III and IV. Under normal circumstances, EPA is not for instituting enforcement actions unless the State concerned fails to take appropriate action; however, there is a provision authorizing EPA to take direct enforcement action in a State during any period in which State enforcement is ineffective.

EPA is in general agreement with this section but would suggest the following technical changes:

Section 309 (a) (2), relating to periods of federally assumed enforcement, points out a problem by referring (in line 17, page 92) to the "failure of the State to enforce such permit conditions," including Section 306 or Section 307 requirements, or just to those permits embodying a Section 301 or 302 effluent limitations? The later sections appear to be the only ones, intended to be covered. If so, Section 309 (a) (2), line 17, page 92, should be amended to cover "failure of the State to enforce such limitations or permit conditions applying such limitations effectively... .”

It should be recognized that a State can, notwithstanding action by the Administrator under Section 309 (a) (2), continue to operate a permit program approved under Section 402, including any categories of point sources as to which the requirement for Federal concurrence has been waived. In any event, the EPA summary takeover procedure under Section 309 (a) (2) could conflict with that provided in Section 402 (c) (3), requiring a public hearing, at least when a State was operating its own 402 program (which is to include enforcement-see Section 402(b) (7)). Indeed, other than with respect to existing "more stringent" State standards incorporated into Section 301 (via Section 301(b) (1) (C), it is unclear whether Section 309(a)(2) could ever come into play without a State Section 402 program operating, since until that time presumably only EPA would be enforcing Section 301 or 302 through the Section 402 permit program.

To avoid conflict with Section 402 (c) (3) hearing procedures, the following new section (3) should be added to Section 309(a) as follows:

(3) If, prior to action taken by the Administrator under paragraph (2) of this subsection, effluent limitations under Section 301 or 302 of this Act are being applied by a State under a program approved under subsection (b) of Section 402 of this Act, then the procedure provided in subsection (c)(3) of that section shall be followed by the Administrator in acting to assume enforcement, under paragraph (2) of this subsection.

Section 309 (a) (3) requiring the Administrator to either issue an order of compliance or sue whenever he finds a violation of Section 301 or 302 effluent limitations or Section 306, 308, or 402 of the Act makes no mention of the 30-day notice required by Section 309 (a) (1) with respect to Section 301 or 302 effluent limitations. In order to avoid conflict with Section 309 (a) (1), Section 309 (a) (3) should be revised as follows:

Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of Section 301 or 302 of this Act . . . (etc.) he shall, subject to the requirements of paragraph (1) of this subsection as to a violation of an effluent limitation under Sections 301 and 302 of this Act, issue an order requiring such person to comply with such section.

...

With respect to Section 309 (a) (4), the Senate Report states (at page 63) that if a violation ". . . . involves Section 308, the order will not take effect until the polluter has an opportunity to confer with EPA." To avoid unnecessary confusion, the list of exceptions to the "conferring" requirement presently set forth in the first sentence of subsection 309(a)(4) should be replaced with a single reference to Section 308 as the section for which a violation order must be preceded by an opportunity to confer. Section 309 (a) (4) would then read as follows: (4) An order issued under this subsection relating to a violation of any requirement of Section 308 of this Act shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator or his delegate concerning the alleged violation.

As presently drafted, Sections 309 (b), (c) and (d) make no reference to enforcement of orders issued by the Administrator under the emergency power granted him by Section 504 (a) of the Act. Nor is there any provision for enforcement of such orders made in Section 504. Enforcement sanctions, including criminal and civil penalties, should be available in order to make the Administrator's emergency powers meaningful. Therefore, we suggest adding a reference to Section 504(a) orders to the enforcement provisions of Section 309 as follows: (b) The Administrator shall commence a civil action for appropriate relief, including a permanent or temporary injunction whenever any person (1) violates or fails or refuses to comply with any order issued under subsection (a)

of this section or any order issued under subsection (2) of Section 504 of this Act.

A similar reference to Section 504 (a) should be made in the list of violations in Sections 309 (c) and (d) providing for criminal and civil penalties (as will be discussed below, these sanctions should, in any event, be patterned more closely after subsection (b)).

In addition to inclusion of Section 504 (a) orders, Section 309(b), (c) and (d) should be made to conform to each other as much as possible to avoid any unintended distinctions being drawn between violations subject to injunctive relief, criminal and civil penalties. Looking first at Section 309(b), subparagraph (b) refers to violations of Section 301, 302, 306 and 307 which have already been listed in subparagraphs (2) and (3) of Section 309 (b). This is unnecessary and confusing, and might be read to nullify the restrictions on enforcement of Section 301 and 302. Subparagraph (6) should be amended as follows:

(6) Violates a permit, or condition thereof, under Section 408 of this Act. Section 309 (b) (5) exempts no-permit discharge violations from enforcement until July 1, 1973. This is intended to encourage prompt action by EPA in processing permit applications (see Senate Report, p. 64). However, omitting the exemption from the criminal and civil penalties in Section 309 (c) and (d) certainly does not reinforce the pressure on EPA to process applications and also will not encourage industry to file early since they can get prosecuted anyway. Therefore, this exemption should be included in Section 309 (c) and (d).

An additional inconsistency among these provisions appears in Section 309 (d) where the violations subject to penalty are listed in more abbreviated form and some differences can be discerned as to Sections 301, 302 (reference to federallyassumed enforcement omitted) and 307 (reference to pretreatment standards omitted).

In sum, Section 309 (b) should be rewritten to delete the portion of Section 309 (b)(6) referred to above, and Section 309 (c) and (d) should then be made to conform to subsection (b) unless different treatment is specifically intended. Section 311 reenacts, with some modifications, present Section 11 dealing with oil pollution. It also includes within its ambit, hazardous substances now dealt with in Section 12 of this Act. The latter is defined to mean any substance designated by the Administrator of EPA, other than oil, which may present an imminent and substantial danger to the public health or welfare (including fish, shellfish, wildlife, shorelines and beaches) when discharged "in any quantity" into applicable waters.

We generally favor the provisions of Section 311.

We do, however, have the following comments and recommendations:

1. Section 311(a) (3)

The question of whether this section applies to continuous discharges, or only to spills, should be clarified. The intent appears to be to apply it only to spills. Otherwise, the regulation of hazardous substances under this section, and toxic substances under Section 307 (a), overlap and conflict. Thus, for example, a heavy fine is established for any discharge of certain hazardous substances (Section 311(b) (2) (C), although under Section 307 (a) the same substance might be classified as "toxic" and subject to an effluent limitation which permits some continuous discharge.

We believe this section should apply only to spills and that the present definition of "discharge" in 311(a)(2) should be changed as follows:

"Discharge" includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping, but shall not include any discharge that is in substantial compliance with an effluent limitation established under Sections 301, 302, 306 or 307, or is in substantial compliance with the conditions of a permit issued under Section 402 of this Act.

2. Section 311(b) (2)

Section 311(b) (2) rests on a misconception as to the nature of "removal" of hazardous substances. The section requires EPA to determine whether any listed hazardous substance "is subject to removal under this section." The term "removal" is defined in an extremely broad fashion by 311(a) (9) to include not only removal in the ordinary sense, but also "the taking of such other actions as may be necessary to minimize or mitigate damage to the public health or welfare..." This would include, for example, evacuation of a population, or closing down a public water supply system. Under this definition of removal, every

hazardous substance" would be "subject to removal" under many, if not most ircumstances. Indeed, even under a more restricted concept of "removal" if the rcumstances are right just about any hazardous substance can be removed. Vitness, for example, the case of the small lake in Ohio into which a quantity of ndrin was dumped; removal was accomplished by filtering the entire water olume through a carbon filter. Or in the case of some spills, “removal" might be ccomplished by diking.

In light of these considerations, 311 (b) (2) (B) commits a basic error in assumig that there can be a general determination for each hazardous substance as to hether it is "subject to removal."

Removal must depend on the particular circumstances of the spill, as well as n the type of substance involved. Accordingly, 311(b) (2) should be amended to hake the penalty which it imposes dependent on the degree to which the subtance was removed or removable in the circumstances of the particular spill for hich the penalty is imposed.

There is another problem with 311(b) (2) as drafted. It imposes a maximum enalty not to exceed $100 per gross ton or $14,000,000 for vessels and $8,000,000 or onshore and offshore facilities regardless of the amount discharged. Yet 311 b) (4) requires the President to issue regulations which would determine that ertain amounts of hazardous substances are not harmful. It would make no sense > impose fines for a discharge of an amount which EPA regulations said was not armful. In addition, the maximum penalties proposed are unrealistic and would e more meaningful if they followed those proposed in S. 2770. In view of this roblem and that relating to removability, we would suggest amending Section 11(b)(2) (ii) to read as follows:

(B) The Administrator shall, as part of any determination under subpararaph (A) of this paragraph, establish the rate of penalty, not to exceed $5,000 er barrel (or equivalent unit established by regulation by the Administrator) f discharge, to be imposed under subparagraph (C) of this paragraph, for each azardous substance designated. He shall establish such penalty based on the oxicity, degradability, and disposal characteristics of such substance.

(C) The owner or operator of any vessel, onshore facility or offshore facility rom which there is discharged any hazardous substance designated under subaragraph (A) of this paragraph, shall be liable, subject to the defenses to iability provided under subsection (f) of this section, to the United States or the penalty per barrel of such substance discharged established under subaragraph (B) of this paragraph, or $50,000 per discharge, whichever is greater. inch penalty shall be subject to reduction to the degree that the owner or opertor can prove to the satisfaction of the Administrator that the hazardous subtance discharged was in fact removed or appropriate restoration actions were aken, and no such penalty shall be imposed for any discharge of an amount letermined not to be harmful under regulations issued pursuant to paragraph 4) of this subsection.

4. Section 311(b) (6)

Following the provisions of the present Act, this provision assigns to the Coast Guard responsibility for assessing a civil penalty of up to $10,000 for discharges of oil and hazardous substances. The present Act, however, only covers disharges of oil. Expansion of the section to hazardous substances may make it lesirable for EPA to be the agency with authority to impose a fine in certain cases, as, for example, discharges of hazardous substances from various industrial facilities. The Coast Guard, of course, would remain the most qualified agency where there are discharges from vessels or terminals. Section 311(b) (6) hould be amended to give the President authority to allocate the authority among EPA and the Coast Guard, as follows:

(6) Any owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is willfully or negligently discharged in violation of paragraph (2) of this subsection shall be assessed a civil penalty y the appropriate agency of the United States Government as determined by he President of not more than $10,000 for each offense. No penalty shall be asessed unless the owner or operator charged shall have been given notice and Opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such agency. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator harged, the effect on the owner or operator's ability to continue in business, and

the gravity of the violation, shall be considered by such agency. The Secretary of the Treasury shall withhold at the request of such agency the clearance required by section 4197 of the Revised Statutes of the United States, as amended (46 U.S.C. 91), of any vessel the owner or operator of which is subject to the foregoing penalty. Clearance may be granted in such cases upon the filing of a bond or other surety satisfactory to such agency.

4. Section 311(d)

Section 311(d) provides the President with authority to take summary action in the event of a marine disaster involving a substantial threat to the public health or welfare. This section is brought into play if there is an actual or imminent discharge of "large quantities" of oil or hazardous substances from a vessel. The word "significant" should be substituted for the word "large" (line 16) to insure application of the section to hazardous substances which may present a substantial threat to the public health or welfare even in small quantities.

5. Section 311(p)

Section 311(p), which requires vessels to carry evidence of financial responsibility for liabilities under 311, is made effective by 311(p) (2) one year after the effective date of the Water Quality Improvement Act of 1970. This makes sense with respect to liability for oil spills, which was established by the 1970 Act, but it does not make sense with respect to liability for hazardous substance spills, which would be established by the present legislation. Accordingly, the first sentence of 311 (p) (2) should be amended to read as follows:

The provisions of paragraph (1) of this subsection shall be effective one year after the effective date of the Water Quality Improvement Act of 1970 with respect to liability for discharges of oil, and one year after the effective date of this section with respect to liability for discharges of hazardous substances. Section 311 (p) (4) should be deleted as this study was conducted in accordance with the Water Quality Improvement Act of 1970 and submitted to Congress in April 1971.

Section 312 continues present Section 13 dealing with control of sewage from vessels, with an amendment under which Federal preemption of State regulations would apply to vessels which achieved compliance with Federal standards and regulations for marine sanitation devices after their promulgation but prior to their effective date, and an amendment whereby all discharges may be prohibited if necessary for "the protection and enhancement of the quality” of any

water.

We support these amendments.

Section 313 amends present section 21(a) dealing with control of pollution from Federal activities to require compliance with applicable Federal, State and local requirements (except as exempted by the President).

We support these amendments.

Under Section 314, States would be required to prepare special plans for controlling and abating pollution of publicly owned fresh water lakes; $300 million would be authorized over a three-year period for grants to States for such purposes.

We strongly oppose these provisions. We can see no valid reason to separate from the national program bodies of water or categories of water, such as fresh water lakes. Those lakes, just as other bodies of water can be more effectively addressed under our comprehensive programs of grants, research, demonstrations, technical assistance, planning and regulations. There is no separate technology unique to pollution control in fresh water lakes to justify the separate address to these problems Section 314 would authorize.

We recommend these provisions be deleted.

Section 315. The National Academies of Sciences and Engineering are directed to study and report on all aspects of the total social and economic effects of either achieving or not achieving the effluent limitations and goals for 1981.

EPA agrees that the social and economic effects of achieving or failing to achieve the limits and goals set by the bill should be studied and ascertained. However, we would suggest that the National Academies of Sciences and Engineering are not, by themselves, the appropriate bodies to address all of the broad social questions involved.

H.R. 11896 calls for the submission of the report of such study to the Congress not later than two years after the date of enactment. It is EPA's view that any such studies conducted should in their final analysis appropriately include the

maximum information and data that will be developed pursuant to planning and other activities the bill would authorize during the period 1971-1976. Although a preliminary report might be appropriate by such date, it is our view that the final report should not be required prior to 1975.

TITLE IV-PERMITS AND LICENSES

Section 401 is essentially the same as the present section 21(b). However, the grandfather clause-Section 401(a) (7)—has been amended to achieve a result exactly the opposite of what was intended by the Senate Committee. The Senate Committee report explains that the intent of the amendment was to exempt Refuse Act permits (or equivalent permits under the new Act) from the grace period, where construction of the facility started before April 3, 1970. The Report explains (at p. 69): “Certification will be required for all such permits from the date of enactment on, regardless of the time construction of the facility began."

However, as drafted the new Section 407(a)(7) does not exempt Refuse Act or equivalent permits from the grace period. Instead, it includes such permits in the grace period, and then exempts them from the requirement that the permit expires on April 3, 1973 unless a water quality certification is obtained. Section 401(a)(7) should be amended to delete the parenthetical phrase following the word "permit" in line 9 (p. 142 of the bill), and insert the same parenthetical phrase in line 7 (p. 142 of the bill) following the word "permit." Section 401 (d) certifications under Section 401 are to assure compliance with Sections 301 and 302 and "any other applicable water quality requirement in such State." The scope of the catchall phrase is not defined in Section 401, and the question arises as to whether certification by the State is to include certification with respect to discharges from point sources to meet the provisions of Section 306 or 307. Section 401(d) provides that any certification is to set forth the effluent limitations necessary to assure that the applicant for a Federal license will comply not only with Sections 301 or 302 but also Sections 306 or 307 or any more stringent requirement under State law as provided for in Section 510 of the Act. Therefore, the intent of the drafters apparently was to allow the States to certify as to Section 306 or 307 requirements or any applicable State requirement saved under Section 510. This intention would be more clearly expressed if the term "applicable water quality requirement" was defined in a new subsection (f) which would track the present language of subsection (d) as follows:

(f) The term "applicable water quality requirement" as used in this section means any applicable effluent limitations under Section 301 or 302 of this Act, or prohibition, effluent standard, or pretreatment standard under Section 307 of this Act, or any more stringent water quality requirement under State law as provided in Section 510 of this Act.

Present subsection (d) should then be shortened to read as follows:

(d) Any certification provided under this section shall set forth any effluent limitations and monitoring requirements necessary to assure that any applicant for any Federal license or permit will comply with any applicable water quality requirement and shall become a condition on any Federal license or permit subject to the provisions of this section. Section 402, entitled "National Pollutant Discharge Elimination System," directs the Administrator to issue permits for the discharge of pollutants into navigable waters, the territorial sea, the waters of the contiguous zone, or the oceans, provided such discharges meet applicable requirements under the Act (in particular, the requirements of Sections 301 and 302 dealing with effluent limitations, and the requirements of Sections 306 and 307 dealing with new source standards and toxic substances). Section 402 in effect continues the Permit Program heretofore carried out under the Refuse Act of 1899, except that permits would be issued by EPA (under the Federal Water Pollution Control Act) rather than by the Corps of Engineers. There is a savings clause for any permits issued under the Refuse Act after June 30, 1971.

The permit-issuing authority under Section 402 applies to all discharges of pollutants into navigable waters of the United States, the contiguous zone and the ocean, except discharges from vessels and other floating craft into the contiguous zone and the oceans. The excepted class of discharges would be regulated by a separate piece of legislation.

Any application for a permit for the discharge of dredged spoil into navigable waters would be required to be accompanied by a certificate from the Secretary 90-538-73-29