(8) The Administrator should be specifically forbidden from approving State standards that do not conform with the Federal minimums. No further degradation of water quality should be allowed as Federal policy.

(9) Both bills discussed the use of the best available technology on new sources of industrial wastes and S. 523 provides for closed cycle treatment when that is available; the final bill should require this use and include provisions whereby new manufacturing processes and additions to present plants fall under these same strict regulations.

(10) Both bills consider hazardous substances, their definition and their limits of discharge. The Administrator should also be empowered to issue 72-hour abatement orders to violators, and levy stiff fines.

(11) Review by the courts should not be de novo, that is, they should not be empowered to introduce new evidence into the proceedings. Determination of violation of water quality standards is an extremely technical decision which many of our courts do not and should not maintain the expertise to judge. Although S. 523 seems to deal adequately with this question, S. 1014 requires the court to consider the practicability of compliance which would seem to allow the introduction of a whole new dimension to the prosecution of violations.

(12) To insure the future upgrading of water quality standards the mandatory review of such standards should be required as in S. 523.

I would also like to comment for a moment on the relationship between the pending water quality legislation and the Refuse Act of 1899 and the newly announced permit program. Final regulations are to be announced and promulgated very soon.

It is our firm conviction that any legislation designed to deal with water pollution must be at least as good as that embodied in the 1899 Refuse Act. Legislation which restricts the role of the Administrator or restricts enforcement procedures is no substitute for this act. We would prefer to see no legislation if that is the alternative.

Neither the Muskie bill nor the administration version can really claim improvement upon the 1899 law. It is vital that the final legislation reflect a determination to build upon this solid base for the establishment and enforcement of effluent standards for all industrial facilities. It is our feeling that the administration already has the authority to regulate discharges in all navigable waters.

The administration has failed to go as far as the law allows in instituting the permit program and this indicates that they will refuse to adequately regulate discharges until they receive what they consider to be legislative authority to do so. That is fine and good, but what if this authority is not available for some time? Passing tough water quality legislation is no easy business.

We feel that it is incumbent upon the administration to enforce the law, now. However, since they are being so hesitant it behooves this subcommittee to move quickly in passing adequate and tough legislation.

Thank you.

Senator EAGLETON. Thank you very much, Miss Reid.

I think we will hear from all of the panelists and then question them.

Miss REID. Carl Pope from Zero Population Growth.

STATEMENT OF CARL POPE, WASHINGTON REPRESENTATIVE, ZERO POPULATION GROWTH

Mr. POPE. Good morning, Senator.

I am Carl Pope, Washington representative and political director of Zero Population Growth, Inc.

The 30,000 members of ZPG are concerned about the short-term environmental problems created by inadequate regulation, as well as the long-term effects of unchecked population growth. It is for this reason that we participated last Congress in the Plan for Clean Air, and are currently members of the Coalition Against the SST and the Highway Action Coalition.

I would like to comment briefly on your first comment regarding drinking water as a manufactured product.

Senator EAGLETON. That wasn't my statement.

Mr. POPE. I realize that, Senator.

If it is a manufactured product, I think I and many other Americans are dissatisfied with the quality control involved and I also think that is a very misleading statement.

By far, the overwhelming part of clean water for Americans is still being handled by natural ecological systems. We recently discovered this in Montgomery County, Md., in this area, when the water began to taste bad. It turned out that because the soil was frozen, the water running over agricultural areas was not being filtered. Chemical fertilizer was entering the water supply, which we were assured was safe but was not drinkable.

One of the central questions in the development of water pollution legislation is the role assigned to the discretion of the Administrator. It is possible to design legislation which is extremely specific in spelling out not only congressional intent, but also the specific procedures which the Administrator is to follow, the date by which he is to complete them, and the results he is to achieve.

An example of such legislation would be the Senate version of last year's air pollution legislation, which required the Administrator to follow carefully defined procedures and standards, in the case of automotive emissions going so far as to set a specific target level and date. The check on the Administrator's diligence in carrying out these requirements was the provision for citizens' suits.

At the other end of a spectrum, we have our most effective current piece of water pollution legislation-the Refuse Act of 1899. Here we have no specific procedures, but a broad delegation of authority over dumping and effluents.

I would like to repeat an earlier comment of our panel: Legislation which in whole or in part is inferior to or less effective than the Refuse Act is simply not acceptable. We cannot move backward merely because to date the Government has failed to enforce existing legislation. These hearings and this legislation would, in our judgment, be unnecessary if the administration would adopt a permit program with teeth.

But the very fact that the Refuse Act already exists, and is not enforced, presents a strong pragmatic case that any new legislation should be of the first type, legislation which creates a highly structured and carefully controlled procedure without loopholes to insure an end to water pollution.

At first glance, both S. 523 and the administration bill appear to be this kind of legislation. Both have superficial resemblances to the air pollution bill. They provide length and complicated procedures in which the Administrator sets uniform criteria, waits for the States to adopt standards and implementation plans, and waits to see if they enforce them.

Thus, polluters are provided with several layers of insulation against rapid and effective attempts to abate pollution. An activist Administrator would be seriously handicapped by these procedures, and would find the Refuse Act a far more effective tool.

But both bills fail to provide what the air bill provided in the way of protection for the public against a weak Administrator. There is, careful examination makes clear, no way in which either the public or the Congress can compel an Administrator to achieve any particular degree of abatement by any particular date.

First, and this is a very crucial point, neither bill provides a specific date by which water quality standards are to be achieved. Apparently more of the present delay and foot dragging is to be tolerated.

Second, both bills purport to contain provisions for citizens' suits, but both hedge this power by limiting it to areas of mandatory action by the Administrator. (The administration bill limits it still further by providing that a number of "mitigating" factors be considered, including something called "feasibility of compliance" which apparently means that polluters who delay so long that they cannot meet deadlines are immune from suit. The administration bill also provide that the invocation of any one of its ineffective enforcement procedures suspends the right to suit.)

But neither bill requires the Secretary as a matter of duty to enforce water quality standards. In fact, it is fair to say that an Administrator who failed in any of the handful of duties which are mandatory under the administration bill should not be subjected to a civil suit for enforcement but should be forced to resign. The administration bill permits the Administrator to do any of the following things:

(e) (2) (A): Permit a State to promulgate standards inconsistent with the requirements of the act.

(f) (1) Fail to issue a compliance order when a State fails to act upon notification of a violation.

(f) (3) Decline to require from polluters information on the nature and amounts of discharges from facilities subject to orders under the

act.

(f) (5) Compromise, presumably down to zero, any and all civil penalties levied for violation or refusal to comply.

(g) (5) Conceal from the public parts of hearing records relating to pollution.

(g) (6) Leave in effect State standards for waters in which the standards are endangering the health and welfare of persons.

(j) Permit a situation which presents a substantial and imminent danger to the health or welfare of persons to continue.

It is very difficult to see in all this any improvement upon the Refuse Act. The Administrator is free at any number of points not to act, or to take ineffective action; yet, such ineffective action may be sufficient even to block citizen suits against the violator, himself.

Turning to S. 523, we find a far more closely defined procedure. It is not clear from the language whether or not the Administrator is permitted to approve State standards which do not conform to published criteria. If he is, this would be a major loophole at what tends to be a rather invisible stage of the proceedings.

Worse, however, after requiring that the Administrator follow a complicated, lengthy, and expensive procedure designed to establish water quality standards and implementation plans, the enforcement of all this elaborate machinery remains optional. The Administrator may enforce, which means he may choose not to enforce-which means that citizens cannot sue him to compel enforcement.

Once again we find a loophole which leaves the legislation with the weaknesses of the Refuse Act but without its strengths.

We would like to comment briefly on the double enforcement procedures provided in the administration bill. Oddly, we have two awkward and ineffective procedures instead of one effective one. The administrative procedure has a minimum of 75 days of delay built in, plus the delays involved in scheduling and conducting both a hearing and a judicial review. The judicial procedure for enforcement depends on the willingness of the Attorney General to bring suit. S. 523 is far preferable in this regard.

We would also like to raise several questions about the standards for

new sources.

S. 523 would appear very strict in its definition of maximum feasible technology; yet, just this week I understand that the current Administrator expressed his view that this phrase should be interpreted to mean secondary treatment only. We think the committee report should deal with this topic.

We also feel the definition of "new sources" should be extended to include the introduction of new production processes, methods or materials within existing facilities, or the replacement of production facilities within existing buildings. Only in this way we insure that plants are renovated according to the latest available technology. Senator EAGLETON. Thank you, Mr. Pope.

We will hear from our next panelist, Mr. Alderson.

STATEMENT OF GEORGE ALDERSON, LEGISLATIVE DIRECTOR, FRIENDS OF THE EARTH

Mr. ALDERSON. Thank you, Mr. Chairman.

I am George Alderson, Legislative Director of Friends of the Earth, with offices at 917 15th St. NW.

I appreciate this opportunity to testify on water quality legislation. My comments will be directed to three particular aspects of the bills now before the subcommittee.

A basic principle of both S. 523 and the administration bill is that you don't try to stop pollution until the damage is already being done. Substances could only be controlled under these bills when their specific harmful effects had been proven.

If the body of scientific knowledge completely covered all the substances that could be discharged into streams, that would be all right. However, the status of knowledge on effects of the myriad pollutants is incomplete and inadequate.

While scientists go about their work, researching existing pollution problems, industries are spending major sums to invent new ones. By the time the new pollutants are studied and found harmful, they are likely to have grown into major problems.

Something like this happened in the last few years with mercury and phosphates.

Instead of nipping these problems in the bud, we would be allowing them to get out of control.

By way of analogy, this concept would allow a fleet of SST's to get into production simply because we will not, in the next 3 to 10 years, be able to prove that SST emissions would decrease the ozone in the stratosphere-even though the evidence points strongly in that direc

tion.

These bills would let polluters go on dumping everything that was not proved harmful to the designated uses of the river. For example, a river could euphemistically be designated for industrial uses, and then even if a given pollutant were clearly repugnant to the public, perhaps some evil-smelling substance, it could conceivably be permitted because it could not be shown to interfere with industrial use of that river. This is a policy for dirty water, not clean water. This can be remedied in two ways:

(1) By changing the approach to water quality objectives and designated uses; and

(2) By changing the approach to water quality criteria.

Instead of leaving it up to the Administrator to choose among the potential uses-water supply, fish and wildlife, recreation, agriculture and industry-the Congress should establish a higher goal.

The objective of water quality standards in all cases should be the level required for recreation and fish and wildlife uses. If lower standards are to be set, the State and Federal agencies should be required to make specific findings of fact that fish and wildlife and recreational standards would not serve the public interest. These findings should be subject to review in the courts.

The setting of water quality criteria likewise should be firmly linked to an objective that has some relationship to what people consider clean water. Instead of letting everything be dumped in that has not been identified as harmful to health and welfare, only those substances that have been shown by a preponderance of evidence to be harmless should be permitted. Although this goal will not be attained overnight, we can begin moving toward it now in this legislation.

Furthermore, the effects of a substance should be considered not just in relation to human health and welfare, but with respect to general environmental values. Many aquatic organisms essential to living waters are more sensitive to pollutants than human beings are; failure to require that these effects be considered would seriously undermine the purposes of the law.

In addition to setting these goals for real, clean water, emergency provisions should be included to halt pollution by the so-called hazardous substances. Actually, the terminology here is a bit misleading, because it implies that there is something worse about dumping mercury than about dumping the other, less exotic substances that are degrading our water everywhere. I don't know whether I'd rather eat a mercury-contaminated fish or go swimming in the Potomac.