cine. I see no reason for conditioning disqualification on an actual conviction. which will become increasingly rare in future years. EPA should be able to say to a federal agency: "this company is a violator," just as EPA in the Rayonier case asked the Justice Department to bring an action and just as we would expect the Equal Employment Opportunity Commission to speak out against a civil rights violator. This affords enormous bargaining leverage and of course is important. I have made EPA's power of collateral attack on contract grounds synonomous with the draft's description of possible citizen suit actions. As far as the polluter is concerned, he has a chance to contest EPA's administrative determinations in a contracting action just as he would in a direct contest. 7. Citizens Suits Despite the precedent of the air pollution citizen suit provisions, I am concerned about excluding certain potential actions in the process of prescribing permissible ones. For example, I think the citizen should be able to sue to enforce discriminatory user charges and anti-pollution clauses in government contracts, to name but prime examples. In other cases, the courts should have a chance to decide. I appreciate the point might be a little late but perhaps it would be ultimately advisable to finesse questions about the scope of citizen actions by including a boilerplate clause such as appears in the securities laws: section 505(a) "The district courts shall have original jurisdiction of violationa of this title or of the rules and regulations thereunder, and all suits in equity and actions at law, including citizen suits, brought to enforce any liability or duty created by this title or the rules and regulations thereunder." This could be inserted before a "for instance" specification now appearing in section 505(a) (1) and any limitations included under subsection (b). I think it important, however, that the federal courts be authorized to create a general body of water pollution law. Let me close with another disclaimer. I haven't attempted to coordinate all of these suggestions with language appearing elsewhere in the draft. I also have left out several points. The language of the suggestions also could be improved significantly. But I wanted to throw out these points before it was too late. If it would help, I'd be delighted to elaborate for anybody on your staff. Respectfully submitted, G. M. WOODWELL: WILLIAM H. RODGERS, Jr., BROOKHAVEN NATIONAL LABORATORY, Senator EDMUND S. MUSKIE, DEAR SENATOR MUSKIE: As an advisor to the Senate Committee on Publie Works, I have been privileged to read the current draft of the Federal Water Pollution Control Amendments. I agree wholeheartedly with the intent of this bill and compliment you, your colleagues and your staff on its development. I have several suggestions that would strengthen it in my view. First, there is nowhere in the bill, as I have seen it, a clear, technically defined statement of objectives in controlling water pollution beyond that of Section 301 (a). I would suggest that the objectives be, in addition to those listed, "mainte nance of the chemical, physical and biological integrity of all waters, including lakes, streams, rivers, estuaries, and the oceans". Such an objective appears superficially beyond reach, but I do not believe it is. Still more important, I do not believe we can afford longer to indulge the luxury of considering it beyond us—and your bill comes as one bright ray of hope in an otherwise generally dismal prospect. The importance of the objective as I have stated it lies in maintaining in water bodies worldwide the full array of living systems that have dominated these water bodies for all of the time of interest to man, performing the broad and vital service of maintaining a stable and congenial environment. Profligate use of waters has destroyed such systems over large areas eliminating fisheries, contaminating water supplies, and now threatening coastal and oceanic fisheries as well. A reversal of the trend is the first step toward acknowledging that these waters must be used intensively in support of still larger numbers of people in the next years and that their usefulness will be progressively impaired if their biotic integrity is destroyed. One further point is essential as technical background: the waters of the earth are inextricably linked to the atmosphere and problems of water pollution are also problems of air pollution. In fact, there is wide agreement currently that much, if not most, of the mercury in the oceans was deposited in precipitation falling on the oceans; similarly the transport of DDT to the oceans appears to have been largely through the atmosphere. While the emphasis in the bill is most appropriately laid on discharges into water bodies, little would be accomplished if, for instance, water purification techniques were allowed that removed nitrogen as ammonia from sewage and dumped it in the air to be rained out downwind. Similarly, noxious metals and organics can be dumped into the air and will reach water bodies. I would like to see acknowledgement of this problem in the bill. I would make the following specific suggestions in partially acknowledging my somewhat different emphasis: Page 18, line 45 et seg. [Section 302(d) (1–2)]: This section appears to define the national water quality standard. I suggest that it be much more explicit, setting forth clearly the intent of maintaining the full range of indigenous natural biota and the physical and chemical characteristics to which it is adapted. If the full range cannot be maintained, it is possible to define what will be. It is also possible to define limits of changes of physical and chemical modifications. There should be no release into public waters of any substance not represented in the natural flux of mineral and organic matter. Fluxes of minerals and organics may be modified, but within definite limits. I would suggest a good start would be 10% of the natural flux. Page 22, lines 3-6: Eutrophication is a problem of all waters, not simply lakes. The statement should include "lakes, streams, rivers and estuaries". Page 26, line 1 et seg. [Section 307(a)]: If you adopt my approach, specific mention of such toxins as these is unnecessary. Eliminating them avoids the contradictions implicit in omitting the persistent pesticides and other organics which have been omitted, while including polychlorinated biphenyls. A list of potential pollutants and toxins is virtually endless and must be incomplete. I would urge that release of all such toxins into public waters (or air) be controlled, not within some "percentage recovery", but to some level determined as a small fraction of the natural flux in the receiving waters. This should extend as well to radioactivity. Page 26, line 27 et seg. [Section 307 (c) (1)]: (1) Conventional secondary sewage treatment plants are inadequate to establish the water quality sought in this bill by present criteria or mine. Some form of "tertiary" treatment is required; I prefer biotic systems but they require land area that is not always available. There is no question, however, that the objectives of this bill will require much more than a simple proliferation of conventional sewage plants. Thus, the research called for in the earlier sections is appropriate. But tertiary treatment will certainly require land areas, perhaps large areas, not now reserved for this purpose. There is no shrinking from this fact, however attractive conventional "sewage plants" may seem as a "solution" to water problems. (2) The concept of "percentage removal" is convenient for an engineer but inadequate for the objectives of this bill as I see them. The important criteria are the total release and the capacity of receiving waters, not the percentage efficiency of the plant. A plant removing 99% of the BOD might still be destroying a small stream with organic effluent. Page 26, line 43 et seg.: Sewage outfalls should be mentioned specifically. It should be noticed that the objectives of this bill by either your own or my definition do not allow for ocean outfalls, development of which should be stopped immediately as inconsistent with the directives of all efforts at providing an environment capable of sustaining large human populations. Page 37, Section 402 (a) (1): This section appears weak in comparison with other sections of the bill. "Secondary treatment" is an inadequate objective and it would seem wise to make some provision for systematic improvement of the discharges that must be permitted. There is, moreover, the problem of industrial wastes whose hazard is not BOD but noxious chemicals untouched by conventional treatment plants. To require a "minimum of secondary treatment" seems especially lax. This is an extraordinarily important and complex bill. I have given it a limited reading, commenting on those sections I consider especially significant. I appreciate the opportunity to do so and wish you well in a Herculean effort. Yours sincerely, 59-068 0-71-pt. 4 -18 G. M. WOOD WELL. DAVID R. ZWICK: WASHINGTON, D.C., July 19, 1971. Attention: Members of the staff of the Senate Subcommittee on Air and Water Pollution, Public Works Committee, United States Senate. The following comments on the proposed amendments to the Federal Water Pollution Control Act are submitted to the Air and Water Pollution Subcommittee of the Senate Public Works Committee pursuant to invitation. Respectfully submitted, Enclosure: IMPLEMENTATION PLANS DAVID R. ZWICK. Subparagraph (2)(A) of subsection 303 (a) on page 19, line 19 should be amended to read: "(A) provide, with sufficient margin of safety in light of any lack of complete knowledge concerning the relationship between water quality and discharge quantities and rates, for the attainment of water quality standards as expeditiously as practicable but in no case later than three years from the date of approval of such plans and provide for continued adherence to such standards thereafter." Notice that it is recommended above that the words "the national minimum water quality standard" in subparagraph (2)(A) be changed to read "water quality standards." This is because the water quality standards may be higher than the national minimum, and the purpose of the implementation plan is presumably to insure that the standards are met, whatever they are. It is recommended that a new subparagraph (B) be added and the subparagraphs which follow it be relettered accordingly: "(B) include an overall daily volume load limit for each pollutant listed by the Administrator under subsection 301 (), for each portion of each stream, calenlated to insure, with sufficient margin of safety in light of any lack of complete knowledge concerning the relationships between water quality and discharge quantities and rates, that water quality standards are attained and maintained." Note that, to make the foregoing paragraph effective, section 301 which requires the Administrator to publish a "list of pollutants for which there is sufficient technical knowledge available to determine volume load limits for each portion of each stream consistent with water quality standards, and for which setting such a load limit is desirable in maintaining water quality standards." Such subsection in section 301 should also require the Administrator to publish "the latest information concerning technques of determining the relationship, for each pollutant so listed, between maximum volume load limits and water quality standards." Subparagraph (C) which is now subparagraph (B) on page 19, line 28, should be amended to read as follows: "(C) include effluent limitations, the sum total of volumes (including discharges from each State from which there are discharges into the body of water in question) not to exceed the total load volumes under subparagraph_(B), schedules and time-tables for compliance with such limitations including effluent standards at least as stringent as any applicable prohibition or effluent standard established by the Administrator pursuant to section 306 or section 307 of this Act, all such effluent limitations to specify both peak and average rates of discharge permitted, and provide that a discharge by any person of any pollutant for which no effluent limitation has been approved constitutes a violation of the water quality standards." Note that the above requirement that discharges from each State discharging into the waterbody be taken into consideration is essential to attaining and maintaining the standards. A provision like that recommended above should encourage the states to cooperate on setting their effluent limitations in their implementation plans. If the states cannot agree on how to allocate the permissible load between them, then, obviously, the Federal government should then come in and assist in the setting of implementation plans. The old enforcement conference format might be a useful device for getting all the facts on the table prior to any Federal setting of effiuent limitations which might be necessary. "(L) prohibit the discharge of any pollutant from any source when water quality standards do not include a measurement, to the degree of accuracy specified by the Administrator under subsection 301(d), of the quality of all waters or portions thereof (except those which could not be affected by such pollutant), existing at the time of the submission of such implementation plan, and prohibit the discharge of any pollutant, from a point or a non-point source, for which no criteria has been approved by the Administrator under subsection (d) of section 302." Subsection (b) of section 303 should be amended so as to include the following phrase after the word "hearings" on page 20, line 26: "..., provided that such revised implementation plan shall contain effluent limitations at least as stringent, and time-tables for compliance at least as expeditious, as in the earlier approved implementation plan." The procedure to be followed when it is discovered that an implementation plan is not adequate to maintain the standards needs to be spelled out to give the Administrator a positive duty to insure that the implementation plan is promptly revised and to set a maximum time limit for compliance with revised standards. It is therefore recommended that a new subsection (c) of section 303 be added on page 20 after line 26, and that the subsections which follow the new subsection then be relettered accordingly: "(c) Whenever the Administrator has reason to believe, on the basis of any information available to him, that any approved implementation plan is inadequate to achieve water quality standards or to maintain them after they are achieved, he shall promptly notify the States whose plans he considers deficient of the deficiencies in their plans and of the changes which he determines to be necessary to make such implementation plans adequate to achieve water quality standards and to maintain such standards after they are achieved. The States so notified shall after reasonable notice and public hearings, adopt and submit to the Administrator, such revisions as are necessary to correct such deficiencies. The Administrator shall, within one month after such submission, approve or disapprove of such revisions or any portions thereof. He shall approve such revisions or portions thereof if they meet the requirements of subsection (a) and if, in addition, they provide for the attainment of water quality standards as ex· peditiously as practicable but in no case later than the original date for compliance with the standards prior to revision of the implementation plan, except in such cases as the time between the date required under this subsection for submission of revisions and the date for original compliance is less than eighteen months, in which case the revised implementation plan shall provide for compliance with the standards within eighteen months of the date required for submission of revisions." FEDERAL PROMULGATION Because questions about whether implementation plans are adequate or not will often involve two or more states, the issue being which one of them should restrict its discharges further to meet the standards, the procedure for Federal promulgation should include a provision for meetings between the Federal government and all the states involved. It is recommended that section 305(a) be amended to include the following sentences, after the word "regulation" on page 23, line 28: "In any case where a standard or implementation plan or any portion thereof involves two or more States, the Administrator may convene a conference of the States involved for the purpose of obtaining further information concerning the adequacy of proposed standards or implementation plans. Such conference shall be held within one of the States involved and members of the public shall be given an opportunity to attend and participate." FEDERAL ENFORCEMENT When combined with the 10 day limit of paragraph 309 (a) (4) on page 29, line 6, the 30 day time period of paragraph 309(a) (1) on page 28, line 18 makes an overall waiting period of 40 days, in many cases, before abatement will be required. This may be an appropriate length of time for violations of an implementation plan which are NOT violations of effluent limitations, but it is far too long for violations of effluent limitations. (It should be recalled that the subcommittee's draft bill of the previous Session of Congress called for abatement in 72 hours.) The sentence beginning with the word "If" on page 28, line 18 should be amended to read as follows: "If, in the case of a violation of an effluent limitation, such violation extends beyond the 6th day after the Administrator's notification, or if, in the case of any other violation as an implementation plan, such violation extends beyond the 30th day after the Administrator's notification . To preclude the possibility that a state with extremely weak laws might drag out abatement indefinitely, even though it was "prosecuting vigorously," section 309 (a) (1) should also be amended by including the following new sentence after the word “(b)" on page 28, line 23: "Notwithstanding state enforcement, if, in the case of a violation of an effluent limitation, such violation extends beyond the 8th day after the Administrator's notification, or if, in the case of any other violation, such violation extends beyond the 45th day after the Administrator's notification, the Administrator shall issue such order or bring such civil action." And finally, to insure that the Federal government retains the authority, such as that which it now has under the Refuse Act, to enforce immediately when the situation calls for it, a final sentence should be added to paragraph (1) of subsection 309(a), which sentence should read: "Nothing in this paragraph shall limit the Administrator's authority to issue an order requiring compliance or bring a civil action under subsection (--) when he believes such order or such action to be appropriate." ADMINISTRATIVE ENFORCEMENT To provide an expeditious administrative enforcement scheme, a new paragraph (2) of subsection 309 (a) should be added on page 28 beginning on line 23, and the paragraphs which follow should be renumbered accordingly. The new paragraph 309 (a) (2) should read as follows: "(2) Whenever, on the basis of any information available to him, the Administrator finds that any person violated (A) any effluent limitation under section 303, (B) section 306, or (C) section 307, the Administrator shall notify the person in violation and the State in which the violation occurred of such finding. The notice of violation shall state with reasonable specificity (A) the nature of the violation, and (B) the administrative penalties, under subsection (b), for which the person in violation is liable and will be liable until compliance has been achieved." To make this recommended administrative enforcement scheme effective it will also be necessary to amend section 309(a)(1) by changing the word “(b)" on page 28, line 23, line 37, and line 44 to the word "(c)." This is because a new subsection (b) should be added on page 29 after line 13, and the following subsections should be renumbered accordingly. The new subsection 309 (b) should read as follows: "(b) (1) Every person who violates (A) any effluent limitation under section 303, (B) section 306, or (C) section 307 shall incur, in addition to any other penalty as provided by law, an administrative penalty consisting of a base penalty under paragraph (2) and a surcharge under paragraph (3). (2)(A) Except as provided in subparagraphs (B) and (Č)— (1) If the person in violation has assets exceeding 100 million dollars, the base penalty shall be $10,000 per violation; (ii) For persons whose assets are less than 100 million dollars but greater than 10 million dollars, the base penalty shall be $5000 per violation; (iii) For persons whose asset are less than 10 million dollars but greater than 1 million dollars, the base penalty shall be $2500 per violation; (iv) For persons whose assets are less than 1 million dollars but greater than $100,000 the base penalty shall be $1,000; (v) For persons whose assets are less than $100,000, the base penalty shall be $500. For purposes of this subsection, the assets of a coorporation shall be the total assets as shown on the corporation's balance sheet or the balance sheet of the corporation, its subsidiaries and affiliates consolidated, whichever is larger. (B) if the person in violation is a governmental body, the base penalty shall be $500 per violation. (C) if the person in violaton s a natural person, the base penalty shall be $5000 per violation, or 1/365 of such person's annual income before taxes in the preceding calendar year, whichever such person can establish, to the Administrator's satisfaction, is the smaller sum, (3) Within 60 days of enactment and from time to time thereafter, the Administrator shall publish in the Federal Register a proposed schedule of surcharges which the Administrator shall apply to the base penalties imposed under this section. The schedule shall be based on the seriousness of violations, in terms in the case of toxic pollutants under section 307, the maximum surcharge shall be $10,000 per violation. In the case of toxic pollutants under section 307, the maxi |