penalty fees could conceivably delay their imposition until the end of 1981, with the result that they might be avoided altogether.

(5) It makes the failure to make required payments or to submit required information a violation of the Act, which subjects the owner or operator of the offending source to all penalties under the Act, "in addition to liability for such payments." It also makes clear that payment of assessed penalty fees is "in addition to any other permits, orders, payments, sanctions, or other requirements" established under the Act, and "in no way [a]ffect[s] any civil or criminal enforcement proceedings" brought under the Act. (See, proposed Section 319 (g) and (h)). These provisions are necessary to make clear that a discharger's penalty fee obligations are legally enforceable, and that the mere payment of a penalty fee does not excuse a discharger from the need to comply with otherwise applicable permit conditions and regulatory requirements.

We would urge the Committee to consider expanding Section 2 of H.R. 5851 to incorporate language paralleling the proposed noncompliance fee approach in the five indicated respects. If the Committee wishes, we would be happy to work with Committee counsel on specific legislative language to meet the intent of the Committee's bill.

We would recommend, in addition, several minor language changes in the penalty fee provisions to avoid unintended side effects:

(1) Problems.-Paragraph (5)(B) as written, in limiting to one year the effective period of "renewals" of interim permits (as well as interim permits), impliedly sanctions the "renewal" as opposed to the "reissuance" mechanism for maintaining interim permits in effect for successive one-year periods. This is inappropriate since a permit "renewal" is conceptually easier to obtain than the issuance of a supplemental permit. The proposed amendments should not leave open to question the obligation of an interim permittee to meet all application and review requirements applicable to an initial permit request each and every time a new interim permit is desired.

Recommended solution.-Delete the words: "or any renewal of any such permit," from proposed paragraph (5)(B). Implied would be the fact that if a new permit were sought after the expiration of a 1-year interim permit, a new interim permit would have to be applied for.

(2) Problem.-Paragraph (C)(i) in its present form makes the size of a penalty fee dependent, at least in part, on the adverse effects associated with the penalized dumping. Thus, among the factors to be considered are "the degree and persistence of toxicity **, and the probable effect of the disposal on the marine food chain (Emphasis added). Given severe state-of-the art limitations on the ability of marine scientists to measure the fate and effects of marine pollutants (except where the effects reach catastrophic levels), it seems unlikely that it will often be possible to quantify dumping effects sufficiently to aid in the calculation of an appropriate penalty fee. This is especially the case if it is necessary (as the present language would appear to dictate) to demonstrate that a given effect is "proable."

Recommended solution.-Delete the word "probable," with or without the substitution of the word "potential.” Since the penalty fee is, at minimum, required to equal the "value" of noncompliance to the dumper, difficulties in quantifying dumping effects need not stand in the way of assessing a penalty. However, it should not be made any more difficult than necessary to include "effects" information in the penalty fee calculation.

(3) Problem.-Paragraph (C)(i) in its present form allows consideration only of "physical and chemical" properties in determining a waste's "toxicity." This would prevent consideration from being given to a waste's microbiological properties (i.e., presence in sewage sludge of disease-producing bacteria, viruses, and protozoa). We doubt that it is the Committee's intent to exclude consideration of such properties. Recommended solution.-Change "toxicity" to "hazard potential" (to include disease) and change "physical and chemical properties" either to "properties" or to "physical, chemical, and biological properties."

(4) Problem.-Paragraph (C)(i) speaks of alternatives to ocean dumping in terms of appropriate land-based methods of "disposing" of waste materials. Section 102(a)(G) of the MPRSA is, of course, presently somewhat broader in requiring consideration not only of alternative disposal methods, but also alternative methods and locations of "recycling." In the case of sewage sludge, this could include controlled land application (not "disposal") of the sludge to strip-mined land as a soil conditioner to aid in returning the land to its natural state. Paragraph (CXi), by referrring exclusively to "disposal" alternatives, may give rise to the inference that investments in waste recycling may not be used to offset an otherwise applicable penalty fee assessment. This would be unfortunate and counter-productive.

of disposing

Recommended solution.-Change "cost by land-based methods," to "cost ** of disposal or recycling by land-based methods and at locations." The same problem and remedy apply to Paragraph (C)(ii).

(5) Problem.-Paragraph (C)(ii) provides for the waiver of the penalty fee where the permittee will expend "an amount equal to the amount so waived" on purusing acceptable alternatives. Obviously, this should not be taken as precluding the expenditure of greater amounts on acceptable alternatives. The language of the paragraph should be modified to reflect this.

Recommended solution.-Change "an amount equal to equal to or greater than

to "an amount

(6) Problem.-The bill, although it requires nonconforming ocean dumping to be terminated by the end of 1981, and requires interim permittees to pay penalty fees in the meantime, really does not prod interim permittees to end their dumping as quickly as possible between now and the end of 1981. Such a prod would be present only if the penalty fee exceeded the value to the dumper of delaying a phase-out of its dumping, a situation that is likely to be rare given the great difficulty in quantifying the adverse impacts associated with individual acts of dumping. Something further is, therefore, necessary.

Recommended solution.—Add a new paragraph to the bill (perhaps to take the place of proposed Paragraph (5)(A)(iv)) modeled after the approach of Section 4(f) of the Department of Transportation Act (described more fully in paragraph (c) of the final section of this testimony), precluding ocean dumping except where there are no "prudent and feasible" alternatives and all possible steps have been taken to minimize harm. This would have the added advantage of applying to dredged material (as to which there is no "interim" permit system), as well as to sewage sludge and industrial wastes.

Conclusions.-In the NWF view, the proposed penalty fee provision of H.R. 5851, particularly if modified in the indicated respects, has a worthy and desirable objective and will, if enacted, contribute constructively to the expeditious phasing out of the ocean dumping of sewage sludge and other (non-dredged) wastes.

LEAD AGENCY ON LAND-BASED ALTERNATIVES

Section 203 of the MPRSA currently vests in NOAA (via the Secretary of Commerce) the responsibility to: "conduct and encourage, cooperate with, and render financial and other assistance to appropriate public authorities, agencies, and institutions, private agencies and institutions, and individuals in the conduct of, and to promote the coordination of, research, investigations, experiments, training, demonstrations, surveys, and studies for the purpose of determining means of minimizing or ending all dumping of materials within five years of the effective date of this Act."

Section 5 of H.R. 5851 would strike out Section 203 and transfer the contained responsibility over land-based alternatives to EPA as part of a new Section 113. Given the reality of the limited manpower and resources available to NOAA in connection with ocean dumping, and the lack of a large body of expertise and experience with respect to land-based waste treatment technology, NWF cannot quarrel with the desirability of vesting responsibility for the conduct of alternatives research in EPA where the capability to do so presently resides. So we would support this aspect of Section 5 (as contained in proposed Section 113(1)).

On the other hand, given the fact that research on alternatives relevant to the phase-out of ocean dumping is taking place and will continue to do so in many quarters, within the government and outside (e.g., the Corps of Engineers and EPA are both directly involved in the exploration of ocean dumping alternatives; similarly, the Agricultural Research Service of the Department of Agriculture is heavily involved in sludge treatment research which may be extremely relevant to the termination of sewage sludge ocean dumping), there is something to be said for having an agency such as NOAA-which has a primary concern with preserving and managing the ocean environment—play a coordinating role to ensure that available expertise, wherever it may reside is brought to bear on the problem of bringing ocean dumping to an expeditious halt. Accordingly, we would favor retention within Section 203 of a residual role for NOAA, which might be articulated as follows:

"SEC. 203. The Secretary of Commerce, in consultation with the Secretary of the Army and the Administrator, shall encourage, cooperate with, and promote the coordination of research and other activities described in Section 113(1)."

Not only would this approach help ensure that existing research results are most effectively applied to facilitating the termination of ocean dumping, but it would help coordinate and enhance the efficiency of research efforts made and supported

by other federal agencies. Duplication of effort and underutilization of valuable research results could both be minimized in this way.

In addition, we would recommend the following further changes:

(1) Revise proposed Section 113(1) to require the determination of means of "expeditiously" minimizing or ending all dumping. This is necessary to convey a sense of urgency, especially since the proposed amendment would delete the "five year" time limit presently contained in Section 203.

(2) Revise proposed Section 113(2) to read as follows: "render financial and other assistance to appropriate public authorities [etc.]." The encourage, cooperate and promote language would be deleted, since this function would be retained by NOAA under Section 203.

(3) Add a new Paragraph (f) to Section 103 of the present MPRSA, incorporating (as sub-paragraphs (1) and (2) the substance of proposed Section 113 (as modified in accordance with the above) in connection with the regulation of dredged material ocean dumping by the Secretary of the Army. In other words, the Army Secretary, like the EPA Administrator (in the case of non-dredged wastes) should be encouraged to conduct research aimed at finding land-based alternatives to the ocean dumping or dredged material.

THE DECEMBER 31, 1981 DEADLINE

Proposed Paragraph (5)(A)(i) of H.R. 5851 prohibits the issuance of interim permits (for the ocean dumping of material which violates the ocean dumping criteria) after December 31, 1981.

We note that this language is more succinct straightforward than its counterpart in H.R. 4715 and we believe, therefore, less subject to misinterpretation. We fully support this change in language, as well as endorsing the objective and effect of Paragraph (5)A)(i) of H.R. 5851. The Committee may wish, however, to express its intent that no further dumping may occur beyond 1981, even if "authorized" prior to the end of the year.

OTHER COMMENTS AND SUGGESTIONS

We offer the following further comments and suggestions concerning amendments to the MPRSA:

(1) Paragraph (5)(A)(ii) should be revised to make clear that waste transporters (who are often the recipients of EPA ocean dumping permits) which are now ocean dumping sewage sludge from municipality A are not, by virtue of this provision, eligible to begin ocean dumping for the first time of sewage sludge from municipality B. We'd suggest the following change, in line with § 220.3(d) of the current dumping criteria (42 Fed. Reg. 2470): "may not be issued for the dumping of waste from a facility which has not previously dumped wastes in the ocean, from a new facility, or for the dumping of an increased amount of waste from the expansion or modification of an existing facility as of the date of this Act." (Additions denoted by italic).

(2) Section 3 of H.R. 5851 should be amended to specify that the proceeds derived from the collection of authorized processing fees may be applied by the Administrator or the Secretary to defray the expenses of program administration or for any other appropriate program purpose. Absent such a provision, the proceeds would revert to the U.S. Treasury and would be unavailable for program purposes.

(3) Proposed Paragraph (5)A)(iv), allowing the issuance of interim permits only if there is no acceptable alternative which can be immediately implemented, should be revised to coincide with the approach of Section 4(f) of the Department of Transportation Act (49 U.S.C. § 1653(f); see also, 23 U.S.C. § 138). Section 4(f) specifies that: "The Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area. or wildlife and waterfowl refuge of national, State, or local significance or any land from an historic site of national, State, or local significance unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreation area, wildlife and waterfowl refuge, or historic site resulting from such use

Ocean dumping and highway construction are analogous in the sense that the ocean, like public parks, is not protected by marketplace forces (i.e., it is not under private ownership). In both cases, there would be the temptation to dump in the ocean or build a road through a park as the path of least cost least resistance, absent the intervention of Congress to protect these "common areas" for the benefit of this and future generations. Paragraph (5)AXiv) could accommodate this approach as follows:

“(iv) may not be issued unless (a) there is no feasible and prudent alternative to the issuance of such permit, and (b) such dumping is predicated on all possible planning to minimize harm to the marine environment and human health."

(4) We reiterate our view, expressed in previous testimony before this Committee, that the MPRSA should be amended to close the loophole which allows the U.S. Navy to ocean dump aviation fuel and other materials without the need for a permit and without regard to any of the requirements of the MPRSA. If the Committee wishes, we would be happy to pursue specific legislative language to accomplish this change with Committee counsel.

(5) We believe it would be desirable to amend the MPRSA to prohibit the issuance, under any circumstances, of ocean dumping permits with durations of greater than three years (subject to reapplication and reissuance). We are prepared to support this position in detail and would be pleased to do so if the Committee wishes to pursue this issue.

(6) We believe it would be desirable to amend the MPRSA to make the toxic substances limitations established by EPA pursuant to Section 307 of the Federal Water Pollution Control Act Amendments (Public Law 92-500) applicable to ocean dumping under the MPRSA. Again, we'd be glad to pursue this matter further with the Committee staff.

We very much appreciate the opportunity to present these views.

STATEMENT OF KENNETH S. KAMLET, ON BEHALF OF THE NATIONAL WILDLIFE FEDERATION

Mr. KAMLET. Thank you, Mr. Chairman.

I will just hit the highlights of my testimony.

I would like to note first that the penalty provisions of the bill are designed to eliminate the economic incentives which most ocean dumpers now have to continue their ocean dumping as long as they possibly can and also to stimulate those dumpers who cannot meet EPA's dumping criteria to phase out their dumping as rapidly as possible, in no case later than 1981.

The National Wildlife Federation fully supports this objective of the bill and we believe that the penalty provisions provided in the bill represent an appropriate and effective means of promoting the desired result, although in view of what has been said, perhaps a different term than "penalty fee" might be preferable, such as an "alternatives incentive fee," or perhaps a "delayed compliance fee." There are some adverse connotations that the term "penalty fee" has, which are perhaps inappropriate.

Most existing municipal and industrial ocean dumpers are dumping under the terms of so-called interim ocean dumping permits. As pointed out by a General Accounting Office report, issued last January, this means that these dumpers are pouring their wastes into the ocean at rates and at levels often greatly exceeding safety levels set by the Environmental Protection Agency to safeguard buman health and the marine environment; and that does include mercury and cadmium, which are presentin the sludges of all the cities that we are talking about in whopping big doses.

By the terms of the permits issued in support of such dumping, and in accordance with revised ocean dumping regulation promulgrated last January, the continued authorization of dumping in violation of criteria requirements will end by the end of 1981. Even so, EPA's widespread use of interim permits for a period of nearly nine years, from mid-1973 through the end of 1981, to authorize the ocean dumping of wastes clearly in violation of the ocean dumping criteria has been a practice of highly dubious legal validity under the ocean dumping law.

H.R. 5851 would validate this practice where shown to be necessary, but would deprive interim permittees for the first time of the rewards flowing to them from their protracted noncompliance with the requirements of the criteria, while speeding them toward an expeditious rendezvous with more acceptable waste management practices.

Such a "pollution tax" approach has in other contexts received the enthusiastic support of industry as well as of environmentalists. I have with me-and if the Chair wishes, I would be glad to submit it for the record-a 2-page summary, which appears in the June 24 issue of Environment Reporter, describing the recent National Environmental Policy Conference, sponsored by Executive Enterprise, Inc. Mr. Jackson B. Browing, corporate director of health, safety and environment affairs for Union Carbide, is quoted as telling the conference that his company favors pollution taxes as a means of eliminating uncertainty in the regulatory process and of enhancing the creativity and effectiveness of industrial cleanup efforts, by providing an incentive system tied closely to free market economics.

I would be glad to offer that for the record.

Mr. BREAUX. Without objection, it will be made a matter of the record.

[The following was received for the record:]

[From Environmental Reporter, "Current Developments," Vol. 8, No. 8, June 24, 1977, pp. 321-2]

GENERAL POLICY: POLLUTION TAX SUPPORTED BY UNION CARBIDE EXECUTIVE Members of industry and the Sierra Club found themselves agreeing June 21 that a pollution tax might be a better way to clean up the environment than government regulation.

The idea was presented by Jackson B. Browning of Union Carbide Corporation, one of several industry and environmentalist speakers at the National Environmental Policy Conference sponsored by Executive Enterprises, Inc. June 20-21 in Washington, Ď.C. (See related story, p. 318).

Browning, who is corporate director for health, safety and environmental affairs for Union Carbide, said his support of the pollution tax concept surprised even

himself at first.

"It may seem strange-it may even seem treasonable-to find a headline reading 'Businessman Urges Consideration of More Taxes," he said. "The hope is, of course, to get a trade-off-taxes for regulations, and eventually, lower taxes.'

Browning's paper defending the pollution tax approach appeared to be well received by the approximately 65 people at the conference. Most of those attending are environmental directors for companies or corporations.

One members of the audience said the pollution tax could buy time for his company to resolve some technological problems that are causing it to fall slightly short of complying with the Clean Air Act.

ENVIRONMENTALISTS ENDORSE CONCEPT

President Willian Futrell of the Sierra Club said later in the program that environmentalists strongly support the pollution tax. He said in response to a question that environmentalists don't regard it as a license to pollute.' "I would pray devoutly for a pollution tax," he said. "We have lobbied for it. Why hasn't it been done?"

BASED ON INCENTIVES

The pollution tax envisioned by Browning is based on the assumption that industry will be more creative and effective in its environmental cleanup efforts under an incentive system tied closely to free market economics.

"Government and business are engaged in a slow dance of death on the regulatory ground and neither side seems to be able to find a way out," he said. "And the worst of it is that the more regulation fails, the more regulation we get."