ADEQUATE POLLUTION PROTECTION IS NOW AVAILABLE AND COMPREHENSIVE INTERNATIONAL PLANS FOR PROTECTION ARE CLOSE TO REALIZATION

The public, government and industry increasingly are demanding oil and other substances in greater quantities, and they demand delivery be made on a timely basis and at the lowest possible cost. The oil product, for example, is a basic fuel for land, air and water transportation, and is a common source of heat and light, so much so that it has become a community staple as essential daily as is food and water. However, like any other commodity, the carriage and handling of oil and other substances is subject to escape through human error.

In consideration of the above factors prior to enacting the federal oil pollution law, the Congress consequently recognized that the public receives substantial benefits from waterborne commerce, and if oil and other substances are to continue to be available at the lowest possible costs, the public should share some of the responsibility and risks attendant to transporting and handling them. It is our view that under the present federal scheme of liability, vessel owners and operators shoulder the greater portion of this risk.

Currently, we believe that the Federal Public Law 91-224 and existing Protection and Indemnity Club coverage of vessels provides more than adequate protection against prohibited discharges for all States of the United States. Eventually, we hope that this will be replaced, only as far as tanker vessels are concerned, with ratification of the 1969 Brussels International Conventional Convention on Civil Liability for Oil Pollution Damage. As a supplement to the maximum $14 million protection the 1969 Brussels Convention would provide to cover cleanup costs and damages, the maritime and cargo interests are working with governments toward development of a Convention on an International Pollution Compensation Fund for Oil Pollution Damage. This fund would provide supplementary protection to the 1969 Brussels convention so that cleanup costs and damages might be covered to a maximum of $30,000,000.

Currently, two plans similar to those in the international convention schemes are operative on a voluntary basis as implemented by the oil industry. Tanker companies representing over 80 percent of the world's tanker tonnage, through a plan known by the acronym TOVALOP, have voluntarily accepted world-wide a responsibility over and above their legal liability for cleanup costs. Under this plan, a vessel owner who is a party to TOVALOP could perform reasonable cleanup activities up to $10,000,000 (assuming the vessel involved were 100.000 gross registered tons) and this would be supplementary to the financial responsibility of $14 million or $100 a gross ton, whichever is lesser, made available under United States law (P.L. 91-224). A recently implemented plan known as CRISTAL, voluntarily subscribed to by owners of more than 80 percent of the world's crude/fuel oil movements by sea, provides a supplementary fund to cover vessel pollution damage in addition to benefits offered under existing legal regimes, TOVALOP, and the 1969 Brussels Convention once it enters into force.

PRE-EMPTION OF STATE LAWS IMPERATIVE

Furthermore AIMS strongly recommends that existing Section 11 should be amended to pre-empt states from passing oil and hazardous polluting substance laws. This proliferation of state laws, all inconsistent with the federal law and with each other, is creating a nightmare of administrative confusion and economic chaos for vessel owners and operators.

For example, the financial responsibility rule promulgated under the Florida Act requires that a vessel owner who has complied already with the Federal Maritime Commission requirement to obtain a Federal Financial Responsibility Certificate to enter the navigable waters of the United States, must likewise comply with a duplicate Florida provision to obtain a State Certificate. In both instances, the vessel owner must pay at least $100 application fee per vessel. The Federal government itself in 1970 will collect approximately $2 million from vessel owners for such certification fees.

In the United States alone, if such laws were valid, some 30 coastal and Great Lakes States, might choose to impose dissimilar pollution laws and certificating requirements upon vessel owners. In addition, states with navigable inland waterways could also impose such laws which would have a tremendous impact on existing barge operators and on ocean-going operators who now own and are constructing more of the new, modern LASH and Seabee type vessels which can discharge barges from the mothership to travel the inland waterways to pick up and deposit cargoes. Such States, incidently, now include Oklahoma, which has a recently completed man-made waterway as far north as Tulsa.

We note that of the states which have already passed water pollution laws affecting vessels, no two states have passed identical laws. Eventually, the merchant marine could be subject in the United States alone to more than 30 different and conflicting state laws. Also we note that many of these state laws permit local governments to pass similar water pollution laws, thereby creating the potential for a legal bureaucratic nightmare of imponderable proportions. Should all 27 or more states with navigable waterways consider imposing a financial responsibility certificating requirement which would be renewable annually, the documentation alone would impose substantial legal and administrative costs upon each vessel owner. For example, the Florida financial responsibility applications consists of some 30 pages of legal size sheets. Should all coastal states and all states with navigible waterways impose financial responsibility certificate fees upon each vessel, vessel owner's costs would tremendously escalate. If this trend is permitted to continue, the ultimate resulting effect upon interstate and foreign waterborne commerce would be one of administrative chaos; of tremendously increased costs of transportation which would be passed on to the ultimate consumer of the transported product; of the channeling of investments into other businesses which would be decidedly more attractive than the maritime business; of the deterioration of water transportation service; of a reduction in port traffic and employment; and of a loss of tax revenues.

Vessel owners are concerned with this proliferation of state laws and regulations and constantly emphasize that shipping is an international business and all problems, except the most local, should be resolved not even on a national basis, but on an international basis. If state governments, choose to "go it alone", the result each desires and is striving for may be destroyed rather than achieved through individual action. If any achievement results from this multiplicity of laws, the slight benefit will be achieved at a disproportionate cost to each state's economy. For example, if a state requires vessels to be equipped, designed or manned in a way which no other state or country demands, then fewer ships will be able to serve it, and those that do will have greater expenses to recover. Extra costs, whether of equipment, operating expenses, or liability, are likely to be passed on through freight costs to the ultimate citizen consumer of that state or country. To warrant long-range vessel owner investment in expensive vessel pollution control equipment, vessels must be free from inconsistent local requirements and caprious changes of many different local laws which render equipment obsolete despite its efficiency. Where a vessel owner or operator's costs increase as a result of the law in one state or country alone, the resultant burden on the state's or country's trade inevitably will be much higher than when an international agreement is adopted which uniformly affects maritime nations.

CONCLUSION

In conclusion, it is our firm conviction that liability provisions which are unnecessarily harsh and punitive after the fact do not prevent pollution, enhance water quality, or even insure adequate cleanup funds any more than do reasonable and insurable liability provisions. Protection against pollution is no way increased, in that to call upon an old maxim "drawing and quartering a corpse does not add to hanging.” Moreover, failure of the federal government to specifically pre-empt states and spell out for them the exclusive constitutional jurisdiction of the federal government over maritime matters, merely encourages these state governments to enact statutes of questionable constitutionality. Not only do these various, conflicting state laws interfere with interstate and foreign commerce, and the harmonious, uniform federal regulation of the merchant marine, but they impose additional administrative and economic burdens on vessel owners and operators which are detrimental to maritime commerce. These state laws, and regulations promulgated thereunder, increase transportation costs which are passed on to the ultimate consumer of the cargo without confering increased protection or benefit.

We believe adoption of AIMS' recommendations with regard to incorporating the provisions encompassing HPS regulation in existing Section 11 of FWPCA, maintaining the existing Section 11 scheme of liability, and the pre-emption of states from passing conflicting and confusing maritime pollution laws would insure more than adequate financial protection to cover prohibited discharges and would neither disrupt maritime transportation nor substantially add to its cost.

We thank the Committee again for affording us this opportunity to present our views.

STATEMENT OF THE AMERICAN LEGION

Hon. EDMUND S. MUSKIE,

THE AMERICAN LEGION, Washington, D.C., July 1, 1971.

Chairman, Subcommittee on Air and Water Pollution, Senate Committee on Public Works, New Senate Office Building, Washington, D.C.

DEAR SENATOR MUSKIE: The American Legion is vitally interested in the problems of pollution and preservation of the environment. At a recent meeting of our National Executive Committee a Resolution was adopted supporting the appropriation of adequate funds for research into this complex subject. A copy of the resolution is enclosed for your information.

I would appreciate your affording representatives of The American Legion an opportunity to present testimony on this subject if hearings are held by your Subcommittee.

Sincerely yours,

HERALD E. STRINGER,

Enclosure.

Director, National Legislative Commission.

NATIONAL EXECUTIVE COMMITTEE, THE AMERICAN LEGION, MAY 5-6, 1971

Resolution No. :40.

Commission: Internal Affairs.

Subject: Funds for environmental protection research and support for Federal anti-pollution standards.

Whereas, Resolution No. 51, National Executive Committee, October 21-22, 1970, established the policy that "problems of pollution and preservation of the environment are germane to the purposese of The American Legion" and charged the Internal Affairs Commission with "the primary responsibility for coordinating the development of policies, the devising of suitable activities, and providing information to posts;" and

Whereas, the Internal Affairs Commission has considered this complex problem and finds that there are certain measures which The American Legion may properly endorse as a beginning toward the development of a comprehensive effort; Now, therefore, be it

Resolved, by the National Executive Committee of The American Legion in regular meeting assembled in Indianapolis, Indiana, May 5-6, 1971, that

1. The American Legion supports the appropriation of adequate funds public or private for research to determine more precisely the effects of any and all pollutants including pesticides and herbicides; the deevlopment of economical means of control or elimination of harmful pollutants; the discovery and use of means to control insect, rodent, and other pests and to control unwanted vegetation without harm to the environment.

2. Posts of The American Legion are urged to become informed in local problems of solid waste pollution, and to lend their support to adequate local measures, especially for the improvement of municipal sewage disposal systems.

3. The American Legion offers its full support to local campaigns to clean up our physical environment and will cooperate with other civic organizations and agencies in similar or related projects.

4. The American Legion commends the President of the United States for establishing the Environmental Protection Agency and expresses its deep interest in the work of that agency.

5. To the extent that scientific knowledge justifies, The American Legion supports the establishment and enforcement of Federal anti-pollution standards so that like industries wherever located in the United States will be required to meet like standards so that a profit advantage or disadvantage will not be created by a variation in standards or in enforcement among the fifty states.

6. Departments of The American Legion are requested to designate a commission, committee or other body to develop department policies and programs in this field compatible with National policies.

STATEMENT OF AMERICAN MINING CONGRESS

By DAVID SWAN, Vice President-Technology, Kennecott Copper Corporation

Mr. Chairman and members of the committee, I am pleased to submit this statement on behalf of the American Mining Congress, an association of U.S. companies that produce most of the nation's metals, coal and industrial and agricultural minerals. Its membership includes also more than 200 manufacturers of mining and mineral processing equipment and supplies as well as financial institutions with a business interest in the mining industry.

Before beginning my specific remarks on the proposed legislation amending the Federal Water Pollution Control Act, it might be well to point out that the member companies of the American Mining Congress have long been concerned with the quality of the environment in the areas in which they operate. The environmental effects of proposed operations are carefully considered in the planning and engineering of every mining and processing facility developed. Both through their own resources and those of manufacturing suppliers, AMC members have been active in the development of measures to protect environmental quality, including water quality, and of the technology needed to do so. It is especially noteworthy that, although the output of the mining industry has increased substantially in recent years, the fresh water intake has increased only slightly. The reason for this is that the industry has learned how to make wash water suitable for recirculation. It has been estimated that the coal mining industry generally reuses each gallon of water 15 times prior to discharge. Thus, it is from a background of long experience and technical familiarity with the water quality problems of the mining and mineral processing industry that the following comments are offered.

Our remarks below are directed at the Administration's bills-S.1012, S.1013, S.1014 and the bill introduced by Senator Muskie and others, S.523.

GENERAL OBSERVATIONS

Under the present Federal Water Pollution Control Act, Congress recognizes the primary responsibilities and rights of the states in preventing and controlling water pollution. However, both S.1014 and S.523 would provide for direct federal responsibility and control in the field of water pollution at the expense of the states. Since approval of the first federal water pollution control act, an attempt has been made to maintain a delicate balance between the activities of the federal government and those of the state government in this field. The present proposed legislation is a drastic departure from previous policy.

Progress is being made today on the state and regional levels in controlling water pollution. It has not been demonstrated that giving the federal government additional authority is going to speed up the substantial progress being made.

Rather than giving the federal government additional enforcement authority, we believe it is more desirable to increase the authorization for sewage treatment works, increase the authorization for state and interstate programs and simplify and streamline the present operation of the Water Quality Act. In line with this basic position on proposed water pollution amendments, the American Mining Congress has the following specific comments to offer on the proposed legislation.

I. Increased authorizations for sewage treatment works and for state and interstate water pollution control program

Under the provisions of S. 1013 an appropriation of $6 billion would be authorized: $2 billion for each of the next three fiscal years to match on a 50-50 basis state and local funds, for the construction of a total of $12 billion of waste treatment works throughout the country. We endorse this proposal.

The American Mining Congress likewise endorses the proposal of the Administration in S. 1012 to increase the authorization for state and interstate programs over a period of four years on a sliding scale from $15 million in fiscal year 1972 to $30 million in fiscal year 1975. The American Mining Congress recognizes that there has been a substantial increase in the effectiveness of state water pollution control programs. However, it is also true that most state programs need additional personnel and equipment to determine adequately the problem of water pollution. The gradual increase in the amounts for state and interstate control programs should provide for orderly progress.

II. Water quality criteria

Both S. 1014 and S. 523 provide for the issuance of water quality criteria by the EPA Administrator. However, S. 1014 also requires the inclusion of analytical and test procedures; and in section 10(d) (6) that the proposed criteria be published in the Federal Register with interested parties being allowed 45 to 60 days to submit written comments prior to final promulgation. These are desirable features and we urge that if the subcommittee decides to include provisions on the issuance of water quality criteria, the provision in S. 1014 be followed.

III. Effluent requirements or limitations

S. 1014, in section 10(d) (4). would direct the EPA Administrator to establish "specifications for effluent limitations," while S. 523 provides that state implementation plans include "effluent requirements." We believe the approach of S. 523 is preferable.

We are strongly of the opinion that federal effluent limitations are not desirable and that such regulations should be left to regional, state or local agencies which are in a position to give recognition to local conditions. The problem we see with national effluent regulations is that such standards will be too strict for some areas, resulting in large unnecessary costs and resultant economic dislocations.

IV. Provision for the use of "latest available pollution control techniques”

S. 523, in section 10(e) (1), provides that the EPA Administrator must issue regulations requiring that those constructing new facilities install the "latest available pollution control techniques."

In the first place, the meaning of this phrase is unclear. The phrase should definitely be defined. Otherwise, when does a control technique become available and how can one be sure that it is the "latest"? Also, this section does not consider the economic or technical feasibility of the technique or the desirability of applying the latest available pollution control technique when previously existing alternatives might serve just as well.

Furthermore, we question whether a requirement of this sort is really prac tical. If all new construction must include the latest available control technology, tremendous pressure will be placed on the limited resources of the country. There are only so many trained individuals and firms in a position to supply the latest available pollution control techniques.

We strongly urge that before any provision of this sort is written into proposed amendments to the Federal Water Pollution Control Act, a careful review be made of the exact meaning of the phrase and how the provision is to be administered.

V. Closed-cycle system

Section 10 (e) (2) of S. 523 provides that: "Whenever the Administrator finds. and publishes such finding, that closed-cycle production or treatment systems are available or can be made available, any effluent requirement applicable to a new building, structure, or facility shall provide for no discharge, except as may be required to operate such closed-cycle system."

This requirement could have the effect of imposing a zero effluent limitation on production or treatment systems since the term "closed cycle" literally means "complete retention." Analytical methods are being constantly improved so that minute amounts are being found where it was thought previously that pollutants were not present. Thus, it should be emphasized that in reality zero discharge means complete prohibition.

Furthermore, the "closed-cycle" requirement suffers from the same deficiency mentioned above concerning the requirement for the use of the latest available control technology" in that neither term is defined. It is not clear when the "closed-cycle" technique becomes available. Also, the "closed-cycle" technique