls within the town of Babylon and
our concern within the department of environmental control has
essentially been concerning environmental safeguards for the outfall
pipe.
As owners of the bay bottom dating to 1600, we have not as yet
granted casements to the Suffolk County Department of Environmental
Control across the bay bottom and across the wetlands, some of which we
own.
If the Army Corps of Engineers and the New York State Department of
Environmental Conservation deemed that the proper environmental
safeguards have been taken, our town board would grant the casements.
At this point, that is where we stand and I do not wish to comment on
what the town board might have to say.
As a former president of the board of trustees, we thought we had
great power until we were confronted with casements mandated by the
State for pipelines running along the LIE.
I hope that precedent does not intrude in the trusteeship in the town
of Babylon.
What about an environmental assessment from the town of Babylon with
respect to the sewer project?
It was my opinion, my view, that one of the reasons why I pushed hard
to have responsible representatives from the municipalities here is to
hear their views with respect to environmental impact over all of this
project.
Do you have any thought?
Mr. FEUSTEL. Yes.
Mr. AMBRO. I do not want you to talk for the supervisor of the town
board, just talk for the department of environmental control.
Mr. FEUSTEL. Yes. I certainly could do that.
One of our foremost interests, as Commissioner Andres has made known.
Islip, is our shellfish industry. We carry out, from year to year,
shellfish transplant programs which provide the bay with shellfish that
would otherwise be unavailable due to their positioning in uncertified
waters.
One of the prime areas that we utilize in our shellfish transplant
area is off the mouth of the Carlls River.
So, we certainly feel that any decrease in the flow of the Carlls
River might have an impact on those shellfish beds, which is certainly
an area of interest to us. /(())
We sell about 1,200 shellfish permits per year at $75 a head. The
majority of this money goes back into our shellfish programs.
Also, we have been conducting negotiations with the Suffolk County
Department of Environmental Control concerning movement of the shellfish
within the path of the pipe.
I do not feel that 100 percent of the shellfish will be removed from
the path of the pipe simply because it is impossible. I think people
that have dealt with shellfish transplants will certainly bear me out on
this.
I would be happy with 30 or 40 percent of the shellfish removed from
the path of the outfall pipe.
We are concerned with marsh restoration of Cedar Island where the
pipe is passing through.
In addition, we have been in contact with the Suffolk County
Department of Environmental Control concerning monitoring of the outfall
pipe. The very unfortunate incident that occurred at the Cedar Creek
facility in Montauk -- we certainly do not want that repeated in
Babylon.
In that regard, we want to be very sure, as do our shellfish
fishermen in the town, that Suffolk County gives us adequate safeguards
to insure that no leaks or cracks escape into the Great South Bay and
close down what little remaining area we have in the town of Babylon for
shellfishing.
Mr. AMBRO. Thank you very much.
Mr. Chairman, do you have any questions?
Mr. WRIGHT. Well, I think I understand the situation here.
This red dot on the map is in Babylon, the treatment plant?
That is in your town?
Mr. FEUSTEL. That is correct.
Mr. WRIGHT. The proposal, if I understand it, is to extend from
there out past the Great South Bay, past Fire Island, out into the
ocean, possibly 6 miles from its inception, an outfall line.
As Mrs. Olson, or whoever spoke about it said, it is 2 1/2 miles out.
Actually, it is longer than that. It is about 6 miles. Am I right?
Mr. FEUSTEL. 2.5 miles from the Barrier Beach.
Mr. WRIGHT. So, it would be passing the Great South Bay.
All right.
But, your concern is that if there are breaks in the pipe or in the
line that would destroy your shellfish.
Mr. FEUSTEL. By that same token, I was at a hearing of the State
environmental conservation department for the shortening of the outfall
pipe. the EPA felt that data was available that indicated a 2.5-mile
outfall pipe would not have an appreciable effect on colliform levels at
the beach. Now, we had received assurances from Suffolk County
Department of Environmental Control that a breakdown in the plant that
might cause partially treated or untreated sewage to be 2.5 miles out
into the ocean would not occur. In fact, it was told that barring a
catastrophic event, that would not occur.
So, with those assurances, we stand as we do now.
Mr. AMBRO. I think, if I may, Mr. Chairman, I will reinforce the
point made earlier by Mr. Andres which was that as the result of this
outfall you diminish the water from the Great South Bay and intensify
the salinity there to the point where it may go beyond the optimum
shellfish cultivation -- what is the word? -- the ability for shellfish
-- /(())
Mr. WRIGHT. Propagation.
Mr. AMBRO. Coming from Washington, I do not know those words --
thereby adversely affecting what is now or could be a thriving shellfish
industry.
There is not only the concern with respect to being directly in the
path of the outfall pipe, but it is later --
MR. WRIGHT. A diminution of the fresh water outfall into the bay
that normally you may experience?
Mr. AMBRO. Is that accurate?
Mr. ANDRES. Yes. That is accurate.
The one point that had been made earlier with the stream
augmentation, to the degree necessary, this change in salinity could be
precluded. It would naturally have to be in more than one place, as I
think was also brought out earlier.
Really, what I would like to do is request of you gentlemen to
consider the possibility of a little more definitive study work in the
Great South Bay, specific to the shellfish industry.
Mr. WRIGHT. Mr. Chairman, we have in the Water Resources Development
Act, the so-called River and Harbors Act, a provision which permits
recognition for augmentation under benefit-cost ratios of low flow
downstream, if we are talking in terms of a flood control navigation
project or something of that kind. Never before has it been suggested
that that might also be a valuable consideration in connection with
development of sewage disposal systems.
In most parts of the country, it would not. But, I see here a
situation where it might well be.
In other words, if we were talking in terms of an entirely different
type of water resources project, flood control project, and impoundment
of dams, something like this, the Government well could take into
account the desirability of having water available to augment low flows
downstream.
Maybe it is something worth our thinking about as we pursue
additional legislation with respect to water pollution.
Mr. ANDRES. It would be good to keep in your considerations.
Mr. AMBRO. If anyone can think about it, Mr. Chairman, and implement
it, it is you.
Now, with the permission of the chairman, we will recess for lunch
and resume at 2:15, at which time we will entertain testimony from the
U.S. General Accounting Office, the New York State Department of
Environmental Control, Suffolk county officials, including the county
executive, and the U.S. Environmental Protection Agency.
We will recess until 2:15.
(Whereupon, at 1:25 p.m., the hearing recessed for lunch, to
reconvene at 2:15 p.m.)
AFTERNOON SESSION
Mr. AMBRO. The subcommittee will come to order.
I announced prior to the break that we will be hearing testimony from
the U.S. General Accounting Office, and I would like to call on Mr.
Wilbur Campbell, who is the Associate Director, to come up.
Is Mr. Campbell here?
If you would identify those who are with you, for the record.
HRG
760924
WILBUR CAMPBELL JAMES VAN BLARCOM OLIVER W. KRUEGER
ASSOCIATE DIRECTOR, US GENERAL ACCOUNTING OFFICE NEW YORK REGIONAL
OFFICE, US GENERAL ACCOUNTING OFFICE ASSISTANT DIRECTOR, US GENERAL
ACCOUNTING OFFICE
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
PANEL CONSISTING OF WILBUR CAMPBELL, ASSOCIATE DIRECTOR, US GENERAL
ACCOUNTING OFFICE AND OTHERS (PP 94 TO 113)
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CW220386 CW220405 /
04497
(())
PANEL CONSISTING OF WILBUR CAMPBELL, ASSOCIATE DIRECTOR, U.S. GENERAL
ACCOUNTING OFFICE; JAMES VAN BLARCOM, NEW YORK REGIONAL OFFICE, U.S.
GENERAL ACCOUNTING OFFICE; AND OLIVER W. KRUEGER, ASSISTANT DIRECTOR,
U.S. GENERAL ACCOUNTING OFFICE
Mr. CAMPBELL. Thank you, Mr. Chairman.
I brought with me today, on my right, Mr. Jim Van Blarcom from our
New York regional office, who participated in the study, and on my left,
Bill Krueger from my Washington office.
As you know, we did this study at the request of Chairman Wright and
Congressman Downey, and since you already have a copy of my prepared
statement and since Congressman Downey has already made reference to
some of the facts exposed during our study, I simply would like to
identify the three areas we looked into and a couple of the facts we
found and open it up to any questions you might have.
Mr. AMBRO. Without objection, your statement will be made a part of
the record.
(The statement referred to follows:)
STATEMENT OF WILBUR D. CAMPBELL, ASSOCIATE DIRECTOR, COMMUNITY AND
ECONOMIC DEVELOPMENT DIVISION, U.S. GENERAL ACCOUNTING OFFICE
Mr. Chairman and members of the subcommittee, we are here today at
the request of your subcommittee to discuss the federally assisted
project to design and construct a sewer system in the Southwest Sewer
District of Suffolk County, New York. With me today are Mr. Oliver W.
Krueger, assistant director of our Community and Economic Development
division as well as representatives of our Washington and field staffs
who are participating in the review.
My testimony will summarize the interim results of our review of
various aspects of the Suffolk County sewer project, undertaken at your
request and at the request of Congressman Thomas J. Downey. Since our
review is not yet completed, the responsible agencies have not been
given an opportunity to formally comment on our findings.
Before presenting the results of our work, I would like to make some
brief remarks on the construction grants program in general and more
specifically on the project here in Suffolk County.
CONSTRUCTION GRANTS PROGRAM
The Federal Water Pollution Control Act amendments of 1956, Public
Law 84-660, authorized the first federal grants to assist in the
construction of waste treatment works. Then, as now, the selection of
projects to be funded was made the responsibility of the States. Public
Law 84-660 authorized an appropriation of $50 million a year for these
grants, which were limited to 30 percent of the eligible project costs
to a maximum of $250,000. Appropriations were increased during the
early 1960s and major amendments to Public Law 84-660 occurred in 1966,
when the maximum dollar limitation on grants was dropped and the federal
share was increased to a maximum of 55 percent.
Enactment of the Federal Water Pollution Control Act amendments of
1972, Public Law 92-500, resulted in extensive changes to the
construction grants program. The federal share was increased to 75
percent of eligible costs and the scope of eligible projects was
expanded. Public Law 92-500 provided contract authority of $18 billion
for these grants.
The construction grants program is administered at the federal level
by the Environmental Protection Agency's municipal construction division
in Washington, D.C. and by EPA's ten regional offices. The responsible
New York State agency is the Department of Environmental Conservation.
/(())
SUFFOLK COUNTY PROJECT
This is the first major sewer project to be undertaken in Suffolk
County. It is administered by the Southwest Sewer District, an
administrative agency of the County. The County commissioner of
environmental control serves as administrative head of the district.
The project will serve an area of 57 square miles, or about six percent
of the county's total area, and about 300,000 persons, or about 23
percent of the county's current estimated population.
The project includes about 900 miles of lateral and interceptor
sewers, a sewage treatment plant capable of handling 30 million gallons
of wastewater a day, 1 main and 10 smaller pumping stations, and a two
and one-half mile ocean outfall. When the project was originally
approved the lateral sewers and some interceptors were not afforded
Federal aid. Public Law 92-500 subsequently authorized funds for the
construction of these components.
Concern over the increasing contamination of the ground-water supply,
on which the county relies for drinking water, gave rise to an
engineering survey of the county's sewer needs. A referendum proposing
a sewer project in the southwest district of the county was defeated in
1967. In November 1969 the residents of the district approved the
current project. At that time the estimated cost of the project was
$521 million, including $252 million in interest charges. Current
estimates place the total cost of the project at about $1.5 billion,
including more than $900 million in interest charges. Based on these
estimates, construction costs have more than doubled and interest
charges have more than tripled.
The State of New York approved the project for funding in 1970 and
Federal grant approval followed in 1971. Initial construction began in
August of that year. In March 1972, construction began on an
interceptor sewer which was eligible for Federal and State aid and
construction was substantially completed in January 1973. As of August
31, 1976, the construction of lateral and interceptor sewers was about
55 percent complete and construction of the sewage treatment plant was
about 25 percent complete. Construction of the outfall and the main
pumping station had not begun. The county commissioner of environmental
control estimated that the project would be completed by 1981.
The county has applied for Federal funds for the project under both
Public Law 84-660 and Public Law 92-500, the grant was originally
approved in 1971 under Public Law 84-660 and covered eligible project
costs of $307.6 million. The Federal commitment under this grant at the
present time totals $119.7 million, or 38.9 percent of the eligible
costs. The State's share amounts to $92.3 million, or 30 percent of
total eligible costs. As of August 31, 1976, about $15 million in
Federal funds had been released under this grant.
Suffolk County has also submitted a grant application under the
provisions of Public Law 92-500 for lateral sewers and certain
interceptor sewers which were ineligible for aid under the old law.
This application covers $145.9 million in eligible project costs, of
which the Federal share is $109.4 million. The grant application is
currently under review by EPA's region II office in New York City. If
approved, Federal funds committed to this project would exceed $229
million.
CURRENT INTEREST IN THE PROJECT
As a result of published allegations concerning the administration of
the project, a number of organizations have initiated their own
examinations. The United States Attorney for the Eastern District of
New York and the Suffolk County District Attorney's Office are
investigating various criminal allegations.
EPA has created a task force to review the overall management of the
project. The State Department of Environmental Conservation has
undertaken a review to determine whether the construction of one
interceptor sewer was adequate, whether inspection services provided by
the consulting engineer were adequate, and whether the inspectors were
qualified.
Two committees of the Suffolk County Legislature have examined
various technical and financial aspects of this project. The Technical
Committee recommended, among other things, a moratorium on awarding
construction contracts until the scope of the project was restudied.
However this proposal was defeated by the Legislature. The town of
Islip, which is in the southwest sewer district, has had a study made to
determine the annual cost to the homeowner when the project is
completed. /(())
Because of the large number of studies already underway, our review
was limited to:
An anlysis of increases in construction and related financing costs;
The selection of the primary consulting engineer and the fees paid to
the firm; and
Audits of project costs and inspections of project construction.
CONSTRUCTION COST INCREASES
Estimates of total construction costs for the project increased from
$269 million in 1969 to $641 million in 1974. The most recent estimate,
made earlier this year, revised total costs downward to $612 million.
EPA, State and County officials believed that the primary factor
causing the overall cost increase was inflation. State and County
officials also said that the original estimates were based on
preliminary engineering design, which did not allow the estimates to be
as firm as when detailed plans and specifications are available.
Our review disclosed a number of factors which contributed to the
significant increase in estimated costs to construct the project but
inflation and an extended construction period appear to have been the
major ones. The initial cost estimate was stated in terms of 1969
dollars with no allowance for subsequent price increases. During the
period from January 1969 to April 1976, the engineering news record
construction price index increased by 83 percent and the EPA sewer price
index increased by 93 percent. The current cost estimate of $612
million reflects the impact of inflation to date plus anticipated price
increases on unbid construction contracts.
Compounding the effects of inflation has been the extended
construction schedule. The project was originally estimated to be
completed in 5 years but now it appears that construction will extend
over a period of more than 10 years.
Another factor was the length of time it took to obtain approvals
from the State and EPA before construction began. For example, the
County submitted a preliminary engineering design report on the sewage
treatment plant to the State in July 1971 but it was not accepted by the
State until August 1973. Preliminary plans and specifications for the
plant were submitted to the State in early 1973, EPA tentatively
approved the plant in January 1974, and beds were received for
constructing the plant in July 1974. Construction, however, did not
begin until March 1975.
Besides inflation, the cost estimate for the outfall sewer increased
because of significant changes in the scope of work. The estimate for
the outfall has risen from $12 to $70 million, an increase of 483
percent. The length of the proposed outfall was extended from one and
one-half to two and one-half miles. Further, the cost estimate for the
fallout was increased when bids received on an outfall by the
neighboring county of Nassau significantly exceeded those experienced in
the past.
Another factor which contributed to cost increases was the method of
paying for consulting engineering services. Reimbursement for these
services was based on a percentage of costs, therefore, as total costs
increased, the costs of these services also increased.
One comment on the decrease from $641 million to $612 million in the
total cost of constructing the project. County officials informed us
that various factors accounted for the decrease, including contracts
awarded at lower prices than projected, elimination from the estimate of
unused contingency allowances applicable to substantially completed
contracts, and reduction of the contingency allowance on unbid contracts
from 10 to 5 percent.
FINANCING THE COST OF THE PROJECT
The estimated cost to the county in interest charges to finance the
local share of project costs has risen from $252 million in 1969 to more
than $900 million currently. This increase has resulted from
significantly higher costs of construction and engineering services, and
from significantly higher interest rates. The county has been publicly
criticized for its initial decision to finance the project with
short-term notes because, it now appears, interest costs will be higher
than if long-term financing was undertaken from the outset. Neither the
State nor EPA, however, is required to approve financing arrangements
made by the municipalities.
In 1969, Merrill Lynch, Pierce, Fenner & Smith, Inc. proposed that
the county finance the capital costs of the sewer district through ten
long-term bond issues, /(()) the last maturing in the year 2018. In
estimating interest costs, the then current maximum rate of 5 percent
was used. The county sold $19 million in long-term bonds at an interest
rate of 5.25 percent in October 1971 but, thereafter, there was no
long-term financing until December 1975.
During 1972, the county sold three issues of one year bond
anticipation notes, totaling $180 million, at interest rates from 3.0 to
3.3 percent. The long-term rate in 1972 for a comparable obligation was
about 5.5 percent. These short-term notes were renewed in 1973, 1974,
and 1975 at interest ranging from 4.2 to 6.8 percent. In April 1976,
$54 million in bond anticipation notes, due in September 1976, were sold
at an interest rate of 6.75 percent. In July 1976, the county sold $60
million in notes, due in December 1976, at a rate of 9.35 percent. At
the present time, there are no short-term obligations maturing after
December 15, 1976.
The county attempted to reenter the long-term bond market in November
1975 with a $54 million issue but received no bids. The issue, dated
December 1, 1975, and maturing in 1997, was subsequently sold at an
interest rate of about 9.8 percent. On August 1, 1976, the county sold
an additional $150 million in long-term bonds at an interest rate of
about 8.9 percent. It plans to market about $324 million in long-term
obligations by August 1, 1977. In the cost estimate, it was assumed
that these bonds would be sold at 9 percent interest.
County officials stated that the decision to go short-term was based
on then current market conditions. They pointed out that during the
early years of project financing they were able to invest the proceeds
of the short-term issues at interest rates higher than they were paying
on the notes.
Further, they said they could not foresee the changes in the bond
market in 1975 precipitated, in part, by the fiscal crisis in New York
City and New York State agencies. County officials stated that the
current controversy over the southwest sewer district has probably
resulted in the county having to pay an interest rate of one percent or
more higher on the recent $150 million long-term bond issue.
The county plans to pay for the costs of debt service on its bonds
and for operating the sewer system in various ways. The following
charges will be levied on homeowners in the sewer district:
A pre-connection charge of 12 1/2 cents for each $100 of full value,
annually, for three years.
An annual sewer use charge of $50.
An annual real property tax of 60 cents for each $100 of full value.
The county has also pledged as security for project bonds up to one
cent of the existing three cent sales and use tax collected in the
county, effective January 1, 1980. If the revenue from these sources is
insufficient, all the taxable property in the county is subject to be
taxed to pay the bonds and related interest charges.
The uncertainties associated with future construction costs and the
condition of the bond market make projecting the annual cost to the
homeowner in the district very difficult. In the prospectus for the
County's August 1976 bond issue, it was estimated that the annual cost
for a house with a full valuation of $30,000 would be $230, including
the annual use charge of $50. A local citizen's group, however,
believes that the annual cost to the homeowner will greatly exceed this
amount.
SELECTION OF CONSULTING ENGINEERS
In April 1970 the county legislature established a committee on
consultants for the project. The commissioner and the principal
engineer of the Department of Environmental Control made recommendations
to the committee based on their evaluation of questionnaires submitted
by 59 consulting firms.
Bowe, Walsh & Associates was selected to provide design engineering
services for all of the interceptor sewers, the outfall and most of the
lateral sewers. The firm was also selected to provide technical
inspection of all interceptors, trunk lines and lateral sewers on the
project. The same firm had previously performed an engineering study
for public sewage disposal facilities in the county and had been the
consulting engineer to the Suffolk county sewer agency. In addition to
Bowe, Walsh & Associates, 7 other consultants were assigned
responsibilities for other project components.
Neither EPA nor the State participated in the selection of the
engineering firms on the project. Such involvement was not required by
Public Law 84-660.
Under regulations implemented this year, EPA is required to review
the procedures by which grantees procure architectural or engineering
services, although the new procedures are not applicable to communities
of 25,000 or less or on contracts for services which are not expected to
exceed $10,000. /(())
The new regulations are designed to have the grantee procure
architectural or engineering services on the basis of competence and
qualifications and at fair and reasonable prices. The grantee is
required to uniformly and objectively evaluate prospective contractors
in terms of:
Specialized experience and technical competence;
Past record of performance;
Capacity of the candidate to perform the work within the time
limitation; and
The familiarity of the candidate with the types of problems
applicable to the project.
Grantees are responsible for negotiating with selected candidates to
reach agreement on the provisions of the proposed contract, including
price. EPA is required to review the entire procurement process and
approve the grantee's compliance with appropriate procedures.
FEES FOR CONSULTING ENGINEER SERVICES
In June 1976, Price Waterhouse & Co. estimated that the total costs
of engineering services through project completion would amount to
between $72 and $80 million. Consulting engineers provide basic and
special services. Basic services include the preparation of preliminary
and detailed plans and specifications and estimates of the cost of
proposed work. Special service include technical inspection of the
work, the preparation of applications and support for Government grants
and assistance to the grantee as an expert witness in litigation arising
from the project.
Through July 31, 1976, Bowe, Walsh & Associates had been paid about
$30 million: approximately $10 million for basic services and $20
million in special services fees. The consulting engineer is reimbursed
for basic services, generally at 5.23 percent of construction costs.
This rate appeared in The American Society of Civil Engineers' Guide for
the Engagement of Engineering Services, issued in 1968, for projects of
above average complexity with net construction costs of $100 million or
more.
The consulting engineer is reimbursed for most special services based
on a multiplier of two times salaries plus benefits, with reimbursement
at actual for travel and related expenses. Guidelines for the use of
multipliers in arriving at engineer fees were also developed by The
American Society of Civil Engineers. These guidelines stated that the
multiplier which is applied to salary cost is a factor which compensates
the engineer for overhead, plus a reasonable margin for contingencies,
interest on invested capital, readiness to serve and profit.
GAO has consistently advocated that cost plus percentage of cost
contracts should be avoided because they give contractors positive
incentive to inflate contract costs to increase their profits. We
reported our views of such contracts to EPA in August 1974 and again in
May 1975. Since March 1, 1976, EPA has prohibited engineering contracts
which base fees on a percentage of construction costs because such
contracts provide no incentive for designing the most economical
facility.
EPA now prohibits multiplier contracts where profit is a part of the
multiplier. If multiplier contracts are used, the multiplier and the
portions of the multiplier allocable to overhead and to profit must be
specifically negotiated, and the portions of the multiplier allocable to
overhead and profit must be separately identified in the contract.
Further, in all architect-engineer contracts, EPA now requires that a
maximum fee be fixed, subject to renegotiation if the scope of the work
should change.
The New York State Department of Audit and Control and the Suffolk
County Department of Audit and Control have also performed limited
reviews of the fees paid to the primary consulting engineer. The State
reported that since the consulting engineer was paid one one basis for
basic services, on another basis for special services, and on still
another basis for work it subcontracted, there was inadequate cost
control for engineering services. The State also reported that the
reasonableness of profits could not be measured and that the current
method of reimbursement for special services limits the ability of the
county to control costs during a period of inflation.
A county audit of fees for special services performed in 1972
disclosed deficiencies which raised questions about the propriety of
certain charges under the contract. In a followup audit currently
underway, the county has determined that it cannot assure the propriety
of special services fees billed by the consulting engineer unless it has
access to payroll records in addition to those directly related /(()) to
the special services billings. The contract provides that the county
may audit the records of the engineering firm in relation to special
services but limits the audit to that area.
The county believes that access to these other payroll records is
necessary to assure that double billing has not occurred, since the firm
provides both basic and special services and the former area is
reimbursed on the basis of total construction costs. The State
Department of Audit and Control also believes that access to the firm's
payroll records other than those relative to special services is
imperative.
The Engineering firm has denied the county access to the additional
payroll records it requested and the matter has been referred to the
county attorney.
INSPECTION OF CONSTRUCTION
A number of allegations have been made about the construction of the
first interceptor sewer on the project, interceptor I-9. The
allegations involve excessive leaks, improper slope and structural
cracks. This interceptor, which was constructed with Federal and State
aid, was substantially complete as of January 1, 1973.
The recipient of a Federal water pollution construction grant has the
day-to-day responsibility to inspect the construction in-progress and
assure that it is adequate. Regulatory procedures under Public Law
84-660 required that the cognizant Federal agency perform inspection
after completion of the project and prior to final payment and stated
that interim inspections could be made. Regulatory procedures under
Public Law 92-500 state that interim inspections made be made by either
the State or EPA. EPA has the responsibility for conducting final
inspections.
Suffolk County entered into an agreement with its primary consulting
engineer to conduct day-to-day inspections of the lateral and
interceptor sewers and to submit weekly inspection reports to the
Suffolk County Department of Environmental Control. The County also
assigned some of its own personnel to carry out inspections of those
same components.
Neither the State nor EPA has been deeply involved in the inspection
of Project Construction. Although the first inspection of Project
Construction by EPA was not conducted until December 1975, they have
been involved in several inspections since then. EPA's Office of Audit
has recommended that EPA take action to expand its inspection procedures
to require more involvement in all construction projects.
The State believes that the consulting engineer has primary
responsibility for inspection. State officials informed us that the
seven inspections of the project they have performed to date were not
in-depth inspections and the county and the consulting engineer were
notified in advance that they would be made. In April 1976, the
director of the state division of pure waters advised that more frequent
inspections of the Suffolk County sewer project would be initiated.
On September 17, 1973, the consulting engineer advised the county
that all of the work on I-9 was completed, tested, reviewed and was
satisfactory. A two-year maintenance inspection of the interceptor
sewer was conducted in 1975 and although no major visible structural
defects were identified, some deficiencies were noted such as house
connection leaks, manhole defects, and minor structural defects. This
test disclosed that the leaks in the system totaled about 56,000 gallons
per day more than allowable. A series of retests was conducted and it
was not until the conclusion of the fifth retest that all major portions
of the contract were determined to be within allowable limits. All
defective work was reportedly corrected by the construction contractor.
In an attempt to resolve the matter, EPA requested the county to
dewater I-9 and to visually inspect it to determine the adequacy of
construction. The inspection was recently completed and, according to
EPA, construction work was satisfactory. The state is also reviewing
the adequacy of construction and inspection in addition to the
qualifications of the inspectors employed by the consulting engineer.
This review is still underway.
AUDITS OF PROJECT COSTS
EPA has not conducted an interim audit of the project to date and
none is scheduled at the present time. Audits by the state and the
county have been limited to reviews of special servcies fees paid to the
consulting engineer. /(())
Regulatory procedures under both Public Law 84-660 and Public Law
92-500 require a fiscal audit only at completion of the project, prior
to making final payment. Interim audits are not required, but may be
performed if deemed necessary.
EPA'S OVERSIGHT OF THE CONSTRUCTION GRANT PROGRAM
Mr. Chairman, the magnitude of EPA's construction grant program
suggests the need for continuing program monitoring and evaluation. EPA
has recently taken steps in this regard which we have not evaluated.
For example, EPA entered into agreements with the Corps of Engineers and
the General Servcies Administration to provide assistance in monitoring
projects under construction. The purpose of this monitoring is to
assure that grantees and resident inspectors properly supervise
construction. In addition, EPA increased audit resources for the
program by more than 400 percent. The agency has stated that the
expanded coverage will enable it to perform pre-award, interim, and
final program audits.
Subsequent to suggestions by your subcommittee, Mr. Chairman,
concerning the need for reviews of construction projects, EPA announced
last month that it had established a financial technical review program,
consisting of teams of engineers and auditors to conduct on-site reviews
of construction projects. The objective of these reviews, among other
things, will be to assure compliance with Federal and State laws,
regulations, and policies. According to the agency, about 20 reviews a
year will be conducted at projects which vary according to size and
geographical location. Upon completion of a review, the team will
report its findings and recommendations to the appropriate EPA regional
administrator who will be responsible for taking corrective action.
Mr. Chairman, this completes my prepared statement. We will be glad
to respond to your questions.
Mr. CAMPBELL. Because of the large number of ongoing studies already
under way, we limited our study to three areas.
One was an audit of project costs and inspections of the project
construction.
In that area, we found that neither EPA nor the State has been very
deeply involved in the inspection process.
As an example, the first eligible project got under way in March of
1972 and was generally completed January 1973. The first inspection was
not made by EPA until December 1975.
This particular project, which is known as I-9, disclosed a large
number of deficiencies.
At this point in time, EPA has not conducted an interim audit of the
project.
Mr. WRIGHT. I am sorry, sir, I do not understand the last sentence.
Mr. CAMPBELL. At this point in time, the EPA has not conducted an
audit of the project.
The second area we looked at was the selection of the consulting
engineers and the fees paid.
Again, neither EPA nor the State participated in the selection of the
firm.
Bowe Walsh and Associates, the primary architect-engineer, has been
paid to date approximately $30 million in engineering fees.
The current estimate of $612 million includes a factor of about $57
million for engineering fees at this time. The estimates of the
engineering costs could go as high as $70 million or $80 million before
the project is completed.
The third area we looked at was an analysis of the increase in
construction and related financing costs.
As previously indicated by the other witnesses, construction costs
have risen since 1969 from $269 million to $612 million. The financing
cost has risen from $252 million, in 1969, to about $900 million. /(())
As Chairman Wright indicated, you have about a 3 to 2 ratio there of
financing cost to construction cost.
Basically, this completes a brief summary of our findings and we
would be happy to answer any questions you may have.
Mr. AMBRO. Maybe I will just start and then defer to the chairman
who is far more expert in this area.
Audits of the project can be conducted on a variety of levels.
The southwest sewer district itself, for example, can conduct a field
audit.
Have they done so?
Mr. CAMPBELL. I understand the county is currently doing an audit or
attempting to do an audit.
Mr. AMBRO. Not the county now. I am talking about the sewer
district itself.
Mr. CAMPBELL. The sewer district?
Mr. VAN BLARCOM. No. The sewer district itself has not conducted
any audits of the project.
Mr. AMBRO. Now, the county, as well as county controller, the county
officials, can also conduct an audit.
Have they conducted a field audit?
Mr. CAMPBELL. They are conducting an audit of the special services
done by the architect-engineer.
They are having some difficulty, as we understand it, in getting some
of the payroll data necessary to determine whether or not all the
charges being made under the special services contract are, in fact,
valid costs.
Mr. AMBRO. Just with respect to the special services contract; is
that correct?
Mr. CAMPBELL. As far as I know, yes, sir.
Mr. AMBRO. Well, we can go into with the county controller, the kind
of audit that they are conducting.
The State of New York DEC can conduct a field audit.
Have they conducted an audit?
Mr. CAMPBELL. They are conducting an audit at the present time.
They are looking into the adequacy of the performance and the
qualifications of the architect-engineering firm, particularly as it
relates to interceptor sewer I-9.
Mr. AMBRO. They are conducting an audit at present. When did they
start?
Mr. VAN BLARCOM. Well, the State Department of Environmental
Conservation has not conducted any financial audits of the project.
What Mr. Campbell is referring to is a review the Division of Pure
Waters has under way right now, looking into the adequacy of
construction and inspection services provided interceptor I-9.
Mr. AMBRO. So, they have not conducted a full financial audit of the
project.
Federal EPA, I suppose, can conduct an audit.
I think you testified already that they have not conducted an audit.
Mr. CAMPBELL. That is correct.
Mr. AMBRO. So, at the county, State, and Federal level there has not
been a comprehensive audit of this project or a financial audit or a
field audit of this project. /(())
Is that an accurate statement?
Mr. CAMPBELL. That is correct.
Mr. AMBRO. I think it might be too much to relate that kind of
omission to other projects throughout the country because we might be
here for days trying to develop that.
But, what are the consequences of the absence of any auditing on a
project of this magnitude?
Mr. CAMPBELL. The consequences could be significant.
We are investing a tremendous amount of funds, as you well know, in
capital improvements in this area.
EPA's regulations require that although audits can be performed, they
are only required to be performed at the completion of the project.
The same is true with the inspection of projects.
I think EPA is aware of the need for better monitoring of the sewage
construction grants program and, in fact, just recently, last month, I
guess, the administrator has announced a technical financial review
program under which a joint team of auditors and engineers will do
onsite inspections of a selected number of projects around the country.
EPA, I think, has taken other actions indicating their concern over
this thing in terms of expanding their internal audit coverage.
They recently entered into a memorandum of understanding with the
Corps of Engineers and GSA to provide some additional leverage.
Mr. AMBRO. I understood from some comments after the morning session
that the amount of material that we developed was great and highly
technical as well.
The word "audit" may have different meanings for different people.
Excluding mathematical checks of vouchers received prior to payments,
checking to make certain the work is part of the contract and does not
exceed the contract price, and checking certain vouchers against
signatures, apart from that, is there more to an audit than all of that,
or is that a rather simplistic, cursory review of a project, and an
audit is far more comprehensive, and, if it is, can you tell us what an
audit is?
Mr. CAMPBELL. That is a rather simplistic view of only one type of
audit, Mr. Chairman.
We, in GAO, have classified audits into three types; financial type
audits, cost-effectiveness type audits and program results type audits.
Each of those has a different purpose in mind.
A program results audit would be designed to evaluate the overall
success of a program. It could be a major Federal program. It involves
how effective it has been in achieving its legislative goals, for
example.
Then we have a cost-effectiveness type -- efficiency and economy, we
call them -- which is a lesser scope audit.
I think what you are referring to is a strictly financial contractual
audit, a detailed type audit.
Mr. AMBRO. Is that an audit in any sense of the word, adding up a
check and seeing if an appropriate signature is on it?
Mr. CAMPBELL. No. That is only one step in an audit.
Mr. AMBRO. One step?
All right. /(())
As I understand from some people who have talked about contracts, I
think we were told, or at least I got the view that the constracts are
written in many cases strongly in favor of the contractor.
I asked the question, for example, is a contract too permissive when
it allows the consultants to subcontract too easily and attach a
10-percent surcharge to the charges passed on to the county?
I think the response was, no, it is rather traditional, or something
that is done in convention.
What do you think about that kind of a contract?
Mr. CAMPBELL. That is not an uncommon practice, Mr. Chairman, for
prime contractors to add on an overhead and profit factor for
subcontractor work.
Mr. AMBRO. Well, you have consistently, according to your report,
advocated that cost-plus percentage of cost contracts should be avoided
because they give contractors positive incentive to inflate contract
costs to increase their profits. You say:
We reported our views of such contracts to EPA in August 1974 and
again in May 1975. Since March 1, 1976, EPA has prohibited engineering
contracts which base fees on a percentage of construction costs because
such contracts provide no incentive for designing the most economical
facility.
How is that statement relevant to these hearings?
Mr. CAMPBELL. EPA contracts with A. & E. firms are basically two
types.
You have the basic design contract, which is a percentage of cost
type contract. I believe they allow 5.23 percent of the total
construction cost as a fee for the contractor for the basic design.
The contractor also has a special services contract for doing the
inspection work and other miscellaneous items under which he is paid in
the multiplier type contract, two times salary cost incurred, plus
fringe benefits, plus actual cost of travel and those type things.
This was discussed earlier.
Mr. AMBRO. Is there any legislative mandate from any level of
Government which has oversight responsibilities for this project to
assure that an audit, either a performance audit or what was the other
phrase you used, cost-effective audit is conducted?
Mr. CAMPBELL. A legislative mandate that an audit be conducted of an
EPA program or any Federal program?
Mr. AMBRO. Yes.
Mr. CAMPBELL. The GAO has the responsibility not only with respect
to EPA, but every major program. We have the right of access to all
data and we have the responsibility to the Congress to provide adequate
audit coverage with regard to the expenditure qr disbursal of Federal
funds.
Mr. AMBRO. But, do you initiate that or do you react to a request
from Congress?
Mr. CAMPBELL. We do both types.
We do self-initiated work on what we read to be the congressional
interest. We do self-initiative work in a given program area, whether
it be construction grants program or the housing program, et cetera.
These are done on our own initiative and the reports issued on the
blue-backs go to every Member of the Congress.
We do a second type, which is a congressional request. /(())
In other words, we receive a request from a Member or a Chairman to
look specifically at some given program or some given aspect of a
program and those reports generally go directly to the requestor, unless
he agrees to make a broader distribution.
Mr. AMBRO. You mean that both types of those audits that you
conduct, one self-initiated and one at the request of Members of
Congress, are audits which are comprehensive, which are of the variety
that you mention, performance and cost-effective audits, or do you
review projects to determine whether or not audits have been done?
Mr. CAMPBELL. We could do all three. It all depends.
Of course, the broader the audit, the more time it takes.
Mr. AMBRO. Let us get back to my other question then.
Is there anywhere among all levels of government an entity having a
legislative mandate to conduct either a performance or a cost-effective
audit?
Mr. CAMPBELL. EPA is required by its own regulations, I believe, to
perform an audit at the completion of the project, prior to final
payment.
Mr. AMBRO. At the completion of the project, prior to final payment.
That is the only mandate the EPA has?
Mr. CAMPBELL. So far as I know.
EPA may be able to comment on that when they appear.
Mr. AMBRO. Apart from the investigative review and oversight
responsibility of this committee, I think all committees of Congress
have a responsibility to determine whether or not legislation is
properly drafted to include the kinds of ingredients to ensure adequate
audits of all types.
Would you suggest as the result of your review of this project that
there is a bit of a gap in the mandate to audit?
Do you think it is a realistic approach to have an audit soley before
the final payment for a completed project or is there an on-going
responsibility for an audit prior to that?
Mr. CAMPBELL. As I indicated, Mr. Chairman, in view of the vast
amounts being expended here, I think it is incumbent we have the best
monitoring audit and control we can possibly have throughout the course
of each project.
I recognize the problem that EPA is faced with in terms of number of
staff as compared to the total number of projects they have under way at
any one point in time.
Mr. AMBRO. Yes.
But, beyond that, they do not have any mandate to do it other than
the one you just identified, which is prior to payment and at the
conclusion of the project, not an interim audit, not a field audit, not
a performance audit, not a cost-effective audit.
It may very well be that the legislation which does not mandate these
kinds of audits may have within it glaring gaps.
Is that correct?
Mr. CAMPBELL. That is correct.
EPA does develop an annual audit plan in which they show how they
plan to allocate their audit resources in the years ahead, and it is
allocated between various programs and between various types of audits,
financial audits as opposed to effectiveness audits and /(())
Mr. AMBRO. So, without question, when dealing with the funding for
these kinds of projects it may very well be that recommendations should
be made to assure that these kinds of audits are included on an on-going
basis during the construction phase of the project.
Mr. CAMPBELL. If it can be accomplished, it would be one step toward
better assurance that the final project is going to meet design
specifications, yes, sir.
Mr. AMBRO. We will talk to the EPA about its staff with respect to
auditing and the rather ludicrous position they find themselves in with
the miniscule resources they have to do this.
But, we are now, in other words, at a point in time in a project
where millions upon millions of dollars have been spent without an audit
of the project, so that we really do not know where we are or how we got
there. Is that correct?
Mr. CAMPBELL. That is correct, sir.
Mr. AMBRO. Mr. Chairman.
Mr. WRIGHT. Yes.
Thank you.
Mr. Campbell. You have been familiar with the water pollution
abatement program since its active inception.
Mr. CAMPBELL. Yes, sir.
Mr. WRIGHT. In 1956.
It was greatly expanded in 1965, which made it enormously more
sophisticated and more complicated.
As you have explained in response to Chairman Ambro's questions, the
GAO monitors both the broad scope of the programs in general and
specific projects within those programs when requested to do so by a
member.
Now, in all these years, how many situations have you had occasion to
look into which had the same problems that this project has had?
Mr. CAMPBELL. To be quite frank, we normally, because of resource
problems, do not zero in on a single project.
Mr. WRIGHT. I understand that.
Mr. CAMPBELL. To my knowledge, and I have to qualify that and remind
you I have not been personally involved in the environmental programs
since the beginning, but, to my knowledge, we have not done a detailed
audit of a project of this size and found the problems that we have
found.
Mr. WRIGHT. You say you have not in any other instance found the
problems that you have found here?
Mr. CAMPBELL. Yes, sir.
But, I would like to qualify that by saying we have not really looked
at that many projects either.
Mr. WRIGHT. I understand.
Mr. Campbell, I think I am correct in saying you were associated with
the GAO throughout most of this period.
I recall in the days when this subcommittee was investigating
irregularities in the highway program, you worked with us in developing
information, evidence, and you were helpful to us.
What I am trying to get a feel for is how widespread or how difficult
the type of problems that have occurred here would possibly be.
Mr. CAMPBELL. Mr. Chairman, we were just talking about that. /(())
To be quite frank, the problems that we encountered here in terms of
the financial burden to the local community to bear their share of this
project is a subject that we have not really addressed in the past and
it might be a very good one.
I am not sure whether the situation here in Suffolk County is typical
or atypical of the problems that the local people are having in
financing their share of the sewage construction grants program.
Mr. WRIGHT. Well, I want to believe that it is a typical because if
it is typical we are in serious trouble.
I think it is incumbent upon us to try to find out. Maybe we should
make some spot checks at some of the larger projects.
Mr. CAMPBELL. I think, in my opinion, it would be a very interesting
study to select a number of communities, look at what it is costing
them, and the various methods of financing being used to sort of compare
it to Suffolk County.
Mr. WRIGHT. Here is what I am getting at.
Back before this became such a sophisticated proposition in 1953, the
year before I came to Congress, I was the mayor of a community and we
had a bond issue. We dealt with sewage disposal plans. Counting
amortization, I figured that it came to the cost of about $120 per
household to construct a plant. That was not to maintain and operate
it, but the one-time cost df constructing it came to about $120 per
household.
Now, admittedly, that was in flat land country of Texas where we did
not have any of the extremely fragile ecological problems that are in an
area like Long Island. So, there is considerable difference.
But, what alarms me, Mr. Campbell, is the realization that there are
probably some 83,000 households to be served by this system and the
system is going to cost $1 1/2 billion, and if I figure right, that
comes out to be $18,000 a household to build the system, not to operate
and maintain it, just to build it.
Now, we have some serious problems in having to finance this program.
I wonder if perhaps, Mr. Chairman, would it not be a good thing for
that kind of cost analysis, cost per household, for the construction of
the system, including amortization costs, to be conducted by GAO for the
top, you know, those that are in this range? I do not think there are
too many higher than this in cost.
Let us get a feel for it and see how typical or atypical this problem
is.
If these problems exist elsewhere, we have not heard them. If they
are likely to occur elsewhere, I think both the Congress and the
administrators in EPA need to be alerted to it so as to do whatever can
be done to prevent this kind of thing from occurring.
Now, with respect to the possibility of GAO conducting an aduit, I
should like to request from Mr. Kopecky that we draft a letter along the
general line and request that that be conducted.
Now, we have been talking here and Chairman Ambro has been asking
with respect to responsibilities of the EPA for monitoring these
projects.
Do you, representing the GAO, feel that it would require a large and
a massive force within the EPA to carry out an inspection program that
would catch some of these problems before they blossomed out into a full
scale crisis? /(())
Mr. CAMPBELL. Mr. Chairman, I cannot really respond directly to the
question because we have not done any type of productivity analysis or
work measurement type study of EPA's inspectors.
To put it in a little perspective, for example, here in New York
alone I think they have something like 145 projects under way or about
to get under way.
Mr. WRIGHT. In the State of New York?
Mr. CAMPBELL. Just within the State.
Mr. WRIGHT. One hundred forty-five projects either under
construction or just about to go under construction?
Mr. CAMPBELL. Yes, sir.
As I recall, about 34 of those are under the old law 84-660 and 11,
or so, give or take a few, are under the new law.
Mr. WRIGHT. These are water pollution abatement projects?
Mr. CAMPBELL. Yes, sir.
Mr. WRIGHT. For the most part sewage plant construction?
Mr. CAMPBELL. Yes, sir.
In terms of staffing, I believe in the region they have something
like 21, 17 engineers and 4 supervisors. This was at last count.
It is difficult to say, to divide people into projects, because the
engineers have a lot of other duties besides inspecting and I am sure
EPA can tell you what some of their responsibilities are, such as
reviewing plans, specifications, and various types of activities.
As to how much of an effort it would be to monitor each and every
project a given number of times, it is difficult for us to speculate. I
think the administrator is moving toward more inspections as the result
of this technical financial approach that I mentioned earlier. Plus,
the other actions he has taken to expand the audit function, and to try
to bring in the Corps and GSA.
It is too early to tell how effective all those things are going to
be in providing better coverage of the construction grants program.
Mr. WRIGHT. Well, it is not as though there has not been an enormous
amount of paperwork that had gone on prior to the approval of this
project.
According to your report, which we have before us, the county
submitted a preliminary engineering design report on this project in
July of 1971. Then it went through, presumably, considerable review by
the State and preliminary plans and specifications were submitted
finally in early 1973. EPA tentatively approved the plan in January
1974. The bids were received for constructing the plant in July 1974.
Construction did not begin, however, until March of 1975.
There was an enormous amount of time that had lapsed there and your
agency has engaged with our committee in a sometimes frustrating review
to see how you compress this time frame and cut out the red tape that
boggles these programs down and causes delay which also consumes time
and money.
Now, with the personnel that EPA has looking at these papers,
reviewing the papers, studying and analyzing and looking over
environmental impact statements, and all this kind of thing, I just
wonder about the 17 engineers and 4 supervisors in the State of New
York.
I am not presuming the elementary wisdom to suggest how the agency
should arrange its workload, but it strikes me that it might /(()) alert
itself to problems in advance if it had more people who were out in the
field going to the communities and looking at the problems, seeing them
on the ground, instead of quite so much paperwork.
Now, is that a valid observation?
Mr. CAMPBELL. If you are asking for my personal opinion, being an
auditor, I feel there is no substitute to being on the site and actually
working with the people on the projects.
It is conceivable that EPA could develop some type of criteria
whereby they, on a selective basis, could identify or flag those
projects which they know are going to be troublesome projects or
indicative of some type of problem. It could be in terms of size. It
could be in terms of environmental consideration.
It is not to say that they would have to look at every project to the
same depth, but conceivably they could develop some plan for flagging a
number of projects and types of projects that should be reviewed and
visited periodically.
Mr. WRIGHT. I think you understand what I am getting at.
I do not want to be unfair to EPA and probably I have been in my
criticisms of the redtape, and so on.
On one hand, I do not want to accuse the EPA of having been derelict
in not looking closely enough at details, while at the same time I am
criticizing them for engaging in too much redtape. That would be a
little bit unfair of me. Therefore, what I am looking for and what I
believe most of the members of our committee and the Congress, probably,
are looking for is some way to improve their capacity to catch problems
of this kind at a much earlier stage than when all of this money has
been spent without just compounding the redtape, which already exists in
proliferous abundance.
I do not have a quick answer to this.
Mr. CAMPBELL. There is one suggestion.
EPA has delegated the responsibility for the inspection of the
project to the local community who in turn, for the most part, because
of lack of capability, have contracted with the A. & E. to provide those
types of services.
As a substitute for EPA, actually, during the inspection, it is
conceivable that they could develop a program for monitoring to insure
that the State, local community and the A. & E is effectively or more
effectively carrying out their respective roles.
Mr. WRIGHT. Well, we have incorporated in the bill presently pending
before the Congress, H.R. 9560, a provision to look to States to certify
that Federal-mandated requirements have been met.
In this bill, we allow an amount of up to 2 percent of the amount
authorized for construction grants, according to that State, to be
reserved for this purpose and it is to be granted by the administrator
in carrying out his authority.
In our committee report, we declare States exercising certification
authority may assign personnel funding under this provision to onsite
inspection.
I wonder if that might not be of some assistance.
Mr. CAMPBELL. I have not seen that, Mr. Chairman, but based on our
experience to date, I think it would certainly be a big help.
Mr. WRIGHT. I thank you. /(())
I have a great many more questions, Mr. Chairman, but I think the
witnesses have been extremely helpful to us and I should not want to
burden the time of other witnesses by indulging in my own curiosity
beyond the point that I already have.
Mr. AMBRO. Well, I thank you, Mr. Chairman.
The report from Mr. Campbell of the U.S. GAO is indeed one of the
frankest and, in my view, most startling reports I have ever read,
because most reports from Government agencies are rather circumlocutory
and this goes right to the heart of things.
I know there is a time constraint, but I just have to ask you a
couple of questions more about this report.
You say, for example, that the estimated cost to the county in
interest charges has risen from $252 million to more than $900 million
and this increase has resulted from significantly higher costs of
construction and engineering services, and from significantly higher
interest rates.
You also say the county sold $19 million in long term bonds at an
interest rate of 5.25 percent in October 1971, but thereafter, there was
no long-term financing until December 1975.
What is the implication of that statement?
Mr. CAMPBELL. In the beginning, as was testified earlier, they went
with bond anticipation notes, short-term, 1-year, notes, at about
3-percent interest when bonds were going about 5.5 percent.
As indicated, at that time, it looked like a good deal. They were
speculating, in effect, on the bond market.
Ultimately, when the interest rates began to skyrocket, they tried to
get back in the bond market and they were unable to sell their issue.
It was reissued at a later date at a rate of 9 percent or something.
There has been a great deal of testimony this morning that the more
conservative approach normally for capital financing is the long-term
bond route. Had they gone that route in the beginning, early in the
game, although we have not worked out any type of potential savings, the
financing costs would have been less.
Mr. AMBRO. At considerably less interest rate.
Mr. CAMPBELL. Yes.
Mr. AMBRO. You say with respect to the selection of consulting
engineers that the Commissioner and the principal engineer of the
Department of Environmental Control made recommendations to the
committee based on their evaluation of questionnaires submitted by 59
consulting firms.
Then you say neither EPA nor the State participated in the selection
of the engineering firms on the projects. Such involvement was not
required by Public Law 84-660, under which the project originally came.
Is that correct?
Mr. CAMPBELL. That is correct, sir.
Mr. AMBRO. This resulted in the selection of Bowe, Walsh &
Associates to provide design engineering services for all of the
interceptor sewers, the outfall and most of the lateral sewers.
Through July 31, 1976, Bowe, Walsh & Associates had been paid about
$30 million. That figure has been quoted often. It was $10 million for
basic services and $20 million in special services fees. /(())
Then you go on to say they are reimbursed at 5.23 percent, which is
the American Society of Civil Engineers guide figure for these sorts of
things.
Legislator Mrazek testified that the multiplying of two times
salaries plus benefits was one that was used here. In other counties
stronger negotiating practices are used, because of a different point of
view.
He was critical of that.
Then you go on to say that you have consistently advocated -- and I
read this before -- that cost plus percentage of cost contracts should
be avoided and now EPA prohibits that.
There is a point I want to make.
Is the prohibition by EPA the result of viewing this project with
respect to the way contracts were developed here, or did they come upon
this prohibition as the result of something else?
Mr. CAMPBELL. To my knowledge, it had nothing to do with the project
here.
We have been working with EPA for several years to get away from this
type of contracting.
As we indicated, we issued two reports making this recommendation;
and we would like to think that as a result of our urging and their own
recognition and the fact that this was not an equitable way of
contracting, that that brought about this change in EPA.
Mr. AMBRO. The New York State Department of Audit and Congrol
reported that there were inadequate cost controls for engineering
services, as you note on page 15 of your statement.
On the next page, you indicate that a county audit of fees for
special services performed in 1972 disclosed deficiencies which raised
questions about the propriety of certain charges under the contract.
In a followup audit currently underway, the county has determined
that it cannot assure the propriety of special services fees billed by
the consulting engineer unless it has access to payroll records, in
addition to those directly related to the special services billings.
The contract provides that the county may audit the records of the
engineering firm in relation to special services, but limits the audit
to that area.
Then you tell us that the engineering firm has denied the county
access to the additional payroll records it requested.
On what basis did they deny access? Are we touching on an area that
is under criminal investigation?
Mr. CAMPBELL. I think we can comment on that. Would you like to
address that?
Mr. VAN BLARCOM. The contract that the county has with the
engineering firm to provide special services is conditioned to the
effect that it gives the county the right to review payroll records of
individuals who work for that consulting engineer and provide special
services on the southwest sewer district project.
Now, the engineering firm is reimbursed for some of the services
provided based on actual salaries times two, but in other cases, it is
reimbursed for design services based on just total construction costs.
The county auditors have decided, the clause of the contract
notwithstanding, that they cannot assure that the county is being
accurately billed for special services and not being doubled billed for
the same work under the construction cost percentage agreement unless
/(()) they have access to more payroll records than they are granted
access to right now.
The consulting engineering firm has turned down their request and the
county comptroller has referred the matter to the county attorney for
resolution.
Mr. AMBRO. Well, so we do not have at this point in time proper
audits, and those audits that might be initiated are frustrated by less
than cooperative consulting engineers; is that correct?
Mr. CAMPBELL. That seems correct.
Mr. AMBRO. Once more I would like to thank you for your statement,
your review of the project and the reports.
Just one last question: Where do you go now?
What are you going to do with respect to all this?
Mr. CAMPBELL. We are going to have to sit down with the subcommittee
staff and Congressman Downey, since we did this study at their request,
and see whether we just terminate this particular study here or expand
it into a broader issue area, as we have discussed briefly here.
I guess I am saying to you it is kind of up in the air at the moment,
Mr. Chairman.
Mr. AMBRO. Thank you, Mr. Campbell, from all of us.
I would like to thank you for your frankness and for the good work
you have done.
Mr. WRIGHT. Mr. Chairman, just before they leave, I have one
question.
I do apologize for extending the conversation because there are other
witnesses.
When it comes right down to it, the major part of the reason for the
escalation of the cost so widely beyond the initial expectation is the
outrageous cost of money, borrowed money; is that correct?
Mr. CAMPBELL. That is correct.
Mr. WRIGHT. In other words, you report that during the period of
time when the estimated cost of the actual construction, because of
changes and expansions and modifications and inflation, the cost was
going up about 200 percent? The cost of borrowing money was going up
about 300 percent.
In 1972, they were borrowing money at rates from 3 to 3.3 percent.
In July of this year, they were having to pay 9.35 percent.
To put it another way, I figure that the cost of this total project
to the average household in Suffolk County is going to be $18,000. Of
that, almost two-thirds, pretty close to $12,000, is going to be
interest.
Is that about right?
Mr. CAMPBELL. Right.
Mr. WRIGHT. Then that addresses the very broad problem which Suffolk
County cannot control, and I am not sure that Congress can control it
because people who establish interest rates are neither elected by the
public nor ratified by Congress, but they are people who have operated
upon the assumption that high interest holds down inflation.
Now, it seems to me that is the most shocking theory of a bygone age
that still is being followed by policymakers in Washington.
It seems to me it certainly ups the cost of everything that is
constructed. /(())
I do not know that I need to ask you to respond to that; but Arthur
Burns and I just have a profound disagreement about this subject.
Mr. AMBRO. Mr. Chairman, if you will yield a minute, I subscribe to
everything you say in general, conceptually, and all of your
conclusions.
I think the point, however, that I was trying to make, Mr. Campbell,
is one contained in your report, which says clearly and in
understandable language,
The county has been publicly criticized for its initial decision to
finance the project with short-term notes because, it now appears,
interest costs will be higher than if long-term financing was undertaken
from the outset.
You said, I think, that they financed originally the BAN's and there
was a hiatus between the original $19 million long-term bonds in October
of 1971, of over 4 years before long-term financing was entered into
again.
Now, does one read into that the thought that with prudent,
conservative fiscal management that one could have taken advantage of
the better interest rates at the time and let it go for a 4-year term to
get in at a time when interest rates were inordinately high?
Mr. CAMPBELL. I am not sure I understand the point. Would you
repeat that again, please?
Mr. AMBRO. Well, you said there was a hiatus of over 4 years.
Mr. CAMPBELL. Before they came back with long-term debt.
Mr. AMBRO. That is right.
Mr. CAMPBELL. Yes, sir.
Mr. AMBRO. Are you suggesting that a different kind of fiscal
management could have avoided, by selling long-term notes earlier, that
kind of spiralling interest rate which results in these huge costs
today?
Mr. CAMPBELL. Yes.
What we are saying is in 1971, when they went out for the first $19
million at 5.25 percent interest rate, the following year they sold
BAN's, totalling about $180 million a year at interest rates, from 3.0
to 3.3.
The following year, again, in 1973, they went out and renewed those
short-term notes at a rate of 4.9, 5.6, and 5.0. Then when they finally
did come back in the bond market in 1975, they had to pay 9.8.
So we are saying -- and the county admits -- had they foreseen what
was to happen to the interest rates, they conceivably could have bought
those bonds in 1971, somewhere in the 5-percent range.
Mr. AMBRO. And without leaving it dangling, and in an attempt to
avoid being unfair, is there any financial manager that could have
foreseen that, or are we just in hindsight making the point, which is
more academic than real?
Mr. CAMPBELL. Yes.
Had the interest rate situation not occurred like it did, they would
have looked like heroes. You are correct.
The only thing I can say is, I think it is generally the more
conservative approach in financing capital improvements to use the
long-term debt. But that does not mean that that is the only way to go.
Mr. AMBRO. I was selling bonds at the time; and in October 1971,
they were 5.25, if I recall correctly. Correct me if I am wrong. It
was kind of high. One would have hoped that that interest rate would
/(()) have declined if one waited a while; and so you get on this
treadmill of waiting for it to go down and it keeps going up and someone
in a bank says, hang around and it will go down a little further and
rather you wake up one morning and it is up higher.
I do not want to get the county off the hook or put them on, either
way. I am just trying to lay it out as clearly as I can.
I have had experience in this area. I know how you get involved in
these kinds of problems.
Mr. CAMPBELL. There is no question about it. That is why we make no
criticism. It was a decision that was made. At the time, it looked
good.
Mr. AMBRO. I would like to thank you again and merely rest on the
profound observation that we all agree that it is the bottom line that
burns the hole.
Mr. AMBRO. The next scheduled witnesses are from the New York State
Department of Environmental Conservation, Eugene Seebald, who is
Director of the Division of Pure Waters; Ernest Trad, Associate
Director, Division of Pure Waters; William LaRow, Assistant Director,
Bureau of Sewage Programs; Robert G. Hampston, Supervisor; Craig
Porter, Assistant Sanitary Engineer; and Ali Khan, Senior Sanitary
Engineer.
Gentlemen, I would like to welcome you and thank you for attending,
and ask Mr. Seebald, if he will, to open it up.
You have been sitting here a while. We are under time constraints.
HRG
760924
EUGENE SEEBALD ERNEST TRAD WILLIAM LAROW ROBERT G. HAMPSTON CRAIG PORTER
ALI KHAN
DIRECTOR, DIVISION OF PURE WATERS, NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION ASSOCIATE DIRECTOR, DIVISION OF PURE WATERS,
NYSDEC ASSISTANT DIRECTOR, BUREAU OF SEWAGE PROGRAMS, NYSDEC SUPERVISOR,
NYSDEC ASSISTANT SANITARY ENGINEER, NYSDEC SENIOR SANITARY ENGINEER,
NYSDEC
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
PANEL CONSISTING OF EUGENE SEEBALD, DIRECTOR, DIVISION OF PURE WATERS,
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND OTHERS (PP
113 TO 117)
--
--
94-2
--
CW220405 CW220409 /
04498
(())
PANEL CONSISTING OF EUGENE SEEBALD, DIRECTOR, DIVISION OF PURE
WATERS, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; ERNEST
TRAD, ASSOCIATE DIRECTOR, DIVISION OF PURE WATERS, NYSDEC; WILLIAM
LaROW, ASSISTANT DIRECTOR, BUREAU OF SEWAGE PROGRAMS, NYSDEC; ROBERT G.
HAMPSTON, SUPERVISOR, NYSDEC; CRAIG PORTER, ASSISTANT SANITARY
ENGINEER, NYSDEC; AND ALI KHAN, SENIOR SANITARY ENGINEER, NYSDEC
Mr. SEEBALD. Thank you.
Mr. Ambro, Chairman Wright, I appreciate the opportunity for me and
my staff to appear before you today.
As you indicated in your invitation, you wanted us to be able to help
you find out what is behind some of the allegations or charges, what has
led to the situations, and where are we today in the case of the Suffolk
County Southwest Sewer District.
I would like to state at the outset that the project was developed as
a result of the Pure Water Program, initially begun in 1964. It stemmed
from a need, very definite need, for sewers and sewage treatment in an
area where there were certified public health hazards attested to by
local health officials and subscribed to by the commissioner of health
at the time.
So this is not a project that arrived out of the blue. It stemmed
from a very definite needs survey and they properly developed the
project. /(())
I would like to indicate also -- and you may be well aware -- that we
have cooperated with your investigators since the onset of the
preparation for this particular hearing.
In the meantime, we have also cooperated with EPA and the GAO in
putting together their material.
We have no formal presentation to make at this time. However, I have
read the presentation prepared by EPA region II, which will be submitted
as testimony, and it represents the joint efforts of both EPA and NYSDEC
in addressing the various developmental steps and the existing status of
Suffolk County Southwest Sewer District.
I would wish that you would regard the report tendered by Mr.
Hansler, of Region II, the regional administrator, as representative of
the views of the New York State Department of Environmental
Conservation.
Myself, together with the staff here assembled, have been familiar
with most of the facets that were developed by the previous speakers in
a greater or lesser detail.
The reason for the number of people here is so that we will be able
to address more fully or most fully any of the details you may wish to
touch on with respect to all of the problems that were addressed earlier
by previous witnesses, including the latest dewatering and testing of
the first interceptor, I-9, with which we are familiar and in which we
participated with EPA.
I would like to point out also that with respect to the preceding
testimony by GAO, NYSDEC is not a financial auditor.
However, we do request and have requested at times interim audits of
projects. Usually the larger projects are the subjects for interim
audits and not only a single final audit.
In this case, it is to be kept in mind that the total Suffolk County
project is only 15 percent completed in the overall picture. So it
cannot be regarded as really that far along that it would prompt an
out-of-hand interim audit at this stage of the game.
I would like to answer any questions you may have at this point.
Mr. WRIGHT. The committee staff advises us that all of you have been
extremely cooperative and helpful. For that we want to express our
appreciation.
Mr. SEEBALD. Thank you.
Mr. AMBRO. Just a couple of things, Mr. Seebald.
The arm of the New York State government which would conduct audits
would be the New York State Department of Audit and Control, and I
suppose their bureau of municipal affairs.
While the project might be 15 percent complete and, therefore, not
one which would trigger an audit from you, given the high visibility of
the criticism of the project and the large amount of dollars that have
already been committed to it, do you think now you would be interested
in having a State audit of this at this point in time?
Mr. SEEBALD. I feel that it is essential that we await the outcome
of the miscellaneous investigations that are ongoing and the development
of some figures, some of which I believe have been presented here today,
which have to some extent deescalated some of the figures that appeared
previously in the press.
I would like to reserve judgment as to whether or not we would be
requesting an audit at this point in time. /(())
In other words, the validity of the charges have in some cases not
held up under the scrutiny of your honorable body this afternoon.
Mr. AMBRO. Except if you are going to wait for the results of
prosecutorial investigations, that is one facet of this thing; but to
await as well the validity of charges of escalating costs is something
that merely means to me that you could request an audit to determine the
validity of those charges yourself.
Mr. SEEBALD. I would have to consult with staff to see if actually
that is in order.
Mr. AMBRO. Now, apart from accepting the views of the Federal EPA in
its statement, which I do not have before me, do you not have your own
view on the environmental effects of impact of this project as opposed,
let us say, to the criticisms you heard this morning?
Do you have any comment with respect to all of that?
Mr. SEEBALD. We have views on just about every one of the issues
that were raised this morning. There is a great deal of validity to a
number of them. The degree to which they should be addressed and in
what sequence, I think, is open to question.
I believe it should be pointed out that we have considered in all
cases the environmental damage that may or may not result. We have
considered the potential of ground water recharge, the need for flow
augmentation, perhaps in surface water; the effect on the shellfish
beds of saltwater intrusion or the lack of the inflow of additional
freshwaters.
We have also considered the shortening of the outfall as an attendant
impact on any shoreward installations.
We have in all cases made conscious decisions in all of these regards
and are continuing to include in our considerations recharge in the case
of all Long Island waste treatment plants.
However, we feel that we must await the outcome of the largescale
recharge installation currently being developed at the Wantagh plant
site in Nassau County, which will indicate the feasibility of recharging
large quantities of waste water, treated to a sufficient degree to allow
its recharge into the ground water aquifer.
Mr. AMBRO. When will the Wantagh recharge plant be completed?
Mr. SEEBALD. It will be completed in 2 years; but then it will take
about a 3-year study period after that to determine the efficacy of it.
Mr. AMBRO. So that will be 5 years from now?
Mr. SEEBALD. That is right.
Mr. AMBRO. What is the capacity involved?
Mr. SEEBALD. Five million gallons.
Mr. AMBRO. Five million a day?
Mr. SEEBALD. Yes.
Mr. AMBRO. Do you think that is a sufficiently good pilot to make a
determination for this project with respect to its efficacy?
Mr. SEEBALD. We do.
Mr. AMBRO. Do you think as well that a retrofit cost, given the
ability to install a tertiary system here, would be within the means of
the District, or can you not judge that at the moment?
Mr. SEEBALD. I do not believe I can judge that at the moment.
Mr. AMBRO. Do you not think that 5 years is a long time from now to
look into this kind of thing?
Mr. SEEBALD. Unfortunately, to do anything sooner would be risky.
/(())
Mr. AMBRO. It would be what?
Mr. SEEBALD. Risky.
Mr. AMBRO. Why?
Mr. SEEBALD. I just do not believe the technology in the quantities
we are talking about exists.
Mr. AMBRO. Mr. Chairman, do you have any questions?
Mr. WRIGHT. Well, this is an interesting view.
I think, according to our records, on June 29 of this year, a grant
was awarded for the construction of this recharge plant.
Now, after it is completed and built, as I understand it, you then
intend to take about 5 years to study it.
Am I right or wrong?
Mr. SEEBALD. About 3 years.
Mr. WRIGHT. So, it is a total of 5 years until you feel you will
have a sufficient base on which to decide whether or not that is a
feasible approach?
Mr. SEEBALD. That is correct.
Mr. WRIGHT. What about the other suggestion that was made here today
of augmenting stream flow for the treatment of the sewage?
Mr. SEEBALD. Very candidly, it has been a matter for discussion
between myself and members of EPA staff Region 2 within the last month.
There is no final conclusion, I might add.
But, it is actively being pursued.
We perceive a need and we would like to move forward as quickly as we
can reconcile the facts.
Mr. WRIGHT. One other question, that is all.
As I understand it, EPA and New York State have been making certain
inspections on one of the interceptors.
Mr. SEEBALD. Yes, sir.
Mr. WRIGHT. I-9.
There has been a great deal of publicity about that.
Problems were noticed there during construction and a couple of years
ago they required a test to disclose failures. What about your most
recent tests?
What do they show?
I understand they were just completed.
Mr. SEEBALD. I prefer that the individual making the inspection
comment.
Mr. Hampston of my staff made the inspection.
Mr. HAMPSON. We have just received the final data on the tests and
we are still analyzing it.
However, based on what we saw out there, and the data that we have
received thus far, we feel that, preliminarily anyway, that the sewer as
installed is a satisfactory installation.
The leakage limits are overall within the specified limits.
Mr. WRIGHT. You are saying so far as you can tell now from the
examination of data available to you, you think they have corrected
those deficiencies which earlier caused so much concern?
Mr. HAMPSTON. That is correct.
Mr. WRIGHT. Thank you.
Mr. AMBRO. I just want to tie up this end and then conclude. The
Tahoe plant, for example, is a tertiary plant that has been around for a
number of years and is probably the forerunner of others, but the
gallonage is so small that I suppose it cannot be used as a /(())
project which can be effectively translated to either Wantaugh or this
one.
What assurance do we have, given the gallonage of Wantaugh, that it
is sufficiently good example of the efficacy of tertiary treatment to be
brought to this project?
Mr. SEEBALD. Two things.
One is that the wastes would be similar.
The treatment process train that is being used at Wantaugh is
conventional. It is not using any novel methods.
It is actually putting in place conventional pieces of process
equipment, et cetera.
One of the points that is actually being developed is the best method
of getting the highly treated effluent back into the ground.
The methodology for recharge, open basins, shallow wells, any other
methods of diffusion -- some of the problems that are attendant in the
recharge program is the methodology of recharging itself, not the
treatment prior to recharge.
Mr. AMBRO. You are absolutely satisfied then, that given the 2-year
construction time, if it is constructed in that time, and a 3-year study
time, that this project can proceed on the present design with the
outfall and secondary treatment without harming all of those fragile
systems that were discussed earlier, without causing salt water
intrusion, increased salinity in the bay, diminution of the aquifers,
intensification of pollution, and all of those other horrors that were
dealt with in the morning session?
Mr. SEEBALD. I believe that I can safely say yes to that.
Mr. AMBRO. I see. I appreciate your testimony. I appreciate your
coming. I appreciate your frankness. I thank you.
Our next segment includes Suffolk County officials: John Klein,
Suffolk County Executive; John Flynn, Commissioner of the Department of
Environmental Control; Arthur Imholz, Deputy Commissioner of the
Department of Environmental Control; William Graner, Chief Engineer for
the Department of Environmental Control; Carl Shapiro, Principal
Accountant, Department of Environmental Control; and John Guldie,
Resident Engineer.
Will those of you who are here come forward. We will wait for the
county executive.
I see our illustrious executive has arrived.
Mr. KLEIN. No. No. Mr. Caso is in Nassau, but I am here.
Mr. AMBRO. I will leave that on the record without comment.
It is a pleasure to welcome you and your colleagues, Mr. Klein.
I do not know how long you have been sitting here listening to this,
but we have had a good deal of testimony preceding yours.
We would like, without question, to get the views of all levels of
government involved in this project, including Federal, which will
follow you.
I would like to depart from the format and the discussion topics
because knowing you, I know you have a great deal of background in
government for many, many years.
We have served together on a number of elected boards. I would like
to just open it up to you for opening comments, given the earlier
constraints and the conversations we had on the telephone, and assure
you that any written statements and anything else that you would like to
include in the record will be included.
So, my good friend, John Klein, you may proceed.
HRG
760924
JOHN V. N. KLEIN JOHN FLYNN ARTHUR IMHOLZ WILLIAM GRANER CARL SHAPIRO
JOHN GULDIE
SUFFOLK COUNTY EXECUTIVE COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL
CONTROL DEPUTY COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL CONTROL CHIEF,
ENGINEER, DEPARTMENT OF ENVIRONMENTAL CONTROL PRINCIPAL ACCOUNTANT,
DEPARTMENT OF ENVIRONMENTAL CONTROL RESIDENT ENGINEER
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
PANEL CONSISTING OF SUFFOLK COUNTY OFFICIALS: JOHN V. N. KLEIN, SUFFOLK
COUNTY EXECUTIVE, AND OTHERS (PP 118 TO 138)
--
--
94-2
--
CW220410 CW220430 /
04499
(())
PANEL CONSISTING OF SUFFOLK COUNTY OFFICIALS: JOHN V. N. KLEIN,
SUFFOLK COUNTY EXECUTIVE; JOHN FLYNN, COMMISSIONER, DEPARTMENT OF
ENVIRONMENTAL CONTROL; ARTHUR IMHOLZ, DEPUTY COMMISSIONER, DEPARTMENT
OF ENVIRONMENTAL CONTROL; WILLIAM GRANER, CHIEF ENGINEER, DEPARTMENT OF
ENVIRONMENTAL CONTROL; CARL SHAPIRO, PRINCIPAL ACCOUNTANT, DEPARTMENT
OF ENVIRONMENTAL CONTROL; AND JOHN GULDIE, RESIDENT ENGINEER.
Mr. KLEIN. Thank you.
Mr. Chairman, and gentlemen of the subcommittee. I am very grateful
and I promise to be very brief.
I had a discussion with you, Congressman Ambro, indicating that I had
two points that I wished to make here today, and then I will be
delighted to exchange points of view with you.
Very briefly, the one thing that this project, as you are well aware,
does not suffer from is the lack of publicity and public attention.
Indeed, at last count there were about 14 investigations of one kind
or another being conducted by a series of local, Federal, and State
agencies.
Several of these investigations and reviews are being conducted by
duly constituted and totally responsible agencies having a clear and
direct interest and also direct jurisdiction.
The county is, of course, cooperating fully in each case.
However, as I mentioned to Mr. Kopecky, in anticipation of this
hearing, your committee has expressed genuine concern with respect to
issues involving this project and others like it across the Nation being
conducted under the auspices of Federal legislation and Federal funding.
I, therefore, have an opportunity to address you today on two matters
which have much less spectacular value from the standpoint of publicity
than many of the other issues, but which are vitally important to this
project and to the people of Suffolk County, and which have a direct
application and relationship to other projects in the United States,
which are similarly conducted under the auspices of your legislation and
funding procedures.
The first relates to Federal funding and commitments by the Congress
to full funding under existing Federal legislation. This project is
eligible for and has received commitments for Federal and State aid to
the extent of 85 percent Federal, and 30 percent State. The problem
with respect to the Federal aid is one well known to this committee and
of deep concern to all of us -- that is the level of appropriation by
the Congress as opposed to the authorization.
Congress has appropriated funds to date only to the extent of 38.9
percent, and further appropriations by Congress are required to bring
the total Federal aid to 55 percent.
The county's financing plan is predicated upon that Federal
commitment for the full 55 percent. I need not, therefore, impress upon
you the urgency and importance of congressional appropriations to the
full extent of the commitment of 55 percent.
Mr. WRIGHT. Would the gentleman yield?
Mr. KLEIN. Yes, sir. /(())
Mr. WRIGHT. I understood you to say that Congress has appropriated
money only to the extent of 38 percent.
Let me understand what it is that you are saying.
You are saying we appropriated only 38 percent of the amounts that
were authorized under the 1972 Act?
I do not completely understand.
Maybe you are saying from congressional appropriations of the
administrative agency has allocated only 38 percent of the cost of your
program.
Mr. KELIN. I can defer to any members of the panel, but I confess to
you, Congressman, that I am not intimately familiar with the somewhat
fine distinctions in congressional language.
Mr. WRIGHT. I do not want to be esoteric in terminology, but there is
a distinction between what Congress appropriates for the total program.
We do not appropriate "on line" items for, as an example, sewer
construction.
We appropriate a total sum.
Now, perhaps what you are saying was that from congressional
appropriations the administrative agency has been able to allocate only
38 percent of the total cost of this project.
Mr. AMBRO. I think, if I may, and if you will, Mr. Chairman, yield, I
think what the county executive is saying is thus far the the project
has been funded to the tune of 67 percent of the 55 percent.
Mr. KLEIN. That is correct.
Mr. AMBRO. That you are entitled to a Federal share of 38 percent.
Is that correct?
Mr. KLEIN. That is correct.
The second issue pertains to legislation now pending in both Houses
of Congress. I refer to H.R. 9560 and S. 2710. Contained within those
two bills, in somewhat different form, are provisions which relate to
financing of sewer district projects having enormous import to the
Southwest Sewer District and projects of its kind in the northeastern
United States.
Obviously, I need not tell you gentlemen of the committee of the
impact of the State legislative moratorium on New York City obligations
in the fall of 1975.
For those of us in the fiscal fallout area of New York City, interest
rates on short-term borrowings went from 4 to 12 percent in a matter of
weeks and many governments, including the State of New York, were denied
access altogether to the municipal bond market.
Suffolk was able to obtain one bid on $54 million in sewer bonds in
January of 1976 and paid an effective interest rate of 9.77 percent
without the slightest change in our credit rating.
We were then able to obtain legislation authorizing negotiation of
the sale of bonds with a pledge of future sales tax proceeds as security
for the repayment of those bonds, and in August we sold $150 million of
Southwest Sewer District bonds at an effective interest rate of 8.9
percent.
We are now in the process of negotiating a further bond issue of $70
million for the district and $30 million for the county general
obligations to be issued in October with hopefully an improved interest
rate over the July issuance. /(())
However, 8.9 percent, the rate paid by us in July, is a far cry from
the kind of interest rates "which local governments can reasonably be
expected to bear.
The bonds which were issued in July are 35-year bonds and the
interest rates attributable to those bonds impact the residents of the
Southwest Sewer District for the 35-year life of the bond.
Obviously, therefore, access to interest rates of lower amounts can
make the tax burden of debt service for a local community considerably
less onerous.
Nowhere is that principle more relevant than the southwest sewer
district of Suffolk County, the largest single public works project in
the history of the county.
The provisions of H.R. 9560 and S. 2710 reflect a concern for the
very critical problem of interest rates for local government borrowings
for public works projects of this kind.
We at the local level, for the reasons which I have just outlined to
you, are strongly supportive of the concept of Federal legislation
providing for access by local governments to long-term money for sewer
projects at reasonable interest rates.
Obviously, the Congress, in adopting the Federal water pollution
control legislation and providing the funding, did so for the purpose of
encouraging local governments to engage in water pollution control
projects.
I assure you that local governments who are contemplating this kind
of project have been forced to think twice when they view their total
vulnerability to the vagaries of the municipal bond market.
A backup device such as that contemplated in the two bills and as
that originally contained in the 1972 legislation would obviously
provide a strong element of reassurance to local communities that they
cannot be burned by circumstances outside their own control as we have
in this region.
Furthermore, those of us who are alrady committed to projects are
desperately in need of assurances, as we continue to borrow to complete
the project, that we will have access to long-term financing at
reasonable rates of interest.
May I point out to you that one-half of 1 percent difference in an
interest rate in this project on the remaining borrowings required would
amount to $21 million savings to this district.
Every half a percent equals more than $21 million in savings.
I, therefore, welcome this opportunity to impress upon each of you
the urgency and importance of prompt Federal completion of work on the
two bills now pending in both Houses.
In accordance with our conversation, Congressman Ambro, I have kept
this presentation as concise and direct as possible.
We would, of course, be pleased to exchange points of view with you
on any of the other issues involved in the project and to put things
perhaps into a perspective from the county government standpoint.
I thank you for your attention.
Mr. AMBRO. I would like to defer to the Chairman because I think
although he cannot raise hopes here, he can at least tell you about a
significant ingredient in the present bill which is in conference which
might at least help. /(())
Then we can get to, as you put it, an exchange of points of view.
Mr. WRIGHT. Yes, Mr. Chairman.
Mr. KLEIN. Mr. Chairman, I do earnestly believe that there is a
provision in the House bill now in conference which could be helpful.
In fact, two members from New York State were the ones who sponsored
and fostered this amendment: Mr. Nowak and Mr. Ambro.
It permits the EPA to make a guarantee of loans from the Federal
Financing Bank for non-Federal share project where the grantee cannot
get funding at reasonable terms.
That is one-half of 1 percent above the current interest rate.
You could benefit from that.
This is where EPA determines there is reasonable assurance of
repayment.
That is about all there is to it.
The Senate has a provision of somewhat similar scope, but the Senate
bill would contain a requirement that would apply industrial cost
recovery funds and reimburse the funds received by the grantee.
In other words, if you have industrial cost recovery funds here that
you receive from industries, you would have to commit them to first
payment on this loan.
I do not know, but I should think it might be both useful and timely
if you were to contact the Senators from New York State.
One of them, I think Senator Buckley, is a member of that conference.
Mr. KLEIN. Yes, indeed. I have indeed discussed it with him.
He was responsible for having that provision included in the Senate
bill as it went to the floor.
I also discussed the matter personally with Senator Javits and, of
course, with our own three Congressman.
Mr. WRIGHT. That was the only suggestion I wanted to make.
Mr. AMBRO. Thank you, Mr. Chairman.
Mr. Klein, as you very well know -- I just say Mr. Klein in order to
have the regard reflect a formal hearing.
I do not usually call you Mr. Klein.
We call each other many other things.
Mr. KLEIN. None of which should appear on the record.
Mr. AMBRO. That is right.
These hearing touch on a variety of subjects that have come up before
us.
We have talked about auditing, impacts on the environment, economic
impacts, contracts, bonds, rates of money, and the like.
I wonder if you would mind if I asked a question of a couple of your
colleagues here in order to permit them to exchange views with respect
to earlier comments on all of this.
For example, we have a report from the GAO, which I commend to your
reading, which tells us at the bottom line, that no performance or cost
effective or, indeed, detailed audits have been conducted either by the
district, by the county, by the State, or by the Federal Government.
Now, I think Mr. Shapiro heads a relatively new group within the
Southwest Sewer District, an accounting staff which has some
responsibility for looking into this project. Is that correct, Mr.
Shapiro? /(())
Mr. SHAPIRO. Yes. I handle all the accounting and check all of the
claims and vouchers that are processed by the Department.
Mr. AMBRO. The kind of thing you do includes making a mathematical
check of each voucher prior to payment?
Mr. SHAPIRO. Right.
Mr. AMBRO. You check the project contract to make certain the work
on material claimed is part of that contract?
Mr. SHAPIRO. Right.
Mr. AMBRO. If the amount to be paid does not exceed the contract
price?
Mr. SHAPIRO. Right.
Mr. AMBRO. You have never made, though, a field check for an audit
have you?
Mr. SHAPIRO. No.
We have never had a field check or an audit because my staff is
insufficient to do so.
Mr. AMBRO. How large is your staff?
Mr. SHAPIRO. We have approximately three people on our staff that
handle the Southwest Sewer District.
Mr. AMBRO. Well, do you think an audit is important?
Mr. SHAPIRO. When you are talking about field audits, besides just
checking mathematics, we do get complete payroll records and every
payment is checked against the payroll to make sure the amount involved
is exact.
In addition, the county audit and control department does verify the
number of hours spent by each employee on the project per se, to make
sure they do not work in excess of the normal number of hours since all
overtime payments are paid by the contracts and not by the county.
We have not made a field audit per se. We do have engineering type
personnel who are present and who verify and check the quantity shown on
the periodical estimate. Every periodical estimate is checked and
verified by field personnel. It is signed by them. It is then
rechecked by the chief of construction to see if it is adequate and no
changes have taken place since the original work was done, and then
mathematically and otherwise check for property in connection with the
contract.
So that, there is a field audit in the engineering sense and in the
quantity sense.
The engineer does have logs, does have takeoffs, does verify the
accuracy of the quantity, number of tons of asphalt that has been laid,
the number of pipes that has been laid. We have a chargeback for failed
and untested pipe which has run sometimes as high as $800,000 on a
single estimate, which has been based on the failure to test or failure
to pass a test.
So, we do have auditing in the engineering area with the engineer
that knows as the project.
Mr. AMBRO. What do you mean by "engineering?" You check the physical
supply of materials against the contract. You check the price. You add
up the tab. You see that it is signed off and you pay it.
Mr. SHAPIRO. That is right but the man in the field actually watches
them dump the asphalt, gets the truck ticket. He sees the size of the
pipe and everything else. There is somebody on the scene /(()) who is
doing audit work, but he is an engineer who understands rather than an
accountant. I would not know one size pipe from another.
Mr. AMBRO. But, it is it a performance audit.
Mr. SHAPIRO. No; it is not a performance audit.
Mr. AMBRO. It is not a cost effective audit.
Mr. SHAPIRO. No; it is based on the unit price contract which we
have and he gets paid for every unit he puts on based on the unit price
contract, if it is done properly and it fulfills the requirements and
specifications.
Mr. AMBRO. Well, I have no doubt that the county has a check on the
mount of supplies and materials that come in and the amount of money
they pay for it. It is a relatively simple operation, which is not the
kind of audit I know that the GAO is tallking about.
I will move on to Mr. Imholz.
You represent the county contproller's office, but I think it is safe
to say that there has or there is no annual audit in the sense that I
just dealt with.
Mr. KLEIN. Excuse me; Mr. Imholz does not represent the county
controler. He is a member of the staff of the DEC.
Mr. AMBRO. I am sorry. Yes; Mr. Imholz is Deputy Commission of the
Department of Environmental Control.
Mr. Claussen is not here. Is there someone from the county
comtroller's office here?
Mr. KLEIN. Not that I know of. I do not know whether contact was
made with them or not; but, it was not requested of me.
Mr. AMBRO. Probably not. Then I will just say instead of asking
questions, that the county controller I think tells us that there is no
annual audit of each department. He says it is due to the staff size,
and the project is reviewed only in, as Mr. Shapiro points out, the
double checking of vouchers and signatures and things of that nature.
In any event, that is where the audit stops on the district and
county level. There is an absence of an audit.
I do not know if you heard this on the State level and, by the same
token on the Federal level. Without question, we are going to have to
address ourselves to that because I think that is something that each of
us is intensely interested in.
Mr. KLEIN. Congressman, I must say that I am out of my field in
talking about audits becuase I am a layman in that field. I am not
entirely sure I know what you meant. As you obviously are aware, the
accounts of the county are audited by the State at three intervals. The
Department of Audit and Control makes some audits of debts.
We are now moving to an outside audit of county affairs by an outside
firm, for which we requested proposals from major national accounting
firms for an outside independent audit. Now, perhaps I am not
perceiving what kind of audit you mean.
We will have a State audit, a county audit, and an outside individual
audit of every operation of the county government. Beyond that, I an
not certain I understand or grasp what issue you are talking about as
something different in terms of an audit.
Mr. AMBRO. I, too, am a layman in this field and all I can do is
provide you with a copy of the GAO report and devise in laymanlike terms
the meaning of the cost effective or design audit or performance audit.
/(())
I think what we are talking about here is an accounting of the
expenditures against materials which is done by the State and done by
your own inhouse group, but it does not relate in an interdisciplinary
way to contract performance standards, to design standards, to a
relationship between costs and effectiveness of the project under the
contract, which is the comprehensive kind of audit, not the simple kind
of accounting of materials coming in and expenditures going out with
proper vouchers and signatures, and additions and the like.
Mr. KLEIN. It seems to me that what we are talking about is
something that is done as a matter of course, as a matter of contract.
Mr. AMBRO. I would like to develop that for the record.
Mr. KLEIN. If you are talking about performance, there is and the
Commissioner or the chief engineer can describe in much more technical
detail, there is a procedure for not only inspection of the quantity and
quality of materials incorporated in the project, but also its
performance in terms of the purpose for which it was designed.
Now, to what extent each component is inspected or audited as to that
performance capability, I can defer to Commissioner Flynn or Mr. Graner.
Mr. AMBRO. I would just as soon hear from Mr. Flynn.
Mr. FLYNN. In the inspection of the project, the inspection is
carried out by two forces. It is carried out by people, engineers and
inspectors from Bowe, Walsh, and it is also carried out by an
engineering force and an inspection force from the Department of
Environmental Control.
In every case, the pipe is tested, the concrete pipe is tested, prior
to its delivery from the yard.
It must be stamped by the engineer before it is delivered on the job.
When it is placed in the trench it is inspected to see that it is put
in proper bedding, that the proper backfill takes place.
Upon completion of each manhole run, tests are run to determine the
infiltration and exfiltration rates within that particular manhole run.
All of that must be completed prior to payment for any portion of
that work.
Upon completion of any particular inceptor run when the as-built
drawings are presented, the Department has a computer program whereby we
can make a second hydraulic analysis of the pipe as installed to see
that the pipe will carry the quantities of sewage for which it was
designed and provide the velocity necessary to keep the solids in
suspension.
With respect to the sewage treatment plant, in that case, most of the
inspection staff consists of members of the Department of Environmental
Control.
We have on the site mechanical engineers, electrical engineers, civil
structural engineers, and civil engineers who specialize in sanitary
engineering.
We also have an inspection staff.
Every truckload of concrete that comes in is checked. Slump tests
are run on the concrete. If it does not meet the requirements, the truck
is not accepted. /(())
So, there is a continual inspection and review to determine that the
quantities as asserted by the contracts have been installed and are the
quantities which it says and there is an inspeciton to see that the
construction is in performance with the specificaitons and plans.
Mr. AMBRO. Now, you say the responsibility is shared between you and
the contractor.
Who has primary responsibility here and what is the size of your
relative staffs?
How many contract inspectors do you have as opposed to those directly
under your program?
Mr. FLYNN. The normal staff on a lateral contact, for example, the
normal staff for the consulting engineer would be approximately 8 to 10
individuals, depending upon the difficulty of the work.
It would be at least one inspector from Suffolk County Department of
Environmental Control.
In some cases, an engineer from the Department may come for two
contracts. To answer your question, the ratio would be approximately 1
to 8.
Mr. AMBRO. A good deal of testimony was heard about the overall
environmental and ecological impact of this.
I wonder if at this point in time, given all of the criticisms, Mr.
Flynn, if you could just sum up as succinctly as possible your views
with respect to the environmental and ecological impact of this sewage
system project.
Mr. FLYNN. I wil be glad to do that, although I am sure that my
assoiates will wish that you had never asked that queston because we are
of sick and tired of responding to it.
Mr. AMBRO. If I could just interrupt you a second.
You could give us a brief statement since you have said it many times
and I have heard you say it many times and then submit a lengthier
statement or any kind of documentations for the record.
But, I would like to complete the record by giving you an opportunity
to respond to all of the criticisms.
So, if you would like to do it that way, I would just as soon as you
did.
Mr. FLYNN. I would very much like to respond to what has been said
this morning, because, in my opinion, a great deal of misinformation has
been delivered to you gentlemen.
If I may, I will use the drawing of the Suffolk County Water
Authority.
One of the subjects which came up repeatedly this morning was the
question of the need for recharge.
I would like to point out that in 1962, when the first report was
written by the Suffolk County Department of Health relative to the need
for a sewer system in the five western towns, it was pointed out in that
regard that recharge would have to be considered as an ultimate disposal
method in the Southwest Sewer District, and in all subsequent sewer
districts.
Suffolk County in this particular area, which is roughly a
crosssecton of the district, has a ground water elevation of
approximately 70 or 80 feet above sea level.
Because of that type of fresh water above the surrounding salt, the
fresh water continually flows into the offshore waters. /(())
This area, which is indicted as the Magothy, you can see if you look
here, this is Fire Island, and the toe of that Magothy extends some
distance between 1 1/2 and 2 miles offshore in the Atlantic Ocean.
When a comprehensive water supply plan was prepared by Holtzmacher,
McLendon & Murrell for the County of Suffolk, one of the problems that
was given to them was to determine what would be the effect of sewering
the entire county upon the water supply.
A model of a cross-section of the county was prepared by MIT. It was
at the time, and probably still is the largest shore model that was
every constructed.
One of the problems that was placed on the model was what would occur
if we were to take all of Suffolk County, every single home of Suffolk
County, and discharge all that waste to sea.
The answer obtained from the model and the model has been verified by
the USGS and other people who have studied it, the answer was that in
300 years the salt water, fresh water interface would move a half a mile
onshore.
So, we do not regard at this time nor for many decades do we consider
that it will be a problem, that there will be a problem of salt water
intrusion, which will have an effect upon the water supply.
Now, a second item is the question of stream augmentation.
In 1972 when the work was commenced by the Department for the
construction of the southwest, we hired a consultant by the name of O.
L. Frockey.
Dr. Frockey had done the original work for the USGS in Nassau County.
He made a study upon the effect of the sewer 7 years after. We had
contracts with him and we have receive three reports from him which have
been paid for by the county.
This was to make a prediction of the effect of the sewering of the
southwest.
His report indicated to us that we could expect a 6-inch to 2 foot
drop along the shore and we could expect a 6 to 8 foot drop in the water
table along the northern boundary.
The effect that will be felt from that will be that there will be
decrease in stream run.
Approximately 30 million gallons a day flows into that great south
bay and it is estimated that there would be a 40 percent reduction in
that or a loss of the 12 million gallons per day which are currently
flowing into the bay.
The additional loss would be made up by the material which flows in
between the streams and into the Great South Bay, thus setting up what
is known as the salinity profile in the bay.
It should be pointed out that just on a year-to-year cyclic basis,
depending upon whether it is a drought period or wet period, the amount
of water flowing into the Great South Bay can vary anywhere from 190
million to 250 million gallons per day and we have had drought years
when there has been a reduction considerably below the 30 million
gallons that we are talking about and there is no reported data to
indicate that there was any great effect upon the productivity of the
shellfish industry in the Great South Bay.
Nevertheless, the county again, as early as 1972 hired Holzmacher,
McClendon, and Murrell to perform a study of the Carll's River; the
purpose of that study was to provide us with information necessary to
carry out a stream augmentation program because we felt that that /(())
would be the thing that would be first required to protect or to offset
any environmental damage.
The study was completed by them.
It has been picked up by the 208 planning group, and their consulting
firm by the name of Teff & Teff.
They are preparing a final model of the Carll's River.
We have recently agreed with the EPA to undertake a study of the
Nanequet and the Santapog. We would do that with our own staff in-house
so we could furnish additional information to Teff & Teff to develop the
modeling of 3 miles of those particular streams in order to determine
what stream augmentation program will be needed to be carried out and at
what point in time we will have to enter into it.
So, there are two points I want to make.
First of all, the question of salt water intrusion. Salt water
intrusion to an extent where it threatens the water supply, is something
that is decades away, in my opinion.
In my opinion it is 100 years away before we need concern ourselves
with it.
The county, incidentially, through its capital program funding made
provisions for Fire Island on the Barrier Beach for a seven-well site
with three wells at each site, which would be outpost wells into the
Magothy, to catch at the earliest opportunity any movement of the salt
water interface toward the mainland.
One final thing, and that is the question of use of the Magothy by
the Suffolk County water authorities, as a source of water supply.
I would like to point out that in 1958, approximately 1958, 85
percent of the water obtained by the Suffolk County Water Authority in
southwestern Suffolk came from the upper glacial aquifer. That became
so polluted that it has been completely abandoned.
The water is withdrawn from the Magothy, and there is no assurance
that the Magothy will remain uncontaminated.
In Nassau County, in the Magothy in those areas where sewers have not
been installed, Magothy wells are 400, 500, and 600 feet deep, and a
total of 25 already have failed to meet the standards for nitrates.
One final thing.
The question of sewers for the protection of the water supply has
been discussed.
We need the sewers for the protection of the Great South Bay.
There is one other need for sewers that has not been discussed, and
which should be understood.
If you were to take, for example, a cesspool that was 10 feet in
diameter and the average family were to save all of their sewage for 1
year, you would have in front or wherever you have a cesspool, a 10-foot
cylinder 240 feet high, which is raw sewage.
I think if someone were to go to the Southwest Sewer District and see
80,000 of those columns and be told by pushing a button they could drop
them down into the water supply each year, I think the need for sewers
should become at that point very apparent.
Another need arises. The need for expansion of the scavenger waste
treatment service.
The cesspools are failing down there. They are failing in greater
numbers all the time. /(())
A failing cesspool causes a number of problems.
It not only creates problems with the runoff into the surrounding
waters, in those areas where it is being carried away by storm water,
but there is also the matter of dogs and children walking through the
sewage from overflowing cesspools. There are areas down in that
district where you cannot walk around the yard without walking in
sewage, and that, in itself, is a serious health problem.
I do not know if you have any more questions.
Mr. AMBRO. Just a wrap up.
I think from what you say it is your opinion that the criticism in
terms of the need for this project -- some people went so far as to
recommend a moratorium -- the design of this project, the impact not
only on the fresh water pressure barrier, but the ground waters and the
salinity, really on balance are not problems sufficient to warrant any
consideration of a termination or a moratorium on this project.
I am talking about the environmental ecological impact, not the
economic impact.
Is that correct?
Mr. FLYNN. Absolutely.
To declare a moratorium to stop this project would have a very very
serious environmental effect upon the surrounding area, as well as
allowing the continuation of a very serious health problem.
Mr. AMBRO. And the recommendations for recharge, and whatever
recommendations might be made in terms of length of the outfall are not
really valid recommendations.
The design of this project, in your view, with the outfall part and
the secondary treatment system, has the capability to do the job that it
was intended to do under the original design.
Is that correct?
Mr. FLYNN. That is correct.
I would like to point out, too, in Suffolk County we have 103 sewage
treatment plants.
Of those 103 sewage treatment plants with a total dischage of 14
million gallons, there are 90 of those treatment plants which are
recharging as they are discharging their effluent back into the ground.
The total there is roughly 7.4 mgd.
So, currently 40 percent of the sewage we are collecting in Suffolk
County right now is being returned to the ground.
Of those 90 plants that are doing that, 29 of them are advance waste
treatment plants or tertiary plants were denitrification occurs prior to
the discharge of the effluent.
That amounts to a total of approximately 1.75 million gallons per
day.
Mr. AMBRO. Well, Mr. County Executive, I think your original
characterization of our discussion was accurate.
We have exchanged views and Mr. Flynn's testimony comes diametrically
opposed to that which was heard earlier today.
Mr. AMBRO. Mr. Wright?
Mr. WRIGHT. Yes.
I keep hearing testimony about engineering fees.
The GAO report indicates that one firm through July 31 of this year,
a firm known as Bowe, Walsh & Associates, already has been paid about
$30 million. /(())
I gather that in addition another approximate $10 million has been
paid to other consultants.
On page 13 of the GAO report you read the following:
In June 1976, Price Waterhouse and Company estimated that the total
costs of engineering services through project completion would amount to
between $72 and $80 million.
Now, that is for engineering.
I certainly have no aversion to engineers.
I have a great respect for engineers.
I am just curious about something.
Any of you who were connected with the county government at the time
of these engineering estimates, did it occur to you that that might seem
fairly excessive?
Did anyone ever think that sounded like an awful lot of money to pay
an engineerng firm?
Mr. KLEIN. Mr. Chairman, I can give you a preliminary answer to that
and then defer to my colleagues.
I may be in error, but I believe page 13, the reference by GAO to $72
and $80 million includes all engineering fees, including special
services as well as design on a $612 million project of a rather complex
nature.
I might give you a quick prospectus as to how the selection process
is undertaken.
It was done, commencing in 1970, I believe, by the designation of the
committee consisting of the presiding officer of the legislative body,
which was me at the time, by the county executive, who was my
predecessor, the director of planning of the county, by the commissioner
of public works, and by the commissioner of the department of
environmental control.
The selection criteria in terms of fees related to what was
apparently clearly a then accepted practice not only by the county
government and other local governments, but by indeed the State of New
York and the Federal EPA, and that was to use the scale developed by the
engineering industry nationwide, and those contracts were then entered
into on that basis, predicated upon a review of various submissions or
expressions of interest by engineers.
All of the awards were done on a unanimous basis by a bipartisan
committee.
You would have no way of knowing the political persuasion of the
members of that committee, but I would ask you to accept my
representation that that is the case and it was done in each case on a
unanimous basis.
It was not until, I understand, recently, based upon urging by the
GAO, that the Federal EPA will not approve future awarding of contracts
subject to Federal aid on a basis of cost percentage of the project.
But, you are now hearing from a former practicing lawyer who does not
have the kind of expertise to make judgments as to the value of
engineering services.
What I did do was rely, as did many others, including the former
county executive, who was an engineer, I relied upon what were then
generallly accepted and utilized procedures, all of which, of course,
were approved by the State of New York and the U.S. Government. /(())
Mr. WRIGHT. I really was not asking about the procedures nor was I
attempting to be critical in any sense.
I do not know the firm. I do not know anything about them.
I have to assume they are good people.
According to the GAO report the firm is selected on the basis of the
evaluation of the questionnaire submitted by 59 consulting firms.
Presumably, you have had some experience with these firms.
GAO says the same firm had previously performed an engineering study
for public sewage disposal facilities in the county and had been the
consulting engineer to the Suffolk County Sewer Agency.
So, I do not quarrel about the selection of the firm.
What I am getting at is, you have already paid this firm $30 million.
Do you feel that you got your money's worth?
Mr. KLEIN. Are you asking me in my capacity as a laymen or a public
official?
Mr. WRIGHT. Public official.
Mr. KLEIN. I think so.
I think there has been a great deal of question raised about that.
This firm, indeed, was selected by the State of New York to do the
basic underlying comprehensive review of the need for sewers in Suffolk
County, western Suffolk County, and we are sure of one thing, and that
is if there is anybody who believes that we did not get our money's
worth, with the several investigations currently in progress, they have
had the opportunity to indicate that.
Mr. WRIGHT. I think you misunderstand the direction of my
questioning.
I am not saying it is a bad firm.
I am not asking if they are good people.
I am asking you if what they did for you was worth $30 million?
Mr. KLEIN. I think I answered that.
I have no indication that the services performed were not equal to
the value of compensation paid.
They were in accordance with the prenegotiated contract.
The work was performed and the payments made.
Now, that may be oversimplistic, but I am trying to answer your
question as directly as I can.
Yes.
If indeed there is some indication that it was not worth what we
paid, that should certainly become evident from the multiplicity of the
reviews that are now being made.
At this moment, however, I do not have such indication.
Mr. WRIGHT. Well, was the engineering firm's fee paid on the same
basis that other costs were paid?
That is, out of bond money, money that was raised by bonds?
Mr. KLEIN. They are paid from general revenue sources for the
District, whch include the proceeds of bonds plus other revenues,
including amortizing investments, which were considerble during the
time.
Not only this firm is paid on that basis, but all the firms are paid
on this basis.
Mr. WRIGHT. I am perhaps showing my ingorance of the real value that
an engineering firms performs and certainly I believe any laborer is
worthy of his hire, anyone who performs a service is entitled to be
remunerated for those services. /(())
It just occurs to me that with 83,000 families in the sewer system,
$30 million already paid; the average household has obligated itself to
$364 to the engineering firm.
If that money was paid out of these bonds and it is going to be
amortized at that rather high rate of interest, it could be $750 per
household.
I just am sort of curious as to whether a fee of that size or total
fee is in the range of $72 milion to $80 million to an engineering firm
or a group of engineering firms amounts to something unusual?
If you take those figures of $80 million, which is the high figure,
and would assume that the average household was paying $1,000, and if
that were paid for out of bonds, 90 percent would be paying somewhere in
the neighborhood of $2,500 to $3,000, the average household, for
engineering work.
I am curious. That is all.
I just wonder if engineering fees of that magnitude are usual,
customary, or if they are unusual. I should think, Mr. Kopecky, that we
might want to inquire of GAO and ask them to do an analysis for us on
engineering fees paid on contracts and see how typical this is. It may
be very typical.
I would be somewhat curious also as to how much money is expended by
an engineering firm in pursuit of the contract, $30 million just seems
like such an awful lot of money to me.
I wonder how much work was actually performed. I wonder as to the
salaries to the members the engineering firm has hired and all the
different expenditures they have had. How much of it is profit? How
long did it take to do the work? All that sort of thing. I should like
to suggest we ask the GAO to make an inquire into that.
Mr. KLEIN. Congressman, might I reply to your question?
Mr. WRIGHT. Surely.
Mr. KLEIN. Because I think there is a fundamental problem with your
premise.
You took the engineering firms and then extrapolated it into the cost
per house in the district.
I would respectfully point out to you that a great deal of those
engineering fees are not paid indeed by the houses in the district, but
by the U.S. Government and by the State government.
Mr. WRIGHT. That makes it even more interesting to me.
Mr. KLEIN. That was the point I was driving at, Congressman, that we
would certainly not have expended those fees at those rates under these
contracts without the prior consent and approval of the U.S. Government
and the State of New York.
Mr. WRIGHT. Mr. Klein, you are not saying to me that if it had been
all county money, you would not have spent that much; are you?
Mr. KLEIN. Certainly not.
I would not make any such ludicrous suggestion.
What I would say to you, however, is that I think it is an unfair or
somewhat unbalanced analysis to ascribe the full course of engineering
fees to the burden on the district while not doing so with the
construction cost and other costs.
Mr. WRIGHT. Let us do it fairly then, Mr. Kopecky.
Let us extrapolate enough information or ask the GAO to do so, to
find out how much of this was attributed to local households and how
much of it was paid by the U.S. taxpayers. /(())
You know, we may find out that we got a good bargin. We may discover
we really got our money's worth. We may discover we did not overpay
anybody. I am not trying to leap to the conclusion that we did. It just
strikes me as unusual and perhaps I am showing my lack of sophistication
in implying that. It might be usual.
I am curious to discover if it is.
If it is commonplace practice throughout the United States for that
kind of money to be paid to engineers and consultants, then I want to
find out if the country is getting its money's worth. That is basically
it.
Mr. KLEIN. Congressman, could I ask probably a very fundamental
question?
I would presume that in your asking GAO to do so inherent in your
request would be for GAO to make an analysis of the method and amounts
paid on projects of a similar nature in this region by other local
governments similarly funded by the Federal and State Governments, as
well as across the county.
Mr. WRIGHT. I am not trying to point a finger of scorn to Suffolk
County and indeed that was inherent in the suggestion that I have made
for the directing of the request; that we check other communities and
discover how common this is.
We may find this very common and that it is nothing unusual for an
engineering firm to get $30 million in a project like this.
If so, I am curious to know how much is profit and how much of it has
been actually expended. I am not antiprofit. I believe in the profit
system. But, I am curious. That is all.
This has intrigued my curiosity; the sudden realization that
engineering fees could go as high as $72 million or $80 million. I want
to find out about it.
Mr. KLEIN. I would also say, yes, those are large numbers. So is
the project cost. So is the amount of work requried in order to justify
that compensation.
I get the impression, and I am sure it is erroneous, that you are
viewing the total amount of compensation of the engineer without
reference to its relaionship to the total cost of the project. I am
sure that that is not correct, but I get that impression. Obviously, it
is a large number if indeed it bears a disproportionate or inordinate
relationship on the total cost.
Mr. WRIGHT. I understand it was based entirely upon the cost of the
project. I am laboring under no illusion there. That was the basis on
which compensation was determined under the terms of the contract.
I am not concerned abou that. That very fact, I think is
interesting.
I am curious to know whether that indeed could set up subtle
incentives to make projects more costly. I hope that is not true and I
am not casting aspersions upon the integrity of the engineering firm. I
am simply raising the question, which I think is a question in which the
interest of the taxpayers of the United States deserves a frank answer.
On page 15 of the GAO report it says:
The GAO has consistently advocated that cost plus percentage of cost
contracts should be avoided because they give contractors positive
incentives to inflate contract costs to increase their profits. We
reported our views of such contracts to EPA in August 1974 and again in
May 1975. Since March 1, 1976, EPA has prohibited engineering contracts
which base fees on a percentage of /(()) construction costs, because
such contracts provide no incentive for designing the most economical
facility.
Now, in reciting that, I accept your statement that it was a common
practice.
I am questioning for the purposes of the future whether it is a wise
practice.
Mr. KLEIN. I understand.
Congressman, with your consent, Mr. Flynn, would like to make some
comments with respect to theis issue.
Mr. WRIGHT. Certainly?
Mr. FLYNN. The matter of the engineer increasing his fee, so to
speak, by increasing that size of the project is something obviously
people can speculate upon, but the fact is that there are provisions and
there are means to prevent that.
Any plan that is prepared by the design engineer must first be
submitted to the department of environmental control.
We have on our staff engineers again who are electrical, mechanical,
civil, structural, hydraulic, as well as engineering technicians.
Every sewer site that is presented to us is checked on the computer
to see that the design flow and the size is proper.
When we are satisifed with it, then those projects which are eligible
projects or are subject to State and Federal aid, they, in turn, are
sent to the New York State Department of Environmental Conservation and
then to the Environmental Protection Agency and in both of those places
engineers again review the basis of design.
So that the design by the engineer is reviewed on three levels prior
to its ever going out to bid.
So, there is certainly not any opportunity for them to overdesign
without at least three people picking it up.
Mr. WRIGHT. I understand that system.
Mr. FLYNN. I would like to just add one additional point with
respect to the total engineering fees paid.
If you look at the cost of the job, which is approximately $660
million, or $606 million, it is normal in a public works project of that
type, for the total engineering costs, including design and supervision
of construction, to fall somewhere between 10 and 12 percent.
In planning for any type of project like that, that is normally the
number that is used by any community which would be trying to determine
what the total cost of that project would be.
Now, the figures which you have come up with fall within that 10 to
12 percent.
Mr. WRIGHT. That is right.
Mr. FLYNN. Well, that is a normal figure that those such projects
run.
Mr. WRIGHT. I just wonder if there is not some kind of a curve where
the percentage would decline a little bit as the total figure goes up.
Mr. FLYNN. The curves that we use, the ASCE curves, do decline as
the amount of the job increases.
However, they plateau and level off at $100 million.
Mr. WRIGHT. $100 million?
Mr. FLYNN. That is correct. Yes.
Mr. WRIGHT. That is a pretty big figure. /(())
Mr. FLYNN. Not $100 million fee, $100 million in construction.
On the curve that is applicable in Suffolk County, the 1968 ASCE
curve, it was 5.2 percent at $100 million.
Mr. WRIGHT. Mr. Flynn, I appreciate that information.
I am not competent as an individual to judge the appropriateness of
these fees.
They simply seem very high to me as a layman and that is the reason I
am asking additional comparisons and inquiries be made.
We may discover that it is common practice.
But, I think we ought to find out.
Mr. FLYNN. I think it is a common practice among many professions,
including attorneys' fees.
They charge a percentage of whatever moneys are either earned through
a lawsuit or whatever, to collect the percentage of that.
So, percentage of a project cost for fees is not unusual.
Mr. WRIGHT. Of course, that is true, Mr. Flynn, and I am not at all
unaware of contingency fees and lawsuits and things like that.
In this instance, however, it is the taxpayers' money we are talking
about. We are not talking about a private person wanting to take a
gamble with a lawyer as to whether he can win a lawsuit.
We are talking about an expenditure of the taxpayers' money.
I see my personal responsibility to be interested in a wise
expenditure and prudent expenditure, and an economical expenditure of
the taxpayers' money.
That is all.
Mr. KLEIN. Mr. Congressman, may I also make one other point, which I
think is directly relevant to your concern of the relationship to the
engineering fee dollar amount versus project cost?
I would ask you not to lose sight of the fact, and I am sure your
staff has informed you of this or at least has this information
available for you, that within the engineering fees are fees for
services in addition to design.
Mr. WRIGHT. Supervision.
Mr. KLEIN. Correct, and special services.
The point I am driving at is that the county is currently evaluating
utilization of county personnel on these special services on direct
payroll.
Obviously, there would still be an expenditure. Our analysis has not
yet convinced us it would be more or less.
What I am saying to you is had the county opted from the inception of
this project to utilize county personnel on payroll for services which
were contracted for, the amount of engineering fees would have been
monetarily significantly less.
Therefore, it is, I think, misleading to view the engineering fees as
being totally related to design, which in turn is related to the cost of
the project.
We are not confident at this point that we can prove that it is less
expensive or more expensive for these services to be on payroll, but had
they been from the inception the dollar amount to the engineer would
have been significantly less.
Mr. WRIGHT. I should not want to mislead anybody.
I really do not see how one could conclude that I have said anything
that was misleading since I have reached no conclusions. I have simply
asked questions. /(())
Mr. KLEIN. That is what I hope was the point.
Mr. WRIGHT. I do think it is important.
Let me find out if one firm gets paid $30 million, how much that firm
expended, how many people it employed, how much work it did to earn that
$30 million, how much of that is profit.
I think that is a valid question.
Mr. KLEIN. I agree.
Mr. WRIGHT. The purpose of the water pollution program for which we
appropriate Federal taxpayers' money is to help communities such as your
own to clean up the wastes and purify the waters to protect the public.
Now, I am not suggesting the firm has been unjustly enriched.
Initially, I was prepared to drop it after having suggested the
inquiries for the GAO to make.
The subsequent colloquies have broadened the scope of the discussion
and I am perfectly willing to sit here all afternoon and discuss it with
you.
I am perfectly willing to let it drop right now.
I should not want anyone to suggest, though, that I was misleading
anybody because I have not misled anybody.
I have just asked questions and I think that they are valid
questions.
I think they are questions to which the people of the United States
deserve an answer.
Mr. KLEIN. I did not intend to implicate that you misled anybody.
I have attempted to do what Mr. Kopecky advised me was my function;
to provide you with assistance and perspective. I am trying very hard
to do that, Mr. Congressman.
Mr. WRIGHT. I appreciate your patience with us and the information
you have disclosed to us.
You have done a fine job of helping us to understand this problem.
Thank you for that.
Mr. AMBRO. I think one of the problems here, John, is that according
to the DEC breakdown expenditures on the project through April 30, 1976,
we have an outgo of money of $181,199,318.
The figure of $30 million, even though it is incomprehensible to
those of us who are grossly underpaid --
Mr. KLEIN. I am glad you used the pronoun "us."
Mr. AMBRO. Well, I did.
The $30 million paid out at this point with respect to that figure
seems exhorbitantly high.
I think that is really the crux of this. It may not be.
Indeed, I would hope, Mr. Chairman, that the analysis by the GAO
might also include how much money in dollars at this point in the
project is paid out in engineering fees, vis-a-vis the amount of money
that is paid out in construction costs, so that maybe we can see related
to other projects in the United States how much off we might be in terms
of these incomprehensible figures.
Mr. KLEIN. May I ask Commissioner Flynn to address himself to the
question of front-ending engineering fees?
I think that may be helpful in your concern.
Mr. AMBRO. Surely.
Mr. FLYNN. The basis on which the engineer is paid is a design fee
of roughly 5.3 percent. /(())
He is paid 20 percent of his fee upon completion of preliminary
engineering report. Upon completion of the design specifications to a
point where the project is ready for bid he is paid 80 percent.
When the project is bid upon and the contract is awarded he is paid
90 percent.
Now, when you see the $30 million versus the $180 million, the fact
is that the design of the project is well in advance of the release of
the construction contract.
Mr. AMBRO. Does that breakdown as you pay, include at each step;
costs for supervision, inspection, and things like that?
Mr. FLYNN. No.
Mr. AMBRO. That leaves 10 percent then.
Mr. FLYNN. No.
The final 10 percent is for consulting services during construction.
Now, these are not inspection services.
Consulting services during construction are for those instances where
it may be necessary to alter a plan because of field conditions
encountered, where it may be necessary to interpret a plan, where it is
necessary to review shop drawings for special structures that may be
installed in the project.
Mr. AMBRO. Well, I really do not want to belabor this because I just
wanted to wrap up with one question, if I can, and then move on to the
EPA.
It is not that I mean to cut it off, but I think we have pursued it
at great length.
Is it true that the design costs at this point in time equal special
service costs?
Mr. SHAPIRO. No.
I have the figures here as of August 31.
I would like to point out the fact that actually the fee of $30
million is not versus $181 million, which is dated April, but as of July
31.
There was a great sum of money between April and July that was paid.
In fact, we have an August report that has been submitted to the GAO
and the other authorities which indicates that there is $207 million
expended as of August 31, and that the total engineering fees are $38
million against $207 million total as of August 31.
These have been supplied to varioius parties.
Out of that amount $18 million is design fee for all consultants on
all portions of the southwest sewer project.
The remainder of the $19 million has been spent on special services
and other work.
Mr. AMBRO. What was the last figure?
Mr. SHAPIRO. The total amount expended actually is $38,705,985.10 as
of August 31, of which the design fees earned were $18,876,855.03, and
less a retainage amount, which is retained in the early portion of the
contract, and the actual payment of design fees was $18,009,022.32.
These are the figures as of August 31.
Mr. AMBRO. And the balance is?
Mr. SHAPIRO. That is it.
This is the total amount.
It is $38 million less $18 million and the rest is for special
services, subcontracting, and other special services. /(())
Mr. AMBRO. That is $20 million?
Mr. SHAPIRO. Approximately, yes.
MR. AMBRO. The statement was approximately correct.
Mr. SHAPIRO. But, the time element is quite different.
The design fees are paid before the job is done, whereas the
construction fees and inspection fees are done during the time of the
construction.
So, there is no real time relationship between the two numbers.
Mr. AMBRO. Well, I just wonder, Mr. Klein, with respect to the time
that you have been involved in all of this, the time that you have
responded to criticisms, and attended hearings of this nature, the times
that you have gone to Washington seeking funds, the times that the local
taxpayers tell us the costs are to high -- some people say 60 cents per
hundred of real value to $1.38 per hundred of real value, $20 a foot for
hookup -- all of the political screams you get for seeking a 1-percent
increase in sales tax, criticism that the district is both losing homes
and keeping homes and business out by virtue of the costs, the attacks
by other public officials, all of the criminal investigations involved,
even offset by Mr. Flynn's evaluation that it has a beneficial
environmental impact, do you think the Southwest Sewer District on
balance is worth it?
Please answer in one word or less.
Mr. KLEIN. Yes.
I can add a couple of words.
First of all, as you are well aware, Congressman, this is a project
which dropped into my lap in this new position of fame, fortune, and
popularity that I now occupy.
But, I really believe that this project is a response by a local
community with encouragement by the Federal and State government to deal
with a clear environmental and health concern and that, in a word, is to
discontinue discharging 30 million gallons of raw human waste per day
into the container from which we draw our drinking water and into the
largest single natural resource of the county; the Great South Bay.
I could have thought of a lot of other ways that I would have liked
to have spent my time since last October when the roof fell in on the
bond market and threw the entire project financing into dislocation, but
it is a job that must be done.
It is my responsibility to make my best judgment as to how and
whether it should be done, all of which leads me to answer your question
in the affirmative.
Mr. AMBRO. Well, I appreciate it.
I can sympathize with the times you have been through.
In good measure, I have been through an awful lot of them, too.
These hearings are not only investigative in nature, but they also
can serve, even in the face of all of the criticism and the hostility, a
very useful purpose, not only legislatively, but in terms of helping
financially with formula changes, with appropriations to implement
existing law, with increase from 55 to 75 percent, even though at some
point in time it seem as if it would never pass, with the amendment that
Congressman Wright suggested that might be applied to this project, with
other amendments to water resources which might be used to do the things
that we heard about from environmentalists. /(())
We are bringing, therefore, into this county a larger flow of Federal
money and helping to, as our illustrious President is fond of saying,
bailout the project, and we are certainly easing an already oppressed
taxpayer in the district and indeed throughout Suffolk County, who might
be liable if anything catastrophic happens here.
So, hopefully, all of the kinds of negative views that come from this
might assure that through legislation, that the oversight is better, the
quality is better, the practices and policies are better, but also
funding might be better.
Again, I hate to give anyone false hope of putting them in a period
of rising expectations, but I hope something on balance could devlop to
insure environmental benefit, to stabilize costs, and to come up with a
project that does all of these things that each of us hopes to have
accomplished.
So, we all sit here and listen now, and hopefully all of the
information generated, some of which is quite startling, I think, might
have a good effect.
It might have a good effect there, but certainly it will have a
better effect in terms of all of the projects throughout the United
States.
Mr. KLEIN. My concluding remarks is, if we could have converted the
expressions of interest and outrage into dollars, we would not all be
here today.
But, we are not able to do that.
I am convinced of your genuine concern with those portions of the
outcome of these hearings which indeed can be of value not only to
Suffolk County in the Southwest Sewer District, but projects of its
kind.
It is for that reason I took the liberty of exercising the option of
making the few points that I did at the inception and they can indeed be
extremely important to the future of the financial liability of local
governments all across the country.
Mr. AMBRO. Given our limited salaries, we all pay taxes.
I appreciate your coming here today, and I appreciate all of your
testimony.
Again, I encourage any kind of document, written statement, for the
record.
I urge you to do that in order to respond, if you like or comment on
anything that has been said thus far.
Mr. KLEIN. Thank you very much.
Mr. AMBRO. Lastly, I would like to call forward the representatives
of the Environmental Protecton Agency, Mr. Gerald M. Hansley and his
associates.
You have an awful lot to comment on. I do not know how you would
like to work it. It is late in the day.
You are last before us and deliberately so, beauase we wanted to give
you the opportunity since you have direct Federal oversight
responsibility for this project, to comment last.
If you would suggest a procedure, it will be fine with me.
You can comment now, take up each point individually, and make the
record complete as best you can with a verbal statement and augment it,
since we have 2 weeks to provide statements, by anything else you would
like to submit later.
HRG GRA
760924
GERALD M. HANSLER DAVID LUOMA RICHARD SALKIE RICHARD L. CASPE PAUL
MOLINERI
REGIONAL ADMINISTRATOR, REGION II, US ENVIRONMENTAL PROTECTION AGENCY
DIRECTOR, WATER PROGRAMS, REGION II, US ENVIRONMENTAL PROTECTION AGENCY
CHIEF, NEW YORK CONSTRUCTION GRANTS BRANCH, US ENVIRONMENTAL PROTECTION
AGENCY NEW YORK GRANTS SECTION, US ENVIRONMENTAL PROTECTION AGENCY
PROJECT ENGINEER, US ENVIRONMENTAL PROTECTION AGENCY
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST COUNTY, LONG ISLAND, NEW YORK) 1976, PANEL CONSISTING OF
GENALD M. HANSLER, REGIONAL ADMINISTRATOR, REGION II, U.S. ENVIRONMENTAL
AGENCY AND OTHERS (PP 139 TO 166)
--
--
94-2
--
CW220431 CW220458 /
04500
(())
PANEL CONSISTING OF GERALD M. HANSLER, REGIONAL ADMINISTRATOR, REGION
II, U.S. ENVIRONMENTAL PROTECTION AGENCY; DAVID LUOMA, DIRECTOR, WATER
PROGRAMS, REGION II, U.S. ENVIRONMENTAL PROTECTION AGENCY; RICHARD
SALKIE, CHIEF, NEW YORK CONSTRUCTION GRANTS BRANCH, U.S. ENVIRONMENTAL
PROTECTION AGENCY; RICHARD L. CASPE, CHIEF, NEW YORK GRANTS SECTION,
U.S. ENVIRONMENTAL PROTECTION AGENCY; AND PAUL MOLINERI, PROJECT
ENGINEER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. HANSLER. Thank you, Chairman Ambro.
We did prepare a statement in advance
It was delivered to Mr. Kopecky last night in sufficient quantities
for the subcommittee members we thought would attend.
I am sorry that we could not get it into your hands 48 hours in
advance, but, as you understand, everybody has been rushing around with
the closing days of the congressional session.
There have been several billion dollars involved in other projects we
have here in EPA region II as well as Suffolk County, which has taken a
lot of time.
We appreciate this opportunity to discuss with you, and anyone that
as testified here, the issues surrounding the southwest suffolk project.
Mr. AMBRO. I wonder, Mr. Hansler, if you would just suspend for a
minute.
This is your written statement.
MR. HANSLER. Yes.
I am not going to read it.
Mr. AMBRO. I understand that.
At this point, without objection, I would like to include the entire
statement in the record with, of course, the complete understanding that
you can augment it during this 2-week period in any way you want.
(The statement referred to follows:)
STATEMENT OF GERALD M. HANSLER, P.E., REGIONAL ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, REGION II
Mr. Chairman, I appreciate this opportunity to discuss with you and
the subcommittee members the Suffolk County Southwest Sewer District
project.
Congressional as well as local interest in this matter has been high
for several months now, and many questions have already been raised by
Messrs. Kopecky and Prolman of your Subcommittee staff. Though other
specific questions or issues may be aired today upon which we may shed
some light, we believe it important that matters already raised be
"fleshed out" with facts.
Following are those important facts concerning this project. I will
not burden the Subcommittee by reading the statement, but hereby present
it for the record.
Accompanying me to address any specific technical questions are:
David A. Luoma, Director, Facilities Technology Division.
Richard C. Salkie, Chief, New York Construction Grants Branch.
Richard L. Caspe, Chief, Metropolitan New York Construction Grants
Section.
Paul J. Molinari, Project Engineer, Metropolitan New York
Construction Grants Section.
Also present to represent the Environmental Protection Agency EPA),
should any questions regarding national construction grants program
issues be raised, is John Rhett, Deputy Assistant Administrator for
Water Program Operations. /(())
I. HISTORY
In January 1962 Suffolk County published a report on the need and
feasibility for public sewage disposal facilities in western Suffolk
County. The objective of this report was to gather all pertinent data
necessary to make a determination of the need for the extent of such
facilities. The report indicated an urgent need for sewers in the Five
Western Towns due to rapidly increasing population coupled with evidence
of domestic and industrial waste materials in the water supplies of the
more populated areas. This proposal to develop a rational plan for
collecton, treatment and disposal of wastewater also recognized the need
for protecting and preserving water resources for both water supply and
recreational uses. Through the recommendations of this report, a
further detailed investigaion for comprehensive sewage planning was to
be undertaken.
In August 1963, an engineering contract was executed by Suffolk
County with the New York State Department of Health pursuant to Article
12, Section 1263-a, of the Public Health Law to prepare a comprehensive
study and report of sewage facility requirements in the Five Western
Towns of Suffolk County. This project was designated by the State as
WPC-CS-20. The comprehensive report, consisting of 12 volumes, was
completed in 1965. It proposed ten disposal districts covering the Five
Western Towns of Suffolk County. Comprehensive Sewerage Plans were
included for each of the disposal districts as well as appendices on
alternate studies, recharge considerations and other pertinent subjects
necessary for comprehensive planning in these areas. Subsequent to the
approval of this Comprehensive Report, a program was initiated by the
County, pursuant to the recommendations of the report, to establish
County Sewer Districts in the more densely populated areas, especially
the disposal District No. 1 area.
In September 1966 an engineering report was completed for public
hearing on establishing Suffolk County Sewer District No. 1. This
proposed Sewer District No. 1 was established and presented in the
Comprehensive Report, WPC-CS-20, as Disposal District No. 1. A public
referendum was held on this proposed district in November 1967, and it
was defeated by a margin of approximately six to one. Subsequent to
this defeat, the County, through the newly-created Suffolk County Sewer
Agency, undertook an evaluation of the areas being served and developed
a modified district based upon the 1966 plan and alternatives as
presented in the Comprehensive Plan.
In March 1969 the engineering report, altering the previously
recommended boundaries of Disposal District No. 1, was completed for the
Suffolk County Sewer Agency. The new boundaries were consistent with
the urgent need for public sewers, especially in high groundwater areas,
and also considered the need for comprehensive planning of such systems.
This proposed district was called the Suffolk County Southwest Sewer
District No. 3.
Maps showing the original proposed Disposal District No. 1, and the
Southwest Sewer District No. 3 with its Northern Tributary Area (NTA)
/#/ are attached. The Southwest Sewer District No. 3 was presented to
the people and approved by referendum in November 1969.
((/#/ The Northern Tributary Areas was included in the design of
Intercepting Sewers and outfall sewer to insure conformance of the
proposed sewer district with comprehensive regional planning for the
area.)) /(())
Configuration of the Southwest Sewer District
GRAPHIC OMITTED
/(())
GRAPHIC OMITTED
Orginal Configuration Sewer District No. 1
II. FEDERAL GRANT ACTIONS
A. To date the following grant actions have been taken by the
Environmental Protection Agency.
Project No. C-36-624
1. This project is for the construction of a secondary wastewater
treatment plant, outfall sewer, intercepting sewers, pumping station and
force mains.
2. Major Federal actions:
(a) Total eligible cost: $210,900,000; Federal grant offer:
$10,000,000 (4.7%); action: Grant offer; date: March 26, 1971.
(b) Total eligible cost: $210,900,000; Federal grant offer:
$1,000,000 action: Section 8(F) increase; date: February 24,
1972; total Federal grant; $11,000,000 (5.2%).
/(())
(c) Total eligible cost: $307,600,000; Federal grant offer:
$79,090,000; action: Section 206 reimbursement; date: March
15, 1974; total Federal grant: $90,090,000 (29.6%).
(d) Total eligible cost: $307,600,000; Federal grant offer:
$29,593,000; action; Section 206 reimbursement; due: June 9,
1975; total Federal grant: $119,683,900 (38.9%).
B. The following grant actions are expected to occur some time in the
future.
Project No. C-36-1036
1. This project is for the construction of interceptor sewers,
pumping stations, and collection systems for the Southwest Sewer
District not funded under Project C-36-624 nor yet built.
2. An application for the total project has been submitted and is
currently under review by this office. This project will be
phase-constructed to correspond with the timely development of the
construction contract documents. To date contract for Phase I
construction have been submitted.
3. Estimated Eligible Project Costs:
(a) Phase I: $44,815,560; Federal grant: $33,611,670.
(b) Phase II: $38,124,560; Federal grant: $28,593,420.
(c) Phase III: $62,921,080; Federal grant: $47,190,810.
III. DESIGN OF THE PROJECT
A. Tributary Area
EPA, Region II, and the New York State Department of Environmental
Conservation (NYSDEC) have long been aware of the need for proper
regional planning. It was with this need for proper planning in mind
that the Comprehensive Sewage Study for the Five Western Towns was
embarked upon. While Sewer District No. 1, the original service plan
for an area including much of the present Southwest Sewer District, was
disapproved by the voting populace, and a smaller and somewhat different
construction program approved, this is no way caused NYSDEC nor EPA to
deviate from the goal of proper planning to best meet the pollution
abatement goals of the entire region. With this in mind, it was
required that treatment works not easily expandable (i.e., sewers) be
designed to convey ultimate tributary flows. While the Southwest Sewer
District eliminated areas north of the Southern State Parkway from its
initial service area the County was directed to plan in some manner for
these areas. It was determined that sewers be sized to serve the
Northern Tributary Areas, which naturally drain toward Southwest Sewer
District No. 3. The NTA was, however, modified slightly to exclude most
of the drainage area north of the Long Island Expressway, a physical
boundary in the County. This change was accepted based on alternate
plans for the area and the limited population expected in the future.
B. Population Projections
Projections of tributary populations (including actual domestic
populations and population equivalents arising from commercial,
industrial, academic, etc.) have risen from the preliminary estimates
made in the 1969 "Engineering Report for the Proposed Suffolk County
Southwest, Sewer District" of 555,056 (year 2015) as more detailed
analyses of specific drainage zones have been prepared. Latest
estimates of total tributary population equivalent developed from
"Comprehensive Studies of Population and Flows" are an ultimate 959,177
people. This latest population estimate has been received by this
Agency with the approval of the NYSDEC and the Nassau-Suffolk Regional
Planning Board. Considering the depth of review exerted by these two
planning entities this agency has seen no reason for further detailed
review of these projectons. With a 1970 existing domestic population of
over 388,000 people in the total tributary areas, and a total existing
population equivalent (flows from other than domestic sources) in the
Southwest Sewer District alone of over 126,000, this Agency does not
consider this projection excessive. Additionally, comparison of the
methodology used in developing projections with that of other planning
groups (Water Pollution Control Federation Manual of Practice, as well
as other similar communities) has shown Southwest Sewer District
projects to have been developed in an acceptable manner.
C. Sewer Hydraulics
As a result of sizing sewers for the ultimate tributary flows, pipes
will in some cases (seven out of 19 North-South Interceptors) be much
larger than required to handle existing flows (four other interceptors
are affected as well, but to a lesser extent). This is an occurrence
often encountered when the downstream portions /(()) of a system are
designed for the needs of a whole region. Velocities of flow in these
pipes will be less than required to provide self-cleansing of the pipes.
This means periodic flushing will be needed during operation to keep
these lines clean. In addition, velocities may be slow enough to
produce septicity problems in lower portions of interceptors and at the
treatment plant influent. If necessary, odors emanating from this
condition can and will be alleviated by chlorination of sewage at
upstream dosing locations. This condition has already been considered
in the treatment plant design, where the facility for pre-chlorination
of raw sewage has been provided. When weighed against the severe
environmental disruption and additional costs which would occur from
constructing sewers sized only for present tributary areas and coming
back at some later date to parallel them with sewers to pick up other
tributary areas, the required maintenance is a minimal investment.
This Region of EPA in April 1975 prepared a general report on the
cost of sewer construction versus the size of the pipe. This analysis,
which considered some 83 interceptor contractors bid in New York State,
concluded that, "In order to double interceptor capacity in smaller
sizes (12" diameter to 27" diameter) a contract cost increase of 10.2%
was realized. In the middle sizes (30" to 54") the contract cost
increased by 15.1%" With the results of this analysis in mind, it is
cost effective to build interceptors that are sized to handle ultimate
flows.
IV. ENVIRONMENTAL PROJECT CONSIDERATIONS
Because of the general sandy nature of Long Island subsoils, septic
tanks, followed by one or more cesspools for leaching of the effluent,
have long been the traditional method of sewage disposal. However, in
much of the Southwest Sewer District, the septic tank-cesspool method is
not suited to prevailing hydrogeologic conditions.
The shallowest septic tank-cesspool system generally requires a
minimum unsaturated soil depth of 5.5 feet. Approximately 22% (12.8 sq.
mi.) of the geographic Southwest Sewer District lies at or with 5.5 feet
of groundwater, and thus does not meet current standards for proper
septic tank-cesspool system installation.
Adequate cesspool disposal of waste depends heavily on the dilution
capability of groundwater recharge and movement. In order to insure a
water supply with nitrate (N03-N) levels below 10 ppm (New York State
Department of Health Drinking Water Standards) the average household of
3.8 people utilizing subsurface waste disposal would require the
dilution capacity of approximately 0.7 acres of groundwater recharge.
This is equivalent to a population density of 5.4 people/acre.
No health hazards have been declared in the Southwest Sewer District
by the Suffolk County Department of Health Services, nor has the
Department of Health Services documented any ill effects attributable to
the existing method of subsurface sewage disposal. Nevertheless several
potential health hazards do exist.
The major visible health hazard in unsewered areas results from
septic tank-cesspool systems failure. This is manifested by backup of
sewage in homes and inability to use bathroom, kitchen and laundry
facilities; overflows at the ground surface; and illegal direct
discharges to dry sanitary sewers, storm drains, and surface waters.
The illegal introduction of sulphuric acids and organic solvents in
an attempt to solve system failure results in further pollution of the
groundwaters.
The most publicized potential hazard is that of infantile
methemoglobinemia (blue bady disease) from nitrates in the drinking
water. The regional "208" study has preliminary estimated that
subsurface sewage disposal systems contribute about 95 mg/1 total
nitrogen compared to the State Drinking Water Standard of 10 mg/1
nitrate (as N).
Nitrate levels in the Glacial Aquifer within the District generally
range from 2.0 to 6.0 mg/1 and in the Magothy Aquifer are less than 0.1
mg/1.
With the preceding in mind, the 1972 EPA Environmental Impact
Statement reached the following conclusions and recommendations which
still pertain today:
A. Conclusions
1. The construction and operation of collection systems and
effective wastewater treatment facilities are essential to the
protection of Long Island's water supply.
2. As soon as the technology is demonstrated, it would be
advantageous for Long Island to implement groundwater recharge for the
optimum utilization of its water resouces. /(())
3. A concerted effort must be made to preserve the remaining
marshland habitat.
4. Water resource planning and management programs for all of Long
Island must be implemented to insure both effective and efficient
utilization of available water resources. At the present time, the
interim metropolitan and basin plans required by Federal regulations are
necessarily limited to the effects of specific treatment plants and
ancillary equipment. It is imperative that the planning and management
program for all of Long Island be completed as expeditiously as possible
for inclusion in fully developed plans by July 1, 1973.
5. Maximum utilization of available water resources necessitates the
use of a combined system of groundwater recharge and ocean discharge of
treated wastewater. Ocean outfalls are required backup facilities for
groundwater recharge because of the problems associated with plant
failure. Until such time as the technology for wastewater treatment and
recharge has been both fully developed and implemented, disposal of all
treated effluent to the ocean is the only feasible alternative.
B. Recommendations
1. Proceed as expeditiously as possible with the construction and
operation of property designed collection, treatment and disposal
facilities in accordance with the principles embodied in this
environmental impact statement.
2. As soon as the results of the EPA-sponsored Wantagh feasibility
study are known, a full-scale (about 4 mgd) project should be undertaken
to demonstrate the reliability and consistent attainment of high levels
of treatment, including nitrogen removal, and groundwater recharge of
treated wastewater.
3. The construction of wastewater treatment facilities should not
utilize marshlands.
4. To insure that growth is consistent with the maintenance of
environmental quality, planning for Nassau and Suffolk Counties should
include:
a. The accurate determination of both the population levels and the
industrial wasteloads that can be supported by available natural
resources, and
b. The development of controls to insure that domestic and
industrial wasteloads do not exceed the environment's capacity to
support them.
The New York State Department of Environmental Conservation should
exercise its functions on Long Island to promote and coordinte
management of water, land and air resources to assure their protection,
enhancement, provision, allocation and balanced utilization consistent
with the environmental policy of the State.
5. It is recommended that a combined system of groundwater recharge
and ocean discharge be developed for the disposal of treated wastewater.
Investigations to determine which areas require groundwater recharge and
the optimum methods of recharge for the affected areas should be
actively pursued. Until such time as the technology has been fully
demonstrated and recharge has been implemented it is recommended that
ocean outfalls be utilized as the only feasible alternative.
Please note that on June 29, 1976 a Federal construction grant
(C-36-982) totalling $24,588,497 (total eligible cost $32,784,662) was
awarded for construction of a 5.5 mgd full-scale wastewater recharge
demonstration project at Wantagh (Cedar Creek) Nassau County, New York.
In addition, this Agency on June 9, 1975 extended a planning grant under
Section 208 of the Act to the Nassau-Suffolk Regional Planning Board.
One of the major objectives of this plan is to investigate and determine
which areas of Long Island require groundwater recharge as well as
methods of attaining a workable recharge program.
The National Environmental Policy Act (NEPA) regulations do not
require that ongoing protects funded prior to July 1, 1975 comply with
the current criteria. However, they do allow the Regional Administrator
to apply new criteria when he considers it appropirate. In keeping with
the spirit of NEPA I directed that a complete environmental review be
accomplished on the Southwest Sewer District outfall sewer and its
proposed routing. The review resulted in several changes to the
proposed contract including but not limited to those required to restore
tidal wetlands, those required to avoid adverse effects on a tern
nesting area, those requested to protect shellfish in the vicinity of
the outfall from suffocation and loss of productivity and those required
to prevent interference with currents in Great South Bay. This review
was reinstituted even though the Agency in July 1972 had published an
"Environmental Impact Statement on Waste Water Treatment Facilities
Construction Grants for Nassau and Suffolk Counties, New York" which
addressed the outfall sewer. /(())
V. INTEGRITY OF CONSTRUCTION
As a result of serious allegations concerning the structural and
hydraulic integrity of Contract I-9 and a lack of information by the
Region with which to refute or concur with them, the Agency by letter
dated July 15, 1976 required that:
1. The sewer line be dewatered and prepared for a television
inspection which should be recorded on a continuous video tape.
2. The sewer line be re-tested in accordance with Section D.S. 83,
Infiltration and Exfiltration Tests, of the contract specifications.
3. Both the NYSDEC and the EPA be notified of the does when this
work would be performed so that representative from each Agency could be
present.
4. If the tests indicated that repairs were necessary to assure the
integrity of the pipeline, the County of Suffolk would perform the
necessary corrective actions in a method acceptable both to NYSDEC and
EPA.
The specified tests have been performed. In addition, a hydraulic
analysis of the capability of the sewer as constructed to handle
minimum, average and maximum hydraulic loadings has been performed. The
hydraulic analysis performed on the eligible portion of the contract has
shown the pipeline to be acceptable. The television inspection of the
pipline has shown a job or acceptable workmanship on the portion of the
contract on which Federal funds were granted.
Twelve joint leaks were located within this length of 14,326 feet.
These leaks varied from substantial to barely noticeable drips. The
pipeline was tested for infiltration prior to any repair being made and
passed based upon an allowable infiltration of 150 gallons per inch
diameter per mile per day as specified in the contract (14,666
allowable, 11,675 actual). Ineligible portions of the contract
initially failed the infiltration test. Repairs were made such that an
overall test of the entire contract passed (allowable 19,604, initial
21,219, final after repairs 19,248). Tapes of eligible sewer lines
revealed no sign of any structural problems. This Agency has received a
copy of the video tapes for the entire eligible portion of the contract.
This copy is available upon request to the Subcommittee.
It should be noted that even though repairs were made to the
ineligible portion to reduce infiltration to a level below the allowable
limit actual pipelines may have been acceptable even prior to such
repairs. When lateral sewers are built, house connections are placed
and extended to the street curb line. They cannot be further extended
to connect to the home plumbing system until all downsltream treatment
works are operable. In order to keep groundwater and soil out of these
lines end caps are placed. As part of the recent inspection two caps at
the end of house lines which the television inspection had revealed as
leaking were inspected. They were found to be improperly placed. When
they were placed properly the leak from these two connections in one
case ceased completely and in the other was reduced to a trickle. There
were 344 house connecions tributary to I-9 during the weir reading (40
others were plugged). It is conceivable that many of these had leaking
end caps and thus a significant amount of infiltration, possibly greater
than the difference between the allowable infiltration and the initial
amount, will be removed upon activation of the system.
VI. CONSTRUCTION COST CHAAGES ON SOUTHWEST SEWER
DISTRICT NO. 3
The costs presented in the 1969 Engineering Report were based on
preliminary engineering planning without the benefit of detailed design
analyses or plans and specifications. The estimted eligible project
cost was $108,071,000 based on 1969 costs. The interceptors were
planned for an ultimate saturation population equivalent of 555,056 in
the year 2015 as estimated for Southwest Sewer District No. 3 and the
NTA.
Cost figures for the interceptors were derived using prices paid by
Nassau County for pipe and manholes. The sewage treatment plan was
planned to treat an average flow of 30 mgd with 1985 as the design year.
The estimate on the sewage treatment plant was made by Bowe, Walsh
Associates, and the figure of one million dollars per million gallons
treated was used. The ocean outfall was to be 1 1/2 miles in length
into the ocean and 66" in diameter at a cost of $12,000,000. Costs for
the outfall were derived with the aid of quotes from pipe manufacturers
and contractors.
The original grant application was submitted to NYSDEC in January
1970. This application showed almost a 50% increase in eligible up to
$157,900,000. The cost increased nearly 50% on the interceptors because
the population estimates were revised to consider future downzoning and
a revised NTA. In addition, /(()) field surveys conducted since the
1969 Engineering Report indicated that deeper sewers would also be
required. The estimate for the sewage treatment plant increased by 25%
based on the more detailed information being developed by Consoer
Townsend Associates (CTA) during preparation of their basic data report
for the plant. The estimate was for a 30 mgd plant with provisions for
doubling the plant at some future time. Cost figures for the plant were
based on similar plants in the New York metropolitan area. The cost for
the outfall increased by 28% which was due in part to the new projected
population.
In September 1970 a revised grant application was submitted to the
NYSDEC. The new estimated eligible cost was $161,700,000. The new cost
for interceptors was derived by subtracting the cost of two contracts
(VI-7 and VII-7), which were ruled ineligible but which had been
included in the original grant application. The estimate on the outfall
doubled to $28,000,000, which brought its estimate more into line with
Nassau County's pre-bid estimate on a similar project.
The total eligible cost for the project as noted in the 1971 grant
offer was $210,900,000. The major increase in cost was due to a
doubling in the cost estimate of the outfall. The revised estimate was
made and substantiated by the opening of bids on the Nassau County
outfall in October 1970. Only one bid had been received and it was 40%
over the pre-bid estimate. The Nassau County outfall was 2 1/2 miles
and 84" diameter. This gave Suffolk County a more realistic figure to
use for estimating the cost of the outfall. During this period, the
interceptor sewage treatment plant and pump station estimates were
increased by 8%.
After the opening of bids for Contract I-9 (February 1972), the
eligible cost of the project was estimated to be $280,000,000. This
estimate reflected the following considerations:
1. An increase in construction costs of almost 30% due to inflation.
2. Completion of a basic design report by CTA for a 30 mgd sewage
treatment plant with provision for expansion at a later date with some
units sized for future use.
3. A doubling of the population projections to reflect the detailed
analyses performed through industrial surveys, house counts, etc.
4. Receipt of bids on the County's first interceptor contract which
resulted in better estimating abilities for future interceptors.
5. Completion of substantial work on the outfall design report which
had already indicated a need for a 2 1/2 mile length into the ocean and
72" in diameter.
6. Receipt of bids in Nassau County indicating a much higher cost
for outfall construction had already been taken into account in the 1971
estimates.
After the bids came in for the sewage treatment plant, the County
estimate of eligible project costs was $307,600,000. The interceptors
and the pump station rose by 11.5% keeping pace with the ENR cost index.
The outfall cost decreased by less than 1% even though the length of
the outfall was increased from 2 1/2 miles to 3 1/2 miles. However, the
estimate was based on a thorough study of alternatives as reflected in
the design phase project report. The low bid on the sewage treatmet
plant was 38% over the pre-bid estimate. Some of the reasons for the
high bids were:
1. The prime interest rate had increased to 11.4%.
2. Contractors were facing delays in obtaining construction
equipment and plant equipment.
3. Manufacturers were unwilling to provide firm estimating prices or
delivery dates on equipment. Pricing was based on time of delivery and
subject to escalation.
4. During the previous six months, cost increases of 50 to 100% had
occurred in cement, reinforcing steel, stainless steel, cast iron and
electric motors.
5. Fabrication costs for heat exchangers, reactors and furnaces
increased by 50% in the previous six months and wet air oxidation units
and incincerators increased from 30 to 50% in the same time period.
6. Steel prices had increased since the elimination of wage and
price controls on May 1, 1974.
7. Labor contracts in the New York metropolitan area would expire
half way through the sewage treatment plant construction and rumored
demands were for a 30% increase in wage rates. This one factor could
account for $5 million.
8. Workmen's Compensation rates may go up as much as 40% because of
the exacting requirements of O.S.H.A. /(())
The estimate to date has remained unchanged.
In summary, the estimated cost of the Southwest Sewer District
project is considered reasonable and accurate. In addition the cost
escalation experienced on the project since the 1969 Engineering Report
cannot be considerd as uncommon or the result of a "gold plated" design.
Reasons for the above are:
1. The 1969 estimate was not escalated to reflect anticipated
construction starts. Considering that 1978 will be the approximate
midpoint of eligible construction, the 1969 estimate must be escalated
to the date to properly reflect what the 1969 cost really meant in terms
of projected cost. Based on the ENR cost index increase through the
present time and projecting a 5% annual increase through 1978, the 1969
estimate of eligible costs escalated to 1978 would be approximately $213
million. The County, of course, did not have the advantage of knowing
in advance that cost increases of 10-15% would be experienced in the
1970's. However, they should have certainly realized that their 1969
estimate was low, since it had not been escalated.
2. The 1969 estimate was based only on preliminary planning and
could not, therefore, reflect accurate pipe lengths, trench depths, pipe
sizes, outfall length, treatment plant unit sizing, populations, etc.
While it may be desirable to present more accurate cost to a referendum,
the New York State Department of Audit and Control insists on formation
of a legal district as soon as possible so that the benefitted
properties and not all residents of the County are charged the cost of
the project.
3. The outfall cost has increased more than fivefold to its present
estimate. In 1969 there was no comparative outfall where constrction
costs were known so that the County could have a comparison cost. When
Nassau County bid its outfall, this necessary comparative cost was
established.
4. The detailed development of population projections through use of
densities, surveys, etc., showed that the previous population curves
utilized were not accurate or were not a basis that could be used for
design puroses. The resulting increase in the population projection
resulted in larger interceptor sewers being required.
5. The current estimates have been substantiated by independent
estimates prepared by construction contractors working in the County and
by Price-Waterhouse who had been hired by the County Legislature to
verify estimates.
6. The bids received have substantiated the County's estimates for
interceptors.
7. The only remaining unfirm cost is the outfall. The restrictions
on construction placed by EPA to mitigate environmental damage are
certain to have an effect on the cost, which, however, it is nearly
impossible to calculate.
VII. PROJECT INSPECTIONS
Southwest Sewer District, Project No. C-36-624 consists of: four
construction contracts for the wastewater treatment plant, two contracts
for the outfall sewer, four contracts on a pumping station and 15
contracts for the interceptors. To date, the four contracts for the
treatment plant and five interceptor contracts have been under
construction. Prior to March 1, 1975 the only contract under
construction was I-9. A summary of the inspections to date follows:
GRAPHIC OMITTED
Many more than 17 inspections will be conducted since the project is
only 12% complete.
The regulations for P.L. 84-660 state, "The applicant will provide
and maintain competent and adequate engineering supervision and
inspection of the project to insure that construction conforms with the
approved plans and specifications. Prior to giving permission to award
a construction contract EPA has on each contract /(()) received
assurance from Suffolk County that this requirement will be complied
with. The regulations further state that, "An inspection will be made
after completion of construction and prior to release of final payment.
Other inspections may be made during construciton on a drop-in basis or
may be scheduled on a geographical basis." In an effort to increase the
Region's inspection cpabilities, we are currently negotiating
contractual arrangements with the Corps of Engineers and the General
Services Administration in the amount of $230,000 for use of their
personnel to supplement the Region's own forces.
It is the opinion of the Region that, considering staffing
limitations of both the NYSDEC and EPA and the goal of avoiding
unnecessary duplicity of effort, the inspection program has been in
accordance with national policy.
VIII. PROJECT AUDITS
The EPA has not to date performed a financial audit on the project.
It is Agency policy that interim audits should only be performed, except
in special cases, on projects on which EPA has paid more than 25% but
less than 80% of the Federal grant entitlement (current grant payments
amount to 12.4% of the total grant).
IX. ENGINEERING FEES
There are four contracts for engineering services executed by
Southwest Sewer District No. 3 on the work currently funded. They are:
1. Contract for intercepting sewers with Bowe, Walsh and Associates,
dated September 18, 1970
2. Contract for Water Pollution Control Plant with Consoer, Townsend
and Associates, dated September 18, 1970.
3. Contract for Main Interceptor, Pumping Station(s), and Force
Main(s) with Havens and Emerson, dated September 18, 1970.
4. Contract for Outfall Sewer with Bowe, Walsh and Associates, dated
April 6, 1971.
The basic contract used for all four is identical and indicates that
the Southwest Sewer District No. 3 used a standard contract for all
engineering services. The contract consists of 15 articles which are
standard in every case and cover general conditions. Attached and made
part of each contract are two schedules, A and B. Schedule A provides a
description of the scope of work. Schedule B contains additional
general provisions. In the first three contracts Schedule B contained
seven items. In the outfall contract Schedule B contains 17 items and
an additional Schedule C with further general provisions has been added.
The additional provisions in the outfall contract provide the Sewer
District with some additional protection.
The form of the four contracts corresponds to the "Percentage of
Construction Cost" type agreement described in the American Society of
Civil Engineers (ASCE) Manual of Practice No. 45, "Consulting
Engineering, A Guide for the Engagement of Engineering Services", 1968
(ASCE Manual 45). The fee curves contained in the ASCE Manual 45 were
included in each contract.
ASCE Manual 45 describes two types of services to be provided in
design type projects. Basic services include a preliminary phase, a
design phase and a construction phase. Special services involve studies
"outside the scope of the basic design services of the Consulting
Engineer". The scope of work for each of the four contracts contained
in Schedule A is divided into basic services including prelimiary,
design and construction phases and special services.
Compensation for basic services of these contracts is based on a
percentage of the construction cost. The percentage used is contained
on curves in ASCE Manual 45. The contracts for outfall sewer, for water
polllution control plant and for the pump station and force main use
Curve A -- "Median Compensation for Basic Services Expressed as a
Percentage of Construction Cost for Projects of Above-Average
Complexity". The contract for intercepting sewers uses Curve A for all
sewers less than 24" in diameter. Curve B -- "Median Compensation for
Basic Services Expressed as a Percentage of Construction Cost for
Projects of Average Complexity" was to be used for other sewers.
Compensation for special services is based on salary cost times a
multiplier of two plus expenses for work performed by the engineer
except where a partner may be involved where a per diem charge of $200 a
day is used. For special services of outside consultants the charge
would be 1.1 times the building amount (the 10% surcharge is for
administrative expenses).
It should be noted that the ASCE fee curves have been revised upward
since these agreements were entered into. /(())
As part of our review we have compared these engineering contracts
with contracts for similar work entered into by three other
municipalities. The comparison revealed that:
The general provisions contained in the Suffolk County contracts
appear to cover more responsibilities and to cover items in a more
detailed manner than any of the other contracts.
The specific contract provisions for all contracts contain many of
the general provisions listed under basic services in ASCE Manual 45.
The Suffolk County contracts contain more provisions in more detail than
the other three.
All three contracts are similar in compensation to the Suffolk County
contracts. They provide for a fee for basic services based on ASCE
Manual 45 and also provide for payment for special services. In all
three contracts a specific percentage fee is designated rather than
inclusion of the ASCE curves. Two of the contracts provide for some
adjustment of the percentage based on the final construction costs. The
percentage fees for two are similar in range to Suffolk, the other
appears slightly higher. Finally, when comparing contracts for work
performed in Suffolk County, it is unfair to make such comparison
without considering the extent of the pre-design work performed by the
owner and supplied the engineer. Extent of such information supplied in
Nassau County and in New York City is substantially different from that
supplied in Suffolk County where there was, due to the inexperience of
the sewer agency, a lack of such information.
In summary, while the review of engineering fees paid and billed the
government will not be completed until final audit is performed after
project completion, a review of the contractual agreements has reveled
such agreements to be proper and to compare favorably with similar
agreements entered into by other municipalities during the same time
period.
Mr. AMBRO. If you will then, Mr. Hansler, continue with your
statement. Mr. HANSLER. It is 29 pages long and it touches on the
issues raised by public inquiry, press inquiry, and especially inquiries
from the subcommittee staff, Mr. Kopecky. Mr. Prolman. They have been
fair, very fair, in airing all the issues and rationale as to the
development of this project.
Our 29 page statement covers consulting engineers' fees, are they
high, are they low, are they legal, under what law did we operate. It
covers construction of the project to date, the eligible portion in the
Federal project. This is about 12 1/2 to 14 percent completed.
We have made 17 inspections so far on the project, EPA inspections.
It is 12 1/2 percent completed.
Mr. AMBRO. When did you make the inspection?
Mr. HANSLER. Over what period of time?
Mr. CASPE. Well, after December 1975, which was our first
inspection, we have made several additional inspections. Since the
investigation started we have been out there a number of times.
Mr. AMBRO. I heard you, but it was difficult.
I think what you said was since December of 1975, since these
investigations started, you have made 17 inspections. But, of course,
what conjures up immediately is whether prior to that you made none.
What was the percentge of completion of the project prior to that?
Maybe that will put it in a better perspective.
Mr. CASPE. Yes. Well, December 1975 was our first project
inspection, which was prior to the investigations really starting up.
That was made when the treatment plant had been under construction for a
short period of time.
Prior to that, there was only one contract under construction. That
was contract 1-9, referred to as I-9 here, which has been completed and
had been inspected by the State twice, but it had never been inspected
-- well, I had been out there on a complaint type inspection /(()) but
never on an actual compliance with construction requirements inspection.
Since the investigation was started in the later months after December
1975, we and the State have been out there on a number of inspections.
Mr. AMBRO. I-9 was the subject of severe controversy because it had
failed many times. Then you finally passed it. What happened with I-9?
Were there many corrections made in the engineering level to move it
from failure to passable?
Mr. CASPE. Well, I-9 was first completed in 1974, I guess; 1973,
when it was tested for the first time for infiltration. It failed a
number of times. Corrections were made until it did pass the
infiltration test. There were no other major problems really known at
the time, I do not believe.
The county had in their contract specifications the option of going
back 2 years later to reinspect at the end of 2 years, prior to release
of their final retainage of moneys. They went back after 2 year, again
it was tested for infiltration. It failed the test.
It was retested a number of times with corrections being made and was
finally passed based upon 200 gallons per inch per mile per day rather
than the specified 150. Since that time with all the allegations coming
up we did go out, as the state mentioned, and we required that the line
be dewatered, retested, for infiltration, and a complete videotape made
for our surveillance of the interior of the entire eligible pipeline.
Mr. AMBRO. Was it ever paid for?
Mr. CASPE. Excuse me?
Mr. AMBRO. Was it paid for?
Mr. CASPE. Was the Federal money expended on the contract?
Mr. AMBRO. Any money. Was I-9 paid for.
Mr. CASPE. Well, the county has accepted it and it was completely
paid for.
Mr. AMBRO. When was it completely paid for?
Mr. CASPE. After the 2-year test. It would be 1975?
Mr. AMBRO. When in 1975? Prior to your inspection?
Mr. CASPE. Oh, yes; by the county, yes.
Mr. AMBRO. Prior to your inspection, but after it passed?
Mr. CASPE. That is correct.
Mr. AMBRO. Was there a portion of I-9 paid during the construction
phase? Was it an ongoing type thing?
Mr. CASPE. I-9 was paid, I presume, the way all contracts are paid
on a buildings basis. As constructed, they pay on work done, work
completed, as accepted by the engineer.
Mr. AMBRO. And the engineer, prior to final passage, approved
payment after inspection of I-9 during various phases of construction;
is that correct?
Mr. CASPE. That is correct.
Mr. AMBRO. Well, are we suggesting that the engineer who is
approving is in various phases of construction with that which continued
to fail tests, but ultimately passed?
Mr. CASPE. No. Well, there was retainage held. The retainage, I
believe, varies on this contract between 2 1/2 and 5 percent up until
the end of the 2 years. The retainage was deemed as sufficient to cover
the extent of any repairs that would be required. /(())
Mr. AMBRO. If there were not criticism of I-9 or complaints, would
you have gone in there and inspected?
Mr. CASPE. We would have as part of the final inspection of the
entire project. We would not have crawled through lines, necessarily,
but we would have when it was in operation opened up manholes, looked
down, although you might look in, go down, and you are not going to be
able to crawl through the lines, obviously, and TV them.
You can tell the way the flow is running in those lines whether they
are proper or improper.
Mr. AMBRO. You heard a great deal of the testimony with respect to
audit or absence of it. You have an oversight responsibility to EPA. I
know about your capability with respect to an audit. Do you want to
comment on that?
Mr. HANSLER. Yes; I do.
Mr. AMBRO. The personnel and the number of projects you have in the
United States.
Mr. HANSLER. Yes; I do.
I will preface it by saying that this is an old law project and under
the old law we did business under the regulations applicable and that is
to rely upon the applicant and whoever he hires, a consulting engineer
or a separte engineer, or if he uses his own resources, to perform the
inspection.
We do not have the Federal resources nor does the State have the
resources to provide an onsite inspector.
Mr. AMBRO. This is a glaring gap in our oversight responsibility.
Mr. HANSLER. I do not think it is a glaring gap. I think there is a
gap.
Mr. AMBRO. With respect to the $18 billion program, for example.
Mr. HANSLER. I think it is a gap on any large project.
I believe that we should have the Federal resources to provide a
resident inspector on major projects. We do not.
Mr. AMBRO. Why not?
Mr. HANSLER. We do not because we have not received the positions
through the process of the agency, OMB and Congress.
It is that simple.
Administrator Train has testified before the Public Works Committee
that we do not have enough people.
We do not need a Federal army, but we do need additional persons to
better assure that these projects are properly constructed.
I would say that we probably lucked out on Suffolk.
The first one built was I-9. I-9 passes the test.
The infiltration inflow test required by the county was more
stringent than New York State or the 10-State standard.
When the project was awarded, the 10-State standard was 500 gallons
per day based upon length of pipe and diameter.
The Suffolk County standard was very stringent, 150 gallons per day
on the same parameters.
1-9, the one in question, passed that test.
As testified to today by other people, not the State or EPA, but
local citizens, the construction on subsequent sewers in southwest
Suffolk has vastly improved.
I think you are then getting a good type project. /(())
Mr. AMBRO. What motivated you on March 1, or your agency, to
prohibit engineering contracts which base fees on a percentage of
construction costs?
What brought that about?
Mr. HANSLER. It was the agency's concern, some of us within the
agency, and it was GAO's concern that we did not want to tolerate excess
profits on the part of anybody, be it attorney working on development of
a sewer project, a consulting engineer designing or a contractor,
through any type of collusion or otherwise.
Mr. AMBRO. How would those contracts generate excess profits?
Mr. HANSLER. The contracts for the consulting engineer here?
Mr. AMBRO. No.
The ones you prohibited generally which might include the ones here.
Mr. HANSLER. The regulation that took effect this March, in answer
to a question posed by someone earlier this morning, does not apply to
the southwest Suffolk Sewer District No. 3.
The engineering fee procedure or the assessment of engineering fees
was based upon the old law and practices back in 1971.
I probably would not have answered the question the same as County
Executive Klein, as to whether these engineering fees are excessive.
He did properly indicate they were based on the old law and old
practice.
We have done an analysis. We have looked at Buffalo, other
municipalities, and in the period of 1970 to 1972 that was engineering
practice.
We saw this as a loophole in getting the best buy for the State,
Federal and local dollar, but today the engineering contracts are much
tighter.
It is true that a consultant may design a big piece of equipment,
like a waste treatment plant, and it may sit on the shelf for 3 years.
It finally goes to bid.
Because of inflation and cost of money, and so forth, labor costs, it
does up 40 percent.
Why should the consulting engineer get an additional 40 percent? He
has already expended his resources to design the project.
The regulation we have on the book now precludes that. We have been
effectively monitoring in on new law projects. Legally, there is
nothing we do insofar as old law projects.
Mr. AMBRO. As costs increase, for whatever reason, are you
suggesting that the engineering fees are based on a percentage of that
increase, too?
Mr. HANSLER. Yes.
Mr. AMBRO. That might be an incentive then for any engineering firm
with that kind of a contract to be most enthusiastic about increased
costs.
Mr. HANSLER. I am a registered engineer, although I do not consult.
If I was a consulting engineer, I would agree with Congressman
Wright, there is a profit motive. I would want to get all I could.
But, I am on the other side of the fence and as an agency we have
tried to plug that gap on excess profits. /(())
Mr. AMBRO. Just tell me, then, at that point, what procedures will
apply for the new segments now being considered by the EPA?
Mr. HANSLER. The procedures that were on the books on March 17 of
this year were that we review the engineering contracts and if we feel
they are excessive, we back off both the applicant, that is, Suffolk
County, and the consulting engineer.
We have done this on some major projects.
On one project the fee was supposed to be $5 million for engineering.
We backed them off a full $2 million.
Mr. AMBRO. How do you back them off?
Mr. HANSLER. Mr. Luoma?
Mr. LUOMA. What Jerry was referring to was our review of a grant
application and under the new regulations as we were reviewing the
engineering fees, comparing them to the ASCE manual curves, comparing
them with projects of a similar type, it was our determination that the
fees were too high.
One of the reasons that it happens, as Jerry mentioned before, the
project is designed, the work is completed. It does not go under
construction for a number of years.
As that period has escalation in it, the cost of the construction
goes up on a percentage basis and the engineering fees go up.
Now, we are reviewing those.
Mr. AMBRO. Why did it take so long for EPA to determine these kinds
of contracts were less than in the public interest?
Is it because you are a new agency or relatively new?
Mr. HANSLER. Probably because it was a new and complex law. Our
regulations went out as an agency a considerable time after October 18,
1972.
We had many new requirements.
We had infiltration, inflow, historical, NEPA, archeolegical,
industrial cost recovery, user charge, and it was very complex.
I am defending EPA and headquarters in their rulemaking process.
It was very complex to get regulations out.
We were not required by Congress to look at the level of engineering
fees. We did this on our own. We did it outside of a congressional
manmade. We did it becuase we saw it as a gap.
Mr. AMBRO. Who was required to do it?
Mr. HANSLER. No one.
Mr. AMBRO. No one?
Mr. HANSLER. No one.
Mr. AMBRO. Are you satisfied now that you have through your
regulations sufficient authority to, as you put it, back them off?
Mr. HANSLER. Yes; and we have practiced that.
Mr. AMBRO. Has it been attacked in any way through the courts?
Has there been resistance anywhere to your authority?
Mr. HANSLER. There has been considerable discussion within the civil
engineering professon and basically we probably bullied them into
acquiescing in this procedure.
We said it was in the public interest and we do not want our projects
to be ripped off.
It is in effect and we are practicing it.
Mr. AMBRO. You now prohibit multiplier profits where profit is part
of the multiplier.
What does that mean in English? /(())
Mr. HANSLER. Dave?
Mr. LUOMA. That means we can have personnel service contracts with a
multiplier to take care of overhead and expenses, but that the profit
and the overhead be identified separately and be fixed.
We all know what we are negotiating for on the multiplier.
Mr. AMBRO. Did you her the testimony of Mr. Mrazek?
Mr. LUOMA. Yes; I did.
Mr. AMBRO. He said in counties where negotiating was more stringent,
they have a multiplier of 2.2 I think he said.
The multiplier here is 2.
Why is, therefore, this contract less beneficial to the public
interest than that which is 2.2?
Mr. LUOMA. I think the point he was making, if I am not mistaken,
was that the finge benefits were added onto the payroll costs before the
multiplier was applied.
This is a controversy that we have had in EPA.
A number of accountants feel that the multiplier should only be
applied to the payroll cost directly.
Mr. AMBRO. Do you have a regulation covering that now?
Mr. LUOMA. Yes. The new regulations do cover that now.
Mr. AMBRO. So you address that already; is that right?
Mr. LUOMA. It is not on this particular project, however. This
project is under the old law.
Mr. HANSLER. There is one other important part on the consulting fee
business that would tend to escalate costs.
If you run a sewer in piedmont, you do not have a sand or water
problem. If you run a sewer here, your construction costs may be more
than the actual design effort on a proportion basis.
Similarly, when you get into areas of rock excavation, it is easy to
design a sewer through that, but it is very costly to construct.
You have to dynamite in that case. If the engineering contract is on
a percentage of a construction contract, such as 5 percent, we feel that
that may cause excess windfall profits and that the consultant really
has not expended that much effort to warrant 5 percent of the
construction contract.
So, we are trying to look at every aspect of an engineering service
and make sure it is fair.
Mr. AMBRO. I do not want to get into this with you, Mr. Hansler,
because I think we will take it up with Mr. Train, but it is just my
impression from looking over the EPA budgets that the Congress was
amenable to the recommendton by the Administrator that moneys be
installed in the budget for a kind of inspection necessary for these
projects, but the culprit, if you will, here was OMB.
I do not want you to comment on that, knowing the sensitivity of that
arm of the executive branch, the Office of Management and Budget.
But, I will just say that for the record and leave it dangling.
Well, you know, we can talk for an awful long time about all of this;
contracts, bonds, audits, and what have you, fees.
I wonder if maybe as a last segment to all of this you would in some
way sum up your views of the comments made about the environmental and
ecological impact as a result of the Southwest Sewer District, the
outfall pipe and secondary treatment and in some way comment on these
adverse criticisms? /(())
Mr. HANSLER. I would like to comment on those first, and I would
like to, if I may, react to a few statements made earlier by diverse
groups.
Many of the statements I concur with. Some I do not. Again, this
was a 1971 project. The State did not have the Wetlands Act.
EPA and other Federal agencies were not paying as much attention to
environmental impacts as we are today. NEPA was a relatively new thing.
CEQ was still fumbling with regulations.
The grant was given in 1971. In 1972, we prepared an environmental
impact statement not only for southwest Suffolk, but very project on
Long Island since 1956, to address these issues; shellfish, ground
water supply, recharge.
We went to citizens' briefings on Long Island before we held our
pubic hearings. We had public hearings with the State.
A final form was submitted to CEQ. There was no complaint within 30
or 90 days. It was an accepted environmental impact statement.
Two years later we were sued again by the Environmental Defense Fund.
We raised these issues.
EPA, for the past 2, 2 1/2 years, has done everything under our
power, whether it was in the State domain or other Federal agency
domain, to make this an environmentally sounder project.
There have been quite a few changes made to the project because of
our efforts.
One was the outfall, which is now hungup.
We talk about delays in construction. We talk about interest rates.
We talk about inflation.
A lot of this public information has caused the cost escalation and
the delays.
So far as the outfall, the State has said it will not violate ocean
water quality standards.
EPA has said this.
Insofar as how the outfall is constructed the environmental issue was
brought up by Mr. Tripp and others.
Litigating actions are bring taken to minimize temporary adverse
environmental impact and precludes long-term impact.
First, insofar as nesting, we went to the ornithologist at the Museum
of Natural History in New York to find out how to best handle this.
It was factored into the project.
Second, on the wetland grasses, one person testified that we have to
protect our wetland grasses. In fact, we should improve them with the
project.
We have obtained the concurrence of Suffolk County to have a separate
contract for the restoration of wetland grasses based upon latest
technology, which was a Corps of Engineers demonstration project down in
Maryland or Delaware.
It will be the best in the country.
We hope it works.
Insofar as laying the pipe across the Great South Bay, we require
that the shellfish within the area be removed.
When the pipe is in, we will bring them back.
I think the engineer from west Islip testified that they have a
shellfish propagation program and shellfish can be reseeded.
Mr. AMBRO. It was Mr. Andres. /(())
Mr. HANSLER. Right. Mr. Andres.
We have limitations on the siltation during construction of the
outfall line. Again, limitation on the dredging operation, filling
operation, is more stringent than in any other project.
Undoubtedly there will be some short-term temporary impact, but we
mitigated it.
Mr. AMBRO. Do you have any concern, as many people did, about the
salinity affecting the shellfish industry as a result of this?
Mr. HANSLER. Yes.
I am getting to that with recharge.
On the recharge issue, in Region 2 we moved ahead with Nassau County
as a consequence of our environmental impact statment in 1972, with a
feasibility study on tertiary treatment on recharge.
The feasibility study was completed.
It showed promise. It showed a lot of promise.
We gave a grant for plans and specifications in construction. that
project should be underway within 3 months and completed within 2 years.
I am more hopeful that the technology will be on the books for
recharge insofar as applications in Suffolk County or the coastal area
of New Jersey well before 5 years.
Mr. AMBRO. That is the Cedar Creek project?
Mr. HANSLER. Yes.
At the same time we have sought R. & D. funds from EPA headquarters
and retained them.
Mr. AMBRO. Are you absolutely convinced, just sticking with Cedar
Creek, that the demonstration project that is underway there can be
easily applicable to a system of this size, 6 times almost the size of
that one both in terms of design, cost, technology?
Mr. HANSLER. I would say yes.
In fact, I would say we were probably going to have breakthroughs.
They are looking at another technology also in construction with
Cedar Creek that will be probably less expensive and might do more. The
first one is always the most expensive.
I think it will be applicable.
I do not think you would ever recharge all of your 30 million gallons
a day.
I think you are going to have ground water flooding conditions if you
do. You have it right now in the coastal areas there.
I think it is going to take that part of the waste that you need,
give it a teritary treatment and recharge it for the sake of your
aquifer.
Mr. AMBRO. Why would you have ground water flooding?
Mr. HANSLER. If you have periods of high rainfall.
Mr. AMBRO. Why could you not pipe the recharged water into an area
of, let us say, the major aquifer dome in another part of the island?
You would not have to put it right in the ground next to the tertiary
plant; would you?
Mr. HANSLER. No.
We do not intend to.
Mr. AMBRO. Then that concern could be obviated; could it not?
Mr. HANSLER. Not necessarily. /(())
You can still go back into an area. However, when you have a lot of
rainfall any other waste water effluent you put in will create a
flooding condition.
Insofar as the salinity issue, I am looking at the same treatment
plants. I am looking at the red dot. What do you do with the waste
water?
You have retreated it to 90-percent removal right now. It is pretty
good water.
You cannot discharge it to the shellfish beds, but we believe that
the law will allow right now without amendment to pipe that back and
augment the flow in the Carlls River, and in the other streams, so you
have a fresh water, not a chloride, coming into the Great South Bay.
We believe it is eligible and we are working with Koppelman now and
the State and the people that are concerned, because, in essence, it is
an outfall that you can use.
Mr. AMBRO. Under the Water Resources Act?
Mr. HANSLER. Under 92-500.
Not the River and Harbors Act. Under 92-500.
We often change, throughout our region, where the outfall pipe goes
from a treatment plant.
If you have one opportunity to go in a little creek and the creek can
take it versus a big river, we put it there.
However, if you need fresh water in that creek and right now you have
urban runoff and you have bad conditions, you can actually have an
improvement in water quality and improvement in the Great South Bay.
Mr. AMBRO. It is eligible for what percentage of the project cost?
Mr. HANSLER. Seventy-five percent.
Mr. AMBRO. That is another 25 percent where? The State?
Mr. HANSLER. Local percent is 12 1/2 percent, 12 1/2 percent State.
Mr. AMBRO. Local percent is 12 1/2.
Do you have any ballpark estimate as to what that might be?
Mr. HANSLER. I can make a ballpark estimate and be corrected by my
engineer, so I will ask them.
Mr. SALKIE. The best estimate we have is approximately $6 million
for installing a force main in the same trench as the interceptors, but
this was for a larger pipe.
We are talking now about a smaller scale project simply designed for
augmentation.
We would have to reduce the estimate ballpark figure in the area of
$4 million to $5 million.
That is right off the top of my head.
Mr. HANSLER. So, you are talking about $1 million.
Mr. AMBRO. That is another $500,000 to the district.
Mr. HANSLER. You are talking about $500,000 to the district for
shellfish out there that they say is worth $80 million or $100 million.
You are also talking about the speculation of the salinity and it is
speculation.
Your salinity would drop and be disastrous.
Even if you had the pipe going back inland, like to the headwaters of
the Carll's River, and the head of two other streams from that point, if
you ever wanted to put in your tertiary plant or ground water recharge,
then you already have your pipe in. /(())
Mr. AMBRO. Let me ask you a question about the technology involved
in the Cedar Creek plant.
How is that being done?
With a consulting engineer?
Mr. CASPE. Yes.
It is being done by the same engineer that designed the Fleet's
Point, Suffolk County, plant.
Mr. AMBRO. Who do they look to or where do they look for plans and
specifications or this kind of a project?
Mr. HANSLER. They research the literature. They talk to professors.
They talk to the EPA people that have worked on advance waste
treatment.
Mr. AMBRO. Any places in the United States or in the world where you
have recharge of tertiary treatment for this size plant?
Mr. HANSLER. This will be the first and the biggest in the country.
Mr. AMBRO. In the world?
Mr. HANSLER. In the country.
Mr. AMBRO. How about Europe?
Mr. CASPE. I have heard something about here being something in
Germany, but I do not know much about it.
Mr. HANSLER. We have a system down in the Virgin Islands that was
established before we had EPA where they were recharging an aquifer.
They have to barge their water in. It is not nearly as sophisticated as
this.
I think they will probably have problems because of the salinity of
mixed wastes, of salt water for toilets and fresh water for drinking and
cleaning purposes.
This is a relatively clean project. They have good quality water to
begin with.
They end up with 85 or 90 percent treatment before it goes tertiary.
When it finishes with tertiary, I certainly would drink it, even
before it does into the ground water.
I have that kind of faith in it.
Mr. AMBRO. There is no question that European technology in many
areas is shockingly far ahead of ours.
For example, with respect to solid waste disposal and the kinds of
high temperature incinerators generating power that they have and we do
not, and we are just getting into.
Even Montreal is far ahead of us with respect to that.
Maybe somebody should go to Germany and see what they have. You
know, I think it might not be a bad idea to go over there and see what
they have and plagiarize it and have something which indeed is working.
I have not been over there to see it, but I think it is incumbent
upon you.
Mr. HANSLER. I think we should go over there in October.
Mr. AMBRO. I was thinking about November 3.
I am sorry about that.
I really think it has nothing to do with you in your segment of the
agency, but EPA is remiss in developing the kinds of technology in a
host of areas that would be beneficial to the myriad municipalities in
the United States on which revolve the function of solid waste disposal,
sewage waste disposal, and the like. /(())
They do not have the resources. They do not have the personnel.
They do not have the talent.
No matter how many people scream in Washington, there is still an
ongoing resistance by EPA.
In any event, with regard to this Cedar Creek plant, we have high
hopes, for somebody is reading the literature to develop a technology.
Your costs at the moment are estimated as $24 million with a total
eligible cost of $32 million.
Probably in 3 years it will go up to $3.3 billion.
We hope that it works, but it seems to me we can all put things
together a lot better.
I was not kidding about going to Germany.
Mr. HANSLER. A lot of people would like to get me out of New York.
I would like to talk about the Cedar Creek thing. I do not know if it
is going to be $3 billion.
A lot of the money on this project is because of the different
methods of applicaion.
A surface lake for percolation, fairly shallow wells for percolation
deep water recharge, it has to come up with a range of answers.
Mr. AMBRO. How about nitrate?
Mr. HANSLER. It does include nitrate removal.
That was the first thing you begin with because of the Long Island
and Jersey coastal situation.
Mr. AMBRO. How do they anticipate doing that?
Mr. MOLINERI. Biological nitrificaton, followed by advance waste
treatment consisting of physical chemical treatment, filtration,
activated carbon treatment and disinfection.
Mr. AMBRO. They are expensive technologies used in terms of physical
facilities.
Is that what you anticipate?
Mr. MOLINERI. The biological portion of the treatment plants are
larger than the conventional treatment plants, but activated carbon
units are smaller than what your conventional treatment units are.
Mr. AMBRO. How about energy costs?
Have you figured that out?
Mr. MOLINERI. Energy cost are high.
Mr. AMBRO. High?
Mr. MOLINERI. Yes.
This is part of the demonstration project, too; to evaluate the
operation and maintenance of this plant.
Mr. HANSLER. Nassau is going to an energy utilization program where
they will get a benefit from their garbage and their sludge. They are
doing that. They are under contract now.
I think they are only putting up $3 million of county money and it is
an $82 million project.
They are getting industry financing because of the technology that
has been developed around.
Mr. AMBRO. Did you hear the question I asked Mr. Flynn, who is the
Environmental Director in Suffolk County, with respect to this project?
I will repeat it anyway. /(())
I asked him if he thought that the project with respect to the
present design, its outfall pipe, its secondary treatment, is a project
that is not in need of any change and we do not have to shift to
recharge.
He said, yes.
Do you agree with that?
Mr. HANSLER. I do not think you have to change anything that has
been designed at this point in time, including the treatment plant.
I think the project does merit continued, you might say, overview
insofar as the aumentation aspect and insofar as the recharge aspect as
that is defined, and I am confident it is going to be well-defined,
under the present 208 plan which is underway in Suffolk County, and
required by law.
I would not want to say junk the project now.
I think that is the most foolhardy thing financially that the people
of Suffolk County could do.
It is no skin off the nose of the Federal Government. If the project
was stopped right now, under the law we would have to not only terminate
our funding, but receive back Federal funds because the project has been
stopped.
When the figures were thrown around by various people as to what it
is going to cost the taxpayer, I agreed with every citizen here.
I do not think that the local government has shown the price tag
fairly to the local voter and taxpayer. I think the $1.5 billion sign
or $1.4 billion sign is grossly inflated.
I think that because they are using the 38.9 present Federal share.
On October 15 that goes up because Congress has appropriated more
money for reimbursement to about 78 cents on the dollar instead of 64
cents on the dollar.
I think when Congress fully appropriates the reimbursement amount
that was promised back in 1966 they will have the full 55 percent.
Also, collection systems which were not eligible and not initially
planned for are on the present EPA approved priority list, which will
give another $110 million in Federal funding.
Before it was zero.
Plus, another 12 1/2% percent of State funding.
When you begin calculating down the $600 per year for the 83,000
families over a 35-year period, looking at what the law right now does
provide for and will provide for, I think when Congress appropriates
fully the reimbursement you are probably talking more like $200 to the
household.
Now, if we look at the cost of the overall project and add $200 or
$250 per year per household, over half of it is in the sewer system.
In many areas of the United States people have had their sewers for
100 years, 50 years.
Suffolk, for the first time, is putting in a sewer. It is putting in
a sewer from scatch on today's dollar, which is probably worth one-tenth
of what the dollar was in 1900.
I still think they are getting a bargain. /(())
Mr. AMBRO. Now, listen.
I want to pin this down because an awful lot of people around here
are very interested.
I think you used the word twice that the appropriations were made to
fulfill the authorizaton under the law raising the reimbursement from 55
to 75 percent.
Is that what you said?
Mr. HANSLER. No.
What I am saying is this is an old law project and the maximum grant
the Federal Government could give was 55 percent.
The actual grant was much less than that because the promise on the
part of the Federal Government was to pay in the future if the community
financed the Federal share locally.
Our original grant was what percent?
It was 4.7 percent to Suffolk.
That is all we could grant them because that was all the money
appropriated.
It then rose to 5.2 percent.
It is now up to 38.9 percent.
On about October 15 or before the first of November they will get
another check and a grant increase which will bring it from a 38.9
percent Federal share to somewhere between that and 55 percent, probably
up around 48 or 49 percent.
Mr. AMBRO. But, they budget the 55 percent.
Cost are coming in already. You are not giving them anything
additional.
Mr. HANSLER. They do not have the cash.
Mr. AMBRO. I thought what you were talking about was their hope
under Public Law 92-500, that that share would go from 55 to 75.
Mr. HANSLER. It will under the Grover amendment if Congress
appropriates the money.
Mr. AMBRO. This is the point I am making.
It has not appropriated the money?
Mr. HANSLER. That is right, and it has not appropriated the money to
go to 55 percent all the way, as yet.
Mr. AMBRO. Okay.
Look. Let us just get it straight once more.
The 55 percent is budgeted in Suffolk County.
The hope for an additional 20 percent is not.
Is that correct?
Mr. HANSLER. We could not glean that from Mr. Miazek. He said he
does not have all the figures upon which to make an analysis.
Mr. AMBRO. Well, it is my view that the financing plan includes a 55
percent grant.
That is the latest figures I have.
Is that 67 percent of the 55 percent that has been paid?
Mr. HANSLER. Right.
Mr. AMBRO. But, the plan includes the 55 percent?
Mr. CARNEY. No. No.
Mr. AMBRO. Who is responding back there?
Who are you?
Mr. CARNEY. I am Legislator Carney.
I am on the environmental control committee.
They only allow us to use 38.9. /(())
Mr. AMBRO. And your financial plan does not include the 55 percent
grant that is already authorized?
Mr. CARNEY. That is correct, sir.
Mr. AMBRO. OK.
So, what you are suggesting here then is that in the first place if
we can get appropriations to bring up the contributions on the Federal
level, to 55 percent, that will diminish --
Mr. HANSLER. That is right.
That will diminish the cost per homeowner.
Mr. AMBRO. Well, yes, but all the interest costs will still be the
local share; is that correct?
Mr. HANSLER. That is right.
On that point I testified before a couple of other committees.
We certainly support in this region a program where the
municipalities are not ripped off with high interest rates.
When Buffalo is paying 10.9 percent for their paper, as one person
said, that is obscene, and when you find that 60 percent of your
resulting costs to your homeowner are in interest, they cannot afford
it.
Those are the financial issues.
I would like to talk about another environmental issue in the project
design and how we have not had the benefit of newer technology with this
project.
The sludge disposal facilities here are, I think, in a wet burning
process called zimpro followed by incineration.
It is very expensive equipment. It is much more expensive than
dumping in the ocean. It is probably much more expensive than the
composting process which has been proven not only technologically and
from an environental standpoint, but from an economical standpoint.
It is difficult in knowing how you did business with consulting
engineers or how you did business back in the sixties or seventies, to
swallow the fact that we probably spent more money on the sludge
disposal process now than had we waited 5 years.
On the other hand, when I look at the alternative of your home
pesticides, your silver polish and everything else, going directly in
your ground water table, 30 million gallons a day, I come to the same
conclusion that the State health authorities, the local health
authorities, the county department of environmental control, have come
to; that you need a sewer system.
You need a sewer system in this highly congested area.
I have never been in an area in the country where you have a town
such as in the village of Farmingdale with laundries and restaurants and
little industries and when I said where does the sewage go they said it
falls in the ground water table.
Mr. AMBRO. You asked these questions of these people? You do not
have any jurisdiction in that area; do you?
Mr. HANSLER. No. I do not.
It is a State and local health agency decision.
But, when I hear people today testifying that there are home package
plants to put in, secondary treatment, then I look at all the facilities
in those old towns and the engineering cost per person to put in a
secondary treatment plant, and I think, where would you put it?
How would you put it in the basement of your building? /(())
It is amazing.
Maybe you can do this out in the periphery of the county and should
do it, but when you are talking about the older developed areas, here in
the Southwest, I think from a health standpoint you have to move ahead.
I think from a physical standpoint they have to move ahead.
I do not think that the physical picture is as bleak as has been
painted by the people who want to stop the project.
It was interesting to hear the person from EDF when the question was
posed by Congressman Wright, "Then you want to stop the project because
you want to stop growth," and he said, "Yes."
Mr. AMBRO. I do not admit that he said it that way because I have
lived around here a long time and can relate comprehensive plans, land
use plans, zoning practices, growth, and intensification of pollution.
There is no question there are opposing philosophical, if you will,
points of view with respect to limited growth on a fragile island like
this, on the one hand, and those who would say, you know, land use
practices should permit anything for a whole host of reasons.
There is a definite interface between those who suggest limited
growth policies within the framework of, let us say, an
interdisciplinary comprehensive plan underpinned with environmental
considerations, which we do not have.
What we have here is a traditional conventional area which is a
lithographer's delight with red and yellow and orange colors on a map
were they say we put commercial here and residential here and so forth.
That does not talk to the fact that the water supply is the most
precious resource on which this island rests, and if anything happens to
it it will be a barren wasteland.
I think that is why we are all here.
Apart from our special concern for the taxpayers in the area, which
every politician says and agrees to, preservation of that water supply
is absolutely essential for the survival of every human being on this
island and that is what it is all about.
Mr. HANSLER. That is right.
Mr. AMBRO. Now, when you get a whole bunch of engineers coming up
here and environmentalists, economists, auditors, conflicting and
everybody has to sort out and determine on balance what is best, the
bottom line is what is indeed best to preserve tht dwindling polluting
natural resource.
So, anyway, the hour is quite late. Everybody has been very patient.
It will take a while, even after the 2 weeks that the Chairman has
permitted for testimony from any and every quarter, for this to be
reviewed and for investigators to come back up here as a result of the
kinds of testimony we heard today and put together an interim file
report for action in terms of funding, tightening up loopholes in the
legislation with respect to the Federal agencies, and determining
whether or not we can provide some relief to the taxpayer, on the one
hand, and assure the preservation of those resoures, on the other.
Mr. HANSLER. I only have one last point.
I hoped it would not be an accusatory hearing. I do not think it has
been. /(())
I think it has been very much informative and has gathered
information.
Some of these difficult issues on recharge -- when and where and how
-- I think we are going to get these answers under the 208 process from
P.L. 92-500 and that is short term. That is 2 years.
I think we can do some things in the interim, as we have done with
the outfall. Mr. AMBRO. Let me ask you one question since you brought
that up again.
Why does it take 3 years to evaluate?
Mr. HANSLER. On the 208?
Mr. AMBRO. Yes.
Mr. HANSLER. Because it is a land used decisionmaking process as
well as it is a water quality management process.
I do not want to be the dictator and say where we are going to grow,
where you are going to have the green acres, how you are going to put
the red and green blocks in zoning.
That is a local decision and every one of these taxpayers ought to be
involved in the 208 process. It is their resource.
Mr. AMBRO. No. No.
I am talking about the time of construction of the Cedar Creek plant,
which is 2 years.
We were told the time of evaluation is 3 years.
Are you talking about evaluation from the point of view of land use
decisions, or are you talking about evaluation from the point of view of
technology?
Mr. HANSLER. I am talking about the evaluation of 208 land use
decisions.
Insofar as technology, I think we are going to have that Cedar Creek
thing proven well within the 5-year period.
Our virus and organic studies, insofar as what goes down in the
aquifer, will be completed within the next 2 yers.
The plant will be completed within the 2 1/2 years.
Mr. AMBRO. Do you have any input with respect to the water
management study that has been in part funded?
Mr. HANSLER. The 208 study?
Mr. AMBRO. The water management study for the region.
Mr. HANSLER. Yes.
It is the water quality management study.
We gave the grant.
Mr. AMBRO. How much?
Mr. HANSLER. One hundred percent grant.
Mr. AMBRO. About $1.5 million?
Mr. MOLINERI. $5 million.
Mr. HANSLER. $5 million.
Mr. AMBRO. $5 million.
When is that going to be completed?
Mr. HANSLER. That should be completed within 18 months.
The USGS, NOAA, the environmentalists, the developers, everyone has a
stake in the final recommendations made as to what they are going to do
on Long Island.
Mr. AMBRO. Mr. Hansler, I know that. /(())
I was a supervisor of the county that devised this cockamamy plan
that they have now, because we do not have a water management study and
because that consortium said you cannot develop any kind of planning
without that ingredient.
So, I know all about that.
I know all about the stakes in it.
I just want to know about the time the report would be finished.
You said 18 months?
Mr. HANSLER. It should be 18 months.
Mr. AMBRO. Then you say the time of completion of the Cedar Creek
plant would be 2 years.
But, then you say that the time of evaluation will be 3 years beyond
that.
I still do not understand that.
Mr. HANSLER. OK.
Mr. AMBRO. How long will it take to evaluate the technology?
Mr. HANSLER. They will evaluate the technology over 3 years, but
after 6 months of operating the plant they might say, hey, guys, it
works.
We can go someplace else. What they are going to say we do not know
for sure. We may have to go another year, 2 years, 3 years.
In the meantime, we have concurrent studies on viruses and organics
in your aquifer.
Mr. AMBRO. All right.
Mr. HANSLER. We did not think we would be out of the ocean by 1981,
but we probably will.
Mr. AMBRO. I did not think we would be out of here by 6:30.
I do appreciate you coming.
I know that this kind of repartee is interesting. It only touches on
a few of the points that were made verbally by all of those who preceded
you.
Full rebuttal or comment or augmentation does not come in these kinds
of encounters.
It comes in all of the documentation you provide after you read the
record.
So does the staff evaluation of what went on here and approaches we
will take, none of which I can determine at the moment.
But, I do indeed thank you for your patience.
I hope it was not too accusatory.
I thank everyone else for coming.
I appreciate your courtesy. This has been one of the finest public
hearings I have ever chaired.
(Applause.)
(Whereupon, at 6 p.m., the Committee on Public Works and
Transportation, Subcommittee on Investigaitons and Review, adjourned.)
(The following were received for the record:)
HRG COR
760924 999999
EDMUND G. CARROLL
DEMOCRATIC CANDIDATE, SIXTH ASSEMBLY DISTRICT, SUFFOLK COUNTY, N.Y.
--
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK, NEW
YORK 1976, STATEMENT OF EDMUND G. CARROLL, DEMOCRATIC CANDIDATE, SIXTH
ASSEMBLY DISTRICT, SUFFOLK COUNTY, N.Y. (PP 166 TO 170); 3 STATEMENTS
AND 2 LETTERS GROUPED
--
--
94-2
--
CW220458 CW220462 /
04501
(())
STATEMENT OF EDMUND G. CARROLL, DEMOCRATIC CANDIDATE, SIXTH ASSEMBLY
DISTRICT, SUFFOLK COUNTY, N.Y.
I have one piece of information to offer for your consideration. It
is my hope that this, when added to all of the other information you
have compiled, will prove that certain legal aspects attendant to the
southwest sewer district project have not been complied with. /(())
On September 3rd, 1976, one of the members of my staff requested a
copy of the order from the comptroller of the State of New York
approving the increase in costs in the southwest sewer district project.
He also requested a copy of the petition submitted by Suffolk County to
the State comptroller requesting this increase.
This request was made of Mr. Henry D. Classen, comptroller,
Department of Audit and Control, Suffolk County. I have attached a copy
of the answer we received from Mr. Classen. Mr. Classen referred the
writer to Mr. Arthur Imholz, deputy commissioner of environmental
control for this information.
The law of the State of New York dealing with the construction of
projects of this type demands that a copy of these two records I
mentioned be filed to effect such projects legally.
The answer received from Mr. Classen does not substantiate that this
was done. Public records of this type should be filed at the department
of audit and control in the county wherein the project is contemplated,
and should be available for public scrutiny.
COUNTY OF SUFFOLK,
DEPARTMENT OF AUDIT AND CONTROL,
September 16, 1976.
Mr. GERARD ARTHUS,
Brentwood, N. Y.
Dear Mr. Arthus: In response to your request for a copy of an order
from the Comptroller of the State of New York approving the increase in
costs in the Southwest Sewer District and also a copy of the petition
submitted by Suffolk County to the State Comptroller requesting this
increase, this is to inform you that for this information you should
contact the Suffolk County Department of Environmental Control -- Mr.
Arthur Imholz, Deputy Commissioner of Environmental Control -- 1324
Motor Parkway, Hauppauge, N.Y. 11787 -- Telephone 234-2622.
Very truly yours,
HENRY D. CLAUSSEN, Comptroller.
STATEMENT OF SUFFOLK COUNTY LEGISLATOR LOUIS T. HOWARD
Since the voters of the Southwesterner District approved the sewering
project in 1969, the Suffolk County Legislature has assumed the posture
of overseer of one of the largest public works programs in the country.
We have had to address ourselves to many and complex decisions,
involving escalated costs in 1975 and recently, to a realistic review of
the engineering, administrative and construction aspects of the sewering
program.
In spite of the unpopularity of such decisions, it is important to
note that they were formed after careful evaluation of informational
materials, and made in the best interest of the residents of Suffolk
County.
Due to the many investigations that were prompted this year, I appear
before you a better informed and wiser legislator -- BUT STILL AN
ADVOCATE OF SEWERING. Throughout that learning process and via natural
observations, one can only be made more cognizant of the imminent need
to preserve our lakes, streams, bays, and shellfish, but more
importantly, our drinking water. In studying the topographic features
of the island, and the environmental impact of hydrologic studies, the
only forseeable solution lies in recharge.
To this end, I pursue enlightenment upon as many feasible areas of
recharge as possible. Recently reviewed is material on the Lake Tahoe
project, Sonozone Tertiary Treatment, and as recent as this past
Tuesday, an on-site observation of the Lowlands Recharge System
(meadow-marsh-pond program) at Brookhaven Laboratory, (picture exhibit)
I will continue to pursue and review other innovative systems and
methodology in anticipation of compliance to future mandates related to
sewering.
Recharge is not an alternative to sewering -- it is but one solution
forward the preservation of Long Island's water supply.
I make no pretention to knowledge of or expertise in the technical
aspects of sewer design and installation. I am neither engineer nor
administrator. My legislative responsibility obligates me to the
selection of qualified individuals and the extraction of their quality
performance in behalf of the public interest. The design mandates of
the sewer project were precipitated at higher governmental levels but
emerge as a prime source of dilemma. Perhaps this committe could /(())
explore the mechanics and relationship of methods to insure a closer
liaison with officials of Suffolk County regarding aid distribution and
engineering and construction review.
An additional legislative commitment is to pursue any and all avenues
of assistance that will alleviate the financial burden of those
obligated to the completion of the Southwest Sewer District. And a
major crippling factor of the sewering program is financial. Aside from
the escalation in cost, the percentage of interest fostered on suffolk
County for sewer bonding has doubled in the past three years.
I stand before you in humility, pleading on behalf of my constituents
to elicit federal commitment to their survival. Poor, but proud, these
individuals struggle and make every effort to meet their obligation. I
call upon federal and state agencies to fully allocate the
appropriations they legislate. If federal assistance is available to
other national municipalities at 4 1/2% and 5% interest, why not to
Suffolk County also?
A recent prompting for the faith and credit of the federal government
to guarantee sewer bonding has resulted in the passage of such a measure
in the United States Senate. I urge your support for that bill's
passage in the appropriate session of the House.
I urge increased monitoring and periodic review by the House Public
Works Committee in an overview of the Southwest Sewer District.
An opportunity is at hand and the security and survival of the
taxpayers of the Southwest Sewer District is worth a coordinated effort.
COUNTY OF SUFFOLK, N. Y.,
COUNTY LEGISLATURE,
October 6, 1976.
HON. JIM WRIGHT,
Chairman, Subcommittee on Investigations and Review of the Committee
on Public works and Transportation, Washington, D.C.
DEAR CONGRESSMAN WRIGHT, CONGRESSMAN AMBRO, AND ALL COMMITTEE
MEMBERS: Now that I've had some time to reflect on your important
investigative Subcommittee hearing which took place in Suffolk County on
September 24, 1976, I'd like to offer some closing observations for the
inclusion in the official record.
After listening to all the witnesses at the hearing it is clear that
each represented a "vested interest", but only one of these "special
interests", represented by a number of speakers, can fairly qualify for
the understanding and sympathy of this committee; and that "special
interest" is the residents and taxpayers of the Southwest Sewer
District.
On the other side Commissioner Flynn, County Executive Klein, New
York State Department of Environmental Conservation, the Environmental
Protection Agency, the project engineers and the contractors all seem
much concerned about protecting their involvement and avoiding criticism
of this misguided project. But, it isn't these special interests (none
of whom live within the Southwest Sewer District) who will either pay
for or suffer the environmental damage generated by this project. No,
it is we, the "special interest" residents and taxpayers of the District
who will suffer the consequences.
Enclosed are approximately 300 sheets filled with about 4000
signatures collected by a handful of volunteers in a few days. I would
like to submit, for the record, these petitions which call for --
(1) a moratorium on all new sewer district contracts,
(2) a full, independent evaluation of the Southwest Sewer
project, and,
(3) a renegotiation of all existing Southwest Sewer contracts.
It is these petition-signers, only a small fraction of the
dissatisfied residents of the area, who must prevail for the sake of
these communities and the credibility of our government.
As stated by both New York State DEC and EPA only 15% of the
"eligible" work is complete. There is time now to stop and reconsider
this entire project; its scope, design and impact. Because of the
callous attitudes displayed by local representatives responsible for the
Southwest Sewer project we desperately look to you the Chairman and
members of the Public Works Committee, to offer the leadership necessary
to provide needed changes. You will not only be helping the residents
of the area, but also saving taxpayers throughout the nation
unnecessary, wasteful expense; and for the future setting a standard
that will encourage /(()) properly conceived, designed and implemented
waste water projects all over our great land.
Finally, once the new Congress convenes I look forward to coming to
Washington to meet personally with each of you and answer your
questions. Together I am certain we can find solutions.
Sincerely,
RICHARD G. LAMBERT,
County Legislator
STATEMENT OF EDWARD F. MOORE, JR., STUDENT, STATE UNIVERSITY OF NEW
YORK, FARMINGDALE
The Law and the Word
What is it that I am trying to communicate to the American people and
the World? I believe those good forces above already know the Truth.
Why is it that the men of the present cannot see the man of the future?
Why do we crucify the Good Truth of life? Can you not see what I am
talking about? Whom I am talking About? I am talking to you the people
in this present world about the True Man.
To Socrates, as he said at his trial, what the Athenians seemed to
need most in these years of bitter discomfiture was not a siren to
flatter and soothe them with sham promises of a speedy return of
prosperity and grandeur, but a gadfly to sting them to unflinching Self
Examination, to see where in the past they had been wrong-headed and
mistaken and how with patience and hard thinking, they might yet build
better lives for themselves and for their city.
President Richard M. Nixon was the American gadfly. Yet President
Richard M. Nixon is not a social bee but an Individual American. Yes he
was conficent in the Justice of his cause. Yes, he believed that what
he did was right.
All he asked of the American People was that they listen to the Truth
of his words, and given heed to them. Let the speaker speak truly, and
the judge decide justly.
A man who is good for anything, ought not to calculate the chance of
living or dying: He ought only to consider whether in doing anything he
is doing right or wrong -- act the part of a good man or a bad man. The
Presidency should come first and Politics second. To the maximum extent
possible therefore, President Richard M. Nixon sought to delegate
campaign operations, and to remove the day-to-day campaign decisions
from the President's office and the White House. He also severely
limited the number of his campaign appearances. Yes, the President had
to choose his role, but let us Understand that we in the free world have
to live or die by the proposition that the people have a right to
choose.
Being the Commander in Chief of all the armed forces thus President
Richard M. Nixon, with faith in what he believed was right took upon his
shoulders the responsibility of defending the lives of American Men.
First, as you know this war, while it was undeclared, was there when
President Richard M. Nixon became President of The United States, I am
stating the fact that there were 549,000 Americans in Vietnam under
attack when President Richard M. Nixon became President.
During the Korean War General MacArthur believed that restrictions
should be lifted against attack on basis in the Manchurian "sanctuary"
and urged that the Chinese coast be Blockaded.
The President of The United States has the Constitutional Right --
not only the right but the responsibility -- to use his powers to
protect American Forces when they are engaged in military actions. The
Legal Justification is the one I have given and that is the right of the
President of the United States under the Constitution to protect the
lives of American men. You may recall, of course, that Korea was also
an undeclared war and then we justified it on the basis of a U.N.
action.
Why didn't the President go to the Senate, for example, and the
House, and ask for their approval on Command Decisions: As far as the
President was concerned, He had to think of what was right, what was
necessary, what would save American Men, and the element of surprise was
important. He did not think it was wise to give the enemy the advance
notice, the strategic warnings, which would have taken away the surprise
and would have cost us lives.
There are times, when the Commander in Chief the President of the
United States, will have to act quickly. True Courage is when a Man
takes a stand against Public Opinion and does what he believes is right.
/(())
Our forefathers understanding the maxim of the power always
expressing itself in terms of the instrument through which it works,
decided the Executive Power shall be vested in a President of the United
States of America.
The Constitution of the United States is the law, The President is
the personality through which it works. Limit the power of the
PRESIDENT; Limit the personal element of free will and you limit
action.
The President will set the law working in the right direction. It
must be a word of confidence in its own power. The President is the
spirit of the Constitution: the spirit of the law. It is time we the
people respect the constitution and her spirit.
President Richard M. Nixon was a true soldier, a man of duty, man of
honor, a man of country. He believed in the spirit of the people. Did
the people believe in the spirit of the man? He believed in his Nation.
Did the Nation believe in him? He walked in the light of truth and
darkness tryed to put it out. The truth of an old soldier does not die
and does not fade away.
God Bless America. God Bless The People. God Bless Nixon.
HRG COR GRA OTH
760924 750917
THE STRONG'S NECK CLINIC ASSOCIATION POLLUTION COMMITTEE
SETAUKET, N.Y.
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE ON
INVESTIGATIONS AND REVIEW
IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT (REVIEW OF THE
SOUTHWEST SEWER DISTRICT, SUFFOLK COUNTY, LONG ISLAND, NEW YORK) 1976,
FACT SHEET OF THE STRONG'S NECK CIVIC ASSOCIATION POLLUTION COMMITTEE,
SETAUKET, N.Y., (PP 170 TO 172)
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94-2
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CW220462 CW220472 /
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FACT SHEET OF THE STRONG'S NECK CIVIC ASSOCIATION POLLUTION COMMITTEE,
SETAUKET, N.Y.
Re opposition to Suffolk County's massive regional sewering program.
Southwest District and proposed regional Suffolk County Sewer District
8; including all or parts of Old Field, Port Jefferson
Station-Terryville, Poquott, Belle Terre, Stony Brook, the Setaukets and
Strong's Neck.
Estimated cost: Hulse and Comsewogue Rds. Site, East Setauket,
Proposed Nucleus of Suffolk Co. Regional Sewer Dist. 8 -- $27,400,000
including est. $4,100,000 Long Island Sound outfall pipe. (cost to the
taxpayers cannot be determined at this time). Dry sewer lines installed
-- Harbor View -- opposite Main St. School, Main St. Setauket.
Estimated cost: Alternate proposal upgrading Port Jefferson Sewage
Plant, $27,400,000. (Cost to the taxpayers cannot be determined at this
time.)
Estimated mandatory nitrate removal when feasible for Recharge would
add 50% to Capital and Operating cost of Treatment Plant. (Cost to the
Taxpayers cannot be determined at this time.)
Suffolk County's highly controversial southwest sewer district now
under construction
1969 voters approved bond issue ------------------ $291,750,000
1975 Suffolk County legislature increased bonding 349,000,000
Estimated 40-year construction bond Interest ----- 495,750,000
Total estimated cost without recharge ------1,136,500,000
Estimated groundwater recharge cost -------------- 150,000,000
Estimated cost ocean outfall pipe ---------------- 70,000,000
With rapidly developing Federal, state and Local fiscal problems,
there can be no positive Funding Guarantee.
Long Island's unique water supply - Nassau and Suffolk Counties
depend on their Ground-water Reservoir as a sole source of water supply.
The Ground-water Reservoir is replenished by average yearly
precipitation -- 44.1 inches, Strong's Neck Weather Station +++ founded
1887. Doubt of the 60's -- almost one year's precipitation lost -- not
included. The precipitation percolates into the Groundwater, purified
by one of Long Island's greatest assets -- its Sand and Gravel Filtering
System -- one of the finest in the world. The System is visible in our
sand and gravel mines -- also the Bluffs of the North Shore. Open space
necessary for percolation is lost due to population increases
accompanied by massive development, concrete and blacktop, the
introduction of sewage outfall pipes to surrounding salt water and
excessive pumping which substantially decrease the Groundwater Reservoir
+++ Example -- Kings County is almost completely sewered and developed.
Rain water and sewage are collected and disposed of through outfall
pipes. The area water table was lowered to 35' below sea level.
Naturally salt water intruded the Groundwater Reservoir. Disaster was
averted by importing public water from upstate. Latest readings show
the water table is rising -- three explanations -- minimal pumpage,
recycling air conditioning cooling water and leaky power lines whose
systems now need billions for rehabilitation. /(())
Massive regional sewering with bay and ocean outfall without
Groundwater Recharge caused groundwater levels to decrease substantially
causing salt water intrusion +++ Kings, Queens and Southwest Nassau.
Ninety-five percent of Long Island's surface waters +++ streams, lakes,
ponds and shoreline seepages, springs are directly associated with our
Groundwater and decline proportionately. As the Groundwater levels
decline, the shoreward movement of fresh water decline with significant
disruption of the very productive brackish estuarine North and South
Shore Environments.
1. Temporary State Commission of the Water Supply Needs of
Southeastern New York +++ Nassau's critical water deficit +++
importation of water by 1985 +++ Flood skimming Hudson river,
contaminated by industrial, municipal and agricultural wastes, at Hyde
Park with purification and transmission capabilities to Nassau.
There is no County division of our Groundwater Reservoir. Nassau
County's deficit will directly lower Suffolk County's Groundwater
supply.
2. Taxpayers have spent millions to acquire recreational areas and
have unknowingly spent billions on massive regional sewering which
without Groundwater Recharge will eventually destroy these areas.
3. Commercial hard shell clamming more than $1,000,000 industry
supplying over 60% of the nation's consumption +++ adversely affected.
It has been estimated Proposed Suffolk Co. Sewer Dist. 8 with Long
Island Sound outfall will lower the North Shore water table 7' The
Southwest Sewer Dist. with Ocean outfall will lower the South Shore
water table 10'.
1. Hydrologists dispute this calculation as being too low.
Outfall pipes. -- It is an undisputed fact Long Island Sound, Bay and
Ocean outfall introduce contamination to our fragile mobile marine
environment.
1. Nassau's newest Sewage Complex 120 mgd +++ million gallons per
day +++ Wantagh-Seaford with $54,281,000 seven mile outfall pipe +++
longest in the U.S. +++ leaked 9.5 mgd into South Oyster Bay for 19
months and is now leading 1,400 feet south of Jones Beach.
The Ocean outfall 2 1/2 miles south of Gilgo, Jones Beach, has yet to
withstand the ravages of a tropical hurricane and severe winter storms.
2. Proposed estimated $70,000,000 Southwest Bergen Point 30 mgd
Ocean outfall, just FIVE miles east of the Wantagh-Seaford Ocean
outfall, 3 miles west of Fire Island Inlet, via Great South Bay, will
discharge 3 miles south of Cedar Island.
3. Proposed Suffolk Co. Sewer Dist. 8 initial 5 mgd estimated
$4,100,000 Long Island South outfall pipe will discharge 1 mile west of
the mouth of Port Jefferson Harbor.
Since the waters of Long Island Sound move in a sloshing action from
west to east, the proposed outfall will be carried to the finest beaches
of the North Shore.
Contaminants in our groundwater reservoir. -- Many contaminants enter
our water supply +++ 135 known pollutants. Significant pollution from
road run-off, contamination from leaky sewer pipes, and from fertilizers
and pesticides +++ farms, gardens, well-manicured suburban lawns and
golf courses. Significant degradation also by Sanitary Land Fill +++
garbage dumps. Suffolk County's regulations permit installation of
cesspool systems only 2' above Groundwater levels. Our Groundwater will
continue to degrade despite massive regional sewering with
environmentally destructive outfall to Ocean and Long Island Sound.
1. Several systems in Nassau Co. built post World War II need
millions for rehabilitation.
2. Three mile, 13 year old, connecting pipeline between the State
University at Stony Brook and Port Jefferson Sewage Plant ruptured 9
times in the Last 3 years. Last rupture contaminating our Bays and
Harbors closed 735 acres to shellfishing.
3. Southwest Sewer Dist. area with high Groundwater levels should be
served by a series of small modern, most advanced properly designed
sewage plants with simple Groundwater Recharge north of Sunrise Highway
+++ carefully monitored by Suffolk County Department of Environmental
Control. (SCDEC)
A. Design and equipment can be standardized and computerized.
Standardization reduces engineering costs.
B. Collection piping cheaper, less complex and smaller. Waste
materials travel shorter distances. The costs of transmission
from a peripheral waste source to a regional sewage treatment
plant are enormous.
C. Proper site planning with adequate buffer zones and
landscaping must be implemented.
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The Water Cycle
prepared by
Suffolk County Water Authority
Oakdale, New York
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Areas closed to shellfishing
GRAPHIC OMITTED
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D. Nitrates can be removed in the small sewage complex.
Required Jan. 1974 SCDEC. Nitrate removal is not now feasible in
Regional sewage plants. When feasible, mandatory nitrate removal
would add an estimated 50% to the capital and operating cost of
the sewage plant. Final cost to the Taxpayers of the Southwest
Dist. cannot be determined. The small sewage complex with nitrate
removal and simple Groundwater Recharge is a complete system +++
final cost to the Taxpayers can be determined.
E. Costly estimated $70,000,000 environmentally destructive
Ocean outfall unnecessary.
F. Small plants can be constructed faster than one monster
plant.
Sludge. -- Suffolk County is now incinerating sludge. To protect our
environment, the wise use of sludge is not incineration but fertilizer
+++ expensive and in short supply +++ Example +++ Milorganite,
Milwaukee, Wis., the conversion of sewage solids into an all organic
fertilizer, manufactured since 1919. The Town of Brookhaven is turning
sludge from the Manorville Landfill Site into topsoil to be used in
Brookhaven Park Sites.
The simple, environmentally sound and economical solution to protect
our unique groundwater reservoir water supply is not massive regional
sewering with ocean and Long Island Sound outfall but the installation
of small modern sewage systems with groundwater recharge in high density
areas where needed +++ Example State University at Stony Brook, a high
density educational community. Continue with cesspools in the remaining
areas using our natural sand and gravel filtering system. We can then
maintain our groundwater-surface water equilibrum Suffolk County does
have a carefully monitored public water supply. When and if necessary,
groundwater purification at the well head. Water purification system
now in operation +++ Nassau Co., Garden City Park Water District.
Members of the Strong's Neck Civic Association Pollution Committee
have prepared these fact sheets for your immediate consideration and
action.
We ask the support of Suffolk County Executive John V.N. Klein, the
Suffolk County legislature, County Executive John V. N. Klein's
appointed Suffolk County Dept. of Environmental Control Commissioner
John Flynn. The support of every voter and taxpayer of Suffolk County
to reverse the present and continuing degradation of our Suffolk County
environment due to Suffolk County's present costly, environmentally
destructive massive regional sewering program with ocean and Long Island
Sound outfall.
DEB
760922
PACKWOOD
US SENATOR
--
CLEAN WATER ACT OF 1977, REVISING THE SECTION 404 PERMIT PROGRAM (P
1425)
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CW220473 CW220473 /
04503
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94th Congress
LD-4A (Rev. Jan. 71)
BILL S. 2710
DATE 9/22/76
PAGE(S) S16419
ACTION: Remarks by Mr. Packwood
REVISING THE SECTION 404 PERMIT PROGRAM
Mr. PACKWOOD. Mr. President, on September 1, the Senate passed the
Federal Water Pollution Control Act Amendments of 1976. In addition to
reauthorizing the grant program for wastewater treatment, the bill
modifies the section 404 permit program currently administered by the
Army Corps of Engineers. Legislative action in this area was made
necessary by recent court decisions and administrative actions that have
extended the program beyond the limits originally intended by Congress.
The traditional definition of "navigable waters" falling under
jurisdiction of the Corps of Engineers included waters that have been
used, are presently used, or could be used in the future for commercial
water transportation. It was within these parameters that the 404
permit program was initially implemented.
Seeking to extend Federal protection to activities affecting
wetlands, the Natural Resources Defense Council filed suit to require a
broader definition of the Corps' jurisdiction. In March of 1975, the
NRDC against Callaway decision was handed down in district court
requiring the Corps to adhere to the description of "waters of the
United States" found in Section 402 of the Federal Water Pollution
Control Act (Public Law 92-500). These include: First, navigable
water; second, tributaries of navigable waters; third, interstate
waters; and fourth, intrastate waters used for recreation, fishing or
industry comprising interstate commerce.
In response to the court decision, the Corps of Engineers published
section 404 regulations to be implemented in three stages over a 2-year
period. We have now moved into phase II which extends 404 coverage to
primary tributaries, associated wetlands, and lakes. By July 1, 1977,
the program will cover all tributaries, interstate waters, waters
meeting the interstate commerce test and associated wetlands.
Mr. President, both Congress and the Corps have established their
priorities for preserving and protecting the waters of the United States
and the various components of this delicate ecosystem. Both Public Law
92-500 and the implementing regulations leave no question as to our
intention to prevent harmful disruption of the Nation's wetlands,
streams, rivers, lakes, territorial seas, and other navigable waterways.
I firmly believe, however, that it was not the intent of Congress to
cause the harmful disruption of farming, ranching, and silvicultural
activities in the process. The Corps of Engineers has taken some
recognition of this in promulgating regulations which exempt a largely
undefined class of "normal" activities in these areas, I do not think it
is satisfactory, however, to leave our farmers and foresters in this
kind of limbo, subject to the regulatory whims of the Federal
Government. Forestry and agriculture are too important to the economic
health of Oregon and many other States.
Congress is still faced with the job of making the section 404 permit
program workable. The administrative quagmire that the corps has
stepped into has the potential for dragging responsible farming and
forestry operations down with it.
The approach to this problem taken by the House restricts the 404
program to jurisdiction over traditionally navigable waters and their
adjacent wetlands. Unfortunately, this solution would leave waters in
many parts of the country without adequate protection.
The Baker-Randolph amendment is preferable by virtue of its specified
exemptions for normal agricultural and silvicultural activities. I am
disappointed, however, that under the guise of exempting related
roadbuilding activities from the corps under section 404, the approach
embodied in the Senate bill requires instead that they be "constructed
and maintained in accordance with guidelines promulgated by the
Administrator" of the Environmental Protection Agency.
It is my sincere hope, Mr. President, that the conferees meeting
today to work out a compromise will deal with the real problems of
Federal interference with our farmers and foresters. The mere shifting
of responsibilities from one agency to another is not a meaningful
approach.
DEB
760920
RANDOLPH
US SENATOR
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CLEAN WATER ACT OF 1977, DISCHARGE OF A CONFEREE (P 1426)
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CW220474 CW220474 /
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94th Congress
LD-4a (Rev. Jan. 71)
BILL S. 2710
DATE 9/20/76
PAGE(S) S16234
ACTION: Conferee discharged
DISCHARGE OF A CONFEREE
Mr. RANDOLPH. Mr. President, I ask unanimous consent that the
Senator from North Dakota (Mr. BURDICK) be discharged as a conferee on
S. 2710, a bill amending the Federal Water Pollution Control Act. Mr.
BURDICK was appointed a conferee in error.
The PRESIDING OFFICER. Without objection, it is so ordered.
HSM
760916
JAMES C. CLEVELAND
US REPRESENTATIVE
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FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, FEDERAL
NONFEASENCE IN CLEAN WATER PROGRAM (PP 5905 TO 5906)
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92-500
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CW220475 CW220476 /
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94th Congress
LD-4b(Rev. Jan. 71)
BILL 92d Pub. L. 500
DATE 9/16/76
PAGE(S) E5084-5085
REMARKS: by Mr. Cleveland: GAO References on pages 5084(2)(3) and
5085(1)
FEDERAL NONFEASENCE IN CLEAN WATER PROGRAM
HON. JAMES C. CLEVELAND
OF NEW HAMPSHIRE
IN THE HOUSE OF REPRESENTATIVES
Thursday, September 16, 1976
Mr. CLEVELAND. Mr. Speaker, I would like to bring to the attention of
my colleagues a recent report of the General Accounting Office entitled
"Improvements Needed in Operating and Maintaining Waste Water Treatment
Plants (LCD-76-312) (June 18, 1976)."
The Federal Water Pollution Control Act Amendments of 1972 (Public
Law 92-500) and Executive Order 11752 require Federal facilities to
comply with Federal and State water quality standards. Yet, according
to this GAO report, many Department of Defense waste water facilities do
not meet these standards and the DOD has not taken measures to insure
compliance by the statutory deadline of July 1, 1977.
I am most disturbed by these findings.
First, this nonfeasence will delay our efforts to clean up our
Nation's precious waterways.
Second, the Federal Government's failure to toe the mark sets a poor
example for other governmental and nongovernmental parties regulated
under Public Law 92-500. If Federal facilities do not make a strong
effort to clean up our waters, why should a State or a municipality or
an industry?
Finally, and most importantly, the Federal Government's disregard for
its own laws will further erode public confidence in Government. As
Justice Brandels observed in Olmstead v. United States, 277 U.S. 483,
485 (1928):
Our Government is the potent, the omnipresent teacher. For good or
for ill, it teaches the whole people by its example.
Rather than dragging their feet, Federal agencies should lead the way
in complying with pollution control requirements. Not only should they
meet the letter of Public Law 92-500, but they should embrace the spirit
of the law to reduce pollution to the maximum extent feasible.
I am concerned with the GAO's conclusion regarding DOD waste water
treatment facilities. The pessimist in me says that the DOD is not
atypical and that numerous other Federal facilities may fail to meet the
statutory deadline mandated by the Clean Water Act.
Justice Brandels went on in Olmstead to make the following
observation:
If the government becomes a law breaker, it breeds contempt for law;
it invites every man to become a law unto himself; it invites anarchy.
We would do well to heed his warning.
ILLEGIBLE of the GAO report, I call on Congress to already monitor
the progress of all Federal facilities to ILLEGIBLE /(()) every effort
is made to comply with the pollution control laws of the United States.
Mr. Speaker, I insert the digest of the Comptroller General's report
to the Congress in the RECORD:
Comptroller General's Report to the Congress: Improvements needed in
Operating and Maintaining Waste Water Treatment Plants. Department of
Defense
Digest
Executive Order 11752 requires each Federal agency head to insure
that facilities under this jurisdiction are designed, constructed,
operated, and maintained to comply with Federal and State water quality
standards.
The Federal Water Pollution Control Act, as amended, requires that
these standards be met by July 1, 1977. Many Defense facilities do not
meet these water quality standards and Defense has not taken measures to
insure compliance by July 1, 1977. (See pp. 2 and 17.)
In view of the improvements needed and time required to accomplish
them, GAO recommends that the Congress amend the Federal Water Pollution
Control Act to provide that the Environmental Protection Agency may
grant Federal agencies extensions to achieve water quality requirements
beyond July 1, 1977, where necessary. (See p. 22.)
Because effectiveness of the Defense waste water treatment program is
seriously impaired by problems of design, operation, and maintenance of
facilities, GAO recommends that the Secretary of Defense direct the
Secretaries of the Army, Navy, and Air Force to establish the necessary
controls for insuring that waste treatment facilities comply with
effluent limitations and water quality standards. Defense should have
the military services:
Determine the capabilities of all treatment plants and the
improvements in plant and operations needed to meet effluent limitations
and water quality standards.
Price out, budget for, and program improvements in plant, laboratory
equipment, staff, and training that would bring plants into compliance
with applicable water quality standards.
Monitor the progress of improvements by using internal operating
reports and evaluations made by the Environmental Protection Agency and
environmental groups within Defense. (See p. 17.)
Defense generally agreed with GAO's recommendations and said it would
emphasize the requirements of the executive order and the actions needed
to conform with the applicable effluent limitations and water quality
standards.
The Environmental Protection Agency concurred with GAO's
recommendations to the Secretary of Defense and said that proper
staffing and staff training, preventive maintenance programs,
replacement of obsolete equipment, and implementation of adequate
laboratory testing programs should be emphasized. (See p. 18.)
GAO rated the condition of 20 waste water treatment plants by using
Environmental Protection Agency criteria. Of these 20 plants, 1 was
found satisfactory, 1 was conditionally satisfactory, and 18 were
unsatisfactory. Some improvements were needed at all 20 plants. The
problems identified involved (1) plant design, (2) inoperable equipment,
(3) lack of testing equipment and procedures and (4) shortages of
qualified plant-operating personnel. (See ch. 2.)
GAO also reviewed about 380 evaluations of Defense treatment plants
made by the Environmental Protection Agency, environmental groups within
Defense, consulting engineers, and State agencies and noted that the
evaluations had identified similar problems at many other Defense
treatment plants. (See ch. 3.)
Officials at many locations said that the lack of operation and
maintenance funds kept them from obtaining equipment and filling
authorized positions. Some plants had not requested funds for needed
test equipment. Several officials said that denial of authorization for
additional staff hindered their hiring operators and that trained
operators were hard to find. According to a 1975 Environmental
Protection Agency survey, the services had failed to identify those in
need of training. As a result, the services were required to operate
the plants as best they could with untrained or inadequately trained
operators. (See pp. 9, 10, and 11.)
All three services cited improvements that they made or are making at
many of the plants that GAO visited. The Army and Navy said that plans
were underway to implement the recommendations. The Air Force said that
it would make a comprehensive survey of all plants and would develop a
monitoring system to insure that water quality standards are met. (See
pp. 20 and 21).
Some of the plants GAO examined are over 30 years old and are
outmoded. Although problems of outmoded plants, difficulty in hiring
trained operators, and shortages of funds contributed to the existing
conditions. Defense is not relieved of its responsibility to comply
with the water quality standards established by law. GAO believes that,
to overcome these problems, all administrative levels need to emphasize
waste water treatment processes. (See p. 3).
HSM
760915
BO GINN
US REPRESENTATIVE
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September 15, 1976
CONGRESSIONAL RECORD - Extensions of Remarks
IMPORTANT ISSUE TO BE CONSIDERED
HON. BO GINN
OF GEORGIA
IN THE HOUSE OF REPRESENTATIVES
Wednesday, September 15, 1976
Mr. GINN. Mr. Speaker, there is an especially important issue that
will be considered when conferees are appointed on S. 2710, amendments
to the Federal Water Pollution control Act. This issue involves
reimbursement of funds to 62 communities in 19 States which have been
declared ineligible for what I consider to be their equitable share of
Federal assistance for waste treatment works projects.
These communities should have been eligible for full 55 percent
matching Federal grants for their water pollution control projects under
section 206 (a) of Public Law 92-500 because they had begun construction
of the projects prior to July 1, 1972. However, the Environmental
Protection Agency on June 26, 1973, issued regulations which had the
effect of redefining the definition of initiation of construction. As a
result, these 62 communities were ruled ineligible for 55-percent
funding. Most of those communities could have taken steps to meet the
new definition, but, of course, the definition was announced after the
cutoff date.
To correct this inequity, the House of Representatives passed section
8 of S. 2710 to set the construction date at July 1, 1973, rather than
July 1, 1972. It is my hope that all Members of Congress will give this
matter their closest attention and will work to persuade the Senate
conferees to yield to the House by agreeing to section 8 without
changes.
As a matter for further information, I include a listing of those
communities affected by section 8 in the RECORD at this point:
PROJECTS THAT WOULD QUALIFY FOR REIMBURSEMENT UNDER SECTION 206(a) PL
92-500 IF THE CUT-OFF DATE IS CHANGED FROM JULY 1, 1972 to JULY 1, 1973
PROJECT, CONSTRUCTION DATE, REIMBURSABLE AMOUNT
Alabama
Alabama WSPFD: August 15, 1972, $255,833.
Connecticut
Department of Mental Health: February 28, 1973, $108,800.
Florida
Jasper: May 1, 1973, $52,965
South Bay: July 11, 1972, $129,075.
Dunedin: August 31, 1972, $357,000
Hollywood: October 1, 1972, $1,595,000
Manatee County: December 6, 1972, $1,965,920.
Green Cove Springs: August 21, 1972, $144,175.
Florida total $4,244,135.
Georgia
Port Wentworth: November 3, 1972, $59,914.
Garden City: December 20, 1972, $174,551
Brunswick: February 16, 1973, $762,740
Fort Oglethorpe: July 14, 1972, $366,850.
Grantville: August 10, 1972, $75,387.
Cairo: May 9, 1973, $140,118.
Thomaston: February 1, 1973, $139,700.
Augusta: August 7, 1972, $545,473
Fulton County: November 1, 1972, $1,316,328.
Bibb County: October 6, 1972, $104,316.
Colquitt: November 24, 1972, $82,496
Floyd County: April 18, 1973, $121815.
Edison: March 19, 1973, $15,075.
McRae: May 22, 1973, $149,600.
Hazelhurst: October 16, 1972, $84,867.
Reidsville: January 24, 1973, $31,460
Statesboro: April 1, 1973, $277,200.
Warner Robins: August 17, 1972, $740,599.
Covington: October 19, 1972, $318,780.
E. Dublin: June 20, 1973, $110,000.
Conyers: November 15, 1972, $245,290.
Macon: October 13, 1972, $893,910.
Georgia total, $6,756,469.
Indiana
Cedar Lake: August 1972, $151,500.
Grand View: September 1, 1972, $31,510.
Indiana Total, $183,010.
Kentucky
Russell Springs: March 1, 1973, $59,800.
Mississippi
Quitman: August 28, 1972, $54,000.
Biloxi: June 29, 1973, $177,700.
Prentiss: October 9, 1972, $3,830.
Mississippi Total, $235,530.
Montana
Have: September l, 1972, $98,200.
New Mexico
Taos: April 2, 1973, $18,536.
North Carolina
Raleigh: January 25, 1973, $45,985,300.
Oklahoma
Oklahoma City: September 1, 1972, $6,313,105.
Tulsa: January 11, 1973, $2,118,750.
Oklahoma total, $8,431,855.
Oregon
Wallowa: November 2, 1972, $49,132.
Astoria: August 22, 1972, $1,920,600.
Oregon total, $1,969,732.
Pennsylvania
Upper Allen TWP: May 7, 1973, $346,005.
Berun: August 1, 1972, $90,450.
Manheim: June 1, 1973, $33,600.
Cambridge Springs: November 1, 1972, $46,350.
Lemoyne: August 1, 1972, $780,080.
Orbisonia-Rockhill Authority: October 6, 1972, $45,815.
Pennsylvania total, $1,342,300.
South Carolina
St. George: March 13, 1973, $5,000.
Mullins: May 1, 1973, $194,400.
South Carolina total, $199,400.
Texas
Needville: August 13, 1972, $28,203.
Dallas: September 25, 1972, $23,020.
Texas total, $51,323.
Virginia
Wakefield: July 1, 1972, $6,350.
Washington
N.E. Lake: December 11, 1972, $486,430.
Sedro Wolley: November 8, 1972, $246,397.
Kelso: July 14, 1972, $59,825.
Milton: July 7, 1972, $180,980.
Tacoma: November 20, 1972, $251,540.
Concrete: October 1, 1972, $63,874.
Washington Total, $1,289,046.
West Virginia
Raleigh County Airport: January 1, 1973, $42,400.
Wyoming
Gillette: October 1, 1972, $183,905.
Grand total, $71,461,924.
DEB
760915
RANDOLPH
US SENATOR
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94th Congress
LD-4a (Rev. Jan. 71)
BILL S. 2710
DATE 9/15/76
PAGE(S) S15893
ACTION: Water Pollution Control: Senate insisted upon its amendment
to the House amendments to S. 2710, authorizing funds for certain
programs under the Federal Water Pollution control Act, agreed to
conference with the House and appointed as conferees Senators Randolph,
Muskie, Burdick, Culver, Hart of Colorado, Buckley, Baker, and Stafford.
Page S15893
FEDERAL WATER POLLUTION CONTROL AUTHORIZATIONS
Mr. RANDOLPH. Mr. President, I ask the Chair to lay before the Senate
a message from the House of Representatives on S. 2710.
The PRESIDING OFFICER (Mr. FORD) laid before the Senate a message
from the House of Representatives announcing its disagreement to the
amendment of the Senate to the amendments of the House to the bill (S.
2710) to extend certain authorizations under the Federal Water Pollution
Control Act, as amended, and requesting a conference with the Senate on
the disagreeing votes of the two Houses thereon.
Mr. RANDOLPH. I move that the Senate insist upon its amendment and
agree to the request of the House for a conference, and that the Chair
be authorized to appoint the conferees on the part of the Senate.
The motion was agreed to; and the Presiding Officer appointed Mr.
RANDOLPH, Mr. MUSKIE, Mr. BURDICK, Mr. CULVER, Mr. GARY HART, Mr.
BUCKLEY, Mr. BAKER, and Mr. STAFFORD conferees on the part of the
Senate.
DEB
760914
JONES
US REPRESENTATIVE
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94th Congress
LD-4 (Rev. Jan. 71)
BILL S. 2710
DATE 9/14/76
PAGE(S) H10017
ACTION: Water Pollution: House disagreed to the Senate amendment to
the amendments of the House to S. 2710, to extend certain authorizations
under the Federal Water Pollution Control Act, as amended; and asked a
conference. Appointed as conferees: Representatives Jones of Alabama,
Roberts, Wright, Roe, Johnson of California, Anderson of California,
Breaux, Harsha, Don H. Clausen, and Cleveland. Page H10017
APPOINTMENT OF CONFEREES ON S. 2710
Mr. JONES of Alabama. Mr. Speaker, I ask unanimous consent to take
from the Speaker's table the Senate bill (S. 271) to extend certain
authorizations under the Federal Water Pollution Control Act, as
amended, with Senate amendments to the House amendments, disagree to the
Senate amendments, and request a conference with the Senate.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Alabama? The Chair hears none, and appoints the
following conferees: Messrs. JONES of Alabama, ROBERTS, WRIGHT, ROE,
JOHNSON of California, ANDERSON of California, BREAUX, HARSHA, DON H.
CLAUSEN, and CLEVELAND.
DEB
760910
MANSFIELD ROBERT C. BYRD
US SENATOR US SENATOR
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94the Congress
LD-4a (Rev. Jan. 71)
BILL S. 3037 DATE 9/10/76 PAGE(S) S15521
ACTION: Indefinitely postponed
ORDER TO INDEFINITELY POSTPONE S. 3037
Mr. MANSFIELD. Mr. President, I ask unanimous consent that Calendar,
No. 827, S. 3037, a bill to extend certain authorizations under the
Federal Water Pollution Control Act, as amended, be indefinitely
postponed.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(Later the following occurred:)
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the
action taken earlier today to indefinitely postpone Calendar No. 827, S.
3037, be vitiated, and that S. 3037 be placed on Subjects on the Table.
The PRESIDING OFFICER. Without objection, it is so ordered.
HBI
760908
LENT
US REPRESENTATIVE
HOUSE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION
CLEAN WATER ACT OF 1977, H.R. 15478 A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT RELATING TO PROGRESS PAYMENTS FOR CONSTRUCTION
COSTS. (PP 1750 TO 1752)
H.R. 15478
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94TH CONGRESS
2D SESSION
H.R. 15478
IN THE HOUSE OF REPRESENTATIVES
September 8, 1976
Mr. LENT introduced the following bill; which was referred to the
Committee on Public Works and Transportation
A BILL
To amend the Federal Water Pollution Control Act relating to progress
payments for construction costs.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That subsection (b) of
section 203 of the Federal Water Pollution Control Act (33 U.S.C. 1283)
is amended to read as follows;
"(b) The Administrator shall from time to time, make payments to the
recipient of a grant for construction costs, These payments shall not
exceed the Federal share of the estimated total cost of construction of
the project. If, upon completion of the project, payments under this
section have been made which exceed the total Federal share of the
actual /(()) cost of construction of such project, the Administrator
shall certify the amount of such overpayment to the Secretary of the
treasury who shall reduce the payments to me made to the recipient of
such overpayment (including proportional reductions in the case of an
interstate agency) during the next succeeding entitlement period under
the State and Local Fiscal Assistance Act of 1972 by an amount equal to
such overpayment. If the amount of such overpayment is not repaid
during the first such entitlement period, the amount so not repaid shall
be deemed a loan and shall be repaid from payments to be made during the
next succeeding entitlement periods, together with interest at an annual
rate of 1 per centum per annum greater than the current average market
yield on outstanding marketable obligations of the United States with
remaining periods to maturity comparable to the maturity of such loan,
as determined by the Secretary of the Treasury.".
/(())
94TH CONGRESS
2D SESSION
H.R. 15487
A BILL
To amend the Federal Water Pollution Control Act relating to progress
payments for construction costs
BY MR. LENT
September 8, 1976
Referred to the Committee on Public Works and Transportation
DEB
760901
EDMUND S. MUSKIE
US SENATOR
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CONGRESSIONAL RECORD
Proceedings and Debates of the 94th Congress
LD-4a (Rev. Jan. 71) SENATE
BILL S. 2710 DATE 9/1/76 PAGE(S) S15160-15189
ACTION: Water Pollution Control: Senate agreed to the House
amendment to S. 2710, authorizing funds for certain programs under the
Federal Water Pollution Control Act, with an amendment (Muskie amendment
No. 2231) in the nature of a substitute, to which Senate had at first
taken action on amendments, as follows:
Adopted: Huddleston unprinted amendment No. 417, to define the term
"Previously subject" as it relates to lands used for the production of
food fiber or forest products. Page S15185
Rejected:
(1) Stafford unprinted amendment No. 415, to provide that no State
receive less than one-third of one percent of funds allocated for fiscal
year 1977 for construction of water treatment works, and authorizing
additional $50 million for such purpose (rejected by division vote);
and Page S15176
(2) By 39 yeas and 40 nays, Tower unprinted amendment No. 416 vesting
in Corps of Army Engineers primary responsibility to issue permits for
dredge or fill material in areas adjacent to navigable waters (by 41
yeas and 38 nays, Senate agreed to motion to reconsider vote by which at
first, by 39 yeas and 38 nays, it agreed to this amendment; and
rejected, by 34 yeas to 35 nays, motion to table motion to reconsider.
Page S15177
Pages S15161-S15189
/(())
FEDERAL WATER POLLUTION CONTROL AUTHORIZATIONS
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will now resume consideration of S. 3037, which will be stated by
title.
The second assistant legislative clerk read as follows:
A bill (S. 3037) to extend certain authorizations under the Federal
Water Pollution Control Act, as amended.
The ACTING PRESIDENT pro tempore. The time for debate on this bill
is limited to 2 hours, to be equally divided and controlled by the
majority and minority leaders or their designees, with 1 hour on any
amendment in the first degree and with 20 minutes on any amendment in
the second degree, debatable motion, appeal, or point of order.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the
following staff members of the Committee on Public Works be allowed the
privilege of the floor during the consideration of and any votes on the
pending measure: John Yago, Philip T. Cummings, Richard Harris, Richard
Grundy, Leon Billings, Sally Walker, John Freshman, Bailey Guard, Ric
Herod. James Range, Harold Brayman, Jackee Schafer, Kathy Cudipp, Judy
Parente, and Steve Swain.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that S. 3037 be
laid aside and that the Senate proceed to the consideration of S. 2710,
as passed by the House, in lieu thereof. I will explain to the Senate
later why that is necessary.
The ACTING PRESIDENT pro tempore. Is there objection? The Chair
hears none, and it is so ordered.
The ACTING PRESIDENT pro tempore laid before the Senate the
amendments of the House of Representatives to the bill (S. 2710) to
extend certain authorizations under the Federal Water Pollution control
Act, as amended.
(The amendments of the House are printed in the RECORD of June 3,
1976, beginning at page H5285.)
Mr. MUSKIE. Mr. President, does the time agreement apply to S. 2710?
The ACTING PRESIDENT pro tempore. By unanimous consent, the time
agreement does apply.
Mr. MUSKIE. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. On whose time?
Mr. MUSKIE. The time not to be charged to either side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. MUSKIE. Mr. President, I yield 5 minutes to the distinguished
Senator from Alabama, from the 2 hours on the bill, to speak on a
morning hour item. If we need the 5 minutes later, I will ask the
Senate to provide it.
Mr. ALLEN. I thank the distinguished Senator from Maine.
DEB
760901
EDMUND S. MUSKIE
US SENATOR
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FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1976
The Senate continued with the consideration of the bill (S. 2710) to
extend certain authorizations under the Federal Water Pollution Control
Act, as amended.
Mr. MUSKIE. I yield myself possibly 10 minutes to begin.
Mr. President, I do not know that I need that much time uo present
the essentials of the pending legislation. However, because we are
waiting for the first amendment, I shall use that time to explain the
bill, if I may, I shall be happy to terminate my discussion of the bill
at such time as the author of the first amendment appears on the floor
to present it.
Mr. President, the Senate has pending on the calendar an
authorization bill for the Federal water pollution program. That
legislation was reported prior to May 15 in order to comply with the
requirements of the new congressional budget process. At the time, the
Committee on Public Works was deeply involved in pending clean air
legislation and could not attend to the more complex and urgent
questions related to the Federal water pollution law.
In addition, last year the Senate passed and sent to the House an
authorization measure for water pollution programs other than the
construction grant program. That bill has been returned to the Senate
with a House amendment. The House amendment is comprehensive in scope.
It deals with a number of issues which have not been considered in
detail by the Senate Committee on Public works. In fact, we decided
that a number of the issues in the House bill could appropriately await
a comprehensive review of water pollution programs next year.
Thus, there are pending in the Senate two bills: S. 2710 as amended
by the House and S. 3037, which is a bare bones authorization. The
Committee on Public Works has met since the recess to decide on a course
of action with respect to these bills.
The committee tried to isolate those matters which were absolutely
essential for consideration this year. We have developed an amendment
which includes six major items and two minor items. Five of the major
items are in some form addressed by the House. The committee proposes
to offer these eight items as an amendment to the House passed bill. We
expect the House to ask for a conference on the disagreements between
the Senate amendment -- in the second degree -- and the House amendment
to S. 2710.
Further, it is our intention to withhold action on S. 3037, the bare
bones authorization bill. We will, if necessary, ask for Senate action
on S. 3037 at such time as it appears that a conference agreement on the
more comprehensive and controversial issues addressed by these
amendments cannot be reached.
Mr. President, I ask unanimous consent that a detailed description of
the committee amendment be included at the end of my prepared remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. MUSKIE. Mr. President, I included that description in the RECORD
for yesterday but for purposes of continuity in today's legislative
history I have asked that it be printed again.
This description, in lieu of a committee report, is intended to
provide the type of legislative history that would be in a committee
report. This description reflects the intention of the committee and,
therefore, should be useful in the future to those who look to
legislative history for a more complete understanding of the actions of
Congress. I would like to comment briefly on the provisions of the
amendment.
One of the most controversial elements with which we had to deal was
the question of the regulations of the Corps of Engineers regarding the
discharge of dredge and fill material in the Nation's navigable waters.
For a variety of reasons these regulations have stimulated great
controversy. There have been a number of solutions proposed to that
controversy.
As I have indicated in a separate statement of this issue, I
personally preferred a course of action which would have eliminated the
authority of the corps to become involved in this important
environmental control program. Conversely, the House amendment provides
that the discharge of dredge and fill material will, for all practical
purposes, not be regulated from an environmental point of view.
The committee amendment, sponsored by Senators RANDOLPH and BAKER, is
a middle ground. It seeks to exempt from regulation those normal human
activities which might otherwise be construed as resulting in the
discharge of dredge or fill material, but which were never intended to
be regulated by the Congress in the Clean Water Act. I think it is
important to underscore this point.
The 1972 Clean Water Act intended to regulate the discharge of
pollutants from point sources. It was our intention to control that
which we could control though the application of technology, process
change, and innovative control methods. We knew when we passed the 1972
act that nonpoint sources could not be regulated in the same manner. We
knew that there were serious institutional inhibitions to mounting a
major Federal regulatory effort to control the normal runoff of farm and
forestry operations and the myriad of other activities which, while
resulting in water pollution, were not point source discharges.
The Baker-Randolph amendment exempts from regulation specifically the
following activities:
Normal farming, timbering and ranching activities including ponds and
ditches;
Maintaining existing structures, such as dams and dikes;
Constructing and maintaining forest and mining roads that meet basic
environmental criteria;
Disposal of dredge and spoil in EPA approved areas where the State
administers the program.
Mr. President, let the record show that the Senate committee,
hopefully with the concurrence of the Senate, does not intend to permit
the intrusion of the Federal Government in those many individual
activities which the corps of Engineers without authorization would seek
to regulate.
The Baker-Randolph amendment is important in another respect. It gets
the Corps of Engineers out of the business of /(()) making environmental
decisions in all but those portions of the navigable waters which relate
to, are adjacent to, or contiguous with traditional and historical
navigation. The corps' responsibility to protect navigability is
recognized. The corps' inability to make environmental decisions is
recognized.
The purpose of this legislation is to keep the corps in the
navigation maintenance business and keep the Environmental Protection
Agency in the environmental protection business.
Mr. President, as important to the Nation as the section 404
controversy has become, the legislation before the Senate would not have
been considered except for the important question of continued funding
of the water pollution construction grant program. A number of States
will run out of money for construction grants beginning shortly after
the end of this fiscal year.
The administration has proposed no new construction grant funds. The
House bill proposes a 3 year, $17 billion authorization. This amendment
proposes $5 billion to be apportioned among the States on the basis of a
formula which is designed to reflect needs and population and,
hopefully, political support.
These funds are needed. In my State, they are essential to
environmental improvement and employment. They are needed to keep
momentum in the water pollution program. And they are limited.
We have limited the authority to 1 year because we want to have the
opportunity to comprehensively review the Water Pollution Control Act
next year. Hopefully, at that time we may find a better way to
apportion these funds.
In addition, Mr. President, this legislation provides an extension
for the date for reallotment of funds previously allocated to the
States. This amendment is important to certain States which, for a
variety of reasons including impoundment, will be be able to use the
funds allocated to them prior to September 30, 1977. These States will
use the money. They have a backlog of projects. They need more time to
obligate those funds efficiently.
Not to extend the reallotment date would mean that these States would
spend moneys on projects such as collection sewers, which were not
intended to receive a high priority under the 1972 Water Pollution
Control Act. The committee hopes and expects that the Administrator,
with this additional time for obligation, will act to insure that these
funds as well as the new funds are not obligated for projects which are
not required to meet the deadlines and the effluent limitations for
municipalities established in the act.
And these deadlines for municipalities are important. For a variety
of reasons including impoundment, underestimation of the demand for
funds excessive bureaucratic interference and deliberate slowdown in the
distribution of funds, a number of communities will not meet the
deadlines for achieving effluent limitations reflecting secondary
treatment. The existing Act provides a remedy. Enforcement orders must
be issued and civil and criminal penalties must be assessed.
Although the absence of Federal funding is not a defense to
compliance with the deadlines for communities, those deadlines were
premised on the availability of Federal funds. Therefore, this
legislation extends the deadlines for municipalities to 1980.
That new date is a recommendation of the National Commission on Water
Quality. It is a sufficient extension to permit the Congress time to
adequately reevaluate the construction grant program and the regulatory
requirements associated therewith. In addition, this provision takes
into account the fact that certain industries may have made the decision
to participate in municipal waste treatment facilities rather than build
their own independent facilities. This extension is available to those
industries that had prior to December 31, 1974 -- the final date of
which permits were required under the 1972 act -- established their
intention to discharge through a municipal system.
Finally, Mr. President, there is an amendment sponsored by Senator
BUCKLEY of New York comparable to a provision in the House bill
sponsored by Congressman NOWAK. This amendment is intended to provide
financial assistance to those communities which because of limitations
on local financial capability have been unable to finance the local
share of project cost. Its purpose is to insure that communities can
move ahead to meet the requirements of the law where excessive interest
rates and inflation have forced them to delay or defer the construction
of these needed projects.
The committee considered and decided not to include a proposal
offered by Senator BENTSEN to provide authority and funding for States
to manage the construction grant program. Senator BENTSEN'S proposal
was similar to a provision of the House bill entitled "State
Certification."
Members of the committee recognize the value of decentralization of
the construction grant program. However, the committee believes this
amendment should be deferred pending an overall review.
The decentralization of the program, while important, represents only
one of the issues that the committee feels needs to be examined, along
with such questions as eligibility, percentage of Federal grants and
long-range Federal financial commitments. The committee has stated its
intention to conduct a full examination of all of the major water
pollution issues in 1977. At that time, Senator BENTSEN'S amendment
will be a high priority.
In deferring action on this proposal, the committee took into account
the fact that many of the Nation's major metropolitan sewage agencies
would prefer to deal directly with the Federal Government. It is their
contention, expressed through the Association of Metropolitan Sewerage
Agencies, that they have the technical management and engineering
capability to receive Federal funds directly.
In addition, members of the committee have expressed concern about
the problems of small communities which lack the ability to determine
what kind of waste treatment system would be most appropriate for their
area and lack the management capability to oversee the consulting
engineers and the contractors who come in to do this work. The
committee would hope to find a way for the States to become the grant
applicant and grant manager for these communities.
Mr. President, the House of Representatives addressed a number of
other controversial but less urgent amendments to the Water Pollution
Control Act in their amendments to S. 2710. The committee determined
that in addition to time constraints, the need for a comprehensive
review of the act suggested a more austere course of action. The
committee recommends that the Senate limit consideration to a minimum
bill including only those items critical to the operation of the water
pollution control program.
The amendment proposed by the Senate Public Works Committee achieves
that purpose. The committee will undertake a complete examination of
the water pollution control program next year. The remaining issues in
the House proposal will be considered at that time. For the benefit of
the Senate, I ask unanimous consent to include a description of those
provisions following the description of the committee amendment.
The ACTING PRESIDENT pro tempore. With objection, it is so ordered.
(See exhibit 2.)
Mr. MUSKIE. Mr. President, one further comment on the difference
between the House and the Senate approach to this problem this year.
In the House, the jurisdiction over clean air and clean water
legislation is divided. The House Commerce Committee has jurisdiction
over clean air legislation and the House Public Works Committee over
clean water legislation.
The Senate Committee on Public Works has jurisdiction over both.
On the Senate side, we have been preoccupied all this year and all
last year with clean air legislation which the Senate enacted just a few
weeks ago.
That severely limited our ability to engage in a comprehensive review
of water pollution legislation. It is only for that reason that we have
not been able to match the efforts of the House Public Works committee
-- and I do not denigrate their efforts at all -- this year. Hopefully,
we can get on track next year.
This bill is an effort to at least deal with the major and immediate
issues in the field.
EXHIBIT 1
DETAILED DESCRIPTION OF COMMITTEE AMENDMENT
AUTHORIZATIONS - SECTION 1
The Committee amendment includes authorizations for the extension of
the water pollution control program through FY 1977. These same
authorizations had previously been considered and reported by the
committee in the form of S. 3037.
A $5 billion authorization is provided for the grant program for
construction of municipally-owned waste treatment works. Other
authorizations include State program grants and other operating /(())
programs. Following is a breakdown of the authorizations provided in
this Committee amendment:
Section 104 -------------- $10,000,000
Section 106 -------------- 75,000,000
Section 112 -------------- 25,000,000
Section 207 -------------5,000,000,000
Section 208 ------------- 150,000,000
Section 314 ------------- 150,000,000
Section 517 ------------- 350,000,000
While there is currently $8 billion remaining in obligational
authority for the construction grant program, information provided by
both EPA and the National Governors Conference indicates that about half
the States will run out of funds if a new authorization for FY 1977 is
not provided. An authorization of $5 billion will be sufficient to
carry all the States which would otherwise run out of funds. The
Environmental Protection Agency indicates that approximately $1.5
billion can actually be obligated to specific projects next year but a
total authorization of $5 billion is required to insure that each State
capable of using its full allotment has sufficient funds made available.
EPA estimates minimal fiscal year 1977 outlays, approximately $50
million, pursuant to the obligation of the $1.5 billion.
GRANTS FOR TRAINING FACILITIES - SECTION 2
The Committee amendment includes a proposal offered by Senator Culver
which would raise the ceiling on individual grants for training
facilities from $250,000 to $500,000. Experience to date indicates that
the $500,000 ceiling would be more in line with current needs. This
provision does not increase the overall authorization in the Act since
these grants come out of the State's allotment of construction grant
program.
REALLOTMENT - SECTION 3
The Committee approved an Administration amendment to extend by one
year the date by which currently authorized funds must be obligated.
There is approximately $8 billion currently outstanding in the
construction grant program. The States must obligate all of their
current allotment by September 30, 1977, if they are to avoid losing
those funds to reallotment. While some States will have no difficulty
in obligating their total allotment, other States may find themselves in
the position of losing funds on September 30, 1977. The Committee is
concerned that funds are being misused by the States to avoid
reallotment. Therefore, the Committee extended the reallotment date by
one year, thereby making the currently allotted funds available to the
States through September 30, 1978.
ALLOTMENT - SECTION 4
The Committee amendment also includes a formula for the distribution
of the construction grant funds authorized for FY 1977. The formula
distributes the funds on the following basis: 50% on the basis of
partial needs (needs expressed by the States in the 1975 Needs Survey
for secondary treatment, compliance with water quality standards, and
interceptor sewers), 25% on the basis of total needs (needs expressed by
the States in the 1975 Needs Survey for partial needs plus collector
sewers, combined sewers, and infiltration inflow), and 25% on the basis
of 1975 population. This formula does not utilize any estimates of
needs of treatment of stormwater.
The table below shows the percentage each State would receive of the
appropriated funds under the construction grant program and the dollar
amount each State would receive if the $5 billion were fully
appropriated:
Alabama --------------------.0110 ... $55,000,000
Alaska ---------------------.0048 .... 24,000,000
Arizona --------------------.0064 .... 32,000,000
Arkansas -------------------.0109 .... 54,500,000
California -----------------.0831 ... 415,500,000
Colorado -------------------.0081 .... 40,500,000
Connecticut ----------------.0123 .... 61,500,000
Delaware -------------------.0040 .... 20,000,000
District
of Columbia ---------------.0040 .... 20,000,000
Florida --------------------.0361 ... 180,500,000
Georgia --------------------.0201 ... 100,500,000
Hawaii ---------------------.0070 .... 35,000,000
Idaho ----------------------.0041 .... 20,500,000
Illinois -------------------.0526 ... 263,000,000
Indiana --------------------.0219 ... 109,500,000
Iowa -----------------------.0111 .... 55,500,000
Kansas --------------------- 0123 .... 61,500,000
Kentucky ------------------- 0151 .... 75,500,000
Louisiana ------------------.0126 .... 63,000,000
Maine ----------------------.0055 .... 27,500,000
Maryland -------------------.0382 ... 191,000,000
Massachusetts --------------.0279 ... 139,500,000
Michigan -------------------.0473 ... 236,500,000
Minnesota ------------------.0152 .... 76,000,000
Mississippi ----------------.0076 .... 38,000,000
Missouri -------------------.0200 ... 100,000,000
Montana --------------------.0020 .... 10,000,000
Nebraska -------------------.0062 .... 32,000,000
Nevada ---------------------.0030 .... 15,000,000
New Hampshire --------------.0068 .... 34,000,000
New Jersey -----------------.0480 ... 240,000,000
New Mexico ----------------- 0026 .... 13,000,000
New York -------------------.1062 ... 531,000,000
North Carolina -------------.0209 ... 104,500,000
North Dakota ---------------.0019 ..... 9,500,000
Ohio -----------------------.0560 ... 280,000,000
Oklahoma -------------------.0136 .... 68,000,000
Oregon ---------------------.0084 .... 42,000,000
Pennsylvania ---------------.0471 ... 235,000,000
Rhode Island ---------------.0040 .... 20,000,000
South Carolina -------------.0132 .... 66,000,000
South Dakota ---------------.0016 ..... 8,000,000
Tennessee ------------------.0150 .... 75,000,000
Texas ----------------------.0434 ... 217,000,000
Utah -----------------------.0051 .... 25,500,000
Vermont --------------------.0022 .... 11,000,000
Virginia -------------------.0222 ... 111,000,000
Washington -----------------.0155 .... 77,500,000
West Virginia --------------.0218 ... 109,000,000
Wisconsin ------------------.0201 ... 100,500,000
Wyoming --------------------.0012 ..... 6,000,000
Virgin Islands -------------.0005 ..... 2,500,000
Puerto Rico ----------------.0090 .... 45,000,000
American Samoa -------------.0003 ..... 1,500,000
Trust Territories ----------.0020 .... 10,000,000
Guam -----------------------.0010 ..... 5,000,000
.. Total ------------- ... 1.0000 . 5,000,000,000
AREAWIDE PLANNING - SECTION 5
The Committee addressed two issues that have resulted from the
extremely slow implementation of Sec. 208. The Congress had intended --
and provided adequate funds -- for the 208 plans to be completed by 1976
or 1977.
Firstly, the Committee amendment contains language which provides
that, for the first two years of operation of any agency designated to
conduct an areawide waste treatment management planning process under
section 208, the amount of the Federal grant shall be 100 percent of the
costs. The purpose of this amendment is to provide new designations
equity with those agencies which were designated before June 30, 1975.
Under the terms of the existing law, new designations are only eligible
for 75 percent grants for the first two years planning costs.
Secondly, the Committee amendment assures that each Sec. 208 agency
shall have a full three years, as provided in the original statute, to
complete its initial plans.
LOAN GUARANTEES - SECTION 6
The Committee amendment includes a proposal offered by Senator
Buckley to provide loan guarantees for grantees otherwise unable to
raise the local share for construction of a sewage treatment facility.
This provision provides the Administrator of the Environmental
Protection Agency the authority to guarantee loans made by the Federal
Financing Bank (by purchasing obligations issued by the grantee) for the
non-Federal share of construction costs if the grantee is unable to
finance its share at a reasonable rate.
In order for a grantee to be eligible to sell its bonds to the
Federal Financing Bank, EPA would certify that the grantee is unable to
obtain the necessary credit on reasonable terms and that there is
reasonable assurance that the loan would be repaid. Such reasonable
assurance would imply the adoption by the grantee of some system of user
fees to assure repayment. Also, iin the case of a default, any future
reimbursement funds paid to the grantee would be available for repayment
of the loan.
MUNICIPAL TIME EXTENSION - SECTION 7
The Committee recognizes that many municipalities, through no fault
of their own, will violate the deadlines of achieving secondary
treatment unless the law is amended. And the Committee recognizes that
many industries have, in good faith, made commitments to join in
municipal treatment systems. These industries would also find
themselves in violation of the law through no fault of their own. The
committee has provided an extension on a case-by-case basis of the Acts
time requirements to July 1, 1980 for municipalities to achieve
secondary treatment effluent limits. The same time extension will be
available to industries who have committed themselves to those
municipalities so long as applicable pretreatment requirements are met.
The provision is consistent with the overall regulatory requirements
of the Act for municipalities who have not used their funds wisely and
industries who have been avoiding compliance with the law are faced with
enforcement actions.
For municipalities it requires assurance by the State that it is
spending its money on essential projects designed to meet the Act's
regulatory requirements. The State is the applicant for the extension.
Lack of Federal funds or inability to finance the local share are
certainly justifications for an exemption. Misuse or diversion of funds
from the basic enforcement requirements of secondary treatment by
1977-78 are not.
For industries the provision requires either a permit, issued on or
before January 1, 1975 (the Act's final date for permit issuance), or an
enforceable contract, on or before that same date which stipulates the
source's intention to discharge into a municipal system to which an
extension is being granted. This was included to assure that industries
which have deliberately not complied with their treatment requirements
are not eligible for time extensions.
The Committee amendment: (1) authorizes the Administrator, upon
application by the State, to provide case-by-case extensions to the
1977-78 requirements of the law;
(2) provides that no time extension shall extend beyond July 1, 1980;
(3) allows the exemption for municipalities where Federal financial
assistance has not been available for sufficient time or inflation or
other factors beyond the control of the community have made it
impossible for them to raise their local share even though funds are
available;
(4) authorizes industrial sources an extension if the industry has
previously committed to join the municipal system;
(5) requires industry to meet all applicable pretreatment
requirements; and
(6) excludes Federally-owned treatment works from the extension
provision.
The Committee is anxious to be fair and assure that municipalities
and industries are not penalized for action they cannot control. We are
equally anxious to be fair and not penalize the good citizens who are
complying with the Act's requirements by allowing wholesale violation of
the Act's deadlines by those communities which have been recalcitrant.
For the first reason, we have provided /(()) an exemption with some
discretion. For the second reason, we have limited the discretion to
specific criteria.
In so doing we have attempted to create a balanced and fair exemption
procedure.
PERMITS FOR DREDGE AND FILL MATERIAL -- SECTION 8
This section of the Committee amendment modifies Section 404 of the
Federal Water Pollution control Act, P.L. 92-500 which provides
regulation of discharge of dredged and fill material. This program was
established as an exception to the Section 402 permit authority and was
added to P.L. 92-500 in Conference with the House and derives from a
provision in the House bill.
On July 25, 1975, the Corps of Engineers promulgated regulations for
implementation of this authority. Those regulations are in effect for
coastal waters and coastal wetlands contiguous or adjacent thereto and
inland waters used for navigation together with contiguous and adjacent
wetlands (described as Phase I waters in those regulations).
Regulations applicable to the discharge of dredge and fill material into
primary tributaries, lakes and adjacent wetlands (so-called Phase II
waters) were scheduled to go into effect July 1, 1976, but have been
delayed by Presidential Order to provide Congress an opportunity to
review the issue. Discharges of dredge and fill material into the
remainder of the navigable waters (Phase III waters) would be subject to
regulation on July 1, 1977.
The Public Works Committee held oversight hearings on the Corps
regulations on July 27 and 28, 1976 to determine the basis for the
regulations and examine the controversy generated thereby.
The issues divide into five main categories:
1. Jurisdiction: intrusion of the Corps into regulation of waters
beyond the scope of its navigation authorities;
2. The scope of review: the extent to which permit applications
must be reviewed by other than the administering agency;
3. State Programs: the extent to which the States will be
authorized to administer the program;
4. Exempt Activities: Regulation of activities which are
administratively inappropriate, such as non-point source discharges
resulting from farming, ranching and silviculture;
5. General Permits: regulation of routine activities of minimal
environmental significance.
Each of these issues is dealt with in the Committee amendment.
SEC. 404 JURISDICTION
The initial issue in consideration of the Section 404 controversy was
the extent of the waters in which discharges of dredged spoil and fill
material will be regulated.
The 1972 Federal Water Pollution Control Act established
comprehensive jurisdiction over the Nation's waters. This decision was
the result of extensive and careful study and debate. In its report on
that legislation, the Senate Public Works Committee stated "waters move
in hydrologic cycles and it is essential that discharge of pollutants be
controlled at the source. Therefore, reference to the control
requirements must be made to the navigable waters, portions thereof, and
their tributaries."
It is the objective of the 1972 Act to protect the physical, chemical
and biological integrity of the Nation's waters. Extension of
jurisdiction narrowly to waters used or susceptible to use for
navigation would not accomplish this purpose. Discharges of dredge or
fill material into tributaries of these waters, toxic pollutants for
example which would disrupt the chemical biological integrity of the
waters will directly and adversely affect their quality. To so limit
the jurisdiction of the Federal Water Pollution Control Act with
reference to discharges of the pollutants dredged or fill material would
not achieve the Act's objectives.
The Committee amendment rejects the redefinition of navigable waters.
It limits only the jurisdiction of the Corps of Engineers for control
of those pollutants to waters regulated under the Corps' authority
through Section 10 of the rivers and Harbors Act of 1899 (and all
contiguous and adjacent wetlands). Under the Committee amendment, the
Corps retains this jurisdiction over the permit program until the
approval of a State program.
The Committee also rejected the mean high water mark boundary for
Phase I waters. Such a division is neither environmentally or
administratively sound.
This mean high water line is an artificial boundary from an
ecological standpoint since aquatic areas above and below the line are
inextricably interrelated and interdependent.
From the administrative standpoint, the line is not ascertainable
from the biological or physical character of the waters but must be
determined by engineering surveys which have proved to be unreliable and
expensive.
SCOPE OF REVIEW
Implementation of the Section 404 authority of the Corps of Engineers
is complicated by application of the National Environmental Policy Act
which requires a detailed review in addition to that contemplated by
P.L. 92-500. This requirement expands the scope of review for issuance
of permits to environmental considerations beyond the intent of the
authority. Under Section 404, the Corps of Engineers must include a
permit review in addition to water quality concerns, potential secondary
impacts upon land, air and economic factors extraneous to the purpose of
P.L. 92-500.
The Committee believes that administratively the breadth of review of
the current program imposes an impossible burden on the permitting
authority. The transfer of authority for permit control of discharges
of dredged and fill material to Section 402 initially for Phase II and
III waters but upon approval of State permit programs for all waters
will streamline permit review and expedito issuances.
The Environmental Protection Agency and State permit programs under
the Committee amendment would apply the criteria and guidelines of
Section 404(b)(1). However, the scope of review would be water quality
focused, since permit issuances under Section 402 authority are not
subjected to NEPA review. For example, under Section 402 permit
requirement, the 402 (c)(1)(C) economic test applicable under the
present program and included in EPA guidelines under the Committee
amendment would be focused specifically on these economic impacts
associated with fishing and other water-related commercial activities
deriving directly from the effects of disposal of the controlled
pollutants. For permits issued under Section 404 authority, these
economic considerations may include the effects of future development
due to permitted activities on the local tax base, labor markets, etc.
STATE PROGRAMS
The Committee amendment is in accord with the stated policy of P.L.
92-500 of "preserving and protecting the primary responsibilities and
rights of States to prevent, reduce and eliminate pollution." It
provides for assumption of the permit authority by States with approved
programs for control of discharges of dredged and fill material in
accord with the criteria and with guidelines comparable to those
contained in 402(b), 404(b)(1) and 404 (c).
By using the established mechanism in Section 402 of P.L. 92-500,
the Committee anticipates that authorization of State management of the
permit program will be substantially expedited. At least twenty-eight
State entities which have already obtained approval of the National
Pollutant Discharge Elimination System under that section should be able
to assume the program immediately.
The use of this mechanism will also expedite State authorization
because the Administrator only has to amend guidelines under Section
304(h)(2) of the Act to establish the exact procedures and other
requirements that a State must meet to achieve approval of its program.
Under the amendment, a State may elect to seek approval of a dredge
and fill permit program independent of any application for approval of a
National Pollutant Discharge Elimination system program. This will
prevent any delay in processing applications for the National Pollutant
Discharge Elimination System.
The amendment also provides that a State may elect to administer its
dredge and fill permit program independent of the National Pollutant
Discharge Elimination system program. Several States have already
established separate State agencies to control discharges of dredge and
fill materials. These agencies need not be the same as the National
Pollutant Discharge Elimination System agency. The Committee expects
the Administrator to insist that any designation of a non-National
Pollutant Discharge Elimination System agency be accompanied by a
demonstration of full capability to adequately administer this program.
Although discretion is granted to establish separate administration
for a State permit program, the authority of the administrator to assure
compliance with guidelines in the issuance and enforcement of permits
and in the specification of disposal sites which is provided in section
402 (c) through (k) and 404 (c) is in no way diminished or compromised.
The authority for control of discharges of dredged and fill material
granted to a State through the approval of a program pertains solely to
the environmental concerns reflected in the specific guidelines set
forth in the amendment, and the responsibility of the Corps of Engineers
under the Rivers and Harbors Act of 1899 to protect navigation is not
affected or altered by this amendment.
EXEMPT ACTIVITIES
The Committee amendment utilizes the point-source and non-point
source distinction in the Act to clarify the control requirements for
farming, silviculture and ranching.
While these non-point source activities are specifically exempted
from the permit requirements relating to dredge and fill discharges,
existing authorities in the Act for control of these activities are not
abridged.
In addition to normal farming and silvicultural activities, the
construction of farm and forest roads is exempted. The Committee feels
that permit issuances for such activities would delay and interfere with
timely construction of access for cultivation and harvesting of crops
and trees with no countervalling environmental benefit. The guidelines
for construction of exempt roads require that the construction, use and
maintenance of the roads not significantly alter the biological
character or the flow and circulation of affected waters.
During the Committee's consideration of the existing Corps' program,
the Department of Agriculture complied an inventory of anticipated
permit applications for farming activities. This exemption will allow a
farmer or rancher to rotate lands in intensive agricultural use from one
crop to another for example, the "normal farming" exemption would
preserve the opportunity to convert a field in alfalfa into a row crop
without applying for a dredge or fill permit. Another example of
"normal farming" activity would be /(()) the placement of fill for
erection of farm buildings or tile lining a field in intensive
agricultural use to enhance drainage.
Sediment retention reservoirs and other such structures installed as
a part of a Section 208 program to prevent the release of silt or other
pollutants into navigable waters would not require a permit under this
legislation. This would assure that important erosion control practices
will continue to be applied by the farmer or rancher to conserve his
soil and water resources, without the duplication of regulation which
would otherwise occur if both Section 208 and this section were
applicable.
During the Committee's consideration of the existing corps program,
the Department of Agriculture provided a list of anticipated permit
applications for farming activities. Over 80% of the permits needed
according to that survey are for construction or maintenance of farm
ponds. The Committee amendment specifically exempts these activities as
well as construction and maintenance of agricultural irrigation ditches
and the maintenance of agricultural drainage ditches. This exception
does not in any way affect the Section 301 requirements regarding
discharges from irrigation return flows.
During the Committee oversight of the Corps program testimony was
received regarding potential disruption of mining operations due to
delays resulting from permit review of routine filling activities. The
Committee amendment excludes the construction of temporary mining roads
for the movement of equipment from regulation. These roads must not
only be designed and constructed in accord with the requirements for
protection of the navigable waters applicable to roads, they must be
removed in a manner consistent with those requirements.
This type of activity should have only a minor impact on water
quality if performed in a manner that will not impair the flow and
circulation patterns and the chemical and biological characteristics of
the affected waterbody, and that will not reduce the reach of the
affected waterbody.
The construction or maintenance of silt or sediment control
impoundments associated with mining operations is also exempt since
these structures are designed to protect water quality through
management practices that get to pollution at its source. Construction
and maintenance of these impoundments are best treated under section 208
as are those other activities that have been excluded from permit
requirements by this amendment. The discharge of pollutants from these
impoundments continues to be regulated as a point source under Sections
301 and 402.
The amendment codifies the permit exemption in the Corps of Engineers
regulations for the maintenance and emergency reconstruction such as
highways, bridge approaches, dikes, dams, and levees of currently
serviceable structures. This exemption from a permit requirement is not
intended to include maintenance activities that change the character,
scope or size of the original structure. Emergency reconstruction must
occur within a reasonable period of time after destruction of the
previously serviceable structures to be eligible for this exemption.
The Committee amendment exempts discharges of dredge spoil resulting
from maintenance dredging in Federal navigation channels and non-Federal
access channels which directly intersect such channels when that dredged
material is discharged into confined disposal areas specified under an
approved State program. Disposal sites must be located landward of the
mean high water mark.
An exemption does not become available until approval of a State
program. The exemption under the State law may apply only to dredge
spoil resulting from maintenance dredging and not from alteration,
improvement or repair of channels. The Administrator is authorized to
restrict or deny the designation of a disposal site as under the
existing program.
The disposal site must be confined and must be constructed and
operated to prevent migration of pollutants that could cause water
pollution or other environmental damage. Thus, if pollutants deposited
in the confined area would be carried beyond the site by physical,
chemical or biological means, the State would be prevented from
designating the area eligible for the exemption.
All exempt activities will be required to have permits if the
activity results in the induction of toxic materials into the navigable
waters. For this purpose, toxic materials shall include those
substances for which, because of their harmful properties, EPA is
developing effluent limitation standards or guidelines pursuant to
Section 301, 304 or 307, and those substances which are listed, also
because of their harmful properties, in the current Section 403 (c),
guidelines, and other substances which the Administrator determines may
be appropriate.
The Committee amendment specifically requires a permit for any
placement or discharge of dredged or fill material for the purpose of
modifying the use of an area of the navigable waters if the flow,
circulation or reach of the waters will be significantly affected. A
permit would be required for instance for the conversion of a hardwood
swamp to full scale timber production through construction of dikes or
drainage. However, where an area of the navigable waters has been
placed in intensive agricultural use, prior to enactment of this
provision, improvements to drainage to enhance the productivity of that
use would not be covered by this specific requirement and would be
exempt under subsection (3)(A) of the amendment.
GENERAL PERMITS
The Committee amendment authorizes the issuance of general permits by
EPA, the Corps and States with approved programs for classes or
categories of activities which cause individually or cumulatively, only
minimal environment impact.
The general permits mechanism is derived from the Corps of Engineers
regulations. The Corps during the first year of administering the
Section 404 program has issued general permits for approximately 200
classes of activity involving the discharge or disposal of dredged or
fill material. These include streambank protection, stream alterations,
backfill for bridges, erosion control and, in at at least one instance,
a general permit for road fill and culverting on a statewide basis. For
general construction activities, general permits issued on a statewide
or region wide basis will greatly reduce administrative paperwork and
delay.
Under the authority of Section 404, the Corps of Engineers, in
consultation with the Environmental Protection Agency, has sought to
eliminate many farming and silvicultural activities from the program and
to establish a mechanism for removing activities with minimal
environmental impacts from the individual permit requirement. Where
these activities are not exempt, they should be subject to general
permits.
EXHIBIT 2
PROVISIONS OF HOUSE AMENDMENT NOT ADOPTED BY COMMITTEE
(Sections refer to House-passed version of S. 2710)
Sewage Collection Systems Grants (Section 4):
In the case of a grant which exceeds the contract price of a
facility, this provision would permit the use of any excess money for
construction of sewage collection systems which are associated with that
facility and which are already under construction. Such a transfer
grant may not exceed $2.8 million Plans, Specifications, Estimates and
Payments (Section 5):
This section combines step 2 (submittal of plans, specifications and
estimates) and steps 3 (construction) into a single step in cases where
the grant is less than $1 million EPA estimates that 45% of all projects
nationwide would fall within the $1 million ceiling.
User Charges (Section 6):
This section amends section 204(b) of the Act to permit the use of ad
valorem taxes as a method for collecting the costs of operating and
maintaining municipal waste treatment works. It would permit any
municipality which is using an ad valorem tax system for any purpose to
be eligible for this exception.
Reimbursement (Section 8):
This section extends from July 1, 1972, to July 1, 1973, the date by
which the initiation of construction on projects must have occurred in
order for such projects to be eligible for reimbursement grants, and
increases the authorization for reimbursement grants from $2.6 billion
to $2.95 billion.
State Certification (Section 12):
This section would permit a State to be certified by the
Administrator of the Environmental Protection Agency for the management
of the construction grant program and provides that up to 2% of a
State's construction grant allotment be utilized for management of the
program.
Priority of Categories of Projects (Section 12):
Under this section, the States are given exclusive control over the
priority for projects for construction of publicly-owned treatment works
within each State.
Non-Federal Waiver (Section 12):
This section provides that if a grantee can demonstrate to the
ADMINISTRATOR that it is unable to obtain financing for the non-Federal
share, either privately or through the Federal Financing Bank, the
Administrator could approve a project to be built with the 75% Federal
share only, which means that the revised project will be built solely
with Federal funds. It further provides that the grantee must scale
down the size of the treatment works or stage the construction of the
treatment works.
State Reports (Section 14):
This changes the requirements for submission of State reports from
annually to every two years.
Toxic and Pretreatment Standards (Section 15):
This provision authorizes the Administrator to allow three years for
compliance with toxic effluent standards (rather than existing law's one
year) where he determines that it would be "technologically infeasible"
for a category of sources to comply within a one year period.
Emergency Fund (Section 17):
This section establishes a contingency fund of $5,000,000 to provide
assistance for emergencies, including, but not limited to, those which
present an imminent and substantive endangerment to the public health
and welfare +++"
Judicial Review (Section 18):
This section proposes to state explicity that the appropriate
jurisdiction for the review of promulgation of regulations of nationwide
applicability is the U.S. Court of Appeals for the District of Columbia.
Rule and Regulation Review (Section 19):
This section provides that either the House or Senate may, by
resolution within 60 days of promulgation, disapprove any regulations
issued by EPA pursuant to P.L. 92-500.
Sunshine in government (Section 20):
This section requires each employee of EPA to file a public financial
statement if that employee has any interest in any "person" regulated by
the Act.
DEB
760901
EDMUND S. MUSKIE RANDOLPH MCGOVERN DOMENICI STAFFORD TOWER BENSEN MORGAN
HUDDLESTON JACKSON ROTH BARTLETT BAKER BELLMON GRIFFIN ABOUREZK CULVER
DOLE BYRD MANSFIELD HATFIELD STEVENS TALMADGE CRANSTON WILLIAM L. SCOTT
HANSEN
US SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US
SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US
SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US
SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US
SENATOR US SENATOR US SENATOR US SENATOR US SENATOR US SENATOR
--
CLEAN WATER ACT OF 1977, FEDERAL WATER POLLUTION CONTROL ACT AMENDMENT
OF 1976 (PP 1438 TO 1461)
--
--
95-217
--
CW220491 CW220514 /
04513
(())
FEDERAL WATER POLLUTION CONTROL ACT AMENDMENT OF 1976
The Senate continued with the consideration of the message from the
House of Representatives announcing its action on the bill (S.2710) to
extend certain authorizations under the Federal Water Pollution Control
Act, as amended.
The ACTING PRESIDENT pro tempore. Did the Senator from Maine wish to
agree to the amendment in the nature of a substitute that he just called
up?
Mr. MUSKIE. Mr. President, what is the pending business?
The ACTING PRESIDENT pro tempore. We just agreed to an amendment
completing action on the bill. If the Senator did not agree to do that
by unanimous consent, of course, he could rescind the action.
Mr. MUSKIE. Mr. President. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The Second assistant legistlative clerk proceeded to call the roll.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. MUSKIE. Mr. President, I move that the Senate rescind the action
previously taken in agreeing to the amendment in the nature of a
substitute.
The ACTING PRESIDENT pro tempore. The Senator has asked unanimous
consent, is there objection?
Without objection, it is so ordered.
The ACTING PRESIDENT pro tempore. The clerk will state for the
benefit of the Senate, the pending amendment in the nature of a
substitute.
The assistant legislative clerk read as follows:
The Senator from Maine (Mr. MUSKIE) proposes an amendment numbered
2231.
The amendment is as follows:
AMENDMENT NO. 2231
Strike all the amendment of the House after the enacting clause, and
insert:
SECTION 1. (A) Section 207 of the Federal Water Pollution Control
Act. as amended (86 Stat. 839) is amended by striking the period at the
end of the sentence and adding ", and for the fiscal year ending
September 30 1977, subject to such amounts as are provided in
appropriation Acts, not to exceed $5 000,000 000."
(b) Section 104(u) (2) of the Federal Water Pollution Control Act (33
U.S.C. 1254) is amended by striking out "1975 and inserting in lieu
thereof "1975. $7 5000,000 for fiscal year 1977."
(c) Section 104(u) (3) of the Federal Water Pollution Control Act (33
U.S.C. 1254) amended by striking out "1975" and inserting in.lieu
thereof "1975 $2 500 000 for fiscal year 1977.
(d) Section 106(a) (2) of the Federal Water Pollution Control Act (33
U.S.C. 1256) is amended by striking out "and the fiscal year ending June
30, 1975;" and inserting in lieu thereof "and the fiscal year ending
June 30, 1975 and $75,000,000 for the fiscal year ending September 30,
1977."
(e) Section 112(c) of the Federal Water Pollution Control Act (33
U.S.C. 1252) is amended by inserting $25,000,000 for the fiscal year
ending September 30, 1977," immediately after "June 30, 1975."
(f) Section 208(f) (3) of the Federal Water Pollution Control Act (33
U.S.C. 1383) is amended by striking out "and not to exceed $150,000,000
for the fiscal year ending June 30, 1975." and inserting in lieu thereof
"and not to exceed $150,000,000 per fiscal year for the fiscal years
ending June 30, 1975, and September 30, 1977."
(g) Section 314(c) (2) of the Federal Water Pollution Control Act (33
U.S.C. 1324) is amended by strking out "and $150 000,000 for the fiscal
year 1975" and inserting in lieu thereof ", $150,000,000 for the fiscal
year 1975, and $150,000,000 for fiscal year 1977."
(h) Section 517 of the Federal Water Pollution Control Act (33 U.S.C.
1376) is amended by strking out "and $350,000,000 for the fiscal year
ending June 30, 1975, and $350,000,000 for the fiscal year ending
September 3, 1977."
SEC. 2. Section 109(b) (3) of the Federal Water Pollution Control
Act, as amended (88 Stat.830), is amended by striking "$250,000" and
inserting in lieu thereof $500,000".
SEC. 3. Subsection (b)(1) of section 205 of the Federal Water
Pollution Control Act, as amended (88 Stat. 837), is amended by striking
"one-year" and by inserting after the second sentence the following:
"The sums first made available for obligation until September 30,
1978.".
SEC. 4. Section 205 of the Federal Water Pollution Control Act, as
amended (86 Stat. 837), is amended by additing the following new
subsection: /(())
"(c) Sums authorized to be appropriated pursuant to section 207 for
each fiscal year beginning after September 30, 1978, shall be allotted
by the Administrator on October 1 of the fiscal year for which
authorized. Sums authorized for the fiscal year ending September 30,
1977, shall be allotted in accordance with the following table:
.............. Proportional
"State .................... Share
.. Alabama--------------------0.0110
.. Alaska--------------------- .0048
.. Arizone-------------------- .0064
.. Arkansas------------------- .0109
.. California----------------- .0831
.. Colorado------------------- .0081
.. Connecticut --------------- .0123
.. Delaware------------------- .0040
.. District of Columbia------- .0040
.. Florida-------------------- .0361
.. Georgia ------------------- .0201
.. Hawaii--------------------- .0070
.. Idaho---------------------- .0041
.. Illinois------------------- .0526
.. Indiana-------------------- .0219
.. Iowa----------------------- .0111
.. Kansas--------------------- .0123
.. Kentucky------------------- .0151
.. Louisiana------------------ .0126
.. Maine---------------------- .0055
.. Maryland------------------- .0382
.. Massachusetts-------------- .0279
.. Michigan------------------- .0473
.. Minnesota------------------ .0152
.. Mississippi---------------- .0076
.. Missouri------------------- .0200
.. Montana-------------------- .0020
.. Nebraska------------------- .0062
.. Nevada--------------------- .0030
.. New Hampshire-------------- .0068
.. New Jersey----------------- .0480
.. New Mexico----------------- .0026
.. New York------------------- .1062
.. North Carolina------------- .0209
.. North Dakota--------------- .0119
.. Ohio----------------------- .0560
.. Oklahoma------------------- .0136
.. Oregon--------------------- .0084
.. Pennsylvania--------------- .0471
.. Rhode Island--------------- .0040
.. South Carolina------------- .0132
.. South Dakota--------------- .0016
.. Tennessee------------------ .0150
.. Texas---------------------- .0434
.. Utah----------------------- .0051
.. Virginia------------------- .0222
.. Washington----------------- .0155
.. West Virginia-------------- .0218
.. Wisconsin------------------ .0201
.. Wyoming-------------------- .0012
.. Virgin Islands------------- .0005
.. Purerto Rico--------------- .0090
.. American Smaoa------------- .0003
.. Trust Territories---------- .0020
.. Guam----------------------- .0010
If the sums allotted to the States for a fiscal year are made subject
to a limitation on obligation by an appropriation Act, such limitation
shall apply to each State in proportion to its allotment."
SEC. 5 (a) Section 208(b)(11) of the Federal Water Pollution Control
Act was amended (86 Stat. 840), is amended by inserting "(A)" after "(b)
(1)" and by adding the following new subparagraph:
"(B) For any agency designated during 1976 under subsection (a) of
the section and for all portions of a State for which the State is
required to act as the planning agency in accordance with subsection (a)
(6), the initial plan prepared in accordance with such process shall be
certified by the Governor and submitted to the Administrator not later
than three years after the receipt of the initial grant award as
authorized under subsection (f) of this section".
(b) Section 208 (f) (2) of the Federal Water Pollution Control Act
(33 U.S.C. 2188) is amended to redd as follows:
"(2) For the two-year period beginning on the date of the first grant
is made under paragraph (1) of this subsection to an agency, if such
first grant is made before October 1, 1977, the amount of each such
grant to such agency shall be 100 per centum of the costs of developing
and operations a continuing areawide waste treatment management planning
process under sucsection (b) of this section, and thereafter the amount
granted to such agency shall not exceed 75 per centum of such costs in
such succeeding one-year period. In the case of any other grant made to
an agency under such paragraph (1) of this subsection, the amount of
such grant shall not exceed 75 per centum of the costs of developing and
operating a continuing areawide waste treatment management planning
process in any year".
(c) The second sentence of section 108 (f) (3) of the Federal Water
Pollution Control Act (33 U.S.C. 1288) is amended by striking out the
period at the end thereof and inserting in lieu thereof a comma and the
following: "subject to such amoudts as are provided in appropriation
Acts ".
SEC. 6. Title II of the Federal Water Pollution Control Act, as
amended, is amended by adding the following new section:
"LOAN GUARANTEES FOR CONSTRUCTION OF TREATMENT WORKS
"SEC. 213 (a) Subject to the conditions of this section and to such
terms and conditions as the Administrator determines to be necessary to
carry out the purposes of this title, the Administrator is authorized to
guarantee, and to make commitments to guarantee, the principal and
interest (including interest acruing between the date of default and the
date of the payment in full of the guarantee) of any loan, obligation,
or participation therein of any State, municipality, or intermunicipal
or interstate agency issued directly and exclusively to the Federal
Financing Bank to finance that part of the cost of any grant-eligible
project for the construction of publicly owned treatment works not paid
for with Federal financial assistance under this title (other than this
section) which project the Administrator has determined to be eligible
for such financial assistance under this title including, but not
limited to, projects eligible for reimbursement under section 206 of
this title.
"(b) No guarantee, or commitment to make a guarantee. may be made
pursuant to this section --
"(1) unless the Administrator certifies that the issuing body is
unable to obtain on reasonable terms sufficient credit to finance its
actual needs without such guarantee, and
"(2) unless the Administrator determines that there is a reasonable
assurance of repayment of the loan, obligation or participation therein.
A determination of whether financing is available at reasonable rates
shall be made with relationship to the current average yield on
outstanding marketable obligations of municipalities of comparable
maturity.
"(c) The Administrator is authorized to charge reasonable fees for
the investigation of an application for a guarantee and for the issuance
of a commitment to make a guarantee.
"(d) The Administrator in determining whether there is a reasonable
assurance of repayment, may require a commitment to apply to such
repayment (1) all or any portion of the funds retained by such grantee
under section 204(b)(3) of this Act, and (2) any funds received by such
grantee from the amounts appropriated under section 206 of this Act."
SEC. 7. Section 301 of the Federal Water Pollution Control Act, as
amended (86 Stat. 844), is amended by adding the following new
subsection:
(g) (1) Upon application by a State on a case-by-case basis, the
Administrator may extend the time for achieving the requirements of
subsections (b)(1)(B) and (b)(1)(C) of this section beyond the date
specified in such subsection for any publicly owned treatment works
Provided That (A) the Administrator determines that the construction of
such treatment works necessary for the achievement of such requirements
cannot be completed by the date specified because Federal assistance
under title II of this Act has not been available, or has not been
available for a sufficient time, or because funds to pay the non-Federal
portion of the costs of construction of such treatment works have become
unavailable subsequent to a commitment by the Administrator to provide
Federal assistance under title II: and (B) the State demonstrates that
the priority for Federal funding of treatment works which the State
accords to the treatment works for which such extension is sought and to
all treatment works within the State will assure compliance with this
section. and is designed to maximize compliance with subsection
(b)(1)(B) and (b)(1)(C) by the date specified in such subsections and
with the objective of this Act.
"(2) No time extension granted under this subsection shall extend
beyond July 1, 1980.
"(3) Upon application on a case-by-case basis, the permitting
authority under section 402 of this Act may, in the case of a publicly
owned treatment works which has been granted an extension under
paragraph (1) of this subsection, extend the time for achieving the
requirements of subsection (b) of this section for the period of the
extension granted under paragraph (1) of this subsection for any point
source which on or before January 1, 1975, had a permit under section
402 of this Act or a contract (enforceable against such point source) to
discharge its effluent into a publicly owned treatment works which is
granted an extension under paragraph (1) of this subsection and which in
that manner intends to comply with the requirements of subsection (b) of
this section: Provided That such point source complies during the
period of such extension with all applicable pretreatment requirements
under Section 307(b) of this Act or otherwise required under a permit
issued by the Administrator or a State.
"(4) For the purpose of paragraph (1) of this subsection, the term
'publicly owned treatment works' shall not include a federally owned
treatment works".
SEC. 8 (a) Section 402 of the Federal Water Pollution Control Act, as
amended (86 Stat. 880) is amended by adding the following new
subsection:
"(1)(1)(A) Except as provided in section 404 of this Act, any
discharge of dredged or fill material into the navigable waters shall be
required to be in compliance with a permit based under this section.
"(B) Any permit for the discharge of dredged or fill material issued
under this subsection shall be considered in accordance with, and shall
comply with, the guidelines published under section 404(b) (1) of this
Act, and the authority of section 404(c) of this Act shall apply to the
consideration of any such permit and the specification of any disposal
site.
"(2) At any time after the enactment of this subsection, the Governor
of each State desiring to administer its own permit program for
discharges of dredged or fill material into the navigable waters within
its jurisdiction (under this section and section 404(a) of this Act) may
seek approval of its program in accordance with subsection (b) of this
section. The Administrator shall approve each such program unless he
determines, after consultation with the Secretary of the Army, that (A)
It does not /(()) have adequate authority in accordance with subsection
(B) of this section with respect to discharge of dredged or fill
material, or (B) it does not contain adequate guidelines for the
consideration of permits comparable to those under section 404(b) (1) of
this Act or adequate authority comparable to that under section 404(c)
of this Act. Any State program approved under this paragraph shall be
subject to the provisions of subsections (c) through (k) of this
section, and any permit under a program approved under this paragraph
shall be subject to the jurisdiction of the Secretary of the Army under
subsection (b)(6) of this section and section 511(a) of this Act and the
Administrator under section 404(c). Approval of a program otherwise
submitted under subsection (b) of this section shall not be delayed by
submittal of a program under this paragraph, and a program submitted
under this paragraph may be distinct from, or administered by a
different State agency than, any program otherwise submitted or approved
under subsection (b) of this section.
"(3) (A) The placement of dredged or fill material into the navigable
waters shall not constitute a point source discharge of pollutants
required to have a permit under this subsection or section 404 of this
Act, where such placement --
"(i) results from normal farming, silviculture, and ranching
activities, such as polowing, cultivating, seeding, and harvesting for
the production of food, fiber, and forest products;
"(ii) is for the purpose of maintenance including emergency
reconstruction of recently damaged parts, of currently serviceable
structures such as dikes, dams levees, groins, riprap, breakwaters,
causeways, and bridge abutments or approaches, and transportation
structures:
"(iii) is for the purpose of the construction or maintenance of farm
or stock ponds or irrigation ditches, or the maintenance of drainage
ditches;
"(iv) is for the purpose of the construction or maintenance of silt
or sediment control impoundments associated with mining operations,
except to the extent such impoundments are required to comply with
effluent limitations and guidelines pursuant to sections 301, 304(b) and
(c) and 307(a) of this Act,
"(v) is for the purpose of the construction or maintenance of farm
roads or forest roads, or temporary roads for moving mining equipment,
where such roads are constructed and maintained in accordance with
guidelines promulgated by the Administrator which assure that flow and
circulation patterns and chemical and biological characteristics of the
navigable waters are not impairsd, that the reach of the navigable
waters is not reduced, and that any adverse effect on the aquatic
environment will be otherwise minimized; or
"(vi) is for the disposal of dredgdd material removed in maintaining
a federally authorized navigation channel or non-Federal access channels
contiguous to the authorized project, in specified confined disposal
areas where such disposal areas are landward of the mean high water
mark. where the State in which such disposal areas are located has a
program approved under paragraph (2) of this subsection for the control
of dredged or fill material disposal or the protection of wetlands and
such disposal areas are specified under and in compliance with such
confined disposal areas will not migrate to cause water or other
environmental pollution.
"(B) Any placement of dredged or fill material specified in
subparagraph (A) of this paragraph shall only be considered a nonpoint
source subject to regulation under this Act under section 208 and 303
(d) and (e) of this Act.
"(C) Any placement or discharge of dredged or fill material into the
navigable waters incidental to the construction of a dike or other
activity for the purpose of bringing an area of the navigable waters
into a farming, silviculture, or ranching use to which it was not
previously subject, where the flow or circulation of the navigable
waters may be impaired or the reach of such waters be reduced, shall be
required to have a permit under this subsection or section 404 of this
Act. Any placement or discharge of dredged or fill material containing
toxic p611utants into the navigable waters shall be required to have a
permit under this subsection or section 404 of this Act, and to be in
compliance with sections 301, 307(a) and 404(b) (1) and (c) of this Act.
"(4) (A) Consistent with the requirements of this section, the
Administrator the Secretary of the Army under section 404 of this Act,
or a State with a permit program approved under paragraph (2) of this
subsection may, after notice and opportunity for public hearing, issue
general permits for classes or categories of discharges of dredged or
fill material subject to this section or section 404, where the
discharges authorized by any such general permit are similar in nature,
cause only minimal adverse environmental impact when performed
separately, and will have only minimal cumulative adverse effect on the
environment.
"(B) Any such general permit issued under this paragraph shall be in
lieu of individual permits required under this subsection (or section
404). Such general permits shall be conditioned on compliance wifh (i)
specific requirements or standards, including State standards or
management practices.for the activity authorized by such general permit,
and (ii) the guidelines under section 404(b) (1). Any general permit
shall be for a maximum period of five years and shall be subject to
being revoked or modified after opportunity for public hearing, if the
requirements of this paragraph are not being complied with, or if the
activities authorized by such general permit may have an effect which is
more appropriate for consideration in individual permits.
"(5) The Secretary of the Army, acting through the Chief of
Engineers, is authorized to make available to the Administrator such
personnel or facilities under the jurisdiction of the Chief of Engineers
as may be necessary for the implementation of this subsection".
(b) Secton 404 of the Federal Water Pollution Control Act, as amended
(86 Stat. 884), is amended by adding the following new subsection:
"(d) For the purposes of this section, the jurisdiction of the
Secretary of the Army shall be limited to those portions of the
navigable waters (1) that are subject to the ebb and flow of the tide
shoreward to their mean high water mark (mean higher high water mark on
the Pacific coast), and (2) that have been used, are now used, or are
susceptible to use as a means to transport interstate commerce up to the
hbad of their navigation, and (3) that are contiguous or adjacent
wetlands, marshes, shallows, swamps, mudflats, and similar areas".
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. MUSKIE: As I understand it, Mr. President, the committee
amendment is now the pending business and subject to amendment?
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mr. MUSKIE. I thank the Chair and the Parliamentarian.
Mr. DOMENICI. Mr. President, a parliamentary inquiry.
The ACTING PRESIDENT pro tempore. The Senator will state it.
Mr. DOMENICI. Under the previous order, this is amendable and there
is a time agreement with reference to amendments; is that correct?
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mr. DOMENICI. And what is such agreement with reference to time?
The ACTING PRESIDENT pro tempore. Debate on the bill is limited to 2
hours to be equally divided and controlled between the majority and
minority leaders or their designees. There is 1 hour on any amendment
in tbe first degree, 20 minutes on any amendment in the second degree,
debatable motion, appeal, or point of order.
Mr. DOMENICI. I thank the Chair.
Mr. MUSKIE. I yield to the distinguished chairman of the Public
Works Committee (Mr. RANDOLPH).
The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
Mr. RANDOLPH. Mr. President the able chairman of the Subcommittee on
Environmental Pollution (Mr. MUSKIE) has correctly stated to the Members
of the Senate that this measure addresses a period of 1 year -- fiscal
year 1977. Senator MUSKIE has referred to actions taken in the past and
the proposals that will be considered in the coming 95th Congress. This
background spells out the fact that the bill, now before us in the form
of an amendment, actually is an interim measure.
It is very important to underscore for the record that as we proceed
next year, early in the 95th Congress, the Public Works Committee will
address the problems of the water pollution control.
As Senator MUSKIE stressed, much of the time of the committee during
this year has been given by the subcommittee and by the parent
committee, to amendments to the Clean Air Act. Members in the Senate
are conversant with what has been done on that important subject.
Mr. President, since enactment of the Federal Water Pollution Control
Act Amendments of 1972 we have constantly monitored the progress and the
processes by which that act has been implemented since the signature of
the President that brought the law into being.
I think it is also noteworthy that five members of our Committee on
Public Works -- Senators MUSKIE, BENTSEN, BAKER, BUCKLEY, and myself --
participated as members of the National Commission on Water Quality.
That Commission was created as a part of the 1972 act. I had the
responsibility and the privilege to sponsor that effort.
It was a desire on the part of the Congress to work with the
executive branch to assess the progress toward achievement of the
statutory goals as set forth in the 1972 amendments and also to
determine if there were any modifications in the law that it would be
desirable to give our attention to in the coming Congress.
The final report of the Commission came to the Congress on March 18,
1976. /(()) We raised certain issues in the Commission. There also are
other affected parties that we know will want to have their so-called
say as we review next year in the Subcommittee on Environmental
Pollution some of the recommendations and the findings brought out in
the Commission's work.
I want to reemphasize that Senator MUSKIE and the members of the
Subcommittee on Environmental Pollution gave a very high priority during
this past year to the initiatives we felt were important in the fields
of air pollution control and solid waste management.
S. 2710, as reported from our committee, and approved in the Senate
on December 1, 1975, provided the general authorization for Federal
water pollution control programs for the fiscal year 1976 and for what
we call the transitional quarter.
Then on May 13, 1976, the committee reported S. 3037 providing the
general authorization for fiscal year 1977 as well as the necessary
construction points for municipal waste water treatment.
We needs funds for these plants that are being constructed.
When the House of Representatives approved its version of S. 2710 on
June 31, 1976 -- and this is not in criticism of the House action -- the
House included many features which the Senate, very frankly, has not had
the time nor the opportunity to examine in detail. We will go into
these matters thoroughly next year.
There are, however, four major areas which the committee felt should
be addressed this year. These areas are reflected in amendment No. 2231
to S. 2710.
First, an authorization needs to be provided for general water
pollution control programs as well as construction grants for the fiscal
year 1977. A construction grant authorization of $5 billion is
contained in S. 3037, and that is now pending on the Senate Calendar.
Second, Mr. President, a formulat needs to be provided for the
apportionment or distribution of these construction grant funds that go
to the States. I reemphasize States and municipalities need this money
for waste treatment plants.
Third, an extension of the deadline is needed for municipalities
which at the present time due to a lack of Federal funding, are unable
to meet the 1977 statutory deadline for secondary treatment.
Fourth, several issues surrounding the Corps of Engineers permit
program regarding the disposal of dredged and fill material need to be
resolved.
These are four subjects that we have addressed in amendment No. 2231
to S. 2710. The committee therefore recommends that Senate
consideration of the other items in the House passed version of this
bill be deferred until next year when we and our colleagues in the
Senate can address these problems. These issues will be considered in
detail in the general review of the water pollution control program.
Amendment No. 2231 to S.2710 offered by the committee contains the $5
billion authorization from S. 3037 for construction grants in fiscal
year 1977. I want to clarify that the language amending section 207 of
the act, making the authorization subject to such amounts as are
provided in appropriation acts has the effect of negating the allotment
and obligation provisions of section 205 of the act in the absence of a
specific appropriation. Therefore under section 205(c) as added by the
committee amendment, allotment takes place on October 1, the first day
of the fiscal year, and the allotment to States, of course, would be
subject to any limitation in the appropriations act.
Fiscal year 1975 funds were allocated to the States 50 percent on the
basis of all needs as shown in the 1973 Needs Survey and 50 percent on
the basis of partial needs. In addition, a minimum allocation was
provided each State based on the 1972 allocation of funds. When the $9
billion of impounded funds were released for fiscal year 1976 they were
allocated on the basis of the formulas for each of the fiscal years in
which impounded.
Several new formulas have been suggested for the apportionment of the
fiscal year 1977 funds to the States as alternatives to the current
formula, using more recent survey of needs.
The committee amendment provides a formula for the allocation of
fiscal year 1977 moneys of 50 percent on the basis of partial needs --
categories I, II, and IVB from the latest needs survey, 25 percent on
the basis of all needs; and 25 percent on the basis of 1975 population
figures from the census. This formula is similar to the House-passed
measure. The difference is that actual 1975 population figures would be
employed rather than estimates of the 1990 population. This new formula
would apply only to fiscal year 1977 construction grant funds. The
share of appropriated funds received by each State under the new formula
are set forth in section 4(c) of the committee amendment number 2231 to
S.2710. Next year the committee will review this formula as well as
other issues associated with allocation, including the question of
whether allocation on the basis of surveys of needs still is
appropriate. The formula proposed in this amendment would give West
Virginia $109 million in fiscal year 1977 to use in providing sewage
treatment facilities.
The third area of concern to the committee was maintenance of full
Federal funding of the construction grants program. This is essential
to attainment of the objectives established by the 1972 amendments.
Approximately 40 to 50 percent of the municipalities -- and many
industries which are now committed to the use of these municipal systems
-- will not meet the 1977 statutory requirement for secondary treatment.
In many instances such noncompliance is due to delays because of the
lack of availability of Federal financial assistance provided for in the
1972 amendments. This situation is partially the result of the earlier
impoundment of Federal funds.
Section 7 of the amendment offered by the committee authorizes the
Environmental Protection Agency Administrator, on a case-by-case basis,
to grant extensions to such municipalities -- and inudstries so
committed. These extensions could extend until July 1, 1980. This date
was recommended by the National Commission on Water Quality. The House
measure authorizes similar extensions until 1982.
Similar extensions would be available to those industrial
installations which are scheduled to discharge into the municipal
systems receiving an extension under this provision. However, such
compliance date extensions for industry would not apply to any
requirements for the pretreatment of industry waste waters prior to
their discharge into the municipal system.
The fourth and perhaps most controversial provision of S. 2710 As
passed by the House concerns the Army Corps of Engineers permit program
under section 404 of the 1972 amendments for the disposal of dredged and
fill material. Confusion regarding congressional intent surrounds the
scope and administration of permit and license programs under title IV
of Public Law 92 500.
Section 404 requires the Army Corps of Engineers to issue permits for
the disposal of dredged and fill material in navigable waters. At the
time the Act was written, we were concerned with controlling the
activities and the way in which dredged and fill materials are disposed
of. These materials often are highly contaminated and we addressed the
situation in the terms of water pollution control.
The committee did not anticipate that the Corps in reacting to
judicial decisions would subsequently broaden the impact of section 404.
As a result of court action the Corps of Engineers subsequently
promulgated regulations covering an extensive range of activities.
These regulations are proposed to be implemented in three phases. The
first phase has already gone into effect. The regulations covering
phase II were to have been implemented on July 1, but were ordered
postponed by the President pending action by the Congress.
Section 8 of the Committee amendment, amending sections 402 and 404,
clarifies the original intent of the Congress regarding permits under
these sections of the Federal Water Pollution Control Act Amendments of
1972.
The basic permit program for discharges of pollutants into the
navigable waters if provided in section 402. The responsibility for
this program rests with the Environmental Protection Agency and the
States, except for the limited role of the Corps of Engineers as set
forth in section 404.
This provision of the 1972 amendments is essentially the measure
approved by the Senate in 1971 and revised by the House in 1972. Under
the basic program provided for in section 402, the Administrator of the
Environmental Protection Agency is authorized to issue permits for the
discharge of pollutants into the navigable waters, the waters of the
contiguous zone and the oceans.
As stated in the conference report, the 1972 amendments in effect
transferred the 1889 Refuge Act permit program from Corps of Engineers
to the Environmental Protection Agency. A limited /(()) exception was
approved in section 404 which authorized the Corps of Engineers to issue
permits for the discharge of dredged or fill material into the navigable
waters at specified disposal sites. The Environmental Protection Agency
also was given responsibility for the oversight of this limited
regulatory activity by the Corps of Engineers -- the disposal of dredged
or fill material.
It was the intent of the conferees on the 1972 amendments that the
basic regulatory program be that provided for in section 402. This was
emphasized in the conference report which states --
The integration of the Refuse Act permit program into the Federal
Water Pollution Control Act has been difficult but there can be no doubt
that the most effective control mechanism for point sources of discharge
is one which will provide for the establishment of conditions of
effluent control for each source of discharge. A permit or equivalent
program, properly implemented and fully utilizing the resources of the
State and Federal Government should provide for the most expeditious
water pollution elimination program.
Amendment No. 2231 under consideration today clarifies the intent of
the committee that the basic permit program for the control of
discharges into the navigable waters is in section 402. The other
programs provided for in statute must be considered as exemptions from
section 402 for certain practices or classes of activities.
The disposal of dredged and fill material is such an activity. This
was recognized by the Congress in 1972 in section 404. The particular
characteristics of the pollutants involved required that a special
program be created in section 404 to cope with these materials. Neither
technological nor water quality criteria approaches to regulation would
facilitate inadequate protection of the resources involved.
The committee amendment restricts the juriddiction of the Corps of
Engineers to permits for the disposal of dredged or fill material in
traditionally navigable waters. In effect this would be the present
jurisdiction of the Corps of Engineers over navigation under section 10
of the Rivers and Harbors Act of 1899, and those waters covered by Phase
I of the current regulations governing the permit program under section
404.
The jurisdiction of the Corps of Engineers thus would apply to three
areas: first, navigable waters subject to the ebb and flow of the tide
second, navigable waters now used or used in the past or susceptible to
future use to transport interstate commerce up to the hedd of navigation
-- but not beyond; and third, wetlands, swamps, shallows, and similar
areas which are contiguous or adjacent to such waters, as the corps
defines them in its 1975 regulations.
To the extent that the disposal of dredged and fill material is not
regulated by the Corps of Engineers under section 404, the committee
intends that such activities be regulated by the Environmental
Protection Agency and the States under section 402.
Under the combined scope of section 402 and 404 permit programs, no
further definition of navigable waters or wetlands is necessary.
Section 401 deals with the activities associated with the disposal of
dredged and fill material in a portion of the navigable waters as an
exception from Section 402. To the extent that concerns for wetlands
included in the navigable waters are not adequately provided for under
section 404 as modified, the committee intends that such concerns be
reflected in section 402.
The committee amendment also would exempt certain other limited
activities from section 402 or section 404 such as the disposal of
dredged material removed in maintaining a federally authorized
navigation channel or non-Federal access channels contiguous to the
authorized project, including docks, piers, and wharfs. Such materials,
however, would have to be disposed of in specified confined disposal
areas which are landward of the mean high water mark. and only where a
State has its own program for protecting wetlands or controlling dredge
spoil disposal.
Consistent with the intent of the 1972 amendments the committee
expects that disposal activities of private dredge operators and the
Corps of Engineers will be treated similarly.
Consistent with that exemption provided for the disposal of dredged
spoil, the committee amendment also provides exemptions from the permit
requirement for certain specified farming and forestry activities. The
committee did not envision in 1972 that such practices wo61d be covered
by fhe section 404 permit prrgrams of the Corps of Engineers. These
activities were recognized in section 208.
Experience has shown that a permit requirement on these activities as
point source discharges is not appropriate: however, regulation as
areawide -- or nonpoint -- sources under section 208 is necessary to
achieve the objectives of the Federal Water Pollution Control Act.
The committee amendment clarifies the use of the term "normal
farming, silviculture, and ranching activities" as now contained in
proposed Corps of Engineers regulations. Such activites would be exempt
under the committee amendment from permit requirements under both
section 402 or 404. This exemption would also extend to the
construction and maintenance of farm and stock ponds and irrigation
ditches.
Also exempted would be the maintenance of drainage ditches. The
committee intends that a distinction be made between existing and new or
expanded ditches.
In those instances where drainage ditches could be used to drain
extensive wetland areas, such activities still would be required under
the committee amendment to obtain a permit under either section 402 or
404.
Also exempted from the permit requirements of sections 402 or 404
would be emergency activities associated with the reconstruction of the
damaged part of such serviceable structures as dikes, dams, breakwaters,
causeways, and bridge abutments and approaches, as well as other
transportation structures. In addition, the construction and
maintenance of far and forest roads and temporary roads associated with
the moving of mining equipment would be exempted from these permit
requirements, where such roads are constructdd in accordance with
guidelines provided for in the committee amendment.
To the extent that silt and ILLEGIBLE control impoundments associated
with mine operations are not required to comply with poing source
effluent limitations such impoundments are not required to obtain
permits under sections 402 or 404. This exemption does not remove or
modify any requirements for effluent limitations imposed on mining
operations under other provisions of the act.
In the judgment of the committee these exemptions provided for
certain limited activities should ease the administrative burden
associated with the present permit programs unders sections 402 and 404.
The integrity of the basic permit program under section 402 is
preservdd no exception from fhat requirements would be authorized.
The jurisdiction of the Corps of Engineers with regards to dredged
and fill activities operations would be restricted to traditionally
navigable waters. Dredge or fill disposal activities not covered by
section 404 would be covered by the Environmental Protection Agency
permit program under section 402.
The committee amendments to sections 402 and 404 preserve the basic
permit program with the Environmental Protection Agency and the States.
The States would be authorized to assume the administration for this
program. The States would also be authorized to issue general permits
for large classes of minor activities.
Mr. President, the Baker-Randolph provisions within this amendment
concerned with dredged and fill permits represent a balanced and
workable approach to what is a very difficult problem.
The validity of the action taken in the committee is recognized in an
editorial in the Washington Post of August 30, 1976.
I ask unanimous consent that this commentary, which is well reasoned,
and which I think is helpful to an understanding of the situation, be
printed in the RECORD.
There being no objection, the editorial was ordered to be printed in
the RECORD as follows:
DREDGING AND DUCKS
To a casual observer, the fight over wetlands protection may seem
like an obscure boundary dispute in which environmentalists and
developers are battling for control of a swamp. At issue is how
extensive federal regulation of the nation's waterways, marshes and bogs
should be. The high water mark of regulation, if you will, was reached
in 1975 with a court ruling that was widely read as giving the Corps of
Engineers authority over hearly every puddle in the land. This spring
the anti-Corps forces regained a lot of territory when the House Public
Works Committee voted to curtail the fedrral power substantially. The
full House then approved a "compromise" by Rep. Jim Wright (D-Tex).
Last week the Senate Public Works Committee rejected that 7 6, and
endorsed a plan sponsored by Sens. Howard H. Baker, Jr. (R Tenn) and
Jennings Randolph (D- /(()) W. Va) that environmental groups greatly
prefer.
The fight, which will come to the Senate floor shortly, is not just a
dispute between anti-Washington and pro-Washington forces -- or between
the interests of developers and ducks. Through all the arguing, some
issues have been eliminated and others clarified. There seems to be
general agreement that farmers should not have to get federal permits to
maintain ponds or drainage ditches -- and so that spectre of
over-regulation, raised by the Corps and fed by its opponents, should be
put to rest. The real questions outstanding include how much to
regulate dredging and filling along small streams: whether the federal
role should be greater where discharges of toxic materials are involved;
and how much responsibility should be left -- or delegated -- to the
states.
These may seem to be dry issues, but vital and dwindling resources
are at stake. Wetlands are not only the nation's most productive
natural habitats. They also cleanse polluted water and serve as buffers
for flood control. Moreover, wetlands damage and shoreline development
are fluid problems in the strictest sense: water pollution tends to
spread, and damage in one area can hurt resources for exclusive federal
control over every damp spot on the continent. They do illustrate
however, the importance of insuring that projects affecting wetlands and
waterways will be looked at carefully by some competent public agency.
The Baker-Randolph proposal would focus federal review on the
dredging, filling and other projects that are likely to have a real
effect on the environment. Special attention would be given, as it
should be, to dredging and dumping that involve toxic substances. The
plan would also encourage the states to exercise their own
responsibilities, but would not leave a vacuum if they fail to respond.
Overall, this proposal would preserve many refuses for ducks, without
barring development that is not damaging. It is a "compromise" worthy
of strong support.
Mr. RANDOLPH. Mr. President, amendment No. 2231 clarifies the
provision of the 1972 amendment which has to do with permits for
disposal of dredged or fill material and preserves the environmental
integrity of the statute.
We recommend that this amendment be approved.
Our committee as always, attempts to be a committee of progress, a
committee which understands the problems associated with providing a
balance between environmental quality, and all the other matters that
the Congress must address to be responsible to its constituency.
Mr. McGOVERN. Will the Senator yield?
Mr. RANDOLPH. Yes, I am pleased to yield to the able Senator from
South Dakota.
Do I have the time, Mr. President?
Mr. MUSKIE: I yield the time.
Mr. McGOVERN. Will the Senator yield for a question?
Mr. RANDOLPH. I yield.
Mr. McGOVERN: Mr. President, I want to ask a question just for
reassurance on a point I think the Senator will be able to reassure me
about.
The amendment to S. 2710, sponsored by Senator RANDOLPH and Senator
RANDOLPH and Senator BAKER, seems to eliminate from the Federal Water
Pollution Control Act some of the ambiguity which caused administrative
difficulties and which tended to involve some of the Federal agencies in
questions with little relationship to water quality and to environmental
protection.
As I interpret amendments to section 404, the responsibility of the
Secretary of the Army will be limited to those waters that are
navigable, that have been navigable in the past, or can be made so in
the future, together with adjacent wetlands and marshes.
The Secretary of the Army will not be requirdd to establish
regulations, conduct hearings, grant or deny permits to South Dakota
farmers and other citizens planning to conduct normal and almost routine
improvements on unnavigable rivers, intermittent streams, and dry runs
in South Dakota or other inland States.
The responsibilites of the Administrator of the EPA under section 402
will be enlarged over the responsibilities assigned to the agency under
the act as it is now written. His responsibilities, however, will be
limited tomatters of legitimate water quality and environmental concern,
and they will not include any responsibilities for reviewing the plans
of farmers or landowners as they relate to normal operations on the land
that they own.
As an example, and this is important to upstream States like South
Dakota, the Administrator will not be asked to determine where waters of
interstate stream systems may be put to beneficial use. His
responsibilities under section 402 are limited to water quality and
environmental issues. This is completely consistent with section 510 of
the basic 1972 act (33 U.S.C. 1370) which expressly preserves State
jurisdiction over the use of waters.
I wonder if the Senator would comment on those concerns.
Mr. RANDOLPH. Mr. President, the knowledgeable Senator from South
Dakota (Mr. McGOVERN) calls attention to the committee amendment. The
Senator is entirely correct in the general observations that he has
made. The effect of the committee amendments on the control of dredge
and fill disposal activities is, as both he and I and the other members
of the committee understand, a clarification. There is a balance.
Within the minds of the committee, the Senator's thinking was a major
concern which we had, and that was the agricultural community. At this
point I remember some lines that go like this:
The doctor heals and the lawyer pleads
And the miner follows precious leads,
But this or that, what e'er befall,
The farmer, he feeds them all.
The Senator from South Dakota (Mr. McGOVERN), as is the committee, is
concerned that the farmers not be subjected to unwarranted and
burdensome regulation by either the Corps of Engineers or the
Environmental Protection Agency. We think that we have hit a balance
which recognized the validity of the observations made by the Senator,
and hopefully the Senate will concur.
Mr. McGOVERN. I thank the Senator for that reassurance. That was
what I understood the case to be, but it is most helpful to have the
Senator's assurance on that point.
Mr. RANDOLPH. I thank the Senator.
Mr. DOMENICI. Mr. President, I yield myself 5 minutes on the bill.
First, I ask unanimous consent that Lee Rawls of my staff be granted the
privilege of the floor.
The ACTING PRESIDENT pro tempore. Without objection it is so
ordered.
Mr. DOMENICI. Mr. President, our ranking Republican member, the
junior Senator from New York (Mr. BUCKLEY) is not able to be here this
morning. I commend him for his diligent effort, not only on this
particular aspect of our jurisdiction, but on the clean air bill as
well, and I ask unanimous consent that a statement that will be prepared
by the Senator be printed in the RECORD at the earliest possible place
in our discussion this morning.
There being no objection, the statement was ordered to be printed in
the RECORD, as follows:
STATEMENT BY SENATOR BUCKLEY
I wish to express my strong support of the provision of the Committee
Amendments to S.2710. As other members of the Committee have stated, we
are under a sharp time constraint in any attempt to resolve the many
difficult issues involving water pollution that must be resolved during
this Congress. While I am not entirely happy with the provisions of the
proposed amendments, I believe they strike a balance, one that should be
acceptable to the Senate.
I would like to focus my comments on four provisions in these
amendments in order to give my thoughts to my colleagues in the Senate.
One of the most significant aspects of these amendments to the People
of New York State involved the language of Section 6, which involves a
system of loan guarantees. This is language which I offered in
Committee, and which I believe will assist many communities now unable
to go forward with new projects that are outside their control.
The Federal government currently owes the citizens of New York
several hundreds of millions of dollars in reimbursements on water
pollution construction programs that were initiated in past years.
Because of the fact that the citizens of New York, in effect, advanced
these millions in anticipation of Federal funds, which have not been
received many of these same communities are now short of funds to
provide their share on new projects.
Secton 6 provides a system of loan guarantees through EPA and the
Federal Financing Bank for the non-federal share of construction cost
when the grantee is unable to finance its share at a reasonable rate.
This should cost the federal government nothing. But it will assist
local communities in raising the necessary share to make their
commitment to clean waters. I approve this approach and I think it is a
reasonable one.
I would add that the local communities are required to provide some
assurance of repayment of the money committed. What would constitute
such an assurance? One example might be a system of user charges, but
this need not be so. Another such assurance could be a commitment to
utilize future reimbursable funds, if and when they are available. EPA
and the Federal Financing Bank should grant broad lattitude to local
communities in meeting this requirement.
The problem of lack of federal reimbursible funds leads naturally to
a discussion of /(()) Section 3 of these amendments, involving
re-allotment. Because of a lack of local funds brought on in part by a
lack of reimbursable funds, many projects have not been able to go
forward in a timely manner. This has resulted in many states building
up large sums of non-obligated construction funds. Section 3 extends
for one year the period for re-allotment, giving sufficient time,
together with the loan guarantees I have just discussed, to allow local
communities to utilize their full and fair share of authorized
construction funds.
Section 4 of this bill allocates new funds among the states on a
formula not used heretofore. The new proposal involves an allocation
emphasizing such factors as population and partial pollution-control
needs. This is not a true projection of the actual need for sewage
treatment facilities in this nation. In Committee I urged that we
continue the existing allocation formula for another year, pending a
most complete analysis next year of the program under the direction of
EPA while the new formula is reasonably acceptable, I would note that it
is chosen more for the number of states it benefits, than to meet the
clean waters goals of the Federal Water Control Act. I would urge that
the Congress, when we meet again next year, consider strongly returning
to a formula based on need.
Finally, I want to make a few comments about Section 404 of the
Federal Water Pollution Control Act and the amendment that is sponsored
by Senators Randolph and Baker. As others have stated on this floor,
the Army Corps of Engineers and others misinterpreted the intent of
Congress in writing its regulations to implement Section 404. I would
have had no objections to eliminating Section 404 entirely, and bringing
the program under the provisions of Section 402. This was the position
of the Senate in 1972, and this is a reasonable position.
However, this did not appear practical this year. As a result, I
supported the Baker-Randolph alternative, which carries out to a great
extent the intent of the original Section 404 and its incorporation in
Section 402. That was the position of the Senate in 1972, and this is a
reasonable position.
As important, the proposed new Section 404 would allow delegation of
this authority in certain areas to each state when the state has a
compatible program. I feel strongly that such delegation is important
for it takes the federal bureaucrats out of the control of activities
that are not necessarily in the Federal interest.
The Committee on Public Works has, to a great extent in various types
of legislation, moved toward giving new responsibilities to the states.
I strongly support this approach. We did it under the recent amendments
to the Clean Air Act. We did it under the existing water pollution
permit program operated under EPA. I shall continue to support such
delegations to the States. This is particularly appropriate in waters
where there is no basic federal navigable interest. But at the same
time, we must maintain a national policy over such activities as the
disposal of dredge and fill material under guidelines to assure similar
treatment in each state.
In closing, Mr. President, I want to say a word of commendation to my
colleagues on the Committee on Public Works for their diligent work on
this bill. As always this Committee has shown great dedication to
resolving the problems and working toward a responsible solution, one
that is in the public interest. I particularly want to state my thanks
to Chairman Randolph, Senator Muskie, and Senator Baker for their fine
leadership in these matters.
Mr. DOMENICI. Mr. President, for many months the Senator from
Tennessee (Mr. BAKER) was our ranking Republican Member, leaving that
post when he took another ranking position. He is unable to be here at
this time and I ask unanimous consent that the statement he has
prepared, together with explanations, be printed in the RECORD at this
point.
There being no objection, the statement was ordered to be printed in
the RECORD; as follows:
STATEMENT OF SENATOR BAKER
The Committee bill which is before the Senate today amends only those
provisions of the Federal Water Pollution Control Act which are in need
of immediate change. I would like to explain to my Senate colleagues
why our committee has chosen to make only these minimal changes in the
Federal Water Pollution Act at this time.
As I'm sure most Senators know, the Sub-committee on Environmental
Pollution of the Public Works Committee has original jurisdiction over a
number of our most important environmental subject areas -- the Clean
Air Act, the Solid-Waste Management Act, and the Federal Water Pollution
Control Act are particularly far reaching and complex laws. During the
current session of Congress, our Subcommittee has undertaken and
successfully completed major overhauls of both the Clean Air and
Solid-Waste Legislation. The amendatory process for Clean Air is
particularly illustrative of the time consuming nature of these
procedures. It has involved 14 subcommittee hearings, 48 committee
mark-ups, and 7 days on the Senate floor during 1975 and 1976.
At the present time, the House has not completed action on companion
legislation to either our Clean Air bill or the Solid Waste Management
Act but is planning to do so in the near future. Thus, the Committee is
looking forward to what all of us feel are going to be two long and
complex conferences during the few days the Senate has remaining in this
session.
Given this scenario, I think my colleagues can easily understand why
the Public Works Committee has elected to take only minimal action with
regard to the Water Act during this year. Not only would major
legislative action at this time be infeasible because of the crowded
schedule remaining for the session, but also legislative actions taken
would not be based upon the type of study and review needed to produce
high quality legislative changes.
One other factor which dictates against completing the amendatory
process for the Water Act in the short time remaining, is that the
Committee has been unable to host needed hearings on the complex subject
matter in this bill. I think all my colleagues understand the great
importance that informative hearings play in the process of creating
effective legislation.
Finally, the Committee has not had time to fully review the Report to
Congress from the National Commission on Water Quality. We are
privileged to have this recently published report from the National
Commission to help guide us in our legislative efforts. It is a
voluminous work which comprehensively covers many of those areas of the
water law where amendments are potentially needed. This report to
Congress has been available only a few months -- certainly not long
enough for either the Committee or individual members of Congress to
fully analyze its content. It would be a shame to deny Congress to
utilize the excellent work of this group by demanding hasty legislation.
In the bill now before us the Committee has chosen to deal with eight
absolutely essential items concerning the water law in these amendments.
First the bill adresses the important questions of continued funding
for the water pollution construction grant program and the allocation
ILLEGIBLE which these funds are to be allocated to the states.
The bill also provides a one year extension for the allotment date of
funds previously allocated to the states. This is important to keep a
number of states from misspending funds in order to avoid losing them on
Setpember 30, 1977.
The bill includes a proposal offered by Senator Buckley which
hopefully will ILLEGIBLE the problems which some communities are having
in raising their matching funds as is required by the construction
grants programs in this law. This is accomplished by setting up a loan
guarantee program through the Federal Financing Bank.
The bill extends until 1980 the dealine by which municipalities must
achieve secondary treatment. Hopefully this amendment will insure that
only those municipalities and the industries who have expressed wishes
to join in treatment programs with these municipalities who have made
good faith efforts to meet the requirements of the water law but have
been unable to do so because of resons beyond their control will be
given to such an extension.
The bill contains some minor amendment concerning job training grants
and the funding of Section 208 planning programs. These minor
adjustments are of a non-controversial nature and will aid tremendously
efforts made concerning the requirements of the Water Pollution Control
Act.
The bill also contains a controversial amendment regarding Section
404 of the Federal Water Pollution Control Act which I will be
discussing in detail later.
Before closing I would like to commend our distinguished Chairman,
Senator Randolph, and ranking minority member, Senator Buckley, on the
superlative job they have done in guiding this most difficult
legislative effort thus far. Without their knowledge and persistence
certainly there would have been little or no possibility for us to have
addressed the difficult issues contained in this bill. I believe that
efforts of this sort are key to the effective management of our
Committees' efforts and the Senate's legislative efforts.
Mr. President I would also like consent to include along with my
statement a more in-depth analysis of some of the issues involed in this
bill.
Section 2 will allow grants of up to $500,000 to be awarded to
training facilities for programs designed to eliminate the manpower
shortages which exist in the water pollution field. The new $500,000
grant limitation being placed on grants in this section is an increase
of $250,000 over the old limit in the 1972 law. The increase in costs
of providing programs of this sort have made such an increase in the
grant ceiling necessary. The Committee feels strongly, however, that
this program's importance to the overall water pollution effort is so
great that the country will more than get an adequate return for any
increased spending which might occur pursuant to this section.
In the future, more and better qualified professionals will be
urgently needed to adequately man the various programs concerning water
pollution control which have been mandated in our new water pollution
laws. This increased need is also reflective of the intensified
awareness and commitment that most states and communities are now
showing toward water pollution problems.
Specifically, more engineers and scientists /(()) are needed to
design and run municipal and industrial waste treatment plants.
Shortages within these professions could cause delayed defective or
inefficient sewage treatment plants, a result which will undermine our
entire pollution control effort. A recent study done by the Bureau of
Labor Statistics found there would be a tremendous increase in the need
for professionals of this type as the spending programs related to the
Federal Water Pollution Control Act are accelerated. As I am sure each
Senator knows, spending in this area is slated to be increased in the
future.
The municipal sewage treatment program as envisioned in P.L. 92 500
has also created a need for more and better qualitied personnel to
operate sewage treatment facilities once they are completed if the
plants aren't operated correctly once built, our whole effort is in
vain. Having an adequate number of personnel to operate these
facilities is dependent on three factors: the number of new operators
needed to operate the new complex treatment equipment, the overturn of
present personnel and most importantly, the number of new operators
being trained. The provision contained in Section 2 will directly
address and hopefully eliminate the last factor as a problem.
Section 4 of the Committee bill amends section 205 of the Act to
provide a new formula to be used after September 30, 1976 for the
allocation of funds authorized in the bill to the States. The allotment
formula agreed to by the committee is similar to that adopted by the
House in H.R. 9560. The allotment formula is as follows: 1/4 on the
basis of 1975 population; 1/2 on the basis of partial needs which are
secondary treatment needs, more stringent treatments to meet water
quality standards, and needs for interceptor sewers and appurtenances;
and 1/4 on the basis of total needs which are comprised of all the
partial needs plus collector sewers, confined sewers, and infiltration
in-flow.
The one difference between the Senate and House formulate is in the
population estimates used. The House uses 1990 population estimates,
while the Senate selected to use 1975 population figures. During
consideration of this matter by the Committee, concern was expressed
that the use of the 1990 figure will allow funding of too much of the
treatment costs due to the protected future growth in municipal systems.
Members of the Committee believed the whole question on the Federal
funding of future growth is one which should be handled in the context
of the overall review of the construction grants program scheduled by
our committee for next year. It was felt that action dealing with this
question in this legislation might very well preempt or influence
options the Congress might wish to explore regading this issue next
year.
It is hoped that the formula chosen is one which makes sense
politically and which implements the goals of the Clean Water Act.
There has been much discussion in the past on how best to allocate
Federal funds under the waste water treatment program. If the Federal
government could devise a formula that would be able to fund all needs
as they arise, the construction grants program could, of course, move
toward completion in short order. However, the measurement of needs,
particularly on a state by state basis, has, in fact, proved very
difficult and there is considerable skeptisism about the data generated
by the survey.
EPA has taken the position before the Committee that certain
categories have only limited usefulness as an indicator of the true
national needs. By increasing the affect of partial needs in the
allocation formula -- basing one half of the allotment on this factor --
the equity between states will be increased.
In addition to minimize the problems of inaccuracy of the need
assessments the formula recommended in this bill introduces population
as a third factor.
Section 7 allows an extension of the 1977 secondary treatment
deadline contained in the Federal Water Pollution Act for publicly owned
sewage treatment facilities. No such extension may extend beyond July
1, 1980. The Committee feels that this increase in time available to
meet the requirement will be sufficient to allow most communities to
meet the requirements for treatment of their wastes.
There are a number of reasons why a delay of this requirement for
municipalities who are behind schedule in meeting this requirement
should be granted. Many communities have met with difficulties in
raising their matching share of funding for the project which they need.
Enforcement of this deadline in such communities will not serve any
purpose in these instances. This problem of matching funds is also
addressed more completely in Sec. 213 of the Committee bill.
Other reasons for delays in meeting the 1977 requirements seem fo be
due to both the states and EPA's rigid interpretation of requirement on
this subject and have moved forward slowly while awaiting Congressional
clarification on this subject. This interpretive problem is one that
the committee plans to address early in its deliberations concerning
needed changes in the Water Pollution Control Act. After getting the
needed clarification I am sure that these communities will move rapidly
to meet the requirements within the 1980 time frame.
In addressing the issue of extending municipal deadlines, another
inevitable question must also be addressed at the same time. What is to
be done in the case of an extension about the regulations affecting
those industries which have in good faith made commitments and are
counting on joining with a municipal treatment system. The committee
approach would provide an equal time extension for those industries
which have previous to passage of this bill committed to joining a
municipal system. The committee is faced with a dilemma regarding this
particular issue. It would like to continue the policy of encouraging
industrial participation in municipal facilities while at the same time
not opening a loophole through which many industries who have made no
attempts to comply with the Act's requirements may obtain an easy
compliance extension. It is sincerely hoped that the framework in which
the municipal extensions in this section are granted will at the same
time be fair to industries that are planning or have made plans to join
a municipal system.
Finally, it might be noted in defense of the Committee's approach,
that after long and careful analysis of the problems which are caused by
the municipal deadlines the National Commission on Water Quality
suggested an approach similar to that now being taken by the Committee.
It is my belief that the amount of additional time granted in the
Committee bill recognizes and adequately compensates for the
aforementioned problems and at the same time does not grant such a long
delay from compliance that many of the benefits which might accrue from
reaching the secondary treatment level are lost forever.
Section 8, one of the most important issues which the Committee has
addressed in its amendment to S.2710 is a modification of the Corps of
Engineers has promulgated regulation for control of these pollutants,
substantial dontroversy has arisen regarding the program. That
controversy has created pressure for legislative action and resulted in
the passage of a provision by the House which would substantially
curtail federal jurisdiction over pollution in the nation's water even
though the House had held no hearings on the program.
This atmosphere of confusion and political pressure is hardly optimum
for consideration of an issue as complex and far-reaching as the 404
regulation. I am pleased that the Senate Public Works in the limited
time available to it for consideration of this issue has carefully and
characteristically studied and reviewed the program and endeavored to
identify the specific issues and problems worthy of response.
The so-called Baker-Randolph amendment which is a part of the
committee provision is the result of that study and effort.
With all of the controversy that the Section 404 issue has engendered
this year, it is ironic that basically all of the amendments advanced on
the issue agree as to the nature of the problems that must be corrected
in the program.
The most important disagreement between the proposals relates not to
their stated goals and purposed but to the technique they employ to
effect their remedies.
The Wright Amendment would correct the specific and identifiable
problems of 404 by extinguishing all federal jurisdiction to regulate
discharge of dredge spoil and fill material into the bulk of the
nation's waters, not only under section 404, but under all other
sections of the Federal Water Pollution Control Act and under the Corps
authorities for the protection of navigation.
The Committee amendment addresses these same problems within the
structure of the existing program. By placing authority for the
so-called Phase II and III waters under Section 402 of the Act -- it
affirms Congressional intention not to require permits for those
agricultural, silvicultural and other activities which are not point
sources and it provides for assumption by the States of the authority to
control these activities in all the waters. 27 States have already taken
over control of the permit program for other pollutants through this
mechanism.
I would like to take this opportunity to explain this amendment and
to compare it to the Wright amendment adopted by the House and the Tower
amendment which will be offerdd during Senate debate on this issue.
Section 401 was added to the Federal Water Pollution Control Act as
an exception to the Environmental Protection Agency's general
jurisdiction to control discharges of pollutants into the nation's
waters. The measure was rejected in the Senate and was added to the
legislation as a result of conference with the House of Representatives.
Since it was the gravamen of Sec. 404 to remove the EPA jurisdiction
for control of dredged and fill material the sponsors of the amendment
overlooked many of the implications of establishing a separate authority
for pollution control in the Corps of Engineers. This has led to
several problems.
1. intrusion of the Corps into regulation of waters far beyond the
scope of its navigation authorities.
2. coverage of activities which conceptually and ILLEGIBLE are
ILLEGIBLE, such as non-point source discharges resulting from farming,
ranching and silviculture.
3. regulation of routine activities of minimal environmental
significant, and
4. the overbroad scope of review to which permit applications must
be subjected by the administering agency.
The House by adopting the Wright Amendment, has sought to address the
specific problems by disestablishing federal jurisdiction /(()) to
control the discharge of dredge and fill material into the bulk of the
nation's waters. In my opinion this federal jurisdiction problem is the
most fundamental and important issue raised by debate over modification
of Section 404 during this session of Congress.
In 1972, the Congress overwhelmingly adopted Public Law 92-500. That
law established a comprehensive federal jurisdiction over the nation's
waters. In its report on that legislation, the Senate Public Works
Committee stated, "Waters move in hydrologic cycles and it is essential
that discharge of pollutants be controlled at the source. Therefore,
reference to the control requirements must be made to the navigable
waters, portions thereof, and tributaries."
A limitation upon the jurisdiction to control the discharges of
pollutants into the waters which was limited to the head of navigation
would be totally unworkable for any pollutant. Discharges into the
waters above the head of navigation which would disrupt or impair the
physical chemical or biological integrity of those waters would quickly
as a result of water flow or biological impacts disrupt and impair the
integrity of the waters below the head of navigation.
Such a limitation would encourage uncontrolled pollution in
uncontrolled waters.
The Wright Amendment is thus more appropriately characterized not as
a turning over of some waters to state control, but as an abdication of
federal responsibility for pollution control with regard to the
Pollutants dredged spoil and fill material in the bulk of the nation's
waters, without regard to their use for navigation.
The Baker-Randolph Amendment does not abridge federal jurisdiction
for pollution control. It rather limits the jurisdiction of the Corps
of Engineers essentially to those waters which the Corps has
traditionally regulated under its navigation authorities. Control of
discharges of dredged and fill material into the balance of the nation's
waters would be handled in the manner established by the Federal Water
Pollution Control Act of 1972 for all discharges of pollution.
SCOPE OF REVIEW
Implementation of the Section 404 authority of the Corps of Engineers
is complicated by application of the National Environmental Policy Act
to require a broad scope of review. This requirement expands the scope
of review for issuance of permits to environmental considerations beyond
the intent of the authority. The Corps of Engineers under Section 404
must include in permit review in addition water quality control
concerns, potential secondary impacts upon land, air and economic
factors extraneous to the purpose of P.L. 92-500.
The Wright amendment falls to address this problem and even
potentially extends it to State programs which obtain a delegation of
the limited waters eligible under the Wright delegated scheme.
The EPA and State permit programs under the Committee amendment would
apply the criteria and guidelines of Section 404(b)(1). However, the
scope of review would be water quality focused, since permit issuances
under Section 402 authority are not subjected to NEPA review. For
example, the 403(c)(1)(C) economic test applicable under the present
program and included in EPA guidelines under our amendment would under
Section 402 permit requirement be focused specifically on those economic
impacts associated with fishing and other water-related commercial
activities and deriving directly from the effects of disposal of the
controlled pollutants. For permits issued under the present Section 404
authority by the Corps of Engineers these economic considerations may
include the effects of future development due to permitted activities on
the local tax base, labor market, and such.
The Committee feels that administratively such broad review imposes
an impossible burden on the permitting authority. The transfer of
authority for permit control of discharges of dredged and fill material
to Section 402 initially for Phase II and III waters but upon approval
of State permit programs for all waters will streamline permit review
and expedite issuances.
STATE PROGRAMS
The Committee amendment in accord with the stated policy of
"preserving and protecting the primary responsibilities and rights of
States to prevent, reduce and eliminate pollution" provides for
assumption of the permit authority by States which establish approved
programs for control of discharges of dredged and fill material in
accord with the criteria and with guidelines comparable to those
contained in 402(b), 404(b)(1) and 404(c).
By using the established mechanism in Section 402 of P.L. 92-500,
the Committee anticipates that delegation of the permit program will be
substantially expedited, at least to the twenty-eight state entities
which have already obtained approval of the National Pollutant Discharge
Elimination System under that section. The use of this mechanism will
also expedite the Administrator's promulgation of amended guidelines
under Section 304(h)(2) of the Act to establish the exact procedures and
other requirements that a State must meet to achieve approval of its
program.
Under the amendment a State may elect to seek approval of the permit
program separately from an application for approval of an NPDES program.
This will prevent any delay in processing of PNDES applications.
The amendment also provices that a State may elect to administer its
program separately from the NPDES program. Several States have alreddy
established separate state agencies to control discharges of dredged and
fill materials. These agencies need not be disestablished or melded
into an NPDES agency.
Although discretion is granted the State to establish separate
administration for the permit program for discharges of dredged and fill
material the authorities of the Administrator to assure compliance with
guidelines in the issuance and enforcement of permits and in the
specification of disposal sites which is provided in sections 402 (c)
through (k) and 404(c) and the authorities of the Secretary of the Army
for protection of navigation in Section 402(b)(6) and the Rivers and
Harbors Act of 1899 apply to all such State programs.
The authority for control of discharges of dredged and fill material
granted to a State through the approval of a program pertains solely to
the environmental concerns reflected in the specific guidelines set
forth in the amendment. The authority of the Corps of Engineers under
the Rivers and Harbor Act of 1899 is not affectedor altered by this
amendment.
EXEMPTION FOR NONPOINT SOURCES
All of the amendements offered to Section 404 except for the Breaux
amendment have sought to specifically exempt agricultural and
silvicultural activities from the permit requirements of the program.
The Wright amendment essentially uses the definition of such
activities which is found in the present Corps regulations. The
Committee amendment utilized the pointsource and non-point-source
distinction in the Act which exempts such activities from coverage under
the Section 402 permit program.
The Committee amendment, however, goes even further to clarify the
agriculture exemption by specifying activities including those in the
Wright amendment and several additional activities brought to the
Committee's attention in its hearings.
The normal farming silviculture and ranching exemptions in the
Committee amendment would include the situation where a farmer or
rancher rotates lands in intensive agricultural use from one crop to
another. For example, the exemption would preserve the opportunity to
convert a field in alfalfa into a row crop without applying for a dredge
or fill permit. Additionally, the exemption would encompass the
placement of fill required for the erection of farm buildings or tile
lining a field in intensive agricultural use.
The amendment also provides that a State may elect to administer its
program separately from the NPDES program. Several States have already
established separate state agencies to control discharges of dredged and
fill materials. These agencies need not be disestablished or melded
into an NPDES agency.
Although discretion is granted the State to establish separate
administration for the permit program for discharges of dredged and fill
material the authorities of the Administrator to assure compliance with
guidelines in the issuance and enforcement of permits and in the
specification of disposal sites which is provided in sections 402 (c)
through (k) and 404(c) and the authorities of the Secretary of the Army
for protection of navigation in Section 402(b)(6) and the Rivers and
Harbors Act of 1899 apply to all such State programs.
The authority for control of discharges of dredged and fill material
granted to a State through the approval of a program pertains solely to
the environmental concerns reflected in the specific guidelines set
forth in the amendment. The authority of the Corps of Engineers under
the Rivers and Harbors Act of 1899 is not affected or altered by this
amendment.
While these activities are specifically exempted from the permit
requirements of Section 402 and 404, existing authorities in the Act for
control of non-point source activities are not abridged.
In addition to normal farming and silvicultural activities, the
construction of farm and forest roads is exempted. The Committee feels
that permit issuances for such activities would potentially delay and
interfere with timely construction of access for cultivation and
harvesting of crops and trees which could result in a loss of
production. The guidelines for construction of exempt roads require
that the construction, use, and maintenance of the roads not impair the
biological character or the flow and circulation of affected waters.
During the Committee's consideration of the existing Corps program,
the Department of Agriculture provided a list of anticipated permit
applications for farming activities. Over 80% of the permits needed
according to that survey are for construction or maintenance of farm
ponds. The Committee amendment specifically exempts these activities as
well as construction and maintenance of agricultural irrigation ditches
and the maintenance of agricultural drainage ditches.
Mining: During the Committee's oversight of the Corps program,
testimony was received regarding potential disruption of mining
operations due to delays resulting from permit review for routine
activities. The Commitee amendment includes the construction of
temporary mining roads for the movement of equipment among exempt roads.
These roads must not only be designed and constructed in accord with
the requirements for protection of the navigable waters applicable to
roads, they must be removed in a manner consistent with those
requirements.
The construction of maintenance of silt or sediment control
impoundments /(()) associated with mining operations has also been
exempted since these structures are designed to protect water quality
through management Practices that get to pollution at its source. For
purposes of the Water Act, they are best treated under section 208 plans
as are those other activities that have been excluded from permit
requirements by this amendment. Of course, discharge of pollutants from
these impoundments must continue to be handled under the NPDES program
in order to maintain the effectiveness of effluent limitations imposed
on such discharges.
The construction or maintenance of temporary roads to move mining
equipment has also been excluded if performed in accordance with
guidelines promulgated by the Administrator. Again, this type of
activity will have only a minor impact on water quality if performed in
a manner that will not impair the flow and circulation patterns and the
chemical and biological characteristics of the affected waterbody, and
that will not reduce the reach of the affected waterbody.
Levees and Transportation Structures: The amendment also adopts the
permit exemption in the Corps of Engineers regulations for the
maintenance and emergency reconstruction such as highways, bridge
approaches, dikes, dams, and levees of currently serviceable structures.
This exemption from a permit requirement is not intended to include
maintenance activities that change the character scope or size of the
original structure. Emergency reconstruction must occur within a
reasonable period of time after destruction of the previously
serviceable structures to fall within this permit exemption.
Dredging: The Committee amendment exempts discharges of dredge spoil
resulting from maintenance dredging in Federal navigation channels and
non-federal access channels which directly intersect such channels when
that dredged material is discharged into confined disposal areas
specified under an approved State program. Disposal sites must be
located landward of the mean high water mark.
Since the disposal must be in compliance with a State program the
exemption process does not become applicable until approval of a State
program. The exemption under the State law may apply only to dredge
spoil resulting from maintenance dredging and not to spoil from
construction, alteration, improvement or repair of channels. The
Administration is given the authority to restrict or deny the
designation of a disposal site, as he is under the existing program.
The disposal site must be confined and shall be constructed and
operated to prevent migration of pollutants that could cause
environmental damage. Thus, if pollutants deposited in the confined
area would be carried beyond the site by physical, chemical, or
biological means, the State would be prevented from designating the area
eligible for the examption.
An Exception to the Farming and Silvicultural Exemption: The
Committee amendment specifically requires a permit for any placement or
discharge of dredged or fill material for the purpose of modifying the
use of an area of the navigable waters if the flow, circulation or reach
of the waters will be impaired. A permit would be required for
instance, for the conversion of dikes or drainage. However, where an
area of the navigable waters has been placed in intensive agricultural
use, prior to enactment of this provision, improvements to drainage to
enhance the productivity of that use would not be covered by this
specific requirement and would be exempt under subsection (3)(A) of the
amendment. Rotation of crops in intensive production would not be a
modification of use requiring a permit except where those crops or the
characteristics of their cultivation are substantially distinct and
different. For example, a placement or discharge of dredged or fill
material to effect a conversion from rice to dry land crops, where the
rice is grown in an area of the navigable waters, would require a
permit.
TOXICS
Serious and substantial concern has focused recently on the problem
of toxic pollution in our rivers and streams as the result of news
stories regarding such incidents as the dumping of kepone in the James
River. Dredge spoil from many of the nation's rivers will contain toxic
elements the disposal of which could cause substantial harm to the
environment.
For this reason the Committee amendment would require the issuance of
a permit for any discharge or placement of dredge spoil or fill material
containing toxic materials. The full scope of permit review and
protection would minimize and protect against harm to water quality,
municipal water supply, maring habitat and other values which would
otherwise result from disposal of such materials.
GENERAL PERMITS
The Committee amendment authorizes the issuance of general permits by
EPA, the Corps and States with approved programs for classes or
categories of activities which cause, individually or cumulatively, only
minimal environmental impact.
The general permits mechanism is derived from the Corps of Engineers
regulations. The Corps during the first year of administering the
Section 404 program has issued general permits for approximately 100
classes of activity involving the discharge or disposal of dredged or
fill material. These include streambank protection, stream alterations,
backfill for bridges, erosion control, and, in at least one instance, a
general permit for road fill and culverting on a statewide basis. For
general construction activities, general permits issued on a statewide
or regionwide basis will greatly reduce administrative paperwork and
delay.
The Committee amendment and the Wright Amendment, which was offered
in Committee and rejected, have essentially undertaken to address the
same objectives -- to eliminate burdensome regulation of farming and
forestry activities under section 404, to limit Corps of Engineers
jurisdiction to their traditional scope under the 1899 Act, to provide
for State control of the permit program. The Committee Amendment goes
further to focus the scope of permit review to water quality objectives.
I think it is essential that the Congress reject the notion that we
can address the specific problems of our pollution control effort by
abridging federal jurisdiction. Complex problems to not lend themselves
to such simplistic solution.
The provision is absent from the bill for a very good reason. The
approval at this time of certification procedures might unduly influence
or even preempt a number of alternative legislative approaches to
reforming the construction grants program when it comes up for review
next year. Such a result might occur if states, after reviewing
certification were to approve long range projects and water pollution
programs which the Congress after next year's intensive review decided
not to fund as part of the Federally assisted municipal sewage treatment
program. Such a result might indeed be disastrous for future
Congressional attempts to design a feasible municipal sewage treatment
program.
It is for this reason only that I approved a Senate bill without a
certification provision. I also feel strongly that when Congress has
made its final decisions regarding needed changes in the focus of the
construction grants program, it should also include as part of these
changes a provision which will allow the states to carry out many, if
not all of the needed certifications in their construction grants
program with only minimal Federal involvement. I am positive that such
a procedure will insure that any new program which might be mandated by
Congress after next year's review is completed as quickly and
effectively as possible. I know I will certainly support such a
procedure as part of my newly designed program in the construction
grants area.
Mr. DOMENICI. Mr. President, both Senator MUSKIE and Senator
RANDOLPH have more than adequately explained the nature of the bill that
is before us, what we have done during the year in terms of the Clean
Air Act and the Clean Water Act. Indeed, it has been a different year
in terms of the Subcommittee on Public Works, which has jurisdiction
over both clean air and clean water.
We certainly do not intend that what we submit today be understood by
anyone as the major result of an oversight hearing on the Clean Water
and Clean Air Acts, but rather that this bill contains those things we
think are absolutely paramount and necessary this year. I shall comment
on only three of those.
First, we have a continuing discussion in the Senate with reference
to to allotment or allocation formulas for the distribution of the funds
under this legislation, and I think we have today submitted to the
Senate a rather good compromise. It has been adequately explained by
the other Senators and by Senator BAKER in his remarks wich I have just
put in the RECORD. I just wish to comment, so that no one will
misunderstand our side of the aisle on this: We do not think this
formula is anything likea permanent formula, but we need one now. We
have had two or three different formulas in the past, and this one is
the best we can do for the time being.
If we look at the Clean Water Act next year, and we will, we will
have to take a good, hard look at a permanent formula for the
distribution of these funds, which takes into consideration the needs of
changing populations and many other things that we were not able to take
a look at when we adopted the act, or obviously changes in the field as
they occur.
The second thing I want to discuss rather briefly is the
authorization in this bill. Obvioulsy many States are very hard pressed
to meet their goals, the goals that are more or less demanded of them
under the Clean Water Act. Today we present an authorization of $5
billion, which we assume will keep the program in place and will keep
our States and thus their cities funding programs that they have on the
boards, and that are so desperately needed, during the ensuing year.
/(())
Third, Mr. President, there can be no doubt, as I am sure the Senator
from Maine will agree, that section 404, the section which is amended by
the committee in what we are going to be calling the Baker-Randolph
amendment, there can be no doubt that that is one of the most
controversial sections in the Clean Water Act, and there can be no doubt
that it must be amended. The committee follows an approach to amending
it that is adequately explained and certainly an amendment will be
presented by the distinguished Senator from Texas (Mr. TOWER) which will
focus in on that issue more specifically, and will, I am sure, focus in
on not only what was wrong with the original section 404 and the
interpretations of it by the courts, but will draw on distinctions
between the Baker-Randolph amendment and his amendment.
There can be no doubt, nonetheless, that we must amend that section.
There can be no doubt that it must not apply, when we are through here
today and when we come out of conference, to the normal operations of
our farmers and ranchers, and I think whatever we do we will at least
see to that.
Mr. President, I commend the staff and the committee for putting
together a good bill in terms of the limitations of this year, and the
pressures, and it seems to me the Senate ought to welcome this. After
long converence, we will bring back, before the year is out, a bill to
resolve these basic issues before we leave for our recess this year.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. STAFFORD. Mr. President, I have an amendment at the desk which I
call up and ask for its immediate consideration.
The ACTING PRESIDENT pro tempore. Until the time on the amendment in
the first degree has either been used or yielded back, amendments in the
second degree will not be in order.
Mr. MUSKIE: Mr. President, yielding back the time on the first
amendment does not affect the time on the bill, does it?
The ACTING PRESIDENT pro tempore. It does not.
Mr. MUSKIE. If time is yielded back on the committee amendment and
the committee amendment at that point is acted upon by the Senate, is it
subject to amendment?
The ACTING PRESIDENT pro tempore. It is agreed to, it is not subject
to amendment, but yielding back the time does not require it to be acted
upon immediately before other amendments are offered.
Mr. MUSKIE. Then under those circumstances, Mr. President, I yield
back the remainder of my time on the committee amendment.
The ACTING PRESIDENT pro tempore. Does the Senator from New Mexico
yield back the remainder of his time?
Mr. DOMENICI. I yield back the remainder of my time.
The ACTING PRESIDENT pro tempore. The amendment of the Senator from
Vermont is in order.
UP AMENDMENT 415
Mr. STAFFORD. Mr. President, I renew my request for consideration of
the amendment that is pending at the desk and ask for its immediate
consideration.
The ACTING PRESIDENT pro tempore. The amendment is in order. The
amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Vermont (Mr.STAFFORD) for himself and Mr. Ieahy
propose unprinted amendment No. 415.)
Mr. STAFFORD. Mr. President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection it is so
ordered.
The amendment is as follows:
On page 3, line 22, insert after "(c)" the following: "(1).
On page 4 after the list following line 2, insert the following new
paragraph:
"(c)(2) For the fiscal year 1977, no State shall receive less than
one-third of one percentum of the total allotment under the first
paragraph of this subsection, except that in the case of Guam, Virgin
Islands, American Samoa and the Trust Territories, not more than forthy
one-hundreths of one per centrum in the aggregate shall be allotted to
all four of these jurisdictions. For the purpose of carrying out this
paragraph there are authorized to be appropriated, subject to such
amounts as are provided in appropriation Acts, not to exceed $50,000,000
for the fiscal year ending September 30, 1977.
The ACTING PRESIDENT pro tempore. There are 20 minutes of debate on
the amendment in the second degree with time equally divided under the
usual fashion.
Mr. STAFFORD. Mr. President, the amendment I am proposing is a
simple one. It provides that no State will receive less than one-third
of 1 percent of funds allocated for fiscal year 1977 for construction of
water treatment works. My amendment authorizes an additional $50
million for this purpose.
The amendment would go in on page 4 of the bill immediately following
the listing of the 50 States and some trust territories, Puerto Rico,
the Virgin Islands, American Samoa, and Guam.
Members of the Committee on Public Works are in agreement that the
formula provided in the committee amendment is applicable only to fiscal
year 1977. The committee did not have adequate time this session to
conduct a complete review of allocation formulas. It is committed to
such a thorough review next year. Thus, the 1977 formula is a stopgap,
the committee's best effort to be evenhanded, given its time
limitations. It is a one-shot formula, Mr. President.
There are precedents for actions of this nature. In the distribution
of highway construction and safety funds, minimum apportionments of
one-half percent apply ro several programs. The Senate has also
provided a one-half percent floor in recently passed air pollution and
solid waste control legislation.
In all cases these floor guarantee that States which might otherwise
be harmed by biases in allocation formulas receive their fair share.
My own State of Vermont under the 1975 distribution formula received
approximately on-third of a percent of the total water construction
funds distributed. Under the committee amendment, Vermont would receive
only twenty-two one-hundredths of 1 percent. This is a reduction of
more than $5 million, assuming a total authorization of $ billion.
Six other States -- Montana, Nevada, New Mexico, North Dakota, South
Dakota, and Wyoming -- also receive less than one-third of 1 percent
under the committee formula. My amendment provides that each of these
States will receive the minimum amount of approximately $16 million.
An additional authorization is included to cover the cost of
guaranteeing this minimum. None of the remaining 41 States and I
emphasize that will suffer a loss of its share of $5 billion as a result
of my amendment. The additional authorization of contract authority, as
well as the original authorization in the committee amendment, is
subject to action by the Committee on Appropriations.
Mr. President, this is a reasonable amendment. It applies only to
the upcoming fiscal year 1977. It is an equitable means of seeing that
such State receives adequate support for construction programs while
Congress reviews the whole basis for allocating funds. It will not
diminish funds going to any State under the Committee provision.
I ask for the support of my colleagues for this amendment.
Mr. MUSKIE. Mr. President, it is with considerable regret that I
find myself unable to support the amendment offered by the distinguished
Senator from Vermont.
As he knows, in committee I supported a different amendment offered
by him to adopt the formula used in fiscal year 1975. I thought that
formula provided greater equity for his State of Vermont and my State of
Maine. We were defeated, I think rather overwhelming, and the formula
that is in the committee amendment was based upon the formula already
adopted by the House of Representatives with one change. Instead of
using a 1990 population projection as in the House bill, we changed it
to include an actual 1975 population factor, so that formula, which was
not all I wanted and not all the Senator from Vermont wanted, is the
formula adopted by the overwhelming majority of the Committee on Public
Works as the best 1-year answer to this very volatile political problem.
So I am concerned that we not trigger a rash of formulas geared to
perceived notions of how Senators' States might profit more than under
the committee amendment by adopting this particular formula for this
particular purpose.
I promise the Senator from Vermont that when we get involved in /(())
consideration of a permanent formula next year he and I will find
ourselves, I think, working side by side to protect the interests of
small States like Maine and Vermont. Incidentally, I might point out
that I think my own State suffers a reduction of about $6 million a year
as against the formula that was in effect in 1975. So I myself would
like to offer an amendment that would restore that balance -- an
amendment which would provide more funds to the State of Maine which by
the way would not result from Senator STAFFORD's amendment -- but I
think the formula adopted by the committee is the committee's good faith
best judgment as to how to bridge this 1-year gap between the formula of
the past and whatever we may develop next year.
Mr. President, I am prepared to yield back the remainder of my time.
Mr. STAFFORD. Mr. President, unless there are other Senators who
wish to speak, I am prepared to yield back the remainder of my time.
Mr. MUSKIE. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. (Mr. HUDDLESTON). The question then is on
agreeing to the amendment of the Senator from Vermont (putting the
question).
The Chair is in doubt, and I ask for a division.
Those in favor will stand and be counted.
Those opposed will stand and be counted.
Mr. MUSKIE. Mr. President, in light of the partiamentary situation,
rather than to prolong debate --
The PRESIDING OFFICER. If the Senator will withhold, we will
announce the result of the vote.
Mr. MUSKIE. All right.
The PRESIDING OFFICER. According to the result of the division, the
"noes" have it.
Mr. MUSKIE. I thank the Chair.
The amendment was rejected.
UP AMENDMENT NO. 416
Mr. TOWER. Mr. President, I call up my amendment which is at the
desk and ask that it be stated.
The assistant legislative clerk read as follows:
The Senator from Texas (Mr. TOWER) proposes unprinted amendment No.
415 to the pending amendment No. 2231.
The amendment is as follows:
On page 9, beginning on line 24, strike all of section 8 and insert
in lieu thereof the following:
PERMITS FOR DREDGED OR FILL MATERIAL
SEC. 8 (a) Subsection (a) of section 404 of the Federal Water
Pollution Control Act (33 U.S.C. 1344) is amended by adding immediately
after "navigable waters" the following: "and adjacent wetlands".
(b) Such Section 404 is further amended by adding at the end thereof
the following new subsections:
"(d)(1) The term 'navigable waters' as used in this section shall
mean all waters which are presently used, or are susceptible to use in
this natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce shoreward to their ordinary
high water mark, including all waters which are subject to the ebb and
flow of the tide shoreward to their mean high mark (mean higher high
water mark on the west coast).
"(2) The term 'adjacent' wellands as used in this section shall mean
(a) those coastal wetlands, mudflats, swamps, marshes, shallows and
those areas periodically inundated by saline or brackish waters that are
normally characterized by the prevalence of salt or brackish water
vegetation capable of growth and reproduction, which are contiguous or
adjacent to navigable waters subject to the ebb and flow of the tide,
and (B) those freshwater wetlands including marshes, shallows, swamps,
and similar areas that are contiguous or adjacent to other navigable
waters, that support fresh water vegetation and that are periodically
inundated and are normally characterized by the prevalence of vegetation
that requires saturated soil conditions for growth and reproduction.
"(e) Except as provided in subsection (f) of this section, the
discharge of dredged or fill material in waters other than navigable
waters or adjacent wetlands is not prohibited by or otherwise subject to
regulation under this Act (except for effluent standards or prohibition
under section 307), or section 9, section 10 or section 13 of the Act of
March 3, 1899.
"(f) If the Secretary of the Army, acting through the Chief of
Engineers, and the Governor of a State enter into a joint agreement that
the discharge of dredged or fill material in waters other than navigable
waters or adjacent wetlands of such State should be regulated because of
the ecological and environmental importance of such waters, the
Secretary, acting through the Chief of Engineers, may regulat such
discharge pursuant to the provisions of this section. Any joint
agreement entered into pursuant to this subsection may be revoked, in
whole or in part, by the Governor of the State who entered into such
joint agreement or, by the Secretary of the Army, acting through the
Chief of Engineers.
"(g) In carrying out his functions relating to the discharge of
dredged or fill material under this section, the Secretary of the Army,
acting through the Chief of Engineers, is authorized to issue those
general permits which he determines to be in the public interest.
"(h) The discharge of dredged or fill material --
"(1) from normal farming, silviculture, and ranching activities,
including, but not limited to, plowing, terracing, cultivating, seeding,
and harvesting for the production of food, fiber, and forest products.
"(2) for the purpose of maintenance of currently serviceable
structures, including, but not limited to, dikes, dams, levees, groins
riprap, breakwaters, causeways, and bridge abutments and approaches, and
other transportation structures including emergency reconstruction); or
"(3) for the purpose of construction or maintenance of farm or stock
ponds and irrigation ditches, is not prohibited by or otherwise subject
to regulation under this Act.
"(i) The discharge of dredged or fill material as part of the
construction, alteration or repair of a Federal or federally assisted
project authorized by Congress is not prohibited by or otherwise subject
to regulation under this Act if the effects of such discharge have been
included in an environmental impact statement or environmental
assessment for such project pursuant to the provisions of the National
Environmental Policy Act of 1969 and such environmental impact statement
to Congress in connection with the authorization or funding of such
project.
"(j) The Secretary of the Army, acting through the Chief of
Engineers, is authorized to delegate to a State upon its request all or
any part of those functions vested in him by this section relating to
the adjacent wetlands in that State if he determines (a) that such State
has the authority, responsibilty, and capability to carry out such
functions, and (B) that such delegation is in the public interest. Any
such delegation shall be subject to such terms and conditions as the
Secretary deems necessary, including, but not limited to, suspension and
revocation for cause of such a delegation."
Mr. TOWER. Mr. President, there are many problems with the current
Corps of Engineers program.
It involves unwarranted intrusion into the lives and activities of
private citizens in various areas of the country that have a minimal
effect on the real problems of water pollution.
Further, it is an unwarranted growth in the Federal permit-writing
business.
I might further note that less than genuine importance is
accomplished because available manpower is spread too thin while too
much of relative unimportance is attempted.
I think the current program has precipitated a further erosion of
public confidence and support for the very real and legitimate
objectives of the water cleanup effort.
In offering this amendment, which was originally offered by
Congressman WRIGHT in the House of Representatives, which I might refer
to as the Wright amendment, we would restrict the expansion of Federal
authority over navigable waters.
It would provide protection to wetlands, swamps, marshes, and so
forth, which are adjacent to navigable waters. It would allow States to
request the Corps to assume permanent authority in wetlands other than
those adjacent to navigable waters, which adds in additional protection
for wetlands resources. It authorizes the issuance of general permits
for activities which either individually or collectively have minor
environmental impact. It exempts from Corps permit requirements
activities related to normal farming, forestry, and ranching activities,
activities required for maintaining currently serviceable structures
such as dikes, dams, and levees, and requirements for construction or
maintenance of farm or stock ponds and irrigation ditches.
It eliminates a great deal of double paperwork by eliminating the
need for a permit for those Federal or federally assisted projects for
which an environmental impact statement has been submitted to Congress.
It provides for delegation by the Corps of its wetlands protection
responsibilities to those States with adequate authority.
Unfortunately, Mr. President, the Baker-Randolph amendment did not
meet the complaints against the current Corps program and did not really
redress its shortcomings. They can only be redressed by the Wright
amendment, because Baker-Randolph does not curtail the jurisdiction of
the Federal Government. It really transfers the Federal involvement
from the Corps to the Environmental Protection Agency. It /(())
increases the authority of the EPA at a time when EPA does not have the
resources to do their missions well.
In addition, with EPA involvement, there would be a resulting
interference with ongoing State efforts to protect wetlands, because it
would require a single national standard: and for that you can read
"National Land Use." I think there are many people here who are opposed
to that. I hopt they will not endorse this back-door approach to land
use. I believe that the Wright amendment does solve the bureaucracy
problem and at the same time allows a mechanism for the protection of
vital wetland resources by the States and the Corps, a sharing of
responsibility.
Mr. President, this amendment is sponsored by many organizations. I
submitted a list of them for the RECORD of August 25. Some 80 prominent
and national local organizations support this measure and oppose the
Baker-Randolph approach. I mention some of them: American Farm Bureau
Federation, National Assocation of Home Builders, National Association
of Realtors, National Farmers Union, National Forest Products
Association, National Grange, Pacific Northwest Waterways Association,
Chamber of Commerce, the AFL-CIO Building and Construction Trades
Department, National Association of State Foresters, and the National
Governors Conference.
There are some 80 of them, and I refer my colleagues to the RECORD of
August 25 if they wish to see acomplete list of them.
In addition, there is a letter from the Secretary of Agriculture to
Senator RANDOLPH, which with his leave, I should like to read portions
of. I assume that it was not too private, since it has been reproduced
and circulated.
Mr. RANDOLPH. It just arrived within the last 5 minutes.
Mr. TOWER. With the Senator's permission, may I read a portion of it
into the RECORD?
Mr. RANDOLPH: Yes.
Mr. TOWER. He says:
We commend your efforts to resolve the "404" issue. However, in our
review of the language of this amendment we find that an exemption for
all lands in agriculture, silviculture, and ranching is not provided in
your amendment. I again call your attention to the administration
proposal. It has a provision spelled out in subsection (p) of the
proposal which provides assurances to farmers and ranchers that they
will not be subject to burdensome regulation with threat of penalties
under the Federal Water Pollution Control Act while using their lands to
produce food and fiber for this national, as well as the world. I
strongly urge you to consider the impact of whatever language is
finanally used so that the nation's farmers and ranchers will not be
unduly restricted in their efforts to raise food, fiber and forest
products.
The bottom line is, Mr. President, that we should not inhibit our
farmers and ranchers at a time when the production of food and fiber is
so important not only to our welfare, from the standpoint of what we
consume and from the standpoint of balance of payments, but also from
the standpoint of the vast needs in the world for additional food
production.
I yield to my distinguished colleague from Texas whatever time he may
need.
Mr. BENTSEN. I thank my colleague.
Mr. President, what we really are concerned with here is the question
of jurisdiction. If we look at the Randolph-Baker amendment, we see
that it does not limit the jurisdiction. What they have really resolved
is whether that jurisdiction is to be exercised by the Corps of
Engineers or by the Environmental Protection Agency and hopefully,
ultimately, the States. They do not cut back on the number of waters
and wetlands where you will have to have applications for these permits.
That means that permits would still be required for the traditional
navigable streams and surrounding wetlands and also for the Primary and
secondary streams and then to the farm, to the 5-acre pond.
In the third phase, it includes any stream that has 5 cubic feet flow
per second. How many farmers can tell you whether they have 5 cubic
feet flow per second in their streams? The next question they are going
to ask is, "Does that mean in the winter or in the summer? Does that
mean an ever flowing stream or a seasonal stream? Does that mean that a
5-acre pond is supposed to have 5 acres after heavy rains or when there
has been a drought?
Those are the kinds of problems that are brought about and not
resolved.
I support the Wright-Tower amendment, it is the amendment I sponsored
in the committee.
Mr. RANDOLPH. Mr. President, will the Senator yield?
Mr. BENTSEN. I have limited time, and I would normally yield to the
distinguished chairman. I have limited time on a controversial and
tough issue.
What we are trying to cut back on is overregulation. We have heard a
great deal of rhetoric about too much redtape and paperwork in this
country, too many Government forms to fill out.
The last report of the Paperwork Commission said that we are spending
$18 billion a year on filling out Government forms -- enough to fill a
football stadium several times per year. Are we going to continue with
the rhetoric, or are we going to take the opportunity to cut back on it?
Talk to the farmers and ranchers in this country. Go to the small
towns and see how they react to this increase in red tape and Government
forms.
This proposal, the amendment we offer today, says that you limit it
to the traditional concept of navigable streams and the surrounding
wetlands. I am concerned about the navigable streams and the wetlands.
If we want to protect the wetlands of this country, let us not do it on
a case-by-case basis. Let us have an overall piece of legislation to
study this problem and approach it properly. That is not the way it is
done under the committee amendment.
Supposedly, farming and ranching operations are excluded, but how
does a farmer determine what a "normal" farming operation is? Will he
not be subject to a law suit if his interpretation differs from the
Agency's? Can we be certain what the court will decide? Those
questions will still have to be resolved.
If we will cut this back and limit it to the traditional concept of
navigable streams and surrounding wetlands, we will do a favor for the
wetlands of this country, because we will sharpen and improve the
quality of the regulatory effort.
We have had an incredible increase in application under section 404.
In 1974, we had 2,900 permits requested from the Corps of Engineers on
section 404. In 1976 there were not 2,900 but 9,200 Permits requested.
The corps estimated at one time that if you went to phase 3, between
30,000 and 50,000 applications for permits around this country would be
submitted.
We would have all kinds of farmers, ranchers, small business people
having places out in the country who would not know that they were
violating the law, would not know that they had to have a Federal permit
or something from EPA to get this thing done -- or would be uncertain as
to whether they needed one.
The response given is that the program is going to go to the States.
Yes, ultimately, I hope it does. Nevertheless, it still means that
those applications covering the expanded jurisdiction, are going to have
to be filed.
What happens when you file one of these applications? It is
circulated through the Federal agencies, and everyone gets into the act.
The PRESIDING OFFICER. All of the time of the proponents of the
amendment has expired.
Mr. DOMENICI. I yield an additional 5 minutes of my time on the bill
to the Senator from Texas.
Mr. BENTSEN. I thank the distinguished Senator from New Mexico,
because I think this is a matter of great concern. Obviously, it is a
highly controversial issue. To try to limit this to 10 minutes on a
side really does not get the problem covered adequately, as we all want
to do.
We are talking about protecting these wetlands. Yet we absolutely
deluge the agency involved with these applications for permits. We will
find they are going to get so far behind in trying to come up with
decisions that serious delays in the kind of work that has to be done
round this country will occur. But if we hold it to the traditional
navigable streams and their wetlands, we will protect those. Then the
time ought to come that we will have a comprehensive piece of
legislation to take care of the other areas.
My distinguished colleague, the senior Senator from Texas, has cited
the Building and Construction Trades Department of the AFL-CIO. They
strongly support the Wright amendment. They say it is critical to the
orderly development of our waterways; it fixes a regulatory structure
for the workable and responsible administration of the wetlands,
scrupulously established the purisdiction of the Corps, and prevents
costly bureaucratic delays.
We should not leave this interpretation on 404 to the courts, and we
should not leave it to the corps as to what Congress meant by this. The
definition, the scope of this regulatory effort is what is /(())
clarified by the Wright amendment, or the Tower amendment, that we have
before us now. I strongly support it. I believe that it will address
itself to the problem. I urge my colleagues to support it.
I return the remainder of my time to the distinguished senior Senator
from Texas.
Mr. DOMENICI. Mr. President, may I ask the senior Senator from Texas
a question with reference to this amendment?
Is this the identical amendment offered in the Committee on Public
Works by the Senator from Texas?
Mr. BENTSEN: May I address myself to that?
Mr. TOWER. I yield to my colleague to answer that.
Mr. BENTSEN. It carries out the purposes of the amendment I
addressed in protecting against the dumping of toxic substances. That
was one of my concerns with the Wright amendment. Our revised Paragraph
(e) preserves the authority for the Department of Justice to move in
where there is a dumping of toxic substances. We want that. We want to
protect against such dumping.
Mr. DOMENICI. This would be the amendment that the committee voted 7
to 7 on.
Mr. BENTSEN. Seven to six on that amendment. If it were not for the
persuasiveness of our great chairman and the ranking minority member and
those forces at work, with all of their cloquence, we would have
prevailed.
Mr. TOWER. I think the point made by my distinguished colleague is
that this differs somewhat from the Wright amendment in the House
because it does afford that protection spoken of by my distinguished
colleague.
Mr. BENTSEN. I yield to my colleague from North Carolina.
Mr. MORGAN. Mr. President, I supported the amendment in the
committee very strongly. I feel we should support it now. Quite
frankly, if the amendment should fail, I support the position of the
subcommittee chairman, that we should adopt no amendment.
I wonder if the chairman would answer a couple of questions for me
that my people in North Carolina would like with regard to the Tower
amendment.
Section 404(2)(i) of the Tower-Wright amendment says in essence that
the discharge of dredged or fill material as part of the construction,
alteration, or repair of a Federal or federally assisted project
authorized by Congress is not prohibited. The question I would like to
propose it, does this mean that the Federal Government would be exempt
from all of the activities considered in the Tower-Wright amendment?
Mr. BENTSEN. Before a Federal project is approved, the question of
the disposal of dredged spoil and fill would have to be adequately
addressed and addressed to the satisfaction of the Congress.
Mr. MORGAN. In other words, the reason for exempting them is that it
requires that the problem be addressed in the environmental impact
statement?
Mr. BENTSEN. That is correct.
The PRESIDING OFFICER. (Mr. GLENN). The initial 5 minutes has
expired. Who yields time?
Mr. DOMENICI. Does the senior Senator from Texas desire some time on
the bill?
Mr. TOWER. May I have 5 minutes on the bill for my colleague from
Texas?
Mr. DOMENICI. I yield 5 minutes.
Mr. BENTSEN. I thank my colleague. Let me give an example of some
of the problems we are running into as applications are filed under the
extreme interpretations of the courts as to what 404 constitutes. We
have the Lake Limestone project in Texas, which amounts to about 15, 000
acres. That is a project paid for with State funds. It does not have
any Federal funds involved in it. This is necessary for the municipal
water supply, domestic water supply, and industrial water supply in that
surrounding area. It is absolutely crucial, and has strong support in
that area. The project is now being blocked because the people building
the project sought a phase II permit, and it was circultated among a
number of Federal agencies. So in comes the Fish and Wildlife Bureau
who says, "What you are going to have to do now"--remember, this has
nothing to do with the dredging or the fill, but it says, "What you are
going to have to do now is buy an extra 15,800 acres of land,
approximately, to mitigate for whatever has happened to wildlife in that
other 15,000 acres."
Think about the economic drain on that small county, on the taxpayers
in that area, in trying to accomplish that kind of objective. Think of
the additional land that will be lost from that tax base. That is the
kind of Government interference we are getting. Federal Government
interference, in this kind of interpretation.
Mr. DOMENICI. Does the distinguished senior Senator from Texas
require additional time?
Mr. TOWER. If I may have 2 minutes.
Mr. DOMENICI. I yeild 2 minutes to the senior Senator from Texas.
Mr. TOWER. Mr. President, I shall not prolong consideration of this
matter any further. I shall simply say that if this amendment does not
pass, it means an unwarranted Federal intrusion in jurisdiction over
every brook, creek, cattle tank, mud puddle, slough, or what have you,
in every farmer's back yard in this country. I think, as the junior
Senior from Texas pointed out, we have had too much government
interference, too much redtape. There is an anti-Washington syndrome
abroad in this land. What we do here, if we fail to adopt this
amendment, is simply perpetrate more big government on the people of
this country, who are sick of it. I urge the adoption of this amendment.
Mr. BENTSEN. If I have any time left, I yield it to my distinguished
chairman, to whom I referred earlier?
Mr. RANDOLPH. I shall later speak on my own time, but I shall be
glad to use the Senator's time to correct an error which the Senator
from Texas inadvqrtently made during the strong remarks which he made
with fervor and with feeling.
The Senator mentioned ponds, and I must say that the language in the
committee amendment specifically exempts farm or stock ponds, no matter
what the size of the ponds, whether 5 acres or more or less. The
Senator from Texas has even added some extra words about what is in this
measure affecting these waters.
Does my colleague agree that farm and stock ponds or irrigation
ditches are in no way affected by the permit program in the
Baker-Randolph amendment?
Mr. BENTSEN. I am not talking about irrigation ditches. I am
talking about construction of a new lake, for example.
Mr. RANDOLPH. I say to my distinguished chairman, if you are going
to build a new six-acre pond on a farm and were that to be incidental to
the bringing of new lands under cultivation, under the interpretation of
the committee language, that farmer would have to go out and make an
application to get a permit to build it.
I also have some doubts about how the courts will interpret "normal"
farming activities.
Mr. RANDOLPH. Well, there is an exemption for that, and we will
spell it out during the debate; I referred to the language, in section
8 of the amendment which grants exemptions for certain activities. One
of these is the placement of material "for the purpose of the
construction or maintenance of farm or stock ponds or irrigation
ditches, or the maintenance of drainage ditches."
This exemption is in the amendment to S. 2710 as presented, referring
to the Baker-Randolph language.
I do not want to be too earnest or vehement about it.
Mr. BENTSEN. We are very much in earnest.
Mr. RANDOLPH. I reply because I think that my colleague has perhaps
inadvertently taken the position he has taken.
Mr. BENTSEN. No; it is not inadvertent. It is my concern that we
be explicit about the building of new ponds.
Mr. HUDDLESTON. Mr. President, will the Senator yield to me for a
unanimous-concent request while he is looking up his answer?
Mr. BENTSEN. My chairman has the time. We are on his time now.
Mr. RANDOLPH. Yes; I am delighted to yield.
Mr. HUDDLESTON. Mr. President, I ask unanimous consent that Tim
Dadcoon of my staff and Jim Sitmier of the Agriculture Committee staff
be granted the privileges of the floor during the consideration of this
measure.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HUDDLESTON. I thank the Senator.
Mr. RANDOLPH. Mr. President, where are we as to time?
The PRESIDING OFFICER. Four minutes remaining to the opponents of
the amendment controlled by the Senator from Maine.
Mr. RANDOLPH. Of course, we can take time from the bill.
Mr. MUSKIE. Mr. President, will the Chair repeat that?
The PRESIDING OFFICER. Four minutes remaining to the opponents of
/(()) the amendment controlled by the Senator from Maine.
Mr. MUSKIE. May I inquire who is using the time against the Tower
amendment? I do not recall any debate having been undertaken on behalf
of the opponents.
The PRESIDING OFFICER. The Senator from West Virginia used the
majority of the time, the 6 minutes.
Mr. MUSKIE. How much time do we have?
The PRESIDING OFFICER. Ten minutes to a side.
Mr. RANDOLPH. I respectfully ask the Chair if we can go off the time
of the amendment. I will take my time on the bill in general debate.
Mr. MUSKIE. I will yield such time as the Senator may wish. How
much time do we have?
The PRESIDING OFFICER. Forty minutes are left to the Senator from
Maine on the bill. There is a 10-minute limitation on amendments.
Mr. MUSKIE. Whatever time the Senator from West Virginia wishes.
Mr. RANDOLPH. Mr. President, I have said on other occasions that the
issues relating to section 404 of the Water Pollution Control Act
Amendments of 1972 are the most controversial we have had to face in
developing this legislation. In the amendment before the Senate is
language that the Committee on Public Works believes is responsive to
the problems raised by judicial and administrative interpretations of
section 404. This language, in section 8 of the pending amendment, is
designed to eliminate much of the confusion and uncertainty that exists
with respect to section 404. It permits activities that cause little or
no harm to the environment, but it also provides for controls over
functions that are damaging to sensitive areas.
The Senators from Texas are asking the Senate to substiture their
proposal for dealing with the problems of section 404. I remind the
Senate that language almost identical to that offered by Senator TOWER
was rejected by the committee during its consideration of this
amendment. We felt that this approach was inadequate and that the
proposal offered by Senator BAKER, and myself more fully addressed the
problems associated with section 404.
Mr. President, we are often reminded that the proposal of the
Senators from Texas is identical to that contained in the House-passed
version of this legislation and that it was adopted by a vote of 234 to
121. While I have the greatest respect for our colleagues in the House
of Representatives, I do not believe that we should follow their lead
unquestionly. The Senate must address the problems before us and we
must develop solutions that we feel are most responsive. The conference
procedure exists to provide the mechanism for melding the thinking of
the two bodies.
In considering this amendment, it is important to remember that the
House language relating to section 404 was adopted on the floor without
consideration of the appropriate committee and with little debate.
I share the concerns of the Senators from Texas about the impact of
regulations proposed by the Army Corps of Engineers to implement the
provisions of section 404 as interpreted by the courts. They have
expressed reservations about the impact on agriculture. This was a
matter of prime consideration by the Committee on Public Works.
The committee amendment, provides a specific exemption for normal
agricultural activities. A discussion of what is meant by "normal"
activities is contained in a discussion of the committee amendment which
appears in the CONGRESSIONAL RECORD today. In no way is this language
intended to restrict the ability of farmers to carry out activities
concerned with the normal growing and harvesting of food and fiber.
Similar exemptions are provided for normal silviculture and ranching
practices so that they are not hampered by regulation when none is
needed. The committee carefully examined many activities to determine
which ones should not be subjected to the full impact of the permit
process which is authorized by sections 402 and 404 of the Water
Pollution Control Act.
Mr. President, I think we need to again underscore the fact that the
language of the amendment which I referred to incorporates an examption
for the construction of farm or stock ponds or irrigation ditches or, as
the able Senator from Texas (Mr. TOWER) has said, sloughs. We were even
going to exempt those in the lands that he represents in Texas.
I must continue to call attention to the discrepancy in the words
spoken by the two Senators regarding the language of the bill. We
address the matter of construction and we address the matter of
maintenance for such categories as farm and stock ponds regardless of
their size. Both construction and maintenance are exempted for these
categories.
Mr. President, as we talk about agriculture and farming and ranch
country we should note that 80 percent of the permits now required under
the Corps of Engineers program would not be needed under the
Baker-Randolph provision incorporated in the bill.
As I said to the able Senator from South Dakota (Mr. McGOVERN), all
members of our committee share the concern of the Senators from Texas
(Mr. BENSTEN) as a member of the Committee on Public Works. I am only
continuing to focus on this subject as it concerns agriculture because I
share your concern, and the other members share your concern for the
impact of regulations proposed by the Army Corps of Engineers to
implement the provisions of section 404 as interpreted by the courts.
Sometimes, however, as we think we are having more and more
regulations, we should read these words:
If all the seas were ink and all the reeds were pens and all the
skies were parchment, and if all men could write, they could not match
the red tape of this government.
I am sure that most persons would think that this statement applies
to the present day. But that statement was made about the government of
Rome about 2,000 years ago.
So the matter of regulation, of implementation of law, is a matter
that carries with it the necessity for the following guidelines and
meeting goals.
We have had an expression of reservations about the impact on
agriculture, and that is proper to be injected into this debate. It is
important that we have it for this matter was, and I emphasize, a matter
of prime consideration to the members of the Committee on Public Works.
The committee members, in adopting the amendment offered by Senator
BAKER and myself, were not mindful of the arguments made within the
committee by the diligent Senator from TEXAS (Mr. BENSTEN). The
committee amendment, as well as the Bentsen-Wright amendment which is
strongly supported by Senator TOWER, both provide a specific exemption
for normal agricultural activities.
What is a normal activity is contained in the discussion of the
committee amendment as set forth in the debate. In no way is the
language in the amendment intended to restrict the ability of farmers or
ranchers to carry out activities concerned with the normal growing and
harvesting of food and fiber.
The PRESIDING OFFICER. All the Senator's time has expired.
Mr. RANDOLPH. May I have another 5 minutes?
Mr. MUSKIE. Yes, I yield another 5 minutes.
The PRESIDING OFFICER. The 8enator from West Virginia.
Mr. RANDOLPH. Now, similar exemptions are provided for what we call
normal silviculture and ranching practices so they are not hampered by
regulation.
The committee members--and I am very frank to say the vote was
close--have carefully examined many activities to determine which ones
should not be subjected to the full impact of the permit process which
is authorized by section 402 as well as 404 of the Water Pollution
Control Act.
As contained in the committee amendment, section 8 gives the Corps of
Engineers authority to regulate the disposal of dredge spoil and fill
material in navigable waters as they have been traditionally defined.
Such control in other waters is retained by the Environmental Protection
Agency under its existing authority in section 402. Section 402 is the
basic control program of the Agency.
The committee also recognized the need to give some authority for
permit programs to the States. This is another concern of the Senator
from Texas. I, too, believe that the States in many instances can
implement these regulatory programs, relieving Federal agencies of the
burden and hopefully eliminating many of the administrative and
bureaucratic delays that contribute to today's frustration. Provision
is made in the committee amendment for the delegation of this permit
program to the States /(()) when they have the ability to successfully
carry out such a program.
Mr. President, the Committee on Public Works developed its own
approach to the section 404 problem because we felt there were
deficiencies in the language adopted by the House. The most glaring of
these is the failure to provide any regulation of the disposal of dredge
and ILLEGIBLE materials in water other than those that are navigable in
fact and under control of the Corps of Engineers. This area is left to
the discretion of the States and would be unprotected if the States
chose not to exercise their authority. Such a situation could leave
many important wetland and other areas open to unrestricted
contamination. The language proposed to the Senate corrects this
deficiency. The States, as I have stated, can assume the responsibility
for control in these upstream areas. Until they do, however, the
Federal Government -- through the Environmental Protection Agency -- can
regulate disposal in these areas.
Mr. President, the aims of the Senator from Texas and the members of
the Committee on Public Works are identical. We both seek to establish
a regulatory program over disposal of dredge and fill material. We both
seek to reach this objective in a manner that does not hamper the
conduct of certain activities. The only difference is one of approach
and I believe the committee language to be more complete and workable.
Mr. President, in the interests of a balanced response to an
admittedly difficult problem, I urge the Senate to reject the amendment
of the Senator from Texas.
Mr. BENTSEN. Mr. President, I ask for the yeas and nays on the
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. MUSKIE. Mr. President, I yield myself 3 minutes on the bill for
the purpose of commenting briefly on this amendment, if I may.
The Senator from North Carolina has already indicated that in
committee I was opposed to the Bentsen amendment which is now before us
as the Tower amendment as modified.
I was opposed to the Baker-Randolph amendment because I prefer to
completely strike section 404. However, I preferred the Baker-Randolph
proposal to the Tower amendment.
Section 404 was designed to do two things. It was designed to
control the dumping of dredged spoil into navigable waters. Second, it
was designed to give EPA veto power over dredged spoil disposal sites
selected by the Army.
Neither of those purposes, which were the only explicit purposes of
section 404 in the 1972 law, has been implemented, nor are they covered
by the regulations issued by the Army Engineers.
So I would have preferred striking section 404, thus leaving the
disposition of dredged soil, which is a point source of pollution, under
the general provisions of the 1972 law and leaving the control of
nonpoint source pollution, subject to section 208 of this act.
That was my preference.
Mr. TOWER. Will the Senator yield for the yeas and nays?
Mr. MUSKIE. Yes.
Mr. TOWER. I ask for the yeas and nays on the amendment?
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr MUSKIE. Mr. President, I yield myself another 2 minutes.
I appreciate the statement of the Senator from North Carolina that if
the Tower amendment is defeated, he would support mine.
Unfortunately, I did not have any support in committee and I doubt I
would have any support in the Senate.
May I say to my colleagues from Texas, if the Tower amendment is
adopted, I would be very reluctant to support any provisions dealing
with section 404 except on striking section 404.
The adoption of the Tower amendment on the floor would effectively
remove the issue from conference except for the slight change dealing
with toxic substances that Senator BENTSEN has mentioned.
May I point out with respect to that, Senator BENTSEN's amendment,
would rely on section 307 of the Water Pollution Act as a way to deal
with toxic substances.
But, Mr. President, section 307 of the act has never been
implemented. There are no regulations dealing with it. Use of section
307 is irrelevant.
So using section 307 for the answer to the toxic substances problem
that may be created by the Tower amendment is no answer at all.
The more tinkering is done with section 404, Mr. President, the more
I am convinced that the answer is to repeal it. It may be that if I
continue to make this point, I may gradually begin to accumulate some
support.
But one problem I have with the Bentsen amendment and the Wright
amendment which preceded it in the House--
The PRESIDING OFFICER. The Senator's 3 minutes have expired.
Mr. MUSKIE. Two more minutes.
It seeks to deal with this problem which Senator BAKER, Senator
RANDOLPH, and Senator TOWER sought to deal with primarily, and that is,
the overregulation by the Army Engineers of activities that they were
never intended to be given any authority over by section 404.
The third objection I have to the Wright amendment is that it
undertakes to jeopardize about three-quarters of all U.S. wetlands by
removing them from the jurisdiction of the Clean Water Act.
In other words, it undertakes to redefine navigable waters, thus
tinkering with the hydrologic system -- tinkering with the hydrologic
system and removing about three-quarters of it from any control
whatsoever.
What we are concerned about is over-regulation of activities. I do
not think we ought to express that concern, Mr. President, by pretending
that the hydrologic system can be arbitrarily divided in two, leaving
three-quarters of it beyond protection of the Clean Water Act in order
to do this limited job that is of concern to the Senators from Texas,
and, I gather, most Senators on the floor in the Senate.
It is for that reason I object to the approach of the Tower
amendment, the Wright amendment.
May I point out, too, Mr. President, that the Wright amendment was
written on the House side about an hour before the House acted on
it.There were no hearings on it. It was offered as a substitute for a
provision that resulted from a House Public Works Committee markup.
The only recent hearings that have been conducted are 2 days
conducted by the Senate Public Works Committee, and it was on the basis
of those hearings that the Baker-Randolph amendment was produced. There
is a basis in the hearing record for this answer.
So I support this, not because I prefer it, but because I prefer it
to the Tower amendment, and I made that very clear to the Senator from
West Virginia, to Senator BAKER, and all others.
Mr. JACKSON. The State of Washington has an effective shorelines and
wetlands management program.
Would you expect the State of Washington to qualify to administer the
program?
Mr. MUSKIE. Yes. My staff has had conversations with officials of
the State of Washington, and I am advised that Washington's program
could quickly be approved.
Mr. JACKSON. Mr. President, could the chairman also clarify the
question of whether forest and farm road construction and road drainage
facilities are considered normal elements in agriculture and forestry
and are therefore excluded under the Baker-Randolph amendment from the
permit requirements? Are these "normal" farming and forestry activities
resulting from dredging and filling under sections 402 and 404 as
amended by the Baker-Randolph provision?
Mr. MUSKIE. The purpose of the committee in the amendment is to make
this exemption specific. Forest and far road construction, which meet
basic environmental criteria are definitely exempted from permit
requirements by the Randolph-Baker amendment.
Mr. JACKSON. I wonder if the Chairman could clarify section
404(3)(A)(ii) which exempts maintenance and emergency reconstruction of
certain structures on lands covered by the act. Is it the intention of
the committee to permit the reconstruction or maintenance of structures
necessitated by wear? Would the maintenance of a structure so that its
approximate function and capabity is preserved or restored be exempted
from the permit requirement under the Baker-Randolph amendment?
Mr. MUSKIE. Yes.
Mr. JACKSON. Would the Senator explain what is intended by section
402 (1)(3)(A)(v) which gives the EPA authority to issue "guidelines" for
the construction of farm and forest roads? /(()) Specifically, is it
intended that these "guidelines" would rely on and reflect existing
state forest practices acts which regulate forest road location and
design?
Mr. MUSKIE. Yes. It is also an intention that the Forest Service
road construction guidelines and the 404(b)(1) guidelines be used.
Mr. JACKSON. Do you envision any significant inconsistency between
these guidelines and the existing state laws in this area?
Mr. MUSKIE. No.
Mr. JACKSON. I am somewhat troubled by the apparent ambiguity of
section 402(1)(4)(B) of the Baker-Randolph amendment pertaining to the
issuance of "general permits." This language allows general permits to
be revoked where the authorized activity "may have an effect which is
more appropriate for consideration in dividual permits." The terms
"appropriate" is vague and I wonder if it could be clarified in
conference as to what circumstances and by what criterion could a
general permit be revoked?
Mr. MUSKIE. That is a legitimate question and we will try to deal
with it in conference.
Mr. JACKSON. Could a general permit be revoked for an activity which
has already begun or does it only affect new activities?
Mr. MUSKIE. Only new activities.
Mr. JACKSON. Mr. Chairman, does section 404(d)(3) of the Baker-
Randolph amendment refer to only those wetlands, marshes, and other
covered lands which are contiguous or adjacent to lands covered in items
(1) and (2) of 404(d)?
Mr. MUSKIE. Yes.
Mr. ROTH. I would like to describe a situation which exists in
Delaware and ask the Senator whether a permit would be required for the
activity in question.
The western part of Delaware has a great deal of low-lying farmland.
There are drainage ditches which runn off major rivers and their
tributaries. Most of these ditches are silted and overgrown, with
little or no capacity to carry runoff. The land around these ditches is
farmland, already in agriculture. In some summers the land can be
successfully planted and harvested. In others, it cannot.
The ditches are old, WPA ditches, built about 40 years ago. There
are projects currently underway to clear these ditches out,
rehabilitating them. Usually, a bulldozer clears the land on either
side of the ditch, then a drag line is run through it. The actual work
is based on designs drawn by hydrological engineers.
Mr. BAKER. The situation the Senator describes is maintenance of
existing agricultural drainage and is specifically exempted as a
nonpoint source activity by section 3(A)(iii) of the Baker-Randolph
amendment. It, thus, would not require a permit.
Mr. ROTH. Many of the farmers are constructing lateral ditches in
their same fields, which run into the major ones. Would these laterals
require a permit?
Mr. BAKER. If the drainage is being constructed in fields already in
agricultural use for crops such as soybeans or corn the construction
would not be covered under the program as amended by our provision. No
permit would be required.
Mr. BARTLETT. Mr. President, I am pleased to be a cosponsor of
Senator TOWER's amendment to specify the intention of Congress under
section 404 of the Water Pollution Control Act.
The House has acted on this matter, and it is now the Senate's
responsibility to expedite this clarification.
It is imperative that Congress clearly express its intent so that the
Corps of Engineers and other Federal agencies will have clear and
specific guidelines within which to operate. Also it is necessary that
Congress define the parameters of the Water Pollution Control Act for
Federal courts, thereby precluding any opportunity for the court to
misinterpret the intention of Congress.
My concern is the implication of this section if the court's
interpretation is allowed to stand. The decision provides that the
corps should regulate all bodies of water, even if there is no evidence
that the particular body would ever be navigable.
Not only is this a staggering expansion of Federal authority, not to
mention the staffing that would be required, but it is another major
extension of Federal interference into private lives, private business,
and local control.
The corps has published its "interim final" regulations requiring a
"general permit." This seems to lead to the acceptance of the premise
that all agricultural activities are "point sources" of pollution.
Under Public Law 92-500, the Water Pollution Control Act, Congress
clearly stated that only certain activities would be considered "point
sources" requiring treatment. The cost of this permit is $100. But
this expense is misleading because it does not reflect the cost to the
farmer in time, effort, and delay to secure the permit.
An analysis by several farm organizations shows that the following
steps would be necessary to meet the requirements being established
under section 404:
1. Permit Application -- The application will include a complete
description of proposed activities; location; purpose; use;
schedules; names and addresses of adjoining property owners; all other
Federal, State and local agency approval required; the type, source,
composition, quality and transportation method of materials involved;
and other information requested by the District Engineer.
2. Public Notice, Comments and Hearing -- Notice must be given by
the District Engineer of the application allowing opportunities for and
consideration of public comments to include public hearings.
3. Section 401 Certification -- The applicant must obtain
certification from the State when an activity would discharge into a
navigable water that the discharge will comply with the acceptable
effluent limitations and standards for that particular watershed.
4. Coastal Zone Management Certification -- An applicant in a
coastal zone area must obtain a certification from his respective state
where the activity would affect land or water in the coastal zone.
5. Environmental Impact Statement -- The District Engineer must
determine whether an EIS is necessary for the particular permit
application, and if necessary, must complete prior to the hearing on the
application.
6. Corps Decision Making -- The Corps must apply a complex and
lengthy series of general and specific policies including factors and
criteria mentioned in their own regulations, those of the Environmental
Protection Agency and policies under numerous other statutes. The Corps
must also engage in substantial interagency consultation.
7. EPA Review -- The EPA must consult with the Corps of Engineers
and has final veto power if it determines the discharge will have an
unacceptable adverse effect.
These requirements are in addition to applicable State and local
requirements, which include compliance with State environmental policy
acts, State forest acts, and State and local land use laws. Also, there
are other Federal requirements from specific agencies such as the
Department of Agriculture which already must be complied with. It has
been estimated by certain agricultural organizations that section 404
permit requirements would take between 6 and 24 months for completion,
depending on the specific project undertaken by the farmer.
This type of delay can be ill afforded by the agricultural community
or any other type of business. A decision is made on the basis of a
number of tangible and intangible considerations but particularly
depends on immediate need, anticipated need, availability of capital,
and present costs. Lengthy delays can do nothing but detrimentally
affect the business planning that has become increasingly imperative in
complex agribusiness.
The U.S. Department of Agriculture has estimated that 60,000
additional permits per year would be required if the normal conservation
practices now being carried on by USDA and farmers are continued. Each
of these conservation practices would be delayed, thus perpetuating the
environmental problem that the "practice" is seeking to solve.
If the court decision to expand the jurisdiction of the corps to all
bodies of water, both public and private, is an accurate reflection of
the legislative intent, then it should stand; however, I do not believe
this is true. Therefore, Congress should demonstrate that it was not
their intention to extend such jurisdiction and immediately act to
correct this error by adopting the present amendment introduced by the
Honorable Senator from Texas.
The problem is apparent. I urge the Members of this Senate to
consider the statements made in support of this amendment, and consider
their committment to the elimination of unnessary paperwork, redtape,
and bureaucratic interference. This is an excellent opportunity to
demonstrate this commitment, and I congratulate Senator TOWER for
introducing this amendment, and I urge its immediate adoption.
The PRESIDING OFFICER. Who yields time?
Mr. DOMENICI. Mr. President, I yield myself 2 minutes.
The PRESIDING OFFICER. Is this on the bill?
Mr. DOMENICI. On the bill.
Mr. President, I have been asked by Senator BAKER to see is we could
reach an agreement here and not vote on this /(()) amendment prior to 1
o'clock this afternoon.
As we all know, he worked very hard on this amendment in the
committee, and he supports it very strongly.
He was called over to speak to the President and could not be here
until l o'clock.
With that background, Mr. President, I ask unanimous consent that the
vote on this amendment, the Tower amendment, not take place prior to 1
p.m. this afternoon.
Mr. TOWER. Reserving the right to object.
Mr. HUDDLESTON. Reserving the right to object.
Mr. TOWER. There are other Senators who have to leave before that
time, so, reserving the right to object, one Senator may be denying
rights to others.
Mr. RANDOLPH. Could we just delay it for a little while? There are
other amendments to be offered.
Mr. TOWER. Mr. President, I ask unanimous consent that I may suggest
the absence of a quorum without the one being charged to either side.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. TOWER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. TOWER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TOWER. Mr. President, I object to the request of the Senator
from New Mexico.
The PRESIDING OFFICER. Objection is heard. Who yields time?
Mr. MUSKIE. Mr. PResident, what is the situation on time on the
amendment?
The PRESIDING OFFICER. The Senator from Maine has 4 minutes
remaining and the Senator from Texas has no time remaining.
Mr. MUSKIE. Mr. President, I am prepared to yield back the remainder
of my time unless someone whats any portion of it.
I yield back the remainder of my time.
The PRESIDING OFFICER. All time is yielded back. The yeas and nays
have been ordered and the clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. (Mr. NUNN). Will Senators please clear the
well and take their seats? The well is not cleared. The clerk will
suspend until the well has been cleared.
The second assistant legislative clerk resumed the call of the roll.
Mr. BENTSEN. Regular order, Mr. President.
The PRESIDING OFFICER. Regular order has been called for.
The second assistant legislative clerk resumed and concluded the call
of the roll.
Mr. GRIFFIN (when his name was called). Mr. President, on this vote
I have a live pair with the distinguished Senator from Tennessee (Mr.
BAKER). If he were present and voting, he would vote "nay." If I were
permitted to vote, I would vote "aye". I withhold my vote.
Mr. ROBERT C. BYRD. I announce that the Senator from Nevada (Mr.
CANNON), the Senator from Idaho (Mr. CHURCH), the Senator from Iowa (Mr.
CULVER), the Senator from Colorado (Mr. GARY HART), the Senator from
Colorado (Mr. HASKELL), the Senator from Washington (Mr. MAGNUSON), the
Senator from Wyoming (Mr. McGEE), the Senator from New Mexico (Mr.
MONTOYA), the Senator from Rhode Island (Mr. PASTORE), the Senator from
Connecticut (Mr. RIBICOFF), and the Senator from California (Mr. TUNNEY)
are necessarily absent.
I further announce that, if present and voting, the Senator from
Nevada (Mr. CANNON) and the Senator from Wyoming (Mr. McGEE) would each
vote "yea."
I further announce that, if present and voting, the Senator from
Rhode Island (Mr. PASTORE), the Senator from Connecticut (Mr.
RIBICOFF), the Senator from California (Mr. TUNNEY), the Senator from
Iowa (Mr. CULVER) and the Senator from Colorado (Mr. GARY HART) would
each vote "nay."
Mr. GRIFFIN. I announce that the Senator from Tennessee (Mr.
BAKER), the Senator from Maryland (Mr BEALL), the Senator from New York
(Mr. BUCKLEY), the Senator from Hawaii (Mr. FONG), the Senator from
Arizona (Mr. GOLDWATER), the Senator from Nevada (Mr. LAXALT), the
Senator from Idaho (Mr. McCLURE), and the Senator from Connecticut (Mr.
WEICKER) are necessarily absent.
I further announce that, if present and voting, the Senator from
Arizona (Mr. GOLDWATER) would vote "yea."
The result was announced--yeas 39, nays 38, as follows:
(Rollcall Vote No. 560 Leg.)
YEAS--39
Allen; Bartlett; Bellmon; Bentsen; Brock; Burdick; Byrd; Harry
F., Jr.; Byrd, Robert C.; Chiles; Curtis; Dole; Domenici; Eastland;
Fannin; Ford; Garn; Gravel; Hansen; Hartke; Helms; Hruska;
Huddleston; Johnston; Long; McClellan; Morgan; Moss; Nunn;
Pearson Scott; William L.; Sparkman; Stennis; Stevens; Stone; Taft;
Talmadge; Thurmond; Tower; Young;
NAYS--38
Abourezk; Bayh; Biden; Brooke; Bumpers; Case; Clark; Cranston;
Durkin; Eagleton; Glenn; Hart, Philip A.; Hatfield; Hathaway;
Hollings; Humphrey; Inouye; Jackson; Javits; Kennedy; Leahy;
Mansfield; McGovern; Metcalf; Muskie; Nelson; Packwood; Pell;
Percy; Proxmire; Randolph; Roth; Schweiker; Scott, Hugh; Stafford;
Stevenson; Symington; Williams
PRESENT AND GIVING A LIVE PAIR, AS PREVIOUSLY RECORDED-1
Griffin, for
NOT VOTING--22
Baker; Beall; Buckley; Cannon; Church; Culver; Fong;
Goldwater; Hart, Gary; Haskell; Laxalt; Manguson; Mathias;
McClure; McGee; McIntyre; Mondale; Montoya; Pastore; Ribicoff;
Tunney; Weicker
So Mr. TOWER's amendment was agreed to.
Mr. MUSKIE. Mr. President, I move to reconsider the vote by which
the amendment was agreed to.
Mr. HANSEN. I move to lay that motion on the table.
Mr. TOWER. Mr. President, a point of order. The Senator from Maine
was not on the prevailing side and cannot, therefore, move to reconsider
the vote.
Mr. RANDOLPH. Let us have someone on the other side do it.
Mr. HANSEN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The Senator is correct.
The Senator from Maine did not vote with the prevailing side;
therefore, the point of order is sustained.
The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. TOWER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
Mr. CRANSTON. I object.
The PRESIDING OFFICER. Objection is heard.
The second assistant legislative clerk continued with the call of the
roll.
Mr. BAKER addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Tennessee.
Mr. BAKER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
Mr. DOMENICI. Mr. President, reserving the right to object, is the
Senator from Texas in the Chamber?
Mr. WILLIAM L. SCOTT. I object, Mr. President.
Mr. DOMENICI. I object, Mr. President.
The second assistant legislative clerk continued with the call of the
roll.
Mr. TOWER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Is there objection? The Chair hears none,
and it is so ordered.
Mt. BAKER. Mr. President, I move that the vote by which the previous
amendment was adopted be reconsidered.
Mr. TOWER. I move to lay that motion on the table.
Mr. BAKER. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table. On this question the yeas and nays have been ordered, and the
clerk will call the roll. /(())
The legislative clerk called the roll.
Mr. ROBERT C. BYRD. I announce that the Senator from Nevada (Mr.
CANNON), the Senator from Idaho (Mr. CHURCH), the Senator from Iowa (Mr.
CULVER), the Senator from Alaska (Mr. GRAVEL), the Senator from Colorado
(Mr. GARY HART, the Senator from Colorado (Mr. HASKELL), the Senator
from Washington (Mr. MAGNUSON), the Senator from Wyoming (Mr. McGEE),
the Senator from New Hampshire (Mr. McINTYRE), the Senator from
Minnesota (Mr. MONDALE), the Senator from New Mexico (Mr. MONTOYA), the
Senator from Connecticut (Mr. RIBICOFF), the Senator from Missouri (Mr.
SYMINGTON), and the Senator from California (Mr. TUNNEY) are necessarily
absent.
I further announce that, if present and voting, the Senator from
Nevada (Mr. CANNON) and the Senator from Wyoming (Mr. McGEE) would each
vote "yea".
I further announce that, if present and voting, the Senator from New
Hampshire (Mr. MCINTYRE), the Senator from Connecticut (Mr. RIBICOFF),
and the Senator from California (Mr. TUNNEY) would each vote "nay."
Mr. GRIFFIN. I announce that the Senator from Maryland (Mr. BEALL),
the Senator from New York (Mr. BUCKLEY), the Senator from New Jersey
(Mr. CASE), the Senator from Kansas (Mr. DOLE), the Senator from Hawaii
(Mr. FONG), the Senator from Arizona (Mr. GOLDWATER), the Senator from
Oregon (Mr. HATFIELD), the Senator from New York (Mr. JAVITS), the
Senator from Nevada (Mr. LAXALT), the Senator from Maryland (Mr.
MATHIAS), the Senator from Idaho (Mr. McCLURE), the Senator from
Illinois (Mr. PERCY), the Senator from Pennsylvania (Mr. SCHWEIXER), the
Senator from Vermont (Mr. STAFFORD), the Senator from Alaska (Mr.
STEVENS), the Senator from Ohio (Mr. TAFT), and the Senator from
Connecticut (Mr. WEICKER) are necessarily absent.
I further announce that, if present and voting, the Senator from
Arizone (Mr. GOLDWATER) would vote "Yea."
The result was announced--yeas 34, nays 35--as follows: (Rollcall
Vote No. 561 Leg.)
YEAS--34
Allen; Bartlett; Bellmon; Bentsen; Burdick; Byrd,; Harry F.,
Jr.; Byrd, Robert C.; Chiles; Curtis; Domenici; Eastland; Fannin;
Ford; Garn; Hansen; Hartke; Helms; Hruska; Huddleston; Johnston;
Long; McClellan; Morgan; Moss; Nunn; Pearson; Scott; William I.;
Sparkman; Stennis; Stone; Talmadge; Thurmond; Tower; Young
NAYS--35
Abourezk; Baker; Bayh; Biden; Brock; Brooke; Bumpers; Clark;
Cranston; Durkin; Eagleton; Glenn; Griffin; Hart, Phillip A.;
Hathaway; Hollings; Humphrey; Inouye; Jackson; Kennedy; Leahy;
Mansfield; McGovern; Metcalf; Muskie; Nelson; Packwood; Pastore;
Pell; Proxmire; Randolph; Roth; Scott, Hugh; Stevenson; Williams
NOT VOTING--31
Beall; Buckley; Cannon; Case; Church; Culver; Dole; Fong;
Goldwater; Gravel; Hart, Gary; Haskell; Hatfield; Javits; Laxalt;
Magnuson; Mathias; McClure; McGee; McIntyre; Mondale; Montoya;
Percy; Rubicoff; Schweiker; Stafford; Stevens; Symington; Taft;
Tunney; Weicker
So the motion to lay on the table was rejected.
Mr. BAKER. Mr. President,I ask for the yeas and nays on the motion
to reconsider the vote by which the amendment was agreed to.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
reconsider the vote by which the amendment was agreed to.
The clerk will call the roll.
The second assistant legislative clerk called the roll.
Mr. MANSFIELD (when his name was called). Mr. President, on this vote
I have a pair with the Senator from New Hampshire (Mr. MCINTYRE). If
he were present and voting he would vote "aye." If I were permitted to
vote I would vote "Nay." Therefore, I withhold my vote.
Mr. HATFIELD. Regular order.
(At this point Mr. STONE assumed the Chair.)
Mr. ROBERT C. BYRD. I announce that the Senator from Nevada (Mr.
CANNON), the Senator from Idaho (Mr. CHURCH), the Senator from Iowa (Mr.
CULVER), the Senator from Colorado (Mr. GARY HART), the Senator from
Washington Mr. MAGNUSON), the Senator from Wyoming (Mr. McGEE), the
Senator from Minnesota (Mr. MONDALE), the Senator from New MExico (Mr.
MONTOYA), the Senator from Connecticut (Mr. RIBICOFF), the Senator from
California (Mr. TUNNEY), and the Senator from New Hampshire (Mr.
McINTYRE) are necessarily absent.
I further announce that, if present and voting, the Senator from
Connecticut (Mr. RIBICOFF) and the Senator from California (Mr. TUNNEY)
would each vote "yea."
Mr. GRIFFIN. I announce that the Senator from Maryland (Mr. BEALL),
the Senator from New York (Mr. BUCKLEY), the Senator from Hawaii (Mr.
FONG), the Senator from Arizone (Mr. GOLDWATER), the Senator from
Arizona (Mr. GOLDWATER), the Senator from Nevada (Mr. LAXALT), the
Senator from Maryland (Mr. MATHIAS), the Senator from IDAHO (Mr.
McCLURE), and the Senator from Connecticut (Mr. WEICKER) are necessarily
absent.
I further announce that, if persent and voting, the Senator from
Arizone (Mr. GOLDWATER) would vote "nay."
The result was announced--yeas 41, nays 38, as follows: (Rollcall
Vote No. 562 Leg)
YEAS--41
Abourezk; Baker; Bayh; Bidin; Brock; Brooke; Bumpers; Case;
Clark; Cranston; Durkin; Eagleton; Glenn; Griffin; Hart, Philip
A.; Hatfield; Hathaway; Hollings; Humphrey; Inouye; Jackson;
Javits; Kennedy; Leahy; McGovern; Metcalf; Muskie; Nelson;
Packwood; Pastore; Pell; Percy; Proxmire; Randolph; Ruth;
ILLEGIBLE; Scott, Hugh; Stafford; Stevenson; Svmington; Williams
NAYS--38
Allen; Bartlett; Bellmon; Bentsen; Burdick; Byrd,; Harry F.
Jr.; Byrd, Robert C.; Chiles; Curtis; Dole; Domenici; Eastland;
Fannin; Ford; Garn; Gravel; Hansen; Hartle; Helms; Hruska;
Huddleston; Johnston; Long; McClellan; Morgan; Moss; Nunn;
Pearson; Scott,; William L.; Sparkman; Stennis; Stevens; Stone;
Taft; Talmadge; Thurmond; Tower; Young
PRESENT AND GIVING A LIVE PAIR, AS PRESENTLY RECORDED--1
Mansfield, against.
NOT VOTING--20
Beall; Buckley; Cannon; Church; Culver; Fong; Goldwater; Hart,
Gary; Haskell; Laxalt; Magnuson; Mathias; McClure; McGee;
McIntyre; Mondale; Montoya; Ribicoff; Tunney; Weicker
So the motion to reconsider was agreed to.
Mr. MANSFIELD. Mr. President, I ask for the yeas and nays on the
amendment.
The PRESIDING OFFICER. (Mr. Stone). The yeas and nays are already
ordered on the amendment.
The question is on agreeing to the amendment of the Senator from
Texas. The yeas and nays have been ordered, and the clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. MANSFIELD (when his name was called). Mr. President, on this
vote I have a pair with the distinguished Senator from New Hampshire
(Mr. McINTYRE). If he were present and voting, he would vote, "nay." If
I were allowed to vote, I would vote "aye." Therefore, I withhold my
vote.
Mr. ROBER C. BYRD. I announce that the Senator from Nevada (Mr.
CANNON), the Senator from Idaho (Mr. CHURCH), the Senator from Iowa (Mr.
CULVER), the Senator from Colorado (Mr. GARY HART), the Senator from
Colorado (Mr. HASKELL), the Senator from Washington (Mr. MAGNUSON), the
Senator from Wyoming (Mr. MONDALE), the Senator from New Mexico (Mr.
MONTOYA), the Senator from Connecticut (Mr. RIBICOFF), the Senator from
California (Mr. TUNNEY), and the Senator from New Hampshire (Mr.
McINTYRE) are necessarily absent.
I further announce that, if present and voting, the Senator from
Nevada (Mr. /(()) CANNON) and the Senator from Wyoming (Mr. McGEE)
would each vote "yea."
I further announce that, if present and voting, the Senator from
Connecticut (Mr. RIBICOFF), the Senator from California (Mr. TUNNEY),
the Senator from Iowa (Mr. CULVER), and the Senator from Colorado (Mr.
GARY HART) would each vote "nay."
Mr. GRIFFIN: I announce that the Senator from New York (Mr.
BUCKLEY), the Senator from Kansas (Mr. DOLE), the Senator from Hawaii
(Mr. FONG), the Senator from Arizona (Mr. GOLDWATER, the Senator from
Nevada (Mr. LAXALT), the Senator from Maryland (Mr. MATHIAS), the
Senator from Idaho (Mr. McCLURE), and the Senator from Connecticut (Mr.
WEICKER) are necessarily absent.
I further announce that, if present and voting, the Senator from
Arizona (Mr. GOLDWATER) would vote "yea."
The result was announced--yeas 39, nays 40, as follows: (Rollcall
Vote No. 563 Leg)
YEAS--39
Allen; Bartlett; Beall; Bellmon; Bentsen; Brock; Burdick;
Byrd,; Harry F., Jr.; Byrd, Robert C.; Chiles; Curtis; Comenici;
Eastland; Fannin; Ford; Garn; Gravel; Griffin; Hansen; Hartke;
Helms; Hruska; Huddleston; Johnston; Long; McClellan; Morgan;
Nunn; Pearson; Scott,; William L.; Sparkman; Stennis; Stevens;
Stone; Taft; Talmadge; Thurmond; Tower; Young
NAYS--40
Abourezk; Baker; Bayh; Biden; Brooke; Bumpers; Case; Clark;
Cranston; Durkin; Eagleton; Glenn; Hart, Philip A.; Hatfield;
Hathaway; Hollings; Humphrey; Inouye; Jackson; Javits; Kennedy;
Leahy; McGovern; Metcalf; Moss; Muskie; Nelson; Packwood;
Pastore; Pell; Percy; Proxmire; Randolph; Roth; Schweiker; Scott,
Hugh; Stafford; Stevenson; Svmington; Williams
PRESENT AND GIVING A LIVE PAIR AS PREVIOUSLY RECORDED--1
Mansfield, for.
NOT VOTING--20
Buckley; Cannon; Church; Culver; Dole; Fong; Goldwater; Hart,
Gary; Haskell; Laxalt; Magnuson; Mathias; McClure; McGee;
McIntyre; Mondale; Montoya; Ribicoff; Tunney; Weicker
So Mr. TOWER's amendment was rejected.
The PRESIDING OFFICER. The bill is open for further amendment.
UP AMENDMENT NO. 417
Mr. HUDDLESTON. Mr. President. I send to the desk an amendment and
ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated. The assistant
legislative clerk read as follows:
The Senator from Kentucky (Mr. HUDDLESTON) offers an unprinted
amendment numbered 417:
Mr. HUDDLESTON. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
Mr. STEVENS. Mr. President, would the Senator mind if I object, so
we could hear the amendment? Some of us are leaving.
Mr. HUDDLESTON. I will not object to the Senator's objection.
The PRESIDING OFFICER. Objection is heard.
The assistant legislative clerk read as follows:
On page 14, between lines 5 and 6 insert the following:
"(D) For the purposes of subparagraph (C) of this paragraph, the
phrase "previously subject" shall mean all lands used for agricultural,
silvicultural or ranching at the time of enactment of this subsection,
provided: (i) that the discharge is limited to activities directly
related to the production of food fiber, and forest products; and
(ii) that the discharge within such lands does not preclude the
developments of new lands for production of food, fiber or forest
products.
Mr. BAKER. Mr. President, will the Senator yield briefly?
Mr. HUDDLESTON. I yield.
Mr. BAKER. Mr. President, as far as I am concerned, as one of the
authors of the Randolph-Baker amendment, I am willing to state that I
have no objection to this proposal, and indeed I would support it.
Mr. RANDOLPH. Mr. President, I would like to endorse the statement
made by the able Senator from Tennessee (Mr. BAKER). As a cosponsor of
the Baker-Randolph amendment, we are ready to accpet the proposal of the
Senator from Kentucky (Mr. HUDDLESTON).
The PRESIDING OFFICER. Is all time yielded back?
Mr. HUDDLESTON. Mr. President, I believe when you have the order it
is time to stop talking. Therefore, I yield back my time and call for a
vote.
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Kentucky.
The amendment was agreed to.
Mr. BELLMON. Mr. President, there is language on pages 6 and 7 of
the committee amendment which bothers me, particularly section 6 of the
committee amendment--
The PRESIDING OFFICER. Who yields time?
Mr. MUSKIE. I yield the distinguished Senator from Oklahoma 5
minutes.
Mr. BELLMON. I would like to engage the floor manager of the bill in
the colloquy for a moment, and then perhaps offer an amendment if it is
in order.
The problem I have is with the loan guarantees to the less
credit-worthy communities, to be used in the construction of publicly
owned waste treatment facilities. This could be, and the question I
want to ask is whether or not it it is, a form of back door spending
that could keep significant amounts of potential Federal spending
outside of the budget.
As the floor manager of the bill, who also serves as chairman of the
Budget Committee knows, we have been trying very hard to avoid back door
spending and close as many loopholes as we can, so as to get the budget
under control.
As I understand, the process might work in this way: A State or
local government--
Mr. MUSKIE. Mr. President, could we have order?
The PRESIDING OFFICER. The Senate will be in order. Senators will
kindly take their seats. Staff members will kindly take seats.
Senators will kindly cease their conversations on the floor.
The Senator from Oklahoma.
Mr. BELLMON. As I was saying, Mr. President, as I understand it, the
process works as follows: If the State or local government which needs
a treatment facility applies to EPA for Federal assistance and if it is
approved, the Federal Government would finance 75 percent of the cost
and the State and local government must find the other 25 percent.
Under section 6, apparently, the State or local government would be
allowed to get an EPA guarantee for the 25 percent and with that
guarantee the State and local government would go to the Federal Finance
Bank for that part of the money.
So the FFB then would turn around and borrow from the Treasury and,
of course, the Treasury gets its money from the capital markets. If
there is a default by the State and local government then EPA, which is
certainly a branch of the Federal Government, is forced to reimburse the
Federal Finance Bank, which is another branch of the Federal Government.
So the way it would work out is that, in effect, the Federal
Government would be providing 100 percent of assistance to those less
credit worthy State and local governments. Other State and local
governments that maintain sound financial practices are not eligible for
this program and, therefore, they are penalized in that they must come
up with 25 percent of the cost of these facilities.
Mr. President, to me that is wrong for two reasons. In the first
place it penalizes those governments that do a good job of managing
their own affairs, and in the second place it amounts to a way of
spending a very substantial amount of Federal funds that there is no way
to control under our normal budget process. I am curious to know
whether or not that is the intent of this language; if it is, I wish to
see if we cannot amend it to avoid that danger.
Mr. DOMENICI and Mr. MUSKIE addressed the Chair.
Mr. DOMENICI. I yield to the Senator from Maine.
Mr. MUSKIE. Mr. President, may I say, first of all, all points made
by the distinguished Senator from Okalhoma with respect to the budget
process are points with which I am entirely in agreement.
We are concerned about backdoor spending not only in those forms that
have been traditional but in any new forms, including loan guarantees,
that develop because if they develop they are a temptation to all
committees and all program constituencies to seek the new form of
backdoor spending to escape the discipline of the appropriation process.
/(())
With respect to this one, it was intended to be very narrowly focused
upon a particular situation. I think I could cover that by making these
observations. First, there are clearly instances in which communities
have planned projects and taken them to the construction stage, or the
financing stage, only to find that their ability to finance the project
has been undermined either by reason of the fact that the impoundment of
Federal funds has delayed funding of the project, or second, with the
passage of time, inflation has eaten into their ability to raise local
funds; or third, the failure of the Federal Government to reimburse
communities that advanced their own funds to cover the Federal shre of
previous years that have not been funded.
So for these very special reasons, which are hopefully nonrecurring
reasons, Senator BUCKLEY offered this amendment to provide some relief.
It is my impression that primarily he was concerned with those instances
in which there had been failure to reimburse communities for funds
advanced under the 1966 law to cover the Federal share of the cost of
projects. In all candor, the Federal Government has been very remiss in
not completing that reimbursement program. It is no longer available to
communities and has not been since 1972.
So the Federal Government is several years in arrears in reimbursing
communities that advanced the Federal share of the cost.
For that reason, Senator BUCKLEY, I think, persuaded the majority of
the committee that there was some justice in this approach; if the
Federal Government still is not in a position to reimburse in cash, the
Federal Government ought to make available limited credit to cover the
amount of the funds tied up in nonreimbursement.
I think that is an accurate description of the committee attitide
about this amendment, and it is not the kind of open-ended new back-door
spending that the Senator from Oklahoma is justifiably concerned about,
and I hope that with that explanation we can put the amendment in the
proper perspective.
I yield to my good friend from New Mexico.
Mr. DOMENICI. I simply wish to say to the Senator from Oklahoma that
Senator BUCKLEY is not here but we conferred with him, and obviously the
committee listened to him when he presented it. I think he had some
very specific communities in his State in mind and I think they were
basically of the type Senator MUSKIE has described.
I do not think we are talking about the lack of credit based upon
poor management in the general sense or lack of credit based upon them
not wanting to pay what they ought to be paying for municipal services.
I think he intended that it be the kind of situation where they could
not get financing, because they had replied rather heavily upon the
previous policies of our country that encouraged them to go on and build
expecting rather rapid reimbursement for that share which was the
Federal Government's. I think we can give the Senator assurance that
when we go to conference we will see that we make every effort to limit
it to that kind of situation not only in the State of New York, but also
obviously if it exists anywhere in the country.
Mr. BELLMON. Mr. President, could I have 2 more minutes?
Mr. MUSKIE. Yes, I yield 2 more minutes.
Mr. BELLMON. I am very much reassured by the statements of the floor
manager and assistant floor manager of the bill. It appears that this
language is intended to deal with a specific problem. It is not a
general open door for local governments that are in trouble to escape
paying their part of the cost of these facilities.
It also appears that the language is needed, because if the Federal
Government has not kept faith with these local units of government
obviously we ought not to make it impossible for them to continue with
the kind of treatment facilities that they need.
The only thing I suggest to the floor manager and other members of
the committee who may be on the conference is that perhaps we could have
some fairly explicit report language that lays this out so at least the
legislative history will be extremely clear.
Mr. MUSKIE. I will assure the Senator of my commitment to try to do
that. I do think the language needs some refinement and I think the
Senate conferees, the distinguished Senator from West Virginia, the
chairman of the Public Works Committee, would concur in that objective.
Mr. RANDOLPH. I concur. I understand the concern expressed by the
able Senator from Oklahoma (Mr. BELLMON) and the assurance that has been
given by Senator MUSKIE. Senator DOMENICI, and now agreed to by me. As
we go to conference, I hope we will assuage any problem that we would
have at the moment.
Mr. BELLMON. I thank the distinguished floor manager.
The PRESIDING OFFICER. Are there further amendments to be proposed?
Mr. MUSKIE. I yield to the distinguished Senator from Delaware.
Mr. ROTH. Mr. President, I believe that I am as aware of the
concerns underlying the section 404 controversy as any Member of the
Senate. On the one hand, my State of Delaware has extensive wetlands
bordering the Delaware Bay, which is the Nation's second largest
estuary; it is the site for two fine wildlife refugees, Prime Hook and
Bombay Hook; and it is the home of some of the earliest wetlands
protection legislation in the country.
Delaware is also blessed with some of the finest farmland in the
country, but the use of drainage ditches is compelled; our rivers have
channels which must be dredged in order to maintain proper channel
depths; and some of the most intensive dredge disposal activity in the
country occurs off our shores.
Because the stakes in this controversy are so high for Delaware, I
have studied this issue very carefully. After a great deal of study and
thought. I have concluded that I cannot support either the proposal
offered by Senator TOWER or the proposal offered by Senators BAKER and
RANDOLPH. In my view, the proper course of action would be to
legislatively mandate a moratorium on section 404 under the same terms
as that imposed by the President. I believe that the Congress of the
United States is about to embark on major Federal programs without
adequate attention to or reflection on their implications.
I am gravely concerned that because we have not thought these things
through, we could find ourselves saddled with a massive Federal program
which would fail to protect Delaware wetlands while blocking the
productive use of Deleware's farmlands. I am gravely concerned that
Delaware's farmers -- who are already hard pressed to make a living --
will find themselves confronted by a tangle of Federal paperwork
standing between them and the productive use of their lands. I am
gravely concerned that Delaware's wetlands, rivers, and streams could
suddenly become the victims of thoughtless destruction. I am not saying
these things will happen, but I am saying those are the risks we are
running, because we are unwilling to spend the weeks and months required
to study this issue carefully. Mr. President, I cannot hazard those
risks on behalf of Delaware and her citizens.
The issue is whether we are going to put a massive new Federal
program into place affecting nearly every part of the country in some
degree or another without looking at the issues carefully and at length.
I urgently hope that when this issue is taken to conference, other
Senators and Representatives will be persuaded to my views.
I ask the distinguished Senator from Maine his views as to whether or
not it might not be the best appraoch to delay action for another year,
which would give further time for study, and then try to come up with
legislation that would the Committee on Public Works.
I also proposed that we might solve the problem by simply striking
section 404 from the law. But it was quite clear that I had very little
support in the committee for either position, and the Baker-Randolph
amendment was adopted by a close margin in committee. The Senator has
observed the close vote in the Senate.
My answer to the Senator is that we now go to conference with the
issue open. The Baker-Randolph amendment having been adopted, the
Wright amendment is in the House version. So the issue is open.
If, after defending the Senate position, as it is our duty to do, we
find ourselves in a stalemate, I assure the Senator that his idea will
not lie fallow.
Mr. ROTH. I express my appreciation to the Senator for those
remarks. As I said, I think this is a matter of greatest concern, both
to the farmers and to the wetlands. For that reason, I think we are far
better off to move with care, rather than to rush into a program that
could cause serious problems in the future. /(())
Mr. MUSKIE. The reason I resisted these various proposals, all of
which have been developed on good faith and with considerable ingenuity,
is that they are simply patchwork answers built upon an original
mistake, and I do not like that kind of legislation, wholly apart from
the substance of the issue involved. I would like to see us start anew
and build a policy that fits within the basic structure of the Water
Pollution Act. I suspect that that is what the Senator's attitude is.
Mr. ROTH. That is correct.
Mr. DOMENICI. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. DOMENICI. I think the Senator from Maine will agree with me
that, as we proceeded through the hearings, it was quite obvious,
regardless of what we do in this bill, that there seemed to be a genuine
concern that we approach the wetlands problem of this country in a very
deliberate manner. I do not believe there is any intention on the part
of the committee in any of its activities to just say there is not a
problem in the preservation of the wetlands of this country. The
evidence we have to this point is just that there is a serious problem.
It is just that by the interpretation of section 404, we have gotten
ourselves into a hodge-podge, and we do not know quite where we are. I
do not think we intend in any way to jeopardize the wetlands so far as
the committee's activities are concerned.
Mr. ROTH. I appreciate those remarks. I want to make clear that I
was not personally suggesting that we strike section 404 entirely.
However, as Senator DOMENICI has said, what concerns me is that I do not
think we have adequately determined how to strike the right balance, and
I hope we move with care.
ADDITIONAL STATEMENTS
Mr. TALMADGE. Mr. President, I support S. 2710 and I commend the
efforts of the chairman and members of the Committee on Public Works to
restore the proper direction of the 1972 Federal Water Pollution Control
Act amendments.
Perhaps the one section of the 1972 act which needs revision to
assure the proper attention to the Nation's water quality objectives is
section 404. That section, as the result of a 1975 court decision
involving the Army Corps of Engineers, is being interpreted by the
courts and the administration to require a tremendous enlargement of the
corps permit-granting authority concerning the Nation's waterways.
Under the court's mandate the Corps has expanded its regulatory
activities throughout the Nation to embrace many farm and forest lands
which are adjacent to navigable waters.
This new jurisdiction of the Corps would embrace over 3.5 million
miles of rivers and tributary streams as opposed to the 50,000 miles now
within the Corps jurisdiction. Corps jurisdiction over lakeshores would
jump from 50,000 miles to over 4.7 million miles. There is no accurate
estimate of the acreage of wetlands adjacent to these streams and lakes
that would be embraced within this new responsibility since there is
considerable uncertainty over the definition of wetlands. However, the
Fish and Wildlife Service in the Department of the Interior estimates
that there are 5.9 million acres of wetlands in the State of Georgia.
The Forest Service of the Department of Agriculture estimates that 4.5
million acres of Georgia's highly productive forestlands are within this
wetlands classification.
The Corps' new definition of wetlands will cause confusion and
uncertainty to farm and forest managers as to when permits are required.
This situation could result in administrative delays and costly
litigation.
This confusion will be further compounded because of overlap with the
coastal zone management planning efforts of the States. In many
instances the Corps' 404 program duplicates the coverage under the
Coastal Zone Management Act. Under the 404 regulations, Georgia's
coastal zone management agency must review each 404 permit.
These problems were recognized by the members of the Public Works
Committee in its consideration of proposed amendments to section 404.
It is my opinion that the amendment offered by Senator TOWER
(amendment No. 2218) is superior to the language in section 8 of the
bill reported by the committee. The amendment offered by the Senator
from Texas is similar to the provision previously adopted by the other
body and provides for the Corps of Engineers dredge or fill permit
program under section 404 of Public Law 92-500 to be carried out in a
commonsense, workable manner. Corps efforts should be focused on
keeping the Nation's navigable waterways open for waterborne commerce:
a job which the Corps has performed well throughout its history.
The proposed revision of section 404 adopted by the committee,
following rejectionof the language of amendment No. 2218 by the narrow
margin of 7 to 6, would greatly expand the responsibility of the
Environmental Protection Agency. Rather than reducing the Federal
Government's authority, it is merely being shifted from one Federal
agency to another. More confusion will result from new EPA regulations,
with authority divided between two Federal agencies both of which will
overlap with existing State laws and planning efforts.
I recognize and applaud the committee's intention to exempt most of
the normal farming, forestry, and ranching activities from the scope of
the new EPA authority. However, that exemption does not go far enough.
EPA will have an expanded role in the construction of drainage ditches
and other water control structures on lands already in production of
food, fiber, and forest products. This is not to be confused with
construction of ditches for land draining to accomplish a change in
natural conditions.
While subparagraph (3) (A) (v) exempts farm and forest road building
from the permit program, it unnecessarily expands EPA's regulatory
authority to establish national construction guidelines for these roads.
These national guidelines would most certainly be unresponsive to local
needs and compound the problem of cooperation with State agencies and
Federal land management agencies already charged with similar
responsibilities.
I believe that EPA's water quality authority should not include
regulating the day-to-day activities necessary for food, fiber, and
forest products production. Education and technical assistance programs
at the State and local level, such as those of the conservation
districts, have shown they are effective.
The corps' expanded program resulted from litigation involving
uncertainty in the language of the 1972 act. I can see nothing but
increased litigation resulting from the vague language in the committee
bill. This is especially so in the bill's use of the word "appropriate"
in the so-called "recapture clause" which authorizes revocation or
modification of the proposed general permits where the authorized
activity "is more appropriate for consideration in individual permits."
How is any land manager to know when he can operate under Federal
guidelines published for his activity or when he must get a special
permit? It places an unreasonable and extremely expensive burden on
these landowners to resolve these questions in the courts.
Mr. President, the Congress is aware of the need to correct the terms
of section 404, but we are not facing up to our responsibility in the
committee language. I will support adoption of amendment No. 2218.
Mr. CULVER. Mr. President, I would like to discuss a particular
matter involving section 109(b) of the Federal Water Pollution Control
Act with the distinguished chairman of the Environmental Pollution
Subcommittee.
Before the Public Works Committee began its consideration of
amendments to S. 2710, I had two concerns about section 109(b) of Public
Law 92-500 which are of great interest to the State of Iowa. As you
know, this section authorizes grants to institutes of higher education
for the establishment of wastewater treatment training facilities, and
Kirkwood Community College in Cedar Rapids, Iowa, has the first approved
center in the Nation under this provision.
The committee addressed the first matter by amending section 109(b)
to increase the authorization for these grants from $250,000 to $500,000
for each center, which will help to make them more effective in training
needed personnel. I greatly appreciate the interest of the chairman of
the full committee and the chairman of the Environmental Pollution
Subcommittee in resolving this problem. The second concern did not
require specific legislative language, and I would like to raise it at
this time to clarify congressional intent.
I do not think the committee UNREADABLE WORD that grant applications
under section 109(b) for training plants be put through the same
rigorous and time-consuming process as grants for municipal treatment
facilities, especially with respect to the State priority listings as
required by section 204. It is my understanding that funds for these
training /(()) centers would be over and above the regular State
allocations for construction grants. Since they were never intended for
on line use of the treatment and discharge of municipal waste, these
facilities should not be subjected to the conditions of section 204, but
rather be a part of a State plan which includes operation and
maintenance training.
As a result of EPA's interpretation of this section, our experience
in Iowa was a long and drawn out process which was unnecessary for the
objective of section 109 (b) to be achieved; preparing qualified
personnel for operating sewage treatment plants. I simply wanted to be
sure that the legislative history reflects that my understanding is
consistent with the intent of the Congress.
Mr. MUSKIE. It does. I appreciate the Senator pointing out this
problem to the Senate and I hope this exchange will be ehlpful.
Mr. CULVER. I thank the Senator.
Mr. President, I want to commend the distinguished chairman of the
Public Works Committee, Mr. RANDOLPH, and the chairman of the Public
Works Committee. Mr. RANDOLPH, and the chairman of the Environmental
Pollution Subcommittee, Mr. MUSKIE, for deciding to address only the
most pressing elements of the Federal water pollution control program
this year. This will enable the Senate to devote complete attention
early next year to the full range of water pollution issues after
thorough hearings on Public Law 92-500 and the findings of the National
Commission on Water Quality.
Of particular interest to Iowa, the amendments reported by the
committee to S.2710 include an increase in the authorization section
109(b) from $250,000 to $500,000. Section 109 (B) was included in
Public Law 92-500 to provide financial assistance to the States for
establishing a State training center for waste treatment plant operation
and maintenance personnel. These training facilities are to assure
communities that their operators will be effectively trained to operate
and maintain sewage treatment plants efficiently. The adequate training
of such personnel helps to protect the sizable public investment in
sewage treatment facilities made by all levels of government.
Kirkwood Community College in Cedar Rapids, Iowa, and the State of
Iowa have constructed the first training center approved in the Nation
under this program. The center opened in April 1976, and the experience
at Kirkwood Community College has demonstrated that the $250,000
authorized under this section in 1972 for each facility. For instance,
Kirkwood Community College had to subsidize the construction of its
present center in the amount of $100,000, and bids on the facility
exceeded the $250,000 authorization by at least 50 percent. It is my
understanding that several other States, including Colorado, New Nexico,
Oklahoma and Missouri, have experienced similar problems. The
additional funds will be used to install digesters, sludge drying beds,
and other analytical equipment to complete the facility at Kirkwood.
During the consideration of this section of Public Law 92-500 in
1972, $1 million was initially included for each training facility, but
that amount was ultimately reduced to $250,000. Taking into account the
inflationary effects of the 1972-75 period, it would seem that a higher
authorization of $500,000 per training plant would be more reasonable
and effective. The public investment in municipal wastewater treatment
plants is increasing as the Environmental Protection Agency accelerates
the rate at which applications for construction grants are being
processed. Operators will need to know the latest developments in the
biological and chemical aspects of treatment and each successive level
of treatment demands complex equipment that is very expensive. This
change will let Iowa and other States have personnel trained in the
latest treatment processes.
I believe the Public Works Committee has properly corrected existing
deficiencies in section 109 (B) relating to the funding of these vital
training centers, and I am hopeful that the full Senate will act
favorably on the changes proposed by the committee to this and other
programs of the Federal Water Pollution Control Act.
THE "DREDGE AND FILL" PERMIT PROGRAM ON NAVIGABLE WATERS
Mr. DOLE. Mr. President, I want to take this opportunity to once
again express the continuing concern of farmers, cattlemen, highway and
housing contractors, and other regarding the dredge and fill" permit
program administered by the Army Corps of Engineers. While it is
particularly reassuring that the Senate Public Works Committee has
finally confronted this nagging issue, it is clear that the so-called
Baker-Randolph proposal does not completely resolve the troublesome
aspects of section 404 and of the corps regulations. The Tower-Wright
amendment, on balance, seems to better address the full range of
problems, while preserving essential environmental protections. It has
already passed the House of Representatives. I support it and urge its
acceptance by this body.
Section 404 of the 1972 Federal Water Pollution Control Act gave the
Army Corps of Engineers primary authority to regulate dredge and fill
operations in "navigable waters" of the United States. Historically,
the corps' duties have related to preventing navigational obstructions
and facilitating interstate commerce. The corps' exapanded powers under
section 404, however, resulted from a broader concern for environmental
protection. The matter of "protection" per se, is not at issue.
Instead, it is the mechanism, and the extent of jurisdiction reflected
in the administration of section 404 that is justifiably challenged
today. And until congressional intent is clarified, there will be
challenges and counter-challenges to the corps' regulatory authority.
UNANSWERED QUESTIONS
Congressional intent as reflected in the language of section 404 was
admittedly vague and unspecific with respect to the issues of Federal
wetlands protection, tributary protection, and of defining "dredging"
and "filling" activities. Confusion and uncertainty about the scope of
section 404 in the wake of the corps' regulations of last July, result
from the haziness of guidelines for distinguishing between legal and
illegal conduct. Just as the farmer needs clearcut guidelines addressed
to his specific daily activities, so does the Corps of Engineers require
an easily defiable scope of authority to facilitate permit processing.
For these reasons, Congress needs to take positive steps now to
clarify the proper scope of the section 404 permit program and to
resolve jurisdictional questions. In my opinion, House approval of the
Wright amendment to H.R. 9560--now S. 2710--last month was an
appropriate step in the right direction. It is now up to the Senate to
act, and to act expeditiously.
In June of this year, Senator TOWER and myself initiated a letter to
the President--with 30 Senate signatures--asking that the forthcoming
"phase II" of the corps regulations be delayed until the Senate could
act on this issue. The President responded with an appropriate 60-day
delay to give us time to act decisively. That action gave us the
opportunity to discuss the issue on the Senate floor today.
There are at least two very basic issues that must be resolved at
this time by Congress. What specific types of normal and routine
activities--as practiced by farming, forestry, mining, and construction
industries--are to be considered "dredging" or "filling" for the
purposes of the permit program? To what extent is Federal regulation of
small waters desirable or necessary to achieve the purposes of the 1972
Water Pollution Control Act? These two questions strike at the very
heart of the controversy that has engulfed the section 404 provision
since its enactment. The Tower amendment resolves both of these
questions in what I believe is a fair and equitable manner for dealing
with both environmental and agricultural concerns.
REGULATING ACTIVITIES
Following the district court decision in NRDC against Calloway
(1975), opposition to the section 404 permit program arouse from
agricultural and forestry interests who feared an expanded program would
interfere with normal daily activities near inland waters and on wetland
areas, such as plowing, digging irrigation ditches, et cetera. There is
certainly no obvious language in the 1972 act to arouse such concern,
but the imprecise definitions of "dredging" and "filling," and the
court's order covering lakes, ponds, tributaries, headwaters, and
adjacent wetlands, made such regulation of normal farming acts a very
real possibility.
The anticipated delay, expense, and general burden of imposing such
permit requirements on farming, forestry, and construction industries is
mind boggling. From a logistical standpoint, the Corps of Engineers is
certainly not presently capable--in terms of manpower of money--of
administering a comprehensive oversight over routine agricultural /(())
discharges or forestry functions. Furthermore, it is doubtful that the
corps possesses the technical and scientific competence necessary for
such a regulatory permit program.
In view of these considerations, I believe the Corps of Engineers
made a wise gesture when it included exemption provisions for "normal
farming silviculture, and ranching activities" in its July 1975
regulations. But those provisions did not eliminate concern, because
they are inherently weak. In the first place, agency regulations do not
carry the definitive character of public law; the corps exemptions do
not foreclose the possibility of later court challenges based on the
1972 law. In the second place, the exemption provisions do not
completely eliminate all routine agricultural activities. A sample list
of exclusions contained in the regulations do not refer to such
practices as dredging for irrigation supply or filling in farm roads,
fords, and bridges; and language concerning erosion prevention devices
such as "ripraps" and "groins" is ambiguous. These common agricultural
practices might or might not be judged "normal" by the corps at the time
of permit application.
Similarly, I understand that the beef cattle industry is concerned
about potential permit req"irements for terracing, digging irrigation
canals and livestock ponds, and for cleaning out lagoons. "Normal"
forestry activities including construction of culverts, draining
ditches, and temporary roadways could be subject to 404 regulation. The
Kansas Department of Transportation advises me that routine cleaning of
culverts, repair and replacement of bridge abutments and piers, and even
debris clearance could possible require a permit under current corps
regulations.
I do not believe that Congress intended for such activities to be
regulated by the Federal Government. For these reasons, permit
exemptions for "normal" activities of private business need the full
force of congressional clarification and public law.
IS FEDERAL CONTROL NECESSARY?
A second issue that arose from the 1972 law is the question of
whether or not expanded oversight jurisdiction should be vested in a
Federal agency such as the Corps of Engineers. I submit that in most
cases, State government can more readily adapt, and more specifically
direct, wetlands regulation to meet the particular geographic needs of
the State. Furthermore, because water and wetlands use has been
traditionally reserved to State government, the entire structure of
water rights and land use administration would be seriously jeopardized,
if not destroyed, throughout the Nation by expanded Federal oversight.
State control of wetlands located in tidal areas is firmly rooted both
in common law and statutory bases. Even though the expanded 404 corps
regulations allow for an "advisory" role for the States, all
decisionmaking powers for issuance of a permit are retained by the
corps.
Clearly, this involves a duplication of State and Federal resources
where the State has already advised an adequate water and wetlands
regulation system. Previous environmental legislation, such as the
Coastal Zone Management Protection Act and Solid Waste Control Act, has
given the States primary responsibility for carrying out the purposes of
the protective legislation. Indeed, such Federal environment regulation
should be in cooperation with, and not in substitution for, State
regulation. There is no reason why State permit programs which meet
uniform Federal standards cannot effectively achieve the purposes of
section 404. Delegation of the authority to grant permits to States
which have federally sanctioned permit programs which meet uniform
Federal standards cannot effectively achieve the purposes of section
404. Delegation of the authority to grant permits to States which have
federally sanctioned permit programs would be a big "plus" in terms of
practical and expeditious implementation of this program. The Tower
amendment provides for such delegation in a responsible manner.
A very fundamental question lingers about the proper definition of
"navigable waters." The courts have interpreted the term to encompass
most waters in the United States and this has spread the scope of this
Federal program far beyond traditional boundaries. We all understand
the importance of regulating genuine polluting activities on tributaries
that feed into larger waters. But Federal encroachment under the
provisions of section 404 was neither intended nor desired by this
Congress. The Tower amendment would statutorily define "navigable
waters" in its more restricted, traditional sense, thus limiting corps
authority to large waters. Yet, the invironmental integrity of smaller,
nonnavigable waters could be preserved through State oversight, with
Federal cooperation if requested.
If we legislate in a thoughtful and practical frame of mind, I have
no doubt that environmental protection efforts can proceed without undue
encumbrance, while private business can proceed without undue
regulation. I believe the Tower amendment embodies these principles and
would resolve the broad range of concerns, without endangering the
environmental goals to which this Congress is committed.
Mr. President, I support the Tower-Wright proposal and urge its
speedy enactment.
Mr. MUSKIE. Mr. President, at this point I would like to comment
briefly on the budgetary impact of the fiscal year 1977 funding levels
for the Environmental Protection Agency's water pollution control
program that are authorized in the pending amendment.
For fiscal year 1977 the amendment authorizes $5 billion in grants
for constructing wastewater treatment facilities. The amendment also
authorized $760 million to administer the Federal water pollution
control program. The regular HUD-independent agencies appropriation
bill which has already been enacted provides budget authority of $160
million and outlays of $92 million for the administration of the Federal
water pollution control program. The bill did not include any new funds
for the construction grant program pending completion of action on this
authorization bill.
Mr. President, since the Budget Committee has just completed its
markup of the second budget resolution, I would like to place this
authorization bill in the context of the decisions reached in those
deliberations. The committee's full report on the second budget
resolution will be issued shortly.
Let me begin by saying that the Budget Committee will be recommending
to the Senate total budget authority of $447.5 billion and total outlays
of $412.8 billion for fiscal year 1977. These amounts are,
respectively, $6.7 billion and $0.5 billion below the first budget
resolution targets. Within these broad totals, we are recommending
shifts among several functional budget resolution targets to take
account of congressional action to date and likely future action.
Built into our assumptions for the second budget resolution are
$5.020 billion in budget authority and $70 million in outlays for
programs authorized in this bill that have not yet been funded. The
recommended totals also assume the $160 million in budget authority and
$92 million in outlays for these programs that have already been
appropriated. We believe these amounts are sufficient to cover likely
further appropriations action for these programs.
Thus, Mr. President, assuming the Senate adopts the Budget
Committee's second budget resolution recommended levels--levels which
are below those adopted last spring--this bill can be accommodated
within the congressional budget.
The PRESIDING OFFICER. Are there further amendments? If not, the
question is on agreeing to the motion to concur in the amendment of the
House with an amendment.
The motion was agreed to.
Mr. MUSKIE. Mr. President, I move to reconsider the vote by which
the motion to concur with the amendment was agreed to.
Mr. ABOUREZK. I move to lay that motion on the table. The motion to
lay on the table was agreed to. /
DEB
760831
MANSFIELD
US SENATOR
--
CLEAN WATER ACT OF 1977, FEDERAL WATER POLLUTION CONTROL AUTHORIZATIONS
(PP 1723 TO 1724)
--
--
95-217
--
CW220515 CW220516 /
04514
(())
CONGRESSIONAL RECORD Senate
Proceedings and Debates of the 94th Congress
LD-4a (Rev. Jan. 71)
Bill Date Page(s)
S.3037 3/31/76 S15117
Action:
Laid down for further consideration.
Water Pollution Control: Senate laid down for further consideration
tomorrow S. 3037, authorizing funds for fiscal year 1977 for programs
under the Water Pollution Control Act. /(())
FEDERAL WATER POLLUTION CONTROL AUTHORIZATIONS
Mr. MANSFIELD. Mr. President, I ask unanimous consent that the
Senate turn to the consideration of Calendar No. 627, S. 3037, so that
it may become the pending business.
The PRESIDING OFFICER. The bill will be stated by title. The
legislative clerk read as follows:
A bill (S. 3037) to extend certain authorizations under the Federal
Water Pollution Control Act, as amended.
The PRESIDING OFFICER. Without objection, the Senate will proceed to
its consideration.
The Senate proceeded to consider the bill, which had been reported
from the Committee on Public Works with amendments as follows:
On page 1, in line 3, strike out "That" and insert in lieu thereof
"Section 1. (a)".
On page 1, in line 7, strike out $7,000,000,000" and insert in lieu
thereof $5,000,000,000".
On page 1, beginning at line 8, insert:
(b) Section 104 (u) (2) of the Federal Water Pollution Control Act
(33 U.S.C. 1254) is amended by striking out "1975" and inserting in lieu
thereof "1975, $7,500,000 for fiscal year 1977,".
(c) Section 104 (u) (3) of the Federal Water Pollution Control Act
(33 U.S.C. 1254) is amended by striking out "1975" and inserting in lieu
thereof "1975, $2,500,000 for fiscal year 1977,".
(d) Section 106 (a) (2) of the Federal Water Pollution Control Act
(33 U.S.C. 1256) is amended by striking out "and the fiscal year ending
June 30, 1975," and inserting in lieu thereof "and the fiscal year
ending June 30, 1975, and $75,000,000 for the fiscal year ending
September 30. 1977,".
(e) Section 112 (c) of the Federal Water Pollution Control Act (33
U.S.C. 1262) is amended by inserting $25,000,000 for the fiscal year
ending September 30, 1977." immediately after "June 30, 1975,".
(f) Section 208 (f) (3) of the Federal Water Pollution Control Act
(33 U.S.C. 1288) is amended by striking out "and not to exceed
$150,000,000 for the fiscal year ending June 30, 1975," and inserting in
lieu thereof "and not to exceed $150,000,000 per fiscal year for the
fiscal years ending June 30, 1975, and September 30, 1977,".
(g) Section 304 (c) (2) of the Federal Water Pollution Control Act
(33 U.S.C. 1324) is amended by striking out "and $150,000,000 for the
fiscal year 1975" and inserting in lieu ", $150,000,000 for the fiscal
year 1975; and $150,000,000 for fiscal year 1977,".
(h) Section 517 of the Federal Water Pollution Control Act (33 U.S.C.
1376) is amended by striking out "and $350,000,000 for the fiscal year
ending June 30, 1975," and inserting in lieu thereof", $350,000,000 for
the fiscal year ending June 30, 1975, and $350,000,000 for the fiscal
year ending September 3, 1977,".
Sec. 2. Section 208 (f) (2) of the Federal Water Pollution Control
Act (33 U.S.C. 2188) is amended to read as follows:
"(2) For the two-year period beginning on the date the first grant is
made under paragraph (1) of this subsection to an agency, if such first
grant is made before October 1, 1977, the amount of each such grant to
such agency shall be 100 per centum of the costs of developing and
operating a continuing areawide waste treatment management planning
process under subsection (b) of this section, and thereafter the amount
granted to such agency shall not exceed 75 per centum of such costs in
each succeeding one-year period. In the case of any other grant made to
an agency under such paragraph (1) of this subsection, the amount of
such grant shall not exceed 75 per centum of the costs of developing and
operating a continuing areawide waste treatment management planning
process in any year,".
Sec. 3. The second sentence of section 202 (f) (3) of the Federal
Water Pollution Control Act (33 U.S.C. 1288) is amended by striking out
the period at the end thereof and inserting in lieu thereof a comma and
the following: "subject to such amounts as are provided in
appropriation Acts,".
So as to make the bill read:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, SECTION 1. (a) Section
207 of the Federal water Pollution Control Act. amended (86 Stat. 838),
is amended by striking the period at the end of the sentence and
adding", and for the fiscal year ending September 30, 1977, not to
exceed $5,000,000,000".
(b) Section 104 (u) (2) of the Federal Water Pollution Control Act
(33 U.S.C. 1254) amended by striking out "1975" and inserting in lieu
thereof "1975, $7,500,000 for fiscal year 1977,".
(c) Section 104 (u) (3) of the Federal Water Pollution Control Act
(33 U.S.C. 1254) amended by striking out "1975" and inserting in lieu
thereof "1975, $2,500,000 for fiscal year 1977,".
(d) Section 106 (a) (2) of the Federal Water Pollution Control Act
(33 U.S.C. 1256) amended by striking out "and the fiscal year ending
June 30, 1975;" and inserting in lieu thereof "and the fiscal year
ending June 30, 1975, and $75,000,000 for the fiscal year ending
September 30, 1977,".
(e) Section 112 (c) of the Federal Water Pollution Control Act (33
U.S.C. 1262) amended by striking $25,000,000 for the fiscal year ending
September 30, 1977," immediately after "June 30, 1975,".
(f) Section 208 (f) (3) of the Federal Water Pollution Control Act
(33 U.S.C. 1288) amended by striking out "and not to exceed $150,000,000
for the fiscal year ending June 30, 1975." and inserting in lieu thereof
"not to exceed $150,000,000 per fiscal year for the fiscal years ending
June 30, 1975, and September 30, 1977,".
(g) Section ILLEGIBLE (c) (2) of the Federal Water Pollution Control
Act (33 U.S.C. 1324) amended by striking out "and $150,000,000 for the
fiscal year 1975" and inserting in lieu thereof $150,000,000 for the
fiscal year 1975 and $150,000,000 for fiscal year 1977.".
(h) Section 517 of the Federal Water Pollution Control Act (33 U.S.C.
1376) is amended by striking out "and $350,000,000 for fiscal year
ending June 30, 1975," and inserting in lieu thereof, $350,000,000 for
fiscal year ending June 30", 1975, and $350,000,000 for the fiscal year
ending September 3, 1977.".
SEC. 2. Section ILLEGIBLE (f) (2) of the Federal Water Pollution
Control Act (33 U.S.C. 21ILLEGIBLE ) is amended to read as follows:
"(2) For the two-year period beginning the date the first grant is
made under paragraph (1) of this subsection to an agency such first
grant is made before October 1977, the amount of each such grant to such
agency shall be 100 per centum of the costs of developing and operating
a continuing areawide waste treatment management planning process under
subsection (b) of this ILLEGIBLE, and thereafter the amount granted such
agency shall not exceed 75 per centum of such costs in each succeeding
one-year period. In the case of any other grant made to an agency under
such paragraph (1) of this subsection, the amount of such grant shall
not exceed 75 per centum of the costs of developing and operating a
continuing area wide waste treatment management planning process in any
year.".
SEC. 3. The second sentence of section 2 (f) (3) of the Federal
Water Pollution Control Act (33 U.S.C. 1288) is amended by striking out
the period at the end thereof and inserting in lieu thereof a comma
after the following: "subject to such amounts as are provided in
appropriation Act,".
DEB
760831
EDMUND S. MUSKIE
US SENATOR
--
CLEAN WATER ACT OF 1977, WATER POLLUTION AMENDMENT EXPLAINED (PP 1462 TO
1466)
--
--
95-217
--
CW220517 CW220521 /
04515
(())
CONGRESSIONAL RECORD Senate
Proceedings and Debates of the 94th Congress LD-41 (rev. Jan. 71)
Bill Date Page(s)
S.2710 8/31/76 S15102-15105
Action: Remarks by Mr. Muskie /(())
WATER POLLUTION AMENDMENT EXPLAINED
Mr. MUSKIE. Mr. President, the Public Works Committee amendment No.
2231 to the House-passed version of B. 22710 the pending water pollution
measure, was printed in the CONGRESSIONAL RECORD for Friday, August 27,
on page S14713. This amendment was approved by the Public Works
Committee on August 26.
Because this proposal is a committee amendment there is no committee
report to describe the committee's intent. At the same time Members
have asked about the intent of this amendment. In order to respond to
these requests and provide adequate legislative history for the
committee amendment, I ask unanimous consent that a description of the
amendment be printed in the RECORD.
There being no objection, the material was ordered to be printed in
the RECORD, as follows:
DETAILED DESCRIPTION OF COMMITTEE AMENDMENT
AUTHORIZATIONS--SECTION 1
The Committee amendment includes authorizations for the extension of
the water pollution control program through FY 1977. These same
authorizations had previously been considered and reported by the
Committee in the form of S. 3037.
A 65 billion authorization is provided for the grant program for
construction of municipally-owned waste treatment works. Other
authorizations are continued at their currently authorized levels.
These authorizations include State program grants, research and
development grants, areawide planning grants and other operating
programs. Following is a breakdown of the authorizations provided in
this committee amendment: Section 104-------------------- $10,000,000
Section 106-------------------- 75,000,000 Section
112-------------------- 26,000,000 Section
207--------------------5,000,000,000 Section 208--------------------
150,000,000 Section 314------------------- 150,000,000 Section
517-------------------- 350,000,000
While there is currently $8 billion remaining in obligational
authority for the construction grant program, information provided by
both EPA and the National Governors Conference indicates that about half
the States will run out of funds if a new authorization for FY 1977 is
not provided. An authorization of $5 billion will be sufficient to
carry all the States which would otherwise run out of funds. The
Environmental Protection Agency indicates that approximately $1.5
billion can actually be obligated to specific projects next year but a
total authorization of $5 billion is required to insure that each State
capable of using its full allotment has sufficient funds made available.
EPA estimates minimal fiscal year 1977 outlays, approximately $50
million, pursuant to the obligation of the $1.5 billion.
GRANTS FOR TRAINING FACILITIES--SECTION 2