ANALYSIS OF S. 1014, A BILL TO AMEND SECTION 10 OF TH FEDERAL WATER POLLUTION CONTROL ACT

Subsection (a) defines the terms to be used in the section, partic ularly "water quality standards" and the components of such stand ards.

Subsection (b) states a Federal policy in favor of encouraging Stat and interstate action to abate pollution, and provides that the A ministrator may not initiate an enforcement action if he determine that a State is taking appropriate abatement action.

Subsection (c) identifies the waters for which water quality standar would be required. These waters would include interstate water already subject to standards under the present Act, and, in additio navigable waters, ground waters; tributaries of any such waters; t contiguous zone (with respect to pollution which threatens the te ritorial sea); and the high seas (with respect to discharges of matt transported from or originating within the United States).

Under a new requirement contained in subsection (d), the Admin trator would be required, within six months after the enactment of t section and from time to time thereafter, to publish in the Fede Register regulations establishing specifications for water use design tions, water quality criteria and effluent requirements for the purp of advising the States in adopting or revising water quality standar The regulations concerning water use designations will prov methods for assuring that legitimate factors are taken into accou The regulations concerning water quality criteria would, on the ba of the latest scientific knowledge about the effects of identifia pollutants on health, welfare and the environment, specify minim and maximum water quality characteristics required to protect vari legitimate and beneficial water uses. The regulations concer effluent requirements would specify the minimum levels of treatm or control which would be generally applicable to various catego of industrial and municipal facilities and other pollution sources, would specify procedures for determining additional treatment requ to comply with water quality criteria or to prevent the degradatic high-quality waters. The Administrator would also be require publish information concerning recommended pollution co techniques for complying with water quality criteria and effi requirements.

Under subsection (e), States would have up to one year after publication of regulations under subsection (d) to submit req new standards and revisions of old standards for all waters spe in subsection (c) which are within their jurisdiction, The Adn trator would be required to advise the States as to which elemen existing standards require revision. If the State did not act withi one-year period, the Administrator would be authorized, af public hearing, to publish regulations setting forth water q standards for water over which the State has jurisdiction, Th

nistrator would be required to promulgate such standards if, arhin 60 days after publication of the regulations, appropriate 'andards were not adopted by the State.

If the Administrator published regulations under subsection (d) , twice in one year, publication of the later regulations would not extend the time for adopting water quality standards pursuant to the arlier regulations except with respect to elements thereof required to be revised by the later regulations.

Water quality standards established under the Water Quality Act of 1965 would continue to be effective, until superseded by new standards. The Administrator would be able to utilize the new enforcement authorities in subsection (f) to enforce standards established der existing law while new standards are being developed.

No provision is made at present for the Governor of a State to ritiste revision of standards. The proposed subsection (e) (2) (D) old authorized the Governor of a State to submit revised standards at any time. If the Administrator determined that the revised standrds met the requirements of subsection (d), such standards would come effective.

The authority of the Administrator to promulgate standards for Waters in areas of exclusive Federal legislative jurisdiction, or where the States do not have jurisdiction, is unclear under existing laws. Subsection (e) (3) would provide the Administrator with clear authonty to establish standards in such areas after public hearings.

Two administrative enforcement procedures are authorized under the existing provisions of section 10: the Administrator may convene a enforcement conference, or, in cases of violation of water quality andards, he may issue 180-day notices, followed by court action. Under the present proposal, these procedures would be replaced by a te administrative procedure based on the violation of water quality tandards (or of effluent requirements for hazardous substances estabhed under subsection (1)). The Administrator would be required, pon a finding based on any information however obtained that any person is in violation of water quality standards or the requirements of subsection (1), to notify such person of the violation and the required medial action, and simultaneously to provide notification to the water pollution control agencies of the States involved. If the required remedial action or appropriate State action were not taken within 30 days, the Administrator would be authorized to issue an order requring compliance within a specified time, or bring a civil action for a. injunction under subsection (f) (6).

The recipient of an order directing compliance would be authorized request a hearing within 15 days following receipt of the order. Following such hearing, the Administrator would be required to affirm, dify or revoke the order by written decision constituting his final order. In cases in which the recipient of the order did not make a timely request for a hearing, the original order would become the fal order unless modified by the Administrator on his own initiative. Judicial review would be provided for all final orders after exhaustion administrative remedies. It is intended that an appeal or a request for a hearing would not operate as a stay of an order, except where a jort determined a stay to be necessary as provided in the Administra

tive Procedure Act. The Administrator would be authorized to asses a civil penalty for violation of a final order of up to $25,000 per day of violation.

Under subsection (f) (6) the Administrator could enforce his fina orders and recover fines upon petition to the appropriate U.S. Circui Court of Appeals.

Under subsection (f)(7), the Administrator would be authorized to commence a civil action in the appropriate U.S. district court fo injunctive relief in any case of violation of water quality standards o of effluent requirements for hazardous substances established under sub section (e). Under subsection (f)(8), the Court in any such proceedin would be authorized to assess a civil penalty of not more than $25,00 per day of violation. Subsection (f)(9) would authorize the impositio of criminal fines of up to $10,000, and imprisonment of up to si months, for making any false statement in any document or tamperin with any monitoring device required by the section.

Although the enforcement conference would be eliminated by th proposal, its useful features would be retained in subsection (g authorizing the Administrator to call fact-finding public hearings f the purpose of obtaining information necessary to carry out the Ac including the investigation of possible water quality standards viol tions. Notice of any hearing would be required to be published in th Federal Register and in a newspaper of general circulation in the ar in which the hearing is to be held. The hearing would be conduct before a hearing panel, consisting of the Administrator's representati and representatives of the States involved. Any interested pers would be permitted to make a statement of views.

At the conclusion of the hearing, the hearing panel would ma findings concerning the existence of pollution, and would report su findings to the Administrator, including recommendations for remed action. The Administrator would review the findings, and would ta such action as he deemed appropriate, which are understood to inclu the issuance of an administrative order or the initiation of a c action pursuant to subsection (f), or, the establishment of wa quality standards under subsection (e)(2)(A). If, after a hearing un subsection (g), the Administrator determined that the public he or welfare required revision of water quality standards he would authorized to request a State or States to adopt revised standɛ within 60 days. If the State did not adopt acceptable standards wit such period, the Administrator would be authorized, after notice hearing, to publish standards and to promulgate them after 30 d following publication. Subsection (g)(7) would make it clear that Administrator could issue administrative orders to require compli with water quality standards even while a hearing is being held u subsection (g).

Subsection (h) would provide the Administrator with broad thority to compel the attendance and testimony of witnesses at l ings, and to order the production of records. However, Ag representatives would still be subject to the provisions of 18 U 1905 with regard to protection of trade secrets.

Subsection (i) would authorize the Administrator to require discharger to perform effluent monitoring and to report the resu EPA. In exercising this authority the Administrator would be req

to take into consideration the availability of the desired information from State or local monitoring programs. Further provisions of this subsection would authorize the Administrator's representatives to enter and inspect facilities from which discharge is made into sewers or waters specified in subsection (c), and to have access to monitoring or other records. Any information obtained under subsection (i) would be available to the public except information which is shown to the satisfaction of the Administrator to contain trade secrets.

Subsection (j) would provide emergency authority for the Administrator to commence an action in the appropriate U.S. district court for an injunction or other appropriate equitable relief whenever a pollution source presents or may present an imminent and substantial danger to the health or welfare of any person, or to water quality. It would also provide for the consolidation of suits.

Subsection (1) would require the Administrator within 60 days after enactment of the new section 10, to publish in the Federal Register a list of substances which in his opinion possess a high potential for causing substantial danger to the public health or the environment and which shall be subject to a prohibition or effluent requirement. Within six months after publication of the list, the Administrator would be required to publish proposed effluent requirements or prohibitions for such substances, and within ninety days after such publication, he would be required to promulgate such requirements and prohibitions in final form.

58-068 0-71-9 Pt.1

ANALYSIS OF S. 1015, A BILL TO ESTABLISH AN ENVIRONMENTAL FINANCING AUTHORITY

Section 1.-This section provides for the Act to be cited as the "Environmental Financing Act of 1971."

Section 2. Creation of Authority.-This section establishes the Environmental Financing Authority as an instrumentality of the United States subject to the general supervision and direction of the Secretary of the Treasury and authorizes the Authority to establish offices to conduct its business.

Section 3. Purpose.-This section states that the purpose of the Act is to assure that inability to borrow necessary funds on reasonable terms does not prevent any State or local public body from carrying out a waste treatment works project eligible for financial assistance under the Federal Water Pollution Control Act.

Section 4. Board of Directors.-This section provides a five-member Board of Directors consisting of the Secretary of the Treasury or his designee as Chairman and four others appointed by the President from the officers or employees of the Authority or of any Federal agency. The Board would meet at the call of the Chairman and would determine the general policies of the Authority. The Chairman would appoint the officers of the Authority.

Section 5. Functions.-This section authorizes the Authority to purchase obligations issued by State and local public bodies to finance the non-Federal share of the cost of a waste treatment construction project. No purchase could be made unless the Administrator of the Environmental Protection Agency has certified that the seller is unable to obtain sufficient credit on reasonable terms, has approved the project as eligible under the Federal Water Pollution Control Act, and has agreed to guarantee principal and interest payments on the obligation. No purchase could be made of obligations issued to finance projects the permanent financing of which occurred prior to this Act. Interest rates on such purchases would be determined by the Secretary of the Treasury taking into consideration (i) current market yields on obligations of comparable maturity issued by the Treasury or the Authority and (ii) market yields on municipal bonds. The Authority would charge fees to cover expenses and to accumulate reasonable reserves, and such fees would be included in project costs.

Section 6. Initial capital. This section authorizes appropriations to the Secretary of the Treasury to advance up to $100 million for initial capital to the Authority. The interest rate on advances would be not less than a rate determined by the Secretary of the Treasury taking into consideration current market yields on Treasury obligations. Interest payments could be deferred at the discretion of the Treasury.

Section 7. Obligations of the Authority. This section authorizes the Authority, with the approval of the Secretary of the Treasury,