STATEMENT OF THOMAS JORLING, ASSISTANT ADMINISTRATOR FOR WATER AND HAZARDOUS MATERIALS, ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY JACK RHETT, DEPUTY ASSISTANT ADMINISTRATOR FOR WATER PROGRAMS; AND T. A. WASTLER, MARINE PROTECTION BRANCH, OIL AND SPECIAL MATERIALS

Mr. JORLING. Thank you, Mr. Chairman.

I would ask, if I could, that Jack Rhett, the Deputy Assistant Administrator for Water Programs and Al Wastler, the head of the Marine Protection Branch, Oil and Special Materials, be asked to be seated with me at the table.

Mr. BREAUX. We have a copy of your statement in the record. You may proceed as you see fit.

Mr. JORLING. Yes, Mr. Chairman.

It is a relatively short statement, so perhaps I could read it in its entirety.

Thank you for the opportunity to comment on the staff working draft of H.R. 5851, a bill to encourage municipalities to find landbased alternatives to ocean dumping.

As I have testified to this committee before, it is the policy of EPA to make sure that all municipal and industrial dumpers will be out of the oceans by 1981. We are convinced that land-based disposal methods, including the possibility of recycling into beneficial uses, provides the most environmentally acceptable solutions for the disposal of sewage sludge. Although the remaining sludge dumpers may not be able to inaugurate beneficial uses of sludge by 1981 they should all, at the very least, be able to landfill sludge by the cutoff date.

This proposed legislation will help us in meeting the 1981 deadline. It should encourage expeditious development of alternatives and will enable EPA to monitor and to work more closely with permittees to assure that acceptable alternatives to ocean dumping are found.

The provisions of this bill have our support. New subsection (5) would make our present regulatory scheme part of the law. Dumping in the period between the present and 1981 would be permitted only if the permittee had been previously dumping and if the Administrator determines that there is no alternative for the disposal of such material which can be immediately implemented and which is less harmful than ocean disposal. This is essentially our present regulations which we believe have a firm legal basis in section 102(a) of the present law. Based on the experience we have had and the continuing oversight of our subcommittee, we believe the proposed amendment would help clarify this position leaving no question as to the intent of Congress.

The only problem we see in this change is the possible unintentional limitation in section 4 which would prevent the agency from issuing research and emergency permits. Section 4 requires that all the criteria must be met for all new materials dumped after the enactment of this bill. Such incidents as the recent incineration of Herbicide Orange in the Pacific which required a dumping permit could not be tested under this new section since we did not know for sure, before the test burn, if the criteria would be satisfied. For

such purposes we believe research and emergency permits should be exempt from the section 4 requirements.

A major alteration to the Marine Protection, Research and Sanctuaries Act-MPRSA-would require a noncompliance fee for interim permit holders. As part of the Federal Water Pollution Control Act amendments we have offered for congressional consideration a noncompliance fee to take away the economic advantage of not complying with the effluent limitations for the small percentage of companies which have failed to meet the 1977 requirements. A noncompliance fee would also be an enforcement tool against those municipalities which have been guilty of bad faith in the building of publicly owned sewage treatment works. A delayed compliance penalty was incorporated into the Clean Air Act amendments that was signed into law last month. A similar fee, as suggested here for the handful of communities which have failed to find land-based alternatives for sludge disposal, seems equally appropriate.

Under the Federal Water Pollution Control Act, the proposed fee is based on the economic gain to the industry for not complying with the law. The fee has been successful in Connecticut to encourage compliance, and we believe it can be applied nationally with equal effect.

The analogy to the communities that are ocean dumping is not directly applicable. The basic noncompliance fee concept, with the modifications in the working draft, I believe, will work. Under the working draft, the penalty fee is determined by the Administrator based on the quantity of the material to be disposed and its characteristics including the materials' physical and chemical properties, the degree and persistence of toxicity, and the probable effects on the marine food chain. The fee, as proposed, cannot be less than the difference between the cost of ocean disposal and the estimated cost of land-based methods.

We believe we could establish a fee based on the quantities and characteristics of constituents dumped; however, they would be subject to the public rulemaking procedures and complicated litigation that could delay promulgation of the regulations for a substantial part of the period if the basis for the fee schedule becomes a matter of serious controversy. Therefore, we suggest the subcommittees consider only having the fee based on the difference between ocean dumping and the land-based alternative. Since toxicity and persistence is a factor in the possible land-based alternatives the characteristics of the sludge will still be a factor in establishing the fee. With this change, we could move from passage to full implementation in a much shorter time period.

The most positive aspect of the proposed noncompliance fee is that the Administrator would be allowed to remit all or part of the penalty fee if a permittee puts an equivalent amount of money into attempting to implement land-based alternatives. This provision would have the effect of encouraging expeditious development of alternatives since it would not require additional funds beyond what would be required anyway to meet the 1981 date.

This proposal is not a revenue collection measure or a case of retribution. It is an honest attempt to encourage the municipalities to use the funds they are saving due to ocean dumping to imple

ment land-based alternatives as quickly as possible. We understand the historical reasons why these municipalities have dumped, and we are available to provide any assistance, financial or otherwise, within our resources and authority to expedite the transition. Working together we will meet the 1981 deadline.

Other amendments offered in the working draft would make the agency primarily responsible for research, investigations, experiments and training in finding alternatives to ocean dumping. Landbased sludge disposal research has been financed and carried out by EPA since it began the sewage treatment program. No sludge land disposal research has ever been financed out of the MPRSA but under FWPCA. The amendment to section 104(b) and section 113 in the working draft will clarify the matter of research into alternatives by giving the lead to the agency which has the necessary expertise on the effects of sludge in the other media.

Mr. Chairman, this concludes my prepared statement. I will now be happy to answer any questions you or members of the subcommittees may have.

Mr. BREAUX. Thank you very much, Mr. Jorling, for your statement.

On the question of EPA's region 3 office granting the permit to Philadelphia to continue the dumping at the Cape May site as opposed to the 106 site further offshore, is that basically an economic decision or are there other factors that went into making that decision?

Mr. JORLING. The decision which was made and was the subject of the article in the Washington Post this morning was the issuance of another interim period permit to the city of Philadelphia. That was because the original permit expired in June, and a new permit was necessary to be issued by region 3 to continue any activity on ocean dumping by the city of Philadelphia. It in no way prejudges or prejudices the outcome of the exercise that we are conducting under the court order, which has come to be known as the Toms River hearing. The hearing examiner in that case, my predecessor, Dr. Briedenbach, has not issued his recommendation to the Administrator on the question of whether Philadelphia should be moved from the near Cape May site to the further 106 site, so that that matter still is outstanding.

If, in fact, the Administrator makes a determination based upon the hearing examiner's recommendation to go to the 106-mile site, the region 3 permit will be immediately amended to incorporate the Administrator's determination.

The present issuance of this permit was simply because the present Philadelphia permit expired and new permit had to be issued.

Mr. BREAUX. I guess what you are saying is that the regional administrator did not have the authority to move the dumpsite but only rather to reissue a permit to dump at that particular dumpsite; is that correct?

Mr. JORLING. The determination was the region 3 administrator's and he made the determination to continue to dump at the Cape May site.

Mr. BREAUX. Didn't he have the legal authority to say: "We are not going to give you an interim permit to continue to dump at the

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Cape May site and we are going to require you to dump at site 106"?

Mr. JORLING. He has the authority to issue permits for designated dumpsites, but the questions remaining are whether or not the necessary preceding steps for site designation have been taken; namely, determining the amount of pollution at the 106 site and completing the NEPA process that must accompany the designation of a disposal site. And I am not quite clear whether or not those necessary preceding steps have been taken.

Mr. BREAUX. Let me ask you this and see if it is correct because I believe the article is incorrect about this.

Your EPA regional administrator for the Philadelphia area is Jack J. Schramm. The article says that hearing examiner George Pence explained yesterday that Schramm has no authority to order a change in the dumping site. Only EPA's National Administrator, Doug Costle, can do that.

Is that legislative authority; is that correct?

Mr. JORLING. No; it is not new legislative authority.

It is simply that the authority to make the determination required under the court order is reserved to the Administrator. So that is, I think, the reference that the new regional administrator was defining or describing in that statement.

There is one other qualification that I should add so that the record is perfectly clear: That the region 3 authority extends only to the extent of region 3. And it is my understanding that the 106mile site is, in fact, geographically, at least the way we define things, within region 2.

Mr. BREAUX. When that decision reaches the Administrator's level, he could negate the granting of the interim permit or he could change the site to a different site, such as 106, if he thought that was the best arrangement.

Mr. JORLING. That is correct.

The one thing in support of the region 3 position is that we are determined, as you know, to cease the dumping into the oceans by 1981, including the Philadelphia dumping activities.

And as the article accurately describes, we have in Philadelphia a phased-down permit sequence so that the permit that was issued on Friday, Mr. Chairman, calls for less ocean dumping than the permit which Philadelphia has previously been operating under. And there is a stage that we can monitor continually, down to elimination of the dumping by 1981.

Mr. BREAUX. According to that article it also points out that there would be 10 million gallons of sludge dumped in the final year, which ends in January 1981.

Now, the law requires us to end by December 31, 1981.

So, actually, if this statement is correct, you would be requiring Philadelphia to stop all ocean dumping 1 year before the deadline. Mr. JORLING. That is correct.

We believe that is possible and that is what we should require. Mr. BREAUX. Two other quick points.

On page 2 of your statement you talk about needing authority or you would like to have authority to continue issuing research and emergency permits and that your authority to do this should be exempt from the section 4 requirement.

Now, that tends to bother me, because aren't all of these permits you are granting now, Mr. Jorling, emergency permits?

Mr. JORLING. There is a distinction between what we consider emergency permits and these interim permits, and we did not include the interim permit practices we follow, Mr. Chairman, to be anyway included in that.

Mr. BREAUX. What type of permit did Camden, N.J., get?

Mr. JORLING. I would have to ask staff.

Mr. RHETT. I believe the Camden permit was a straight interim permit. An example of the emergency permit would be the hull of the Argo Merchant.

That was an emergency; in other words, something to be done that has to be done right away; a unique.

Mr. BREAUX. How does that differ from what happened in Camden?

They said the sludge was piling up and they had to get rid of it so the court ordered EPA to grant them a permit. It sounds like an emergency permit.

Mr. JORLING. The permit you are referring to is a court-ordered permit, and not an EPA permit. We would be very happy to have you confine the definition of emergency to those things that any reasonable men, if such can be assembled, would agree is an emergency. Perhaps tied to the protection of life would be an additional qualification.

Mr. BREAUX. That would certainly have to be looked into.

My only other question is on page 3-I have some other thoughts I will submit-on page 3, the first paragraph you state, "A similar fee, as suggested here, to the handful of communities which have failed to finance land-based alternatives."

It is a lot more than a handful, isn't it?

Mr. JORLING. It is a handful relative to the national program and is generally confined to EPA's regions 2 and 3.

Mr. BREAUX. How many communities are we talking about?

Mr. JORLING. In the Metropolitan New York City area-including the New Jersey communities-there is something on the order of 37 separate jurisdictions.

Mr. BREAUX. Any idea how much they dump?

Mr. JORLING. Yes; we have relatively good data.

I hope my memory serves me accurately; there are 2.2 million tons coming out of New York City annually.

There are 1.7 million additional tons coming out of the surrounding New Jersey communities and surrounding Long Island communities. There are approximately 450,000 tons presently coming from the city of Philadelphia. Those are the bulk of the remaining cities. Most other cities around the coastal regions of the United States, with the exception of some we are now prosecuting in enforcement actions, have abated dumping of sludge.

It is a handful of areas, to be more precise.

Mr. BREAUX. I just didn't want to give a misleading impression. We are talking about an awful lot of sewage sludge being dumped, even though it might not come from so many areas. Mr. JORLING. That is correct.

And I should also point out that both areas I mentioned, the Philadelphia area and the New York area, are presently putting on