/o/OO P PH-H- / 

CONGRESSIONAL RECORD—SENATE October U, 1978 

p.i 

-7680 

to grow up in * world which does not set him study, it was shown that overall medical 

apart, which looKs at him not with scorn or

 j

 -• •— •»« •- —•— 

pity or ridicule—but which welcQmes him 

exactly as it welcomes every child, which 

offers him identical privileges and identical 

responsibilities. 

It has been over SO years in coming, 

this right for the mentally ill, and I urge 

my colleagues to support any amendment 

to adopt such a national policy and commitment to the children of this Nation, 

but more particularly to the economically 

and socially stigmatized low-income 

mentally ill child. 

Mr. BAYH. Mr. President, I am pleased 

to Join many of my colleagues in cosponsoring Senator JAVITS' amendment 

to the child health assessment program 

portion of H.R. 9434. This amendment 

will assure that low income medicaid-eligible children who are diagnosed as mentally ill are not denied treatment for such 

conditions under the child health assessment program v/hich, if passed, will supplant the EPSDT medicaid program. 

Without the Javits amendment, the 

legislation will single out mental illness 

for discriminatory, second-class coverage 

under medicaid. Mental health care for 

a low-income child diagnosed as mentally ill would remain an option for those 

States which have not included such under their State medicaid plan. The Javits 

amendment would assure that all eligible 

children diagnosed as mentally ill receive 

the necessary ambulatory and general 

hospital-based treatment to permit them 

to grow, learn, and mature without the 

stigma of mental illness. 

Mr. President, I am greatly distressed 

that CHAP should be adopted with language which would put into medicaid law 

for the first time, an explicit exclusion 

from treatment for the child diagnosed 

as mentally ill. The House Commerce 

Committee-adopted CHAP program will 

expand services to 13.5 million low-income children now eligible for EPSDT 

and bring an additional 2.5 million children into the program. The Javits 

amendment, costing some $25 million, 

will assure that among those 16 million 

children, those in need of treatment for 

nervous, mental, or emotional disorder, 

receive the same range of treatment opportunities as provided to those children 

with physical aliments. The $25 million, 

which HEW his estimated that the 

amendment will cost, will eliminate arbitrary limits now imposed on the amount, 

duration, and scope of services provided 

by physicians in the care of mental 

illness. 

Further, the amendment will permit 

full reimbursement to clinics which provide mental health treatment services 

to CHAP-eligible children diagnosed as 

mentally ill. Eight States today provide 

no clinic services at all, and many other 

States have specifically written exclusions for the treatment of mental disorders in clinics v/hich otherwise provide 

treatment services under EPSDT for 

physically ill children. 

It has been demonstrated in a number 

of studies that treatment for mental illness reduces subsequent general health 

care costs by as much as 50 percent. In 

a Blue Cross of Western Pennsylvania 

costs were reduced by 31 percent when 

mental health benefits were included in 

a health care plan. Such reduction was 

inclusive of the additional costs associated with mental health care. Further, 

a national study noted that over 90 percent of all children receiving mental 

health care were treated on a low-cost 

outpatient basis, and over 40 percent of 

such children were terminated from 

treatment within 12 visits. The cost associated with the amendment, then, is 

small, when weighed against the savings 

in other health care costs. The cost of 

this amendment is further reduced when 

weighed against the value of a productive adult member of society, which a 

treated mentally ill child would become. 

To diagnose and treat mental and 

emotional illness among children, thus, 

are the first lines of prevention. Experience indicates that the failure to do so 

has already had severe consequences ana 

will continue to have a profound effect 

in future years. On the other hand, if 

mental and emotional illnesses are attended to as closely as possible to the 

time of their inception, the result will be 

more normal development throughout 

childhood, and later entry into society 

as productive adults. 

As pointed out by the Joint Commission on Mental Health of Children, the 

effect of untreated mental illness is felt 

by many others beyond the child so 

diagnosed. They stated: 

It should be borne in mind tha t for every 

child who has a severe mental health problem, many more are affected—those who are 

In association with him In his neighborhood. 

In his school, and especially within his 

family. If only families are considered, one 

could estimate tha t at least three or four 

other people—parents and brothers and sisters—are Intimately and deeply affected by a 

child's mental Illness or serious emotional 

disorder. 

Thus, the amendment which I am 

proud to cosponsor today, will benefit 

not only the child diagnosed as mentally 

ill. but will assure that his or her family, 

too, is safeguarded from the effects of 

mental illness—the pressures which can 

divide families, irreparably scar its members, and destroy perhaps the most vital 

institution in our society. 

I urge my colleagues to support this 

amendment. 

PUBLIC WORK S AND ECONOMIC DEVELOPMENT ACT AMENDMENTS— 

S. 1493 

AMENDMENT NO. 473 9 

'Ordere d to be printe d an d referred to 

t h e Committe e o n Environmen t an d Pub -

lic Work s an d th e Committe e on Govern -

menta l Affairs, jointly.) 

Mr. STAFFOR D submitte d a n amend -

men t intended to be proposed by him to 

S. 1493, a bill to amen d th e Public Work s 

a n d Economi c Development Act to establish a comprehensive program to pro -

vide financial an d technica l assistanc e to 

States, local governments, an d India n 

tribes to manag e impacts cause d by 

energy development, an d for othe r purposes. 

DEPARTMENT OF ENEROY CIVILIAN 

PROGRAMS AUTHORIZATIONS— 

S. 2692 

AMENDMENT 474 0 

(Ordered to be printed and to lie oh 

the table.) 

Mr. McQOVERN (for himself, Mr. 

RIECLE, Mr. CRANSTON, Mr. GRAVEL, Mr. 

HODGES, and Mr. LEAHY) submitted an 

amendment intended to be proposed by 

them, jointly, to S. 2692, a bill to authorize appropriations for the civilian 

programs of the Department of Energy 

for fiscal year 1979, and for other 

purposes. 

WATER POLLUTION CONTROL 

ACT—H.R. 12140 

AMENDMENT 4-4 1 

(Ordered to be printed and referred to 

the Committee on Environment and 

Public Works.) 

Mr. STAFFORD submitted an amendment intended to be proposed by him to 

H.R. 12140. 

• Mr. STAFFORD. Mr. President, I am 

submitting an amendment which I 

hope can receive the Senate's attention 

at some point during the day. It attempts 

to correct deficiencies in the hazardous 

substances program established under 

section 311 of the Federal Water Pollution Control Act. It is a variation on an 

amendment characterized by industry, 

environmental and administration representatives as the "quick fix." 

The best explanation of the need for 

this amendment is contained in a recent 

letter from the Assistant EPA Administrator in charge of the program, Mr. 

Thomas Jorling, to Sentor MUSKIE. the 

chairman of the Subcommittee on Environmental Pollution. If there is no 

objection, I would like to have that letter 

inserted in the record at this point. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

U.S. ENVIRONMENTAL 

PROTECTION AGENCT, 

Washington, D.C, September 22, 1978. 

Hon. EDMUND S. MUSKIE, 

Chairman, Subcommittee on Environmental 

Pollution, Committee on Environment 

and Public Works, U.S. Senate, Washington, D.C. 

DEAR MR. CHAIRMAN: While I know I must 

communicate with the Chairman and other 

members of the Committee. I want to share 

some thoughts with you first and then meet 

with you to seek your advice before proceeding on a very serious matter concerning the 

Clean Water Act. 

One of the most acute frustrations I have 

come to experience In my role as an administrator is the Immense difficulty associated 

with taking statutory mandates Into implementation. Complexity, procedures, and 

shortages of resources all contribute; but 

there are also larger, more pervasive reasons 

related to Institutional fears of changing or 

altering the system. The average time for 

rulemaking In EPA Is now approaching four 

years. In addition, since I have been here all 

promulgations have been subject to Judicial 

appeal. 

My frustrations reached near despair recently when a federal district court enjoined 

the implementation of the hazardous. substances spill portion of sec. 311 of the Clean 

Water Act. It Is important tha t you know of 

this situation and I will try to summarize It 

in this letter, but I think further explanation Is essential, especially since, as you wlU 
P.2 

October U, 1978 CONGRESSIONAL RECORD—SENATE 37681 

/ . < •• see, we have a proposal which I believe is the 

only course of action available to us if the 

311 hazardous spill program is to be in operation In the nt_t three to five years. 

When the Clean Water Act was enacted in 

1972, hazardous substances were included in 

parallel with oil, and authority was granted 

to the Administrator to designate hazardous 

substances, to distinguish between substances on their "removal" characteristics, 

to remove or mitigate spilled substances, 

Co assess liability for costs, and to impose penalties. When I assumed responsibility for the program In 1977, one of my 

highest priorities was to complete the rulemaking necessary to Implement the hazardous spill program. In the absence of a program, EPA has had to grapple with the Hopewell kepone destruction; carbon tetrachloride emergencies on the Ohio River; a fourmonth closure of the Louisville sewage treatment plant because of a chemical spill; 

chemical contamination of primary drinking 

water supplies In Kernersvllle, North Carolina; chlorine deaths from a freight train 

derailment In Youngstown, Florida; and 

many more. Finally, In March of this year, 

the four key regulations for hazardous substances (designation of 271 substances, classification of removability, rate of penalty, and 

harmful quantities) were promulgated and 

EPA and the Coast Guard allocated resources 

for their implementation. This was the culmination of six years of activity. 

Following promulgation and before the effective date of the regulations, the Federal 

District Court In the Western District of 

Louisiana, acting on a complaint filed by the 

Manufacturing Chemists Association, the 

American Waterways Operators, the American Association of Railroads, and others, enjoined the program. Three Issues were 

brought before the Court—the harmful 

quantity determination, the question of removability, and the lnter-relatlonshlps between sec. 311 and ?xlstlng NPDES permits. 

The court agreed with the complainants and 

the specific ruling rendered the hazardous 

spill program Inoperative. 

The future of the 311 program Is now In 

grave uncertainty, beyond the ability of the 

Agency to singularly control. The courts, the 

Agency, and a large number of Interested 

parties all are In a position to Influence the 

outcome, especially to cause unending delay 

of any amendment or Judicial action If there 

Is not substantial agreement on the basic 

approach. 

In the face of the Injunction, the Agency 

has three basic options to consider. I will 

summarize each. 

First, prosecute an appeal: 

The Federal District Court for the Western 

District of Louisiana Is in the 5t>-i Circuit 

(the Circuit subject to a split In the pending 

Judiciary BUI). In a review of this option, 

and In consultation with the Justice Department, we have reached the following conclusions: It would take a minimum of three but 

more likely five years to have the matter go 

through the court system and b<; resolved 

ultimately by the Supreme Court. On the 

merits, there Is greater than 75 percent 

chance the lower court decision that stopped 

the program would be upheld. 

Second, attempt a rewrite of the regulations to conform to the court's order: 

On the threshold Issue—the determination 

of harmful quantities—EPA could not write 

rules to meet this requirement and be In any 

way responsive to the 311 mandate. To do so 

would require us to establish actual harmful effects from specific quantities covering 

the range of circumstances into which such 

chemicals might be discharged: this would 

be a pre-1972 burden if there ever was one 

If we tried this approach, our best estimate 

Indicates we could determine harmful quantities at a rate of 10-15 per year, but at a very 

high resource cost. It would be decades heCXXIV 2369—Part J8 

fore we had anything like the 271 chemicals 

now subject to our rules. 

Moreover, since this was the decision of 

only one federal district court. It Is unlikely 

we could have any certainty that satisfying 

this court would satisfy all of the other 91 

federal district courts. 

Third, legislative repair: 

Two possibilities are suggested. One, a full 

fledged effort to repair sec. 311 and perhaps 

related authority; or alternatively, a quick 

fix addressed to the specific problems raised 

by the court. 

I have reached the conclusion to proceed 

with the latter. My reasons Include the belief 

that the basic core of sec. 311 Is sound. If the 

provision was changed—even to make It better—It would require a new rulemaking effort. As I explained above, given our experience. It would be five years or more before 

we again had promulgated regulations and 

the capacity to Implement them. 

Consequently, and with acknowledged risk 

to all parties. I have met with the litigants 

over the last two weeks In an attempt to determine if there was a "noncontroverslal" 

legislative proposal that all parties In good 

faith could accept and allow It to be grafted 

onto a simple research and development authorization bill which has passed the House 

and is pending in the Senate Committee 

(H.R. 12140). This Is admittedly a very remote possibility under the best circumstances, but I believe It Is worth the try. I do 

not see the same opportunity for quick action 

In the next Congress. I believe the parties 

are participating In this eeffort In good faith. 

No one has pressed for all of their preferences. As a consequence, we have reached a 

position that the Agency and the litigants 

can support. If It Is enacted we can have the 

311 hazardous substances program in motion 

inside of a few months. 

In the discussions with the parties I have 

been guided by the assumption that Congress and the people expect to have the following basic elements of the 311 program 

put Into operation as soon as possible: 

(1). The designation of substances and 

quantities, the discharge of which creates a 

duty on the discharging owner or operator 

to notify the government; 

(2). Response by the government to mitigate the etfects of the substances and to remove the substances where appropriate; 

13). Liability Imposed on the owner for 

costs the government Incurs In removal and 

mitigation; and 

(4). A penalty provision. 

I believe that with several amendments to 

section 311 In this Congress we can build 

on the rulemaking effort the Agency has conducted for all these years and we can get this 

basic program to operate almost immediately after enactment. 

The Agency and the Coast Guard have expended great resources in training. Information dissemination, and related preparations, 

all premised on the 271 substances and the 

harmful quantities now designated. Industry, similarly, even though It has litigated, 

has prepared to comply with the program 

through training of personnel and Is ready 

to distribute materials to employees. There Is 

a program—a very valuable program—ready 

to go but it Is now In suspended animation. 

The situation Is hard for me to understand; 

for the public, already suspicious of our 

ability to govern, it is Impossible to understand. 

The amendments we propose basically 

place hazardous substances on a par with 

oil tn how they relate to the major components of. sec. 311. with one major exception. Rather than the $5,000 penalty limit 

on oil. the limit for hazardous discharges 

would be S50.000. This represents a significant reduction from the present law (up to 

J5 million for vessels and $500,000 for other 

sources.) However, with the 1977 amendments clarir.v'n^ the llabUlty for mitigation 

in the car* "St discharges of hazardov- substances, . •>; -:-:tl the reduced penality's effect 

on achlf.i IP a high standard of care la offset. If experience reveals otherwise, amendments to the penalty structure could coma 

later, but In the meantime the duty to give 

notice, the authority of the government to 

respond and act, and llabUlty—all presently 

enjoined—could go Into effect. 

I know this Is a most unusual request, and 

would hope I could meet with you to explain 

the circumstances in more detail. 

I am motivated by the deepest sense of 

concern that if the legislation cannot be 

amended, we will be unsuccessful in getting 

any element of the hazardous substances 

spill program In effect for years; an InabUlty 

which, when so much has been Invested, 

does not seem to be In the public Interest. 

Sincerely yours, 

THOMAS C. JOHIJNC, 

Assistant Administrator. 

Mr. STAFFORD. Following the re -

ceipt of Mr. Jorling's letter and at the 

urging of various interested parties, the 

committee held a hearing on the proposed amendment. Although Mr. Jorling 

was the only witness, he spoke on behalf 

of the many groups which participated 

in the unusual and lengthy negotiations. 

The date <>f this hearing was October 5. 

less than : weeks ago. 

Normaiiy, a change of such fundamental and'important nature would be 

subjected to more extensive hearings 

and to formal scrutiny by the membership of the committee. However, because 

it was so late in the session, we were 

required to rely on more informal discussions regarding the merits of the 

proposed amendment. 

During the course of these discussions, 

several flaws in the original proposal 

were revealed. The amendment was 

changed to correct these. In addition, 

certain changes suggested by the De -

partments of Stat e and Transportation 

were incorporated into the amendment. 

Based on my informal discussions with 

other members of the committee, I believe I can safely say that my action here 

reflects the will of its membership. The 

committee considers it very important to 

implement one of the most significant 

provisions of the Clean Water Act, sec -

tion 311, dealing with the discharge of 

hazardous substances;—particularly, the 

Government's ability to respond to and 

mitigate the effects of such discharges. 

More than in any other environmental 

area, people expect quick and effective 

governmental response to protect public 

health and the environment in the event 

of spills of such materials. Nothing perplexes a citizen more than discovering 

that the Government is incapable of acting rapidly and decisively in such 

situations. 

But. despite the fact that section 311 

was enacted 6 years ago, the hazardous 

substances spill program is nonexistent. 

T he concept of Government response to 

spills was first developed in the context 

of oil in the late 1960's and was incorporated in the 1970 Water Quality Im -

provement Act. At that time, uncertainty surrounding the appropriateness 

of including other hazardous materials 

in such a scheme led the Congress to authorize the administration to study 

similar response mechanisms for them. 
P.3 

37582 CONGRESSIONAL RECORD — SENATE October Ik, 1978 

When the Clean Wawr Act was enacted 

in 1972. hazardous substances were included In parallel w:ith oil, and the administrator was grunted authority to 

designate hazardous substances, to distinguish between substances based on 

their "removal" characteristics, to remove or mitigate the effects of spilled 

substances, and to assess civil penalties 

and clean-up costs. The Environmental 

Protection Agency responded to that 

mandate inadequately, in part for complicated technical reasons. 

Recently, however, implementation of 

the section 311 program was designated 

as a high priority. EPA set out to complete the rulemaking necessary to implement the hazardous substances spill program. In this undertaking there were 

several uncertain elements in section 311 

which led the committee to make legislative clarifications, especially regarding 

the inclusion of mitigation activities in 

the concept of removal. In December 

1977, these clarifications were incorporated in amendments to the Clean Water Act. 

In March of this year, the four key 

regulations for hazardous substances 

were finally promulgated. The four sets 

of regulations designated 271 substances, 

classified their removability, and established harmful quantities, units of measurement, and rates ol penalty. The Environmental Protection Agency, along with 

the Coast Guard, allocated regional resources to the task cf implementing the 

311 hazardous substances program. This 

regulatory and programmatic effort was 

the culmination of 6 years of activity. 

Following promulgation, but before the 

effective date of the regulations, the Federal District Court for the Western District of Louisiana, acting on complaints 

filed by the Manufacturing Chemists 

Association, the American Waterways 

Operators, the Association of American 

Railroads, and others, enjoined their 

Implementation and enforcement. The 

principal challenges to the regulations 

included allegations that EPA had illegally determined the actual removability 

of the designated substances, that EPA's 

harmful quantity determinations were 

arbitrary and capricious, and that EPA 

had unlawfully applied the provisions of 

section 311 to facilities with NPDES 

permits. 

The court agreed with the plaintiffs 

on all three issues and concluded that 

the regulations were "invalid, void, unenforceable, and of no legal effect." The 

court concluded thai; EPA had impermissibly ignored mitigability in determining the actual removability of substances. In addition, it held that EPA's 

harmful quantity determinations were 

unlawful because they did not consider 

"times, locations, circumstances, and 

conditions" as required by section 311(b) 

14) and, therefore, were not predictive of 

actual harm. Finally, the court held that 

discharges subject to section 402 of the 

act should not be subject to the reporting: 

requirements, civil penalty liabilities, and 

clecnup costs of section 311. 

The impact of this decision oh EPA's 

ability to prevent a;id respond to the 

discharge of hazardous substances is difficult to overstate. Invalidation of the 

removability regulation rendered inoperative the entire civil penalty scheme. The 

rejection of harmful quantity determinations—the cornerstone of the regulatory scheme—eliminated mandatory reporting of spills and relieved dischargers 

of responsibility for civil penalties and 

clean-up costs. The future of the 311 

program is now in grave doubt. The 

courts, the EPA. and a large number of 

interested parties are all in a position to 

influence the future of the hazardous 

substances spill program. In the absence 

of substantial agreement on a basic approach, these parties could endlessly 

delay any amendment or litigation. 

In the face of the situation created by 

the injunction, the committee considered 

three basic options: 

First, an appeal could be prosecuted. 

But the Justice Department and EPA 

concluded that it would take a minimum 

of 3, but more likely 5, years to have the 

matter processed through the court system and ultimately resolved by the Supreme Court. Further, the administration believed there would be a substantial 

chance that the lower court decision 

halting the program would be upheld. 

Next, the regulations could be rewritten to conform to the Court's order. On 

the threshold issue—the determination 

of harmful quantities—EPA could not 

write rules to satisfy the Court order 

and be in any way responsive to the 311 

mandate. To do so would require EPA to 

establish before the fact actual harmful 

effects from specific quantities of chemicals covering the infinite range of circumstances in which they might be discharged. This would reestablish the 

pre-1972 burden of proving water quality 

impact as a precondition for environmental protection. The best EPA estimate indicated that the agency could 

determine harmful quantities at a rate 

of 10 to 15 per year, but only at a very 

high resource cost. It would be decades 

before achieving anything like the 271 

chemicals designated in the enjoined 

regulations. 

Finally, there were two legislative 

repair possibilities: There could be a 

lengthy, full-fledged effort to repair section 311 and, perhaps, related authority; 

or, alternatively, a more focused effort 

addressed to the specific problems raised 

by the recent Court decision. After intense review, the parties concluded that 

there was no recourse but to seek quick 

legislative repair, if section 311 were to 

be implemented without further unconscionable delay. The committee agreed. 

Our reasons include the belief that the 

existing section 311 is basically sound. 

If the provisions were greatly changed, 

even for the better, it would require an 

entirely new rulemaking effort. This 

would be time-consuming. Given past experience, it would take years to achieve 

promulgated regulations and in the 

meantime the discharge of these hazardous substances could continue unregulated. 

The effort to define a legislative solution has forced judgments as to what 

elements of the program are most important and to consider altering those 

which, while important, would prevent u 

consensus. We concluded tha t the following basic elements of the 311 program 

should be put into operation as soon as 

possible: 

First. The designation of substances 

and the determination of quantities, the 

discharge of which create a duty on the 

discharger to notify the Government. 

Second. Governmental response to 

mitigate the effects of discharged substances and to remove them where appropriate. 

Third. The imposition of liability on 

tite owner for costs incurred by the Government in removal and mitigation. 

Fourth. A penalty provision. 

The legislative proposal I am offering 

retains these key elements of the 311 

program. 

The recommended changes involve 

three basic areas. First, the proposal 

simplifies the determination of which 

discharge incidents must be reported to 

the Federal Government. The proposal 

clarifies the authority of the administrator in designating hazardous pollutants and determining harmful quantities of such pollutants. The amendment 

makes it clear tha t the determination 

of harmful quantities does not require an assessment of actual harm 

in the variety of circumstances in 

which such substances might be discharged. Rather, the determination is 

based on the administrator's judgment 

of what quantity may be harmful as a 

nisult of its chemical properties, not the 

circumstances of its release. This change 

would resolve the district court's objections to the previously promulgated 

regulations and it would allow the basic 

2'ements of section 311 to be implemented right away. 

Second, the changes place hazardous 

substances on a par with oil in their 

relation to the major components of 

section 311, except that the maximum 

civil penalty for their discharge would 

be $50,000, compared with $5,000 for 

oil. The administrator would enter into 

a memorandum of understanding with 

t i e Secretary of Transportation per- ' 

mitting the administrator to select either 

cf two options available for penalizing 

dischargers of hazardous substances. One 

option is an administrative penalty up 

ti S5.000 per violation. The second option would be commencement of a civil 

action in Federal district court. Penaltits in such an action could not exceed 

S50.000 per violation, unless the discharge was the result of willful negligence or misconduct on the part of 

tae owner, operator, or person in charge. 

i:i which case the penalty maximum 

would be $250,000 per discharge. 

The $50,000 maximum involves a sigi ificant reduction from the existing 

S500..000 liability for facilities and $5,-

000.000 for vessels. However, in view of 

I lie 1977 amendments which make it 

clear that dischargers are liable for mitin.'.tion costs resulting from dischargers 

of a hazardous substance, we concluded 

that sufficient incentive for a high standi rd of care exists with the combination 

cf public disclosure of who is dischargi ig, liability for mitigation of hazardous 

substance discharges'1 provided i n 1977, 

i :id the penalty provisions. If experience 
P.4 

)ctober Ik, 1978 CONGRESSIONAL RECORD — SENATE 37683 

i

1

/J ves that higher penalties are neces-

:;•.:.-y, the penalty structure can be modified accordintly. In the meantime, however, the key authorities of section 311— 

mandatory reporting. Government ability to respond and clean-up liability, all 

of which are now enjoined—could go 

into effect. 

In the proposed changes the criteria 

for determining the size of the penalty 

would also be streamlined. In assessing 

the penalty, the Court would consider the 

following factors. 

First. The size of the business involved : 

Second. The effect of the penalty on 

the discharger's ability to continue in 

business; 

Third. The gravity of the violation, 

which we would interpret to include the 

size of the discharge, the degree of danger or harm to the public health, safety, 

or the environment, including consideration of toxicity, degradability, and dispersal characteristics of the substance, 

previous spill history, if any, and violation of spill prevention regulations where 

appropriate, and 

Fourth. The extent and degree of success of any effort by the violator to mitigate the effects of the discharge. 

Particular emphasis should be placed 

on the extent of mitigation efforts by the 

discharger, in order to encourage prompt 

and effective cleanup. Mr. Jorling has 

said the agency will include these criteria and other elements governing gravity of the violation in its regulations 

implementing the penalty provision. 

The third area of change would clarify 

jurisdiction over discharges of oil and 

hazardous substances from point sources 

with NPDES permits. The issue of which 

section of the act governs these discharges is a principal source of controversy in the litigation. This proposal 

only affects the jurisdiction over certain 

discharges permitted under section 402. 

Basically, the changes make it clear 

that discharges, from a point source permitted under section 402 permitted 

source, which are associated with manufacturing and treatment, are to be regulated under sections 402 and 309. 

"Spill" situations will be subject to 

section 311, however, regardless of 

whether they occur at a facility with a 

402 permit. For example, on-site industrial spills such as truck or rail accidents or substantial or large-scale failures or ruptures of containers or vessels would be considered subject to section 311, unless such on-site spills were 

processed through a treatment system 

capable of eliminating or abating such 

spills, in which case such discharges 

would be regulated under sections 309 

and 402. On the other hand, situations 

such as the following would be regulated 

under sections 309 and 402, not 311: 

System upsets caused by control problems or operator error, system failures 

or malfunctions, equipment or system 

startups or shutdowns, equipment 

washes, production schedule changes, 

noncontact cooling water contamination, storm water contamination, or 

treatment system upsets or failures at 

facilities with treatment systems capable of eliminating or abating such 

discharges. While most discharges from 

permitted point sources will, therefore, 

be regulated solely under the section 402 

permit system, the oil spill program 

under section 311 will remain intact, 

and other classic spill situations will 

continue to be subject to section 311. 

In the amendment adding a new definition of discharge for purposes of section 311, we are attempting to draw a 

line between the provisions of the act 

under sections 301, 304, 402 regulating 

chronic discharges and 311 dealing with 

spills. At the extremes it is relatively 

easy to focus on the difference but it can 

become complicated. The concept can be 

summarized by stating tha t those discharges of pollutants that a reasonable 

man would conclude are associated with 

permits, permit conditions, the operation 

of treatment technology, and permit violations would result in 402/309 sanctions; those discharges of pollutants 

that a reasonable man would conclude 

are episodic or classical spills not intended or capable of being processed 

through the permitted treatment system 

and outfall would result in the application of section 311. 

While this division might be subject to 

theoretical abuse, for example, funneling 

classic spills through an outfall to avoid 

section 311, the availability of criminal 

sanctions under both sections 311 and 

309 should operate to deter such avoidance schemes. 

The amendment also clarifies that the 

costs of removal of a discharge of a hazardous substance from a point source 

with a 402 permit are recoverable from 

the owner or operator of the source under section 309(b) of the act. 

I should point out that none of the 

changes affect the designation of 271 substances as hazardous. If the proposed 

legislative changes are enacted, the 

agency will withdraw the regulations, 

make the necessary adjustments, and 

promulgate the same 271 designations 

and quantities without change as soon 

as possible. The amendments we are proposing would allow us to build on the 

rulemaking effort conducted for the last 

few years and enable EPA to get a basic 

program into operation within a fewmonths after enactment. 

The EPA and the Coast Guard have 

already expended great resources for 

training, information dissemination, and 

related preparations premised on the 271 

substances and the harmful quantities 

designated. Industry, notwithstanding 

its litigation posture, is prepared to comply with the program through personnel 

training and other implementing actions. In short, a very valuable program 

is ready to go. but it is now in a state of 

suspended animation. The situation is 

hard for the committee to accept. For 

the public it is impossible to understand. 

I do not believe the. country can be or 

should be without a hazardous spill response capability for another 4 or 5 

years. We can build on the rulemaking 

effort that has been conducted: we can 

get the basic program to operate. Although certain adjustments must be 

made in the interests of getting the 

program moving, I believe they are 

worthwhile. 

I am deeply concerned that if the legislation is not amended we will be unsuccessful in getting any element of the 

hazardous substances spill program in 

effect for years, a failure which would 

have incalculable effects on public health 

and safety. My request is unusual, yet 

given the complexity, the litigation, and 

the rulemaking associated with section 

311, we feel strongly that it is the only 

way to put the hazardous spill program 

into effect without unconscionable further delay. I hope you will agree.* 

THE ALASKA NATIONAL INTEREST 

LANDS CONSERVATION ACT—HH. 

39 

AMENDMENT NO. 4 74 2 

(Ordered to be printed and to lie on 

the table.) 

Mr. GRAVEL submitted an amendment intended to be proposed by him to 

H.R. 39, an act to designate certain lands 

in the State of Alaska as units of the National Park, National Wildlife Refuge, 

National Wild and Scenic Rivers, and 

National Wilderness Preservation Systems, and for other purposes. 

CALLING INTO QUESTION SALT H 

Mr. BARTLETT. Mr. President, after 

10 years of the "SALT process" and 6 

years of negotiations, the long anticipated SALT II treaty finally seems at 

hand. 

The timetable and style for the presentation of the new strategic arms limitation treaty to the American people 

and to the Senate is becoming more 

clear. Immediately prior to the November elections, Secretary of State Vance 

will be in Moscow conducting secret negotiations designed to conclude SALT n . 

Undoubtedly, the electorate will read 

and hear of "progress." Then, with Congress out of session and the elections 

over. President Carter and Soviet Communist Party Secretary Brezhnev will 

meet at a SALT II summit designed to 

enhance the spirit of "peace in our time." 

In January, with the next elections 

nearly 2 years away, the new Congress 

will finally come face to face with this 

SALT agreement which will already have 

become a very old issue. As the new Con -

gress organizes, shuffling its committee 

memberships and wrestling with the new 

budget. Senators and Co.igressmen will 

attempt, to evaluate this incredibly complex treaty. I assume it will be a treaty 

and not an "executive agreement." which 

would be an insult to the treaty powers 

of the Senate as enumerated in the Constitution. 

Next year, there will be little time left 

to study the SALT II treaty, so I urge my 

colleagues who will be returning, and also 

those who will not, to examine the terms 

of this new strategic arms limitations 

agreement beginning now. Although the 

entire package has not yet been made 

public, most of the major provisions have 

been revealed. In any case, SALT has a 

language all its own and learning even to 

speak it will take some study. 

To aid my colleagues. - would like to 

discuss some of the problems which are