With respect to why we acquiesced-and maybe that is an inappropriate characterization-in the 106-mile site, I cannot give you any answer. I don't believe it was based upon the kind of analysis that you suggested: And that is, that if it were done at the Cape May site, it would have caused greater impact than if it was dumped at the 106 site.

Mr. HUGHES. I am trying to find out the logic of requiring Camden to dump at 106 but permitting Philadelphia to continue to dump at the Cape May site.

It is basically the same type of sludge. There may be some difference, but I would think that the difference really is insignifi

cant.

And, of course, the volume coming from Philadelphia is much, much greater than what is coming from Camden.

Camden had phased it down to the point where the sludge was insignificant compared to the Philadelphia dumping.

Mr. JORLING. The basic answer that I can give you, and I will try to get more if there is more, is that NOAA concurred in this in a manner tht they would not occur at least at that time-on the 106-mile site for Philadelphia, Mr. Hughes, based on the short time and the small quantity of the sewerage sludge.

Mr. BREAUX. The time of the gentleman has expired.

I would like to recognize the chairman of our other subcommittee, Mr. Leggett.

Mr. LEGGETT. Thank you very much, Mr. Chairman.

I would just like to ask a couple of questions.

First, do you thing the fee schedule set forth in my colleague's bill is prohibitive or is it capable of being handled by the various entities involved?

Mr. JORLING. We think that the measure of the difference between the cost is feasible, Mr. Leggett, with the caveat that in the event that the community does do the work, that that fee not be extracted from them but be applied to doing the work.

But if it were just a penalty and required them to spend an equivalent amount of money out of another pocket of theirs, then it probably would be prohibitive.

Mr. LEGGETT. OK.

Now, in the bill the fee schedule is in the form of a penalty, is that correct?

Mr. JORLING. I believe the phraseology is a penalty.

Mr. LEGGETT. OK.

Now, what you are stating is that the money derived should be used to carry out the work at a land site disposal, is that correct? Mr. JORLING. That is right.

Mr. LEGGETT. OK. I recognize that many times cities, counties, and other entities want to comply with the direction of the Federal law but, unfortunately, because of situations with politics and taxes, they are unable to do so completely. So if we were to impose a penalty like this and actually allow it to go to a fund that could be drawn on by the area to accomplish the work in question and achieve the desired result from this legislation, it would be, in fact, helping areas to achieve the objectives of the bill.

Mr. JORLING. I believe, if I understand the thrust of your question, that one of the things that influences feasibility, oftentimes

more than economics, is clarity of resolve. And if the EPA and the Congress are clear in their statement that this is what is to be done and no equivocation about it, feasibility then accommodates that resolve.

The overall program that we administer, the construction grant program, and the projects that are constructed with it provide that once we have provided Federal assistance for these projects, that the O. & M. is built into the system through user charges.

So that once we are over the hump of getting the capital expended and getting the system underway, it should be a part of the ongoing system-at least the financing should be a part of the ongoing system. It is that initial kick that is necessary to get the program underway.

Mr. LEGGETT. I understand that, Mr. Jorling.

However, in a lot of areas, including my home State of California, they have just been unable to develop the local match to move ahead with various sludge disposal and sewer disposal programs. So this would allow for an added kick to the local areas to provide the match.

Mr. JORLING. We do have four hard-pressed communities that demonstrated an inability to borrow in a loan guaranteed program administered by EPA. So we do have a mechanism. The communities that we are referring to here, we believe, have the local resources to put up the local share.

Philadelphia is in a little bit more difficult situation than some of the New York communities because the Commonwealth of Pennsylvania does not contribute as does California and as does New York, Mr. Leggett, to the local share. So that Philadelphia is required to pick up 25 percent of any construction project. În New York, I believe, it is only 122 percent. In California, I believe, it is only 10 percent. So there are differences in a community's ability to finance. And Philadelphia, because of the nonparticipation of the State in the program, is harder pressed than some other cities. Mr. LEGGETT. Now, are you saying that the compliance with the direction of H.R. 5851 can be resolved at this point with only 10 or 12 percent local effort and an 87-percent Federal effort?

Mr. JORLING. No. In the case of Philadelphia, the available Federal moneys are limited to 75 percent. In Pennsylvania, the local community has to put up the remaining 25-percent share. In California, the Federal Government still only provides 75 percent; but the State of California contributes 15 percent and that leaves the local share at only 10 percent.

Mr. LEGGETT. Thank you, Mr. Jorling.

Mr. BREAUX. All right.

Mr. Forsythe?

Mr. FORSYTHE. Thank you, Mr. Chairman.

Just at the point that you were speaking of, Mr. Leggett, New York City clearly comes down to 122 percent. And I think New Jersey is the same. The State picks up the other half of the local share. So that we are talking about only Philadelphia. And in the context of this bill, Philadelphia would have a somewhat larger burden.

But in another respect, happily, Philadelphia is further down the road than most of New Jersey with these problems and New York. So I think the impact is a fair one.

But I would just like to go back to discussions between Mr. Bauman and Mr. Hughes on this question of 106.

As I am sure you are well aware, I took a rather vigorous part in that. And the fact that information, for instance, as to the whole problem of 106 versus the 12 miles in New York really hasn't gotten the kind of scientific backing that is now available-and really only as a result of about a year's work in that area. So it is to the point where-well, for instance, when we were having the oxygen problems in the New York Bight area this year, the fact that we were able to monitor these on an almost daily basis showed that that very New York 12-mile bight site had the best oxygen anywhere in that particular region; that the sludge dump in and of itself was not the important problem, vis-a-vis the beaches, the fish kill, the claims kill, and all of these things.

And so we have to be truly very careful when we start moving these things around.

And I am very happy that EPA is looking very carefully at moving to 106, because we may just be creating many more problems than we have-even at the Camden site. And I think we have to look very closely at the total impact of what is happening. And it deals far more with other areas than it does with sludge dump. So I commend EPA in being very careful about practices of just jumping off one site to another for the sake of thinking they are going to solve the problem; because I think the evidence is very clear there are other things that are far more important than sludge dumping alone. I know it is the thing you can point to, but the evidence is certainly coming out in a significantly different direction.

Thank you, Mr. Chairman.

Mr. BREAUX. Any comments?

Mr. BAUMAN. I just wanted to ask for one clarification.

In your statement you amended the lack of flexibility in section 4 and asked for some sort of amendment that would allow emergency permits to be issued.

My concern is an "emergency" will become a synonym for "interim" as in fact a way of getting around the intent of the law. What would you define "emergency" as if we get to the end of 1981 and Philadelphia still has not met the necessary requirements? Now, would that be an emergency?

Mr JORLING. No. That is not the intention of our recommendation there. It is basically to provide for situations where loss of human life is imminent; for those kinds of situations. And I would be pleased to provide to your staff what we think are some of the parameters around that definition so that it is clear that it does not mean the circumstances of an interim permit. It should be very tightly worded. And we will provide you with what we think. Mr. BREAUX. We would like to formally make that request, that you do submit a suggested definition of what an "emergency permit" refers to.

[The following was received for the record:]

"EMERGENCY," DEFINITION

Emergency permits may be issued for the dumping of materials not environmentally acceptable for ocean disposal when there is demonstrated to exist an emergency requiring the dumping of such materials, which poses an unacceptable risk relating to human health and admits of no other feasible solution. As used herein, "emergency" refers to situations requiring action with a marked degree of urgency, but is not limited in its application to circumstances requiring immediate action.

Mr. BAUMAN. I have one last request. And that is that on July 22, 1977, the Acting Governor of Maryland, Mr. Blair Lee, addressed a letter to Mr. Costle, asking for certain information regarding the enforcement actions of EPA against the city of Philadelphia.

Now, 2 months later, he still hasn't received a reply. I would like to publicly request that you communicate with Governor Lee. He is Acting Governor and one of your brothers.

Mr. JORLING. We will comply with that request.

Mr. BREAUX. The committe would like to thank you, and your colleagues, for being with us. We hope to look forward to working with you on this legislation in the future.

We would call as our next witness. Mr. Robert Low, administrator, New York City Envirinmental Protection Agency, city of New York.

Mr. Carmen F. Guarino, commissioner, water department, city of Philadelphia, is not here, but is represented by counsel for the city of Philadelphia.

We would like to ask the attorneys representing the commissioner and the city of Philadelphia to please take your places at the witness table. We will try to do this quickly. And if you would, as you are seated, please identify yourselves for the record.

STATEMENT OF ROBERT A. LOW, ADMINISTRATOR, NEW YORK CITY ENVIRONMENTAL PROTECTION AGENCY, CITY OF NEW YORK, ACCOMPANIED BY MARTIN RIVLIN, COUNSEL, DIVISION OF PLANT OPERATIONS, DIVISION OF WATER POLLUTION CONTROL AND CHIEF, ENFORCEMENT AND COMPLIANCE UNIT; AND HENRY DIAMOND, COUNSEL, CITY OF PHILADELPHIA WATER DEPARTMENT, ACCOMPANIED BY STEVEN TOWNSEND, CITY OF PHILADELPHIA, WATER DEPARTMENT, CHIEF, SLUDGE DISPOSAL SECTION

Mr. Low. Mr. Chairman, my name is Robert Low, commissioner, New York City Department of Environmental Protection; and with me is Mr. Martin Rivlin, on my left, counsel, Division of Plant Operations in the Division of Water Pollution Control and chief of the Enforcement and Compliance Unit.

Mr. DIAMOND. Mr. Chairman, my name is Henry Diamond and I am counsel to the city of Philadelphia Water Department.

Commissioner Guarino is in a capital budget meeting, a major concern of which is sludge disposal funds. So I did not come here lightly. I have been involved with the city of Philadelphia for some 2 years. I am former commissioner of the New York State Department of Environmental Conservation.

With me is Mr. Steve Townsend of the city of Philadelphia Water Department, who is the chief of their sludge disposal sec

Mr. BREAUX. Mr. Low, why don't you proceed.

Mr. Low. Thank you, Mr. Chairman.

I might say also that Mr. Costle, the Federal EPA Administrator, is in New York today visiting the treatment facilities in the city, along with some of our professional people. Based on my brief conversation with him this morning before coming down, I think he is impressed with the dedication of our people to get on with the job and to get out of the ocean at the earliest possible time.

I have a brief statement, which I will read, which does not address itself to the question of ending ocean disposal, but to the penalty fee.

At the outset, I would like to repeat what I said before with respect to getting out of the ocean by December 31, 1981. And that is this:

It seems to me that, to be acceptable, a land-based alternative must be environmentally preferable to the existing ocean disposal. If a land-based alternative is not environmentally preferable, it would be counterproductive simply to make a move for the sake of making a move.

We suggested at that time that the Federal EPA Administrator be given some flexibility, some discretion, to permit ocean dumping if the land-based alternative is not preferable from an environmental point of view.

We are willing to put our interests in the hands of a third party such as the Federal EPA Administrator because he has the technical expertise at his hands to evaluate continued ocean dumping as well as alternative land-based approaches. And we think that is very important.

If you don't permit some discretion here, we are just going to go hell-bent into programs for land-based disposal which may be less environmentally sound than what is now going on.

The Federal EPA has indicated, through Mr. Jorling, that it is faced with hobson's choices. You may have a hobson's choice in the early 1980's-1980, 1981-and someone with expertise will have to balance out the pluses and the minuses and then make a determination.

If you look at the current amendment in terms of that approach, I would suggest that you might want to consider some change in the language, particularly with respect to the penalty and the cost. The present language reads:

The difference between the cost of disposing of all materials dumped under interim permits and the cost as estimated by the Administrator of disposing of these materials during the affected period of the permits by land-based methods deemed appropriate by the Administrator.

It seems to me that those land-based methods should only be "environmentally preferable" methods. I urge that "environmentally preferable land-based methods" be inserted after the words

period of the permits by." If that is acceptable to the committee, other changes in the language may be necessary for conformity throughout the amendment. I emphasize that again because the city of New York disposes of such a huge volume of sludge that the solutions of other coastal cities may not be precedents which we can follow.