I come to the point if the requirements that the Secretary would put on himself merely are that his water pollution control plan shall be consistent with the comprehensive river basin plan, an anomaly exists. If, in fact, a comprehensive river basin plan is in existence, then a consistent water pollution plan must also exist, and there is no need for a competitive plan, even from the Secretary's point of view, since his instrumentality would have participated in the development of the commission's plan.

On the other hand, if such a comprehensive resource management plan is not in existence, then the Secretary's pollution control plan developed under title I obviously cannot be tested for consistency with it, because there is nothing to compare it with.

If the intent is to develop both the river basin comprehensive plan and the Secretary's water quality control plan concurrently, then such provision might appropriately take the form of an amendment to the Water Resources Planning Act, rather than the parallel competitive procedures that are contemplated here.

In terms of summary, this constitutes the prepared discussion on this point. We are concerned, as many other witnesses in the past have been, with the reference in section 104(b) which would direct the planning agency to consider effluent charges on public and private entities discharging wastes into the waters of the basins covered br the plan.

We, as an industry, do not object to charge for services rendered. We pay them and have paid them for years to municipal organizations and others. I recall no instance of question as to the validity of such charges. But we do not think that a punitive charge in the guise of an inverse incentive would be appropriate; an effluent charge in any other context is fundamentally fallacious: if tolerable, it purchases the right to pollute, thus defeating the very purpose of pollution control; if intolerable, it accomplishes no immediate purpose that is not better served by administrative regulations and statutes.

Accordingly, we should recommend that the reference to effluent charges be substituted by a reference to economic incentives which is the language that occurs in two prior places in the bill.

Although we are aware that such matters fall to others in the Congress, it may interest you to know that our association believes that a 7-percent, or greater, investment tax credit for the costs represented by property and land use, and a current full reduction for all capital costs in the year incurred, would be instrumental in stimulating investment in such nonprofit facilities.

Title II of S. 2987, in general, we find is inhibitory on a national program. It waives dollar limitations on construction programs, it is true, but in ways that are somehow defeating in that statewide water quality standards are required. I think at this point in time, when the Nation is undergoing this massive change in orientation and thinking, this is perhaps a poor time to bring this requirement into the picture. I have not canvassed all the States to find out what they are doing on statewide standards.

I find many of them are proceeding along this line because it is logical in terms of their own State control programs. But to withhold aid to a municipality that may be on a stream with standards merely because

standards have not been set on every other stream in the State, it seems to me is a peculiar approach at a time when we are interested in bringing these problems under control.

The other misgivings we have about title II relate to why the applicant should be required to have capability of adopting a financial program to assure the expansion and replacement of such treatment works as are needed without subsequent Federal grants. There may be wide variations intended in the word "capability." Taken at face value, this would demand proof that they are capable of doing this in the future. However, it is precisely in those areas where financial capability is least that Federal aid is needed most. This relates to the original comment on the fact that we find some provisions of title II inhibitory on the program. I don't think that that is the intent of the committee.

The requirement for the municipality to forecast what its financial needs will be 10, 20, 30 years ahead, I think, would make demand on the capabilities for prophecy of the municipalities that nothing in their history warrants us to believe they have. There are many reasons why outside help will be needed in the future.

Expansion means new costs for new reasons, and the usual standards of Federal aid ought to apply.

With that, I think I will conclude my portion of the oral summary of our statement and request my colleague, William Conner, to present an oral summary on titles III and IV of S. 2987.

STATEMENT OF WILLIAM J. CONNER, CHAIRMAN, LEGISLATION SUBCOMMITTEE, MANUFACTURING CHEMISTS ASSOCIATION

WATER RESOURCES COMMITTEE

Mr. CONNER. Mr. Chairman and members of the subcommittee, we are concerned about the enforcement sections of S. 2987 because we feel that they are fundamentally inconsistent with the cooperative approach which was visualized in the passage of the act of 1965 and in the way that the present statute is currently being administered as described by Mr. Stein yesterday.

I am almost tempted to borrow from Senator Randolph's comment a moment ago when he spoke about the contrast between providing incentives and beating people over the head. We feel that the degree of cooperation that has been evidenced by both municipalities and industry in recent years with the program of water pollution control administration obviates the necessity for stringent enforcement measures to be added to the statute.

Indeed, we have strong feelings that some of the additions which are suggested here in Titles III and IV would have the opposite effect and inhibit cooperation. To summarize briefly the first provision, there is a suggestion that the standards-setting requirements on the States should be expanded from the setting of standards for interstate waters to setting of standards for all navigable waters.

You have just had a brief discussion of the question of whether it is desirable to have intrastate waters subject to standards. Regardless of one's views on that point, it seems to me that with the near appearance of the deadline for the setting of standards by the States, namely,

62-611-66- -35

June 30, 1967, it is going to be extremely difficult for all of this to be done even for interstate waters by that early deadline, and to expand that to include intrastate waters as well is to put an even greater burden on our understaffed State agencies. So I would urge that that change not be made.

There is also a suggestion that the Governments of the various States should be excluded from the decision as to wehther a Federal enforcement proceeding should be initiated in their State and whether if a proceeding has gone through the conference and hearing stages, a Federal court action should be initiated. It seems to us that it is not helpful to remove the State Government's option in these two respects. Since that language was added to the statute in 1961, several Governors have asked the Federal Government to help them with intrastate problems and we have seen no suggestion that there is any need for Federal intervention in cases where the State Government is not in agreement. Therefore, we would not support that proposal.

There is also a proposal that the courts should be narrowly limited in reviewing the findings of the temporary tribunal, the hearing board, which is made up, as you know, of appointees of both the Federal authorities and State authorities and is an ad hoc group which is set up for one hearing and then disbanded. We do not feel that it is helpful to limit the scope of review of the findings of such a temporary group by the Federal courts because they do not have the same degree of expertise that a permanent body such as the Federal Trade Commission might have and it seems to us reasonable that the courts should carefully review everything that they have done, taking into full account the whole record and the recommendations of that Board.

I would like to turn then to that part of our statement which deals with the points that give us the greatest concern.

There is a striking example we think of departures from orderly administrative procedures in title IV of S. 2987 which would create a new Federal cause of action for persons who are endangered by pollution, allowing them to come into Federal court and seek an injunction regardless of the usual test for jurisdiction in the Federal court.

In the first place, State courts are already dealing with these matters. Furthermore, under section 310 (1) of title III which ties in with title IV any person bringing such an action would be allowed to rely upon the findings of the Hearing Board or the court in a Federal enforcement proceeding as prima facie evidence of pollution by the defendant in obtaining the injunctive relief.

Our concern is not that the person downstream should not have some relief, indeed, he already has a cause of action in most State courts. Our concern is that by encouraging this sort of action, the orderly administrative process of working out these complicated plans on à river basin basis for abating pollution on an orderly scheme at a minimum cost to the communities and industries concerned and at the maximum efficiency would doubtless be seriously disrupted if private plaintiffs are encouraged by this new legislation to come in and slap an injunction on either a municipality or an industry, completely disrupting whatever timetable had been worked out by the administrative agencies either at the State or Federal level. We feel this is not a helpful addition and would resist this suggestion.

A similar though less obvious threat to orderly abatement is offered by section 310 (k) which would permit the Secretary to bypass enforcement procedures of the present statute and go directly to the Attorney General to seek appropriate relief to abate actual or threatened pollution. It provides that this step could be taken wherever the pollution presents an imminent danger to the health or welfare of persons or to natural resources or to areas of significant scenic or recreational value.

There are State statutes which permit State authorities to move with dispatch where the public health is threatened. Certainly no one can have any disagreement with such an approach. Our concern with this language is that it goes far beyond the public health. It also leaves it up to the discretion of the Secretary as to when he would move-at least in his judgment—and it would be quite a temptation, it seems to us, for him to circumvent all the administrative procedures of conference, hearing board and court review of the act in any case about which he became concerned if he had such a tool ready at hand. We think it is far too sweeping for the purpose that it appears to

serve.

Now, with respect to section 313 of the bill, we are quite concerned about the provision on subpena power. The subpena would be a very sweeping one which would reach any witness or any records which the Secretary finds relevant or material to the inquiry he may be making, which puts it pretty much in his hands, I should say.

It would apparently require the presence of the witness wherever the Secretary was making his inquiry, even though the subpena must be served in the district in which the witness is located. Furthermore, anyone who wants to test the validity or the scope of this subpena is at a disadvantage for the Secretary has two choices and the respondent has no choice.

The Secretary can either ask a Federal court to order the party to appear with his records under pain of a contempt proceeding or else the Secretary has the option to proceed directly against him in Federal court for a violation of the law, a misdemeanor in failing to respond. There is no provision for the respondent to come in and test the validity or the scope or sweep of the subpena on his own motion. Therefore, he has to wait for the Secretary to make the election between these two procedures and then stand his chance. We think this is not a desirable provision.

There is also a provision in section 313 for plant inspection. Here again the plant inspection would be very broad. It contemplates entry into plants for inspection of all physical facilities and all records and processes and controls relating to discharge, and goes to all process material with no protection for confidential information.

We think that this goes beyond what is necessary to determine what the plant may be putting into the public waters. Certainly the governmental authorities at the State and Federal level are entitled to that information and we feel that that types of information could better be acquired by a limited reporting provision of the type that this committee participated in placing in the Clean Air Act which we have attached as appendix B to our statement.

Here, wherever there is real need for reporting of pollutants, it can be asked for in connection with a specific proceeding against respond

So,

ent with appropriate safeguards for confidential information. we would suggest that this type of specific reporting proceeding be employed rather than either the plant inspection provision of section 313 or the more sweeping reporting provision of section 313 which would require all persons discharging into the public waters to make reports across the Nation.

That concludes our comments, Mr. Chairman.

(Mr. von Frank's prepared statement follows:)

STATEMENT OF A. J. VONFRANK ON BEHALF OF THE MANUFACTURING
CHEMISTS ASSOCIATION

Mr. Chairman and members of the subcommittee, my name is A. J. von Frank. I am appearing as a witness on behalf of the Manufacturing Chemists Association (MCA), a nonprofit trade association of 192 U.S. corporations, both large and small, that collectively represent more than 90% of the productive capacity of the basic chemical manufacturing industry in this country. I am professionally employed by a major chemical company to direct its air and water pollution control activities, and am currently serving as chairman of the MCA Water Resources Committee. I am accompanied by William J. Conner, an attorney for a member company, who has special knowledge in this field.

Our group has testified before this and other Committees of the Congress with regard to many of the bills relating to water and air resources, and we hope we have made some contributions in these colloquies. We work closely with control authorities at all levels, and have conducted workshops and training seminars to increase industrial competence in waste control. In order to help implement the standards-setting provisions of the Water Quality Act of 1965, we have organized a subcommittee which is assembling data to aid in this enormous task. We hope to bring constructive suggestions to you today.

SUMMARY

We approve and support S. 2947 in its entirety, believing it to represent a logical and realistic improvement of the Federal Water Pollution Control Act which will accelerate progress in water resources recovery.

We do not favor S. 2987 as proposed. We have recommended and supported the coordination of pollution control and abatement under comprehensive river basin management in the past and still do so. But Title I of this bill appears to be in conflict with the letter and spirit of other sound Federal legislation. and not properly structured for the best realization of this potentially fruitful concept. Title II would place ill-advised restrictions on construction grants. Title III would give sharply increased emphasis to enforcement powers, but we believe that the proposed extensions of authority would contribute little to systematic progress and would more likely interfere with it. Title IV's authorization for private suits to abate pollution would be highly disruptive to orderly administrative abatement procedures by governmental agencies.

S. 2947

A major and desirable feature of S. 2947 is Section 4, removing existing dollar limits on individual project grants for the construction of sewage treatment facilities. In large measure, the pace of municipal sewage treatment construction is set by the Federal grant program. But the current arbitrary limit on grants diminishes the effectiveness of the program in the areas where it is needed most: the centers of urban population, where the initial capital investment is highest. the pollution burden most concentrated and where, in an engineering sense, the greatest economies of scale-up in design are achievable. The cost to the Federal Government of this accelerated program has been estimated in your January 19 report at $6 billion between now and 1972. This figure corresponds to a Federal share of 30% in a total national program estimated at $20 billion, merely to overcome accumulated deficiencies. It would appear, then, that the contemplated investments provided for in Section 6 are the minimum required and are essential. We support this section, confident that the program will be subjected to regular review and assessment to make certain it conforms with national needs. As an industry deeply interested in our national water quality problems, we recognize that failure of any individual sector to meet its responsibilities in water