A brief summary of a few of the points which justify the above proposal is as follows:

1. Existing state program are all-encompassing as opposed to the limited scope of the presently proposed federal permit system. Examples: 50,000 oil wells in Kansas; 850,000 oil wells in Texas, Louisiana, and Oklahoma; all feedlots in several states; and all municipal waste discharges which are exempt under the federal Refuse Act of 1899.

2. Elimination of duplication in background information for permits as well as costly review of plans and specifications of industrial waste treatment facilities. This feature should also be considered in the existing PL 660 construction grants program.

3. Any discrepancies in issuance of permits or adequancy of treatment would be readily determined by means of both the existing state and federal stream monitoring programs. Legal or other corrective action would be immediately available.

4. There is existing precedent for programs of state operation under federal agency guidance and minimum requirements: the U.S. Coast Guard in watercraft registration, the AEC and agreement states by which most states control medical use of radium and other isotopes outside the present authority of AEC, etc.

5. The proposal would retain a position for the states of being able to communicate with (talk to) individuals at the local and private citizen level which is difficult for federal agencies to achieve.

In conclusion, it can be stated that long established and existing state permit systems are all-encompassing and perhaps superior in many ways but they have been lacking, principally due to "malnutrition" of budget and staffing. Working together in a truly cooperative manner, it is possible to develop state-federal programs which complement each other rather than compete with each other and at the same time preserve overriding authority if it should become necessary.

There is some concern in the fact that the Refuse Act of 1899 causes direct duplication by involving two federal agencies in primary roles relative to water pollution control. This act also provides for duplication in initiating legal action, by the various offices of the U.S. Attorney, without benefit of facts previously determined by either state or federal environmental agencies. It is felt that a resolution of this problem would be beneficial.

STATE OF KANSAS

WATER RESOURCES BOARD,
Topeka, Kans., July 14, 1971.

Hon. ROBERT DOLE,

U.S. Senator, New Senate Office Building,
Washington, D.C.

DEAR SENATOR DOLE: The attachment contains my comments, after rather briefly reviewing the July 1 Committee print. Contact was made with officials in Michigan and Ohio relative to the Committee print, and there is general agreement amongst the three of us on the comments.

It is hoped that somehow the administrative problems and procedure can be simplified so that the whole system doesn't bog down under its own weight. My experience in government administration indicates that the present wording of Title III and IV will be conducive to slowing and complicating the process rather than improving it.

We wish you well in your attempts to clarify and simplify the proposed amended act and hope the comments are helpful.

Sincerely,

Attachment.

KEITH S. KRAUSE,
Executive Director.

COMMENTARY ON FEDERAL WATER POLLUTION CONTROL AMENDMENTS CONTAINED IN THE WORKING PAPER PREPARED FOR THE USE OF THE SUBCOMMITTEE ON PUBLIC WORKS, JULY 1, 1971

My comments begin on page 3, and encompass paragraph (m) (1) beginning with line 34 through line 47 of that page. The comment made previously that the administrator should not be saddled with the investigations of resale or reuse of waste oil still applies. The Bureau of Mines in the Department of Interior has both laboratory and market expertise with respect to oil and it is recommended that waste oil recycling be directed to that organization for resolution. The EPA administrator should concentrate on the prevention of spillage, emergency measures for cleanup and enforcement of measures to stop deliberate leakage of oils. His efforts should not be diluted by marketing questions for which another agency already has certain authorities and facilities for handling. Line 45 through 47 indicates that the administrator should report the results of his studies within six months of the enactment of the national water quality standards act of 1971. A six-month period for reporting on the scope of the work outlined in prior sections, particularly that of handling waste oil is not a realistic period of time.

On line 6, page 6, it suggested that after the word "state" in line 6 a phrase be added "capable of planning, building, and operating waste treatment facilities" so that item (c) line 6 would read “in assisting political subdivisons of the state capable of planning, building, and operating waste treatment facilities including intrastate basin agencies, in developing and carrying out effective water pollution control programs under this act."

I am also bothered by the sentence beginning on line 35, page 6, and continuing through line 47. This does not recognize the facts of political life. It is not going to help a water pollution control program any in a state if that agency's funds are reduced by legislative action through no fault of the agency. A penalty administered by the federal government only compounds the error. It is recognized that such action on the part of the state legislators or budget officers cannot go unnoticed, but to withhold all federal funds is much too drastic, if the goal is better water quality.

It is acknowledged that the purpose of the higher figure in Section 202 is to provide an incentive for states to participate in the grant. However, this may be of more theoretical than practical value and is probably of greater importance that a figure be set that will remain unchanged for at least 10 years which represents the federal share and that the authorized level of funds be appropriated.

Most states and municipalities would favor a 75-25 percent split with the state and/or municipalities being responsible for the operation and maintenance cost of the facility.

Under Section 204, on page 10 and continuing on page 11, lines 1 through 7, it is noted that the purpose of this provision is to recover a portion of the cost of building a treatment facility and operating a treatment facility resulting from its use by an industrial contributor and to return such revenues to the extent apportionable to the treasury of the United States. I believe that the particular requirement is going to be very difficult to administrate by a municipality, particularly where they may have hundreds of contributing industries. It is believed to be more reasonable to require the cities and municipalities to set up user charges sufficient to assure that the treatment works is adequate, is operated satisfactorily and which provides a sinking fund for future plant expansion or a higher degree of treatment. It is believed that this is far more practical than attempting to require that the municipality return money to the Treasury of the United States. A system of charges can be worked out so that during the period prior to the obsolescence of the present plant, sufficient funds can be accumulated and placed at interest which will provide for the expansion or reconstruction of the works. It may be necessary to ask the municipalities for ordinances which will insure that the money set aside for this purpose is not siphoned off into other municipal services. Many municipalities are already doing this and doing it quite satisfactorily. It is suggested that this particular requirement be stricken from the print and a substitute along the lines suggested be inserted. If the service charge level is established reasonably well, there will be little wind-fall advantage to industries who discharge waste into city sewers.

Section 207, lines 27 through 43 on page 12, indicates a reduction in authorization below those in the earlier committee prints. These authorization figures are not adequate to complete construction work that may be brought underway prior to July 1, 1976 in the United States unless the federal share of the costs are substantially less than those indicated in Section 202 on page 9. It is suggested that a rate of expenditure be established for a 10-year period aggregating a total of $30 billion available prior to July 1, 1982. It is doubtful that even this will complete the job, but it will be a substantial contribution towards achieving the goals and it will provide stability to the federal share which the municipalities and other constructing agencies need to carry out their plans. Reference is made to Section 209 beginning with line 1, page 13, relative to regional waste treatment management. While we concur in the idea of regional waste treatment management, we find the procedures outlined on page 14 beginning with line 1 through 37 give rise to many unanswered questions, most of which relate to the role of the Secretary of the Army and the Corps of Engineers in handling regional waste treatment management problems. It is foreseen that if a hassle develops wherein the administrator notifies the secretary of Army that a regional waste mangement program cannot or has not been developed by the state, we would see no way that the municipalities can be forced into sharing the cost of such a system, except possibly pursuant to a long drawn out court case which even then might not end in a satisfactory precedure. We do not see how and with what funds the Corps of Engineers could operate such a system. It appears to us that there would be two courses of action open: (1) the Corps of Engineers could take over and finance, construct, and operate the entire regional waste management system if the job is to be accomplished in a short period of time; (2) force the area by court action to participate in its share of costs and in its operation, which would undoubtedly be a long drawn out procedure delaying an effective action for years. We believe that many areas would chose the latter path under the proce dure as it is presently worded. We recommend that this section be carefully reviewed. We suggest that the entrance of the Corps of Engineers upon the scene be predicated upon an invitation agreed to by the state and municipalities involved and directed to the Corps of Engineers by a resolution concurred in by the appropriate Congressional committees. This is a procedure not dissimiliar to the one now employed by the Corps of Engineers in the field of flood control, navigation, etc.

Your attention is called to Section 302 on page 19, beginning on line 4, which states that "the national minimum water quality standards shall be that level of water quality identified by the criteria published pursuant to Section 301 which shall provide for the protection of any indigenous, shellfish, fish and wildlife, and allow recreational activities in and on the water." It is believed that

an examination of this definition of a national minimum water quality standard would reveal it to be grossly inadequate to describe a national minimum water quality. For example, the ocean contains approximately 35,000 miligrams per liter of chloride. This would be absolutely intolerable for human use or for industrial use or for agricultural use and many, many other uses, but is quite capable of meeting the minimum standard as written. Such a statement should be stricken from the print as totally inappropriate. A simple statement summarizing a national minimum water quality is not possible. It can only be defined in terms of uses in the locale where it is occurring if the standard is to have any meaning.

Section 303 has many points of value but we reiterate again that effluent limitations, schedules, and time tables, particularly effluent standards are a bottomless pit insofar as the federal government is concerned. The federal interest should be focused on the quality of water in the stream. It is believed items like those appearing under (h), line 14, page 20, may actually result in higher concentrations of industrial effluents in areas already overly industrialized. This result will be absolutely contrary to the idea of greater dispersion of industry as one practical means of resolving the total environmental problem of an industrialized society. The philosophy of this particular section is quite suspect and we do not believe that as presently worded Title III of this act has been sufficiently thought through to warrant its inclusion in federal legisla tion at this time.

Attention is directed to Section 304, page 24, line 33. It is recommended that a paragraph be inserted here which would authorize use of flow regulation as one means of controlling water quality in the stream. It would have applicability to both point and nonpoint types of pollution. Flow regulation may be the only prac tical way of controlling agricultural types of pollution such as sediment, bacteria and to a large degree, pesticides and fertilizers which are absorbed into soil particles and transported along with soil particulate matter. The terminology, flow regulation is to be preferred to flow augmentation for the simple reason that water detention is a means of flow regulation and quality control as well as augmentation. This particular thesis is not contained in the statement. There has been a great deal of objections to the thought of flow regulation as being a means of improving quality but such objections have been primarily by persons who do not understand the role that regulating streamflow plays in improving and enhancing water quality. It is a technically sound and, in many instances, at economically comparable method of improving water quality. It certainly fits into a program of regional waste management.

It is noted that the federal government as a potential polluter is not mentioned in the staff print. It is, therefore, suggested that the words "federal installations" be incorporated in Section 306 at some point and it be made very clear that the federal installations are subject to the same control that others are. As a practical matter present legislation implies that federal installations are subject to the enforcement procedures. However, it is a matter of record that the defense department will not supply to EPA certain information regarding their installations. We do not believe that a very large, if not the largest single source of pollution, the United States Government itself, is exempt from such an act except by special dispensation of the President himself. We think that See tion 306 cannot be interpreted literally and if it cannot be interpreted literally, a serious doubt is cast on the validity of the entire section. To be interpreted literally would mean that every new family abode would be subject to this particular section. This would apply to a great number of endeavors of a very personal and private nature.

Section 307, page 26, includes a listing of toxic substances and states that the "discharge of every pollutant listed below or pollutants subject to an appro priate promulgation by the administrator pursuant to subsection (b) in a concentration greater than that present in intake or receiving waters is prohibited." Among the several items listed are materials Bromine, Silver, and Barium Bromine and silver are well-known disinfectants and are widely used in water treatment processes, medicines, etc., and in various kinds of disenfectants in hospitals, and other places as is barium. It is quite likely that the same would be found true of many of the other items listed. These items must be acceptable in some form in the discharges or the installation would be faced with a closure order. There are many other substances, of course, that are toxic under certain conditions. As a matter of fact, there are very few things that aren't toxic in sufficient concentrations to some ecological systems. It is suggested, therefore,

that this be left up to administrative judgment as to whether or not the conditions present in the receiving stream warrant complete prohibition. Under Section 308, page 27, beginning at line 19 to line 38, we note the requirements and a question immediately arises, does this apply to the nonpoint type of pollution? And if it does, what about the farmer and his capability for maintaining the required records. It is presumed that this was aimed at the industry or the municipality. But as written, it states that it applies to the owner or operator of any effluent source which certainly encompasses a very, very broad field including all forms of agriculture interests. Again, this exhibits a deficiency in the writeup in Title III. In my opinion this will not enhance water quality control but will create ambiguities, indecision, and litigaton, all of which delays rather than enhances action.

Section 308 (d), beginning with line 15 on page 30, contains a provision which states that whenever a municipality is a party to an action, etc. the state will be required to assume financial responsibility as the result of a judgment against the municipality if the laws of that state limit the capacity of the municipality to raise revenue. It is believed that if tis particular provision remains in the act, it will pit the states against the federal government in lengthy litigation. It would seem wiser to choose some other course of action than to insert a paragraph such as this. Perhaps this is the place where the invitation to the Corps of Engineers shoudl be issued to come in and build.

It is noted that in Section 310 page 31, page 6 that a majority of the members of the board and the chairman, who shall be designated by the administrator shall not be officers or employees of the federal, state, or local governments. It is suggested that this be further expanded to state that none shall be from the basin or state in which the problem arises. The case history of the pollution of the Colorado River in Arizona beginning in 1961 is a good example of what may happen if this is not more carefully written.

Section 402 appears to be screwed down too tight for administration and we would suggest that if agricultural interest are covered by this section and they appear to be, it would be impossible for the administrator to carry out. We have no particular quarrel with much of the statement under 402, but we believe that there are as many exceptions to control as there are nonexceptions, thus making the whole section suspect. We are also intrigued by the Subsection (e) beginning with line 18 through 24. If this section were carried out laterally, then we would certainly stop population growth by federal law. We suggest that this section be very carefully reviewed for possible philosophical content and certainly for administrative problems which such provisions engender.

It is noted that a wording error appears in line 40 on page 43. We suspect that the word "inserting" should be "striking".

Under Section 505, page 45, line 19, the sentence which begins "The court may award costs of litigation including reasonable attorney and expert witness fees to any party whenever the court determined such award is appropriate." We presume that this means that if the person bringing the complaint fails to make his case that the court could levy the costs of bringing the litigation against the complaintant. If this is not true, we suggest that it be carefully reworded to make that point and to include any damages which a court might feel the defendant is due as a result of such an action.

The July 1 committee print appears to be somewhat better than the May 1 print, but in my opinion contains many provisions, particularly under Title III and IV which are difficult if not impossible to administer literally. This in turn will lead to endless litigation and further delaying water quality improvement. I am, of course, dismayed that the states would no longer have a role in the decision-making process. The language in the print makes the states an extension of the administrator's staff. I am in disagreement with this philosophy, but at least the Committee print makes it clear that this is the intent of the legislation rather than that of giving an allusion of consideration to the states without actually providing them with any of the decisonmaking powers.