Question 5. Would you explain the effect of Section 7(c) and the references to the Beam Acti Answer. Under section 7(c), permits under the River and Harbor Act of 1899, reving the Refuse Act, issued prior to the effective date of the bill, would con** in effect even though they authorize activities which would otherwise be sted by the bill. However, by virtue of section 11(e), no new permits would be issued under the Refe Act after the bill's effective date for the dumping of materials into waters vered by the bill-i.e., ocean waters, estuaries, and the Great Lakes. But the Defase Act would continue to be applicable to outfall structures discharging into rb waters which are within United States territorial jurisdiction, since such harges are not within the ocean dumping bill's definition of "dumping." The other provisions of the River and Harbor Act would continue to apply, reading the Refuse Act to the extent not superseded by the bill as indicated in preceding paragraph, and the Corps of Engineers would continue to issue permits under such provisions as heretofore. In the case of any such permit which avaives dumping-e.g., a permit for dredging-the Corps would not be allowed to sue the permit unless the Administrator of EPA has certified that the dumpng will be carried out in conformity with the provisions of the ocean dumping bill. Question 6a. What effect does Section 6(e), exempting public vessels, have on the Administrator's enforcement powers against a municipality, or a Federal agency? Answer. In the case of a municipality, the only effect of section 6(e) would be to car a proceeding against a "public vessel", or other public property of a similar esture, owned by the municipality and used in a violation, to satisfy a civil penalty or criminal fine which has been assessed or imposed against the municity. Section 6(e) would not prevent assessment of the penalty or initiation the court proceeding resulting in the fine; it would simply preclude a judicial reeding against the described property to satisfy the assessment or judgment. The assessment or judgment would be a valid obligation of the municipality and lectible by such other means as might be available. Section 6(e) has no application to Federal agencies because civil penalties and criminal fines may not be assessed or imposed against Federal agencies. This is accomplished by section 3(e), which excepts Federal agencies and employees from The definition of "person" for the purposes of section 6. Question 6b. Who would be liable to the civil penalties of $50,000 if the dumping were carried out by employees of a city or State government. Answer. In view of the fact that section 3(e) defines "person" to include emyees of a State or local agency as well as the agency itself, a proceeding to As a penalty could be instituted against either the employee or the agency. The question of who ultimately pays the penalty-the agency or its employeeuld be resolved under the local law governing the relationships between the State or local government and its employees. Question 6c. If this bill lacks authority to control and penalize dumping by an employee of government, would you please suggest language to bring that employee snit of government under the same controls and penalties established for industry? Answer. The only exception from either the control or penalty provisions is at contained in section 3(e), providing in effect that the penalty and enforcement provisions of section 6 do not apply to "any employee, agent, department, acy, or instrumentality of the Federal Government.' However, Federal employees and agencies would still be required to obtain permits for dumping, ce the exception applies only to the penalty and enforcement provisions of tion 6. The exception should be retained for Federal departments and agencies since would be undesirable, and indeed pointless, for one Federal agency to sue other Federal agency to collect a penalty. The exception for Federal employees and agents could be removed by rephrasing wetion 3(e) as follows: "(e) 'Person' means any private person or entity, any employee, agent, department, agency, or instrumentality of any State or local unit of government, or foreign government, any employee or agent of the Federal Government, and except as to the provisions of section 6, any department, agency, or instrumentality of the Federal Government." Elimination of the exception for Federal employees and agents is not recommended, however, since the Federal Government has traditionally used internal administrative controls to secure compliance by Federal employees with Federal requirements. Question. 7. Would you anticipate that the Administrator will find it necessary prohibit any ocean disposal of certain poisons and very hazardous materials, such arsenic? Answer. Yes. In testimony before a joint subcommittee of the House Co mittee on Merchant Marine and Fisheries on April 7, 1971, the Administrat stated that "dumping of some materials, such as chemical warfare materials a toxic industrial wastes, would be stopped immediately." Question 8. Do you believe creation of an ocean dumping permit fee might be help in controlling ocean pollution? Would such a fee, possibly set on a per ton or volu basis, encourage government and industry to accelerate use of alternative dispo methods? At what level would such a charge be reasonable, yet effective in lessen ocean disposal? Answer. A permit fee system would be difficult to administer because the charged presumably should vary depending on the seriousnes of the impact of dumping, yet the relative impact of the different materials dumped is difficult determine. Weight or volume would not be a satisfactory measure since a sm quantity of some materials (e.g., sewage sludge) may have a more serious imp than large quantities of other materials (e.g., unpolluted dredge spoil). When variable of dumping location is added, the fee to be charged for a particu dumping action seems almost impossible to determine. The questions submitted to Administrator Ruckelshaus by Senator Cooper and subsequent responses by the Agency follow: REFUSE ACT Question 1. If, under the Refuse Act Permit Program, the E.P.A. will review each charge into the navigable waters, what is the point in supporting mandatory State permit programs (as would be provided in your bill S. 1012 in support of State programs)? Answer. In enacting environmental protection legislation, the Congress, constent with our Federal-State system of Government, has recognized the primary rights and responsibilities of the States in preventing pollution and protecting the vir nment (Section 1(c) Federal Water Pollution Control Act, as amended]. Moreover, State cooperation and aid in inspection and enforcement actions Jd be invaluable in complementing Federal Refuse Act Permit Program. The nstitution of mandatory State permit programs would serve to more effectively apcate many of the State programs that are not systematically modified with aging conditions. It would result in the establishment of permit programs in Rates that do not have such programs; would serve as a means to phase out some perons of the State programs (such as adoption of State/Federal uniform applicaon forms); would provide input into our industrial waste inventory which would e available to the States for use in planning and evaluation by providing services 5: available to them through existing State permit programs in most States. The Refuse Act permit program was designed with built-in flexibility to result maximum utilization and minimum need for Federal assistance in those States where active and effective permit programs exist, thus allowing concentration of Federal effort on those States where such permit programs do not exist. In addition to helping administer the Refuse Act Permit Program, the mandatory State permit programs would also help in the control of municipal discharges Section 7(h) (2) (i), page 7, of S. 10 12). Question 2. What is the nature or character of the Federally promulgated effluent imitation you describe on pages 3 and 4 of your testimony? (a) Are they specific numbers? (i.e., parts per million) (b) Will they be associated with monitoring equipment installed at source owner's expense? c) Will information from such monitoring equipment be public information? (d) Will such limitations be minimums-what will they be related to-to receiving water quality—to type of industry—to type of effluent? (e) What will be left for the State to do in the development of an implementation plan if EPA sets effluent limitations? Answer. (a) The effluent limitations will be specific numbers generally expressed in terms of units of pollutants per unit of production (or raw material applicable). e.g., pounds of BOD per ton of steel produced. Parameters such as pH, temperature, etc., will be expressed in conventional units. Proposed section 10(i) (1) authorizes the Administrator to require that dischargers install, use, and maintain monitoring equipment or methods, make reports and provide information for the purpose of ascertaining compliance with water quality standards which would include effluent limitations. Proposed section 19 d4) directs the Administrator to publish regulations providing specifications for effluent limitations. Effluent limitations, as an element of enforceable water quality standards, must be consistent with those regulations. There is, therefore, an association between the monitoring equipment and the regulations. e) Effluent data obtained under the monitoring provision would be available to the public. Proposed section 10(i) (3), which includes that directive provides that records, reports or information thus obtained, other than effluent data, must be kept confidential if they constitute trade secrets or other information protected by section 1905 of title 18 of the United States Code. d Effluent limitations will contain two sets of numbers for each parameter developed on an industry basis (i.e. pulp and paper, steel. etc.). The first number is the standard effluent level-the minimum allowable requirement-and t second number is the best effluent that can be achieved using currently availab technology. In effect, the effluent limitations are a range-the determination the specific effluent requirements will be made within this range based on water quality standards of the receiving waters. (e) The Administrator would promulgate effluent limitations only for eleme and compounds, which he determines to be hazardous, as provided in propo section 10(1). For all other effluents, the Administrator would publish regulati providing specifications for effluent limitations, and would approve water qua standards adopted by a State only if they include effluent limitations which consistent with the regulations. The standards must also be consistent w regulations and requirements governing other elements of the standards. State would have an important role and responsibility in the development of water quality standards, including the plan of implementation and enforcem A State would in no case be precluded from adopting water quality standa including effluent limitations, more stringent than standards which are minim consistent with the Administrator's regulations and requirements. Question 3. On Page 4 you state effluent limitations are the basis for enforce actions then on pages 5 and 6 you describe an enforcement sequence invo Administration orders, followed by a hearing with administratively assessed that seems to be a fact gathering exercise which impression appears confirmed b description on page 6 that conclusive facts would be before the court if judicial enj ment is finally sought. What is the virtue of complex fact-finding—and in the words of your bill, a fi of "practicability of compliance" in an administrative enforcement proceeding the issue should be narrow-i.e., is there a violation of an effluent limitation vealed by required monitoring equipment? Answer. We expect, as stated in the prepared testimony, that effluent li tions will be the principal basis for future enforcement actions. It is our that the water quality standards would be enforceable per se, in each and their elements. Effluent limitations facilitate standards enforcement. Th forcement sequence proposed in S. 1014-notice of violation and of re action required to achieve compliance, issuance of an order, a public heari request of the alleged violator, issuance of a final order, judicial review on p of the alleged violator, administrative penalty-does not contemplate co fact-finding, but is designed to achieve compliance as quickly as possible regard for due process. "Practicability of compliance" was included in S only to allow flexibility in the time frame for compliance. Question 4. Your proposal for effluent controls of toxic or hazardous sub differ from the Chairman's bill by authorizing levels of permissible discharge than a flat prohibition. Do you have evidence that such substances as mercu cadmium can be discharged in certain levels without adverse effects? Answer. In proposed section 10(1), the Administration bill authori Administrator to establish national effluent limitations-including, if appr prohibitions on the discharge of elements and compounds which possess potential for presenting an imminent and substantial danger to the he welfare of persons or to water quality. The bill includes provisions to assure timely study and debate of all proposed limitations and prohibitions. Certain substances are inherently dangerous in any amount or concen in other cases, the hazard may exist only because of the quantity or conce of the substance or due to synergistic interreactions of various substand sistence, nondegradability and biological magnification all bear on the hazard presented by various substances. S. 1014 is designed to preserve an approach to the regulation of hazard stances which will be flexible both as to the subject-regulation responsiv characteristics of the particular substance-and as to time-refinement lation as man develops increased knowledge and understanding of the mental impact of specific substances. The currently available evidence indicates that mercury and cadmium compounds, when ingested in sufficient quantity, are highly toxic to hun other living organisms. If S. 1014 is enacted, appropriate nationwide c prohibition of these and other heavy metals, pursuant to law, will be of th priority. Question 5. Your bill would authorize the Administrator to assess "civil" penalties apo 825,000 and that such fines could be imposed for negligent violation rather than wriminal “knowledge" test under the Chairman's bill. Do you feel a fine of $25,000 #iputade would be found by a court to be a civil penalty, or would a court "pierce the wi, as it were, and hold such penalty to be in fact criminal and therefore afford the sendent criminal defenses? Answer. It is the intent that the administrative penalty in S. 1014 would be a -penalty. We do not relate the $25,000 maximum penalty to its being a criminal alty. There is no provision here for imprisonment as in S. 523. As you know, the orts have recently imposed very large penalties under the Outer Continental stelf Lands Act for violations of regulations in the operation of oil leases in the f of Mexico, and these have been imposed on the basis of civil liability. Whether a court at some future time might take a different view of the administrative penalty provision in S. 1014 is not, of course, in our power to foresee. Question 6. On page 6 you describe the authority to acquire information. Under your bill, for what purposes would such authority be available? It appears from Secth) 1) of your bill S. 1014 that subpoenas are limited to enforcement hearings and 1) that requirements for record keeping, report making and monitoring are ted to "ascertaining compliance with water quality standards" and not for estabating standards and effluent requirements-Is it your intent to so limit these inormation authorities? Answer. Proposed section 10(h) (1) authorizes the Administrator to subpoena winesses and records for the purpose of any hearing under section 10. This would nclude a hearing prerequisite to his promulgation of regulations setting forth water quality standards in the absence of acceptable State action (section 10(e) A, or section 10(g) (6)), or in the case of waters not under State jurisdiction ection 10(e) (3)), as well as a hearing called to obtain information and determine appropriate remedial or other action (section 10(g)(1)), or a hearing on an adistrative order (section 10(f) (3)). Proposed section 10(i) (1) authorizes the Administrator to require monitoring and reporting for the purpose of ascertaining standards compliance. The informaen thus secured, like other knowledge gained in the administration of the cooperative national water quality program, could be applied, as appropriate, in the establishment of revised water quality standards, including effluent limitations, and in other water quality activities. Question 7. On page 7 you list as your objective in determining cost of waste treatmēns works need “if water quality standards are to be met," and $6 billion in Federal lara are given as the cost. Wouldn't it be more accurate to say that if the Federal istance is limited to treatment works as presently defined under the Act (i.e., conaraction of treatment works only) the figure is $6 billion, but if a broader definition were made to include other control strategies such as storage of run-off water to most rater quality standards the figure runs substantially higher? Isn't it true that if water aity standards are to, in fact, be met, the municipalities will have to manage storm water and combined sewers and that this would involve substantially more than the mal $12 billion, three-year program you have proposed for waste treatment works? Answer. Adequate management of storm water and combined sewer problems will require substantial investments beyond the three-year timeframe; constructon of such abatement facilities is in most cases scheduled beyond the timeframe for the $12 billion, three-year program. The EPA reappraisal of needs in 1973 will evaluate improvements, define the storm water and combined sewer needs, and identify other municipal adjustments, if any, which are warranted. BEST AVAILABLE TECHNOLOGY Question 8. Your proposal to provide for the recapture of capital costs made to treat industrial waste in municipal systems is to be applauded. Is it your judgment that dustry would rather tie in with municiapl systems and if so, do you feel confident of of the methods of assessing the appropriate charge? Answer. The decision by an industry to discharge its wastes to a municipal stem is based generally on finances whether they can treat their wastes cheaper han the municipal assessment. An additional incentive to municipal treatment is *hat it relieves the industry of responsibility for the subsequent effuent discharge to receiving waters. In the past, municipalities have generally subsidized industry |