suspect further that if the Corps were not involved the permit program would be much more acceptable to conservationists. Many of us remain healthily skeptical about the Corps devotion to preservation of environmental quality, particularly at the level of the District Engineers.

The Administration's permit program should be regarded as an interim arrangement, useful because the legislative tools are at hand to begin a massive job that needs to be done, but not a long-term substitute for vesting one federal agency with authority both to establish federal water quality standards for all navigable waters and to enforce them. Certainly the program proposed is preferable to random prosecutions and civil suits under the Refuse Act, even on an interim basis, and the wastes inventory the program will provide is badly needed for any long-term approach to the problem of industrial water pollution.

With this in mind, I shall turn to four particular comments on the proposed program.

First, one essential element in the permit program still is missing-Justice Department guidelines for federal enforcement in the courts. These guidelines should be made available to the public before final judgment is rendered. I understand that drafts are circulating, but we have not seen them. These guidelines must, at a minimum, provide for criminal or civil enforcement of the Refuse Act during the period when administrative or judicial proceedings are pending with respect to an application. In addition, they must provide for action against any discharge in violation of permit conditions, without prior revocation or suspension of the permit under section 21(b) of the Federal Water Pollution Control Act and without deference to any state or other federal water quality enforcement authority.

Second, the Refuse Act regulation's provisions for public participation in processing applications could be strengthened. Paragraph (k) (1) provides for a public hearing "whenever, in the opinion of the District Engineer such a public hearing is advisable." We do not suggest that public hearings should be held for every application, particularly when there has been a prior hearing at the state or local level. But we can see no reasonable objection to substituting for the broad language now in paragraph (k) (1) the following language from the regulations concerning applications for Corps permits under other provisions of the Rivers and Harbors Act of 1899 (33 C.F.R. § 209.120(g) (1): "whenever there appears to be sufficient public interest to justify such action. In cases of doubt, a public hearing will be held." Surely public interest in an application is an appropriate standard for the District Engineer's decision.

Moreover, the regulation may be strengthened by alerting the public earlier to pending applications. Paragraph (i) (5) contemplates compilation by the District Engineer of a list of “interested persons," including conservation organizations, to whom public notices of permit applications filed with the Corps are to be sent. We suggest that this provision be expanded to require such notice when an application that subsequently will be submitted to the District Engineer is submitted to a state agency for certification under section 21(b) of the Federal Water Pollution Control Act. This earlier notice would enable interested persons to make objections known to the state agency, thereby avoiding many requests for public hearings at the federal level to present "significant new information." Third, the role of the Fish and Wildlife Service under the Refuse Act regulatoin should be clarified. Paragraph (d) (2) of the regulataion states that the Fish and Wildlife Coordination Act is applicable "where the discharge for which a permit is sought impounds, diverts, deepens the channel, or otherwise controls or similarly modifies the stream or body of water into which the discharge is made." (Emphasis added) The applicable provision of the Fish and Wildlife Coordination Act provides, however, that it is applicable "whenever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage...." (16 U.S.C. § 662(a))

We fear that the regulation may be interpreted to restrict the Act's application to cases where the discharge will alter the physical character of land on the bed of, or adjacent to, the stream or body of water (for example, where discharge of cement alters the character of the river bottom). We believe the Fish and Wildlife Service should be consulted about injury resulting from most modifications in water quality.

Fourth, the role of the Environmental Protection Agency ("EPA") in reviewing state certifications made under section 21(b) of the Federal Water Pollution Control Act ("FWPCA") must be clarified. The problems presented dramatically 59-068 0-71-pt. 2- -7

illustrate the difficulty of using the tools offered by existing legislation. In our view, these problems collectively will be the most formidable obstacle to the longterm success of the proposed permit program.

Section 21(b) of FWPCA, covers "any activity. which may result in any discharge into the navigable waters of the United States." The section requires each applicant for a federal license or permit to conduct such an activity to provide state certification "that there is reasonable assurance, as determined by the state. . . that such activity will be conducted in a manner which will not violate applicable water quality standards." The Refuse Act regulation will require state certification under section 21(b) of FWPCA for each discharge or deposit. Under section 21(c) of FWPCA, EPA is given responsibility to provide relevant information to the state certifying agencies and to the Corps on applicable water quality standards, and to comment on any method to comply with such standards. EPA proposes to carry out this responsibility, with respect to the permit program, by issuing guidelines on its interpretations of most states' requirements that industrial discharges receive "secondary or equivalent treatment." EPA will issue guidelines for the treatment of effluents from twenty-two different types of industries.

Administration spokesmen have stated publicly that EPA will review state certifications under section 21(b) only with respect to navigable interstate waters. Where navigable intrastate waters are involved, EPA's review will be limited to "filling in gaps" in the state standards and "checking the facts." Administration spokesmen have also said that EPA's role in revising state certifications cannot be defined precisely "in advance." EPA apparently will not issue regulations prescribing its reviewing role.

We believe that EPA's role in reviewing certifications under section 21(b) of FWPCA must be more precisely defined. First, there is no justification for limiting this review to certifications concerning navigable interstate waters. The Refuse Act and section 21(b) of FWPCA apply to all navigable waters, both interstate and intrastate. Second, if EPA in effect rubber-stamps state certifications under section 21(b) of FWPCA, little progress will be gained under the permit program. Many state certifying agencies are ill-equipped to consider applications thoroughly, and some are notoriously subject to industry pressures. Moreover, in the absence of EPA guidelines for effluent standards, the personnel in the state agencies may simply not be able to decide that there is "reasonable assurance" that a discharge or deposit "will not violate applicable water quality standards."

At this point, we have no firm understanding of EPA's role in reviewing state certifications beyond assurances of its good intentions. We seriously question whether these are enough. EPA should in each case determine whether the state agency correctly applied its water quality standards in making the certification. Further, EPA should insist as a general rule that each applicant's effluent will receive secondary treatment or its equivalent and that EPA will adhere to the policy of nondegradation. These standards could be prescribed by regulation; at a minimum we must have public commitments from EPA that they will be observed.

As I indicated at the outset, the problems which arise in defining EPA's role in reviewing state certifications under section 21(b) of FWPCA should be solved by legislation providing for federal water quality standards. For the short term, however, the Administration's permit program appears preferable to hit-or-miss random actions in court under the Refuse Act.

We are grateful to the Committee for this opportunity to contribute to public discussion of the Refuse Act permit program.

Senator EAGLETON. Mr. Clapper, we thank you for your fine contribution to these hearings, and I am sure that you will be willing to cooperate with any or all of the committee who may wish to submit further questions to you for your consideration.

Mr. CLAPPER. We, of course, will be most happy to cooperate with you in any way, Mr. Chairman.

1 See, e.g., Remarks on Timothy Atkeson, General Counsel, CEQ, to ALI-ABA Seminar on Environmental Law, January 28, 1971, p. 14.

2 Remarks of John Quarles, General Counsel, EPA, at Conservation Foundation seminar on the permit program, February 3. 1971.

Senator EAGLETON. Previous witnesses at these hearings, not all of them, to be sure, but some have made this suggestion that, in addition to the general funding of ongoing water treatment programs, whether it be $2 billion a year or a years, or $22 billion over 5 years, that a fund be set up, a crisis fund, earmarked for in-depth, sort of an A to Z massive approach on one, two, three-limited number of target area problems.

Someone suggested Lake Erie, or other well-known areas of aggravated pollution, where by a crash program we could see what might be done serving, it's alleged, one or more useful purposes. A, giving some demonstrable evidence to the citizenry that intensive effort might work and you can visually see how a very sordid situation can be rectified, and B, we would learn in that pilot type of intense process things to do. And we would learn some things not to dare, I daresay.

I haven't given those who proposed that theory service in my summarization of their proposal, but that is the heart of it.

Would each of you gentlemen care to comment on that as an ancillary approach? This isn't to be substituted for the ongoing program at all. This is an addendum thereto.

How does that strike you?

Mr. PANKOWSKI. I am glad you asked that question, Senator, because it relates to one of the provisions in S. 523, if I recall, relating to the fact that sewage abatement procedures and mechanisms must be tied in with overall land-use policy, and that planning has to be consistent with river basin plans and all of the other considerations that have to be accounted for when we design an abatement program either for air, water, or whatever.

I think there is need for a crash program of this type but I think it has to be more than just a technical program. If we move in this direction, I think there are tremendous potentials here.

I think what we might do is select a river basin commission, one that is actually ongoing, one which has developed good procedures, one which is involved with State and local agencies and one which has respect within the Federal Government generally and to use a river basin commission for such a pilot program to show how all of the elements of an environmental program might tie together. One comes immediately in mind but there might be others, and I think if we are to approach

Senator EAGLETON. Which one comes to your mind?

Mr. PANKOWSKI. The New England River Basin Commission.

I think it is generally regarded by friend and foe alike as being a very progressive commission and one which is making strides that are going to have to be emulated elsewhere.

I think if we approach it on a commission basis, with beefed-up staff and funding, as well as funds for experimental approaches, particularly if we beef up the communities in the States that are involved in the commissions, we would have something that is really lasting in terms of how to get at these problems.

Mr. SMITH. This is one approach that I think is appropriate in terms of our experience as well as the inherent merit.

I have certainly no objection to what Mr. Pankowski says-only some additions.

It occurs to me that there are two areas of importance. This is one of them. The other one is, I think, rather badly served by S. 1015. I think that is the worst of the measures before you. But I do feel that there is a significant problem for these municipalities whose needs may be the greatest and whose financial ability to pay for them the least and therefore they cannot qualify.

S. 523 goes to this problem to a degree.

In my judgment, we haven't gone far enough in any of the proposals that we have had before the Congress, and I think these are very serious. I know our States have different economic resources, capabilities, and geographic areas, but I think this is one problem sufficiently common to warrant an emergency fund.

I would also like to say that while the New England River Basin certainly has my approval for assuming this type of responsibility. I would not want to limit it to that because we may have more problems in other areas where we do not have that kind of capable vehicle. In the latter instances I would hope the Federal Government would develop some mechanism and I would expect it would have to be on some sort of river basin approach.

We have learned long ago that while there are political boundaries as far as States are concerned, rivers flow across them without any regard. Again, I wish to emphasize, it is almost axiomatic that in areas that are in the greatest need, there is the least technical ability and the least financial ability to implement programs of the type we are discussing.

This is why the Federal Government is projected into so many areas where there is a void. If you have a viable unit like the New England commission, this is wonderful, but I would hope it wouldn't be limited to such areas.

Mr. CLAPPER. If you are envisioning something in the neighborhood of a massive demonstration project, I think we would be for this without equivocation. We think this would be valuable to show that could be done and, like the other gentlemen who preceded me, there are many areas where it could be used as a demonstration.

The New England area certainly is one. The Houston ship channel is another. The lower Mississippi is another. The Passaic River in New Jersey would be a fine small entity that could be used.

We recently investigated that area and there are in the neighborhood of 4,000 industries which dump into that river and about half of them are totally untreated and, in fact, the State doesn't even know what is going in there from these industries.

So, there are a lot of sample areas that could be utilized on a Federal program of this kind to a great advantage.

We would heartily endorse it.

Senator EAGLETON. Thank you very much, gentlemen.

You have been helpful to us, and you will be a continuing help with your response to our written inquiries.

That concludes this morning's testimony.

This committee will reconvene at 9:30 a.m., next Monday, to continue these hearings.

(Whereupon, at 11:55 a.m., the Subcommittee on Air and Water Pollution of the Committee on Public Works, recessed, to reconvene at 9:30 a.m., Monday, March 22, 1971.)

WATER POLLUTION CONTROL LEGISLATION

MONDAY, MARCH 22, 1971

U.S. SENATE,

SUBCOMMITTEE ON AIR AND WATER POLLUTION
OF THE COMMITTEE ON PUBLIC WORKS,

Washington, D.C.

The subcommittee met at 9:30 a.m., pursuant to recess, in room 4200, New Senate Office Building, Hon. Thomas F. Eagleton (vicechairman of the subcommittee), presiding.

Present: Senator Eagleton.

Also present: Richard B. Royce, chief clerk and staff director; Barry Meyer, counsel; Bailey Guard, minority staff director; Leon G. Billings, and Richard W. Wilson, professional staff members; and Thomas C. Jorling, minority counsel.

Senator EAGLETON. Good morning, ladies and gentlemen.

The Senate Subcommittee on Air and Water Pollution of the Public Works Committee is once again in session to continue public hearings on matters relating to water pollution.

Our first witness this morning is Mr. James Rill, attorney, partner in the law firm of Collier, Shannon, Rill and Edwards.

Mr. Rill.

STATEMENT OF JAMES RILL, ATTORNEY AT LAW, COLLIER, SHANNON, RILL & EDWARDS

Mr. RILL. Senator Eagleton, my name is James Rill. I am a partner in the law firm of Collier, Shannon, Rill and Edwards.

I am pleased to appear here today at the invitation of Chairman Muskie to discuss particularly the private suit provisions of pending legislation which would amend the Federal Water Pollution Control

Act.

Accordingly, the views that I am expressing today are my own.

Before addressing myself to the particular citizen suit provisions of the bill under consideration, it may be helpful to furnish a broad overview of the administrative regulatory program embodied in both bills and the appropriateness of authorizing citizen suits at all in such a context.

The basic regulatory format of both S. 523 and S. 1014 reflect a conscious purpose to create a pervasive Federal-State administrative program to protect and enhance the quality of the Nation's waters.

Thus, S. 523 would amend section 10 of the underlying statutes to authorize the Administrator of the Environmental Protection Agency to promulgate water quality criteria and to issue information concerning recommended pollution control techniques.