other sources of pollution, calls merely for "attainment." is it correct to interpret Sentence (ii) as calling for a more rapid timetable than Sentence (i)? If not, why is there a difference in language?

Answer. These provisions require, respectively, that a plan of implementation and enforcement provide, in the case of industrial and municipal discharges, a phased schedule for the attainment of compliance with effluent limitations a expeditiously as practicable, and, in the case of sources other than industrial an municipal discharges, the attainment of effluent limitations as expeditiously a practicable. The difference in the two requirements does not indicate a lack o concern about pollution from sources other than industries and municipalitie or a willingness to delay compliance with effluent limitations applicable to suc sources. The difference in the requirements recognizes that it is more complex t apply controls to scurces such as sedimentation and erosion, agricultural waste or mine drainage than to so-called point sources. Far less work has been done date to control water pollution from non-point sources. It did not seem realist to require that the implementation and enforcement plan include interim dat for non-point sources. For industries and municipalities these interim dates ge erally relate to construction schedules. (For purposes of these provisions, municip discharges covers effiuent from storm and combined sewers, noted under "oth sources" in response to Question 5.)

Question 8. On page 13, line 13, there is reference to the "practicability of co pliance." What factors will you take into account in determining “practicability" Answer. The phrase, "taking into account the practicability of complianc appears in S. 1014 in the provisions relating to administrative orders, administ tive penalties, and citizen suits. In each instance, the intent is "Can it be don In a broad sense the term was included to allow some flexibility in the time fra for compliance with the administrative order. Construction delays beyond control of the discharger would be an example of circumstance bearing on practicability of compliance.

Question 9. Section 10(f) (5) permits the Administrator to levy a civil penalty n exceed $25,000 per day for violation against a polluter. Is it correct to say in rea this subsection that no penalty would be assessed if the Administrator determ compliance is not practicable? Could you also describe what you would consider a "good faith effort"?

Answer. This provision authorizes the Administrator to assess a penalty, to compromise the penalty after he has considered "the nature, circumsta and extent of such violation, the practicability of compliance with such stand and any good faith efforts to comply with such order." This does not assure there would in no case be a penalty if the Administrator found that compl with the order was not practicable. This is discretionary authority, simil that found in Section 11 of the Federal Water Pollution Control Act with re to civil penalties for the discharge of oil in harmful quantities and for violati regulations governing oil removal and related matters.

In general response to the last part of the question, a good faith effort to co with an order would be the prompt commitment of the necessary resour achieve the remedial action for which the order calls. An individual judgm to a discharger's good faith would necessarily have to be made in each case Question 10. Subsection 10(f)(7) permits the Administrator to request the A General to commence a civil action seeking a permanent injunction against a p How does this procedure mesh with the procedure under Section 10(f) (1-6); S. 1014 permit the Administrator to seek an injunction and $25,000 a day pen court at the same time the Administrator is administratively seeking a $25,000 penalty under Section 10(f)(1−6)?

Answer. The authority to request the Attorney General to commence action for a permanent or temporary injunction, a court order compellin mony or the production of records, or other appropriate relief would be an e ment procedure available to the Administrator for use at his discretion alternative to the administrative enforcement procedure. Generally, we expect to reserve the court actions to cases of flagrant violations of water standards, refusal to obey a subpoena, or violations of effluent limitation cable to hazardous materials. Experience would dictate the extent to wh judicial route would be taken in preference to the administrative route.

Question 11. Present law enables a Governor to request an enforcement conference to handle pollution originating in another State. It is mandatory that the Administrator initiate such enforcement proceedings if requested by the Governor. Section 10 g) of S. 1014 appears to parallel the enforcement conference procedure. Yet, the Administrator, on page 18, line 10, has discretion over whether to call a public hearing and initiate enforcement procedures. What is your view on making the calling of a public hearing mandatory upon notification by the Governor?

Answer. S. 1014 provides that the Administrator may call a public hearing on the basis of any information available to him, or at the request of a Governor, to consider water quality standards violations, pollution which endangers the health or welfare of persons, or other matters. The authority to call a hearing at a Governor's request is discretionary instead of mandatory under the proposal in order to give the Administrator some measure of control over the use nationwide of the Federal-State panel. The Administrator would give great weight to a Governor's request for a public hearing and would call the hearing unless he had a strong reason to the contrary.

Question 12. Would you explain how subsection 10(g) limits the authority the Administrator has in other Subsections of Section 10, and why Section 10(g)(7) is therefore necessary?

Answer. The provision in question states that notwithstanding any other provisions of subsection 10(g), the authority of the Administrator pursuant to. other subsections of Section 10 is not affected. It is the intent that proposed subsection (g) would not limit the Administrator's authority to issue notices of vioistion or administrative orders, to request the Attorney General to commence a civil action, or to act under other authorities of the Section. The provision in question makes that intent unmistakable.

Question 13. Section 10(1), beginning on page 28, line 5, requires the Administrator to publish a list of hazardous materials. Would you give us some idea of what types of materials might be included in such a list, and the length of such a list?

Answer. Many elements or compounds possess a high potential for presenting an mminent and substantial danger to the public health or welfare when discharged to the aquatic environment. This potential for danger exists:

(a) because of their nondegradable or persistent nature,

(b) because they can be biologically magnified,

(c) because they can be immediately lethal, or

d) because they otherwise cause or tend to cause detrimental cumulative effects.

Elements or compounds which possess this potential for danger are considered to be hazardous substances. The hazardous substances might include:

a) The following elements in their elemental form or as ions, compounds, or . any combination or mixture including, but not limited to, alloys, ores or other erally identifiable forms: antimony, arsenic, beryllium, boron, cadmium, copper, chromium, lead, mercury, nickel, selenium, silver, thallium, zinc, and her elements with similar properties and effects.

5 Any element identified in subsection (a) shows which may exist in the anionic form and other elemental combinations that may exist in the toxic fluorides, £orosilicates, phosphides, and other toxic anions, with similar properties and

Various poisons including extremely dangerous poisons such as cyanogen and phosgene; less dangerous poisons such as acetone cyanohydrin and sodium arsenite; tear gases or irritating substances such as bromobenzyl cyanide and Poroacetophenone and other such poisons with similar properties and effects.

The radioactive materials such as uranium 233 and iodine 129 and other radioactive materials and mixtures with equally dangerous properties and effects.

The poisons registered as economic poisons in accordance with the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 USC 135 et seq.) including DDT, aldrin, chlordane, endrin and other such poisons with similar properties and effects.

As is evident, this is quite an extensive list of substances. For the overwhelming onts of elements or compounds that might be included as hazardous substances of the shove list, there is generally insufficient verified information and data on The environmental fate and effect of these substances to permit the establishment of deinitive effluent limitations other than total prohibition. Uniform national procubitions and effluent limitations of such hazardous substances are required

because discharges of such hazardous substances cause ecological consequences of nationwide, if not worldwide effect, which local and State governments cannot adequately consider.

Question 14. Section 10(1) (2) states that the Administrator shall publish such a list of hazardous materials, evaluate comments on the list, and then, within eleven months after enactment, "promulgate final limitations" on such hazardous discharges. Would such limitations become effective immediately, or would the effective date be set at the discretion of the Administrator? If such discretion exists, how could you evaluate requirement that limitations be met in a maximum of one year?

Answer. Any effluent limitations or prohibitions for hazardous substances promulgated by the Administrator under Section 10(1) (2) would become effective immediately on the date of final promulgation. We do not favor a statutorily prescribed maximum compliance time of one year. In many cases compliance with such limitations can be achieved earlier than one year. However, in other cases longer period may be reasonably required. We believe the EPA should have the necessary administrative flexibility to tailor compliance to the needs of th situation.

Question 15. Section 10(1) (4) permits, for national security purposes, periodi and continuing exemptions over limitations of hazardous material discharges. Who types of substances and plants are likely to require such exemptions? Should th agencies be required to consult with the Administrator in requests for such exemptions Answer. The Federal facilities involved might include arsenals and vesse and the substances might range from defoliants to radioactive materials. Execu tive Order 11507 dated February 4, 1970, requires all Federal agencies to confor with air and water quality standards. Section 4(c) of that Order provides: "The heads of agencies, in consultation with the respective Secretary, ma from time to time identify facilities or uses thereof which are exempt includin temporary relief, from provisions of this order in the interest of. interest or in extraordinary cases where it is in the national interest. Such exem tions shall be reviewed periodically by the respective Secretary and the heads the agencies concerned. A report on exemptions granted shall be submitted the Council on Environmental Quality periodically."

nation

In this case the "respective Secretary" is the Administrator, EPA, and th provision of EO 11507 would govern exemptions from hazardous substan effluent limitations. The Administrator would review requests for such exemptio and make recommendations to the President. Such exemptions would be warrant only in critical situations where the danger to the public health or welfare fro not granting an exemption would be greater than if the exemption were grante

QUESTIONS AND ANSWERS ON SEWAGE FROM VESSELS

Question 1. It has been suggested to me that_some_confusion exists over the p emption clause in the Federal Water Pollution Control Act covering devices that ir sewage from vessels. Specifically, I am told that the Environmental Protection Ager has taken the position that no Federal pre-emption exists until five years after prom gation of standards for existing vessels, or two years for new vessels. Thus, the owner a used vessel that equips hi boats with a certified device is not free of various St restrictions until the five-year period has elapsed. Is this a correct interpretation the EPA's position?

Answer. Those standards are now being prepared within EPA by a task fo which is working in close consultation with the Coast Guard and other Depa ments and agencies.

Question 2. If so, it appears to me that this could prove to discourage boat ow from equipping their vessels with adequate treatment devices, until immediately be the five-year deadline. Would you be kind enough to suggest clarifying languag give boat owners a freedom from State restrictions if their vessel is equipped wi device that meets the Federal standard?

Answer. Federal preemption could be achieved with respect to vessels that in compliance with initial standards and regulations on the date when first mulgated by the insertion of language such as the following:

After the promulgation of the initial standards and regulations, no Stat political subdivision thereof shall enforce a statute or regulation of such Stat political subdivision with respect to the design, manufacture, or installation or of any marine sanitation device on any vessel which was and continues to b compliance with such initial standards and regulations.

Question 3. It has been suggested to me that some confusion exists over the preemption clause in the Federal Water Pollution Control Act covering devices that treat wwage from vessels. Specifically, I am told that the Environmental Protection Agency kas taken the position that no Federal pre-emption exists until five years after promulon of standards for existing vessls, or two years for new vessels. Thus, the owner ased vessel that equips his boat with a certified device is not free of various State cons until the five-year period has elapsed. Is this a correct interpretation of the EPA's position. I

Answer. Those standards are now being prepared within EPA by a task force which is working in close consultation with the Coast Guard and other Departats and agencies.

Qarsion 4. If so, it appears to me that this could prove to discourage boat owners equipping their vessels with adequate treatment devices, until immediately before -year deadline. Would you be kind enough to suggest clarifying language to boat owners a freedom from State restrictions if their vessel is equipped with a nice that meets the Federal standard?

Answer. Federal preemption could be achieved with respect to vessels that are a compliance with initial standards and regulations on the date when first proigated by the insertion of language such as the following:

After the promulgation of the initial standards and regulations, no State or tical subdivision thereof shall enforce a statute or regulation of such State or iral subdivision with respect to the design, manufacture, or installation or of any marine sanitation device on any vessel which was and continues to be E compliance with such initial standards and regulations.

QUESTIONS AND ANSWERS ON "MARINE PROTECTION ACT OF 1971" Question 1. Would a permit be necessary if a State agency wished to place some L'u halks and discarded tires into the sea in order to enhance fishing?

Answer. Yes, the State agency would be required to obtain a permit. State cies are included in the definition of "person" [section 3(e)] to which the rait requirements apply. It is not intended that the auto hulks and discarded res would be exempted by the second proviso under section 3(f).

Question 2. There is a proposal to construct an outfall from the New Jersey coast ng wastes possibly 100 miles offshore for deposit beyond the Continental Shelf. Would the Administration's ocean dumping bill regulate such an outfall? Or would matruction of such an outfall require a Corps of Engineers permit? How would such outfall be regulated?

Answer. The bill would not regulate such an outfall, since "disposition of any ent from any outfall structure" is excluded from the definition of "dumping" than the coverage of the bill [section 3(f)]. However, construction of such an all would require a Corps of Engineers permit under section 10 of the River Harbor Act of 1899 (33 U.S.C. 403). Furthermore, under an Administration posal to amend section 10 of the Federal Water Pollution Control Act (S. 1014), The Administrator of EPA would be authorized to establish water quality standards the contiguous zone (with respect to discharges likely to cause pollution of the tentorial sea) and for the high seas beyond the contiguous zone (with respect to charges transported from or originating within the United States). Discharges ocean outfalls such as the one described in the question would be required to ply with water quality standards established by the Administrator for the

-za seas.

Question 3. Section 5 (h) of the Marine Protection Act of 1971 provides an exception fe emergency dumping to safeguard human life. Dumping of this nature, for example, ginole discharge of cargo from a ship that may be sinking. What other examples rach an emergency do you foresee?

Answer. Section 5(h) applies to "transportation for dumping" as well as to draping" in an emergency to safeguard human life. Discharge of cargo from a Exing ship is an example of the latter. It is more difficult to cite examples of the er. However, there may be cases in which some material needs to be disposed mediately in order to safeguard human life and in which an informed judgt indicates that there is either insufficient time or insufficient means to effect as acceptable land-based disposal.

Question. 4a. Could you please discuss the extent of the environmental damage cause by ocean dumping to date?

Answer. In its report to the President entitled "Ocean Dumping-A Nationa Policy", dated October, 1970*, the Council on Environmental Quality state (page 18):

"Knowledge of ocean pollution is rudimentary, and generally it has no been possible to separate the effects of ocean dumping from the broader issu of ocean pollution. Yet one general conclusion is apparent: There is reaso for significant concern. Dealing with ocean pollution requires that all sourc be greatly reduced. If no action is taken and ocean dumping continues increase, the longterm damage to the marine environment will be great Thus, it is apparent that ocean dumping is only one source of ocean pollution, an that all sources must be brought under control if the problem of ocean polluti is to be solved.

Speaking generally of ocean pollution, the Council on Environmental Quali has concluded (page 12 of the Report):

"Marine pollution has seriously damaged the environment and endanger humans in some areas. Shellfish have been found to contain hepatitis, po virus, and other pathogens; pollution has closed at least one-fifth of the tion's commercial shellfish beds; beaches and bays have been closed to swi ming and other recreational use; lifeless zones have been created in marine environment; there have been heavy kills of fish and other organis and identifiable portions of the marine ecosystem have been profoun changed."

Specifically with reference to ocean dumping, the Council stated (page 11 of Report):

"The data indicate that the volume of wastes dumped in the ocea increasing rapidly. Many are harmful or toxic to human life, hazardou human health, and esthetically unattractive. In all likelihood, the volum ocean-dumped wastes will increase greatly due to decreasing capacity existing disposal facilities, lack of nearby land sites, higher costs, and poli problems in acquiring new sites."

Question 4b. Would you object to legislation that would bar completely ocean disp of wastes?

Answer. Yes. Such legislation would be appropriate only if it were based or conclusion that there will in every instance be some alternative to ocean dum of wastes which will be less damaging to human health and welfare and the env ment than ocean dumping. Based on our present level of knowledge abou environmental effects of ocean dumping and alternative disposal methods, s conclusion would not be warranted.

Question 4c. Would you object to an amendment to the Administration bill req that disposal areas be established only beyond the Continental Shelf?

Answer. Yes. Some communities and industries presently disposing of v at sea, but landward of the outer limits of the Continental Shelf, may lac equipment and resources to comply with such a requirement. We believe it be preferable to allow them to continue near-shore dumping on an interim pending development of a capability for land-based disposal. Economic res would be channeled into development of such capability rather than into ment for deep ocean dumping.

To the extent that a ban on dumping over the Continental Shelf is desira can be accomplished for all practical purposes within the framework Administration's proposal. Practically all materials dumped into water our Continental Shelf are transported from United States territory-an a over which EPA would have complete control, regardless of the place of in dumping.

Furthermore, there would be no apparent justification for a requireme certain materials for which dumping permits would be granted, parti inert, nontoxic materials such as unpolluted dredge spoil, be barged beyo outer limits of the Continental Shelf. The main requirement in such cases be to insure that dumping is not allowed in particularly sensitive or pro areas such as breeding or spawning grounds.

1 Ocean Dumping-A National Policy, a report to the President prepared by the on Environmental Quality, October 1970. Available from Superintendent of Do U.S. Government Printing Office, Washington, D.C. 20402. 55 cents.