October 16, 1963
PAGE 19661
AMENDMENT OF WATER POLLUTION CONTROL ACT
The Senate resumed the consideration of the bill (S. 649) to amend the Federal Water Pollution Control Act, as amended, to establish the Federal Water Pollution Control Administration, to increase grants for construction of municipal sewage treatment works, to provide financial assistance to municipalities and others for the separation of combined sewers, to authorize the issuance of regulations to aid in preventing, controlling, and abating pollution of interstate or navigable waters, and for other purposes.
Mr. COOPER. Mr. President, I oppose Senate bill 649, and I state my reasons for doing so.
I am a member of the Senate Committee on Public Works, but I am not a member of the subcommittee which conducted hearings on this bill. I must say that in the course of the hearings, the subcommittee gave long and careful consideration to the bill.
My dissenting views are printed in the committee report. In preparing my dissenting views, I did what I thought was proper in paying my compliments to the Senator from Maine [Mr. MUSKIE] and to the leadership of the ranking minority member of the subcommittee, the Senator from Delaware [Mr. BOGGS], for the very careful hearing and consideration they gave to the bill. I believe it was greatly improved as a result of the hearings.
Several years ago, when I first served on the committee with the distinguished Senator from Florida [Mr. HOLLAND] who is sitting near me -- in 1947 and 1948 -- we considered and approved the first water pollution control bill. It was a modest bill, which had been introduced by the late Senator Taft of Ohio, and the late Senator Barkley, then my colleague from Kentucky.
Later during my service on the committee, amendments strengthening water pollution control were recommended by the committee, and have been enacted into law. As I recall the initiative for those amendments came chiefly from the late Senator Kerr, of Oklahoma. I supported all of these measures.
I recognize, as do the members of the subcommittee who drafted the bill, and as I am sure all other Senators recognize, that we must continue to provide more effective means of controlling and abating water pollution. We can never stand upon existing legislation and say it is perfect, for the magnitude of the problem demands great cooperative efforts by the Federal Government, the States, municipalities, and industry. The problem of water pollution will require a tremendous amount of public and private funds before it can be resolved.
In my dissenting views, I point out that about $20 billion has been spent by the Federal Government on water pollution control, and billions more will be needed. The cost alone requires the cooperative effort of the Federal Government, the States, municipalities, and industry. The legislation we pass must sustain and increase cooperative efforts.
I oppose the pending bill because, in my opinion, it represents a radical departure from the cooperative approach to the problem of water pollution control and abatement -- an approach developed over the years by the Federal Government, the States, municipalities, and private industry. I know it will be argued that my conclusion is not correct; and, of course, there can be differences of judgment in regard to this matter. However, I present my views.
Under existing legislation, a number of cooperative approaches are available. For example, the Corps of Engineers may increase the height of its structures so that additional water can be stored for communities and the flow of water maintained; in some instances, the communities pay for such extra services. As another example, the Community Facilities Administration provides communities with a part of the funds needed for sewage lines and water supply. And under the Water Pollution Control Act, the Public Health Service now makes grants to communities to assist them in building sewage treatment plants.
The basic Water Pollution Control Act makes the following statement as a declaration of policy:
It is hereby declared to be the policy of Congress to recognize, preserve, and protect the primary responsibility and rights of the States in preventing and controlling water pollution, to support technical research resting to the prevention and control of water pollution, and to provide Federal technical services and financial aid to State and interstate agencies and to municipalities in connection with the prevention and control of water pollution.
As a result of this cooperative system, I believe that every State now has a water pollution control agency which works with communities and industry and the Federal Government. These State agencies have worked hard to abate pollution of interstate and intrastate waters.
Mr. President, I ask unanimous consent to have printed at this point in the RECORD a statement which appears in the record of the hearings showing the organization of the State water pollution control activities.
There being no objection, the statement was ordered to be printed in the RECORD, as follows:
ORGANIZATION OF STATE WATER POLLUTION CONTROL ACTIVITIES, HEARINGS, PAGE 86
The present distributions of authority for water pollution control activities among the 50 State governments are as follows:
1. Twenty States have placed water pollution control authorities in their State health agencies. These are as follows: Alaska, Arizona, Colorado, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Massachusetts, Mississippi. Nevada, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Rhode Island, and Wyoming.
2. Twenty States have placed their water pollution control authorities in independent agencies. These are as follows: Alabama, California, Connecticut, Delaware, Illinois, Louisiana, Maine, Michigan, Minnesota, Montana, New Hampshire, North Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, and Wisconsin.
3. The 10 remaining States have created statutory agencies within their State health agencies. These are as follows: Arkansas, Indiana, Kentucky, Missouri, Nebraska, Ohio, Oregon, Pennsylvania, South Carolina, and Utah.
STATE ACTION SETTING STANDARDS OF WATER QUALITY -- HEARINGS, PAGE 119 ET SEQ.
Thus far 36 States have legislation that directs or permits the establishment of stream classifications and/or water quality standards. Of these, 22 States have established such classifications and/or standards and 14 have not. Criteria in use range from a minimum requirement of primary treatment of wastes to complex systems of stream classifications and water quality standards. In certain States where fairly comprehensive systems have been established, standards and classifications are not applied statewide, and cases are judged on an individual basis.
Six formal interstate agencies, several informal interstate groups, and the International Joint Commission have legislation or agreements providing for water quality standards and classifications. All but five of the States are members of formal interstate agencies or informal interstate groups and apply the established or agreed upon classifications and water quality standards to their interstate waters.
The following table summarizes State and formal interstate actions to establish stream classifications and/or water quality standards as determined by responses to a questionnaire of the Senate Public Works Committee and supplemented by information available to the Public Health Service.
[Table Omitted]
Mr. COOPER. I do not argue this question on any legal issue of the rights of States. That has no reference to my argument. The argument I make is that the magnitude of the job, and the attainment of effective water pollution control and abatement, demand the cooperation and the continued efforts of the States, municipalities, and industry, as well as the Federal Government.
It is my view that this bill breaks up the cooperative effort and the needed participation of the States by transferring ultimate power to an agency of the Federal Government.
From what sources does water pollution come? Largely it comes from municipalities or from industry. What does the bill provide? In my judgment, the bill would transfer to the Federal Government whatever authority the States now have to deal with the causes of pollution. I know that my view differs from that of the Senator from Maine as to what the bill does. I shall try to make my point by comparing the present law and the provisions of the bill.
First, the bill would establish in the Department of Health, Education, and Welfare a new agency -- called the Federal Water Pollution Control Administration -- which would be directed by an Administrator. The agency would be under the supervision of a new Assistant Secretary, who, of course, would be responsible to the Secretary.
At the outset of the bearings, Secretary Celebrezze and the Bureau of the Budget stated that they did not favor the establishment of a new agency. I called attention to their views in my dissenting opinion to the committee report. I wish to be fair, and must say that I noticed the Senator from Maine presented today letters which state that the Secretary of Health, Education, and Welfare, and the Bureau of the Budget, do not now object to the bill. I believe these letters came after I had called attention to the fact that Secretary Celebrezze and the Bureau of the Budget did not support the establishment of a new agency.
Mr. MUSKIE. Mr. President, will the Senator yield for a comment?
Mr. COOPER. I yield.
Mr. MUSKIE. The form which the bill now takes with respect to the new agency was responsive to some comments made by the Secretary in his testimony before the committee. It was on the basis of the opening statement which he made that the proposal which is now in the bill was framed. So an evolutionary process took place in the thinking of the department and the administration on the bill.
Mr. COOPER. I understand. I am not resting my position against the bill on the ground that it would establish a new agency, although I do not believe it is needed. I know that a suggestion was made that all of the functions related to environmental health should be combined in one agency. But I make the point that until a few days ago Secretary Celebrezze opposed the new agency.
The methods by which the bill would transfer final power over water pollution control to the Secretary of Health, Education, and Welfare are as follows:
The proposed legislation would give to the Secretary authority to fix standards of water quality for every interstate stream and any tributary thereof in the United States. This would include practically all waters of any consequence in the United States.
It is true that the bill provides that before the Secretary may fix such standards of water quality, he must consult with other Federal agencies. He must also consult with the States, and give them the opportunity to fix acceptable standards of water quality.
But the point is that the decisive power to fix standards of water quality is vested in the Secretary of Health, Education, and Welfare and, for all practical purposes, in the hands of the unknown Administrator who would be named to head the new Federal Water Pollution Control Administration.
I should like to make the point -- and if my statement is not accurate I hope the Senator from Maine will cite the facts -- that there is no evidence in the hearing testimony provided by any State, Federal agency, or State water pollution control agency, supporting the fixing by the Secretary of water quality standards for river basins or parts thereof, or the feasibility of such standards. Such testimony as does appear in the hearings on this issue questions the feasibility of fixing such standards of water quality.
I do not know whether it is possible to fix such standards. But I do say that the bill provides that the Secretary shall ultimately have the power to fix standards for every river basin in the United States. The hearings indicate no request of the Secretary of Health, Education, and Welfare for this authority. And there is no evidence that the Governors of the States, or State water control agencies, approve this radical change from existing law.
I believe that under the bill introduced by the late Senator Kerr, two water control laboratories were established. In looking through the hearings I cannot find that any of the experts, including scientists and technicians from these laboratories, testified about the feasibility of fixing water quality standards or all the interstate rivers of the Nation.
If the Secretary exercises the authority provided by this bill and fixes standards of water quality for a stream in my State of Kentucky, Florida, Montana, Maine, or any other State in the Union, those standards will be the ones to which he courts and the enforcement agencies must look. That point is very important.
The Secretary would be given another power under this bill. After he fixed standards of water quality, if he subsequently determined that any discharge into an interstate stream, or into a tributary of an interstate stream, lowered or altered the water standards, he would be given the power to seek abatement.
There would be still another change from existing law. Existing law relates standards to health and welfare conditions. This bill would bring into play a number of other factors -- recreational uses, agricultural uses, industrial uses, and fish and wildlife uses. Perhaps these uses should be brought into consideration, but I point out that in fixing water quality standards, the Secretary would not be limited solely to the question of whether the standards affected health and welfare; he would be authorized and directed to take into consideration all these other factors. Further -- and this is very important -- the Secretary would be directed not only to take into consideration the present uses of a stream, in fixing water quality standards, but also the possible future uses of the stream.
Imagine, if you will, the Secretary of Health, Education, and Welfare -- or really, the administrator of the new agency -- looking at the thousands of streams all over the United States, and being authorized and required to ultimately fix water quality standards, taking into consideration all these factors, not only as they exist today but also as he believes they may exist in the future.
The majority report should be read carefully. One statement is very significant. With all the powers centered in the Secretary of Health, Education, and Welfare -- the power to fix standards for every interstate stream in the United States; the power to determine whether the discharge from a small community or industry along some creek which may reach an interstate stream would alter the standards of water quality; the power to look into the future use of a stream as well as to its present use -- this bill would give the Secretary of Health, Education, and Welfare a kind of zoning authority over all river basins in the United States.
I know it will be said that I overemphasize the powers to be given the Secretary by this bill. I know that some of the powers which I have noted may not be exercised. The point I make, however, is that the powers are nevertheless given to the Secretary by this bill. He does not have them today. The States today exercise some brake upon the power of the Federal Government with respect to water pollution control and abatement.
With respect to zoning river basins, the possibility of such authority is not a figment of my imagination. I call attention to the report of the majority, on page 8, under the heading "Standards of Water Quality":
Increasing population and expanding industrialization are placing growing demands on our limited sources of water. It will be necessary for us to use many rivers for multiple purposes, including industrial, agricultural, recreational, public water supply, and fish and wildlife uses.
I agree with that part of the statement but I read further:
In other cases, the uses on a given river or portion of a river will be more limited, depending upon the nature of the waterway, the intensity and history of use, and alterative sources of water in the area. Economic, health, esthetic, and conservation values which contribute to the social and economic welfare of an area must be taken into account in determining the most appropriate use or uses of a stream,
Mr. President, who will determine the most appropriate use, or uses, of a stream? Will it be the Secretary of Health, Education, and Welfare, acting upon behalf of the new Federal agency which this bill establishes?
Mr. MUSKIE. Mr. President, will the Senator from Kentucky yield?
Mr. COOPER. I am glad to yield.
Mr. MUSKIE. The Senator from Kentucky knows of my very great respect for him.
Mr. COOPER. We have mutual respect for each other.
Mr. MUSKIE. The Senator applies himself with dedication to the problems confronting us. I state that to the Senator because I do not wish what I am about to say to be misunderstood.
Mr. COOPER. I thought something else would be forthcoming.
Mr. MUSKIE. We have discussed these points so often that I am convinced I will not be able to persuade the Senator from Kentucky that the view he is expressing is incorrect. But I wish to state again what I believe about the bill. In the first place, if the bill would do what the Senator says, I should be the first to vote against it. There is no question about that. If the bill would do what he says, it would be against the interests of my State, and it would endanger and possibly risk the whole industrial structure of my State. I am sure it would call the wrath of my conservative constituents down on my shoulders if they believed that I would depart as far as the Senator from Kentucky says this bill would depart, from the responsibilities and rights of the States.
The Secretary of Health, Education, and Welfare now has the authority to make determinations with respect to water quality in streams. This point was covered earlier today, and I am not going to labor it, but I feel that at this point in the remarks of the Senator from Kentucky it should be emphasized.
Mr. COOPER. I intend to emphasize the authority of the Secretary.
Mr. MUSKIE. I feel that the Secretary of Health, Education, and Welfare now has that authority. The Senator does not believe that, but I believe it, and I will undertake to document it later. I wish to say this at this point in the remarks of the Senator, so that there may be a relationship in the RECORD.
Mr. COOPER. I appreciate the remarks of the Senator from Maine; and I thoroughly understand and respect his view of the bill. I have also studied the bill, and have applied it to the present law. I hold a different view. I make my point again, that it is clear -- and I believe anyone who reads the bill will have to admit this to be correct -- that despite the provision that the Secretary must consult with States or agencies, and must give the States an opportunity to fix the water quality standards, ultimately and finally, if the States do not agree with him, the Secretary of Health, Education, and Welfare or, in practice, the administrator of the new agency would fix the standards of water quality. He would be directed to do so for every interstate stream or portion thereof in the United States.
Second, he would be given the authority to determine whether some discharge in an interstate stream, or tributary which leads to the interstate stream, reduces that standard of water quality.
The bill does not state how much. The language is "reduces."
The Secretary would be given authority in fixing water quality standards, to look not only to the present use, but also to what he considers the stream might be used for in the future.
I am not saying that any Secretary of Health, Education, and Welfare would wrongfully exercise these powers. But if we consider these powers as a whole, some Secretary, if he desired to do so, could zone the streams of the United States and determine that some should be used for industrial purposes, some for recreational purposes, some for agricultural purposes, and others for fish and wildlife purposes.
The nub of the question finally comes down to this: How would his decision be enforced? The final test comes in enforcement. Who has the power to make and enforce standards? This is where I differ with the Senator from Maine.
I have the act before me, and I refer to section 8 of the act. This section sets out the methods of enforcement, and is entitled "Enforcement Measures Against Pollution of Interstate or Navigable Waters."
It is true that if the Secretary of Health, Education, and Welfare considers that pollution of a stream exists, he can initiate the procedures for abatement. We agree on that point.
I read from the last sentence in section 8 (c) (1):
The secretary shall also call such a conference whenever, on the basis of reports, surveys, or studies, he has reason to believe that any pollution referred to in subsection (a) which refers to interstate or navigable waters and endangering the health or welfare of persons in a State other than that in which the discharge or discharges originate is occurring.
He has the right under present law to initiate the procedures leading to abatement by making recommendations. If the state accepts his recommendation, that settles the matter. If it does not, then, under present law, the Secretary takes a second step. He convenes a Hearing Board. The Board is made up of such persons as he names to it, but among its members must be included a representative of the Secretary of Health, Education, and Welfare, and of the Secretary of the Department of Commerce, and representatives of the States affected.
This is the important point on which we disagree: At that point, the authority to make findings shifts. It shifts from the Secretary to the Board, upon which the States are represented. The Board looks at the recommendations made by the secretary, and considers all the proof it wishes to consider. Then the Hearing Board, composed as I said in part of representatives of the States, makes its findings. It reports its findings to the Secretary. The Secretary then calls upon the State to comply with the findings the Board has made. If it does not comply, the Secretary can ask the Attorney General to take the case to court, and the court makes a judicial determination.
This is the point of difference between existing law and S. 649 as it has been presented to the Senate. The same procedures are followed. But if this bill is enacted, the Board would be limited to the determination of one question: Has there been a discharge into a stream which has altered the water below the standard of water quality which the Secretary had fixed?
Mr. MUSKIE. Mr. President, will the Senator yield at that point?
Mr. COOPER. I yield.
Mr. MUSKIE. I differ most emphatically with the Senator on this point. There is nothing in the bill which in any way modifies the conference procedure which the Senator has described.
Mr. COOPER. I said it did not as far as procedures are concerned.
Mr. MUSKIE. The Senator has just said that the only issue in the conference procedure, if the bill were enacted, would be whether or not the standards established are violated. I differ with the Senator. The conference is called. There is no change whatsoever in the bill with reference to the conference procedure. The trigger to the conference procedure has not been changed. The trigger is the enforcement section, which is section 8 under present law, and would be section 10 if the bill were enacted. The trigger is whether or not the Secretary believes there is a pollution situation which endangers the health or welfare of any person, and the Secretary makes the determination on his own judgment, without the benefit of consultation with anybody outside the Department of Health, Education, and Welfare, as to whether or not in his judgment, there has been such an endangerment as to warrant triggering the enforcement procedure which the Senator has been describing.
When the enforcement procedure is triggered -- and it would be triggered in the same way if S. 649 were enacted as it is under present law -- the conference considers whether there is a pollution situation which endangers the health or welfare of any person. One of the bases of evidence to be considered is such standards as may have been established under the procedures which I shall describe in my own time under S. 649. But that is not the only issue. It is one of the factors which must be considered. The conference can obviously consider something else, because under S. 649, if the enforcement procedure ever reaches the point of considering the practicabilities of the standards, they would be in issue.
Obviously, the conference which starts the enforcement procedure must be concerned with the practicability of the standards themselves. So the States which will be represented on the Board if the procedure goes into effect, must concern themselves with the practicability of the standards, and participate in a decision as to whether or not the standards are practicable.
This procedure is written into S. 649. We have discussed this point before. I have not persuaded the Senator that I am correct. But I say that anyone reading the bill must inevitably be led to this conclusion.
I do not see how the Senator can suggest that, since the practicability of the standards would be in issue in the court procedure, it is not in issue first in the conference procedure, which is the beginning of the enforcement procedure.
Mr. COOPER. If the Senator's description of the bill is correct, he is caught on the horns, because the chief drive of the bill is to enable the Secretary to establish standards of water quality.
Mr. MUSKIE. I beg to differ. It is perhaps the version of the Senator from Kentucky that that is the purpose of the bill, but it is not mine.
Mr. COOPER. I can judge by the bill's language -- it provides that any discharge which reduces the water quality shall be subject to abatement. Is that correct?
Mr. MUSKIE. The Senator has been reading the bill, but let me say that under present law, without the change of a comma, if the Secretary is unhappy about any pollution in any stream, which is injurious not only to health but, in the words of Mr. Stein, to industrial uses, to recreation uses, to fish uses, to wildlife uses -- if he is unhappy about any pollution which endangers any one of those uses -- under present law he can do something about it.
Mr. COOPER. If it affects health or welfare.
Mr. MUSKIE. I am quoting the language of the enforcement officer of the Public Health Service.
Mr. COOPER. Will the Senator agree with me that, according to the language on page 12 of the bill, if the Secretary determines the discharge of matter into any interstate waters has reduced the quality of such water according to the standards he has set, then it shall be subject to abatement?
Mr. MUSKIE. That is correct; and it subject to abatement now.
Mr. COOPER. No.
Mr. MUSKIE. It is subject to abatement now. That is the force of the testimony from the enforcement division of the water pollution control agency, that pollution which endangers not only the health, but the recreational uses, fish and wildlife uses, agricultural uses, or public water uses, are subject to abatement under present law.
Mr. COOPER. Only after the Secretary refers the issue to a Hearing Board on which the States are represented, which makes its findings and recommendations. Pollution is subject to
abatement under the findings of the Board -- and not the findings of the Secretary.
Mr. MUSKIE. It is not subject to abatement under S. 649 until there has been a pollution of the water resource which endangers the health and welfare of any person. Exactly the same standard applies under present law, and it would apply if S. 649 were enacted into law. The same enforcement procedure is involved.
Mr. COOPER. I disagree with the statement. I point out again, and I shall not belabor the point, that under existing law a sequence of procedures must be followed resulting in a finding by the Board, before the Secretary can resort to court action to have the pollution activity abated. Under this bill, if the Secretary determines that the discharge into interstate waters -- and this is the language -- “reduces the quality of such waters below the water quality standards promulgated by the Secretary" the discharge "is subject to abatement."
Mr. MUSKIE. I should like to make one other point in an attempt to influence the Senator, as well as to make the record, because it is incredible that I have been unsuccessful in making this point.
Mr. COOPER. The Senator made the same argument with respect to the original version of the bill, when that bill was before the committee.
Mr. MUSKIE. Exactly.
Mr. COOPER. The same argument was made then, that it did not change existing law.
Mr. MUSKIE. Is the Senator suggesting that hearings should not be utilized to modify the judgment of a committee as to whether the language of a bill will do what the committee intends it to do?
Mr. COOPER. The bill has been improved greatly. I have read much of the testimony. The contention was made then that even the first version of the bill did not change the law.
Mr. MUSKIE. That was still the intention of the first bill. The Senator from Maine undertook to be responsive to the criticisms that were made. Questions were raised as to whether the language of the original bill served the intention of the committee. The Senator from Maine was persuaded that, in order to meet the questions, the language ought to be modified. Now, because of my
willingness to modify the bill to meet these criticisms, it is suggested that my stand on the bill has been weakened thereby.
Mr. COOPER. I do not suggest that. I said the bill had been greatly improved by the Senator and the committee.
Mr. MUSKIE. I think so, too.
Mr. COOPER. And it would not enlarge in any way the powers now given to the Secretary?
Mr. MUSKIE. Let me try to be precise as to the difference between the present law and S. 649 with regard to standards. Under present law, the Secretary has authority to establish standards. He must do that. In order to determine whether there is danger to the health and welfare of any person, there must be some standard of water quality set, which, it is charged, is being violated. He cannot act without any reason at all. The present law states that he must have a reason. That reason must be related in some way to some standard of water quality. He makes this decision subjectively, with such advice from his own department as he seeks, before he can trigger an enforcement proceeding, which is started by the conference.
S. 649 substitutes for this subjective way of evaluating quality a procedure in which the States participate. I will go into detail on this point on my own time, but I wish to make this point in the RECORD. The bill substitutes for the Secretary's subjective method of drawing up ad hoc standards under the present law, procedures for deciding on standards under which the communities and the affected industries participate.
Mr. COOPER. I will make, my statement once more. The Senator says that initially, the Secretary under existing law has the power to set standards subjectively, and that he does set standards. I am now talking about standards which may become the subject of an abatement' proceeding.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. COOPER. Not now. I wish to finish my statement. It is my judgment that under existing law, standards which may become the subject of abatement proceedings are not fixed subjectively by the Secretary. They are fixed objectively by the Hearing Board, on which representatives of the States sit. I will read the language.
Mr. MUSKIE. The Senator and I are talking about two different points.
Mr. COOPER. I will read the law. It is better to read the law than for the Senator and me to be arguing about it.
Mr. MUSKIE. We are not disagreeing about the function of the Board.
Mr. COOPER. I am talking about the findings that finally go to the courts on the question of whether a particular discharge should be abated. That is the question that finally reaches the courts for decision.
Mr. MUSKIE. Will the Senator read the language which authorizes the conference to set the standards? Will the Senator find the word "standards?”
Mr. COOPER. Let me read the law. I quote from section 8(e) of the present act.
If, at the conclusion of the period so allowed, such remedial action has not been taken or action which in the judgment of the Secretary is reasonably calculated
Mr. MUSKIE. Whose judgment?
Mr. COOPER. The Secretary's judgment. That is the first step. That is his subjective judgment. I continue to read:
If, at the conclusion of the period so allowed, such remedial action has not been taken or action which in the judgment of the Secretary is reasonably calculated to secure abatement of such pollution has not been taken, the Secretary shall call a public hearing, to be held in or near one or more of the places where the discharge or discharges causing or contributing to such pollution originated, before a Hearing Board of five or more persons appointed by the Secretary. Each State in which any discharge causing or contributing to such pollution originates and each State claiming to be adversely affected by such pollution shall be given an opportunity to select one member of the Hearing Board and at least one member shall be a representative of the Department of Commerce, and not less than a majority of the Hearing Board shall be persons other than officers or employees of the Department of Health, Education, and Welfare. At least three weeks' prior notice of such hearing shall be given to the State water pollution control agencies and interstate agencies, if any, called to attend the aforesaid hearing and the alleged polluter or polluters. On the basis of the evidence presented at such hearing, the Hearing Board shall make findings as to whether pollution referred to in subsection (a) is occurring and whether effective progress toward abatement thereof is being made. If the Hearing Board finds -- I emphasize: "If the Hearing Board finds" –
If the Hearing Board finds such pollution is occurring and effective progress toward abatement thereof is not being made it shall make recommendations to the Secretary concerning the measures, if any, which it finds to be reasonable and equitable to secure abatement of such position.
Mr. MUSKIE. Mr. President, will the Senator yield at that point?
Mr. COOPER. I yield.
Mr. MUSKIE. I will make two points.
First. The procedure the Senator has just described would be retained in its present form if S. 649 were enacted.
Second. What happens -- and I will ask this in the form of a question and the Senator may refer to the law -- if the persons guilty of pollution do not act?
The language in the subsection from which the Senator has been reading continues:
The Secretary shall send such findings and recommendations to the person or persons discharging any matter causing or contributing to such pollution.
If those persons guilty of the pollution do not act, what happens?
Mr. COOPER. I will finish my argument. A few moments ago the Senator from Maine said that under existing law, standards are based upon the subjective judgment of the Secretary. I disagree. Under present law standards of water quality are based upon the findings and recommendations of the Board if abatement is required.
Mr. MUSKIE. The Senator has missed the point of the Senator from Maine. The Senator from Maine said the judgment which is made relative to whether or not an enforcement proceeding ought to be started, whether or not a conference ought to be called, is the subjective judgment of the Secretary of Health, Education, and Welfare.
I did not suggest that there was such a judgment which is negated by the existence of the language the Senator has been quoting.
Mr. COOPER. Then I have made my point clear. I have agreed with the Senator from Maine that the Secretary can initiate a survey and investigation upon his subjective judgment. The point I have sought to drive home throughout the debate, whether it has been understood or not, is that when it comes to abatement under present law, the enforcement decision is based upon findings and recommendations of a Hearing Board -- on which the States are represented with respect to water standards. That is entirely different from the initiative given to the Secretary by this bill to fix water quality standards.
Mr. MUSKIE. Mr. President, will the Senator from Kentucky yield for one more point?
Mr. COOPER. I yield.
Mr. MUSKIE. Getting back to what I started to say a moment ago, if the recommendations of the Hearing Board are not fully implemented, what does the present law provide? Read subsection (g).
Mr. COOPER. May I finish reading this section before coming to that point? I should like to preserve the continuity of what I am reading.
Mr. MUSKIE. I think what I am about to say would add to the continuity.
Mr. LAUSCHE. Mr. President, from what is the Senator from Kentucky reading?
Mr. COOPER. From the present law, section 8(e). I will finish this section:
If the Hearing Board finds such pollution is occurring and effective progress toward abatement thereof is not being made it shall make recommendations to the Secretary concerning the measures, if any, which it finds to be reasonable and equitable to secure abatement of such pollution. The Secretary shall send such findings and recommendations to the person or persons discharging any matter causing or contributing to such pollution, together with a notice specifying a reasonable time (not less than 6 months) to secure abatement of such pollution, and shall also send such findings and recommendations and such notice to the State water pollution control agency and to the interstate agency, if any, of the State or States where such discharge or discharges originate.
The sections that follow provide that if the recommendations of the Hearing Board are not followed, the Secretary can request the Attorney General to bring suit on behalf of the United States to end the pollution.
Mr. MUSKIE. Mr. President, will the Senator yield for a question which I think needs to be asked at this point?
Mr. COOPER. I yield.
Mr. MUSKIE. Subsection (g) reads:
If action reasonably calculated to secure abatement of the pollution --
What pollution are we talking about? Pollution that endangers the health of any person -- within the time specified in the notice following the public hearing is not taken –
Who decides whether or not the action taken is reasonably calculated to secure abatement of the pollution under existing law?
Mr. COOPER. The court will finally decide.
Mr. MUSKIE. The court does not say whether the Secretary shall send a case to the Attorney General; the Secretary does.
Mr, COOPER. Of course; I noted that a few minutes ago.
Mr. MUSKIE. Who makes the judgment as to whether "action reasonably calculated to secure abatement of the pollution" has been taken?
Mr. COOPER. Of course, we know that if the pollution continues, the Secretary is going to obey the law; he will try to obtain court action.
Mr. MUSKIE That is not the point of my question.
Mr. COOPER. Then the question arises: What findings or whose recommendations will be considered by the court? They will be the recommendations of the Hearing Board, not of the Secretary.
Mr. MUSKIE. The Senator avoids my question.
Mr. COOPER. No; I do not.
Mr. MUSKIE. Who decides whether the action is "reasonably calculated to secure abatement of the pollution?”
Mr. COOPER. Who?
Mr. MUSKIE. The Secretary.
Mr. COOPER. Of course, he does; but we are getting away from the distinction between the pending bill and existing law. , Upon whose findings is this determination made under existing law? The determination is made upon the basis of the findings of the Hearing Board. Will the Senator from Maine say that that is not correct?
MUSKIE. I will say, first, as I have said several times this afternoon, that the enforcement procedure upon which the Senator is dwelling would be retained in its entirety if S. 649 were enacted.
As to whether the Senator has correctly interpreted the implications of the enforcement section as it is now in the law, there may be some disagreement between us. As has been revealed by the clloquy we have had. But I will say that the action would be triggered by the Secretary on the basis of the judgment that he, and he alone, would make. I cannot make my point any better than I have stated it. Probably I have not stated it well enough.
Mr. COOPER. The Secretary can ask that the suit be initiated.
Mr. MUSKIE. That is the second decision he would make.
Mr. COOPER. But the facts upon which he makes the decision to request the Attorney General to bring an action are the findings of the Hearing Board. I believe we disagree on a number of points of procedure. But I shall finish my statement.
My judgment is that even though the procedures of present law are maintained by this bill, the controlling point that would come before the court would be whether the quality standards -- which the Secretary alone had determined -- had been reduced by a discharge from some community or industry. That would be the controlling question before the court.
The bill transfers the authority to fix water quality standards from a hearing board -- on which the States are represented -- to the Secretary.
Mr. President, I have read the testimony and the bill, and I have studied the present Federal Water Pollution Control Act. I have some knowledge of the subject arising from my membership on the committee when the first and other water pollution control acts were passed.
The bill under consideration is a radical departure from the present system of State, Federal, municipal, and industry cooperation. It gives the Secretary wide powers to set water quality standards; it provides that any discharge into an interstate stream which alters such standards is cause for abatement, solely on the basis of these standards. The Secretary would have power to determine water quality standards, not only upon the basis of present use, but on the future uses of the stream as he might conceive them.
The Secretary of Health, Education, and Welfare displayed no evident enthusiasm for the bill in his testimony. No Governors testified in its favor. As far as I can tell, no testimony was received in the hearings from any Governor.
Yesterday the Senator from Oregon [Mr. MORSE] placed in the RECORD a letter from Governor Hatfield, stating that his administration opposed the bill.
The representatives of State water control agencies who testified stated that they opposed several provisions of the bill. There was no testimony in the hearings concerning the feasibility of establishing water standards, except some testimony stating that such a proposal was not feasible.
If the proposed legislation is of sufficient importance to the United States and the individual States, and I believe it is, at the least such evidence ought to be adduced.
My amendment is not a simple amendment; it is quite a large one. It would strike from the bill the new powers proposed to be given to the Secretary. It would provide for hearings to be conducted by the Secretary to receive the testimony of Governors, of representatives of States, and of water pollution control agencies; for the Secretary then to report his findings to Congress, recommending the steps to be taken to advance the control of water pollution and abatement.
The committee hearings, while very good, disclose a lack of testimony from the States and municipalities. The question of the feasibility of water control standards requires further hearings, in my judgment.
I have said to the Senator from Maine and I say to him again that much has been accomplished by the hearings he held and by the development of the bill.
But I believe that there is not enough evidence in the hearings to justify the provisions of the bill which mark a radical departure from the cooperative Federal-State-municipal pollution control system that now prevails in law and in practice.
Mr. President, I ask unanimous consent to have printed at this point in the RECORD statements of various witnesses, who testified that, among other things, the establishment of water quality standards is not feasible.
I ask also that a short statement I have prepared be included at this point in the RECORD.
There being no objection, 'the statements were ordered to be printed in the RECORD, as follows:
STATEMENT BY SENATOR JOHN SHERMAN COOPER ON S. 649
I oppose S. 649 and will offer an amendment, the effect of which is to require further hearings on water pollution control and abatement, to be conducted by the Secretary of Health, Education, and Welfare, to secure the views of Governors, State water pollution control agencies, industry and authorities and scientists on water pollution control, and to report his findings and recommendations to the Congress by January 1, 1965.
The Water Pollution control Act sponsored by Senators Taft and Barkley, and later enactments sponsored chiefly in the Senate by the late Senator Kerr, emphasized the necessary cooperation of the States and Federal Government in the control and abatement of water pollution -- pollution caused primarily by municipalities and industry. Under existing legislation, the Secretary of HEW has extensive powers, but decisions made by him to resort to the courts for the abatement of water pollution rest upon findings of committees dealing with a specific case. Such committees include representatives of the States affected as well as the Department of HEW and of Commerce. S. 649, while improved by amendments in the Public Works Committee, changes entirely the character of the present Federal-State cooperative system by transferring exclusive power to the Federal Government. This is accomplished by the bill in the following way:
1. The bill establishes a new Federal Water Pollution Control Administration in the Department of Health, Education, and Welfare.
2. The Secretary, employing this agency, is empowered to promulgate "standards of water quality" for every interstate water in the Nation, or any involved tributary.
3. If any discharge into such waters lowers the "standards of water quality," the Secretary is empowered to proceed to the courts for abatement.
4. The "standards of water quality" which the Secretary can promulgate embrace future as well as present use, such as agricultural, industrial, recreational, and other uses.
The above powers conferred upon the Secretary would enable him to zone river basins or parts thereof for such uses as he determined were appropriate. The bill does require the Secretary to consult with the States and to give them first opportunity to promulgate water standards. But the essential fact is that full and ultimate power to promulgate standards and make the above decisions is vested in the Secretary of HEW, and I believe for all practical purposes in the new Federal Water Pollution Control Administration established by the bill. For all practical purposes, the authority and cooperative activities of the States are stricken down by the bill.
Neither the President nor the Secretary of HEW asked for this authority. No State has supported this bill. There is no evidence provided in the hearings upon the feasibility of establishing water quality standards for the rivers of the Nation with all their differing characteristics. I believe that more effective legislative measures must be enacted to promote water pollution control and abatement, but I do not believe the task can be accomplished by transferring full powers to a new Federal agency and an administrator not yet designated. The committee has done valuable work pointing up the problem. My amendment would provide to the Public Works Committee and the Congress information that it needs respecting the feasibility of the proposals made by this bill.
EXCERPTS FROM TESTIMONY OF MR. JAMES R. SMITH, VICE PRESIDENT, MISSISSIPPI VALLEY ASSOCIATION
(a) States have primary authority and responsibility for water pollution control, which should not be surrendered to the Federal Government. (Hearings p. 187.)
(b) Association is opposed to authorizing the Federal Government to establish standards of water quality on interstate waters and their tributaries. (Hearings, pp. 187, 188.)
(c) Recommendation that S. 649 not be enacted. (Hearings, p. 188.)
We recognize that the several States have the primary authority and responsibility for the control of water pollution. This authority and responsibility should not be surrendered to the Federal Government. The States should meet this responsibility by positive action to abate pollution on intrastate streams. We oppose the extension of additional authority for any Federal regulatory agency in the matter of water pollution control unless its need has been proved unequivocally through the failure of the States involved to assume their proper responsibilities.
The association is unalterably opposed to authorizing the Federal Government to establish water quality standards on interstate and navigable waters or tributaries discharging into such waters. This is not only an unnecessary encroachment on State rights but we feel that it is impossible to establish any single standard, or for that matter, a group of standards, which could be made applicable to all the various situations which would occur throughout the country.
Further delegation of authority to the Federal Government at this time is unnecessary. Universal standards assessed by distant agencies have never worked in this country nor any other. The States, either individually or collectively as may be necessary, are fully competent to establish standards which meet their specific situations or requirements.
Authorizing the Federal Government to establish water quality standards on interstate, navigable, and tributary rivers would constitute a long step in taking the States completely out of the administration of their own pollution control programs. By broad definition, all streams discharge into an interstate stream eventually.
EXCERPT FROM THE TESTIMONY OF SAM THOMPSON
(Representing Council of State Governments, Executive Committee of the Interstate Conference on Water Problems, opposing provision of the bill authorizing the Secretary of HEW to set standards of water quality (hearings, pp. 298, 299))
If the Federal Government is to have the power to set effluent standards, there will be nothing which the State pollution control agencies can do which the Federal Government cannot also do. The Federal Government is already in the business of research, training, and aiding construction of facilities. For reasons already mentioned, its activities in these respects are most helpful and an increase in them could contribute much to providing additional technical competence, knowledge, and physical tools with which to attack a mammoth problem. Under the Federal Water Pollution Control Act of 1956, as amended, the Federal Government also engages in enforcement activities which do present problems in the proper balance of Federal-State relations. But if the Federal statute continues to recite that the responsibilities and jurisdiction of the States are primary, and if the Federal agency administering the law actually implements this arrangement, a balance can be maintained. However, if the Federal Government also acquires the power to determine what shall or shall not come out of waste disposal outfalls throughout the country, it will have become the level of government with a complete water quality program. Since article VI, section 2 of the Constitution makes Federal law supreme, there is little question that such a complete Federal involvement will displace State law and State programs. The present Federal statute reads in relevant part:
"Consistent with the policy declaration of sections 466-466k of this title, State and interstate or navigable waters shall be encouraged and shall not, except as otherwise provided by or pursuant to court order under subsection (g) of this section, be displaced by Federal enforcement action (33 U.S.C. sec. 466g (b))."
It is difficult to see what would be left of this provision if the effluent standards portion of S. 649 were adopted. The governing law on matters of water quality would then be Federal law rather than State law. If divergent from the relevant State statute, the Federal effluent requirement would govern. State law and administration would be displaced. The policymaker and enforcement agency would become the Federal Government. The Federal agency would have to assume the responsibility for pollution control activity throughout the country. Personnel authorized and financed by Congress and sustained entirely by the Federal Treasury would have to carry the entire load.
The only way to be sure that State law, until now and at the present time the chief resource available for the actual control and abatement of pollution, continues to be available for this purpose is to avoid undermining the authority of that law. The proposal for Federal effluent control contemplates that the Federal Government go into direct competition with State pollution control programs, and not that it supplement or strengthen them.
EXCERPT FROM TESTIMONY OF DR. NATALE COLOSI
(Chairman of the Interstate Sanitation Committee (consisting of States of New York, New Jersey, and Connecticut) opposing giving Federal Government authority to set standards of water quality (hearings, p. 582))
If some agency of the Federal Government is now to have authority to set effluent standards, great confusion will ensue.
Polluters could seek to play one level of government off against the other and to obtain the most lenient standards which either is willing to impose. If the standard set for the Federal Government for a particular location is the same as that set by State law or interstate compact, it will be an unnecessary duplication. If it is different, the question arises as to which will govern. In the legal sense, this question may be easy to answer, but if there is any desire to encourage the States to do a good pollution control job, the obvious answer of Federal supremacy will be entirely destructive of State and local efforts. Indeed, one may ask what is supposed to happen if the Federal agency has the power to set effluent standards, but does not do so in a particular area or for a particular installation. Initiation of State or interstate enforcement procedure would be difficult since violators could argue that a different requirement may eventually be set by the Federal Government. There is no assurance at all that State law would survive. With the power conferred upon a Federal administrative agency by S. 649 added to those already exercised under the existing Federal Water Pollution Control Act, the Federal Government would then have responsibility for everything from research to enforcement and determination of the uses to be made of particular waters. The authority to set effluent standards has little point, except as a means of choosing among water uses.
Under existing Federal law, Congress has declared that the responsibilities and rights of the States in pollution control shall be primary. Where single States acting alone may not be in a position to cope adequately with the problems of an area, the act directs the encouragement of interstate compacts for pollution control. We trust that the sponsors and supporters of S. 649 continue to seek the buttressing and encouragement of State and interstate efforts. The bill leaves these provisions of present law intact. However, the effluent standard provision would vitiate this declared policy of Congress.
EXCERPT FROM STATEMENT OF GERALD J. REMUS, GENERAL MANAGER, DETROIT METROPOLITAN WATER SUPPLY SYSTEM, ON BEHALF OF MAYOR OF DETROIT
That section of S. 649 authorizing Secretary of HEW to set standards of water quality should be eliminated because: (a) State agencies are doing an effective job; (b) would cause duplication; (c) Federal standards would supersede State standards (hearings, p. 176).
Section 4(1): Eliminate this entire section. It in essence eliminates the already effective and efficient State agencies doing these jobs. Not only would this result in duplication of agencies on the Federal level, but also there would then be supersession to the State agencies which would cause endless confusion. The position of the USPHS should be of cooperation and support. Not only is that our position in southeastern Michigan, but the following agencies of the State and National character have adopted similar policies:
American Water Works Association.
American Society of Civil Engineers.
Michigan Water Pollution Control Association.
Michigan Water Resources Commission.
Michigan Department of Health.
Michigan Municipal League.
City of Detroit.
EXCERPT FROM THE TESTIMONY OF LORING F. OEMING, EXECUTIVE SECRETARY, MICHIGAN WATER RESOURCES COMMITTEE, IN OPPOSITION TO WATER QUALITY STANDARDS PROVISION HEARINGS, PAGE 415
This amendment, if enacted, will give to the Federal Government virtually complete control over the administration and enforcement of local pollution control programs with the power to dictate the location of industry, recreation, water, fish and wildlife, and all other water-related developments and uses both within the State and throughout the country. This represents a substantially complete preemption of authority and responsibility for a function which has always been and is presently vested in our State. All decision making with respect to water resource administration will be taken from the State and local government and placed in the Secretary. This provision, again, represents a complete reversal of the broad policy of recognizing, preserving, and protecting the primary responsibilities of the States as expressed in sections 1(a) and 1(b).
STATEMENT OF MILTON P. ADAMS, CONSULTING ENGINEER, STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATION, REPORTING ON RESULTS OF BALLOT TAKEN OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS. HEARINGS, PAGE 101
MEMORANDUM
To: All State and interstate water pollution control administrators.
From: 13. A. Poole, chairman, steering committee.
Date: February 21, 1963.
The steering committee of the State and Interstate Water Pollution Control Administrators met in Washington, D.C., on February 6-7. Among the items considered was current legislation, and specifically H.R. 3166, which was introduced by Congressman BLATNIK on January 31.
This bill, a copy of which is enclosed with excerpts from the CONGRESSIONAL RECORD, proposes to amend the Federal Water Pollution Control Act. Other identical bills have been introduced in the House (by Mr. DINGELL) and the Senate (S. 649 by Mr. MUSKIE and 18 others).
The steering committee unanimously agreed that it was opposed to sections 2 and 4 of H.R. 3166 and decided that a notice of this fact should be sent to all State and interstate water pollution control agencies with a request that they express their opinions on these as well as other sections of the bill, by means of a letter ballot.
Please note that sections 2 and 4 are contrary to a resolution that was adopted by those administrators who attended a breakfast session at the Water Pollution Control Federation meeting in Toronto on October 10, 1962. A copy of this resolution is attached. The Federation Board of Control formally received the resolution at its meeting on October 11.
These ideas are incorporated in the Federation's "Statement on Water Pollution Control'' which may be found on page 140 of the January 1963 issue of the Water Pollution Control Federation Journal.
The increased grants for sewage treatment (sec. 3) are in accord with a recommendation in a report dated October 1962 on "Intergovernmental Responsibilities for Water Supply and Sewage Disposal in Metropolitan Areas" by the Advisory Commission on Intergovernmental Relations. (See p. 120.) The Commission was established by Public Law 380 of the 86th Congress.
The enclosed ballot is for your convenience in expressing your approval or disapproval of the four sections. Your ballot should be returned to me without delay, but certainly before March 15. I will tabulate the results so they may be used in the presentation of our views to congressional committees that consider the bill. We are trying to prevail on Milton Adams to accept the responsibility for appearing before such committees on our behalf.
LETTER BALLOT
TO B. A. Poole, chairman, steering committee, SIWPCA:
I have read your memorandum of February 21, 1963, regarding H.R. 3166 and vote
follows regarding the provisions of the bill:
Section 1: Setting forth the "purpose of this act to establish a positive national water pollution control policy * * *.
In favor ------------------------------ 27 Not in favor -------------------------- 18
Section 2: Establishing a Federal Water Pollution Control Administration in the Department of Health, Education, and Welfare.
In favor ------------------------------ 3 Not in favor -------------------------- 46
Section 3: Grants for separation of combined sewers and increasing grants for other purposes.
In favor ------------------------------ 35 Not in favor -------------------------- 9
Section 4: Setting standards applicable to interstate or navigable waters, etc.
In favor ------------------------------ 5 Not in favor -------------------------- 45
TESTIMONY OF MR. SAMUEL S. JOHNSON, ON BEHALF OF THE NATIONAL ASSOCIATION OF MANUFACTURERS
S. 649 "departs from sound principles in four major areas" -- appropriate national water pollution control policy (p. 285); appropriate level of government for issuance of regulations (p. 288); grants-in-aid (p. 289); and the creation of another new agency (p. 290).
SPECIFIC PROVISIONS OF S. 649
We believe that S. 649 departs from round principles in four major areas -- appropriate national water pollution control policy; appropriate level of government for issuance of regulations; grants-in-aid; and the creation of another new agency.
It is noted first that a new subsection 1 (c) would be added to the Federal Water Pollution Control Act as follows,
1 (c) It is the purpose of this Act to establish a positive national water pollution control policy of keeping waters as clean as possible as opposed to the negative policy of attempting to use the full capacity of such waters for waste assimilations."
This language was discussed at the National Conference on Water Pollution held in December 1960, although as stated at that time by Mr. C. P. Gutermuth of the National Resources Council of America, "We realize we are never going to get agreement on this in a meeting of this kind."
The following dialog occurred:
Mr. CANNON (National Association of Manufacturers of the United States of America). I would like to call to the attention of the Chair that panel II also made a recommendation on the same subject. I made a comment on the recommendation of panel II for amendment to include the concept of economic feasibility which the chairman indicated had merit.
Therefore, before any action is taken on Mr. 0. Gutermuth's suggestion, I would like to offer the same amendment for consideration by those present here.
"Dr. WOLMAN. Do you have a specific suggestion as to the modification or the substitution? This is a language problem and I don't want to get lost in it.
"Mr. CANNON. My suggestion would be 'as clean as economically feasible.'
"Mr. GREGG (Izaak Walton League of America, Inc.). I think the point that is raised by Mr. Cannon is valid. A qualification is necessary. We don't need to confine ourselves to considerations of economic values, although that is important, and perhaps the purpose could be served by saying 'In keeping waters as clean as possible in consideration of health, recreation and esthetic values, and economic and technical consideration,' or 'economic and technical possibilities,' or something like that.
"Dr. WOLMAN. Have you considered the suggested language made by various representatives?
"Mr. GUTERMUTH. Yes. They feel, while it isn’t explicitly spelled out in this statement, everyone realizes and appreciates that the economic factors must be considered. It is assumed.
"Dr. WOLMAN. I shall increase my unpopularity by assuming that this means you adopt panel II’s statement. Again I say that there shall appear in the record any disagreements or suggestions for expanded language, which would take care of those of you who feel that even though it may be implied, the language might be strengthened in the direction of economic use and application."
The National Technical Task Committee on Industrial Wastes accepted Dr. Wolman's invitation to include in the record expanded language so that the "language might be strengthened in the direction of economic use and application," and submitted the following statement:
"At the annual meeting of the National Technical Task Committee on Industrial Wastes on December 15, 1960, there was discussion of the problem which developed in the final plenary session of the National Conference on Water Pollution of combining the No. 1 recommendations of panels I and III.
"Time limitations and other factors at the plenary session were not conducive to the reaching of a properly considered decision.
"As a result, dissatisfaction was expressed by many that recommendation I as drafted by panel I was also adopted by panel III in place of their original draft.
"In the interest of reconciling the points of view expressed by panels I and III and at the same time attempting to preserve the sense of the participants at the conference, we would respectfully suggest acceptance of the following consolidated statement which preserves the meaning and intent of the original recommendation I of panel I and recommendation I of panel III:
"We recommend that the conference express its conviction that the goal of pollution abatement is:
" '(a) To protect and enhance the capacity of the water resources to serve the widest possible range of human needs; and
"'(b) That this goal can be approached only by accepting the policy of keeping water clean, consistent with the variabilities within and among different river basins., "
Other pertinent statements were made by distinguished participants in the conference. Dr. E. Ackerman, of the Carnegie Institution of Washington, stated:
"On the credo, it asks that water be returned as nearly as clean as is technically possible. What is technically possible? Perhaps we should have the idea of economic feasibility in there, too. We did our report late at night and in a short time, and perhaps there was an error of statement that we did not intend. Certainly no reasonable person (and I would like to think that we are all reasonable on this) would insist on technical perfection at great expense to any community or to the Nation. The ideal is to do what we know technically we are able to do. The major question comes on what we are able to do. It would involve more discussion than we have time for here to answer that question."
Dr. Erman A. Person, of the University of California, stated:
"Now. getting to the question of assimilative capacity of the receiving waters and whether or not regulatory action should be based upon full assimilative capacity. Personally, I think this should not be the case. Recognition should be made of the full assimilative capacity in the analysis of effects of any potential waste discharge but provision for unknowns and future development should allow assimilative capacity in reserve. Nevertheless, we must recognize whether we like it or not, that the streams just like our atmosphere must be used as the ultimate assimilating mechanism for wastes in our environment. What we must do is to insure that conditions developed by this assimilation are favorable or at least tolerable and in the best interest of the general public."
Mr. Leonard R. Pasek, of the Kimberly Clark Corp., stated:
"To a very substantial extent, American industry -- and thereby our economy -- has been built upon the base of that valuable economic asset -- the ability of our great waterways to dilute, assimilate, and carry away industrial wastes. The result has been a living standard of widespread abundance and a national defense potential that has delivered the goods during three periods of military conflict."
Dr. Karl Brandt, of the President's Council of Economic Advisers, stated:
"While it is technically possible to restore river and canal water to its virgin quality of nature prior to industrialization or even better, including the restoration of all aquatic biology, it all involves severe costs and complex chain reactions in our economy. Hence, social science research should explore and demonstrate the alternative courses for achieving a reasonable compromise which permits an aggregate benefit to the community of people affected. To do this involves ultimately quite a few value judgments. Again, what should be proved is the social cost of achieving certain intangible benefits, to whom they would actually accrue, and who would share the costs, directly and indirectly.
"It should be demonstrated particularly, that the costs involved for varying degrees of improvement in the quality of aquifers are ultimately entering into the account of the American economy and thereby inevitably affect all the people. Costs of water pollution abatement can be deflected or charged to certain individuals, corporations, or other forms of enterprise. However, as in the case of taxes and levies, the actual burden of such costs is shifted to a broader number of people if not the public in general.
"Reliable and accurate knowledge about costs and their ultimate bearers should not and will not prevent the people and their representative government from making progress in water pollution abatement. On the contrary, the better the public understands the complex and interlocked issues of intelligent water uses and the necessary adjustments, the better become the prospects for arriving at sensible solutions by voluntary cooperation and consent rather than coercion and bureaucratic rule or more and more centralized power. If the citizens of a State understand fully what it means in terms of costs to enterprises and to the public if perfectionism prevails as, for example, quality criteria for industrial effluents into rivers are lifted to unrealistic levels, or one should require secondary treatment for municipal sewage disposal into the ocean, then we may expect to arrive at reasonable compromise.
"Such compromise could lie in gradualness in the raising of requirements, in adoption of reasonable standards and a broader participation in shouldering the costs. While it may be deplorable that some fish are killed in a river or canal which actually served primarily as a carrier of industrial waste it may yet be the case that this use of that particular current of water in a strictly industrial area may prove to be the highest marginal productivity attainable that far outweighs any potential value of the commercial or the sport value of the fish."
The difficulty with a national policy declaration that does not recognize a wide range of human needs and uses for water and does not recognize the limitations of economic and technical feasibility is that it could be totally unrealistic. Washing one's hands would not be "keeping water as clean as possible"; yet certainly it is not the intent to outlaw this and other desirable uses of water, such as manufacturing which can use 1,000 gallons of water to make $11.70 worth of manufactured goods as contrasted with irrigation which can require 1,000 gallons for only 10 cents worth of agricultural crops. The real intent, undoubtedly, is that, after use, a reasonable effort be made to improve the quality of the used water without placing complete reliance on the assimilative capacity of the stream.
We certainly make no plea for overloading the assimilative capacities of streams but do make a plea for recognition of the fact that such assimilative capacity is a great economic asset to this country and must be employed to some reasonable extent. As stated by Dr. Brandt at the National Conference on Water Pollution, "from the standpoint of continued success of our agriculture and industries in competition in the world market, the balance of payments, the integrity of the currency, effective control over the Federal and State budgets, and, therefore, in the interest of the improvement in the real income of the people, It is imperative that prudent husbandry prevail in the use of other resources for the development of water resources. This must also apply to water pollution abatement."
Therefore, we urge this distinguished subcommittee to reject any unqualified statement of objective "of keeping waters as clean as possible" and make certain that national policy recognizes the desirability of using water for fulfilling a wide range of human needs and also recognizes the limitations of economic and technical feasibility in water pollution abatement.
FEDERAL WATER POLLUTION CONTROL REGULATIONS
S. 649 would also amend section 9 of the Federal Water Pollution Control Act so as to require the Secretary of Health, Education, and Welfare to issue regulations, setting forth standards of quality to be applicable to all waters which are either interstate or navigable, and setting forth the type, volume, or strength of matter permitted to be discharged directly into interstate or navigable waters or reaching such waters after discharge into a tributary of such waters. It would also be provided that "The alteration of the physical, chemical, or biological properties of such interstate or navigable waters or the placing of matter in such waters in violation of regulations issued under this subsection is hereby declared to be a public nuisance and subject to abatement under the provisions of this section."
This amendment could well mean the end of water pollution control regulation by the States. It is completely contrary to the statement contained in section 1 of the act that "it is declared to be the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution." It appears to be a complete Federal preemption by the Congress of the field of water pollution control regulation and as such could render null and void all State regulation of the subject matter. It will substitute Federal policy over virtually all the water pollution control programs of the States and their duly constituted agencies.
There is absolutely no need for such a drastic reversal of approach to water pollution regulation. Very substantial progress in water pollution control has been made in recent years under State and interstate regulation. As stated by Mr. T. 0. Driscoll of the Council of State Governments on behalf of the Interstate Conference on Water Problems in 1961.
"The integrity of State regulatory programs, and of State administration generally, must depend on a congressional recognition that State water pollution control agencies operate in the public interest no less than do Federal agencies.
Any other assumption is destructive of State responsibility and vitality in our Federal system and argues either for costly and confusing Federal duplication of State activity or for direct administration of the water pollution control function by the Federal Government. We find it difficult to believe that the committee supports either of these objectives."
In December 1960, the Interstate Conference on Water Problems adopted a resolution which contained the following statement:
"Resolved, That this conference vigorously oppose the extension of Federal regulatory jurisdiction over intrastate pollution by means of a general assertion of enforcement jurisdiction over navigable waters or by any other means which would interfere with State performance in this field."
When the power to issue regulations is lodged in the Central Government, the inevitable tendency is to formulate uniform, nationwide rules. This is the easy way out for the administrator, and probably is the only practical way for him to try to administer regulations throughout such a large country. Such a result would be particularly unfortunate in the water pollution control field, because it would fail to recognize the variabilities within and among river basins. Inevitably, the results would be harsh and unjust in some situations and perhaps too lax in others. The only alternative would be to formulate different regulations for each local situation throughout the country, and this would entail a voluminous bulk of regulations which would take years to evolve properly. Turning an administrator loose (it is not clear whether he would be subject to the Administrative Procedure Act) with instructions to "keep waters as clean as possible" could turn into a disastrous adventure in Federal regulation.
For effective and realistic results in water pollution control, it would be far better to leave the actual formulation of regulations to the States. More than 40 States, including the most populous and highly industrialized, require the filing of detailed plans for treatment of waste water and the issuance of a permit before new industrial plants may be constructed and before revisions or extensions to existing manufacturing processes or waste treatment facilities may be made. Under these and other State control measures, stream conditions are improving. For example, it has been reported that "During the past few years, the spawning runs of shad in the Delaware River have increased spectacularly, and last spring witnessed some of the world's best shad fishing. One could stand in the swiftly moving water and watch the adult shad working their way upstream while casting for them with a fly rod or spinning gear. There is no creel limit on these wonderful game and food fish, and catches of a dozen or more could often be made during a morning, afternoon, or evening."
Likewise, a study has shown that the Ohio River, one of the world's great industrial rivers, has present in it 131 different species of fish and that it supports an average fishing pressure of about 1,500 anglers per day. The 1960 report of ORSANCO included a caption stating: "Clean rivers are enhancing recreational opportunities in the Ohio Valley. Pictured here is part of the estimated 65,000 people at the hydroplane race regatta at Madison, Ind., on October 3, 1960. During the 4-month period starting June 1, the U.S. Coast Guard issued notices covering 34 regattas or ski shows, 26 of which were conducted on the main stem of the Ohio River and 8 on tributaries."
Therefore, we urge that the Congress not abandon the present system of State and interstate regulation, which is achieving effective progress, and substitute for it a remote, centralized system of regulation which could not possibly adjust itself to all the local variations in water pollution control problems. We respectfully urge this distinguished subcommittee not to recommend the proposed amendment to section 9.
GRANTS-IN-AID
The bill would also amend section 7 of the Federal Water Pollution Control Act so as to raise the dollar limitation on Federal construction grants from $600,000 to $1 million; raise the limit on grants for joint construction projects from $2,400,000 to $4 million; and authorize in perpetuity a Federal grant-in-aid program of $100 million per year for the separation of combined sewers which carry both storm water and sewage or other wastes.
It is relevant to examine the history of the Federal grant construction program. When first enacted in 1956, the maximum dollar amount was $250,000 and there was no additional amount for joint projects. The total authorization War $50 million per year. In 1961 amendments were adopted which raised the dollar limit from $250,000 to $600,000, and it is now proposed to raise it again to $1 million.
Also in 1961, a higher limit for joint projects was set at $2,400,000 and it is now proposed to raise it to $4 million. Still further, in 1961, the annual authorization was raised from $50 million to $80 million for fiscal 1962, to $90 million for fiscal 1963, to $100 million for fiscal 1964, and, in effect, it is now proposed to double this to a total of $200 million per year for sewerage and sewage treatment. This illustrates the inevitable tendency of grants-in-aid to expand continually once they are instituted. Perhaps the increased spending called for in this bill is but one more step toward future increased spending ad infinitum. We understand that the total expenditures required to separate storm sewers and sanitary sewers in this country would be $8.5 billion.
The increases in the dollar limitations are obviously intended to benefit larger cities, and this seems all the more unjustifiable when it is realized that per capita sewage treatment costs are less for the larger cities than they are for the smaller cities. It also seems unjustifiable in light of the facts that, for instance, Cincinnati built a $66 million sewage treatment plant some years ago and Allegheny County, Pa., built a $100 million sewage treatment some years ago, relying on their own resources. Allegheny County financed its construction by the issuance of revenue bonds, which seems to be an equitable method, of financing well within the capabilities of the larger cities. It should also be noted that the proposal to create a grant-in-aid program in perpetuity is in direct violation of the recommendations of the Advisory Commission on Intergovernmental Relations. This permanent Commission was created by Public Law 86-380 and is composed of representatives of the Federal. State, and local governments with the purpose, among others, to "Provide a forum for discussing the administration and coordination of Federal grants and other programs requiring Intergovernmental cooperation," to "give critical attention to the conditions and Controls involved in the administration of Federal grant programs," and to "make available technical assistance to the executive and legislative branches of the Federal Government in the review of proposed legislation to determine its overall effect on the Federal system.”
In its report on "Periodic Congressional Reassessment of Federal Grants-in-Aid to States and Local Governments” dated June 1961, the Commission studied the problem relating "to the difficulty encountered in terminating financial grants-in-aid from the National Government to the States and their political subdivisions, once the basic purpose of the grant has been essentially achieved, and comparable difficulties in redirecting the grant in order to reflect changed conditions.” On Page 27 of the report, the Commission recommends 5 years "as a maximum period beyond which no grant should continue without reappraisal and reenactment if such is in order." The Commission specifically recommended that the authorization for any new grant should expire on June 30 of the fifth calendar year beginning after such authorization unless an earlier date is otherwise specifically provided by law. The provision of S. 649 authorizing a grant-in-aid program in perpetuity completely ignores this wise counsel from a distinguished Commission established by the Congress. Mr. Chairman, I respectfully request permission to submit a copy of the June 1961 report of the Advisory Commission on Intergovernmental Relations for inclusion in the file of the subcommittee.
It should be remembered that Federal grant-in-aid programs do not necessarily provide a permanently accelerating effect. For example, the Milwaukee Journal of August 5, 1962, reported that a review of the water pollution situation in Wisconsin had been made by the State water pollution committee and the board of health, as follows:
"It clearly shows that Wisconsin has lost ground in municipal pollution control since the mid-fifties. While industries reduced their waste discharges by 9.2 percent between 1954 and 1961, municipal discharges increased 2.6 percent.
Thanks to industrial efforts, the overall reduction that has gained Wisconsin's pioneer program national attention continued, amounting to 7.2 percent in this period.
"The 2.6-percent increase in municipal pollution contrasts with a 7-percent reduction achieved between 1949 and 1954.
This slowdown is blamed by Theodore P. Wisniewski, director of pollution control, on the Federal aid program. Federal grants have been available since 1956 for local sewage plant construction.
"'The grants speeded things up for a while,' he said, 'and then we began to lose ground. Communities used to go ahead on their own. Now they wait for grants.'
"'And when the money runs out things come to a standstill. That's the way it is right now. Wisconsin's allotment has been used up and Congress has not yet made an appropriation for the new fiscal year (which began July 1).
"The Federal program began with $50 million a year and had increased to $80 million last year, with $90 million in the pending appropriation bill, which has been passed by the House.
"Wisniewski said that Federal, as well as State, enforcement of pollution laws would be geared to the flow of money for grants, because municipalities cannot be forced to bear the whole cost, when they can get Federal aid by waiting.
" 'Another thing,' he said, 'is that too high a percentage of the money is being used for intercepting sewers and outfalls. The act includes these among treatment facilities. I think the definition should be changed.
"'In 1960 we had about $4,200,000 of construction aided by grants, but only about $2,800,000 was actually for treatment. For the 5 years prior to 1956, Wisconsin averaged $2,500,000 for treatment without Federal grants. You can see how little we've gained.
"'The Federal program should be expanded to take care of these problems or eliminated entirely! "
We recommend that the latter alternative be chosen, not only to eliminate the slowing-down effect, but also because of the fact that such a program, in many instances, merely has the effect of displacing unsubsidized construction with subsidized construction, in addition to being an improper assumption of a State and local responsibility by the Federal Government. The proper Federal role should be in the fields of research, consultation, advice, and promotional-educational efforts.
ANOTHER NEW AGENCY
S. 649 would also amend the Federal Water Pollution Control Act by adding a section 2, which would create a Federal Water Pollution Control Administration in the Department of Health, Education, and Welfare. Of course, water quality control is a much broader subject than considerations related solely to public health, vitally important as they may be. Hydrological factors, geologic factors, agricultural factors, and economic factors are also involved, and are matters of tremendous importance in this field.
However, we are in general opposed to a proliferation of new agencies with resultant duplication of facilities and personnel and conflicts with existing policies and practices.
It is my suggestion that the committee give consideration to vesting of the supervision of Federal activities in this field to a commission composed of representatives of the Geological Survey of the Department of the Interior; the Soil Conservation Service of the Department of Agriculture; the Business and Defense Services Administration of the Department of Commerce; and the Public Health Service of the Department of Health, Education, and Welfare. This would permit coordinated use of the laboratories, other facilities, and personnel of these various departments in a unified program of appropriate Federal activities in this field.
We greatly appreciate this opportunity to present our views on this bill to this distinguished subcommittee, and we reiterate our hope that the information we have submitted will be helpful in the subcommittee's deliberations.
Mr. MUSKIE. Mr. President, how much time have I remaining?
The PRESIDING OFFICER. The Senator from Maine has 30 minutes remaining.
Mr. MUSKIE. I should like to take a few minutes to make certain points responsive to the Senator from Kentucky.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Mr. MUSKIE. Mr. President, the Senator from Kentucky [Mr. COOPER] has said that the RECORD does not contain testimony to support the need or the feasibility of standards. I do not have time to go through all the references to that subject in the testimony; but on page 470 of the hearings there appears the strong endorsement of standards by the Secretary of Health, Education, and Welfare. I suggest that he would not have recommended them if he did not think them feasible; and I am sure he would not have formed a judgment as to their feasibility without first discussing the question with the Public Health Service experts and the other experts to whom the Senator from Kentucky has referred.
As to the question of the attitude of the States on the standards section, today in my remarks I cited several representatives of State agencies who endorse this bill in its entirety; and I now call the attention of the Senator from Kentucky to the most recent evidence of the attitude of the States; this comes from the Water Pollution Control Federation, which is identified as follows:
The following report of the Legislative Analysis Committee was unanimously adopted by the Board of Control of the Water Pollution Control Federation at its annual meeting in Seattle, Wash., October 10, 1963. The board represents 37 U.S. member associations, totaling nearly 10,000 individuals concerned with water pollution control.
Individual members include professional engineers, municipal officials, education and research personnel, industrial representatives, waste-water treatment plant superintendents and operators, regulatory personnel, equipment manufacturers, and others interested in water pollution control.
Now let us consider what the federation has to say about standards.
Mr. COOPER. Is that printed in the hearings?
Mr. MUSKIE. No; but today I have had it printed in the CONGRESSIONAL RECORD. However, I agree that this is not in rebuttal of the point made by the Senator from Kentucky with reference to testimony in the hearings.
The fourth recommendation by the federation is as follows:
The Water Pollution Control Federation recognizes the desirability of determining uniform water quality criteria for specific uses; however, because of the differences in the needs of specific river basins, the Water Pollution Control Federation recommends the establishment and use of such criteria as a cooperative effort by industry, State, local, interstate, and Federal agencies for and within specific river basins.
Mr. President, what provisions of the bill determine whether there will be such a cooperative effort? That part of the bill reads as follows:
(c) (1) In order to carry out the purposes of this Act, the Secretary may, after reasonable notice and public hearing and in consultation with the Secretary of the Interior and with other Federal agencies, with State and interstate water pollution control agencies, and with municipalities and industries involved, prepare regulations setting forth standards of water quality to be applicable to interstate waters or portions thereof.
(2) The Secretary shall also call such a public hearing on his own motion or when petitioned to do so by the Governor of any State subject to or affected by the water quality standards set pursuant to this subsection for the purpose of considering a revision in such standards.
So, Mr. President, under the provisions of the bill, not only do the States participate in establishing the standards in the first instance, but, in addition, they can initiate action to modify and revise the standards.
I read further:
(3) Such standards of quality shall be such as to protect the public health and welfare and serve the purposes of this Act. In establishing standards designed to enhance the quality of such waters, the Secretary shall take into consideration their use and value for public water supplies, prop propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses.
(4) The Secretary shall promulgate the standards pursuant to this subsection with respect to any waters only if, within a reasonable time
Again opening the door to State action
after being requested by the Secretary to do so, the appropriate States and interstate agencies have not developed standards found by the Secretary to be consistent with paragraph (3) of this subsection and applicable to such interstate waters or portions thereof.
Mr. LAUSCHE. Mr. President, will the Senator from Maine yield?
Mr. MUSKIE. I yield.
Mr. LAUSCHE. From what document is the Senator from Maine reading?
Mr. MUSKIE. From page 27 of the committee report.
Mr. LAUSCHE. I thank the Senator from Maine.
Mr. MUSKIE. Then, Mr. President, I add -- so that the complete story will be in the RECORD --that all of the proceedings which would be provided by Senate bill 649 would be independent of, and would be in advance of, any enforcement proceedings. Indeed, if standards are established under this section, it might well be that the need for enforcement proceedings would be eliminated, because there would have been agreement, in advance of the creation of any endangerment to the health and welfare of any person, and by consultation with all the interested parties, on standards designed to assign reasonable uses, qualities, and standards to the waters in question.
Therefore, in view of the fact that there would be reasonable notice, and that everyone would be on notice as to the standards expected and as to the pollutants allowed to enter the stream, and also in view of the fact that everyone concerned would be on notice with respect to the requirements, I submit that the need for enforcement proceedings would be minimized.
But if there were endangerment to the health and welfare of any persons, notwithstanding the action taken under Senate bill 649, as I have described it, the enforcement proceeding which would follow would be exactly the same as that to which the Senator from Kentucky has made reference.
Mr. LAUSCHE. Mr. President, will the Senator from Maine yield for a question?
Mr. MUSKIE. I am happy to yield.
Mr. LAUSCHE. On page 29 of the report, under what was formerly subsection (f), but, according to the report, will now be subsection (g), subsection (g) reads as follows:
(g) If action reasonably calculated to secure abatement of the pollution within the time specified in the notice following the public hearing is not taken, the Secretary
(1) In the case of pollution of waters which is endangering the health or welfare of persons in a State other than that in which the discharge or discharges (causing or contributing to such pollution) originate, may request the Attorney General to bring a suit on behalf of the United States to secure abatement of pollution, and
Is that language to be included in the bill?
Mr. MUSKIE. Yes, exactly as it now is. It is now in the law.
Mr. LAUSCHE. Yes.
Do I correctly understand that this language contemplates that the action may be brought only -- in the absence of consent by the State involved -- when the origin of the pollution is in the offending State and when it brings a menace to health in adjoining States?
Mr. MUSKIE. That is as I understand the act.
Mr. LAUSCHE. Paragraph 2 reads as follows:
In the case of pollution of waters which is endangering the health or welfare of persons only in the State in which the discharge or discharges (causing or contributing to such pollution) originate, may, with the written consent of the Governor of such State, request the Attorney General to bring a suit on behalf of the United States to secure abatement of the pollution.
Is it necessary, as a condition to the right of the Attorney General to bring a suit and to institute action in -- let us say -- Ohio, if the pollution occurs there, to have the consent of the Governor?
Mr. MUSKIE. This language of the act will not be changed; and I think the Senator's interpretation of it is correct.
Mr. LAUSCHE. If the pollution originated in Ohio and affected residents in an adjoining State --for example, Indiana -- since two States would be involved, the action could be brought against the Ohio offender without the consent of the Governor of Ohio.
Mr. MUSKIE. That is correct under present law; and the provision would not be changed by the bill.
The Senator is concerned with court proceedings. I should like to point out a provision that I want to be sure comes to his attention. The bill would add to the enforcement section of the bill the requirement that if the proceeding actually gets into court, the practicability of the standards shall be an issue. So the burden would be on the Secretary to establish the practicability of the standards which he would set under S.649.
Mr. LAUSCHE. Does the Secretary now have the right to establish standards?
Mr. MUSKIE. That is the point on which the Senator from Kentucky and I disagree. I say that he does. I make that statement because, in order to trigger the enforcement proceeding, the Secretary must believe that there is an endangerment of the health and welfare of any persons, and the chief enforcement officer of the Public Health Service has interpreted "welfare" as including fish and wildlife uses, recreational uses, industrial uses and agricultural uses as well as public water supply. Therefore, under present law the Secretary must first make a judgment as to whether or not there is an endangerment of health and welfare of any persons in accordance with that standard that I have read. If he believes that there is, obviously he must set up some objective standards to reach such a conclusion. Then he may trigger the enforcement proceeding.
The bill S. 649 would substitute for the subjective forms of judgment a proceeding in which the State, the communities, and the industries would participate in advance of the establishment of standards spelling out what is health and welfare.
Mr. LAUSCHE. Where in the report are the provisions dealing with the establishment of standards? Is that not completely new material?
Mr. MUSKIE. It appears on page 8.
Mr. LAUSCHE. I thank the Senator.
Mr. MUSKIE. The Senator will note that the report clearly spells out that what we are talking about is a case-by-case, river basin by river basin, or even portion of a river basin by portion of river basin evaluation of water quality standards.
Incidentally, I should like to comment in relation to the amendment of the Senator from Kentucky that what he is talking about is a study of national standards of water quality. If the Senator means by national standards what all the witnesses in the hearings meant by national standards, I point out that they were all opposed to such standards; and I am opposed to them. If he meant something different, he ought to clarify the point. I do not believe in uniform national standards. I believe in setting standards by streams and by portions of streams. They should, be standards that would reflect the differences in water supply, the differences in water uses, the intensity of water uses, and the availability of water river by river and portion of river by portion of river.
I am opposed to uniform national standards. I say that the only way we can establish the kind of standards about which I am talking is to start working at the task. We should start working at it with those who know something about it, They are the States, the communities, industries, and water users of all kinds. I believe that the bill, S. 649, would establish that procedure.
Mr. LAUSCHE. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. LAUSCHE. When requested by the Secretary to do so, may the Attorney General of the United States go into a State and bring an action in a case in which a wrong has been perpetrated upon the citizens of Ohio through a pollution originating in Ohio?
Mr. MUSKIE. Only with the consent of the Governor of Ohio, as I read the present law.
Mr. LAUSCHE. It is my understanding that if the Attorney General intends to go into Ohio to abate a pollution originating in Ohio and offending the rights of Ohio he must have the consent of the Governor of Ohio?
Mr. MUSKIE. That is as I understand the present law, and that provision would not be changed.
Mr. LAUSCHE. I should like to ask the Senator from Kentucky to answer that question.
Mr. COOPER. Under present law?
Mr. LAUSCHE. If an act of pollution should originate in Ohio and should cause injury to a citizen of Ohio, may the Attorney General of the United States bring an action against the Ohio citizen without the consent of the Governor of Ohio?
Mr. COOPER. No; he may not.
Mr. LAUSCHE. He may not.
Mr. COOPER. The law provides:
In the case of pollution of waters which is endangering the health or welfare of persons in a State other than that in which the discharge or discharges (causing or contributing to such pollution) originate, may request the Attorney General to bring a suit on behalf of the United States to secure abatement of pollution.
Mr. HOLLAND. Mr. President, will the Senator Yield?
Mr. MUSKIE. I yield.
Mr. HOLLAND. Mr. President, on that very point, I should like to call attention to the Senator from Maine and the Senator from Ohio that I believe their colloquy has gone a little further than they intended to go. If pollution originated in the State of Ohio, and if the Governor of Ohio requested its abatement, a suit could be brought on the request of the Secretary to the Attorney General only if the waters were interstate waters, and only if those waters emptied into other waters that made it a part of an interstate system.
Mr. MUSKIE. I agree with the Senator on that point.
Mr. HOLLAND. I wanted to have that condition in the RECORD because all the principal rivers in the peninsular part of my State are intrastate. I wish it completely understood that there is no provision in the law which under any circumstances would give Federal jurisdiction. I understand that that point is taken care of by subsection (c) (6) of the new section 10 of the act as reprinted on page 27 of the committee report, with the amendment in the following words:
(6) Nothing in this subsection shall (a) prevent the application of this section to any case to which subsection (a) of this section would otherwise be applicable, or (b) extend Federal jurisdiction over water not otherwise authorized by this Act.
That would mean that nothing but truly interstate waters could ever be affected by the act. Is that position correct?
Mr. MUSKIE. The Senator is correct on that point. The bill would not enlarge the jurisdiction over any water.
Mr. LAUSCHE. First, it would have to be a stream that was interstate. If the action were to be brought against a citizen of Ohio for pollution which originated in Ohio, the consent of the Governor would have to be obtained or the Governor would have to request that the action be brought.
Mr. MUSKIE. The Senator is correct.
Mr. HOLLAND. That could be done only if the pollution were in an interstate basin.
Mr. LAUSCHE. The Senator is correct.
Mr. HOLLAND. If it were in an intrastate basin, under no circumstances would Federal jurisdiction accrue. Is that correct?
Mr. MUSKIE. That is as I understand the law.
I should like to make one further point. In 1955 the then administration submitted a water pollution control bill which included a section 7, which read as follows:
The Surgeon General shall, after careful investigation and in cooperation with other Federal agencies, State water pollution control agencies, and with municipalities and industries involved, prepare or adopt and publish standards of quality to be applicable to such interstate waters at the point or points where such waters flow across or form the boundary of two or more States.
That proposed legislation was supported by a letter from the then Secretary of Health, Education, and Welfare Oveta Culp Hobby, in a letter dated April 13, 1955; and the standards section was endorsed.
Quality standards is not a new proposal. It has been thought of for a long time, and considered an important instrument to achieve the objective which the Senator from Kentucky himself endorses in his minority views; that is, improving our efforts toward raising water quality and reducing pollution.
The PRESIDING OFFICER. Do Senators yield back their remaining time on the amendment?
Mr. MUSKIE. Mr. President, I yield back my remaining time.
The PRESIDING OFFICER. Does the Senator from Kentucky yield back his remaining time?
Mr. COOPER. Mr. President, I yield back my remaining time.
The PRESIDING OFFICER. All time on the amendment has been yielded back. The question is on agreeing to the amendment offered by the Senator from Kentucky [Mr. COOPER].
Mr. HOLLAND. Mr. President, will the Presiding Officer restate the issue?
The PRESIDING OFFICER. The question is on agreeing to the amendment offered by the Senator from Kentucky.
The amendment was rejected.