H.R. 4036 eliminates this requirement for State consent or request as a condition precedent to suit by the Attorney General at the request of the Secretary. What is your position relative to this change, which has the effect of removing the States from an important role in the enforcement procedure?

It is also requested that you prepare and submit a comparison of the proposed legislation submitted to the Congress by your Department under the previous administration on January 18, 1961, H.R. 4036, and your recommendations of March 29, 1961, together with the justification for your recommendations.

I am sure we share the same desire that whatever legislation is ultimately enacted be fiscally sound, effective, and able to withstand attacks upon its constitutionality. Your answers to the above questions will be most helpful in obtaining these objectives.

With best wishes, I am,
Sincerely yours,

WILLIAM C. CRAMER,
Member of Congress.

APRIL 10, 1961.

Re H.R. 4036, legal issues raised by Mr. Cramer's letter of April 7, 1961.
The SECRETARY,

ALANSON W. WILLCOX, General Counsel:

Mr. Cramer's letter of April 7, 1961, raises in greater detail certain legal questions dealt with in my memorandum of April 6, 1961 (which apparently had not reached Mr. Cramer when his letter was written).

The constitutional basis for the exercise of congressional authority to prevent the pollution of navigable waters (questions 1 and 2 of Mr. Cramer's letter) are dealt with in the earlier memorandum.

With respect to question 2(a), inquiring about the purpose of the change from "interstate" waters in the existing statute to "navigable" waters, as proposed in the bill, it should be pointed out that the change would enlarge the scope of Federal enforcement authority to an area coextensive with congressional power over navigable waters, and would make such authority applicable to the pollution of navigable waters which do not come within the present definition of "interstate waters" (that is, rivers, such as the Sacramento River, which lie entirely within a coastal State).

With respect to the procedural provisions of the bill, the previous memorandum pointed out that, in the absence of congressional action indicating a contrary intent, enforcement proceedings under H.R. 4036 would be subject to the Administrative Procedure Act. Among the purposes of that act is assurance that the "requirements of fairness" will be met from the beginning to the end of administrative proceedings. The act, it is true, does not undertake to specify in detail all of the minutiae of the procedures which may be required to assure compliance with the dictates of fairness If such minute statutory specification has not been thought necessary, either in the Administrative Procedure Act or in substantive regulatory legislation, I see no reason that it should be undertaken in H.R. 4036. These details, and other matters relating to the administration of the law, are quite properly left for specification by regulations of the Secretary, which must measure up to the constitutional standards applied by the Supreme Court to administrative proceedings of this kind as well as to the Administrative Procedure Act.

Community Facilities Administration construction loans under existing legislation are intended for communities unable to obtain commercial loans at reasonable rates from private sources. These loans must be repaid at interest rates comparable with those paid by the Government. Such loans make it possible for many small communities to borrow funds when they could not otherwise do so, but do not appreciably lessen the financial burden imposed by sewage treatment works construction. Community facilities loans do not supplant the need for construction grants under the Federal water pollution control program, but do make it possible for some communities to raise their share of the funds where otherwise unable to. Grants serve as an incentive to encourage and strengthen the fiscal ability of communities faced with the construction of waste treatment works needed to protect downstream communities and other downstream water uses.

The area redevelopment bill would authorize $75 million for the purpose of making grants to political subdivisions in redevelopment areas for the con

struction of all types of public facilities. Historically, waste treatment works have received a very low priority among competing municipal public works, because the benefits go to downstream communities.

That aid which is provided would go to economically depressed areas where additional financial assistance is needed. This would not duplicate the present grants program and would not justify a decrease in the authorization for construction grants in H.R. 4036.

(a) Federal contribution under "sliding scale" for previously approved projjects would have been $98,000 per project instead of $82,000 or 27 percent instead of 23 percent.

(b) For pending projects, the "sliding scale" would provide an average grant of $167,000 as compared to $95,000 requested under Public Law 660-with Federal participation of 27 percent instead of 15 percent.

(c) When the total backlog of needed projects is considered, the average grant would be $89,000 under the "sliding scale" and $74,000 under Public Law 660 giving Federal participation of 23 percent and 19 percent, respectively.

This provision in H.R. 4036 will encourage neighboring communities to join together to construct sewage treatment works which will serve each of their needs. Experience shows us that the per capita cost of construction of sewage treatment facilities for a community having a population of 1,000 is about $75. As the facilities increase in size, the per capita cost decreases. Thus, a plant serving a community of 10,000 costs approximately $50 per capita, while one for a community of 100,000 would have a per capita cost of about $25.

By encouraging communities to join together the total cost of constructing the Nation's municipal treatment facilities is lessened. This will result in grant funds being available to stimulate more projects.

Increased State participation in the cost of constructing municipal waste treatment works is desirable, but such participation should not be required as a qualification for Federal aid for the reasons cited in the testimony. Incentive in the form of requiring State matching of that part of any Federal grant in excess of $250,000 would eliminate incentives for larger projects— which have been lagging-since it would preclude grants in excess of $250,000 unless matched by State grants. Only four States (Maryland, Maine, Vermont, and New Hampshire) have grant programs of an applicable type in operation at this time. There is no reason at this time to propose an increase in Federal participation from 30 to 40 percent where States provide matching grants since the lesser rate of participation has been adequate as an incentive to this type of construction.

We do not believe this bill should appropriately provide additional incentives to States to participate in the cost of construction of municipal sewage treatment projects. Such a program might eliminate the flexibility of State programs providing assistance to municipalities and urban areas for a variety of purposes. In addition some States, because of financial limitations, may not be able to provide such assistance, while the pollution problem may be acute in these States.

Under the present program and, that under H.R. 4036, the State water pollution control agencies determine priority of projects on the basis of financial and water pollution control needs. We believe this is proper and makes the best use of Federal funds in each of the States. To date 79 percent of the projects receiving grants serve communities of less than 10,000 population. Another 15 percent of federally assisted projects serve communities of 10,000 to 50,000 with only 6 percent serving communities over 50,000 population. While communities having a population of over 50,000 need only 99 of the 5,127 projects required at present, these projects would serve 60 percent of the total population having need for new plants, enlargements, and additions. In our opinion, the increase in the maximum grant from $250,000 to $1 million will stimulate more construction in the larger communities and that a limitation such as suggested would defeat this purpose. The State agencies will continue an equitable distribution of Federal funds between large and small communities within the State without this added limitation.

We are wholeheartedly in accord with water resource development on a river basin basis, including water pollution control. It is believed that an effective pollution enforcement program is a necessary requisite to such basin development. If pollution abatement is to be accomplished on a river basin basis, enforcement action often must be undertaken by Federal or interstate agencies in cooperation with the States involved. It may be noted that State representa

tives in the Columbia and Delaware Basins, in preparing proposed interstate compacts for river basin development, have included strong pollution control enforcement provisions.

We believe the enforcement provisions of H.R. 4036 will continue the existing Federal-State cooperative program in the field of enforcement. The Federal Government will not be able to enter cases involving intrastate pollution without first being requested to do so by State authorities. The time of this request is when it should be before the Federal Government initiates action and spends public moneys. In addition the States affected will have an opportunity to place a member on hearing boards in enforcement cases. Moreover, these States would continue to be invited to hearings as parties and given a full opportunity to present evidence and their point of view.

COMPARISON BETWEEN H.R. 4036 (WITH HEALTH, EDUCATION, AND WELFARE MODIFICATIONS) AND FORMER HEALTH, EDUCATION, And Welfare BILL (JANUARY 18, 1961)

Aside from changes of a drafting nature, H.R. 4036 (with modifications suggested by HEW) differs from the bill submitted by the Department of Health, Education, and Welfare on January 18, as indicated by the following:

H.R. 4036

1. Applies to pollution of any navigable waters endangering health or wel fare of any persons.

2. (a) Commissioner required to call conference at request of Governor, State agency, or (with consent of either of them) municipality.

(b) None.

(c) Commissioner may call conference on own initiative when, on basis of studies, he believes pollution with interstate effect is occurring.

NOTE. HEW recommends (1) that (a), above, be changed so as not to require Federal action where pollution without interstate effect is not of sufficient significance, and (2) that (b), above, be changed to make calling of conference in such cases mandatory.

3. Permits joinder of new party after notice of hearing before Board if existence of the discharge was not previously known..

4. Appeal from Federal order may be taken to court by any person subject to the order.

Under both bills:

FORMER HEW BILL (1-18-61)

1. Applies to pollution of interstate waters where (a) such waters are navigable waters of the U.S., or (b) such pollution has an interstate effect.

2. (a) Surgeon General required to call conference when so requested, if pollution with interstate effect is alleged.

(b) May call one when so requested, but no interstate effect alleged, if of sufficient significance.

(c) Same as (c) under H.R. 4036.

8. No such provision.

4. An appeal may be taken to court by any person adversely affected thereby.

NOTES

1. The Secretary may revise the hearing board's findings and recommendations.

2. The Secretary issues an order (rather than a notice) which becomes final in 60 days unless appealed to court.

3. The requirement of State consent to court action (or issuance of a final order) is eliminated.

Mr. BLATNIK. It is in the record. Thank you, Mr. Secretary, and the material, the questions and answers, will be available in the record for the Members to have a complete discussion in executive session.

I have two communications here. First I have a wire from the mayor of New York City, the Honorable Robert F. Wagner, strongly supporting the principles of this bill, but opposing the section dealing with a special department.

Without objection, that will be made a part of the record at this point.

(The telegram referred to is as follows:)

Hon. CHARLES A. BUCKLEY,

Chairman, Committee on Public Works,

House of Representatives,

Washington, D.C.:

MARCH 28, 1961.

I strongly urge that you support in principle H.R. 4036, the Blatnik bill which proposes to amend the Federal Water Pollution Control Act. However, I also urge strongly that the provision in the proposed bill for a water pollution control administrator be vigorously opposed and that support be given to the President's proposal to establish "a special unit within the Public Health Service under the Department of Health, Education, and Welfare."

ROBERT F. WAGNER, Mayor, City of New York.

Mr. BLATNIK. I also have a letter from Ed Stegner, executive secretary of the Conservation Federation of Missouri, requesting the support of Mr. Hull, of Missouri, of H.R. 4036. Without objection, this letter will be made a part of the record at this point. (The letter referred to is as follows:)

CONSERVATION FEDERATION OF MISSOURI,
Jefferson City, Mo., March 15, 1961.

Hon. WILLIAM R. HULL, Jr.,
House of Representatives, Washington, D.C.

DEAR MR. HULL: I wish to request your support of H.R. 4036, the so-called Blatnik bill to amend Public Law No. 660.

As you probably know, the Conservation Federation of Missouri was quite instrumental in obtaining passage of the Missouri comprehensive water pollution law. While great strides have been made since this law has been enacted much remains to be done. I am advised that there are 444 communities in Missouri that need new sewage treatment plants or additions to present inadequate facilities. Since Federal funds became available for municipalities, 99 Missouri cities have received Federal funds. Most of these have been smaller cities in the States.

Last fall North Kansas City and Kansas City passed bond issues totaling approximately $80 million for trunk sewers and sewage treatment. In August 1960 the Metropolitan St. Louis Sewer District passed bonds totaling approximately $16 million for new trunk sewers and sewage treatment, which represents only a portion of the St. Louis problem. The studies covering the major problem in the St. Louis area have not yet been completed. In all probability, the cost of providing pollution control for the major portion of that area will exceed the cost of the Kansas City, Mo., projects.

Cape Girardeau does not provide sewage treatment and a project is required to reduce pollution in that area. St. Joseph will vote on April 11 for new sewers and treatment works. All of these are the large projects in Missouri and, of course, these cities are the major sources of pollution.

It is my feeling that if we are to continue to make progress in Missouri in reducing pollution, it is essential that the grants to municipalities be increased substantially.

Sincerely yours,

ED STEGNER, Executive Secretary.

Mr. BLATNIK. This concludes the hearing for this morning, and the meeting is adjourned.

(Whereupon, at 11:10 a.m., the committee adjourned.)

О