used for reimbursement would be available to the extent assistance would have been provided under section 8, if the project had been approved if funded at the time of such approval.

The Administration's bill would provide that $2 billion be available for this program for each of the next three fiscal years.

Comment:

Several important issues not directly addressed in any pending bill include (a) whether the historical definition of waste treatment works is too restrictive and will prevent achievement of water quality standards in those metropolitan regions where storm water runoff requires the application of a different type control strategy, (b) what is the actual dollar need if the section 8 program is revised to provide 50 percent Federal assistance to develop the most cost effective and efficacious municipal control strategy (i.e., separation, collection, storage, treatment, other land use controls or any combination thereof) and (c) what should be the nature of the Federal obligation, appropriation or contract.

Summary of Key Issues:

(a) The dollar need for the construction of new waste treatment works.

(b) The method of payment of and amount due on eligible reimbursables.

(c) The method of Federal obligation (1) appropriations or (2) contract authority (Proposed by the League of Cities.)

(d) The definition of waste treatment works-should it be expanded to include support for broader strategies to achieve of water quality standards?

(e) The percent of the Federal share-should it be increased?

(f) The nature of the conditions attached to the incentives provisions Should they include controls over land use to protect the investment?

C. Section 10-Standard and Implementation Plan Setting.

Under existing law the regulatory provisions providing Federal involvement in water quality standards is restricted to interstate navigable waters. This excludes navigable waters nominally characterized as intrastate navigable waters and has limited the application of the Act. It is an important distinction in view of the Refuse Act program discussed later.

In addition, section 10 of existing law provides that State action is not to be displaced by Federal enforcement action except as provided for in the Act. The general framework of the Act provides for the States to adopt, after public hearings, and submit to the Administrator water quality use designation and levels of water quality and plans for implementation. If the Administrator approves such State submission it becomes the applicable water quality standard. Water quality standards are required under the Act to take into consideration the use and value of natural waterways for public water supplies, propagation of fish and wildlife, recreational purposes and agricultural and industrial and other legitimate uses. The Administrator is authorized to disapprove State standards and substitute Federal authority. The Act provides for an appeal should the State contest the Federal approval or disapproval action.

S. 523 would amend the Act by providing a revised standard setting framework, requiring the Administrator to publish criteria (scientific information on the effects of various pollutants and combinations of pollutants) as well as recommended pollution control techniques necessary to implement water quality standards. S. 523 would provide that the State, within nine months, would submit to the Administrator, after public hearings, water quality standards applicable to (a) all interstate navigable waters, and (b) all navigable waters. Under the bill the implementation plan would include schedules and timetables of compliance and enforceable effluent requirements to implement water quality standards. The Administrator would have ninety days to determine whether the State submitted standards and plans are consistent with the policy of the Act. Such standards would have to be achieved within three years. In addition the bill provides that no standards shall be approved which would allow degradation of the present quality of any water. S. 523 would also require the States to review their water quality standards at least every five years. In the event the Administrator finds that States submitted standards and plans would not achieve the purposes of the Act he would, within a hundred and eighty days after such finding, substitute his standards and plan for such State waters.

S. 523 requires the Administrator to establish water quality standards applicable to the contiguous zone, (that zone of ocean water between three and twelve miles of the coast of the United States) and provides that before any matter could be discharged in the waters of the territorial sea (three miles) or the contiguous zone, a permit must be obtained from the Administrator.

The bill also directs the Administrator to establish regulations to insure that any person constructing or installing any new facility subject to water quality standards would install, maintain, and use the latest available pollution control techniques. Whenever the Administrator finds that closed cycle production or treatment systems are available for any such new building or structure such building or structure would be required to adopt and operate such closed cycle system.

S. 1014 would also extend the Federal approval authority to all navigable waters (intra and interstate) and would include the ground waters (subsurface) of each State. S. 1014 would require the Administrator establish water quality standards for the contiguous zone of the United States.

The bill would require the Administrator to promulgate regulations setting forth information on water quality including pollution control techniques and additional regulations providing specifications for effluent limitations which shall specify the minimum levels of treatment or control from categories of effluent sources. These limitations would be required before implementation plans are developed whereas the Federal determination of adequate limitations under S. 523 would be made at the time of approval or disapproval of the plan.

D. Section 10, Water Quality Standards

Under existing law Federal enforcement can be undertaken (1) when the Governor of a State where pollution is occurring or a Governor of an adjacent State requests the Administrator to undertake such action, or (2) when the Administrator, on his own information

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determines interstate pollution is occurring. Following such request or determination, the Administrator calls a conference of the affected interests in the States, following which a report is filed. If no action is taken on that report then hearings are convened following which continued non-compliance would result in court action. Criminal and civil penalties under existing law are minimal.

S. 523 would adopt the basic Federal enforcement framework of the Clean Air Amendments of 1970. Whenever on the basis of any information the Administrator finds a violation of an applicable requirement under the Act, and after notice to the State pollution control agency, the Administrator would act to enforce, either through direct court action or through the issuance of an abatement order which would be followed by court action.

S. 523 would provide penalties for violation up to $25,000.00 or one year in jail or both for the first offense and up to $50,000.00 or two years in jail or both for the second offense. In addition there is a penalty of $10,000.00 for violating monitoring or information requirements. The bill provides a civil penalty of $10,000 for the negligent violation of standards.

Under this bill the conference-hearing enforcement procedure is retained only for international pollution complaints.

The Administration bill S. 1014 adopts an enforcement framework similar to the Clean Air Amendments with some modifications. The Administrator after making relevant determinations and waiting the required periods (30 days) may ask the Attorney General to bring an enforcement action directly in the Federal district court or the Administrator may issue an abatement order.

Under S. 1014, if the Administrator chooses to issue an order a complex administrative procedure is initiated which requires hearings and on the record determinations. The Administration bill inserts qualifying language governing the issuance of any order which requires the Administrator to take into account the practicality of compliance and allows the person subject to such order to request a full adjudicative hearing under section 554 of Title V of the U.S. Code. Any final order issued following such administrative procedure would under the bill be subject to administrative review in the U.S. Court of Appeals.

S. 1014 provides that any judicial action pursuant to the Act be undertaken by the Attorney General at the request of the Administrator. S. 523 authorizes the Administrator to proceed on his own authority with his own attorneys. In addition, S. 1014 continues, but modifies, an administrative procedure in the nature of an enforcement proceeding undertaken at the request of the Governor of a State when such Governor believes that there is a violation endangering health or welfare, or he suspects such violation and desires an investigation.

S. 1014 increases the penalties up to $25,000.00 per day of violation (but classifies them as civil penalties) and to $50,000.00 per day if it is a second offense from the same facility. The Administration bill provides up to a $10,000.00 fine or six months jail sentence for knowing violation of information and monitoring requirements.

E. Miscellaneous Provisions

(1) Information acquisition. Under existing law the authority of the Administrator to acquire information relating to pollution discharges

and associated records and reports is minimal. There are no specific provisions in the law which authorize the Administrator to require relevant information to be made available to the Administrator or to the public. There is no authority to require installation of effluent monitoring equipment. Consequently acquisition of information from industrial pollutors has been on a voluntary basis. This is especially unsatisfactory in an area where so much of the information is alleged to be proprietary.

S. 523, following the pattern established in the 1970 Clean Air Amendments, authorizes the Administrator to require any owner or operator of any effluent source to establish and maintain records, to make reports, to install, use and maintain monitoring equipment or methods, to sample effluents. Under S. 523 the Administrator may require this and other information for the purpose of developing or assisting in the development of water quality standards and plans, as well as enforcement of any provision of the act and for the abatement of emergency imminent and substantial water pollution episodes. In addition, S. 523 provides for a right of entry to the Administrator or his authorized representatives for the purpose of relevant investigations, copying relevant records or inspecting effluent monitoring systems. The bill would also provide subpoena power to the Administrator in connection with any determination under the Act or for the purpose of obtaining relevant information. The bill would provide for the classification of certain information as proprietary if the Administrator is satisfied that such information is entitled to such protection. Effluent data cannot be held proprietary. The bill provides that all effluent data, as well as other non-proprietary information, shall be made available to the public.

S. 1014, while proposing some of the provisions of the Clean Air Amendments, provides subpoena authority only for the purpose of conducting enforcement hearings under the Federal enforcement section. S. 1014 provides that the Administrator may require the installation, use and maintenance of monitoring equipment and records and reports as the Administrator may find necessary to determine compliance with water quality standards. The bill provides for a right of entry to any effluent source to inspect, and investigate the operation of collection systems, waste treatment works and facilities or conditions relating to pollution, or the possible pollution of waters, and access to records and information where required to ascertain compliance with water quality standards.

S. 1014 would also provide that records, reports and information obtained pursuant to the authority shall be made public, except to the extent the Administrator is satisfied that such information is proprietary. Effluent data under the bill could not be characterized as proprietary.

(2) Citizen suits. Under existing law the enforcement of requirements established under the Act is restricted to State and Federal agency action.

S. 523 adopts a provision similar to that enacted in the Clean Air Amendments providing for citizens to act on their own behalf in Federal District Courts to seek compliance with the requirements under the Act, and against the Administrator where there is an alleged failure of the Administrator to perform any act or duty under the Act.

The citizen suit provision is restricted to enforcement and does not allow citizen actions for damages, but it does provide that the court may award costs of litigation to any party where such award is in the public interest.

The Administration bill adopts a similar citizen suit provision allowing the citizen to bring an action to enforce requirements of the Act and against the Administrator only where the Administrator is alleged to have failed to perform duty which is not discretionary with the Administrator. S. 1014 includes a directive to the courts to consider the practicality of compliance in issuing any order pursuant to citizen suit provisions. In addition, S. 1014 adds a general notice provision that would advise that any judgment rendered pursuant to any citizen suit would be binding upon all persons in the district where the court has jurisdiction.

(3) Hazardous-Toxic Substances. Under existing law the ability to control effluents of specific toxic pollutants is inadequate. The events in recent months regarding mercury, cadmium, and lead have revealed the necessity to provide such control.

S. 523 provides that the discharge of any substance designated as hazardous under section 13 of the existing law (added by the Water Quality Improvement Act of 1970) is prohibited.

S. 1014 authorizes the Administrator to designate hazardous substances which, in the judgment of the Administrator, present an imminent substantial danger to health and welfare and would further authorize the Administrator to publish effluent limitations for such substances, which can include a prohibition.

(4) Judicial Review. Under existing law any rights interested parties have to challenge promulgations under the Act are derived from the Administrative Procedure Act (A.P.A.). The A.P.A. does not address itself to the nature of pollution problems and the administrative procedures created under the 1965 Act. In order to remedy this situation Congress last year provided a specific judicial review section in the Clean Air Amendments, providing for review in the Court of Appeals of the District of Columbia for any Federally promulgated action and in the relevant Circuit Court of Appeals for any review of State standards and implementation plans which are subject to Federal approval.

S. 523 proposes a similar judicial review provision. The District of Columbia Court of Appeals is given jurisdiction to review any nationally established water quality standards or effluent requirements (such as those relating to the contiguous zone) and the Courts of Appeals of the relevant circuits are given jurisdiction to review Federally approved State water quality standards and plans. The section further provides that such review must be brought within thirty days of the promulgation or after such date only if the petition is based solely upon grounds arising after such thirtieth day.

S. 1014 does not provide a specific judicial review section. (5) Imminent and Substantial Endangerment Episodes. Under existing law there is no provision to provide immediate abatement of water pollution which present an imminent and substantial danger.

S. 523 would provide authority for the Administrator to seek immediate relief through action in the district courts of the United States to abate such a danger.