Furthermore, the standard apparently does not contemplate any mixing zone. The water quality at the outfall of a major sewage plant would have to meet the standard and this would pose a grave problem for every municipality in the nation. At a minimum, the standard should make provision for a mixing zone. At best, it should be eliminated entirely.

7. Page 19, Line 35 and Page 20, Line 1. Delete the phrase “including biological monitoring". Biological monitoring is useful at times but completely unnecessary in many instances, especially in the case of industrial wastes. The most im mediate result of the inclusion of such a provision in the legislation would be a shortage of qualified biologists. The deletion of the provision would not bar the Administrator from requiring biological monitoring inappropriate instances, but its inclusion in the legislation could well be interpreted as requiring such monitoring in all cases.

8. Page 20, Lines 14 and 15. This "no degradation" clause should be deleted. Every new source-a new subdivision, a new water treatment plant, or a new industrial plant-may degrade the present water quality if its outfall is placed where none existed before.

9. Page 20, Line 31. The intent of words "or other sources" is unclear and confusing.

10. Page 24, Section 306. Taken as a whole, the definition in this section together with the language of Section 306(b) (1) (B) on Page 25, appear to require that whenever a plant or facility is "modified" the entire plant, not just the modifica tion, must comply with the "latest available control technology". This would work as a severe hardship on the chemical industry whose "plants" are cus tomarily composed of a large number of different production units. To require the revision and reconstruction of the entire water treatment facility of such a plant because of a modification to a single production unit would be seriously burdensome. In many cases, it would prevent the modification of the unit, hasten its obsolescence, and inhibit its ability to complete with other producers here or abroad. This can be clarified by adding the words "or modifications" after the word "sources" in Line 17 of Page 25. This amendment would make it clear that a "modification" should take account of the latest technology, but avoid the necessity for rebuilding the water control system of the whole plant each time a single unit is modified.

11. Page 24, Line 28. Insert the word "significantly" before the word "increases" in Line 28. As indicated above, modern chemical plants consist of a large number of production units at a single plant, usually employing a single water treatment facilities. These sources may be frequently modified for engineering and production reasons and for pollution control reasons (including air pollution reductions). To require compliance with the provisions of Section 306 for changes baving a minor or insignificant effect on discharges would be unnecessarily burdensome, especially since there appears to be no provision for compensation with respect to modifications which reduce the discharge of air or water pollutants. The Administrator, under this amendment, would still retain the ability to define, by regulation, the significance of the increase, in terms of either percentage or otherwise.

12. Page 24, Line 37 through Line 13 on Page 25. Delete the list of production facilities as unnecessary. Some of those on the list (ferroalloy manufacturing. for instance) are not significant sources of water pollution. Such a list is not found in the Clean Air Amendments of 1970 and more properly belongs in the report as illustrative.

13. Page 26. Delete Lines 1 through 26, eliminating subsections (a) and (b) of Section 307, and reletter succeeding subsections, for the following reasons: A. A "no discharge" or "no net increase" standard cannot be achieved with present technology for many of the materials listed in the Committee Print. The technology for measurement of concentrations far exceeds the technology for control. For instance, vanadium concentrations of 2 parts per billion (the equivalent of two minutes in time since the birth of Christ) are measured at vanadium mines and mills in the U.S., but no techniques for control of these amounts exists.

B. The consequences of such a prohibition would be far-reaching. Some examples. Chromium compounds are added to waters used in cooling towers to inhibit corrosion. Modern cooling towers could not operate effectively without the chromium, which is discharged in insignificant amounts, and without the cooling towers there is no reasonable solution to the problem of thermal pollution. Many underground mines are wet from water seepage and this water is pumped out and discharged. This water often contains very small quantities of many minerals, in

luding arsenic and selenium. The domestic mining industry would be hard-hit by such the prohibition in Section 307.

C. Many of the metals listed in Lines 7-15 are relatively pervasive and can be letected in infinitesimal quantities. It seems unlikely that any major municipal treatment facility, including the District's Blue Plains plant, when upgraded, could comply with Section 307 as drafted.

D. In any event, the list should be deleted. Inclusion in the bill amounts to a finding of guilty before the trial. The Administrator, in Section 307 (c), with minor revisions, should have the power to set effluent standards for the discharge of some materials in quantities which are likely to be toxic.

14. Page 32, Line 35. The phrase "when discharge in any quantity", is ambiguous. Does it mean that a substance will be designated as hazardous only when discharged in hazardous quantity or does it mean that, if hazardous in any quantity, the substance will be considered hazardous in all quantities? In any event, this provision should be made consistent with the provision of (b) (4), as renumbered, regarding determination, by the President's designee, of "harmful quantities".

15. Page 32, Beginning at Line 44. This whole provision seems improperly placed, and the provision for liability for "all loss or damage", subject only to subsection (f) defenses, seems objectionable in that it seems to extend to certain hazardous substances (only substances not removable) a degree of liability higher than that for oil and other substances.

16. Page 33, Lines 4-6. It is not clear why the U.S. should be entitled to "liquidated" damages as a result of a discharge, as opposed to recovery of its costs for removal of oil or removable substances nor do we know how high it is proposed to set the amount "per barrel". Incidentally, the references to "barrel" and its definition at (a) (13), are probably incorrect or inopposite when applied to materials other than oil.

17. Page 33, Lines 11 and 12. It is not clear why the exception for oil in subsection (b) (4), as renumbered, is not extended to hazardous substances. Other exceptions, required for hazardous substances, but not for oil, may also be desirable.

18. Page 33, Lines 15 to 17. There is apparently a typographical error. These references cannot be identified.

19. Page 34, Lines 1 and 2. Consideration should be given to an express exception where the substance is deemed or declared non-removable.

20. Page 35, Lines 1 and 2. The bill should provide for preemption of the states, at least in connection with vessels.

21. Page 35, Line 3. "Inserting" should probably be "deleting", since this provision is executed.

22. Page 35, Lines 5-13. With penalties as high as $10,000 per violation, there should be clear provision for the time of establishing and effecting regulations for financial responsibility with regard to "hazardous substance" vessels, whenever that term becomes defined.

Page 23. Page 35, Line 24. The reasons for limiting this to U.S. ports is not clear.

24. Page 35, Lines 30 and 31. Section 18 would delete all of Section 12 of FWPCA. This seems rather odd, since Section 12 has various provisions other than those already included at 2(A) (beginning at Page 32, Line 32) of the print. Among such other provisions are procedural protections which will prove to be critical in the regulatory process of identifying hazardous substances and related matters. Of particular interest in this connection is Senate Report No. 91-351, 91st Congress, August, 1969, Page 70 and 71.

25. Page 35, Line 34. The reference to "312" is in conflict with Page 32. Line 18 Title IV

26. Page 37, Line 44 and Line 1 on Page. 38. Delete the words "after public hearings". This clause apparently requires public hearings for every permit issued. This would be highly burdensome on the Administrator and not required by the public interest. Some provisions could, of course, be made for public hearings in contested cases.

27. Page 38. Lines 7 through 9 should be deleted, in accord with an earlier recommendation.

28. Page 38. Lines 34 through 37 should be deleted. This admonition to the Administrator could keep him in court forever because there is not likely in our lifetime to be "sufficient information" to prove the essentially negative injunctions in Paragraph A.

29. Page 38, Line 44. The power conferred on the Administrator to modify a permit "at any time" should be clarified, or at least confined by procedural requirements or a legislated specification of the terms under which it can be modified.

30. Page 39, Lines 6 and 7. Is the person in charge of a vessel or onshore facility who notifies the Government of a discharge of oil or hazardous substance, under Section 11 of the Federal Water Pollution Control Act, entitled to half his own fine?

Title V

31. Page 42, Lines 14 and 15. It is not clear why "oil" as defined in Section 311 is excluded here but "hazardous substances" also defined in that section, are not 32. Page 42, Lines 39 to 43. The words "by States" should be deleted, so the term effluent limitation could also be employed in Sections 307 (Page 26, Lines 34 and 35) instead of "effluent standard" in the interests of consistency and clarity.

33. Page 43. Lines 5 through 34 should be deleted. It is not clear why these types of pollutants, or nutrients, need to be defined in this text. Furthermore, it appears that some elements in the list of essential nutrients (like manganese) may also fall within the definition of toxic pollutant. The Administrator should, for the purposes of Section 307, be given the authority, by regulation, to define toxic pollutants. Biological monitoring, also, should be defined by regulation because the definition here is so comprehensive as to be unworkable in terms of its earlier use in the bill.

34. Pages 44 and 45. The provisions for citizen suits are significantly differ ent from those contained in the Clean Air Amendment of 1970 and different, too from the provisions approved by the Committee when it reported the Clean Air bill in 1970. The reason for these changes is not apparent.

PART II

1. In connection with the Title IV changing the Refuse Act of 1899, the Committee should recommend repeal of two other laws which conflict directly with Title IV. They are the Act of June 23, 1910 (33 U.S.C. 421) (relating to Lake Michigan), and the Act of June 29, 1888 (33 U.S.C. 441-451b) (relating to the harbors of New York, Baltimore, and Hampton Roads). The Refuse Act itself should also be repealed.

2. On Page 35, Lines 41-47 is a provision which grants any new or existing vessel a five year period of immunity from compliance with any new standards or regulations. Such a provision could well and usefully be applied generally to the construction of water treatment facilities. Municipalities and industrial concerns alike presently face the prospect that the water treatment facility they design and build today may be ruled out of compliance tomorrow on the basis of new standards, new regulations, or new technology. One clear result is delay. Much, today, can be gained by waiting until the last minute. The premium for delay would be eliminated by a five year grace period, and such a period would permit industry and city to amortize at least a part of their investment before being forced into new generation improvements. The result of such a provision would be more and better water treatment, not less.

3. The need for a technical review mechanism in environmental statutes. The Clean Air Act of 1970 and the proposed Water Pollution Control Amendments both require the Administrator of EPA to make a large number of complex and highly technical decisions and judgments:

The availability of necessary technology.

The toxicity or hazards of a vast array of elements and compounds.

In making these decisions, the Administrator may have the assistance provided by public hearings, but he still acts as the advocate, judge and jury. Appeal thereafter, is to the courts (except for the independent review of the National Academy of Sciences with respect to certain automotive standards in Title II of the Clean Air Amendments of 1970). The Courts are not equipped to make, or even effectively review, the technical and scientific judgments of the Administrator.

This puts an intolerable and unwise burden on the Administrator.

An independent source of technical and scientific review is needed to serve as an appeal body with respect to decisions of this type. Such independent review bodies are a familiar feature in many Federal statutes. The new Occupational Health and Safety Law, for instance, provides for a separate, expert review board.

1

The Federal Insecticide, Fungicide, and Rodenticide Act makes provisions for a scientific and technical review by an NAS panel. The transportation safety laws provide for independent review by the National Transportation Safety Board. Such a review mechanism would contribute greatly to the effectiveness of the pollution control laws and increase their acceptance to the public and to the affected interests.

There is no obvious, "best," means of providing this review. The National Academy of Sciences, apparently is not anxious for such a role. But there are a number of possbile approaches that may be considered, including:

a. A separate, Presidentially-appointed review body (like the National Transportation Safety Board, or the Occupational Safety Review Commission).

b. Use of the National Academy of Sciences.

c. A variety of ad hoc arrangements, possibly drawing on technical and scientific talent in academic circles, in government (but not EPA employees), or industry (but not those affected by the issue).

d. Creation of National Environmental Laboratories, along the lines suggested by S. 1113. Such laboratories could clearly serve as a much needed independent source or referee with respect to the technical and scientific data on which the Administrator must base many of his decisions.

WATER POLLUTION CONTROL FEDERATION

Hon. EDMUND MUSKIE,

WATER POLLUTION CONTROL FEDERATION,
Washington, D.C., July 30, 1971.

Chairman, Subcommittee on Air and Water Pollution, Committee on Public Works, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: The Federation appreciates very much the opportunity to review and submit comments on the working paper prepared by the Public Works Committee staff "Proposed Amendments to the Federal Water Pollution Control Act." The comprehensiveness of the proposal is impressive. It contains changes which clarify the intent of the 1965 Act as amended as well as simplify and coordinate the Act's content to facilitate implementation. However, the proposal, in our view, essentially would change the fundamental national policy for the prevention, control and abatement of water pollution, i.e. that it is the policy of Congress "to recognize, preserve and protect the primary responsibilities and rights of the states in preventing and controlling water pollution." While the staff print proposes to retain the statement attesting to his policy under Title I Section 101 (b) of the proposal there are key sections of the proposal wherein the status of the state agency is reduced to that of a "cooperating” agency. For example, it is proposed that comprehensive programs (Section 102) for water pollution control be prepared by the Administrator in cooperation with the states for eliminating or reducing the pollution of interstate and intrastate waters and ground waters. We interpret this to mean all the waters of the Nation Section 209g Title II concerning Regional Water Treatment Management essentially reduces the state agency to the status of a branch or field office of EPA.

As we interpret this section the Administrator decides what regionalization configurations in any state or combination of states is desirable and the Governor is given a period of time to agree. If he does, certain benefits accrue, such as being eligible for grants. If he does not agree "the troops" will be called in to design, construct, operate and maintain the plant. Among the items not clear is the timetable and just how the funds are provided, what agency administers local sewer ordinances, what happens to a municipal discharge that is “prohibited” but continues to flow, how it is determined which municipalities within the basin must agree or may not agree to be a part of the district and as an alternative provide a community plant. The Federation submits that the punitive concept of Section 102 be reevaluated.

Section 301 (a) Water Quality Information (Title III) asserts "each state shall have the primary responsibility for assuring water quality within its geographic area and Section 301 (b) assures public participation and state participa tion in development and revision and enforcement of water quality standards. The Administrator is given 90 days after the effective date of the subsection to develop and publish after consultation with Federal and State agencies and other interested persons' criteria of water quality for the purpose of adopting or revising water quality standards and publishing same in the Federal Register. The 1963 edition of "Water Quality Criteria” prepared with the assistance of the Federal program and the State of California is a public document with more than 500 pages. Why is it necessary to publish this or its equivalent in the Federal Register? It is further proposed to publish in the Federal Register information on pollution control techniques, processes, procedures, and operating methods. including technical data.

Since notices and rulemakings primarily make up the Register content we wonder about the motivation. Is this considered necessary to make information available to the public? The Federation in cooperation with the American Society of Civil Engineers publishes manuals of practice on sewer design and construction, and sewage treatment design. These manuals are and have been available to the public at minimal cost. We strongly question the need for the proposed action and submit that general enabling language mandating the Administrator to assure adequate information availability to all concerned is the appropriate course.