under Federal policy which probably could not begin to get implemented until sometime next year or the first of the following year, how do you put the two together?

Mr. ALM. The current standards, as I mentioned before, require secondary treatment or its equivalent and the effluent guidelinesSenator MUSKIE. But that is an administrative guideline.

Mr. ALM. That is right, but most of the States have agreed to that. to my understanding, to the secondary treatment.

Senator MUSKIE. If you want to sharpen it, you can do it under the Water Quality Standards Act.

Mr. ALM. That is right, but it is being done here through the Refuse Act program, you could have guidelines outside of the Refuse Act,

that is true.

But we would establish and continue to have the use of the studies, the criteria to meet those, and you have section 21-B which requires that every Federal permit in the State water pollution agency must make a determination that the applicable facility will meet applicable water quality standards, so there is an interatcion between these two programs in the Federal Water Pollution Control Act and the Refuse Act.

The Refuse Act merely gives one part of the standards and that is the implementation plan regarding secondary treatment or its equivalent.

Senator MUSKIE. I have two questions: (1) Are you saying that these permits the ones the general has told us would start flowing out in the next 2 or 3 months-are you saying that these must be processed through the States under section 21-B?

Mr. ALM. I will ask that of the administrative men.

General GROVES. Yes, sir.

Senator MUSKIE. What will this mean with respect to State permits, for instance the State of California permits? You develop proposed permits for the discharges in the State of California, and you submit those permits to the State of California for review, veto?

Mr. ALM. States could make a determination whether the facility was meeting water quality standards.

Senator MUSKIE. The State of California already has its own permits covering the same discharge.

Now, if your permit varies from the State's permit, do you anticipate then that the State of California would be in a position to insist upon its formulation?

Mr. ALM. It strikes me the permits should be identical because both of them are a determination that

Senator MUSKIE. You are not seriously suggesting that if a State agency and a Federal agency, working independently, work on the same problem they will come up with the same answer?

You will have developed a permit, and the permit will be in the form that you have determined; before you submit it to the States. Mr. ALM. No, Senator, excuse me. The applicant will submit the application to the corps and the corps presumably would send it to the State waiting for the State's advice.

General Groves can probably talk about the details.

Senator MUSKIE. What is there in the application to suggest the standards of performance that the Federal Government is contemplating requiring?

Mr. ALM. I am sorry, I didn't understand the question?

Senator MUSKIE. Maybe I ought to back up a little bit.

Have you already developed the standards of performance that discharges in different categories ought to meet? Have you already established effluent standards?

Mr. CARROLL. No, we have not; we are doing studies on those at the

moment.

Senator MUSKIE. Are those effluent standards going to be subject to State review? They are not part of the developing process? Mr. CARROLL. That is correct.

Senator BEALL. What is correct in response to the question.

Mr. CARROLL. That the State through its comment is not part of the developing of the standards. I think there is an administrative question that is separate and distinct from the substantive question here. I hope that the administrative one is simplest so I will try to see if I can respond to that first.

There are a number of States which not only have their own permit programs in existence, they have very good permit programs in existence.

Senator MUSKIE. May I interrupt?

There is a luncheon set for this room at 12:30, and they are anxious to come in and set it up for that purpose.

Obviously we can't get into the full dimensions of this discussion in the few moments that are left.

We have another session scheduled for tomorrow morning at 10 o'clock. I think it might be helpful if you had overnight to consider the committee's concerns and if we could meet again at 10 o'clock tomorrow. I think it worth exploring further because this is a difficult problem that we face in writing the law. It has held us up.

We are not prejudging anything, but we have a lot of questions that we think you can answer before we proceed with writing the law. Would it be convenient to meet with us at 10 in the morning again? Mr. TRAIN. As I reported to Leon when he informed me of this meeting I am going to be out West tomorrow, I am leaving town this afternoon. I won't be back until Friday morning. I think Mr. Ruckelshaus will be here tomorrow.

Mr. CARROLL. He will be back tonight and he is scheduled to meet with the Joint Committee on Atomic Energy in the morning.

Senator MUSKIE. Well, you gentlemen will be available, won't you? That is fine, it is still helpful.

What we are trying to do is define the concepts which are in your minds and which are in ours.

Mr. TRAIN. Our staff will be available.

Senator MUSKIE. That is fine, if Mr. Ruckelshaus will come around, we will appreciate having him after he meets with the Atomic Energy Committee.

Thank you, gentlemen.

(Whereupon, at 12:05 p.m., the hearing recessed to resume 10 a.m., Wednesday, June 23, 1971.)

REFUSE ACT PERMIT PROGRAM

WEDNESDAY, JUNE 23, 1971

U.S. SENATE,

SUBCOMMITTEE ON AIR AND WATER POLLUTION

OF THE COMMITTEE ON PUBLIC WORKS,

Washington, D.C.

The subcommittee met at 10 a.m. pursuant to call, in room 4200, New Senate Office Building, Senator Edmund S. Muskie (chairman of the subcommittee) presiding.

Present: Senators Randolph, Muskie, Boggs, and Beall.
Senator MUSKIE. I wonder if we might begin.

I wonder if we might try to focus on the issues with a little more precision than we did yesterday. It started out as a rather informal discussion and then began to proceed around the issue.

I will have to leave for another committee sometime after 10:30. I know there are other members of this committee who have questions and who haven't had an opportunity to put these questions. I hope they will be here, and I hope they can get back from other committee hearings so that we can continue.

Now that we have begun this discussion, I want to complete it in as thorough a fashion as we can. Let me begin by reading from a memo that the staff prepared for us in March on this question:

As I see it, the subcommittee is confronted with a dilemma. The Administration Refuse Act Permit Program, which requires all industrial dischargers to obtain permits and meet effluent standards as a condition of continued operation, poses a number of serious questions relating to the consideration of the pending legislation.

Under both the Muskie bill and Administration bill, the States would be required to develop water quality standards for all of their waters. Those water quality standards, implementationwise, would include effluent limitations for each source of pollution and timetables for compliance. Also, the time schedule for the development, submission, and approval of implementation plans would be established by both bills.

Taken in context of the Federal Water Pollution Control effort, the subcommittee has no difficulty. However, it is expected that at least a year and perhaps 15 months would elapse from the date of enactment of a bill this year to the point at which time would start running on municipal and industrial sources of pollution to construct waste treatment facilities designed to meet the referred-to effluent limitations.

Assuming that the House and Senate agrees on a bill in September of this

year

And that now seems optimistic:

It would be January 1973 before the new program would be in effect and time would be running on those sources.

(4347)

The Administration Refuse Act Permit Program requires that industrial waste dischargers apply for permit by July 1, 1971. Those permits would be issued on the basis of effluent guidelines established by EPA. The EPA effluent guidelines will become conditioned on discharge permits, and compliance schedules would be included.

Assuming that EPA and the Corps of Engineers are able to process the permit applications, establish the conditions, set compliance schedules, and issue the permit by January 1, 1972, all industrial waste dischargers in the country would be operating under compliance schedule at least one full year ahead of the effective date of any implementation plans approved as a result of the legislation the subcommittee is now considering.

Thus, by January 1, 1973, all industrial waste dischargers holding a Refuse Act permit and attempting to comply with applicable effluent limits will have to re-evaluate their programs to determine the extent to which the Refuse Act Permit condition meets the effluent limits established as a part of the plans for implementation of water quality standards.

Industry may wait for implementation plans before it does anything in order to avoid what may be unnecessary or ill-advised investment. Also, continued consideration of the present procedure with reliance on water quality standards and effluent limitations tailored to implement those standards would mean that there would be two water quality programs proceeding about one year apart, which would place unnecessary and unreasonable burdens on polluters.

Further, altering the Water Quality Program in a manner envisioned by either the Administration's bill or the Muskie bill may have to result in a diminution of the authority under the Refuse Act.

Senator MUSKIE. That, I think, is enough from the memorandum of last March to present the dilemma which the committee sees, and I think the discussion which we had yesterday tended to underline those points rather than eliminate them.

I have a number of questions that I think we might ask to try to highlight further the implications of what we are saying. Let me put the first one in this way: First, with respect to section 21(b) of the Water Quality Improvement Act of last year, the House-Senate conference agreement on section 21 (b) limited EPA review authority over the certification procedures of the States to areas where downstream State water quality standards were involved, where no water quality standards were applicable, or where State or interstate agencies have no authority to issue certification.

Under the administration regulations for the Refuse Act program, EPA would have final authority over all water quality aspects related to a permit. In the absence of a statutory base in section 21(b), such final authority may be argued as resulting from implied authority in the Refuse Act or the inherent authority of the President to direct his agencies to carry out congressionally authorized functions.

However, what we would like to know is the basis for such final authority to veto a permit in the absence of authority under section 21, and whether a clear expression of the asserted authority in the Executive order and regulation should be confirmed by clear statutory authority, and, if so, why there was none recommended in the environmental message.

In other words, if we are to proceed with the permit program as it is now envisioned, is it necessary to clarify the statutory basis for the authority to do so from your point of view?