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104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-192



 July 18, 1995.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed


 Mr. Shuster, from the Committee on Transportation and Infrastructure, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1943]

      [Including cost estimate of the Congressional Budget Office]
    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 1943) to amend the Federal Water 
Pollution Control Act to deem certain municipal wastewater 
treatment facilities discharging into ocean waters as the 
equivalent of secondary treatment facilities, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                          Purpose and Summary

    The purpose of H.R. 1943 is to provide a waiver from 
secondary treatment requirements for the Point Loma Wastewater 
Treatment Facility which treats sewage for the metropolitan 
sewage system that serves much of San Diego County, provided 
that the facility's discharge continues to meet the safeguards 
provided in the bill.

                          Need for Legislation

    The Clean Water Act generally requires that publicly owned 
treatment words in coastal areas, like the Point Loma 
Wastewater Treatment Facility in San Diego, achieve secondary 
treatment of their municipal sewage discharges. Secondary 
treatment generally means removal of 85% or more of total 
suspended solids (TSS) and biochemical oxygen demand (BOD), or 
thirty-day average concentrations of TSS and BOD of 30 mg/l, 
whichever standard is more restrictive. A small number of 
communities have received limited, conditional waivers from 
secondary treatment under section 301(h).
    The cost of achieving secondary treatment alone for the 
Point Loma Wastewater Treatment Facility in San Diego is 
conservatively estimated to exceed $2 billion. The City's 
current estimate of the total cost of the wastewater treatment 
plan (which includes an extensive wastewater reclamation 
program and construction of secondary treatment facilities) 
that San Diego negotiated with EPA after the agency sued the 
City in 1988 for failure to achieve secondary treatment is $4.9 
billion. In contrast, the City's estimate of the costs of its 
current wastewater treatment plan (which includes a more 
limited reclamation program and will require a waiver of 
secondary treatment) is $1.49 billion.
    In 1993, the National Research Council of the National 
Academy of Sciences issued a report, ``Managing Wastewater in 
Coastal Urban Areas.'' This report included findings that are 
relevant to the issue of whether secondary treatment is 
necessary to protect the ocean environment from San Diego's 
discharges. Specifically, the Council found that (1) BOD 
generally is not an ecological concern in the ocean or in open 
coastal waters and (2) chemically-enhanced primary treatment 
has been successfully used to increase the removal of suspended 
solids, achieving 80 to 85% removal with low doses of 
chemicals. In addition, thirty scientists from the Scripps 
Institution of Oceanography have signed a consensus statement 
expressing their belief that problems in well flushed coastal 
waters will not be substantially alleviated or corrected by the 
wholesale conversion of treated sewage from primary to 
secondary treatment, opposing the automatic requirement that 
all sewage treatment facilities employ secondary treatment. 
Finally, in 1994, a federal district court judge found that the 
scientific evidence without dispute establishes that the marine 
environment is not harmed by San Diego's discharge. Based on 
such information, Congress passed and the President signed the 
Ocean Pollution Reduction Act of 1994. This allowed San Diego 
the opportunity to present a new application to EPA for a 
waiver from secondary treatment requirements under section 
301(h) of the Clean Water Act.
    On June 12, 1995, EPA announced a preliminary determination 
to approve San Diego's request for a section 301(h) waiver. 
EPA's action, if finalized, will provide a limited, temporary 
waiver and San Diego will have to seek renewal every five 
years. According to the City of San Diego, its waiver 
application cost $1.2 million to prepare. San Diego expects 
that each subsequent application for renewal of the waiver 
could cost the San Diego ratepayers an additional $1 million or 
    An application for renewal of the secondary treatment 
waiver is not necessary to ensure continued compliance by San 
Diego with protective treatment standards or to provide an 
opportunity for public review. Under H.R. 1943, the Point Loma 
Wastewater Treatment Facility must comply with all local and 
State water quality standards. Thus, the Committee intends San 
Diego to comply with the California State Ocean Plan as a 
condition of the exemption from secondary treatment, whether 
the City's outfall discharges into State or federal waters. The 
discharge also must be subject to an ocean monitoring program 
and requires a Clean Water Act discharge permit.
    Data from San Diego's extensive, $4.5 million per year, 
monitoring program are publicly available. Permit requirements 
are enforceable through citizen suits. And, permit renewals are 
subject to public notice and comment. Accordingly, under H.R. 
1943 there will be ample opportunity for public oversight and 
input regarding the discharge from the Point Loma Wastewater 
Treatment Facility.
    Based on the scientific evidence and its review of San 
Diego's treatment system and extensive Ocean Monitoring Program 
reports, the California Environmental Protection Agency fully 
supports a legislative exemption from secondary treatment for 
San Diego.

                      Discussion of Committee Bill

    H.R. 1943 amends section 304(a) of the Federal Water 
Pollution Control Act to provide that the discharge from the 
Point Loma Wastewater Treatment Plant be deemed to be 
equivalent to secondary treatment, provided that the safeguards 
in the bill are met. These safeguards require that San Diego's 
discharges (1) be subject to chemically enhanced primary 
treatment; (2) be discharged through an ocean outfall greater 
than 4 miles offshore; (3) be in compliance with all local and 
State water quality standards for receiving waters; and (4) be 
subject to an ocean monitoring program.
    The Ocean Pollution Reduction Act of 1994, which gave San 
Diego the opportunity to apply for a section 301(h) waiver from 
secondary treatment, imposes additional conditions not included 
in H.R. 1943. Specifically, the Ocean Pollution Reduction Act 
of 1994 requires San Diego to (1) construct water reclamation 
facilities that will reclaim 45 million gallons of wastewater 
per day by the year 2010; (2) remove 80% of total suspended 
solids (TSS) on a monthly basis and 58% of biochemical oxygen 
demand (BOD) on an annual basis; and (3) reduce TSS released to 
the ocean during the period of permit modification. Based on 
volumes of scientific findings, as well as the views of state 
and local officials, the Committee believes these additional 
conditions are unnecessary for the protection of human health 
and the environment.
    First, requiring greater wastewater reclamation capacity 
than San Diego can use economically is a waste of energy and 
scarce financial resources. San Diego already has begun 
construction of a wastewater reclamation project tailored to 
the City's needs and budget. The North City Water Reclamation 
Project, which includes a treatment plant, pipelines, and a 
reclaimed water distribution system, is an approximately $300 
million project that will treat 30 million gallons of 
wastewater per day and will begin operation in 1997. San Diego 
also is designing a 7 million gallon per day water reclamation 
project to serve the South Bay area of the City, at a cost of 
approximately $100 million. This project is scheduled to go 
into operation in 2000.
    Second, under H.R. 1943, the numerical standards that must 
be met by San Diego's discharges will be provided by local and 
State water quality standards. Although the Point Loma 
Wastewater Treatment Plant outfall is 4.5 miles off the coast 
of California in federal waters, H.R. 1943 requires discharges 
from this outfall to comply with local and State water quality 
standards for the receiving waters. With this condition, the 
Committee intends to require San Diego's discharges to comply 
with the California State Ocean Plan and any requirements San 
Diego has set for its coastal waters, even though these 
requirements might not otherwise be applicable to a discharge 
into federal waters.
    Unlike the Ocean Pollution Reduction Act of 1994, the 
California State Ocean Plan has no BOD standard for deep ocean 
outfalls because scientists agree that BOD is not a meaningful 
measurement in the ocean. As noted by Judge Brewster of the 
Southern District of California in a March 1994 decision 
rejecting a consent decree that would have placed a BOD limit 
on San Diego's discharge: ``BOD is irrelevant in deep ocean 
discharges because of the massive abundance of oxygen in the 
    The California State Ocean Plan has a 75% (rather than 80%) 
TSS standard. However, unlike the Ocean Pollution Reduction 
Act, the State Plan also has numerical standards for over 200 
metals, toxics and other specific contaminants, in addition to 
the generic requirement of percent removal of solids. As noted 
by the National Research Council in its 1993 report, the 
California State Ocean Plan provides an environmental quality 
driven approach to managing risks to human health and the 
environment, the approach which is recommended by the Council.
    Third, the requirement of the Ocean Pollution Reduction Act 
of continuing TSS reductions could eventually drive the City to 
secondary treatment, with its enormous price tag.

               Hearings and Previous Legislative Activity

    During February and March of 1995, the Subcommittee on 
Water Resources and Environment held seven hearings on the 
subject of Clean Water Act reauthorization. During the course 
of these hearings, the Subcommittee received testimony 
regarding secondary treatment requirements.
    H.R. 1943 is identical to section 309(a) of H.R. 961, the 
Clean Water Amendments of 1995, which passed the Subcommittee 
by a vote of 19 to 5, passed the full Committee by a vote of 42 
to 16, and passed the House on May 16, 1995, by vote of 240 to 
185. The full Committee defeated an amendment to delete the San 
Diego provision and other secondary treatment provisions from 
H.R. 961 by a vote of 13 to 41. The House defeated a similar 
Floor amendment by a vote of 154 to 267.
                        Committee Consideration

    Clause 2(l)(2)(B) of rule XI requires each committee report 
to include the total number of votes cast for and against on 
each rollcall vote on a motion to report and on any amendment 
offered to the measure or matter, and the names of those 
members voting for and against.
    1. One amendment was offered during consideration of the 
bill. The amendment, offered by Mr. Filner, would have placed 
additional conditions on the secondary treatment waiver that 
treatment achieve a minimum removal of 80% TSS (on a monthly 
basis) and 58% BOD (on an annual basis). The amendment was 
defeated by a vote of 21 to 32.
        AYE                           NAY
Borski                              Bachus
Brown                               Baker
Clement                             Bateman
Clyburn                             Blute
Costello                            Boehlert
Cramer                              Clinger
Danner                              Coble
DeFazio                             Duncan
Filner                              Ehlers
Johnson                             Ewing
Lipinski                            Fowler
McCarthy                            Franks
Menendez                            Gilchrest
Mineta                              Horn
Nadler                              Hutchinson
Oberstar                            Kelly
Parker                              Kim
Poshard                             LaHood
Rahall                              Latham
Tucker                              Latourette
Wise                                Martini

    2. The second rollcall vote was on reporting of the bill. 
The bill was reported favorably by a vote of 35 to 21.
        AYE                           NAY
Bachus                              Barcia
Baker                               Borski
Bateman                             Brown
Blute                               Clement
Boehlert                            Clyburn
Clinger                             Costello
Coble                               Cramer
Ehlers                              Danner
Emerson                             DeFazio
Ewing                               Johnson
Filner                              Lipinski
Fowler                              McCarthy
Franks                              Menendez
Gilchrest                           Mineta
Hayes                               Nadler
Horn                                Oberstar
Hutchinson                          Poshard
Kelly                               Rahall
Kim                                 Traficant
LaHood                              Tucker
Latham                              Wise

                      Committee Oversight Findings

    Clause 2(l)(3)(A) of rule XI requires each committee report 
to contain oversight findings and recommendations required 
pursuant to clause 2(b)(1) of rule X. The Committee has no 
specific oversight findings.

 Oversight Findings and Recommendations of the Committee on Government 
                          Reform and Oversight

    Clause 2(l)(3)(D) of rule XI requires each committee report 
to contain a summary of the oversight findings and 
recommendations made by the Government Reform and Oversight 
Committee pursuant to clause 4(c)(2) of rule X, whenever such 
findings have been timely submitted. The Committee on 
Transportation and Infrastructure has received no findings and 
recommendations from the Committee on Government Reform and 

                        Committee Cost Estimate

    Clause 2(l)(3)(B) of rule XI requires each committee report 
that accompanies a measure providing new budget authority, new 
spending authority, or new credit authority or changing 
revenues or tax expenditures to contain a cost estimate, as 
required by section 308(a)(1) of the Congressional Budget Act 
of 1974 and, when practicable with respect to estimates of one 
budget authority, a comparison of the total estimated funding 
levels of the relevant program (or programs) to appropriate 
levels under current law.
    Clause 7(a) of rule XIII requires committees to include 
their own cost estimates in certain committee reports, which 
include, where practicable, a comparison of the total estimated 
funding level for the relevant program (or programs) with the 
appropriate levels under current law.
    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office, pursuant to 
section 403 of the Congressional Budget Act of 1974.

                 Congressional Budget Office Estimates

    Clause 2(l)(3)(C) of rule XI requires each committee report 
to include a cost estimate prepared by the Director of the 
Congressional Budget Office, pursuant to section 403 of the 
Congressional Budget Act of 1974, if the cost estimate is 
timely submitted. The following is the Congressional Budget 
Office cost estimate:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 17, 1995.
Hon. Bud Shuster,
Chairman, Committee on Transportation and Infrastructure, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 1943, the San Diego Coastal Corrections Act of 
1995, as ordered reported by the House Committee on 
Transportation and Infrastructure on July 12, 1995. We estimate 
that enacting this bill would not have any significant impact 
on the federal budget. The bill would not affect direct 
spending or receipts. Therefore, pay-as-you-go procedures would 
not apply. The bill could relieve San Diego from having to make 
some expenditures, but its effect on the city's budget is 
    H.R. 1943 would amend the Clean Water Act to permanently 
exempt San Diego's sewage treatment facility from meeting the 
requirements of a secondary sewage treatment facility. 
Secondary treatment must remove at least 85 percent of the 
solids from sewage, while the San Diego facility removes 
slightly less. Estimates of the cost to upgrade the San Diego 
facility for secondary treatment range from less than one 
billion dollars to several billion dollars.
    In April of this year, San Diego applied to the 
Environmental Protection Agency (EPA) for a five-year renewable 
waiver from requirements for secondary sewage treatment. In 
June, the agency gave preliminary approval to the city's waiver 
request. If the agency gives final approval to the waiver 
request, the city would be exempted from requirements for 
secondary sewage treatment for five years. At that time, the 
city could reapply for another five-year waiver. The city 
estimates that its recent waiver application cost about $1 
million to prepare. Enacting H.R. 1943 could save the city the 
costs of preparing future waiver applications because the bill 
would grant a permanent waiver. The bill could save the city 
the substantial costs of moodifying its sewage treatment plant 
if EPA were to deny the city's pending waiver request or 
possible future waiver requests.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Kim Cawley.
                                              James L. Blum
                                   (For June E. O'Neill, Director).

                     Inflationary Impact Statement

    Clause 2(l)(4) of rule XI requires each committee report on 
a bill or joint resolution of a public character to include an 
analytical statement describing what impact enactment of the 
measure would have on prices and costs in the operation of the 
national economy. The Committee has determined that H.R. 1943 
has no inflationary impact on the national economy.
         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):


                       information and guidelines

    Sec. 304. (a) * * *
          * * * * * * *
    (d)(1) The Administrator, after consultation with 
appropriate Federal and State agencies and other interested 
persons, shall publish within sixty days after enactment of 
this title (and from time to time thereafter) information, in 
terms of amounts of constituents and chemical, physical, and 
biological characteristics of pollutants, on the degree of 
effluent reduction attainable through the application of 
secondary treatment.
          * * * * * * *
    (5) Coastal Discharges.--For purposes of this subsection, 
any municipal wastewater treatment facility shall be deemed the 
equivalent of a secondary treatment facility if each of the 
following requirements is met:
          (A) The facility employs chemically enhanced primary 
          (B) The facility, on the date of the enactment of 
        this paragraph, discharges through an ocean outfall 
        into an open marine environment greater than 4 miles 
        offshore into a depth greater than 300 feet.
          (C) The facility's discharge is in compliance with 
        all local and State water quality standards for the 
        receiving waters.
          (D) The facility's discharge will be subject to an 
        ocean monitoring program acceptable to relevant Federal 
        and State regulatory agencies.
          * * * * * * *
                            DISSENTING VIEWS

    H.R. 1943 is an unnecessary bill. Born of the desire to 
create a headline-grabbing topic for Corrections Day, H.R. 1943 
changes current law, but it corrects nothing. In fact, it 
creates significant problems--including the dangerous 
precedents of (1) providing a virtual carte blanche to pollute 
through a procedure devoid of any thoughtful consideration, and 
(2) excluding from the process those who at the local level are 
most directly affected by the legislation.
    The Republican leadership latched onto San Diego as the 
ideal poster child to kick off Corrections Day, notwithstanding 
the fact that any so-called ``obviously dumb'' requirement that 
previously existed was corrected last year when both Houses of 
Congress passed, and President Clinton signed into law, the 
Ocean Pollution Reduction Act (P.L. 103-431). When the 
Subcommittee on Rules and Organization of the House conducted a 
hearing on creating a corrections day, testimony on San Diego 
did not even mention the fact that last year's legislation 
provided San Diego relief from the very secondary treatment 
requirement that H.R. 1943 supposedly would correct.

    i. background: san diego will receive a waiver without h.r. 1943

    Last year's law allowed San Diego--San Diego alone--to 
apply for a waiver of the Clean Water Act's secondary treatment 
requirements for its Point Loma wastewater treatment plant. 
Pursuant to that law, San Diego submitted its application on 
April 26, 1995, and on June 12, 1995, the Environmental 
Protection Agency (EPA) announced its preliminary determination 
to approve the waiver. By all accounts, next month (August, 
1995) EPA will issue a proposed permit, including the waiver 
that San Diego is seeking, and soon thereafter EPA will grant 
San Diego its waiver.
    Notwithstanding the fact that San Diego gets what it wants 
through the waiver that was authorized last year, a second San 
Diego waiver provision was included in Section 309(a) of H.R. 
961, the Clean Water Amendments of 1995. That bill passed the 
House on May 18, 1995.
    Even though San Diego's problem already has been fixed 
twice (through last year's bill and this year's Clean Water Act 
amendments), on June 28, 1995, H.R. 1943 was introduced.

ii. h.r. 1943 is grossly unfair to the majority of other communities in 
                              this country

    H.R. 1943 is a great injustice for the majority of other 
communities in this country. There simply is no justifiable 
explanation for carving the San Diego provision from the Clean 
Water bill that passed the House so that it can receive 
expedited and high profile consideration, while not expediting 
consideration of other Clean Water provisions that are more 
pressing and impact many more communities.
    Why is it that San Diego, which will receive a waiver from 
secondary treatment with no further legislation, is getting a 
bill considered separately, and yet thousands of communities 
that are in technical violation of the law for failure to have 
stormwater permits cannot receive separate legislative 
    Why is it that the more than one-thousand cities looking 
for approval of EPA's Combined Sewer Overflow Policy cannot 
receive separate legislative action? Why not a Combined Sewer 
Overflow provision that would help a lot of cities and is truly 
noncontroversial, having the support of every stakeholder 
    None of these communities will receive any assistance by 
the passage of H.R. 1943. Thousands of communities that need 
legislation are being told that they must wait for the larger 
Clean Water bill to be considered. Why San Diego, and why not 
Philadelphia, New York, Chicago, Boston, Detroit, and the other 
cities that face costs of more than $40 billion to correct 
their combined sewer overflow problems? Yet the one city which 
needs no further legislative action to receive the relief which 
it wants is getting a special bill, just for it. The thousands 
of other communities can wait.
    This is another example of the ``haves'' getting what they 
want, and the ``have nots'' being left behind. The ``have 
nots'' are the communities which most of us represent. Yet, it 
is San Diego that is getting singled out for special 
treatment--special treatment for the third time in less than a 

 iii. h.r. 1943's changes to last year's enacted bill are bad policy, 
                scientifically unsound, and unnecessary

    H.R. 1943 differs from last year's enacted bill, and from 
the commitments made by San Diego in its recent waiver 
application, in three key respects.
    A. H.R. 1943 Would Authorize Far Less Treatment than San 
Diego Currently Is Achieving: H.R. 1943 rejects the minimum 
standards that were in last year's law and are an integral part 
of San Diego's recent waiver application. H.R. 1943 would allow 
San Diego to do less than the commitments it made last year 
when special legislation was passed to allow for the waiver, 
less than it agreed to this year in its waiver application, 
less than it has proven it is capable of consistently doing, 
and less than it is currently doing. This is directly at odds 
with the desires of the American public, who are opposed to 
allowing dischargers to do less than they currently are doing 
to control pollution.
    The present secondary treatment standards, which virtually 
every municipality has to meet, are 85% removal of biological 
oxygen demand (BOD) and 85% removal of total suspended solids 
    Last year's enacted bill allowed San Diego to seek a waiver 
from the secondary requirement of 85% removal and instead 
achieve ``enhanced primary'' treatment. A critical element of 
last year's bill was that ``enhanced primary'' treatment was 
required to remove, at a minimum, 58% BOD (on an annual 
average) and 80% TSS (on a monthly average). Significantly, 
thee percentages were based on what San Diego represented that 
it could consistently meet. And, these percentages have proven 
realistic--San Diego reported that it consistently met or 
exceeded them in 1994.
    Like last year's enacted bill, H.R. 1943 conditions the 
waiver of secondary treatment standards on San Diego's 
implementation of ``enhanced primary'' treatment. But, unlike 
last year's law, H.R. 1943 is devoid of any minimum level of 
treatment required to satisfy the undefined requirement for 
``enhanced primary'' treatment.
    The only hint of a baseline standard in H.R. 1943 is 
derived from the term ``primary''. Although this word is not 
defined in the Clean Water Act generally or its regulations, 
Section 301(h) of the Clean Water Act (relating to waivers of 
secondary treatment requirements) states that for limited 
purposes `` `primary or equivalent treatment' means treatment * 
* * adequate to remove at least 30 percent of the biological 
oxygen demanding material and of the suspended solids. * * *'' 
So, H.R. 1943 presumably would require removal of some 
unspecified amount over 30% of BOD and TSS, which could be far 
less removal that San Diego is consistently achieving today.
    The only ``safeguard'' in this bill is that the effluent 
has to be ``in compliance with all local and state water 
quality standards for the receiving waters.'' However, that 
provision is a fraud, since the discharge would be 4 miles out 
in the ocean, where no state or local water quality standards 
apply. State jurisdiction over ocean water extends only 3 miles 
from shore.
    The elimination of the requirement for removal of 58% BOD 
and 80% TSS, to a level of treatment of as low as just over 30% 
removal of each, could authorize the discharge of sewage that 
is very nearly raw--sewage that no one has agreed would be 
harmless. As characterized during the debate on the bill in 
Committee, it could allow a ``freefall'' to as little as 30% 
removal. This cannot fairly be characterized as just a little 
correction. It is a major loophole that could allow for an 
enormous potential drop in removal and in water quality, one 
that San Diego has not even said it wants. It is the wholesale 
abandonment of the Clean Water Act program, and contrary to San 
Diego's current program and to the interests of its citizens 
and visitors.
    Most remarkable is the fact that the Committee rejected, on 
a party line vote, an amendment offered by Congressman Filner 
to add to H.R. 1943 the 58%/80% baseline removal requirement 
from last year's bill and San Diego's waiver application.
    In support of this amendment, Representative Filner 
asserted that while he did not believe that San Diego would 
increase pollution in its discharge beyond the baseline levels 
in last year's enacted bill, he considered it appropriate to 
include those baselines in H.R. 1943. If San Diego has no 
intention of ever reducing its wastewater treatment, it should 
not be opposed to minimum requirements.
    The importance of minimum treatment requirements also was 
emphasized by Congressman Horn during floor debate last year on 
the San Diego relief bill, the Ocean Pollution Reduction Act, 
which did contain the 58%/80% baseline removal requirement:

          Mr. Speaker, under my reservation of objection I want 
        to say that this does assure environmental protection. 
        It * * * requires meeting certain minimum levels of 
        treatment [emphasis added].

    It is just plain common sense that the baselines should be 
included in H.R. 1943. It would give both the San Diego 
citizenry, and the tourism industry and other industries that 
depend on clean water, some assurance that water pollution will 
not dramatically escalate in the future. And, from a scientific 
standpoint, it is advisable to limit the amount of pollution 
that may be discharged to a level that will not threaten human 
health or water quality. The Filner amendment also would have 
avoided the bad precedent of H.R. 1943, which authorizes 
pollution at levels that no one has claimed are safe.
    At Committee markup, the rationales offered for opposing 
the Filner amendment were that it constituted 
``micromanagement'' and that San Diego was opposed.
    The ``micromanagement'' argument is disingenuous. In fact, 
H.R. 1943 itself would result in micromanagement by Congress, 
since the only way to modify the waiver (for instance, in 
response to new information that it was causing serious harm) 
would be by an Act of Congress. EPA and California would be 
powerless to modify the waiver, as would the City and citizens 
of San Diego, since H.R. 1943 cuts the public out of the 
process (see section C below).
    Nor is reliance on purported opposition by the City of San 
Diego very compelling. Presumably this rationale refers to 
support of the bill from the Mayor of San Diego. But it is 
inconceivable that the citizenry and tourism fishing industries 
in San Diego would actually support relaxing standards to 
levels of the 19th century. While there is significant support 
in San Diego for relief from the secondary treatment 
requirement, there is no indication of any support for reducing 
the level of treatment from the levels already achieved.
    B. H.R. 1943 Would Eliminate the Waste Water Reclamation 
Program Included in Last Year's Bill and in San Diego's Waiver 
Application: H.R. 1943 eliminates the requirement in last 
year's bill that San Diego make a commitment to implement a 
waste water reclamation program. Like the minimum standards in 
last year's bill, the reclamation provision reflects precisely 
what San Diego last year proposed and agreed that it could and 
would do as a condition of not meeting secondary treatment 
standards. No more, no less. And, in its June 12, 1995, waiver 
application San Diego made its commitment to conduct a waste 
water reclamation program. H.R. 1943 would relieve San Diego of 
this commitment.
    San Diego proposed the reclamation component because 
reclamation was central to reducing the total volume of waste 
water discharged. And, reducing the total volume was part of 
the City's argument that the lower treatment standards would 
not be harmful: less total effluent would mean less pollution.
    Under H.R. 1943, San Diego would get the benefit of lower 
treatment standards--even lower than those agreed to last year 
and currently being met--but would no longer do the reclamation 
that was part of the package.
    C. H.R. 1943 Legislatively Grants a Permanent Waiver With 
No Mechanism for Periodic Review to Ensure that the Waiver is 
Appropriate as Conditions Change Over Time: Last year's enacted 
bill authorized San Diego to apply for and receive a waiver 
under the same terms as all other communities that have permits 
with waivers. Specifically, it required San Diego to apply to 
EPA for a waiver, and in that application to demonstrate that 
certain conditions would be met, such as that discharges under 
the waiver would not result in additional requirements on any 
other pollution source, and the discharge allows for the 
maintenance of a balance of indigenous populations of fish, 
shellfish and wildlife, and allows recreational activities in 
and on the water (see Clean Water Act Section 301(h)(1)-(9)).
    In contrast, in H.R. 1943 Congress grants the waiver, 
without consideration of the criteria in Section 301(h) of the 
Clean Water Act that every other waiver recipient had to meet. 
EPA and California play no role in the process of ensuring that 
San Diego gets a waiver.
    Unfortunately, EPA and California are not the only entities 
that H.R. 1943 would exclude from the waiver process. H.R. 1943 
virtually eliminates the effectiveness of the requirement for 
public comment on the waiver--public comment from the very 
people that will have to live with the effects of the bill 
    In a letter dated July 11, 1995, to Chairman Shuster, Mr. 
Robert Perciasepe, Assistant Administrator for Water at the 
United States Environmental Protection Agency, noted the 
importance of public comment:

          Public review of EPA's approval will begin in August, 
        and is an important part of retaining public 
        accountability in the nation's water pollution control 
        program. It will allow the citizens of San Diego to 
        review the modified discharge plans, assuring the 
        maintenance of water quality necessary to protect 
        public water supplies and allow for recreational 
        activities, tourism, etc. Ongoing public review is 
        particularly important in San Diego, where there is a 
        history of serious public concerns about sewage 

H.R. 1943 would set a dangerous precedent of Washington 
eliminating the views of the local community from decisions 
with local impacts.
    In addition, under H.R. 1943 San Diego would be forever 
immune from the periodic review provisions of the Clean Water 
Act that apply to every other waiver recipient. Under current 
law, waiver recipients must periodically apply to renew their 
waivers as a part of permit renewal. Currently, permit renewal 
is every 5 years, but under the Clean Water Amendments that 
passed the House it would be extended to every 10 years. This 
process allows EPA to consider whether any changes in 
conditions or new information cause the waiver of secondary 
treatment standards no longer to be safe. As in the initial 
waiver application process, the public is given an opportunity 
to comment on renewal.
    The importance of Agency review of waiver applications has 
been widely recognized.
    During floor debate on last year's San Diego waiver bill 
Congressman Horn noted the importance of requiring San Diego to 
demonstrate to EPA that the waiver is appropriate and will not 
be harmful:

          Mr. Speaker, under my reservation of objection I want 
        to say that this does assure environmental protection. 
        It is simply providing for the possibility of an 
        exemption. This legislation allows the EPA to grant 
        that exemption. They have to apply to EPA. * * *

    Also noteworthy, and consistent with the concerns that 
Congressman Horn raised regarding the last year's San Diego 
waiver bill, the amendment that Mr. Horn offered to this year's 
Clean Water bill, to provide Los Angeles relief from secondary 
treatment requirement, requires Los Angeles to apply to EPA for 
a waiver: it does not legislatively grant a permanent waiver.
    In his July 11, 1995, letter to Chairman Shuster, Assistant 
Administrator Perciasepe noted the importance of periodic 
review of waiver decisions:

          The current waiver process is based on a scientific 
        review of available data. The special legislation 
        proposed for San Diego would provide for a blanket 
        exemption from secondary treatment, even if changed 
        circumstances or evolving science raise reasonable 
        questions about the continued wisdom of the waiver. 
        This plan to ignore new data appears to conflict with 
        the National Research Council's seminal report, 
        ``Managing Wastewater in Coastal Urban Areas.'' That 
        report specifically recommended that ``[m]anagement 
        systems should be flexible so that they may be changed 
        as needed to respond to new information about 
        environmental quality and the performance of existing 
        management systems.'' The scientific and public 
        scrutiny involved in the reapplication process is 
        similar to the scrutiny that every discharger in the 
        country must undergo.

 iv. currently there is nothing to correct, but there will be if h.r. 
                            1943 becomes law

    A. There is nothing to correct: As noted above, San Diego 
will receive its waiver without H.R. 1943. Since San Diego got 
relief from secondary treatment requirements of the Clean Water 
Act under legislation enacted last year, and on June 12, 1995, 
EPA publicly announced its tentative approval of the City's 
waiver application, H.R. 1943 at best is moot.
    In addition, H.R. 961, the Clean Water Amendments of 1995, 
which passed the House on May 18, 1995, contains a provision 
(Section 309(a)) that is identical to H.R. 1943. There is no 
reason whatsoever to carve this provision out of legislation 
that is moving through the legislative process.
    It is ironic that San Diego legislation is being used to 
kick off Corrections Day, in view of the fact that Corrections 
Day, and this so-called ``correction'' in particular, has been 
billed as a mechanism for correcting ``dumb'' impacts of the 
``one size fits all'' approach. The San Diego situation is 
anything but an example of ``one size fits all.'' In fact, as a 
result of last year's enacted bill, San Diego is in a class all 
by itself.
    It is sometimes claimed that the National Academy of 
Sciences supports the waiver. This is not correct. The National 
Academy of Sciences (NAS) made it quite clear when they 
testified before this Committee that they did not reach any 
conclusion on the question of whether a secondary waiver would 
be justified or harmful in the case of San Diego. Nor did NAS 
take a position on the merits of any legislation that would 
provide for a waiver for San Diego.
    The San Diego bill that last year was enacted into law has 
been criticized on only very limited grounds. Messrs. Filner 
and Bilbray testified before the Subcommittee on Water 
Resources and Environment during hearings on H.R. 961, the 
Clean Water Amendments of 1995. Mr. Bilbray also testified at 
the Corrections Day joint hearing before the Subcommittee on 
Rules and Organization of the House and the Subcommittee on 
National Economic Growth, Natural Resources and Regulatory 
    Based on these hearings, we are aware of only one criticism 
having been made about San Diego's current obligations under 
the Clean Water Act and the Ocean Pollution Reduction Act. That 
is the burden of applying for the waiver, and of having to 
reapply periodically (every 5 years under current law, but 
possibly every 10 years under H.R. 961).
    The complaint about the cost of applying for a waiver is 
not compelling. San Diego has already expended the sums 
necessary for the initial application. So, what is at issue is 
the cost of reapplying every five or ten years. In view of the 
fact that H.R. 1943 already requires that the City implement a 
monitoring program, the data to support the application 
presumably already would have been gathered. The only 
additional cost is the cost of interpreting the data and 
presenting it in the application. Most of the cost of periodic 
reapplication and review is the cost of monitoring, and that 
cost by every other waiver recipient in the country. And, as 
discussed above, there are sound reasons for periodically 
revisiting waiver decisions in light of changed conditions and 
new scientific information. San Diego simply has not made the 
case for more special treatment in this regard.
    B. There will be many things to correct if H.R. 1943 
becomes law: H.R. 1943, if enacted into law, would create many 
problems, including the following:
    (1) H.R. 1943 could allow San Diego to significantly 
retreat from its current treatment program, under which it 
consistently achieves 80% removal of total suspended solids 
(TSS) and 58% removal of biological oxygen demand (BOD). the 
bill could authorize as little as just slightly over 30% 
removal for each--basically raw sewage, minus the solids.
    (2) Short of new federal legislation, once San Diego 
qualifies for this automatic legislative waiver, there is no 
mechanism for reassessing its wisdom in light of new conditions 
or new scientific information.
    (3) The public, including the citizens of San Diego, are 
cut out of the waiver process entirely.
    (4) The bill reflects very badly on the priorities of this 
Congress: it sends a strong signal to the communities that most 
of us represent that very real problems facing them are less 
important than addressing a problem regarding one community 
that was cured last year.
    In keeping with the Corrections Day theme of common sense, 
one would expect the kickoff Corrections Day bill to reflect 
some degree of common sense. It makes little sense to claim to 
address a problem that does not even exist. It makes even less 
sense to create more problems than you solve.
    San Diego secondary treatment is not what needs 
``correcting.'' It is the priorities of this House that need 

                                   Norman Y. Mineta.
                                   Bob Borski.