they authorize any activity prohibited by subsection (i) of this section. Thereafter no license, permit, or authority shall be issued by any officer or employee of the United States which would authorize any activity prohibited by subsection (i) of this section." H.R. 805 would require the Administrator of the Environmental Protection Agency and the Secretary of the Interior (acting through the United States Fish and Wildlife Service) in consultation with the Secretary of the Army (acting through the Chief of Engineers), to establish standards for the discharge of waste: ་ for the purpose of insuring that no damage to the natural environment and ecology including but not limited to marine and wildlife ecology of the ocean, coastal, and other waters of the United States, will result from any such activity. . H.R. 805 would also permit the imposition of more stringent state standards. H.R. 805 does not provide for the designation of areas within which waste may be safely deposited. Instead, the bill would require any person, before depositing or discharging industrial wastes, sludge, spoil or other materials into the ocean, coastal, or other waters of the United States, to "present sufficient evidence to sustain a burden of proof that such materials in the location in which they are to be deposited will not endanger the natural environment and ecology of these waters and to meet such additional requirements as the Administrator may deem necessary for the orderly regulation of such activity." The bill further provides in subsection (d) that the standards established "shall be applicable to all of the departments, agencies, and instrumentalities of the Federal Government, to the States and their agencies, including any person having any license, permit, or other authorization from such State or agency for any such activity with respect to any such ocean, coastal, and other waters." The civil penalties set forth under H.R. 805 are less stringent than those contained in H.R. 285 and apply only to violations of discharge standards. Subsection (i) of H.R. 805 is much more stringent than the parallel subsection (j) of H.R. 285 supra in that it provides: "(i) Upon the effective date of this section all licenses, permits, or authorizations which have been issued by any officer or employee of the United States under authority of any other provision of law shall be terminated." Unlike the parallel provisions1 in H.R. 285, H.R. 983 and H.R. 1095, subsection (f) of H.R. 805, which relates to recordkeeping and reporting, does not provide for confidential treatment of information relating to trade secrets. H.R. 983 is substantially the same as H.R. 285, except for the following differences. Under H.R. 983, the Secretary of the Interior, acting through the Fish and Wildlife Service, and the Administrator of the Environmental Protection Agency would have joint responsibility for designating discharge areas. How ever, H.R. 983 would give the Administrator of the Environmental Protection Agency, instead of the Secretary of the Interior, sole responsibility for the determination of applicable federal discharge standards. The civil penalties which H.R. 983 would establish are the most stringent of those provided in any of the bills included in this report. H.R. 1095 is similar to both H.R. 285 and H.R. 805, but is drafted in a converse form. Under H.R. 1095, the Secretary of the Interior, acting through the Fish and Wildlife Service, would be authorized to designate those areas into and onto which he determines certain waste materials cannot be safely discharged. Such areas then would be known as "marine sanctuaries." Persons discharging waste? in "marine sanctuaries" would be subject to heavy fines (Sec. 5B (e)). Initial designation of these areas would be delayed for one year after enactment of the bill pending completion of an investigation and study of potential “marine sanctuaries" by the Secretary of the Interior in cooperation with the Secretary of the Army acting through the Chief of Engineers. Section 5B (d) of H.R. 1095 would provide that once such areas were designated as "marine sanctuaries". 66 "... all licenses, permits, or authorizations which have been issued by any officer or employee of the United States under authority of any other provision of law shall be terminated and of no effect to the extent they authorize any 1 H.R. 285, subsection (h); H.R. 983, subsection (h); H.R. 1095, section 5C (b). 2 In describing the wastes affected by the bill, H.R. 1095, unlike H.R. 285, H.R. 805 and H.R. 983, refers specifically to heated effluents and to solid, liquid or gas wastes (§§ 5B (e), 5C (a)). activity prohibited by subsection (e) of this section. Thereafter no license, permit, or authority shall be issued by any officer or employee of the United States which would authorize any activity prohibited by subsection (e) of this section." Section 5C (a) of H.R. 1095 would require the Secretary of the Interior, within one hundred and eighty days after the designation of areas as "marine sanctuaries", to establish standards for the discharge of waste materials in all other areas. The standard contained in this section is again a federal "no damage" standard. The standard also includes requirements for the treatment of wastes and like H.R. 805 would require persons before discharging wastes to "present sufficient evidence that discharging materials in the location in which they are to be deposited will not endanger the natural environment and ecology" of the navigable and coastal waters of the United States and international waters. Subject to certain exceptions which would allow the States to establish more stringent standards, these standards would be binding on the States and state agencies as well as the Federal Government and all federal agencies. Section 50(b) would allow the Secretary of the Interior to appoint officers to enter and inspect property, plants and facilities in order to determine whether there has been compliance with this section. Section 5C (f), of H.R. 1095 would provide that: "(f) Upon the issuance of standards under subsection (a) of this section applicable to any area, all licenses, permits, or authorizations which have been issued by any officer or employee of the United States under authority of any other provision of law with respect to discharges in an area shall be terminated and of no effect to the extent they authorize any activity prohibited by subsection (g) of this section." " Un'ike H.R. 285, H.R. 805, and H.R. 983, H.R. 1095 contains specific requirements for disposal of military materials including chemical, biological, and radiological warfare agents. It is not entirely clear from the language of the bills, what impact H.R. 285, H.R. 805, H.R. 983 and H.R. 1095 would have on the Commission's responsibilities for licensing non-federal hydroelectric projects under Part I of the Federal Power Act (16 U.S.C. 792-823), and for issuing certificates of public convenience and necessity for the construction and operation of natural gas pipeline facilities under Section 7 of the Natural Gas Act (15 U.S.C. 717f). It could well be argued that the definitions of wastes used in the bills are not intended to encompass discharges from non-federal hydroelectric power plants or from natural gas pipeline facilities. H.R. 805 could have a similarly limited impact by virtue of its narrower definition of "ocean, coastal, and other waters". The Commission opposes enactment of H.R. 805 in its present form because subsection (i) would terminate all FPC licenses, permits and certificates on the date H.R. 805 becomes effective. We believe that enactment of H.R. 805 would seriously impair the attainment of an adequate supply of electric energy throughout the United States. The proposed bill is contrary to the national policy of comprehensive development of the Nation's water resources articulated in Part I of the Federal Power Act. (First Iowa Hydro-Electric Cooperative v. F.P.C., 328 U.S. 152, 180-181 (1946). While the Commission supports their basic intent, we question whether the provisions in H.R. 285, H.R. 983 and H.R. 1095 represent the best or most orderly means of achieving the general objectives of these bills. We believe that the comprehensive approach embodied in H.R. 4723, the Administration's proposed "Marine Protection Act of 1971" offers a significantly better solution to the growing problem of unregulated ocean dumping. Under that proposal the Administrator of the Environmental Protection Agency would be authorized to issue permits for the dumping in the oceans, coastal and other waters of materials which he determines "will not unreasonably degrade or unreasonably endanger human health, welfare or amenities of the marine environment, ecological systems or economic potentialities". In reviewing and evaluating individual permit applications the Administrator wou'd apply criteria which extend to both (1) the likely impact of the proposed dumping on human health and welfare and the 2 See footnote on p. 104. 3 "Such standards shall be for the purpose of insuring that no damage to, or loss of, any marine life or wildlife or other resources necessary for the ecological balance of the area or pollution of the navigable waters of the United States will result from any such activity .." § 5C(a). Subsection (g) would subject persons discharging wastes in violation of established standards to heavy fines. 62-513 0-71- -8 marine environment and (2) alternative disposal locations, the probable impact of requiring the use of such alternative locations and the public interest considerations associated with issuing or denying permits. In establishing or revising such criteria the Administrator would have the benefit of the comments and suggestions of various Federal agencies, including those of the Federal Power Commission. The Commission also questions the practicality of the absolute "no damage" standard contained in the bills. In practice, this standard would have the effect of prohibiting any discharge of waste material into navigable or coastal waters. The federal "no damage" standard and the more stringent state standards which could be imposed under H.R. 285, H.R. 805, H.R. 983 and H.R. 1095, could well, if pressed too far, impair or defeat the attainment of other national objects, including the development of adequate utility services and the production of needed supplies of industrial goods. The Commission is cognizant of the importance of protecting marine and wildlife resources. However, the Commission believes the more flexible case-by-case approach utilized in H.R. 4723, the Administration bill, would be preferable. The Commission has no comments to offer on the provisions of H.R. 1095 which relate to the disposal of military wastes. The Office of Management and Budget advises there is no objection to the presentation of this report and, that enactment of H.R. 4723 would be in accord with the program of the President. FEDERAL POWER COMMISSION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Hon. EDWARD A. GARMATZ, May 21, 1971. Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This letter is in response to your request of February 19, 1971, for a report on H.R. 336 and H.R. 548, bills "To require the Council on Environmental Quality to make a full and complete investigation and study of national policy with respect to the discharging of material into the oceans." These bills would provide that the Council on Environmental Quality make a full and complete investigation and study of all aspects of existing national policy with respect to the discharge of any material of any kind into the waters of the Atlantic and Pacific Oceans, the Gulf of Mexico, and any other waters within the territorial sea and the contiguous zone of the United States. The bill provides that upon completion of such investigation and study the Council would report to the President and Congress its recommendations for a national policy with respect to discharge into such waters. Such recommendations would include treaties, agreements, and legislation necessary in connection therewith. The Administrator of the Environmental Protection Agency transmitted to the Congress on February 10, 1971, the Administration's proposal, which is embodied in H.R. 4247 and H.R. 4723, to regulate the dumping of waste material into the oceans, coastal, and other waters of the United States. The need for such regu'ation is made clear in the President's message of February 8, 1971, transmitting a program to save and enhance the environment. This Department strongly supports the Administration's proposal. While this Department would defer to the views of the Council on Environmental Quality and the Environmental Protection Agency with respect to whether the study contemplated by H.R. 336 and H.R. 548 is necessary, it wou'd appear that the bills' basic objectives have already been achieved. In October 1970, the President made public a Council on Environmental Quality report entitled "Ocean Dumping: A National Policy," which included recommendations for a comprehensive national policy in the area of ocean dumping and which was the basis for the Administration's proposed legislation. We are advised by the Office of Management and Budget that there is no objection to the submission of this report, and enactment of H.R. 4247 or H.R. 4723 would be in accord with the Administration's program. Sincerely, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Hon. EDWARD A. GARMATZ, Chairman, Committee on Merchant Marine and Fisheries, May 10, 1971. DEAR MR. CHAIRMAN: This letter is in response to your request of February 26, 1971, for reports on H.R. 4247 and H.R. 4723, bills "To regulate the dumping of material in the oceans, coastal, and other waters and for other purposes." These identical bills embody an Administration proposal transmitted to the Congress by the Administrator of the Environmental Protection Agency on February 10, 1971. They would prohibit, except as authorized by the Administrator of the Environmental Protection Agency, the transportation of material from the United States for the purpose of dumping it into the "oceans, coastal, and other waters," and the dumping of material into the "oceans, coastal, and other waters" of the United States. Nevertheless, the proposal would authorize the Adminis trator of the Environmental Protection Agency to issue permits for such purposes where, in his judgment, such transportation or dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. It would require the Administrator to develop criteria for reviewing and evaluating the issuance of such permits, after consultation with the Secretaries of Commerce, Interior, State, Defense, Agriculture, Health, Education, and Welfare, and Transportation, the Atomic Energy Commission, and other appropriate Federal, State, and local officials. In addition, the proposal would authorize the Administrator to designate recommended sites for the dumping of specified materials. Provision would be made for penalties for violation of the Act. The proposal would also direct the Secretary of State, in consultation with the Administrator of the Environmental Protection Agency, to seek effective international action and cooperation to ensure protection of the marine environment and would authorize him to formulate, present, or support specific proposals in the United Nations and other competent international organizations for such purposes. The need for this new program is made clear in the President's message of February 8, 1971, "Program for a Better Environment". We urge its enactment. We are advised by the Office of Management and Budget that enactment of this proposal would be in accord with the Administration's program. Sincerely, (S) ELLIOT L. RICHARDSON, Secretary. U.S. DEPARTMENT OF THE INTERIOR, Hon. EDWARD A. GARMATZ. OFFICE OF THE SECRETARY, Washington, D.C., April 5, 1971. Chairman, Committee on Merchant Marine and Fisheries, DEAR MR. CHAIRMAN: We respond to your recent requests for comment on H.R. 285. H.R. 805, H.R. 983, H.R. 1095. H.R. 1383, H.R. 1661, H.R. 3662, H.R. 4359, and H.R. 5050, bills which have as their common objective the regulation of ocean dumping to retard degradation of the marine environment. While these bills are similar in terms of the problem addressed. they can be distinguished with respect to the mechanism or procedure proposed as a solution to that problem. H.R. 285. H.R. 983, and H.R. 1095 would amend the Fish and Wildlife Coordination Act to vest in the Secretary of the Interior and the Administrator of the Environmental Protection Agency responsibility for the designation of ocean sites into and onto which waste material could be safely dumped. H.R. 1095 would require. further, that the Secretary establish environmental standards for waste disposal in areas not so designated, and would establish a schedule for minimum treatment of sewage and industrial waste discharged into areas subject to such standards. Each of these bills also provides for the State acceptance of disposal standards comparable to those promulgated by Federal authority. H.R. 805 and H.R. 1383 would also amend the Coordination Act by adding new language, but contain no provision for the designation of recommended dump sites. Rather, they provide for establishment of standards applicable to ocean disposal "of all industrial wastes, sludge, spoil, and all other materials that might be harmful to the wildlife or wildlife resources or to the ecology" of ocean, coastal, and other waters of the United States. The Secretary of the Interior, in consultation with Chief of Army Engineers (H.R. 1383), or the Secretary and the Administrator of the Environmental Protection Agency, in consultation with the Secretary of the Army (H.R. 805) would be responsible for promulgation of such standards. H.R. 4359 would amend the so-called Estuary Protection Act of 1968 (82 Stat. 625) to prohibit the marine disposal of waste materials without an appropriate permit from the Administrator of the Environmental Protection Agency and, like H.R. 1095, to require advanced treatment of sewage and industrial waste. Section 3 of H.R. 4359 would also direct the Secretary of Commerce to study and select those areas worthy for designation as marine sanctuaries. H.R. 3662 provides for an amendment to the Coordination Act that would also prohibit dumping without a permit from EPA. This bill also contains provision for treatment of waste material and the designation of recommended dump sites. H.R. 1661 and H.R. 5050 are identical bills that would make it unlawful for the owner or master of any vessel to load or permit the loading of waste for ocean disposal without having first obtained a permit to do so from the Administrator of EPA. The Administrator would be authorized to issue such permits, to prohibit absolutely the loading, transporting or dumping of any material deemed hazardous to human health or the marine environment, and to designate ocean dump sites. Each of these bills represents recognition of the need to control a practice that now threatens our marine environment, and to prevent recurrence in ocean and coastal waters of that blight which afflicts the Great Lakes. In recognition of these same needs, President Nixon last year requested that the Council on Environmental Quality study the problems posed by ocean dumping. We participated in the conduct of that study, and were consulted during the preparation of draft legislation to implement recommendations contained in the Council's final report, "Ocean Dumping-A National Policy". That legislation is now pending before your Committee as H.R. 4247 and H.R. 4723, and we recommend that it be enacted in lieu of the bills discussed herein. While specifics of the proposed "Marine Protection Act of 1971" are covered in a sectional analysis submitted by EPA and in our report on the introduced legislation, it should be noted that H.R. 4247 and H.R. 4723 combine several provisions of the bills described above. The result, we believe, is a comprehensive framework for regulating the transportation and dumping of wastes in the oceans, coastal waters, and the Great Lakes. As several of the other bills propose, a manadatory permit system would be administered by the Environmental Protection Agency. Permits for the transportation and ocean disposal of waste material could be issued when the Administrator determines that such activity "will not unreasonably endanger or unreasonably degrade human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities". The Administrator would also be authorized to prohibit the dumping of a specified material, and to designate recommended dump sites. This Department and others would be consulted by the Administrator in establishing criteria against which to measure permit applications. We believe that such consultation will afford an opportunity to contribute our knowledge of the marine environment, and to seek protection of the wildlife, recreation and mineral resources for which we have primary responsibility. In this connection, we agree with the Council on Environmental Quality that regulatory authority should be vested in an agency whose chief role is environmental control. Amendment of the Fish and Wildlife Coordination Act for this purpose would tend to disperse regulatory authority and to discourage effective coordination with programs already administered by EPA for the maintenance of air and water quality. The Council's study and implementing legislation proposed by the Environ. mental Protection Agency are worthy of careful consideration and, as we recom mend, prompt approval by your Committee and the Congress. We believe that |