job. As you refer and as we well know it's true that as they move in that direction, the problem of ocean dumping then becomes even

more severe.

So many things just add up to where we are and where we are going.

Mr. JORLING. What are the things that EPA really acknowledges and I am not seeking it-is that they are given credit for some things, and I think it is our forceful posture with New York City that has led it to their performance.

Mr. FORSYTHE. And we are just trying to help.

Do you anticipate administrative problems in implementing the bill, Mr. Jorling, considering that we go back to language which would not give a sophisticated fee determination, as we now have in this bill?

Mr. JORLING. I don't want to suggest that there wouldn't be some administrative problems. But with that change we think that the calculations that are required are relatively simple and straightforward; that the cost data on the alternatives is quite good.

So we think that we could make those determinations and that given the fact that the problem is confined to two regions primarily in the national perspective, that we can administer it well.

Mr. FORSYTHE. The basic intent of the bill as now drafted, of course, is that the money will get back to those very cities and municipalities to implement alternatives, rather than just be a fine or a penalty that takes away the very possibility of the city moving.

Under what conditions would you anticipate that the penalty fee would not be waived?

Mr. JORLING. I think those kinds of judgments are something the agency has developed considerable expertise in as it has moved in the enforcement areas in other statutues.

And the question is asked: What constitutes good faith, bonafide efforts to perform?

And the agency is developing that, I think, quite satisfactorily. And it would be those same kinds of measures which would determine whether or not the money was, in effect, transferred from an incentive to in fact a penalty.

But I do think that that is an essential feature in this provision. I know full well, as most of you do, too, that basically public institutions are strapped for funds, especially municipalities. And I know that we should not adopt a posture that would take these very scarce resources and apply them either to somebody else's treasury or at least not to their own, so that feature of this bill, I think, makes it very important and very attractive.

Mr. FORSYTHE. Thank you. I have nothing further.

Mr. BREAUx. Mr. Bauman?

Mr. BAUMAN. Mr. Chairman, I want to compliment the EPA for coming around to this committee's viewpoint on curtailing ocean dumping.

Mr. JORLING. I would say, Mr. Bauman, that that is a function of change in administrations.

Mr. BAUMAN. If that is the only thing that the current administration has done which is good, I will swallow Burt Lance along with it. [Laughter.]

But I am pleased to see this change in viewpoint. I am constrained to ask some questions about some things that don't seem consistent with your support of this legislation. You mentioned that the recently issued permit for Philadelphia was issued before any site was agreed upon: That the question of the 106 site is still open and amendments could be reached.

Wasn't Judge Hansworth's direction in the litigation now in the circuit court over which he still retains jurisdiction, Mr. Jorling, that a determination of the 106 site-well, wasn't that to be made before the permit was to be issued?

Mr. JORLING. I suspect that I should be somewhat careful in responding to this question.

As you point out, it is a matter still within the jurisdiction of the

court.

With that response, and with my counsel behind me, I do have a prepared answer in effect, Mr. Bauman, that I think is in response to that question.

Mr. BAUMAN. You anticipated it?

Mr. JORLING. I would hope that the staffs were communicating well. The fourth circuit did not in its opinion order Philadelphia to be removed from the Philadelphia site and moved to the 106 site. And in fact, could not, because Philadelphia was not a party to that suit.

Nor did it order EPA to do so. Nor did the court require EPA to make a definitive decision on site selection before reissuing Philadelphia's interim permit.

The court ordered only that EPA make full inquiry into the question of whether the Philadelphia site should be considered for dumping of sewage sludge.

I think what the court was asking us to do was to perform as careful and as complete a review as could be done into the dimensions of ocean dumping. The ocean is a much more complicated system than anything we deal with in fresh water.

So this ability to make judgments about the value of going to one site versus another is something which everyone is on thin ice. And that overall knowledge and understanding leads us to believe that the best way to protect the oceans and the shorelines adjacent to them is to end the dumping practices.

So that we have undertaken this inquiry. The hearing examiner is the principal focal point for it. He is to issue his recommendation to the Administration shortly.

We have a situation I think where the region was under some compulsion to act because of the expiring Philadelphia permit, Mr. Bauman, before the overall decision was made in compliance with the court order. As I did point out earlier, should the Administrator determine that the shift to the 106 site is scientifically and public policywise a better choice, then the region 3 permit is immediately amended to accommodate that decision.

Mr. BAUMAN. Well, it was my understanding that in the district court the judge ruled that historic usage of a site could be the basis for a continuance. And that, of course, would have supported the use of the Cape May site to which the gentleman from New Jersey and I, along with others, object to strongly.

But on appeal, Judge Hansworth made it very clear that EPA was not following the requirements of section 102 that set up certain criteria for ocean dumping sites.

And yet you have gone ahead, despite the judge's ruling, at the appellate level, and continued to use-apparently for historic reasons-you have been using it. So we keep using it. And you have not met the requirements of section 102 in either evaluating the present site or the new site, and yet you go ahead and issue almost a year's permit to continue dumping when apparently you are in a violation of the law.

Mr. JORLING. There are two judgments that, in effect, have to be made. One is the designation of site and the second one is whether a proposed dump at that site will result in unreasonable degradation.

I think it is safe to say that our determination is that dumping at the 40-mile site, as in effect the interim permit suggests or concludes, is an unreasonable dump, and therefore is one that we are eliminating.

We also know enough now to make the same judgment with respect to any designation at the 106 site; that is, if Philadelphia were moved there, it would still be an unacceptable dump.

Do you follow what I mean?

It would be one not subject to a normal permit; it would be subject to an interim permit. It would still be an unacceptable dump.

Mr. BAUMAN. I agree with you that the Delmarva site is an unacceptable dump.

We would like to eliminate as soon as possible all ocean dumping. The reason I particularly have such a concern is that within a matter of weeks the Department of Commerce is going to apparently issue regulations on an emergency basis which will control at least for the next 3 or 4 months whatever their authority is for emergency action: The taking of soft clams or surf clams, the control of the amount that can be taken, the number of boats, in fact, eliminates any new boats from going into this industry.

One of the reasons, of course, is overfishing, but another reason and a very serious reason is the total degradation of the sites that have already been closed by reason of the pollution of Philadelphia and Camden.

They have just destroyed whole areas of the ocean. And now we are getting to the point where a whole industry is coming under Federal regulation because there are not enough clams left.

And I raise this question because at least the Outer Continental Shelf site is a little bit farther away from the historic shellfish beds, but yet the EPA doesn't have any urgency in moving on this, which is what I thought the circuit court order was clear about. Mr. JORLING. You are correct.

The very reasons that you point out are reasons that support the policy to end the dumping. We are faced with some Hobson's choices in many respects.

And I would add that among the problems are not just ocean dumps. As you know, off the coast of New Jersey last summer there was an episode which affected the shellfish population through very extensive regions of the Atlantic shore.

The study that was made indicated that the ocean dumping was the least important of the problems but it was probably much more a function of some of the other causes of pollution.

We are confronting and developing an overall coherent policy to protect the quality of the ocean. We have several mechanisms by which the oceans are degraded by the activities of man, and not the least of which is ocean dumping.

However, we have ocean outfall pipes up and down the eastern shore; we have the disposal of dredge spill or dredge spoil; we have the huge amounts of materials that continue to be, in effect, discharged into the oceans of the United States from the rivers of the continental United States.

We have to address all of these if we are to protect in fact the quality of the adjacent ocean.

We are undertaking an effort to achieve that.

We are faced with short-term Hobson's choices, though.

Is it better to continue a dump at an already degraded site for 2 or 3 more years rather than take an area 106 miles out to sea where we know less, where we know there are stronger currents that carry the materials farther, where we know that the fish that inhabit those areas are higher in the food chain-we know all of those things.

And those are the kinds of choices that we are making.

And we will be acting upon at least the recommendations of the hearing examiner in making the determination on the 106-mile site; knowing full well that another side of the question is that to go 106 miles-and Philadelphia with its 450,000 tons of material annually as in contrast to the 4.5 million that comes out of the New York area, the 4.5 million tons annually-would increase the cost to Philadelphia.

Our fear is, that would take resources away that would be used to develop that land-based alternative.

Mr. BAUMAN. Except that other people, that the resources-in this case the shellfishing industry-are being destroyed at enormous cost to the people involved. And you ought to, some day, sit down and explain, as I do, to those individual boatowners who are going to lose their livelihood, based on these new regulations, what is going on.

I am not going to develop it further. I recognize the elegance of the overall problem, but it is not quite as elegant a solution. Let me ask you this question. I hope that in making these decisions at EPA you observe the procedural requirements, not just legally, but also ethically. It is my information that prior to the issuance of this interim Philadelphia permit, that a delegation of representatives from the city of Philadelphia-sponsored by their congressional delegation-met with Mr. Costle. The State of Maryland, who is a party to this suit, as your agency is, was not informed of this and was not given any occasion to present their view.

After that Mr. Costle, as you indicated, who is a representative of the new administration, made the decision in favor of this interim permit.

Was such a meeting held and was any notice given to the other parties?

Mr. JORLING. I have received a copy of the letter to Judge Hansworth filed by the attorney general of the State of Maryland. And that particular paragraph describing that meeting is one that I feel very sensitive to because of the fact we have been trying to be as open and as fully communicative to all parties and on all of our problems as possible. And I was at that meeting.

And let me describe it for you. And I hope you will direct some of these questions to the city of Philadelphia representatives who will be appearing before you later on to see if whether or not they confirm my own understanding of how that meeting came about. But, in any event, it was requested by the congressional delegation adjacent to the city of Philadelphia, and at that time it was styled as an opportunity in the offices of the Capitol, which is where the meeting was held, to provide the city of Philadelphia officials with an opportunity to describe in the presence of both the Members of Congress and the members of the administration what Philadelphia was doing in its overall waste treatment program. That was a congressional request and we try, under all congressional requests, to honor them.

I can say that during the course of that meeting there were no discussions, no negotiations, no substantive-in fact, I tried to refresh my memory in discussions with several other people from EPA who were there. And the question of the ocean dumping permit was only mentioned in passing by the city of Philadelphia representative, and only as one of the permits that they must receive as part of their ongoing program.

There were no discussions of the ocean dumping activity. There were no negotiations regarding it.

The administrator made no determinations. The administration made no commitment.

It was strictly what I would characterize as a standard meeting between Members of Congress and their constituents. It was not in anything like an enforcement context or a permit issuing context. And if we have meetings with Philadelphia of that nature, it would be my hope that the region 3 people would so operate as I think is appropriate.

But this particular meeting was not at all subject to the kind of criticism that the attorney general had described in his letter to Judge Hansworth.

Mr. BAUMAN. I think you can understand the reasoning of the Maryland officials. However, I am not aware that Philadelphia has any other problems other than ocean-dumping, any other problems with EPA.

Mr. JORLING. Oh, no, sir.

It is in violation of the July 1, 1977, date, and we have many matters with which we are discussing with Philadelphia.

As you may know, we have been considering a request from the city of Philadelphia that they be granted an

Mr. BAUMAN. You seem to characterize the meetings as totally divorced from the ocean dumping problems and I don't see how they could be.

Mr. JORLING. In effect, they are related. The systems are all single systems. And if we are successful and if Philadelphia is successful in complying with the law, a great deal more sludge will