fr ‘Ss: Comgrers Horie . Comer. : Sy Se
4 tre red S Dans + Roden, He 22 1971
| OCEAN DUMPING OF WASTE MATERIALS
"HEARINGS |
BEFORE THE
_ SUBCOMMITTEE ON
FISHERIES AND WILDLIFE CONSERVATION
_ AND THH
ee ON OCEANOGRAPHY
OF THE
ss COMMITTEE ON :
MERCHANT MARINE AND FISHERIES
HOUSE OF REPRESENTATIVES
_ NINETY-SECOND CONGRESS
FIRST SESSION
ON
H.R. 285, H.R. 336, H.R. 337, HLR. 548, HLR. 549,
_ HLR. 805, H.R. 807, H.R. 808, H.R. 983, H.R. 1095, ©
H.R. 1329, H.R. 1381, H.R. 1382, H.R. 1383, H.R.
‘1661, LR. 1674, H.R. 2581, H.R. 3662, HLR. 4217,
H.R. 4218, H.R. 4247, H.R. 4359, H.R. 4360, H.R.
4361, H.R. 4584, H.R. 4719, H.R. 4723, H.R. 5049,
H.R. 5050, H.R. 5239, H.R. 5268, H.R. 5477, H.R.
5705, H.R. 6305, H.R. 6582, H.R. 6610, H.R. 6771,
H.R. 7619, and H.R. 8039
oe
APRIL 5, 6, 7, 1971 er. oC
ne axkk
tn = yao"
Nee
LON Po 2
>rinted for the use of the Committe€ o on i Mepea Marine ee a wishes De aed
ee i enn -
Ceo Sf re Gh. 68 to ai
z ne uN A.
OCEAN DUMPING OF WASTE MATERIALS
HEARINGS
SUBCOMMITTEE ON
FISHERIES AND WILDLIFE CONSERVATION
AND THE
SUBCOMMITTEE ON OCEANOGRAPHY
OF THE
COMMITTEE ON
MERCHANT MARINE AND FISHERIES
HOUSE OF REPRESENTATIVES
NINETY-SECOND CONGRESS
FIRST SESSION
ON
H.R. 285, H.R. 336, H.R. 337, H.R. 548, H.R. 549,
H.R. 805, H.R. 807, H.R. 808, H.R. 983, H.R. 1095,
H.R. 1329, H.R. 1381, H.R. 1882, H.R. 1383, H.R.
1661, H.R. 1674, H.R. 2581, H.R. 3662, H.R. 4217,
H.R. 4218, H.R. 4247, H.R. 4359, H.R. 4360, H.R.
4361, H.R. 4584, H.R. 4719, H.R. 4723, H.R. 5049,
H.R. 5050, H.R. 5239, H.R. 5268, H.R. 5477, H.R.
9705, H.R. 6305, H.R. 6582, H.R. 6610, H.R. 6771,
H.R. 7619, and H.R. 8039
APRIL 5, 6, 7, 1971
Serial No. 92-2
Printed for the use of the Committee on Merchant Marine and Fisheries
U.S. GOVERNMENT PRINTING OFFICE
62-513 O WASHINGTON : 1971
COMMITTEE ON MERCHANT MARINE AND FISHERIES
EDWARD A. GARMATZ, Maryland, Chairman
LEONOR K. (MRS. JOHN B.) SULLIVAN, THOMAS M. PELLY, Washington
Missouri WILLIAM 8S. MAILLIARD, California
FRANK M. CLARK, Pennsylvania CHARLES A. MOSHER, Ohio
THOMAS L. ASHLEY, Ohio JAMES R. GROVER, JR., New York
JOHN D. DINGELL, Michigan HASTINGS KEITH, Massachusetts
ALTON LENNON, North Carolina PHILIP E. RUPPE, Michigan
THOMAS N. DOWNING, Virginia GEORGE A. GOODLING, Pennsylvania
JAMES A. BYRNE, Pennsylvania WILLIAM G. BRAY, Indiana
PAUL G. ROGERS, Florida PAUL N. McCLOSKEY, JR., California
FRANK A. STUBBLEFIELD, Kentucky JACK H. McDONALD, Michigan
JOHN M. MURPHY, New York M. G. (GENE) SNYDER, Kentucky
JOSEPH E. KARTH, Minnesota ROBERT H. STEELE, Connecticut
WALTER B. JONES, North Carolina EDWIN B. FORSYTHE, New Jersey
ROBERT L. LEGGETT, California PIERRE 8S. (PETE) DUPONT, Delaware
SPEEDY O. LONG, Louisiana SS SSS
MARIO BIAGGI, New York
CHARLES H. GRIFFIN, Mississippi
GLENN M. ANDERSON, California
ELIGIO DE tA GARZA, Texas
PETER N. KYROS, Maine
ROBERT O. TIERNAN, Rhode Island
JAMES V. STANTON, Ohio
RALPH E. CAsEY, Chief Counsel
ROBERT J. McELRoy, Chief Clerk
NED P. EVERETT, Counsel
FRANCIS D. HEYWARD, Counsel
RICHARD N. SHAROOD, Minority Counsel
SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION
JOHN D. DINGELL, Michigan, Chairman
ALTON LENNON, North Carolina THOMAS M. PELLY, Washington
THOMAS N. DOWNING, Virginia HASTINGS KEITH, Massachusetts
JOSEPH E. KARTH, Minnesota GEORGE A. GOODLING, Pennsylvania
PAUL G. ROGERS, Florida PAUL N. McCLOSKEY, JR., California
ROBERT L. LEGGETT, California JACK H. McDONALD, Michigan
SPEEDY O. LONG, Louisiana WILLIAM 8S. MAILLIARD, California
MARIO BIAGGI, New York PHILIP E. RUPPE, Michigan
GLENN M. ANDERSON, California EDWIN B. FORSYTHE, New Jersey
ELIGIO DE tA GARZA, Texas
PETER N. KYROS, Maine
ROBERT O. TIERNAN, Rhode Island
SUBCOMMITTEE ON OCEANOGRAPHY
ALTON LENNON, North Carolina, Chairman
PAUL G. ROGERS, Florida CHARLES A. MOSHER, Ohio
THOMAS L. ASHLEY, Ohio HASTINGS KEITH, Massachusetts
THOMAS N. DOWNING, Virginia GEORGE A. GOODLING, Pennsylvania
JOSEPH E. KARTH, Minnesota WILLIAM S. MAILLIARD, California
FRANK M. CLARK, Pennsylvania ROBERT H. STEELE, Connecticut
WALTER B. JONES, North Carolina EDWIN B. FORSYTHE, New Jersey
ROBERT L. LEGGETT, California PIERRE S. (PETE) pu PONT, Delaware
CHARLES H. GRIFFIN, Mississippi —— ——
GLENN M. ANDERSON, California sa SS
MARIO BIAGGI, New York
ELIGIO DE ta GARZA, Texas
ROBERT O. TIERNAN, Rhode Island
PETER N. KYROS, Maine
CONTENTS
Hearings held— Page
PAC rat ag 1 Olona eres eah es Se Oo teens ere ae fa ee ok 1
ENT OTETIS Cpe TIND) 762 ct os Se 0 aa aaa eee nane eres es en 2 ee ee ee 211
iNoriev/e aii s Sa eo ae SS ee ae ger Se es Cee ee ees 379
Excentine omimlunication No, 434-22. 2 = en eS 3
Text of—
Ie Sp meh amenity ome ee ea pees gerne LE ge Ye ote TIN PE OSE 13
ELSE, BRE ce at sy 8 aah og an ie lalla lettin ATA SAI 1 sap fee LS | 8 20
EL IRs Gai7/oe ae 8 Re eee See eee eee eee eee ee eee 22
FEL ATEN AWS a RA ace Li ee Sn mae pai aa lige ie P borso N 20
FT eg A OAs a od pak a laa kat A A psi a OE EY ep 22
TEL 15S, CROSS Daa php cara 5 o> a ore ene Ea he ate peat a ptt ay aA | 24
FESO AS. Bees te) 8 there amg a gay he of ee he he ES ee 24
TEER OVS cae area oe a Al anata Reade Mpa va it adld abhns Se (0 24
TEL. IF); OSS ea Sr ee 5 50 aS 5 el aaa as eieainky Raine eae, 2 edhe 13
TEETER. TA IS) AMR ag ci ll al cera ToB es Moye, Wie 29
TEL IP LO ee eg a bey 8 OS a eee ere gar onk, 2 ademas oie 24
eimirmeltey Slee ek Ok en ee ee eater ieee Rn kaa 22
TEL TEs RCO As ee Se y/o = Dk ag aes Hae NS Sas ae een 20
UES Sep 8 as ee ein myn BN, gen tb wee nth fenn eh 41
EIEIO lesorthe:* ihe eel key El semgmpepes por oee Seth Kener eh TaN Si oS poe 45
APNE eG 4 epee ch aga pan Sh nore a PE opeysh epee toe hy Se de OPM gee ae TN dnc 20
TR eo Silliet goes eae wary & ee es a Sere eT ee nad 24
TE! Etc, OOP A saa aaa ae ayer ape a a an, aia minal ena ee 4 Pla o1
IRAs tenet Angew Alb ah eae Regu tt 2 Agee Tots an: 61
TEL ]R, GUDIUS ” iS ei aa lene RS eee ele ie a ie Pe Meee nem oe © OY S| 61
LR ee Ayers wee et teers deat Yt 4 mere a) BT Yet Se BE foe, 63
TEU IE\.. GSN) 0 ite lag eas ep aa a ee mee manenplpe I ALS 78
IRR OU Nee. frets enerenaly at ec) ateegoain th 6 Al ia) OAM Sai. 78
JEL TR, GSB se 5 ake Re mere aie Sa ara eeepc rere Eee Og 78
TTA Sols epee tye). per ore bod eaten so. Sd ee eee wT ttn 88
LEE JE%<. L7G) Sze ea aa Sa an pe gee ate Pe a) ee sa A 61
DOR sews rp} fs ene tae Brag UE: |B Pmeyerby NSE aye paper 63
OA OMe se ae oe cea epee hel Oe nea ee 45
Flake OO i eeetasey per eopitet empsctsyy Sl oe Heat a El esete! 45
TEL.Te, GPJato)_ aa ae ee ees Fore t ye wy er 63
RR 2 OS sae etre pea tereerey lawl polled suedn sl UA niet. an Sill 63
JEL C IRs. GYRGIT, 22a ac etal CB) gM eR ohie ie Neo i: Saeruderunal ly anaes e278 63
RRO OR ure ye Ray) res pute eee eal Tc PY ele Me ps ee ae RD pe pall 24
BER 6500-222. weet atta Men jriem nak [speck arn eY BA Aarl sme 20
ISR OD S20 sre) changer” bres oes p hae eneancen SE fp pen rel add atin he 63
TELESD Bes COGS LQ Si a a ee ara ee ee Pil eer ee 1 61
EIS RRnG (i, (lage sampeey Aan PTY SO Pets Gee Ae re hye iT. Trepiler one 2 63
IBLE, FACTORS 2 ene apa SA ee ene eines Seam mama Pe 24
Pee Oo0) pice m bent S uss ons ee tepyeeree E e Taal eR ATE ee ee 24
Reports from—
Agriculiure Wepartmientas AT aryepe df TT" Fees he eee ht Geb 90
ATMmyg Departments sean anu eres faye ThE Dee panel l Ey eet epee 90
Atomic Energy Commission:
Ecol 77:5 TG) Gar RP FE UE a RET DA FU ey 93
PO TUAW Oil Nn Gadtneurihy inion EL Sate eon ash areal da 91
DefensegMepartment.. _scel fk otal shan? _ crt fined ppl eens a dag! J 94
Enyzronmental Protection, Agency 226%. _< 221 ats lashes 95
ederalgkower Commission _saipeadimh jantt ts estiglangel anlar be 103
IV
Reports from—Continued
Health, Education, and Welfare: Page
Mayol Ome ome lol 2 les ase ses ee 107
Miayg 2d lO (Ieee ee a So Sk ee. Seek gee 106
Interior#Departments<2= 55.25 2b oka eee 107
Navy. Departments 2.2 8 258 A eo ee eee er 111
State Department:
Apriligyl O(las keen we Ne eo OE 114
Aprile Ogle 2 ee 113
AprilOD Ogle els ee 112
Statement of—
Amundsen, Paul, executive director of the American Association of
Port Authorities: 4 26 eke 20288. 2 epee lL ie 335
Barber, Dr. Richard, director, Oceanographic Program, Duke Marine
Waboratoryaes (oes e ees. 5222) oo. eee ea Ce ee 529
Beggs, James M., Under Secretary, Department of Transportation___ 345
Bennett, Hon. Charles E., a Representative in Congress from the
Statesofsbloridasen> \sae ceo) 2k oe el 151
Brennan, James, acting assistant general counsel, Department of
Commerce sees = 22S 2 Be a ee Si ee rr 478
Casey, Hon. Bob, a Representative in Congress from the State of
Meas olf ee! Boe ee edie bs ol he 147
Cone, O. Lincoln, staff member, American Institute of Merchant
Ship pilots 22 o-oo ie hee nes Va wi eo 357
Conte, Hon. Silvio O., a Representative in Congress from the State
of Massachusetts: =: = 2222 [42 2-4. pee eee ae ll 155
Coughlin, Hon. Lawrence, a Representative in Congress from the
State.of -Pennsylvanian 323.4 o-0+ 40s. beeeee eee ee 158
Crawford, Rear Adm. E. R., U.S. Navy, Assistant Deputy Chief of
Naval: Operations (Logisti¢s)--—=4- eee 487
Dominick, David, Acting Commissioner, Water Quality Office, EPA__ 392
Douglas, Henry T., chief of planning, Maryland Port Authority_______ 471
Edwards, Hon. Don, a Representative in Congress from the State of
@aliforniai=— =. 222. Pees SL Se 226
Fascell, Hon. Dante B., a Representative in Congress from the State of
TGV OT Gl nissan fa eee ek ye ee ee eae ye WB7/
Ford, Hon. Gerald R., a Representative in Congress from the State of
Mii¢hivanic= oo. ene eee ea eee eee ee 228
Frey, Hon. Louis Jr., a Representative in Congress from the State of
Whore 22 eo eek eal ey eek ave ee ee 216
Gallagher, Hon. Cornelius E., a Representative in Congress from the
State,ol. New. Jersey 222-2. es De 387
Garmatz, Hon. Edward A., a Representative in Congress from the
StateotMVMarvland= 2 22. eee ee 143
Giaimo, Hon. Robert N., a Representative in Congress from the
State.of (Connecticut... 5.2 os 149
Gibbons, Hon. Sam, a Representative in Congress from the State of
LO orale (eee enn OE RU RINE NE Mer ek 222
Groves, Brig. Gen. Richard H., Deputy Director of Civil Works,
Office, Chief of Engineers, Department of the Army______________ 487
Halpern, Hon. Seymour, a Representative in Congress from the State
OftNews York. ee he ee ee i 150
Hammond, Rear Adm. Robert, Chief, Office of Operations, Coast
Guards 2 ke As oe Vel eae ee i A 345
Harrington, Hon. Michael J., a Representative in Congress from the
StateofsMassachusetts.4 <2 0 Ske ee ed ee eee 379
Hayes, Brig. Gen. George J., U.S. Army Principal Deputy Assistant
Secretary of Defense for Health and Environment________________ 487
Kemp, Hon. Jack F., a Representative in Congress from the State of
IN GI SEOT Rete ee ie a oe A a ag et a 152
Ketchum, Dr. Bostwick H., associate director of the Woods Hole
Oceanographic Institution, Woods Hole, Mass___________________ 316
Langlois, Edward, chairman, Committee on Environmental Affairs,
American Association of Port Authorities_____________-_---______ 335
Linduska, Dr. Joseph P., special director, Bureau of Sport Fisheries
and Wildlife, Department of the Interior_______________________-_ 266
Vv
Statement of—Continued Page
Loesch, Hon. Harrison, Assistant Secretary for Public Lands, De-
partment Ok theulnberiony Sabatini: seerhivarAtrady give h 266
Mikva, Hon. Abner J., a Representative in Congress from the State of
ADVTS) Se Spee eter ny eye hy Sue Fey Pea Tee iy Lane peer 156
Murphy, Hon. John M., a Representative in Congress from the State
OlAING Ww, Yor kaise eee yes Eploarein Yrs. ayeey ayes oh E Wiy epee gh ed 118
Pepper, Hon. Claude, a Representative in Congress from the State of
ori Gl ae eee eee leat Lec el amp bies shaver ie cielmiagy UK NYT Mer | 141
Pollock, Howard, Deputy Administrator for National Oceanic and
Atmospheric Administration, Department of Commerce______-____ 478
eas Harold L., Director of Regulations, Atomic Energy Commis- 5
(1 ee ya aan en, he as EI Oy LEVEE AY ee, LE RI A 30
Beane John, legislative attorney, American Institute of Merchant
(Srl oy OMT a cp ll ae peed AE 2 ea ec CaN SE DS BY
Ramey, Hon. James T., member, Atomic Energy Commission___-_-_-__ 230
Reynolds, James J., president, American Institute of Merchant
(Sian ponyanes Sed ee Ogee fe Gane ee Peder 0 dae he SC yh ee co ee BE ee 307
Rhodes, Hon. John J., a Representative in Congress from the State of
ANTEC TENE ay alah eg pi be mre el eR a ne MN hy. CR, 156
Robison, Hon. Howard W., Congressman from the State of New
OKs nk Sieh See es Gruyter lai oe Wise, STARS 315
Ruckelshaus, William D., Administrator, Environmental Protection
INGONIC Vee ok eaves ae icra iy Maohreenie at Avery, Fey palin 392
Sandman, Hon. Charles W., a Representative in Congress from the
Statesof New Jierseyaea= seichiest at pies ceanhioreey nate men) | 211
Stevenson, John R., legal adviser, Department of State____________ 461
Train, Russell E., chairman, Council on Environmental Quality _____ 164
Wakelin, James H., Jr., Assistant Secretary for Science and Tech-
nolorye: Department of Commences...) esate peneles Spiel ae 478
Williams, Hon. Lawrence G., a Representative in Congress from the
StatenotaPennsylvania. act foams tebe thers) ladaenoni ben: - 229
Wolff, Hon. Lester L., a Representative in Congress from the State of
INeweviOrk ane h shane a pathy ete te celdeemnaes) bono i 227
Additional information supplied by—
American Association of Port Authorities, supplementary state-
Ire ieee Laie Vn wells lett AY eT sone lire Seno 344
American Petroleum Institute, prepared statement_________________ 538
Atomic Energy Commission:
Dumping sites of radioactive wastes.________________________ 238
Monitoring of radioactive dumping sites_____________________- 238
Radioactive waste labeling requirements____________________- 243
Ramey, Commissioner James T., letter to Congressman P. N.
McCloskey, enclosing answers to questions submitted for
RECON Heinle: esd. aprgindyined xi S here Patertares FI yeas remt ete | 249
Recovery of items dumped in the ocean, listing________________ 239
Rules of practice authorizing ocean dumping__________________ 265
Sea disposal of radioactive wastes—historical trends, 1946-70,
HE 0) (Se ag goa a ea a ae re nn Co ee a LN 235
Step-by-step process for licensing of power reactors by the one
Barber, Dr. Richard T.:
Preparedrstatement-waeen- Ee pee Po ee leeceides aha iaer i nee 531
Jey GULIAS Oi loosaqay oavrerlll mmioracneyoiim | 8 530
Commerce Department:
NOAA laboratories capable of assisting with ocean dumping
problems. 2 2.22 = Beco aba aA arent nthe tye Ak tei Iyyettons & 486
IN\OVAVAS Research iviesselst 4-520 Use Ud Lk oR eel, opt OF cae eae 485
Defense Department:
Air Force disposal of photographic wastes.___________________ 499
Air Force memorandum on pollution abatement dated May 6,
TGS 7A) SS dS OA st a eee aa ey es ee 503
Air Force regulation on pollution control dated Sept. 23, 1970____ 505
Amendatory language re vessel “dumping”_________________-_ 522
Army memorandum on environmental protection and preserva-
pronydatedeIViarclae 29s AUG (il eeewls IR See yee een ys Lyne et 513
VI
Additional information supplied by—Continued
Defense Department—Continued
Army memorandum on environmental quality dated Sept. 14, Page
TVOWOs cee) 2A) Fe EIR AS. . a TOE 516
Disposalvo® biological wartare ascents === = 500
Fnvironmentalistateiml emit sis: e pees ie es ype nee ACL alee ee 496
Establishment of the issuance of permits program______________ 494
Final report of results of Navy investigation to inquire into the
circumstances surrounding the discharge of waste material
which occurred off the coast of Jacksonville, Fla., on November
30) 197022 sab Se Soa ah iC) 20 ee eee 541
Limits of tidal influence along certain rivers___________________ 523
RefusevActapermity pro gre rine ye ele ee 495
sewage treatment timetablet.) 222 a s1 0 2) Re eee ee 501
Dingell, Hon. John D.:
BOcacC7egaricase& oes akek DN IOn eee 5. See ae ere PAM
Ecology, Law, and the ‘“‘Marine Revolution” by Carleton Ray__---_- 542
Papers by Dr. Jerold M. Lowenstein on “Risks of Radioactive
Pollution of the Oceans” and ‘“‘Radioactive Pollution of the
DEAS nee ee Dk Se a he ae a Os 373
Environmental Protection Agency:
AKC permit and regulatory requirements___________________-- 457
Budget request for 1972 for solid waste control__________--_-_- 404
Burden of proof for proposed dumping permit____________---_- 450
Conditionslotva dumpine-permiteae eet eee 443
Consultation provisions prior to issuing permits______________- 455
Cost of implementing the Marine Protection Act of 1971_______ 399
Deadline dates for municipal and industrial wastes_____________ 431
Dumping material from foreign territories in waters seaward of
the United Statess22= <=... 5) 2oMito.) 16 Jee eee 440
Emergency dumping without a permit to safeguard human life__ 443
Environmental Impact Statement from the Department of
Defense—May 15, 1970 to April 15, 1971___________________ 406
Federal preemption of State control of ocean dumping_-_-_-—_____-_ 422
H.R. 4247 effect on memorandum of understanding___________- 446
ImtbentionsvoMsections 5h) rand iG) see = ae eee 456
Notices and/or hearings prior to the issuing of denial permits___._ 455
Position on dischargeslof mercury. 222222 =e eee 412
Studies on fish habitats of junked automobiles_-__--_-_---_--_- 414
Table: Fiscal year 1972 program plan for ocean-disposal research. 452
Table on 6-year cost on implementation of H.R. 4247__________ 399
“Toxic industrial wasbeste 1G ein iGio mse eee 448
Moxicologist empl Oye sys a se eee All
Interior Department:
Memorandum of Understanding between the Secretary of the
Interior and the Secretary of the Army_____________________ 268
Prepared statement of Harrison Loesch, Assistant Secretary of
IntérioPisio2) ete ee ease: See ee 3 ea 312
Ketchum, Dr. Bostwick H.:
Biographicalantormatiome sss eee. ee ee ee 320
Memorandum to Hon. John D. Dingell, dated April 16, 1971, on
proposed research programe 225505 2222s eee 328
Lang, Andrew M., president, Waste Management and Compactions
Systems, Inc.) prepared ‘sta vermemmt yee = eee eee ee 538
Lennon, Hon. Alton: Position paper on ocean protection____________
Manufacturing Chemists Association, prepared statement___________ 535
Maryland Port Authority, prepared statement___-________________ 313
Murphy, Hon. John M.:
Amendments to: HeRe 47232 20222 22 eee 136
New: York: Bightic, «0 2d ways wo gauge) JOG oleh BEA OC Dea ee 121
Report of the Council on Environmental Quality on Ocean
Dumping, Dock Ol-S99n2 a Se". SS ee ee ee 124
VII
Additional information supplied by—Continued
National Wildlife Federation, prepared statement of Louis S. Clapper,
SWonsenvation Diner ore eee ee oe ee Be ee oe
Perry, Harold L., wildlife representative , the Humane Society of the
Wintteds States mpreparcdustavement ess = =) ss ye ee
In@ymaClok, demnes d/-, joe oanec! suas oa ee ee
Sierra Club:
Prepared stabementiof Mugene V..Coan._- = 922 2 fe
Communications submitted by—
Barber, Dr. Richard T., letter to Ned P. Everett dated April 19, 1971__
Douglas, Henry T., letter from Department of Natural Resources to
Andrew Henbeck Jr., dated February 2, 1971___________________-_
Everett, Ned P., letter from Barry Sullivan to Hon. Alton Lennon
Gave cle NV eanc lwo ee (Allens se eee eee aes Dene te item eee ce BCS
Johnson, Hayden B., letter to Hon. Edward A. Garmatz dated April
19. IS 71, oa eee ee ee Oe ee er a a Oy De ee eaten alee
Port of New Orleans, telegram to Hon. Edward A. Garmatz dated
BASSETL Gis TUR A ee Sieg ST AN eu celal lhc ehh prenatal gee ae
Sierra Club, New England Chapter, letter to Hon. Edward A. Gar-
mane Ate OAT 2 Ob DO Gil to ep A ee Wo
Western Oil and Gas Association, telegram to R. J. McElroy dated
REG UL, TL) PATA sea 8 le Sg i ane, rence rege a apne = at
Zimmerman, Fern, letter to Hon. Alton Lennon dated April 7, 1971___
Page
390
538
357
388
531
476
521
534
540
540
539
533
it
py 2
OCEAN DUMPING OF WASTE MATERIALS
MONDAY, APRIL 5, 1971
House oF REPRESENTATIVES,
JoInt SUBCOMMITTEES ON OCEANOGRAPHY AND FISHERIES
AND WILDLIFE CoNSERVATION,
Washington, D.C.
The joint subcommittee met, pursuant to notice, at 10 a.m. in room
1334, Longworth House Office Building, Hon. Alton Lennon (chair-
man of the Subcommittee on Oceanography) and Hon. John D.
Dingell (chairman of the Subcommittee on Fisheries and Wildlife
Conservation) presiding.
Mr. Lennon. The Joint Subcommittee on Oceanography and Fish-
eries and Wildlife Conservation of the Committee on Merchant
Marine and Fisheries are now convened.
This morning these two subcommittees will begin joint hearings on
the series of bills designed to regulate the dumping of waste material
in our coastal and off-shore waters.
Tt seems that no one knows the volume—and I think that is really
an understatement—of wastes that have been dumped in the oceans in
the past years. In fact, until recently, the question was scarcely asked
and then only by an obscure group of scientists, known as ecologists.
Fortunately, however, in the last few years the entire question of
ocean disposal of waste material has been thrust into prominence, and
I think appropriately so, by the recently disclosed dumping of nerve
gas and oil wastes off the coast of Florida, by the dumping of sewage
and other municipal wastes off New York Harbor, and a number of
other and similar instances, all of which I am delighted to report
were the subject of hearings and investigation by these two subcom-
mittees during the 91st Congress.
In October of 1970, the Council of Environmental Quality, which
was created as a result of legislation reported by one of these com-
mittees, published an excellent report entitled “Ocean Dumping—A
National Policy.” That report forms the basis for the hearings we are
beginning today, and points up the immediacy and the severity of the
problems that we may be creating.
These problems may perhaps best be exemplified by reference to
the international conference held on the Island of Malta last summer,
dealing with the necessity of and techniques for protecting the oceans
from ill-advised actions by man. One scientist, regrettably but not
surprisingly from the United Nations International Atomic Energy
Agency, put the problem into a certain perspective by asking at one
point if perhaps the highest and best use of the oceans might not
be to serve as a dump for man’s waste.
@)
2
I must say that I personally find such an attitude distressing, and
I am gratified to note that a position paper, adopted by most of the
scientists at that Conference, stated that:
Until better evidence is available that irreversible changes are not taking
place, reason demands that we proceed more carefully, with greater concern for
the health of the seas.
T will ask at this time unanimous consent that this position paper
be included in the record at the conclusion of my remarks.
The most recent statistics from the Food and Agricultural Orga-
nization of the United Nations indicates that in 1969, the latest year
for which we have complete figures, for the first time in 25 years the
total fisheries catch from the world’s oceans declined by over 1 mil-
lion metric tons, as compared to the 1968 high of 64.8 million metric
tons. I would hasten to remind all those here today that this happened
at a time when our efforts to increase the ocean catch were intensifying
and at a time when it is becoming increasingly important to provide
needed protein to a hungry, growing world population. None of us
are prepared to say that the decline was due solely to America’s ocean
dumping policies nor to those of other nations, but I do feel that this
is certainly a very ominous sign, and increases the incentives upon
this committee and the Congress to see that this country does nothing
to decrease the perhaps fragile productivity of the world’s seas.
Simply stated then, we can no longer afford the illusion that out
of sight is out of mind, and that the oceans may safely be treated as a
gigantic dump. They are, or rather should be, a resouree—not an
infinite resource, but one of given magnitude—and they must be treated
with care and respect.
The main bill under consideration by the two subcommittees during
these. hearings is the administration bill, H.R. 4723, introduced by
the distinguished chairman of our full committee, Congressman Gar-
matz, and an identical bill introduced by Congressman Pelly, the
ranking minority member of this committee; and identical bills in-
troduced by Congressman Kemp; Congressman Ruppe, a distinguished
member of this committee; Congressman Chamberlain; and Congress-
man Gerald Ford, the minority leader of the House.
There are a number of other bills to be heard during these hear-
ings—in fact, a total of 36 in number—some of which are very simi-
lar to the administration bill, some of which contain, however, several
provisions of the administration bill, and some of which contain pro-
visions and cover areas not includéd in the administration bill. We
will not take the time this morning to enumerate the bill numbers and
authors at this time, but Mr. Dingell and I would like to make it clear
that these hearings will cover all bills pending before the committee
that have to do with ocean dumping of waste material.
Let the bills and departmental reports appear in the record at this
point.
3
(The bills and departmental reports follow :)
[Executive Communication No. 434]
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., March 18, 1971.
Hon. Cart B. ALBERT,
Speaker, House of Representatives,
Washington, D.C.
Dear Mr. SPEAKER: In accordance with Section 102(2)(C) of the National
Environmental Policy Act of 1969, enclosed herewith are the environmental im-
pact statements for the four legislative proposals of the Hnvironmental Pro-
tection Agency.
This proposed legislation is part of the President’s environmental program as
announced in his environmental message to the Congress of February 8, 1971,
and was transmitted to you on February 10, 1971. We understand that those legis-
lative proposals to amend the Federal Water Pollution Control Act, as amended,
were referred to the Committee on Public Works and that the proposed ‘‘Marine
Protection Act of 1971” was referred to the Committee on Merchant Marine and
Fisheries.
Sincerely yours,
WILLIAM D. RUCKELSHAUS,
Administrator.
Enclosures. Environmental impact statements for HPA legislative proposals
PROPOSED AMENDMENTS TO SECTION OF THE FEDERAL WATER POLLUTION CONTROL
Act, AS AMENDED, RELATING TO STATE AND INTERSTATE PROGRAM GRANTS (PRE-
PARED IN COMPLIANCE WITH SECTION 102(2)(C) oF THE NATIONAL ENVIRON-
MENTAL Poticy Act oF 1969 (PL 91-190), FeBruary 8, 1971)
1. NATURE OF THE PROPOSED BILL
This proposal, in the nature of an amendment to Section 7 of the Federal Water
Pollution Control Act, as amended, would provide the EPA Administrator with
flexibility in funding signficant pollution control projects in the State program
grant context, would provide for bonuses for State achievement of specific pro-
gram improvements, and would extend and increase the authorization, for the
State program grant authority through Fiscal Year 1975.
Key provisions of this proposal would authorize increased appropriations for
an additional four years on a sliding scale from $15 million for FY 1972 to $30
million for FY 1975. Ten million dollars of these sums would continue to be avail-
able for the basic State and interstate programs. The proposal would also add five
grant bonus categories for an improved program consisting of five components:
(1) a permit system; (2) a sewage treatment facilities program; (3) training
and development of personnel; (4) State recruitment and personnel system ; and
(5) a planning capability.
2. ENVIRONMENTAL IMPACT OF PROPOSED BILL
Over the past years, we have identified a need for the EPA to increase its support
to the States and interstate agencies to enable them to carry out and accelerate
their own programs of water quality standards enforcement and implementation.
This need becomes even more acute with the implementation of the recently
published construction grant regulations, the accelerated construction of waste
treatment facilities, and the Refuse Act permit program. The proposed strengthen-
ing of the State program grant authority would have a decidedly beneficial impact
upon water quality.
4.
3. ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED
As this proposal is aimed at upgrading State water quality enhancement pro-
grams, we can foresee no unavoidable adverse environment effects growing out of
this proposal.
4, ALTERNATIVES TO THE PROPOSED BILL
One obvious alternative to the provision of Federal funds for specific State
program elements would be the provision of additional Federal funds for general
program development and implementation. The option we have chosen, to direct
Federal expenditures toward specific State program achievements, is designed to
encourage the development of those aspects of State programs which will make the
greatest contribution toward water quality protection and enhancement, thereby
making the most of both Federal and State investments.
5. RELATION BETWEEN LOCAL SHORT-TERM USES AND LONG-TERM PRODUCTIVITY OF
THE ENVIRONMENT
In both the short and long term, this proposal is expected to protect and enhance
the environment.
6. IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES
No natural resources will be committed pursuant to this proposal. The financial
resources authorized for this program will be justified by the beneficial environ-
mental effects to be derived from the State program grants.
PROPOSED AMENDMENTS TO SECTION 8 OF THE FEDERAL WATER POLLUTION CONTROL
Act, AS AMENDED, RELATING TO WASTE TREATMENT FACILITY CONSTRUCTION
(Prepared in Compliance With Section 102(2) (C) of the National Environmental
Policy Act of 1969 (PL 91-190) February 8, 1971)
1. NATURE OF PROPOSED BILL
The proposal, in the nature of an amendment to section 8 of the Federal Water
Pollution Control Act, as amended, seeks to assist States and municipalities in
financing the construction of needed waste treatment facilities necessary to
comply with water quality requirements of the President’s environmental pro-
gram. Specifically, the proposal would authorize appropriations for grants for
treatment works construction in an aggregate amount of $6 billion over a period
of three fiscal years beginning with fiscal year 1972. In addition, the bill would
revise the allocation formula to allocate funds to States on the basis of relative
population, availability of State matching funds, outstanding reimbursables, and
water pollution control needs.
The bill would direct the Administrator to encourage grantees to achieve in-
stitutional and financial capability to maintain, expand and replace necessary
treatment works, and would provide for an increased Federal share of project
costs if the grantee has made provision to achieve such institutional and financial
capability. The bill would authorize grants for the costs of treating industrial
wastes only if the grantee makes provision for full cost recovery of construction
costs allowable to industrial wastes.
2. ENVIRONMENTAL IMPACT OF PROPOSED BILL
This proposal is prompted by the over-riding need among States and their
political subdivisions for additional financial assistance for needed sewage treat-
ment plant construction. Accelerated plant construction will enable States to
meet water quality standards established for their waterways for a variety of
beneficial water uses as well as to comply with national planning and treatment
requirements. It is the provision of these treatment works which is at the founda-
tion of the Federal effort to maintain a high level of water quality nationwide.
The environmental impact on water is expected to be entirely beneficial.
5
3. ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED
Although this proposal is directed toward water quality enhancement, we
anticipate that the construction of additional treatment facilities may increase
the potential for adverse environmental effects associated with the movement of
soil as plant sites are readied and facilities are placed into operation. The place-
ment of such facilities could potentially interfere with recreational, residential
and aesthetic land use considerations. To identify such conflicts, grantees will
be obliged to provide the Administrator with an environmental assessment of
the project so that such adverse effects can be eliminated or minimized. Further,
through the river basin, regional, and metropolitan plans that would be sup-
ported by this proposal, we will have an effective tool whereby any adverse
environmental effects associated with a project will be identified and eliminated
or minimized. It will be incumbent upon Federal, State, and local environmental
protection authorities to monitor the construction and operating plans and activi-
ties of each jurisdiction te ensure compliance, to the extent possible, with all
environmental protection requirements.
4. ALTERNATIVES TO THE PROPOSED BILL
Financial studies conducted by the Environmental Protection Agency, includ-
ing the Water Quality Office’s Cost of Clean Water, point to the need for an
additional Federal financial support for waste treatment facility construction.
This proposal is thought to be the most workable solution to this problem of
financial need, providing for State, local and Federal sharing of costs, and pro-
viding for the achievement of water quality standards goals by 1974.
5. RELATION BETWEEN LOCAL SHORT-TERM USES AND LONG-TERM PRODUCTIVITY OF
THE ENVIRONMENT
Both in the short and long term, this proposal is directed toward environ-
mental enhancement and protection. Local short-term adverse impact associated
with by-passing of existing treatment works during the construction of additions
of alterations of the plant will no longer be tolerated. Grantees will be required,
pursuant to regulations, to provide for the same level of treatment during con-
struction as that which was obtained prior to the initiation of construction.
6. IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES
Although this proposal involves a large commitment of financial resources, we
expect the benefits to be derived from such investment in terms of water quality
improvement to be more than commensurate.
PROPOSED AMENDMENTS TO SECTION 10 OF THE FEDERAL WATER POLLUTION CONTROL
Act, AS AMENDED, RELATING TO ENFORCEMENT AND WATER QUALITY STANDARDS "
(PREPARED IN COMPLIANCE WITH SEcTION 102(2) (C) oF THE NATIONAL ENVIRON-
MENTAL Poxicy Act or 1969 (PL 91-190), Frsruary 8, 1971)
1. NATURE OF PROPOSED BILL
The proposal would amend section 10 of the Federal Water Pollution Control
Act to strengthen and clarify the authority of the Administrator in the establish-
ment and enforcement of water qualify standards, and would add new authorities
relating to monitoring, surveillance, citizens’ suits, and abatement of pollution
from hazardous substances.
The Water Quality Improvement Act of 1970 provided important new author-
ities for the enhancement of water quality. These new authorities will assist in
controlling water pollution caused by oil and hazardous substances, in carrying
out an important new State-Federal program for the prevention of water pollu-
tion from federally licensed or permitted activities, and in other areas. How-
ever, strengthening of the Act is now necessary to enable the Environmental
Protection Agency to play a more active role in working with State and local
governments to prevent and abate pollution of our Nation’s waters.
6
Key provisions of the proposed bill would extend Federal jurisdiction for
pollution abatement to include expressly ground waters, tributaries of interstate
and navigable waters, pollution of waters of the contiguous zone which adverse-
ly affects water quality in the territorial sea, and pollution of the high seas re-
sulting from discharges of matter transported from United States territory. The
proposed bill would also more adequately define water quality standards to mean
water quality standards established under existing law, and in additional, water
use designations, water quality criteria, effluent limitations, and plans of im-
plementation and enforcement established pursuant to new requirements con-
tained in the bill.
The proposal would also require the Administrator to publish regulations
establishing specifications for water qua‘ity criteria and effluent limitations. In
doing so, the uncertainty and confusion which have resulted from a lack of guid-
ance to the States in this respect and the delays caused in the establishment of en-
forceable standards would be eliminated. Water quality standards under the
proposed legislation would include two elements not previously specified : water
use designations and effluent limitations. Water quality standards in all States
would be required to be revised to include these new elements. It would provide
the Administrator with clear authority to establish standards in areas of ex-
clusive Federal jurisdiction or where the States do not have jurisdiction, after
public hearings. The proposed bill would also eliminate the existing enforcement
conference. The Administrator would be authorized to abate po:lution and en-
force water quality standards through the issuance of orders following notice
to violators. Such orders would be legally enforceable. Appeal from and judicial
review of such orders would be provided.
The Administrator could also call a fact-finding hearing to be conducted with
State participation, and, where he finds a threat to health or welfare, he may
initiate the speedy revision of water quality standards. Civil penalties of up to
$25,000 per day of violation of a final order would be provided. Further provisions
would provide the Administrator with authority to establish effluent limitations
for hazardous substances, to compel the attendance and testimony of witnesses,
to enter and inspect facilities, and to require dischargers to perform effluent
monitoring. Court action by citizens would also be authorized to enforce water
quality standards or to compel the Administrator to perform non-discretionary
acts.
2. ENVIRONMENTAL IMPACT OF PROPOSED BILL
This proposal would greatly strengthen the regulatory tools at the command
of the Environmental Protection Agency for water pollution control and would
give private citizens a larger role in the enforcement process. Its impact on the
environment is anticipated to be a wholly beneficial one. Specific provisions of
the bill are designed to broaden the scope of application of water quality stand-
ards, increase water quality requirements, provide for speedy, just, and effective
enforcement procedures, and allow for public participation through hearings and
citizen suits. In short, the proposal would give the HPA the added authority it
needs to more effectively carry out its mission of water quality protection and
enhancement. All of these provisions are directed toward water quality protec-
tion and enhancement.
3. ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED
We do not foresee any unavoidable adverse effects to the environment which
might result from the enactment of this proposal. Its purpose is to expand and
increase presently existing regulatory controls over water pollution situations,
and its environmental effects, therefore, are expected to be entirely beneficial
with respect to environmental quality.
4, ALTERNATIVES TO THE PROPOSED BILL
This proposal reflects the recommendations of Federal, State, and local en-
forcement officials in the water pollution control field as to the needs in the
upgrading of water quality standards and enforcement procedures. We feel this
is the best and most comprehensive proposal in the enforcement field which can
be submitted at this time. If enacted, we intend to review the operation of these
7
new procedures to ascertain their adequacy and with a view toward additional
refinement that may be indicated by implementation of these provisions.
5. RELATION BETWEEN LOCAL SHORT-TERM USES AND LONG-TERM PRODUCTIVITY OF
THE ENVIRONMENT
Since this proposal is wholly directed toward water quality protection and
enhancement both legitimate, local, short-term uses and long-term productivity
of the environment will benelit from this proposal.
6. IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES
Since this proposal would strengthen the regulatory authority of the HPA, its
effect upon natural resources would be one of enhancement, not exploitation or
commitment.
PROPOSED AMENDMENT TO SECTION 23 OF THE FEDERAL WATER POLLUTION CONTROL
Act, AS AMENDED, To INCLUDE AMERICAN SAMOA AND THE TRUST TERRITORY OF
THE PACIFIC ISLANDS WITHIN THE MEANING OF “STATE”
(Prepared in compliance with section 102(2) (c) of the National Environmental
Policy Act of 1969 (P.L. 91-190), February 8, 1971)
1. NATURE OF PROPOSED BILL
The proposed bill will amend the definition of ‘Staite’ in Section 23 of the
Federal Water Pollution Control Act, as 'amended, 'to include American Samoa
and ‘the Trust Territory of the Pacific Islands within ‘the meaning of this defini-
tion. These areas were included in the definition of “Sita'te’ for purposes of ithe
1970 ‘amendments to that Act, dealing with oil pollution, hazardous polluting sub-
Stanees, vessel Sewage, training grants and contracts and scholarships. However,
these areas are still unable to benefit from or participate in many important HPA
programs, including: (1) water quality standards program; (2) waste treat-
ment construction grant program; (3) research, development, and demonstra-
tion grant program; (4) performance standards and other requirements of Exec-
utive Order 11507, dealing with ‘tthe prevention, control, abatement of air and
water pollution from Federal facilities. In order to ‘obtain consistency with the
Act and to extend the pollution control efforts of the Environmental Protection
Ageney to all areas of United States responsibility, this proposed legisla'tion is
offered.
2. ENVIRONMENTAL IMPACT OF PROPOSED BILL
The Southwest Regional Office of the Water Quality Office, Environmental Pro-
tection Agency, has received repeated requests from the Governments of American
Samoa and the Pacific Trust Territory that they be made eligible for grants and
other programs administered by EPA. Officials of these governments are greatly
concerned with 'the deterioration of the quality of their wa'ters and are anxious
to participate in programs which would hep them protect and enhance walter
quality in those jurisdictions. This bill would provide such waterway protection
and improvement.
3. ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED
Since this proposed bill is designed to bring American Samoa and the Pacific
Trust Territory entirely within the purview of the Environmental Protection
Agency, there would not appear ‘to be any significant unavoidable adverse envi-
ronmental effects resulting from such action. In particular, the inclusion of these
jurisdictions under the water quality standards and other programs would help
these areas protect and upgrade the quality of ‘their waterways.
4, ALTERNATIVES TO THE PROPOSED BILL
The most obvious alternative to the proposed bill is to do nothing. This would
perpetuate ‘a Situation already identified as unsatisfactory for the effective pro-
tection of environmental values in these ‘areas of American responsibility.
8
5. RELATION BETWEEN LOCAL SHORT-TERM USES AND LONG-TERM PRODUCTIVITY OF
THE ENVIRONMENT
Both in the short and long terms, this proposed legislation would bring jurisdic-
‘tions within the water quality management and planning process and is intended
to provide for the enhancement of water resources in ‘those areas.
6. IRREVERSIBLE AND IRRETRIEVABLE COMMITMENTS OF RESOURCES
The proposed bill makes no commitments of natural resources. Rather than
committing resources, the proposal is intended to make high quality water re-
sources available in an ‘area where they are presently suffering degrada'tion.
PROPOSED MARINE PROTECTION ACT OF 1971 PREPARED IN COMPLIANCE WITH SEC-
TION 102(2)(C) oF THE NATIONAL ENVIRONMENTAL PoLicy Act or 1969 (P.L.
91-190), FEBRUARY 8, 1971
A. NATURE OF THE PROPOSAL
The proposed legislation would regulate the dumping of material into the
oceans and coastal and other waters. It would bar the transportation of material
from the United States for dumping in the oceans, coastal waters, and the Great
Lakes and the actual dumping of material in our territorial waters or in the
Contiguous Zone, except as authorized by permits issued by the Administrator
of the Environmental Protection Agency (EPA). The Administrator would es-
tablish and apply criteria for evaluating dumping applications, and in establish-
ing such criteria would consider specified environmental considerations. Addi-
tionally, the Administrator would be empowered to ban ocean dumping of cer-
tain materials and to designate recommended safe disposal sites. Transportation
for dumping or dumping without a permit or in violation of a permit would be
subject to civil and criminal penalties. The Coast Guard would perform surveil-
lance and other appropriate enforcement activity.
B. ENVIRONMENTAL SETTING AND HISTORY OF THE PROPOSAL
The proposed legislation would implement the recommendations of the report
“Ocean Dumping—A National Policy.” That report, requested by the President
in his April 15, 1970, message on waste disposal, was prepared by the Council on
Environmental Quality and made public by the President on October 7, 1970. The
Council was materially assisted in preparing the report by the members of a
Federal Task Force, established to provide guidance in formulating the rec-
ommended policy. Helpful assistance was also received from agencies and indi-
viduals in State and local government and from scientists and academicians, in-
cluding the National Academy of Sciences and the National Academy of Engi-
neering.
C. ANALYSIS OF ENVIRONMENTAL CONSEQUENCES
(1) The environmental impact of the proposed legislation
(a) The proposed bill would establish for the first time a comprehensive, uni-
fied Federal regulatory scheme to meet the serious threat of pollution in the
oceans and similar waters. It would permit implementation of an anti-dumping
policy which has its focus on prevention of damage, and would allow action to be
taken before the problem of ocean dumping becomes acute.
The Council report points out that there is a critical need for a national policy
on ocean dumping. Many of the wastes now being dumped are heavily concen-
trated and contain materials that have a number of adverse effects. Many are
toxic to human and marine life, deplete oxygen necessary to maintain the ma-
rine ecosystem, reduce populations of fish and other economic resources, and
damage aesthetic values. In some areas such as the New York Bight, the envi-
ronmental conditions created by ocean disposal of wastes are serious.
The Council study indicates that the volume of waste materials dumped in the
ocean is growing rapidly. Because the capacity of land-based waste disposal sites
is becoming exhausted in some coastal cities, communities are looking to the
ocean aS a dumping ground for their wastes. Faced with higher water quality
standards, industries may also look to the oceans for disposal. The result could
be a massive increase in the already growing level of ocean dumping. If this oc-
curs, environmental deterioration will become widespread.
9
In most cases, feasible and economic land-based disposal methods are avail-
able for wastes currently being dumped in the ocean. In fact, many alternatives
to ocean dumping, such as land reclamation and recycling to recover valuable
waste components, can be applied to obtain positive environmental benefits, such
as the maintenance and enhancement of valuable associated living marine re-
sources.
Current regulatory activities and authorities are not adequate to handle the
problem of ocean dumping. States do not exercise extensive control over ocean
dumping, and generally their authority extends only within the three-mile terri-
torial sea. The greater part of current dumping occurs outside these waters. The
Army Corps of Engineers has regulatory authority over ocean dumping but,
again, this is largely confined to the territorial sea. The Corps also has respon-
sibility to facilitate navigation, chiefly by dredging navigation channels. As
such, it is in the position of regulating activities over which it also has operational
responsibility. The Coast Guard enforces several Federal laws regarding pollu-
tion but has no direct authority to regulate ocean dumping. The authority of
the Environmental Protection Agency does not provide for issuance of permits
to control ocean dumping. And, the Atomic Energy Commission has authority
only for disposal of radioactive materials. New legislative authority is necessary.
Taken together, present responsibilities are dispersed, and operational agen-
cies exercise responsibility to regulate themselves and entities performing
work consistent with their primary mission. It is now necessary that responsi-
bility for ocean dumping be centralized in an agency whose chief role is control
of pollution. —
(0) The proposed bill would enable EPA to regulate the dumping of materials
in the oceans and similar waters by not only private persons or entities but
also all Federal, State, and in appropriate cases, foreign, governmental organi-
zations employees and agents. Thus, even sister Federal organizations would
have to comply with the permit and standard-setting provisions of the pro-
posal.
(c) The proposed bill sets out specific considerations to be used by EPA in
developing criteria for ocean dumping. These considerations would permit
EPA to refine and modify the criteria as additional knowledge respecting the
effect of ocean dumping is developed.
(d@) The proposal would enhance the ability of the Federal government to
engage in productive research efforts to understand the effects of materials
dumped or spilled into the oceans and to develop means of monitoring and con-
trolling such disposal. In developing the criteria and enforcement programs
EPA and the Coast Guard would have the impetus to work not only with each
other but also to use their present research authority to develop relevant research
programs in conjunction with such other agencies as the National Oceanic and
Atmospheric Administration.
(e) The authority contained in the proposal and the policy contained in the
Council’s report which would be implemented by the authority, would have an
estimated impact on present dumping practices as follows:
About 48 million tons of wastes were dumped at sea in 1968. These wastes in-
cluded dredge spoils. industrial wastes, sewage sludge, construction and
demolition debris, solid waste, explosives, chemical munitions, radioactive
wastes, and miscellaneous other materials, the present degree of regulation for
these materials varies considerably.
(i) As the following table indicates, dredge spoils accounted for 80 per cent
by weight of all ocean dumping :
OCEAN DUMPING: TYPES AND AMOUNTS 1968 (66)
[In tons]
Percent of
Waste type Atlantic Gulf Pacific Total total
Dredgefspoilsvseess geescent eee ea wy cit tees EN Ee 15,808,000 15,300,000 7,320,000 38, 428, 000 80
Hindu stitial wastes ise c¢ 43 es bey ead oy Fe 3, 013, 200 696, 000 981,300 4,000, 500 10
Sewaterslud genes mane ne ae es ee 4,477, 006 0 0 4,477,000 9
Construction and demolition debris________________ 574, 000 6 @ 574, 000 iho - SS
15
16
17
18
19
20
21
22
23
24.
20
26
D
require, in part, that any person before depositing or dis-
charging of such materials into the ocean, coastal, and other
waters of the United States must present sufficient evidence
to sustain a burden of proof that such materials in the loca-
tion in which they are to be deposited will not endanger
the natural environment and ecology of these waters, and
to meet such additional requirements as the Administrator
may deem necessary for the orderly regulation of such
activity.
“(c) Such standards shall be adopted and enforced by
any department, agency, or instrumentality of the Federal
Government or any State department, agency, or instru-
mentality that issues any license, permit, or other authori-
zation for any such activity with respect to any of such
coastal waters.
“(d) Such standards shall be applicable to all of the
departments, agencies, and instrumentalities of the Federal
Government, to the States and their agencies, including
any person having any license, permit, or other authorization
from such State or agency for any such activity with respect
to any of such ocean, coastal, and other waters.
“(e) After the date that a Federal standard is estab-
lished under this section, a State may establish its own stand-
ard with respect to the activity covered by such Federal
standard, except that the State standard must be more strin-
© 760 Sl Sop Sol ce cto) 3M cet
php
@ ha Ge “Sin Be ‘5S. dion BEL gS
27
4
gent than the Federal standard and must provide adequate
procedures for enforcement. Such a State standard shall:
apply to such activity within the State’s jurisdiction and the
Federal standard shall not apply. If the Administrator
determines that such State standard is not as stringent as
the Federal standard, or is not being enforced, then the
Federal standard shall apply.
“(f) Every department, agency, and instrumentality of
the Federal Government and of the States, and every person
applying for a license, permit, or other authorization from
the United States or from any State to discharge or other-
wise dispose of any material in the coastal waters of the
United States shall establish and maintain such records, make
such reports, and provide such information as the Adminis-
trator may reasonably require to assist him in establishing
standards under this section and in determinmg whether
such department, agency, instrumentality, or person has
acted or is acting in compliance with this section and shall,
upon request by the Administrator, permit him to have ac-
cess to and copy such records.
“(g) The district courts of the United States shall have
jurisdiction to restrain violations of this section. Actions to ©
restrain such violations shall be brought by, and in the name
of, the United States. In case of contumacy or refusal to obey
a subpena upon any person under this subsection, the district
16
17
28
5
court of the United States for any district in which such
person is found or resides or transacts business, upon applica-
tion by the United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person
to appear and give testimony or to appear and produce
documents, and any failure to obey such order of the courts
may be punished by such court as a contempt thereof.
‘““(h) Whoever violates any standard established under
subsection (b) of this section shall be lable to a civil penalty
of not more than $10,000 nor less than $5,000 for each viola-
tion. In the case of a continuing violation of such a standard,
each day of violation shall be considered a separate offense for
the purposes of this section.
““(i) Upon the effective date of this section, all licenses,
permits, or authorizations which have been issued by any
officers or employee of the United States under authority of
any other provision of law shall be terminated.
29
(H.R. 1095, 92d Cong., 1st sess.]
A BILL
To amend the Fish and Wildlife Coordination Act to provide
additional protection to marine and wildlife ecology by
requirmg the designation of certain water and submerged
land areas where the depositing of certain waste materials
is prohibited, to require the establishment of standards with
respect to such deposits in all other areas, and for other
purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That the Fish and Wildlife Coordination Act (16 U.S.C. 661
I
30
2
et seq.) is amended ie inserting immediately following sec-
tion 5A thereof the following new sections:
“Sto. 5B. (a) The Secretary of the Interior, acting
through the United States Fish and Wildlife Service, shall
designate those portions of the navigable waters of the United
States and those portions of the waters above the Outer
Continental Shelf as defined in the Outer Continental Shelf
Lands Act, and these portions of the submerged lands he-
neath the navigable waters of the United States and beneath
the waters above the Outer Continental Shelf and those lands
beneath international waters into and onto which he deter-
mines sewage, sludge, spoil, landfill, heated effluents, or any
other waste or substance (solid, liquid, or gas) cannot be
safely discharged. Areas designated under this section shall
le known as “marine sanctuaries”.
“(b) In making such designation the Secretary of the
Interior shall—
“(1) consider the overall effect on the marine and
wildlife ecological balance which discharging of such
materials has had or will have in the area,
“(2) consider all effects of such discharges which
he may find to be dangerous to the mating, spawning,
and other necessary life processes of species of fish,
shellfish, and all other forms of marine animal and plant
life,
24
25
dl
3
(3) consider all other ecological and environ-
mental factors, including, but not limited to, the eco-
logical effect of dischargig heated effluents into the
area, and
“(4) consult with the appropriate Federal, State,
and local agencies and officials, and with public or
private organizations, institutions, agencies, and indi-
viduals with expertise.in the sciences of ecology, marine
biology, oceanography, and other related disciplines in
the physical and biological sciences.
“(c¢) No designation shall be made by the Secretary of
the Interior under authority of subsection (a) of this section
during the one-year period beginning on the date of enact-
ment of this section. During such one-year period the Secre-
tary of the Interior, in cooperation with the Secretary of the
Army acting through the Chief of Engineers, shall make a
full and complete investigation and study of potential water
and submerged land areas for designation and shall identify
those areas most suitable for such designation.
“(d) Upon the designation of areas under subsection
(a) of this section, all licenses, permits, or authorizations
which have been issued by any officer or employee of the
United States under authority of any other provision of law
shall be termimated and of no effect to the extent they author-
ize any activity prohibited by subsection (e) of this section.
32
4
Thereafter no license, permit, or authority shall be issued by
any officer or employee of the United States which would
authorize any activity prohibited by subsection (e) of this
section.
“(e) Whoever discharges spills, leaks, pours, emits,
empties, dumps, or in any other way introduces, any sewage,
sludge, spoil, landfill, heated effluents, or any other waste or
substance (solid, liquid, or gas) imto or upon any of the
waters designated under subsection (a) of this section shall
be fined not more than $10,000 for each offense.
“(f) The Secretary of the department im which the
Coast Guard is operating, acting through the Coast Guard,
shall enforce this section.
“Src. 5C. (a) Within one hundred and eighty days
after the designation of areas under subsection (a) of section
5B of this Act, the Secretary of the Interior shall establish
standards which, after notice, shall be applicable to the dis-
charge of any sewage, sludge, spoil, landfill, heated effluents,
or any other waste or substance (solid, liquid, or gas), in-
cluding but not limited to pesticide, herbicide, silt, and fer-
tilizer runoff, within any area not designated under subsection
(a) of section 5B of this Act. Such standards shall be for the
purpose of insuring that no damage to, or loss of, any marine
life or wildlife or other resources necessary for the ecological
balance of the area or pollution of the navigable waters of
eo aoa =A
24
25
33
5
the United States will result from any such activity. Such
standards shall require, in part, that any person before de-
positing or discharging such materials into the navigable and
coastal waters of the United States and into any international
waters must present sufficient evidence that discharging such
materials in the location in which they are to be deposited
will not endanger the natural environment and ecology of
these waters. Such standards shall further imclude the
following: d
““(1) No sewage or industrial waste shall be dis-
charged (directly or indirectly) into any area subject to
standards issued under subsection (a) of this section
after January 1, 1973, unless such sewage or industrial
waste has received “at least” primary treatment “or
such other treatment equal to primary treatment” in
accordance with standards and regulations established by
the Secretary of the Interior.
(2) No sewage or industrial waste shall be dis-
charged (directly or indirectly) into any area subject
to standards issued under subsection (a) of this section
after January 1, 1975, unless such sewage or industrial
waste has received “at least” primary and secondary
treatment “or such other treatment equal to primary and
secondary treatment” in accordance with standards and
regulations established by the Secretary of the Interior.
34
6
“(3) No sewage or industrial waste shall be dis-
charged (directly or indirectly) into any area subject
to standards issued under subsection (a) of this section
after January 1, 1977, unless such sewage or industrial
waste has received “‘at least” primary, secondary, and
tertiary treatment “or such other treatment equal to
primary, secondary, and tertiary treatment” in accord-
ance with standards and regulations established by the
Secretary of the Interior.
Tn addition, such person, en to such discharging, must meet
such additional requirements as the Secretary of the Interior
may deem necessary for the orderly regulation of such
activity. Such standards shall be applicable to all of the
departments, agencies, and instrumentalities of the United
States Government. Except as otherwise provided in this
section, in the case of an area containing any submerged
lands within the jurisdiction of the States, such standards
shall be applicable to the States and their agencies, includ-
ing any person having any license, permit, or other author-
ization from such State or agency for any such activity with
respect to any of such submerged lands.
“(b) Every department, agency, and instrumentality
of the Federal Government and of the States, and every
person applying for a license, permit, or other authorization
from the United States or from any State to discharge or
30
Renan, ;
otherwise dispose of any material in any area subject to
standards issued under subsection (a) of this section shall
establish and maintain such records, make such reports,
and provide such information as the Secretary of the Inte-
rior may reasonably require to assist him in establishing
standards under this section and in determining whether such
department, agency, instrumentality, or person has acted
or is acting in compliance with this.section. Upon request,
the Secretary of the Interior shall, at reasonable times, have
access to examine and copy such records. All information
reported to, or otherwise obtained by, the Secretary of the
Interior, or his representative, pursuant to this subsection
which contains or relates to a trade secret or other matter
referred to m section 1905 of title 18 of the United States
Code shall be considered confidential for the purpose of
that section, except that such information may be disclosed
to other officers or employees concerned with carrying out
the provisions of this section. Officers or employees . duly
designated by the Secretary of the Interior, upon presenting
appropriate credentials to the department, agency, instru-
mentality or person in charge, are authorized to enter at
reasonable times, for the purpose of inspecting any plant,
establishment or other property of such department, agency,
instrumentality, or person to determine whether such depart-
24
20
36
8
ment, agency, instrumentality, or person has acted or is
acting in compliance with this section.
“(c) The Secretary of the Interior is authorized to
issue new standards and to amend existing standards from |
time to time as he determines necessary. Such new or
amended standards, after notice, shall be considered as initial
standards issued under subsection (a) of this section for the
purpose of their application to the States under this section.
“(d) If a State, within one year of the date that a
Federal standard is established under subsection (a) of this
section, establishes its own standard with respect to the
activity covered by such Federal standard which the Secre-
tary of the Interior determines, after public hearing, is equal
to or more stringent than such Federal standard, and if the
Secretary of the Interior determines that there are adequate
State enforcement procedures for such State standard, then
such State standard shall apply to such activity within the
State’s jurisdiction, and the Federal standard shall not apply.
Ii the Secretary of the Interior determines that such State
standard is not as stringent as the Federal standard, then
the Federal standard shall apply to such activity in such
State.
“(e) Whenever a State’s standard is applicable within
the jurisdiction of that State it shall continue to be applicable
until the Secretary of the Interior, after public hearing, de-
37
9
termines either that it is not as strmgent as the comparable
Federal standard or that there is not adequate State enforce-
ment of such standard. He shall review all of the standards
of each State for this purpose at least once during each cal-
endar year.
“(f) Upon the issuance of standards under subsection
(a) of this section applicable to any area, all licenses, per-
mits, or authorizations which have been issued by any officer
or employee of the United States under authority of any other
provision of law with respect to discharges in an area shall
be terminated and of no effect to the extent they authorize
any activity prohibited by subsection (g) of this section.
“(o¢) Whoever discharges any waste or substance in
violation of the standards established under subsection (a)
of this section shall be subject to a civil penalty of not more
than $10,000 for each violation. In the case of a continuing
violation, each day of violation shall be considered a separate
offense for the purposes of this subsection. The Secretary
of the Interior may assess and may mitigate, remit, or com-
promise any such penalty. In taking any penalty action for
violation of a standard, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting
to achieve rapid compliance, after notification of a violation,
shall be considered by the Secretary of the Interior.
38
10
‘“(h) The Secretary of the Interior shall enforce sub-
section (g) of this section.
“(i) The district courts of the United States shall have
jurisdiction to restrain violations of this section and of sec-
tion 5B of this Act. Actions to restrain such violations shall
be brought by, and in, the name of the United States. In case
of contumacy or refusal to obey a subpena upon any person
under this subsection, the district court of the United States
for any district in which such person is found or resides or
transacts business, upon application by the United States
and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give tes-
timony or to appear and produce documents, and any failure
to obey such order of the court may be punished by such
court as a contempt thereof.
“Src. 5D. (a) Within one hundred and eighty days
after the date of enactment of this section, the Secretary of
Defense, acting through the Secretaries of the military
departments, shall make a complete inventory of all existing
munitions, chemical, biological, and radiological warfare
agents, and other military materials, the ultimate disposition
of which (other than for the purpose for which acquired)
may present a danger to man, the environment, or to fish
and wildlife, and with respect to each item on such inventory
shall determine the date beyond which such items cannot
39
11
be safely retained. The Secretary shall submit to the Secre-
tary of Interior, Council on Environmental Quality, the
Environmental Protection Agency, and to the Congress an
adequate plan (supported by the technology to carry out
such plan), along with the inventory list and disposition
dates provided for under the preceding sentence, for the
demilitarization, detoxification, or decontamination of each
such item in order to ultimately dispose of such items.
“(B) Prior to the acquisition, after the date of enactment
of this Act, of any munitions, chemical, biological, or radio-
logical warfare agents, or other military materials, the ulti-
mate disposition of which (other than for the purpose for
which acquired) may present a danger to man, the environ-
ment, or to fish and wildlife, the Secretary of Defense,
acting through the Secretaries of the military departments,
shall determine the date beyond which such munition, agent,
or material cannot be safely retained, and shall submit to the
Secretary of Interior, Council on Environmental Quality,
and to the Congress an adequate plan (supported by the
technology to carry out such plan) for the demilitarization,
detoxification, or decontamination of such munition, agent,
or material in order to ultimately dispose of such munition,
agent, or material.
“(C) Notwithstanding any other provision of law, after
the date of enactment of this Act it shall be unlawful for any
PS eo Ry fe
40
12
Federal official to discharge or dispose of, or cause to be
discharged or disposed of, either directly or indirectly, any
a laos, chemical, biological, or radiological warfare
agents, or any other military materials, that may present a
danger to man, the environment, or to fish and wildlife,
into any navigable or coastal waters of the United States or
into any international waters.”
4]
[H.R. 1383, 92d Cong., 1st sess.]
A BILL
To amend the Fish and Wildlife Coordination Act to provide
additional protection to marine and wildlife ecology by pro-_
viding for the orderly regulation of dumping in the coastal
waters of the United States.
Be it enacted by the Senate and Hoe of Representa-
tives of the United States of America in Congress assembled,
That the Fish and Wildlife Coordination Act (16 U.S.C.
661 et seq.) is amended by inserting immediately following
section 5A thereof the following new section:
“Src. 5B. (a) The Secretary of the Interior, acting
through the United States Fish and Wildlife Service, and
in consultation with the Chief of Engineers of the United
i, ) 00 -~] op) Ol ee (Je) iw) Lad
i
}
States Army, shall establish standards which apply to the
I—O
62-513 O - 71 - 4
42
2
deposit or discharge into the coastal waters of the United
States of all industrial wastes, sludge, spoil, and all other
materials that might be harmful to the wildlife or wildlife
resources or to the ecology of these waters. Such standards
shall be for the purpose of insuring that no damage to the
natural environment and ecology including but not limited
to marine and wildlife ecology of the navigable waters of
the United States will result from any such activity. Such
standards shall require, in part, that any person before
depositing or discharging of such materials into the coastal
waters of the United States must present sufficient ao ents
to sustain a burden of proof that such materials in the loca-
tion in which they are to be deposited will not endanger
the natural environment and ecology of these waters, and
to meet such additional requirements as the Secretary of the
Interior may deem necessary for the ier regulation of
such activity.
“(b) Such standards shall be adopted and enforced by
any department, agency, or instrumentality of the Federal
Government or any State department, agency, or instru-
mentality that issues any license, permit, or other authori-
zation for any such activity with respect to any of such
coastal waters.
“(c) Such standards shall be applicable to all of the
departments, agencies, and instrumentalities of the Federal
an fF WO HD F&
43
3
Government, to the States and their agencies, including
any person having any license, permit, or other authorization
from such State or agency for any such activity with respect
Kolin of such coastal waters.
“(d) After the date that a Federal standard is estab-
lished under this section, a State may establish its own stand-
ard with respect to the activity covered by such Federal
standard, except that the State standard must be more strin- 7
gent on the Federal standard and must provide adequate
procedures for enforcement. Such a State standard shall
apply to such activity within the State’s jurisdiction and the
Federal standard shall not apply. If the Secretary of the
Interior determines that such State standard is not as strin-
gent as the Federal standard, or is not bemg enforced, then
the Federal standard shall apply.
““(e) Every department, agency, and instrumentality of
the Federal Government and of the States, and every person
applying for a license, permit, or other authorization from
the United States or from any State to discharge or other-
wise dispose of any material in the coastal waters of the
United States shall establish and maintain such records, make
such reports, and provide such information as the Secretary
may reasonably require to assist him in establishing stand-
ards under this section and in determining whether such de-
partment, agency, instrumentality, or person has acted or
oO warts n on FF DO WO F-
—_ ft
= ©
are
bo
13
14
15
16
17
18
19
20
21
22
23
24
29
44
4
is acting in compliance with this section and shall, upon re-
quest by the Secretary, permit him to have access to and
copy such records.
“(f) The district courts of the United States shall have
jurisdiction to restrain violations of this section. Actions to
restrain such violations shall be brought by, and in the name
of, the United States. In case of contumacy or refusal to obey
a subpena upon any person under this subsection, the district
court of the United States for any district in which such
person is found or resides or transacts business, upon applica-
tion by the United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person
to appear and give testimony or to appear and produce
documents, and any failure to obey such order of the courts
may be punished by such court as a contempt thereof.
“(g) Whoever violates any standard established under
subsection (b) of this section shall be liable to a civil penalty
of not more than $10,000 nor less than $5,000 for each viola-
tion. In the case of a continuing violation of such a standard,
each day of violation shall be considered a separate offense for
the purposes of this section.
“(h) Upon the effective date of this section, all licenses,
permits, or authorizations which have been issued-by any
officers or employee of the United States under authority of
any other provision of law shall be terminated.
45
[H.R. 1661, H.R. 5049, H.R. 5050, 92d Cong., 1st sess.]
A BILL
To regulate the discharge of wastes in territorial and international
A ao oto FEF WO WD -
waters.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
That no owner or master of a vessel may load, or permit
the loading of, any waste on such vessel while such vessel
is in any port of the United States, if such waste is to be
discharged in ocean waters, unless such owner or master
first—
I
46
2
(1) obtains a permit from the Administrator of
the Environmental Protection Agency (hereafter
referred to in this Act as the “Administrator’) which
authorizes the loading of such waste; and
(2) notifies the Coast Guard of such loading as
prescribed in section a
Src. 2. (a) The Administrator shall issue to any owner
or master of a vessel a permit authorizing the loading of
waste on such vessel if the Administrator finds that the dis-
charge of such waste m any ocean waters will not damage
the ecology of the marine environment. In making any such
finding, the Administrator shall consider the effect of such
discharge on human health and welfare (including possible
adverse effects on economic, recreational and esthetic values)
and on the marine ecosystem, taking into account the
proposed location of such discharge and the concentration
and volume of the waste to be discharged.
(b) In no event shall any permit be issued for the
discharge of any waste whatever between the Continental
Shelf and the coast of the United States.
(c) The Administrator shall have the authority to ban
the loading, transporting and dumping of any specific matter
deemed damaging to the marine environment or to human
health and welfare.
23
24
47
3
(d) The Administrator shall have the authority to
designate ocean dumping sites.
(e) Each permit issued under subsection (a) shall
specify—
(1) the amount and type of waste authorized to be
loaded and discharged;
(2) the exact coordinates of the location at which
such discharge is permitted and a statement of the route
to that location;
(3) such provisions as the Administrator deems
necessary to insure that such waste will be transported
to the discharge site without accidental spillage or leak-
age; and
(4) such other provisions as the Administrator
deems necessary to carry out the purposes of this Act.
Src. 3. (a) Any owner or master of a vessel who is
issued a permit under section 2 must notify the Coast Guard
and the Army Corps of Engineers of the exact location where
the waste covered by such permit is to be discharged. Such
notification must be given to the Coast Guard and the Army
Corps of Engineers im such manner as the Administrators of
the Department in which the Coast Guard is operating shall
prescribe and not later than four hours before the departure
of the vessel.
48
+
(b) The Administrator of the Department in which the
Coast Guard is re shall conduct surveillance and
other appropriate enforcement activity to prevent violations
of this Act.
Src. 4. (a) Any owner or master of a vessel who vio-
lates the first section of this Act or who violates any pro-
vision of a permit issued under section 2 of this Act shall be
liable to a civil penalty of not more than $50,000 for the
first violation, and not more than $100,000 for each subse-
quent violation. No penalty shall be assessed until the
person charged shall have been given notice and an oppor-
tunity for a public hearmg on such charge. Upon failure of
an offending party to pay the penalty, the Administrator
may request the Attorney General to commence an action
in the appropriate district court of the United States for
such relief as may be appropriate.
(b) A vessel, other than a vessel owned or bargeboat
chartered by the United States, or other property used in —
a violation shall be liable in rem for any civil penalty
assessed under this section and may be proceeded against
in any district court of the United States having jurisdic-
tion thereof.
‘Sno. 5. As used in this Act—
(1) The term “discharge” means to place, release,
49
5
discharge, or by any means whatsoever to dispose, of waste
im on waters.
(2) The term “master” includes any person acting in
the capacity of a master. |
(3) The term ‘ocean waters” means any estuarine
area, coastal waters, Great Lakes, territorial waters, and
the high seas adjacent to the territorial waters.
(4) The term “owner” includes any private individ-
ual or corporate owner and any public owner, whether a
department, agency, or instrumentality of a State or a
political subdivision thereof, of an interstate governmental
entity, or of the Federal Government.
(5) The term “United States” means the States, the
District of Columbia, the Commonwealth of Puerto Rico,
Guam, and American Samoa.
(6) The term “vessel”? includes any vessel, scow, or
boat, whether or not documented under the laws of the
United States, capable of being used to transport waste in
ocean waters.
(7) The term “waste” means matter of any kind or
description, including, but not limited to, dredge spoil, spoil
waste, garbage, sewage sludge, munitions, chemical, biologi-
cal and radiological warfare agents, radioactive materials,
wrecked or discarded equipment, rock, sand, cellar dirt, and
industrial wastes.
50
6
Src. 6. This Act shall take effect immediately upon final
passage as provided by law.
Src. 7. On and after the effective date of this Act, any
license, permit, or authorization issued by any officer or
employee of the United States under the authority of any
other provision of law shall be terminated and be of no effect
whatsoever to the extent that such license, permit, or
authorization authorizes any activity to which this Act
applies.
51
920 CONGRESS
su H, R. 3662
@ @
IN THE HOUSE OF REPRESENTATIVES
Ferpruary 4, 1971
Mr. Rocrrs (for himself, Mr. Dineexxz, Mr. Petty, Mr. McCiosxey, Mr. Kern,
To
Mr. Moss, and Mr. Conte) introduced the following bill; which was
referred to the Committee on Merchant Marine and Fisheries
XN
A BILL
amend the Fish and Wildlife Coordination Act in order to
protect marie environment by regulating the dumping of
wastes in the coastal and ocean waters of the United States.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
That the Fish and Wildlife Coordination Act (16 U.S.C.
661 et seq.) is amended by inserting immediately following
section 5A thereof the followig new section:
“Src. 5B. (a) No person may dump waste material
into the ocean waters of the United States, or transport such
material through such waters, unless he has first obtained a
i
52
2
permit from the Administrator of the Environmental Protec-
tion Agency (hereafter referred to in this section as the ‘Ad-
ministrator’) authorizing such dumping.
“(b) (1) Except as provided in paragraph (4) of this
subsection, the Administrator may issue a permit to any
person authorizing such person to dump waste material mto
ocean waters of the United States if the Administrator finds
that such dumping will not damage the ecology of the marine
environment. In making such finding, the Administrator
shall take into account such factors as he deems appropriate,
including the following:
““(A) The need for the proposed dumping.
“(B) The effect of such dumping on human health
and welfare, including economic, esthetic, and recrea-
tional values. |
“(C) The effect of such dumping on fisheries re-
sources.
“(D) The effect of such dumping on marine eco-
systems, particularly with respect to—
(i) the transfer, concentration, and dispersion
of such material and its byproducts through biologi-
cal, physical, and chemical pathways,
“(ii) potential changes in marine ecosystems
diversity and stability, and
53
3
“(iii) species and community population
dynamics.
““(E) The persistence and permanence of the effects
of the dumping.
“(F) The effect of dumping of particular volumes
and concentrations of such materials.
““(G) Appropriate locations and methods of dis-
posal, including land-based alternatives.
“(2) The Administrator may establish and issue various
categories of permits, including general permits for the dis-
charge of any class of waste material which he determines
will have a de minimis impact.
“(3) Each permit issued under the authority of this
section shall specify—
“(A) the type and amount of waste material author-
ized to be dumped ;
“(B) the location at which such dumping is per-
mitted ;
“(C) the length of time for which the permit is
valid and its expiration date;
“(D) any special provisions deemed necessary by
the Administrator for the monitoring and surveillance of
the dumping; and
54
4
‘““(H) such other provisions as the Administrator
deems necessary to carry out the purposes of this section.
“(4) (A) The Administrator may not issue any permit
authorizing the dumping of the following waste materials
in the ocean waters of the United States:
“(i) Radioactive wastes ;
(ii) Toxic industrial wastes; and
“(iii) Chemical and biological warfare materials.
“(B) After January 1, 1972, no permit shall be issued
by the Administrator for the dumping of sewage or industrial
waste, unless such sewage or industrial waste has received
primary treatment in accordance with standards and regula-
tions established by the Administrator.
“(C) After January 1, 1974, no permit shall be issued
by the Administrator for the dumping of sewage or indus-
trial waste, unless such sewage or industrial waste has
received primary and secondary treatment in accordance
with standards and regulations established by the Adminis-
trator.
“(D) After January 1, 1976, no permit shall be issued
by the Administrator for the dumping of sewage or indus-
trial waste, unless such sewage or industrial waste has
received primary, secondary, and tertiary treatment im
accordance with standards and regulations established by the
Administrator.
50
5
“(5) The Administrator may suspend, revoke, revise,
or condition, partially or entirely, any permit issued by him
for the dumping of waste material if he finds that such dump-
ing cannot or will not be carried out in conformity with the
provisions of such permit.
“(6) The Administrator may, considering the factors
set forth in paragraph (1) of this subsection, designate
recommended sites for the dumping of materials.
“(c) The Secretary of the department in which the
Coast Guard is operating shall conduct surveillance and
other appropriate enforcement activities in order to prevent
violations of this section.
“(d) (1) Whoever violates any provision of this sec-
tion, of any regulation promulgated under this section, or of
any permit issued under this section, shall be liable to a
civil penalty of not more than $50,000 for each violation, to
be assessed by the Administrator. No penalty shall be
assessed until the person charged shall have been given
notice and an opportunity for a public hearing on such
charge. In determining the amount of the penalty, or the
amount agreed upon in compromise, the gravity of the
violation and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation shall he considered by the Admin-
istrator. Thereafter, upon failure of the offending party to
56
6
pay the penalty, the Administrator may request the Attorney
General to commence an action in the appropriate district
court of the United States for such relief as may be appro-
priate.
““(2) In addition to any action which may be brought
under paragraph (1) of this subsection, whoever knowingly
violates any provision of this section, of any regulation
promulgated under this section, or of any permit issued
under this section, shall be fined not more than $50,000,
or imprisoned for not more than one year, or both.
““(3) For the purpose of imposing civil penalties and
criminal fines under this subsection, each day of a periodic
violation shall constitute a separate offense, and one-half of
the penalties and fines recovered shall be payable to the
informer who provides the information resulting in the
penalties or fines and who may sue for the same.
“(4) The Attorney General or his delegate may bring
actions for equitable relief to redress violations of this sec-
tion, of any regulation promulgated under this section, or
of any permit issued under this section, and the district courts
of the United States shall have jurisdiction to grant such re-
lief as the equities of the case may require.
“(5) A vessel, other than a vessel owned or bareboat
chartered by the United States, or other property used in a
violation shall be liable in rem for any civil penalty assessed
23
24
57
a
and may be proceeded against in any district court of the
United States having jurisdiction thereof; except that no
vessel or other property shall be liable unless it shall appear
that the owner was at the time of the violation a consenting
party or privy thereto.
“(e) (1) On and after the effective date of this section,
any license, permit, or authorization issued by any officer
or employee of the United States under the authority of any
other provision of law shall be terminated and be of no effect
whatsoever to the extent that such license, permit, or author-
ization authorizes any activity to which this section applies.
After such effective date, no license, permit, or authoriza-
tion shall be issued by any officer or employee of the United
States other than the Administrator which would authorize
any activity to which this section or regulations issued here-
under apply.
(2) Nothing in this section shall be construed as abro-
gating or negating any existing responsibility or authority
contained in the Rivers and Harbors Act eo 1899; except
that on and after the effective date of this section, any Federal
license or permit proposed to be issued under the authority
of such Act of 1899 to conduct any activity otherwise regu-
lated by this section and the regulations issued hereunder,
shall be conditioned upon certification by the Administrator
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that the activity proposed to be conducted is in conformity
with this section.
(3) Before issuing any permit under this section, where
it appears to the Administrator that the disposition of the
waste material to be discharged may affect navigation in
the navigable waters of the United States or may create an
artificial island on the Outer Continental Shelf, the Admin-
istrator shall consult with the Secretary of the Army and no
permit shall be issued if the Secretary of the Army deter-
mines that navigation will be unreasonably impaired.
“(f) Nothing in this section shall be construed as pre-
empting any State or subdivision thereof from imposing more
stringent requirements or liabilities regarding the discharge
cf any waste material (1) having its origin in such State
or subdivision or (2) in any area where such State or sub-
division has competent jurisdiction.
“(o) As used in this section—
“(1) The term ‘waste material’ means all solid and
liquid products or byproducts of industrial processes (in-
cluding tailings, sediment, and like materials resulting
from marine mining or dredging activities) , industrial
waste acids, chemicals, sewage, sludge, garbage, dredge
spoils, radioactive materials, construction and demolition
debris, military ordnance, explosives, and any other
form of discarded material or equipment.
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(2) The term ‘ocean waters’ means any estuarine
area, coastal waters, the Great Lakes, and waters above
the Outer Continental Shelf.
“(3) The term ‘estuarine area’ means an estuary
and those transitional areas which are consistently influ-
enced or affected by waters from the estuary such as, but
not limited to, salt marshes, coastal and intertidal areas,
bays, harbors, lagoons, inshore waters, and channels.
“(4) The term ‘estuary’ includes all or part of
the mouth of a navigable or interstate river or stream
or other body of water having an unimpaired natural
connection with the open sea and within which the sea
water is measurably diluted with fresh water derived
from land drainage.
* (5) The term ‘coastal waters’ means the waters
lying seaward of the line of ordinary low water along.
that portion of the coast which is in direct contact with
the open sea and the line marking the seaward limit of
inland waters to a distance of three miles from such
lines.
“(6) The term ‘Outer Continental Shelf’ means land
extending from the three mile territorial limit out to the
200-meter depth contour.
“(7) The term ‘United States’ means the States,
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- the District of Columbia, the Commonwealth of Puerto
Rico, Guam, and American Samoa.
“(8) The term ‘person’ means any individual, cor-
poration, firm, association, or other entity and shall in-
clude any officer, department, agency, or instrumentality
of any State, interstate, or local unit of government, and
any officer, department, agency, or instrumentality of the
Federal Government.
‘““(9) The term ‘dumping’ means to place, release,
discharge, or by any means whatsoever dispose of ma-
terial into ocean, coastal, or other waters.
“(h) The Administrator shall direct and conduct such
investigation and research with respect to the marine ecology
as is necessary to carry out the purposes of this section. To
support such research and investigation, there 1s authorized
to be appropriated $1,000,000 for the fiscal year beginning
July 1, 1971, and a like sum for sade Fees year thereafter.”
Src. 2. (a) Section 6 of the Fish and Wildlife Coordi-
nation Act is amended by inserting after “Act” the first time
it appears therein the following: “(other than section 5B
(h))”.
(b) Section 7 of such Act is amen ed by inserting after
“Act” the following: “(other than a rule or Tlie
promulgated pursuant to section 5B) ”’.
61
[H.R. 4217, H.R. 4218, H.R. 4719, H.R. 6610, 92d Cong., Ist sess.]
A BILL
To prohibit the discharge into any of the navigable waters of
the United States or into international waters of any military
material or other refuse without a certification by the En-
vironmental Protection Agency approving such discharge.
il Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That after the date of enactment of this Act, no person shall
4 discharge, directly or indirectly, into any of the navigable
5 waters of the United States or into international waters (A)
6 any munition, or any chemiéal, biological, or radiological
7 warfare agent, or any other military material or (B) any
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other refuse matter of any kind or description whatever ex-
cept in accordance with a certificate issued by the Adminis-
trator of the Environmental Protection Agency permitting
such discharge and establishing the terms, conditions, limita-
tion, and penalties applicable thereto.
63
[H.R. 4247, H.R. 4723, H.R. 5239, H.R. 5268, H.R. 5477, H.R. 6582, H.R. 6771,
92d Cong., 1st sess.]
A BILL
To regulate the dumping of material in the oceans, coastal,
and other waters and for other purposes.
1 Be it enacted by the Senate and House of Kepresenta-
tives of the United States of America in Congress assembled,
2
3 That this Act may be cited as the “Marine Protection Act of
4
OMe
a) FINDING POLICY AND PURPOSE
6 Src. 2. (a) Unregulated dumping of material into the
-T oceans, coastal, and other waters endangers human health,
8
welfare, and amenities, and the marine environment, ecologi-
9 cal systems, and economic potentialities.
10 (b) Congress declares that it is the policy of the United
11 States to regulate the dumping of all types of material in the
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oceans, coastal, and other waters and to prevent or vigorous-
ly limit the dumping into the oceans, coastal, and other wa-
ters of any material which could adversely affect human
health, welfare, or amenities, or the marine environment,
ecological systems, or economic potentialities. To this end,
it is the purpose of this Act to regulate the transportation of
material from the United States for dumping into the oceans,
coastal, and other waters, and the dumping of material by any
person from any source if the dumping occurs in waters over
which the United States has jurisdiction.
DEFINITIONS
Sec. 3. For the purposes of this Act the term—
(a) “Administrator” means the Administrator of the
Environmental Protection Agency.
(b) “Oceans, coastal, and other waters” means oceans,
gulfs, bays, salt water lagoons, salt water harbors, other
coastal waters where the tide ebbs and flows, and the Great
Lakes.
(c) “Material means matter of any kind or description,
including, but not limited to, dredge spoil, solid waste, gar-
bage, sewage, sludge, munitions, chemical, biological, and
radiological warfare agents, radioactive materials, wrecked
or discarded equipment, rock, sand, cellar dirt, and industrial
waste: Provided, That it does not mean oil within the mean-
ing of section 11 of the Federal Water Pollution Control Act
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or sewage from vessels within the meaning of section 13 of
said Act.
(d) “‘United States” includes the several States, the Dis-
trict of Columbia, the Commonwealth of Puerto Rico, the
Canal Zone, the territories and possessions of the United
States and the Trust Territory of the Pacific Islands.
(e) ““Person” means any private person or entity, any
employee, agent, department, agency, or instrumentality of
any State or local unit of government, or foreign government,
and, except as to the provisions of section 6, any employee,
agent, department, agency, or instrumentality of the Federal
Government.
({) “Dumping” means a disposition of material: Pro-
vided, That it does not mean a disposition of any effluent
from any outfall structure, or a routine discharge of effluent
incidental to the propulsion of vessels: And provided fur-
ther, That it does not mean the intentional placement of
any device in the oceans, coastal, or other waters or on the
submerged land beneath such waters, for the purpose of
using such device there to produce an effect attributable
to other than its mere physical presence.
(g) “District Court of the United States” includes the
District Court of Guam, the District Court of the Virgin
Tslands, the District Court of the Canal Zone, and in the
case of American Samoa and the Trust Territory of the
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Pacific Islands, the District Court of the United States for
the District of Hawaii, which court shall have jurisdiction
over actions arising therein.
PROHIBITED ACTS
Src. 4. Except as such transportation or dumping or
both may be authorized in a permit issued by the Admin-
istrator :
(a) No person shall transport material from the United
States for the purpose of dumping it into the oceans, coastal,
and other waters, and
(b) No person shall dump material (1) in that part of
the oceans, coastal, and other waters which is within the
territorial jurisdiction of the United States, or, (2) im a zone
contiguous to the territorial sea of the United States, ex-
tending to a line twelve nautical miles seaward from the base
line of the territorial sea as provided in Article 24 of the
Convention on the Territorial Sea and the Contiguous Zone,
to the extent that it may affect the territorial sea or the terri-
tory of the United States.
PERMITS
So. 5. (a) The Administrator may issue permits to
transport material for dumping into the oceans, coastal, and
other waters, or to dump material into the waters described
in subsection 4(b), or both, where the applicant presents
information respecting the proposed activity which in the
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judgment of the Administrator indicates that such trans-
portation, or dumping, or both will not unreasonably de-
grade or unreasonably endanger human health, welfare, or
amenities, or the marine environment, ecological systems,
or economic potentialities. The Administrator shall establish
and apply criteria for reviewing and evaluating such permit
applications, and, in establishing or revising such criteria,
shall consider, but not be limited in his consideration to, the
following—
(1) the likely impact of the proposed dumping on
human health, welfare, and amenities, and on the ma-
ane environment, ecological systems, and economic po-
tentialities, including an assessment of—
(A) the possible persistence or permanence of
the effects of the proposed dumping,
(B) the volume and concentration of materials
involved, and
(C) the location proposed for the dumping.
(2) alternative locations and methods of disposal,
including land-based alternatives; the probable impact
of requiring the use of such locations or methods of dis-
posal on considerations affecting the public interest; and
the probable impact oi issuing or denying permits on
considerations affecting the public interest.
In establishing or revising such criteria, the Administrator
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shall consult with the Secretaries of Commerce, Interior,
State, Defense, Agriculture, Health, Education, and Welfare,
and Transportation, the Atomic Energy Commission, and
other appropriate Federal, State, and local officials. With
respect to such criteria, as may affect the civil works pro-
gram of the Department of the Army, the Administrator
shall also consult with the Secretary of the Army. In review-
ing applications for permits, the Administrator shall make
such provision for consultation with interested Federal and
State agencies as he deems useful or necessary. No permit
shall be issued for a dumping of material which will violate
applicable water quality standards.
(b) (1) The Administrator may establish and issue
various categories of permits, including the general permits
described in subsection (c) :
(2) The Administrator may require an applicant for
a permit under subsection (a) to provide such information
as the Administrator may consider necessary to review and
evaluate such an application.
(c) Permits issued under subsection (a) may desig-
nate and include (1) the type of material authorized to be
transported for dumping or to be dumped; (2) the amount
of material authorized to be transported for dumping or to
be dumped; (3) the location where such transport for
dumping will be terminated or where such dumping will
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occur; (4) the length of time for which the permits are
valid and their expiration date; and (5) such other matters
as the Administrator deems appropriate.
(d) The Administrator may prescribe such processing
fees for permits and such reporting requirements for ac-
tions taken pursuant to permits issued under subsection (a)
as he deems appropriate.
(e) Notwithstanding any other provision of this Act,
the Administrator may issue general permits for the trans-
portation for dumping, or dumping, or both, of classes of
materials which he determines will have a minimal impact,
considering the factors, stated in subsection (a).
(f) The Administrator may limit or deny the issuance
of permits, or may alter or revoke partially or entirely the
terms of permits issued by him under this Act, for the trans-
portation for dumping, or the dumping, or both, of specified
material, where he finds that such material cannot be
dumped consistently with the criteria established pursuant
to subsection (a). No action shall be taken under this subsec-
tion unless the affected person or permittee shall have been
given notice and opportunity for hearing on such action as
proposed.
(g) The Administrator may, considermg the criteria
established pursuant to subsection (a), designate recom-
mended sites for the dumping of specified materials.
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(h) Nothing in this Act shall prohibit any transporta-
tion for dumping or dumping of material where such trans-
portation or dumping is necessary, in an emergency, to safe-
guard human life. Such transportation or dumping shall
be reported to the Administrator within such times and
under such conditions as he may prescribe by regulation.
PENALTIES
Sec. 6. (a) A person who violates section 4 of this
Act, or regulations promulgated under this Act, or a per-
mit issued under this Act by the Administrator shall be
liable to a civil penalty of not more than $50,000 for each
violation to be assessed by the Administrator. No penalty
shall be assessed until the person charged shall have been
given notice and an opportunity for a hearing on such
violation. Any such civil penalty may be compromised
by the Administrator. In determming the amount of the
penalty, or the amount agreed upon in compromise, the
gravity of the violation and the demonstrated good faith
of the person charged in attempting to achieve rapid com-
pliance after notification of a violation shall be considered
hy said Administrator, Upon failure of the offending party
to pay the penalty, the Administrator may request the
Attorney General to commence an action in the appropriate
district court of the United States for such relief as may
be appropriate.
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(b) In addition to any action which may be brought
under subsection (a), a person who knowingly and will-
fully violates section 4 of this Act, regulations promulgated
under this Act, or a permit issued under this Act by the
Administrator shall be fined not more than $50,000 or
imprisoned for not more than one year, or both.
(c) For the purpose of imposing civil penalties and
criminal fines under this section, each day of a continuing
violation shall constitute a separate offense.
(d) The Attorney General or his delegate may bring
actions for equitable relief to redress a violation by any
person of this Act, regulations promulgated under this Act,
and permits issued under this Act by the Administrator, and
the district courts of the United States shall have jurisdiction
to grant such relief as the equities of the case may require.
(e) A vessel, except a public vessel within the meaning
of subsection 13 (a) (3) of the Federal Water Pollution
Control Act or other public property of a similar nature,
used in a violation shall be liable in rem for any civil penalty
assessed or criminal fine imposed and may be proceeded
against in any district court of the United States having juris-
diction thereof: Provided, That no vessel shall be liable unless
it shall appear that the owner was at the time of the violation
a consenting party or privy to such violation.
({) If the provisions of any permit issued under sub-
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section (a) of section 5 are violated, the Administrator may
revoke the permit or may suspend the permit for a specified
period of time. No permit shall be revoked or suspended
unless the permittee shall have been given notice and oppor-
tunity for a hearig on such violation and proposed suspen-
sion or revocation.
RELATIONSHIP TO OTHER LAWS
Src. 7. (a) After the effective date of this Act, all
licenses, permits, or authorizations which have been issued
by any officer or employee of the United States under
authority of any other provision of law shall be terminated
and of no effect to the extent they authorize any activity
regulated by this Act. Thereafter, except as hereafter pro-
vided, no license, permit, or authority shall be issued by any
officer or employee of the United States other than the
Administrator which would authorize any activity regu-
lated by this Act or the regulations issued hereunder.
(b) Nothing in this Act shall abrogate or negate any
existing responsibility or authority contained in the Atomic
Energy Act of 1954, as amended, and section 4 and sub-
section 7(a) of this Act shall not apply to any activity
regulated by that Act: Provided, The Atomic Energy Com-
mission shall consult with the Administrator prior to issuing
a permit to conduct any activity which would otherwise be
regulated by this Act. In issuing any such permit, the Atomic
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Hnergy Commission shall comply with standards set by
the Adnunistrator respecting limits on radiation exposures
or levels, or concentrations or quantities of radioactive mate-
rial. In setting such standards for application to the oceans,
coastal, and other waters, or for specific portions of such
waters, the Administrator shall consider the policy ex-
pressed in subsection 2(b) of this Act and the factors stated
in subsections 5(a) (1) and 5(a) (2) of this Act.
(c) (1) The provisions of subsection (a) shall not
apply to actions taken before or after the effective date
of this Act under the authority of the Rivers and Harbors
Act of 1899 (53 U.S.C. 401 et seq.).
(2) Except as provided in subsection 11(e), nothing
in this Act shall be construed as abrogatmg or negating
any existing responsibility or authority contained in the
Rivers and Harbors Act of 1899: Provided, That after
the effective date of this Act, no Federal license or permit
shall be issued under the authority of the Rivers and Har-
bors Act of 1899 to conduct any activity otherwise regu-
lated by section 4 of this Act and the regulations issued
hereunder, unless the Administrator has certified that the
activity proposed to be conducted is in conformity with
the provisions of this Act and with the regulations issued
hereunder.
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(3) Where a license or permit to conduct an activity
has been granted under the authority of subsections (c) (1)
and (c) (2) of this section and of the Rivers and Har-
bors Act of 1899, no separate permit to conduct such ac-
tivity shall be required under this Act.
(d) Prior to issuing any permit under this Act, where
it appears to the Administrator that the disposition of the
material to be transported for dumping or to be dumped may
atlect navigation in the navigable waters of the United States
or may create an artificial island on the Outer Continental
Shelf, the Administrator shall consult with the Secretary of
the Army and no permit shall be issued if the Secretary of
the Army determines that navigation will be unreasonably
impaired.
(e) Nothing in this Act shall be construed as preempt-
ing any State, Federal territory cr commonwealth, or
subdivision thereof from imposing any requirement of
hability.
ENFORCEMENT
Src. 8. (a) The Administrator may, whenever appro-
priate, utilize by agreement, the personnel, services, and
facilities of other Federal departments, agencies, and instru-
mentalities, or State agencies or instrumentalities, whether
on a reimbursable or a nonreimbursable basis.
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(b) The Administrator may delegate responsibility and
authority for reviewing and evaluating permit applications,
including the decision as to whether a permit will be issued,
to an officer of the Environmental Protection Agency, or he
may delegate, by agreement, such responsibility and author-
ity to the heads of other Federal departments or agencies,
whether on a reimbursable or nonreimbursable basis.
(c) The Secretary of the department in which the
Coast Guard is operating shall conduct surveillance and
other appropriate enforcement activity to prevent unlawful
transportation of material for dumping or dumping.
REGULATIONS
Src. 9. In carrying out the responsibilities and author-
ity conferred by this Act, the Administrator is authorized
to issue such regulations as he may deem appropriate.
INTERNATIONAL COOPERATION
Src. 10. The Secretary of State, in consultation with
the Administrator, shall seek effective international action
and cooperation to ensure protection of the marine environ-
ment, and may for this purpose, formulate, present, or sup-
port specific proposals in the United Nations and other com-
petent international organizations for the development of
appropriate international rules and regulations in support
of the policy of this Act.
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REPEAL AND SUPERSESSION
Sec. 11. (a) The second proviso to the last paragraph
of section 20 of the Act of March 3, 1899 (30 Stat. 1154),
as amended (33 U.S.C. 418), is Tene let
(b) Sections 1, 2; 3, 4-5, 6, and 7% of the Act of
June 29, 1888 (25 Stat. 209), as amended (33 U.S.C.
441-451b), are repealed.
(c) Section 2 of the Act of August 5, 1886 (24 Stat.
329; 33 U.S.C. 407a), is repealed.
(d) To the extent that it authorizes action regulated by
this Act, section 4 of the Act of March 3, 1905 (33 Stat.
1147; 33 U.S.C. 419), is superseded.
(e) Section 13 of the Rivers and Harbors Act of 1899
(80 Stat. 1152), as amended (33 U.S.C. 407), is super-
seded insofar as it applies to dumping, as defined in subsec-
tion 3(f) of this Act, of material in the waters covered by
subsection 4(b) of this Act.
EFFECTIVE DATE AND SAVINGS PROVISION
Sec. 12. (a) This Act shall take effect six months after
its enactment.
(b) No legal action begun, or right of action accrued,
prior to the effective date of this Act shall be affected by any -
provision of this Act.
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AUTHORIZATION FOR APPROPRIATIONS
Sec. 13. There is hereby authorized to be appropriated,
out of any moneys in the Treasury not otherwise appro-
priated, such sums as may be necessary for the purposes and
administration of this Act.
78
[H.R. 4359, H.R. 4360, H.R. 4361, 92d Cong., 1st sess.]
A BILL
To amend the Act of August 3, 1968 (82 Stat. 625), to protect
aD
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_ the ecology of estuarine areas by regulating dumping of
waste materials, to authorize the establishment of a system
of marine sanctuaries, and for other purposes.
Be it enacted by the Senate and H. Ouse of Representa--
tives of the United States of America in Congress assembled,
That section 1 of the Act of August 3, 1968 (82 Stat. 625) ,
is amended by adding at the end thereof the following:
“Congress further finds and declares that many estu-
aries of the Nation are being subjected to severe ecological
degradation through the unregulated dumping into the
oceans and into the coastal waters of the United States of
polluted dredge spoils, industrial wastes, sewage, and refuse
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in ever-increasing quantities; that such dumping should not
be permitted except when it has been determined that the
material cannot adversely affect the ecology of the ‘oceans
and of the coastal waters and estuaries of the United States,
and that portions of the Nation’s tidelands, Outer Conti-
nental Shelf, seaward areas and land and waters of the
Great Lakes should be preserved as marine sanctuaries
where industry development and extraction of the nonliving
resources of the seabed and subsoil thereof and dumping of
any kind should be prohibited.”
Src. 2. Section 6 of the Act of August 3, 1968 (82
Stat. 628) , is amended to read as follows:
‘‘After the effective date of this section, no citizen of the |
United States or other person shall dispose of waste materials
into the oceans, coastal waters, and estuarine areas of the
United States or into the Great Lakes unless he shall have
first secured a permit from the Administrator of the Environ-
mental Protection Agency under authority of this Act for
the transportation and dumpimg or disposal by whatever
means contemplated of such waste material.”’
Src. 3. The Act of August 3, 1968 (82 Stat. 625 et :
seq.), is amended by inserting immediately following sec-
tion 6 thereof the following new sections:
“Src. 7. (a) The Administrator of the Environmental
Protection Agency may issue permits authorizing the dump
Da DW —»- W!C wb
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ing or disposal of waste material into the oceans, coastal
waters, and estuarine areas of the United States, and into
the Great Lakes under such terms and conditions as he deter-
mines necessary to insure that such dumping or disposal will
not damage the ecology of the marine environment.
“(b) In determining whether any dumping or disposal
for which a permit is sought will damage the ecology of the
marine environment, the Administrator shall consider among
other factors the following:
“(1) Present and future impact on the marine en-
vironment, human health, areas. and amenities;
“(2) Irreversibility of the impact of dumping or
disposal ; ;
“(3) Volume anc concentration of materials
involved; |
“(4) Location of disposal, depth, and potential
impact of one location relative to others ;
“(e¢) No permit shall be issued by the Administrator for
the dumping or disposal of the following materials:
“(1) Radioactive wastes;
““(2) Toxic industrial wastes;
“(3) Chemical and biological warfare materials.
“(d) After January 1, 1972, no permit shall be issued
by the Administrator for the dumping or disposal of sewage
or industrial waste, unless such sewage or industrial waste
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has received primary treatment in accordance with standards
and regulations established by the Administrator.
“(e) After January 1, 1974, no permit shall be issued
by the Administrator for the dumping or disposal of sewage
or industrial waste, unless such sewage or industrial waste
has received primary and secondary treatment in accordance
with standards and regulations established by the
Administrator.
“(f) After January 1, 1976, no permit shall be issued
by the Administrator for the dumping or disposal of sewage
or industrial waste, unless such sewage or industrial waste
has received primary, secondary, and tertiary treatment in
accordance with standards and regulations established by the
Administrator.
“(g¢) The Administrator of the Environmental Protec-
tion Agency may by regulation prohibit the disposal or
dumping of any waste material which he determines may
damage the ecology of the marme environment, and in
making such determination he may rely upon whatever
indicators are currently available to him, regardless of the
fact that such indicators may not be conclusive.
“Src. 8. (a) Whoever violates the provisions of section
6 of this Act shall be fined not less than $2,000 iol. more
- than $10,000 for the first offense, and not less than
“i $10,000 nor more than $25,000 for each succeeding offense.
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In the case of a continuous disposal extending over a period
of time, each day that such disposal occurs shall be con-
sidered a separate offense. Any vessel or barge engaged in
the dumping or disposal of waste material in violation of
this Act shall be forfeited to the United States.
“(b) The Administrator of the Environmental Protec-
tion Agency, the Secretary of the Department m which
the Coast Guard is operating acting through the Coast Guard,
and the Secretary of the Army acting through the Corps of
Engineers shall enforce section 6 of this Act under regula-
tions and operational directives jointly agreed to. The Coast
Guard is hereby empowered to stop, search, and detain m
the territorial sea or contiguous zone of the United States
any vessel or barge which appears to be engaged in dumping
operations or which appears to be transporting waste mate-
rial for the purpose of determining whether such vessel or
barge is covered by a permit issued under authority of this
Act. There is hereby authorized to be appropriated such sums
as may be necessary to carry out the enforcement activities
authorized by this subsection.
“(c) The district courts of the United States shall have
jurisdiction to restrain violations of section 6 of this Act. Ac-
tions to restrain such violations shall be brought by, and in,
the name of the United States. In the case of contumacy or
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refusal to her a subpena upon any person, the district court
of the United States for any district in which such person is
found or resides or transacts business, upon application by the
United States, and after notice to such person, shall have
jurisdiction to issue an order requiring such person to appear
and give testimony or to appear and produce documents, and
any failure to obey such wile of the court may be punished
by such court as a contempt thereof.
“Sec. 9. (a) The Secretary of Commerce acting
through the Administrator of the National Oceanic and
Atmospheric Administration after consultation with the Sec-
retary of the Interior, the Administrator of the Environ-
mental Protection Agency, and the Council on Environ-
mental Quality shall designate as marine sanctuaries those
areas of the Nation’s tidelands, Outer Continental Shelf, sea-
ward areas, and land and waters of the Great Lakes which
the Secretary determines should be preserved or restored
for their recreation, conservation, ecologic, or ecthietie
values.
“(b) The Secretary of Commerce shall make his initial
designation under subsection (a) of this section within two
years following the date of enactment of this section. There-
after, he shall periodically designate such additional areas
as he deems appropriate. The Secretary shall submit a report
to the President and Congress annually setting forth a com-
1S
84
7
prehensive review of his actions under the authority of this
section, together with such recommendations for further
legislation as he deems appropriate to further the designa-
tion and preservation of marine sanctuaries.
“(c) In conducting the studies, the Secretary shall
schedule hearings in areas contiguous to the proposed sanc-
tuary sites, for the purposes of receiving views on the
establishment of such marine sanctuaries.
“(d) The Secretary of the Interior shall not issue or
renew any license, permit, or other authorization for the
exploration, development, mining, or removal of any minerals
(including gas and oil) from any area designated or under
study for possible designation as a marine sanctuary.
“(e) While any area is under study for designation as
a marine sanctuary, the Secretary is authorized to cooperate
- with all affected Federal, State, local, and international
organizations im order that, until the completion of such
study, a moratorium on the industrial development of any
portion of the tidelands, Outer Continental Shelf, seaward
areas, and land and waters of the Great Lakes under consider-
ation as a possible marine sanctuary may be agreed upon by
such interested parties.
“(f) The Administrator of the Environmental Protec-
tion Agency shall not issue or renew any permit for the
dumping or disposal of any waste material in any area desig-
ao fF WO NY EF
85
8
nated or under study for possible designation as a marine
sanctuary.
‘““(g) There is authorized to be appropriated not to
exceed $5,000,000 for the conduct of such studies as may be
necessary to carry out the purposes of this section.
“Sec. 10. The provisions of this Act shall be considered
as supplementary to the Fish and Wildlife Coordination Act
(16 U.S.C. 661 et seq.) and the National Environmental
Policy Act of 1969 (42 U.S.C. 4331 et seq.) . All other pro-
visions of law which are in conflict with this Act are hereby
repealed.
“Src. 11. For the purposes of this Act—
“(a) The term ‘waste material’ means all Gh and
liquid products or byproducts of the industrial processes (in-
cluding tailings, sediment, and like materials resulting from
marine mining or dredging activities) , industrial waste acids,
chemicals, sewage, sludge, garbage, dredge spoils, radioactive
materials, construction and demolition debris, military ordi-
nance, explosives, and any other form of discarded material
or equipment.
“(bh) The term ‘coastal waters’ means the waters lying
seaward of the line of ordinary low water along that portion
of the coast which is in direct contact with the open sea and
thie line marking the seaward limit of inland waters to a dis-
tance of three miles from such lines. As used with reference
86
9
to the Great Lakes, ‘coastal waters’ means those boundary
waters between the United States and Canada lying on the
United States side of the International Boundary between
the United States and Canada.
““(c) The term ‘oceans’ means those portions of the
high seas as defined in the Convention on the High Seas
lying seaward of the outer limits of the coastal waters of
the United States.
“(d) The terms ‘estuary’ and ‘estuarine areas’ mean
an. environmental system consisting of an estuary and those
transitional areas which are consistently influenced or affected
by waters from an estuary such as, but not limited to, salt
marshes, coastal and intertidal areas, bays, harbors, lagoons,
inshore waters, and channels, and the term ‘estuary’ shall in-
clude all or part of the mouth of a navigable or interstate
river or stream or other body of water having an unimpaired
natural connection with the open sea and within which the
sea water is measurably diluted with fresh water derived
from land drainage.
“(e) The term ‘citizen of the United States’ means
officers and employees of the United States, or of any
political subdivision thereof, all natural persons who are
citizens of the United States, all partnerships or other
associations which include in their membership one or more
citizens of the United States, and the officers and directors
oO m © BD
lor)
oe wo xa
10
u
12
13
14
15
16
17
18
19
87
10
of all corporations organized under the laws of the United
States or of any State of the United States.
““(f) The term ‘other person’ means the resident officers,
directors or managers of foreign partnerships, associations, or
corporations doing business in the United States.
“(g¢) The terms ‘dumping’ and ‘disposal’ mean to place,
release, or discharge by any means whatsoever.
“(h) The term ‘tidelands’ means bays, estuaries, land,
and waters within the three-mile territorial limit of the
United States.
““(i) The term ‘Outer Continental Shelf’ means land and
waters extending from the three-mile territorial limit out to
the two-hundred-meter depth contour.
““(j) The term ‘seaward areas’ means land and waters
contiguous to and extending from the two-hundred-meter
depth contour.”
Sec. 4. The provisions of section 2 of this Act shall
become effective one hundred and twenty days after the
date of enactment of this Act.
88
920 CONGRESS
mse” Hl. R. 4584
) )
Mr.
bo
Co
IN THE HOUSE OF REPRESENTATIVES
Fersruary 18,1971
Lennon introduced the following bill; which was referred to the Com-
mittee on Merchant Marine and Fisheries
prohibit the discharge into any of the navigable waters of
the United States or into international waters of any military
or waste material without a certification by the Environ-
mental Protection Agency and the National Oceanic and
Atmospheric Administration approving such discharge.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
That after the date of enactment of this Act, no person shall
discharge, directly or indirectly, mto any of the navigable
waters of the United States or into mternational waters any
munition, or any chemical, biological, or radiological warfare
agent, or any other military material except im accordance
with a certificate issued by the Environmental Protection
I
89
S)
=
[-
Agency and the National Oceanic and Atmospheric Admin-
2 istration permitting such discharge and establishing the
3 terms, conditions, limitation, and penalties applicable thereto.
62-513 O- 71-7
90
DEPARTMENT OF AGRICULTURE,
OFFICE OF THE SECRETARY,
Washington, D.C., April 19, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
Dear Mr. CHAIRMAN: This is in response to your request for reports on H.R.
4247 and H.R. 4723, bills “To regulate the dumping of material in the oceans,
coastal, and other waters and for other purposes.”
This Department supports the enactment of H.R. 4247 and H.R. 4723 which
carry out the recommendations set forth by the President in his February 8, 1971,
message on the environment.
Under these bills, the Administrator of the Environmental Protection Agency
would be authorized to issue permits for dumping materials into oceans, coastal,
and other waters when, in his judgment, such dumping will not unreasonably
endanger human health, welfare, or amenities, or the marine environment, eco-
logical systems, or economic potentialities.
The Administrator, EPA, would be directed to establish criteria for evaluating
permit applications on the basis of their likely environmental impact including
(1) possible persistence of the effects of the proposed dumping, (2) volume and
concentration of materials involved, and (3) the location proposed for dumping.
Of especial interest to this Department is the provision (Sec. 5(a) (2) that the
Administrator, EPA, consider “alternate locations and methods of disposal in-
cluding land-based alternatives. . . .” Since most of the Jand in the United States
is rural land, used for farming or forestry, this Department is concerned with any
land-based alternatives which might be considered. The Department of Agricul-
ture has information and expertise relevant to the suitability of various land
sites for disposal of solids, either as sanitary landfills or through methods by
which many solids may be beneficially incorporated in the soil. We wish to point
out that the bills very appropriately provide that, in establishing or revising
eriteria against which dumping permit applications would be approved or denied,
the Administrator, EPA, will consult with this Department, along with several
other interested Federal agencies.
The Office of Management and Budget advises that there is no objection to
the presentation of this report from the standpoint of the Administration’s
program.
Sincerely,
J. PH1~ CAMPBELL,
Under Secretary.
DEPARTMENT OF THE ARMY,
Washington, D.C., April 7, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Merchant Marine and Fisheries Committee, House of Representatives.
DEAR Mr. CHAIRMAN: Reference is made to your request for the views of the
Department of Defense on H.R.’s 285, 336, 337, 548, 549, 805, 983. 1095, 1383, 1661,
3662, 4217, 4584 and 5050, 92nd Congress, bills concerning the discharge of mili-
tary or other material into international waters or waters of the United States,
and the transportation of that material for disposal into internaional waters. The
Department of the Army has been assigned responsibility for expressing the views
of the Department of Defense on these bills.
The purpose of the bills is to prohibit unregulated dumping into the oceans
and other waters. The Department of the Army on behalf of the Department of
Defense is deeply concerned about the adverse ecological and environmental ef-
fects associated with the discharge of wastes and other materials into the navi-
gable, coastal, and ocean waters of the United States. Each of these bills addresses
some facet of this area of concern. We are concerned, however, that certain of
these bills could unnecessarily prohibit some important activities not necessarily
harmful to the marine environment. We are especially concerned that the pro-
hibitive features of certain of these bills could be construed as an attempt to pre-
clude operation of U.S. nuclear powered warships, including the strategic deter-
rent Fleet Ballistic Missile Submarine force. Such a result would be untenable to
the security of the United States.
91
The Department of the Army on behalf of the Department of Defense believes
that the Administration’s bill, H.R. 4723, introduced by you on February Paps
1971, to the 92nd Congress, realistically and comprehensively provides for the
intent expressed in the proposed bills cited in the first paragraph, above, with
respect to preventing unregulate dumping of harmful substances into estuarine
areas.
This report has been coordinated within the Department of Defense in accord-
ance with procedures prescribed by the Secretary of Defense.
The Office of Management and Budget advises that, from the standpoint of
the Administration’s program, there is no objection to the presentation of this
report for the consideration of the Committee.
Sincerely,
STANLEY R. RESOR,
Secretary of the Army.
U.S. AtoMic ENERGY COMMISSION,
Washington, D.C., April 26, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
DEAR Mr. GarMatz: The Atomic Energy Commission is pleased to reply to
your letter of February 19, 1971, requesting our views on H.R. 336 and H.R.
548, identical bills ‘‘[t]o require the Council on Environmental Quality to make
a full and complete investigation and study of national policy with respect to
the discharging of material into the oceans.”
These bills are identical to H.R. 18914, which was introduced in the 91st
Congress on August 11, 1970. At your request, our views on that bill were sub-
mitted for your Committee’s consideration by letter dated October 30, 1970.
Consistent with the views we expressed at that time, we feel that the proposed
legislation is unnecessary.
On October 7, 1970, the President made public the results of a study con-
ducted by the Council on Environmental Quality with respect to the discharge
of materials into the oceans. To implement the policy recommendations con-
tained in the Council’s report, the Administration recently sent to Congress a
proposed bill which would provide for comprehensive regulation of the discharge
of materials into the oceans and coastal waters, as well as the Great Lakes. This
proposed legislation was introduced in the House on February 10, 1971, as
H.R. 4247. Accordingly, in view of these developments it is apparent that the
objectives of H.R. 336 and H.R. 548 have already been realized.
The Office of Management and Budget has advised that there is no objection
to the presentation of this report from the standpoint of the Administration’s
program.
Cordially,
GLENN T. SEABORG, Chairman.
H.R. 1661 and H.R. 5050—These bills, which are identical, would impose a
specific prohibition on an owner or master of a vessel, in regard to the loading of
any waste on a vessel, while it is in a United States port, if the material is to be
dumped in territorial or international waters. An authorizing permit would
first have to be obtained from the Administrator of the Environment Protection
Agency ; such authorization would be based on the Administrator’s determination
that the discharge would not damage the marine environment or human health
and welfare. The Administrator would be precluded from authorizing any dis-
charges of wastes between the Continental Shelf and the coast of the United
States. The owner or master of the vessel would also be required to notify the
caiman of the exact location where the authorized dumping would be
effected.
H.R. 3662 and H.R. 4359——These similar bills would prohibit any person from
dumping waste material into the coastal or ocean waters of the United States,
including the Great Lakes and estuarine areas, without first obtaining a permit
from the Administrator of HPA. The Administrator could issue the permit if he
determined that the discharge would not damage the ecology of the marine
92
environment; the Administrator would be obliged to take into account a number
of factors specified in the bills, including the effect of the dumping on human
health and welfare. No permit could be issued for the disposal of certain specified
wastes, including “radioactive wastes”. Section 9(a) of H.R. 4359 (not contained
in H.R. 3662) would require that the Secretary of Commerce designate portions
of the waters encompassed by the bill, as well as adjacent land areas, as marine
sanctuaries. The Administrator of EPA would be prohibited from issuing or
renewing any permit for the disposal of any wastes “in any area designated or
under study for possible designation as a marine sanctuary.”
H.R. 4247 and H.R. 4723.—These identical bills, which are favored by the
Administration, would (1) carefully regulate the transportation of materials
from the United States for the purpose of disposal in the oceans and coastal and
other waters of the United States, and (2) dumping in waters over which the
United States has jurisdiction. The term ‘‘dumping” and other key words in
these bills are clearly defined. Both transportation and dumping would be pro-
hibited unless the Administrator of EPA issues an authorizing permit. The
Administrator may issue such permits “where the applicant presents informa-
tion respecting the proposed activity which in the judgment of the Administrator
indicates that such transportation, or dumping, or both will not unreasonably
degrade or unreasonably endanger human health, welfare, or amenities, or
the marine environment, ecological systems, or economic potentialities.”
In reviewing permit applications the Administrator would be guided by cri-
teria to be established by him in consultation with certain named Federal
agencies, including the Atomic Energy Commission, as well as “other appro-
priate Federal, State, and local officials.”
The Administrator would have very broad authority with respect to types and
scopes of permits, but no permit could be issued for dumping that would violate
applicable water quality standards. The bills provide that transportation or
dumping without a permit would be permitted in emergency situations where
necessary to safeguard human life; in such excepted instances, reports must be
furnished to the Administrator “within such time and under such conditions as
he may prescribe by regulation.”
Under the caption ‘Relationship to Other Laws” the bills provide, among
other things, that:
“(b) Nothing in this Act shall abrogate or negate any existing responsibility
or authority contained in the Atomic Energy Act of 1954, as amended, and sec-
tion 4 and subsection 7(a) of this Act shall not apply to any activity regulated
by that Act: Provided, The Atomic Energy Commission shall consult with the
Administrator prior to issuing a permit to conduct any activity which would
otherwise be regulated by this Act. In issuing any such permit, the Atomic Energy
Commission shall comply with standards set by the Administrator respecting
limits on radiation exposures or levels, or concentrations or quantities of radio-
active material. In setting such standards for application to the oceans, coastal,
and other waters, or for specific portions of such waters, the Administrator
shall consider the policy expressed in subsection 2(b) of this Act and the factors
stated in subsections 5(a) (1) and 5(a) (2) of this Act.”
This provision recognizes that the Atomic Energy Act of 1954, as amended,
vests the Atomic Energy Commission with regulatory authority over the con-
struction and operation of nuclear facilities and the possession and use of cer-
tain defined nuclear materials, including the disposal of all radioactive materials
except radioactive material produced in accelerators and naturally occurring
radium and its daughters.
AEC has not permitted ocean disposal of high-level radioactive wastes from
fuel reprocessing operations. Although the disposal of low-level liquid wastes
from such facilities as nuclear power plants and the dumning of solid, packaged
radioactive wastes into the ocean have been permitted, AEC has strictly con-
trolled and limited the quantities and types of wastes disposed in this manner.
In fact, AEC itself has made no sea disposals during the past eight years and
has not issued any licenses for this purpose since 1960. The four existing licenses
have seldom been used.
The discharge of radioactive effluents from AEC licensed facilities is subject
to a comprehensive system of Federal regulations and licensing requirements,
which are contained in 10 CFR Parts 20 and 50 of the Commission’s regula-
tions. These regulations are based upon recommendations which have been made
93
by the Federal Radiation Council. Pursuant to Reorganization Plan No. 3 of
1970 (effective December 2, 1970) the functions of the FRC were transferred
to the Environmental Protection Agency, which now has the responsibility to
set standards for the protection of the general environment from radioactive ma-
terials. As with the disposal of radioactive wastes, the AEC has exercised its
authority over the discharge of radioactive effluents by strictly controlling and
limiting such releases. We do not believe that experience has shown any need
for an additional system of control over such discharges or disposal.
Unlike the other bills mentioned above, H.R. 4247 and H.R. 4723 avoid the
problem of dual regulation in the atomic energy field. Under these bills AEC
would be required to consult with the Administrator before issuing a permit
for any activity which would otherwise be within the scone of the statute, and
would also be required to comply with the standards set by the Administrator
respecting limits on radiation exposures or levels, or concentrations or quantities
of radioactive material.
In our view, the proposed legislation embodied in H.R. 4247 and H.R. 4723
would provide for more comprehensive and effective regulation of the discharge
of materials into the marine environment than would the other bills. Moreover,
we feel that enactment of any of the other bills could give rise to serious prob-
lems which are avoided in the careful draftsmanship of the proposed legisla-
tion of the President.
We recommend that favorable consideration be given to enactment of the text
of H.R. 4247 and H.R. 4723. We believe that the other bills, which cover many
of the same areas as H.R. 4247 and H.R. 4723, are not as well drawn as those
two bills and should not be enacted into law in their present form.
The Office of Management and Budget has advised that there is no objection
to the presentation of this report from the standpoint of the Administration’s
program.
Cordially,
GLENN T. SEABORG, Chairman.
U.S. Atomic ENERGY COMMISSION,
Washington, D.C., April 7, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DEAR Mr. GARMATZ: The Atomic Energy Commission is pleased to reply to
your requests for our views on H.R. 285, H.R. 337, H.R. 549, H.R. 983, H.R. 1095,
H.R. 4217, and H.R. 4584, bills relating to the regulation of discharges of specified
materials into the navigable waters of the United States or international waters.
We note that these bills are identical] or substantially similar to proposed
legislation introduced in the 91st Congress. Our comments on the prior bills were
submitted for your Committee’s consideration by our letters dated October 30,
1970.
As we then explained, we strongly support effective measures to protect and
preserve our environment; however, we did not favor enactment of those bills
because they appeared to be unnecessary. Additionally, we believe they would
have interfered with the functions of AEC under the Atomic Energy Act, with-
out adding something of substantive benefit. :
As noted in our earlier replies, at the President’s request the Council on En-
vironmental Quality undertook an intensive study of pollution in the marine en-
vironment. The results of CHQ’s study were subsequently made public by the
President on October 7, 1970. In implementation of the policy recommendations
embodied in the Council’s report, the Administration recently transmitted a
proposed bill to the Congress which would provide for comprehensive regulation
of the discharge of materials into the oceans and coastal waters, as well as the
Great Lakes. H.R. 4247, and your bill H.R. 4723, introduced in February, set forth
the Administration’s legislative proposal. In a companion letter today, we have
submitted our comments to you on H.R. 4247 and H.R. 4723 and several other bills
concerned with dumping.
Respecting navigable waters which may not be covered by H.R. 4247 and
H.R. 4728, legislative authority already exists for the regulation and control of
discharges into such waters. Under the Federal Water Pollution Control Act, as
94
amended (33 U.S.C. 1151 et seq.), discharges which violate applicable water
quality standards are subject to suit for abatement, and, in addition, discharges
from federally licensed activities are generally subject to a requirement for
certification that there is reasonable assurance that applicable water quality
standards will not be violated. Furthermore, the Refuse Act (33 U.S.C. 407)
makes it unlawful to discharge any refuse matter, other than liquid effluents
flowing from streets or sewers, into any of the navigable waters of the United
States or their tributaries, unless otherwise authorized by the Secretary of the
Army upon terms and conditions specified by him. With respect to this latter
authority, in order to further the objectives of the Refuse Act the President,
by Executive Order 11574 (December 25, 1970, 35 F.R. 19627), has directed the
Secretary of the Army to establish a permit program in cooperation with the
Administrator of EPA “to regulate the discharge of pollutants and other refuse
matter into the navigable waters of the United States or their tributaries and
the placing of such matter upon their banks.’ Pursuant to that Order, the Army
Corps of Engineers published proposed regulations on December 31, 1970 (35
F.R. 20005).
Accordingly, with respect to the oceans, gulfs, bays, sea-water lagoons, salt-
water harbors, other coastal waters where the tide ebbs and flows, and the Great
Lakes, we favor enactment of the text of H.R. 4247 and H.R. 4723.
In our opinion, H.R. 285, H.R. 337, H.R. 549, H.R. 983, H.R. 1095, H.R. 4217,
and H.R. 4584 should not be enacted into law. To reiterate some of the objec-
tions we identified in our letters last fall, several of these bills define waste ma-
terial so broadly as to encompass radioactive materials and effluents. The ANC
has licensing authority over effluent discharges and the disposal of all radioactive
waste materials, except radioactive material produced in accelerators and na-
turally occurring radium and its daughters. This is a highly specialized health
and safety field; dual regulation or the diffusion of Federal responsibility in
this area would, in our judgment, be highly undesirable.
Several of the other bills, in their severe prohibition on discharging vaguely
defined material, could be construed in such a way as to constitute a serious
interference with our national defense capability. The normal discharge of a
military ship’s fire and bilge pump system, or firing of any ordnance by a mili-
tary vessel or aircraft, could be interpreted as the discharge of “military ma-
terial” into the waters.
In short, for the reasons mentioned above, and those advanced in our com-
panion letter on H.R. 4247, H.R. 4723 and several other bills, we do not favor en-
actment of H.R. 285, H.R. 337, H.R. 549, H.R. 983, H.R. 1095, H.R. 4217 and
H.R. 4584.
The Office of Management and Budget has advised that there is no objection
to the presentation of this report from the standpoint of the Administration’s
program
Cordially,
GLENN T. SEABORG, Chairman.
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., April 9, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DEAR Mr. CHAIRMAN: Reference is made to your request for the views of the
Department of Defense on H.R. 4247 and H.R. 4723, 92d Congress, similar bills
“To regulate the dumping of material in the oceans, coastal, and other waters
and for other purposes”.
The purpose of the bills is stated in their titles. If enacted, the bills would
make the Administrator of the Environmental Protection Agency responsible for
establishing appropriate regulations for the application of the environmental
standards contained in the proposals. Any agency or person would have to
obtain a permit from the Administrator before transporting materials for dump-
ing or before dumping materials in the protected areas. There are certain excep:
tions to this latter requirement for routine operation of vessels and for inten-
tional placement of devices in the waters, if such placement is for a purpose
other than disposal.
95
The bills were introduced as a result of a proposal submitted to the Congress
in connection with the President’s environmental message of February 8, 1971.
The Department of Defense supports the bills and recommends enactment.
The Office of Management and Budget advises that, from the standpoint of the
Administration’s program, there would be no objection to the presentation of this
report for the consideration of the Committee, and that the enactment of H.R.
4247 or H.R. 4723 would be in accord with the program of the President.
Sincerely yours,
J. FRED BUZHARDT.
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., April 6, 1971.
Hon. Hpwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DEAR Mr. CHAIRMAN: AS requested, we submit herewith the views of the
Environmental Protection Agency on the following legislative proposals, most of
which will be the subject of joint legislative hearings to be held by the Subcom-
mittee on Oceanography and the Subcommittee on Fisheries and Wildlife Con-
servation during the week of April 5, 1971: H.R. 285, 336, 337, 548, 549, 805, 807,
808, 983, 1095, 1829, 1381, 1882, 1883, 1661, 1674, 2581, 3662, 4217, 4218, 4247, 4359,
4360, 4861, 4584, 4719, 4723, 5049, 5050, 5239, 5268, 5477, 5705, and 6862.
H.R. 4723 (also 4247, 5239, 5268, 5477, and 6862)
H.R. 4728, which is the Administration’s own ocean dumping proposal, pro-
vides that, except as authorized in a permit issued by the Administrator of EPA,
no person shall (a) transport ‘‘material”’ from the United States for the purpose
of dumping it into “oceans, coastal, and other waters,’ or (b) dump material in
that part of such waters within the territorial juridsdiction of the United States,
or in the contiguous zone to the extent that the dumping may affect the ter-
ritorial sea or the territory of the United States. ‘“Material’” is defined to include
dredge spoil, solid waste, garbage, sewage sludge, munitions, chemical, biological,
and radiological warfare agents, radioactive materials, wrecked or discarded
equipment, rock, sand, cellar dirt, and industrial waste, but to exclude oil and
vessel sewage, discharges of which are regulated by the Federal Water Pollution
Control Act. “Oceans, coastal, and other waters” are defined to mean oceans,
gsulfs, bays, salt-water lagoons, salt water harbors, other coastal waters where
the tide ebbs and flows, and the Great Lakes. The “dumping” to which the bill
applies includes any disposition of material other than dispositions of effluent
from outfall structures, or routine discharges cf effluent incidental to the
propulsion of vessels.
The Administrator would be authorized to issue permits to dump materials or
to transport them for dumping where in his judgment, based on information
supplied by the applicant, such activity will not unreasonably degrade or en-
danger human health, welfare or amenities, or the marine environment, ecologi-
cal systems, or economic potentialities. He would be required to establish criteria
for evaluating permit applications, taking into account the likely environmental
impact of the proposed dumping, alternative locations and methods of disposal,
and the impact on the public interest of either issuing or denying a permit or of
requiring an a'ternative disposal method. In establishing or revising criteria, the
Administrator would be required to consult with the heads of concerned depart-
ments and agencies. He would be precluded from issuing any permit which would
result in a yiolation of water quality standards. He would be authorized to im-
pose restrictions relating to the type and amount of materials to be dumped,
the place of dumping, and the duration of the permit. He would be authorized to
limit, deny, alter or revoke permits where he finds that materials cannot be
dumped consistently with the criteria established for the issuance of permits.
Dumping of materials in an emergency to safeguard human life would be ex-
empted from the requirements of the Act, but would be required to be reported
to the Administrator.
The Administrator would be authorized to impose civil penalties of up to $50,000
per day for violations of the Act or of any regulations or permit issued there-
under. In addition, knowing or willful violations would invite criminal fines of
96
up to $50,000 per day, imprisonment for up to one year, or both. The Attorney
General would be authorized to bring actions for equitable relief to redress any
such violations, and the Administrator would be authorized to revoke or suspend
a violator’s permit. All of the Act’s prohibitions and requirements would be appli-
cable to agencies and employees of the Federal Government, except the remedial
provisions described in this paragraph. The bill would require the Coast Guard
to conduct surveillance and other appropriate enforcement activity.
The bill has a section which defines its relationship with other laws and with
actions taken pursuant to other laws. Generally speaking, existing Federal per-
mits would be terminated upon the Act’s effective date to the extent that such
permits authorize activity covered by the Act, and further permits of a similar
nature could not be issued. However, there would be two exceptions to this gen-
eral supersession of other laws: (1) the AEC’s authorities with respect to radio-
active materials under the Atomic Energy Act of 1954 would not be affected
(although the AEC would be required to consult with EPA prior to issuing any
permit to conduct any activity otherwise regulated by this Act, and to comply
with radioactive-material standards set by the Administrator) ; and (2) except
as set forth in the next paragraph, the authorities contained in the Rivers and
Harbors Act of 1899, as well as all actions taken pursuant to that Act either be-
fore or after the effective date of this proposal, would be preserved. In situa-
tions in which this Act and the Act of 1899 both apply to dumping of material
in connection with a dredge, fill or other permit issued by the Corps of Engi-
neers, the permit would be issued by the latter only after receiving certification
from EPA that the proposed activity is in conformity with this Act.
The bill would supersede the Refuse Act insofar as that Act applies to dump-
ing of materials in waters covered by the bill, and would repeal the Supervisory
Harbors Act of 1888, an act which has been used to regulate ocean dumping of
materials transported from the harbors of New York, Baltimore, and Hampton
Roads, Virginia.
EPA recommends the enactment of H.R. 4723. The bill contains the following
major elements, all of which are considered essential to a rational and compre-
hensive ocean dumping policy:
1. In addition to its application to ocean waters, the bill would apply to the
Great Lakes as well as to certain internal waters having characteristics of open
ocean waters (salt-water gulfs, bays, lagoons, harbors, etc.).
2. The bill would require permits for two types of activity which are not
necessarily related: (a) transportation of materials from the United States for
dumping in ocean waters anywhere; and (b) dumping of materials—whether
transported from the United States or not—in waters covered by the Act which
are within the territorial jurisdiction of the United States, or in waters of the
contiguous zone where the dumping may affect the territory or territorial sea of
the United States. Under this approach, the regulatory authority of the United
States is utilized to its fullest extent consistent with established principles of in-
ternational law.
3. The bill is coordinated with other laws and with water quality manage-
ment programs carried out pursuant to other laws. The bill would for the most
part be inapplicable to internal navigable waterways, which are protected by
water quality standards established by the States or by joint Federal-State ac-
tion pursuant to the Federal Water Pollution Control Act, and by the require-
ments of the Refuse Act of 1899. In order to rationalize the overlap which does
exist between this proposal and either the Federal Water Pollution Control Act
or the Refuse Act (on overlap which is limited primarily to the Great Lakes
and coastal waters out to the three mile limit), the bill provides: (a) that it
does not apply to effluent from outfall structures (which are adequately regulated
by the Refuse Act and the Federal Water Pollution Control Act) ; (b) that
the Refuse Act is superseded insofar as it applies to dumping of materials in
waters covered by the bill; and (c) that no permit may be issued which would
violate water quality standards.
1H.R. 5966, an Administration proposal to amend section 10 of the Federal Water
Pollution Control Act, would, inter alia, authorize the Administrator of EPA to establish
water quality standards for the high seas applicable to the discharge of material trans-
ported from or originating within the United States. This would enable the Administrator
to regulate discharges from ocean outfalls, a category of discharge not covered by H.R. 4723.
97
4. Control over dumping is consolidated in HPA, an agency which has as its
chief purpose the protection of the environment, and which possesses the research
and regulatory capability necessary for developing and carrying out a compre-
hensive ocean dumping policy.
H.R. 3662
This bill provides that no person may dump waste material (comprehensively
defined) into the ‘‘ocean waters of the United States,” or “transport such ma-
terial through such waters” (presumably for dumping_ without a permit from
the Administrator of EPA. “Ocean waters” is defined to mean estuarine areas,
coastal waters (out to the three-mile limit), the Great Lakes, and waters above
the Outer Continental Shelf (from the three-mile limit to the 200-meter depth
contour). The “dumping” to which the bill applies includes disposal of ma-
terial by any means whatsoever. The Administrator would be authorized to
issue permits for dumping where he determines that it will not damage the
ecology of the marine environment, taking into account such factors as land-
based alternatives and the effect of the dumping on human health and welfare,
fisheries resources, and marine ecosystems. Permits would be required to specify
restrictions relative to the type and amount of material authorized to be dumped,
the location of dumping, and the duration of the permit. The Administrator
would not be allowed to issue permits authorizing the dumping of radioactive
wastes, toxic industrial wastes, or chemical or biological warfare materials. In
the case of permits for the dumping of sewage or industrial wastes, the Admin-
istrator would not be allowed to issue a permit (1) after January 1, 1972, unless
such wastes had received primary treatment; (2) after January 1, 1974, unless
they had also received tertiary treatment; and (3) after January 1, 1976, unless
they had also received tertiary treatment. The Administrator would have au-
thority to suspend, revoke, revise or condition permits. The Coast Guard would
be required to conduct surveillance and other appropriate enforcement activities.
Civil and criminal penalties would be the same as in H.R. 4723, except that
one-half of any penalty or fine would be payable to the informer providing the
information resulting in such penalty or fine. Equitable relief to redress viola-
tion would be available. The Administrator would be required to conduct the
investigation and research with respect to marine ecology necessary to carry
out the purposes of the Act; appropriations of $1 million per year would be
authorized for this purpose.
EPA is generally favorable to the provisions of H.R. 3662, which are similar
or identical in many respects to the provisions of the Administration’s proposal
set forth in H.R. 4723. However, EPA has the following major comments or
reservations about H.R. 3662:
1. The prohibition against transport through “ocean waters” (waters out to
the 200-meter depth contour) without a permit is not linked to the place of
origin of the transporting vessel. Insofar as this provision is made applicable
to vessels which are not leaving United States ports, it may violate the rights
of innocent passage and freedom of the seas under international law.
2. The prohibition against dumping between the 12-mile limit and the 200-
meter depth contour, regardless of the place of origin of the material to be
dumped, may also raise problems under international law.
3. EPA is opposed to the Act’s broad definition of “dumping,” which would
include continuous discharges from outfall structures which are already sub-
ject to regulation under the Federal Water Pollution Control Act, and, in the
case of industrial wastes, by the Refuse Act as well. The imposition of further
Federal controls over such discharges, in addition to those already provided
under the Federal Water Pollution Control Act and the Refuse Act, is duplicative
and unnecessary. There is no provision in the bill for supersession of existing,
overlapping legal authorities.
4, EPA is opposed to the provisions of the bill which would prohibit the Ad-
ministrator from issuing permits to dump specified categories of wastes. It is
agreed that, generally speaking, ocean disposal of radioactive wastes, toxic in-
dustrial wastes, and chemical and biological warfare agents is undesirable and
should not be allowed. However, there may be the rare exceptional case, e.g., reac-
tor components from nuclear powered vessels, in which ocean disposal will pres-
ent a lesser threat to human health, welfare or the environment than land-based
disposal. We favor the approach taken in H.R. 4723, which would give the Ad-
98
ministrator flexibility in developing an ocean dumping policy which would ttake
account of such special circumstances.
5. EPA is opposed to the provisions of the bill which would prohibit the Ad-
ministrator from issuing permits to dump sewage or industrial wastes which
have received less than a specified level of treatment. This provision appears to be
concerned with effluents from municipal and industrial waste treatment plants—
a category of discharge apparently within the Act’s definition of “dumping.” EPA
believes that such continuous discharges should continue to be regulated by the
Federal Water Pollution Control Act, rather than by a bill concerned primarily
with ocean dumping. Furthermore, a requirement of a specified level of treatment
for all discharges by a specified date fails to take into account variations in water
use designations, the quality or characteristics of the receiving waters, or other
factors which bear on the appropriate level of treatment in a given instance. The
provisions of the Federal Water Pollution Control Act governing the establish-
ment of water quality standards provide a more flexible and responsive vehicle
for the establishment of base levels of treatment.
6. While subsection (e) (2) of the bill provides that “nothing in this section
shall be construed as abrogating or negating any existing responsibility or au-
thority contained in the Rivers and Harbors Act of 1899,” any outstanding per-
mits authorizing dumping issued under that Act would apparently not survive
the enactment of this proposal, in view of subsection (e) (1) which provides for
the termination of such permits.
H.R. 4359 (also 4360, 4361)
This bill provides that no citizen of the United States or “other person” may
dispose of waste materials (comprehensively defined) inlto the oceans, coastal
waters, or estuarine waters of the United States or into the Great Lakes without
a permit from the Administrator of EPA. “Other person” is defined to mean
resident officers, directors or managers of foreign partnerships, associations, or
corporations doing business in the United States. The Administrator would be au-
thorized to issue permits under such terms as he determines necessary to insure
_ that the dumping will not damage the ecology of the marine environment. The
Administrator would not be authorized to issue permits for the dumping of radio-
active wastes, toxic industrial wastes, or chemical or biological warfare agents.
In the case of permits for the dumping of sewage or industrial wastes, he would
not be authorized to issue a permit (1) after January 1, 1972, unless such wastes
had received primary treatment; (2) after January 1, 1974, unless they had also
received secondary treatment; or (3) after January 1, 1976, unless they had also
received tertiary treatment. The Administrator would be authorized to prohibit
by regulation the disposal of any waste material which he determines may dam-
age 'the ecology of the marine environment. The Act would authorize the imposi-
tion of criminal fines as follows: fines of $2,000 to $10,000 per day of violation
for first offenses, and fines of $10,000 to $20,000 per day of violation for subse-
quent offenses. Vessels involved in violations would be forfeited to the United
States. The permit provisions of the Act would be enforced by EPA, the Secretary
of Transportation (Coast Guard), and the Secretary of the Army (Corps or En-
gineers) under regulations and operational directives jointly agreed to. The
Coast Guard would be empowered 'to stop, search and detain vessels, and district
courts would have jurisdiction to restrain violations.
The Secretary of Commerce, acting through NOAA, after consultation with
the Secretary of the Interior, EPA, and CEQ, would be directed to designate
as marine sanctuaries those areas of the Nation’s tidelands, Outer Continental
Shelf, seaward areas, and land and waters of the Great Lakes, which the Secre-
tary determines should be preserved or restored for their recreation, conserva-
tion, ecologic, or aesthetic values. The Secretary of the Interior would be pre-
cluded from issuing or renewing any license for the exploration, mining or re-
moval of any minerals, including oil and gas, from any area designated or under
study for possible designation as a marine sanctuary. HPA would be precluded
from issuing or renewing permits for dumping in such areas. $5,000,000 would be
authorized to be appropriated for studies in connection with the designation of
marine sanctuaries.
_ EPA is generally favorable to the provisions of this proposal, with the follow-
ing major reservations:
99
1. The bill applies only to dumping activities carried out by United States
citizens or other persons doing business in the United States. It would not cover
dumping in United States territorial waters, or transportation for dumping from
United States ports, carried out by persons lacking these connections with the
United States. EPA believes that this gap in coverage is both unnecessary and
undesirable.
2. The bill contains a broad definition of “dumping” which would include
continuous discharges from outfall structures. EPA is opposed to Federal permit
requirements applicable to such discharges for reasons discussed above in connec-
tion with H.R. 3662.
3. EPA is opposed to the dumping prohibitions affecting sewage, industrial
wastes. radioactive wastes, and chemical and biological warfare agents, for rea-
sons discussed above in connection with H.R. 3662.
4, The bill does not define its relationship with other laws dealing with Federal
permits for dumping, notably the Rivers and Harbors Act of 1899, which includes
the Refuse Act. Presumably the overlapping requirements of the Refuse Act
would remain in effect in areas in which both Acts apply. The bill states that
“other provisions of law which are in conflict with this Act are hereby repealed,”
but this provision does not solve the problem of duplicative, overlapping
requirements. |
5. The bill does not provide for administratively as well as judicially imposed
penalties, as both H.R. 4723 and H.R. 3662 do, but only for judicial fines. HPA
favors the approach taken in H.R. 4723 and H.R. 3662 since it would foster rapid
adjudication of violations by administrative personnel having the necessary ex-
pertise to deal with the problem.
6 The establishment of “marine sanctuaries” is beyond the scope of the Ad-
ministration’s bill, which deals entirely with the control of ocean dumping.
However, EPA is completely in accord that certain critical marine areas should
be protected from dumping, and would have this objective in mind in administer-
ing H.R. 4723, which provides ample authority to ban dumping in certain areas.
The relationship of the marine sanctuaries proposal to the land use programs
proposed by the administration in H.R. 4832 should be examined. Under H.R.
4332, the Secretary of the Interior would be authorized to make grants to States
to assist them in developing land use programs which would include State con-
trols over the use and development of ‘‘areas of critical environmental concern,”
defined in the bill to include coastal zones, estuaries, and the Great Lakes.
H.R. 1661 (also 5049, 5050)
This bill provides that no owner or master of a vessel may load or permit the
loading of any waste (comprehensively defined) while in any port of the United
States, if such waste is to be discharged in “ocean waters,’ unless such owner
or master first obtains a loading permit from the Administrator of EPA and
notifies the Coast Guard. ‘Ocean waters” is defined to mean “any estuarine
area, coastal waters, Great Lakes, territorial waters, and the high seas adjacent
to the territorial waters.” The Administrator would be required to issue loading
permits if he determines that dumping of the wastes into ocean waters will
not damage the ecology of the marine environment. He would be precluded from
issuing any permit for the discharge of any waste between the Continental Shelf
and the coast of the United States (meaning, it would appear, within the three-
mile territorial sea). The Administrator would have authority to ban loading,
transportation and dumping of matter deemed damaging to the marine environ-
ment or to human health or welfare. The Coast Guard would be required to
conduct surveillance and other appropriate enforcement activity. The bill would
authorize administratively imposed civil penalties as follows: up to $50,000
for the first violation, and up to $100,000 for each subsequent violation. Upon
failure of an offending party to pay a penalty, the Administrator would be au-
thorized to request the Attorney General to commence a district court action
for appropriate relief. Outstanding Federal permits authorizing any activities
to which the bill applies would be terminated as of the bill’s effective date.
EPA is generally favorable to H.R. 1661, with the following major reservations:
1. It would not apply, as H.R. 4723 would, to dumping of material in the
U.S. territorial sea or contiguous zone which is not loaded on vessels in United
States ports.
100
2. The definition of “ocean waters” may give some problems. The meaning
of “territorial waters” is not clear, although the term is probably intended to
be limited to offshore territorial waters, since inclusion of internal territorial]
waters would conflict with the generic ‘‘ocean waters.’ The scope of “high seas
adjacent to the territorial waters” is also not clear.
3. EPA has reservations about the provision which would prohibit the issuance
of permits for the disposal of wastes in the United States territorial sea. The
provision is unnecessary since under H.R. 4723 and similar bills the Adminis-
trator would have authority to prohibit dumping in such waters where appropri-
ate, and very little dumping is carried out in such waters in any event.
Furthermore, some carefully planned and controlled disposal of waste materials
in these waters may be desirable, e.g., the sinking of car bodies or other similar
material to serve as a shelter for fish.
AR. 1383 ; H.R. 805 (also 807, 808, 1329, 2581, and 5705)
Under H.R. 1388, the Secretary of the Interior, acting through the Fish and
Wildlife Service, would be required to establish standards applicable to the de-
posit or discharge into the ‘“‘coastal waters” of the United States of all industrial
wastes, sludge, and spoil, and all other materials that might be harmful to the
wildlife or ecology of these waters. These standards would require any person,
before discharging such materials into such waters, to present sufficient evid-
dence to sustain a burden of proof that such materials will not endanger the
natural environment and ecology of such waters. These standards would be re-
quired to be adopted and enforced by any agency of Federal or State government
that issues licenses for disposal of materials in coastal waters. The States would
be authorized to establish more stringent standards provided they contain ade-
quate procedures for enforcement. District courts would have jurisdiction to re-
strain violations. Violators of standards would be liable to civil penalties of not
more than $10,000 or less than $5,000 per day of violation. Outstanding Federal
permits would be terminated as of the effective date of the proposal.
H.R. 805 is essentially the same as H.R. 1383, except (1) the standards would
be established jointly by the Secretary of the Interior and the Administrator of
EPA; (2) the standards would be applicable to “ocean, coastal, and other wa-
ters” rather than simply to ‘coastal water,” and (3) EPA rather than the In-
terior Department would be the agency charged with administrative responsi-
bilities. In H.R. 805, ‘ocean, coastal, and other waters” are defined in the same
way as these words are defined in H.R. 4723, except that the bill’s application
to ocean waters would appear to be limited to the territorial sea and the con-
tiguous zone. The term “coastal waters’ as used in H.R. 1883 is not defined. The
words “deposit or discharge” as used in both bills would appear to embrace con-
tinuous discharges as well as intermittent dumping.
EPA is opposed to the enactment of these bills because they overlap existing
law. Water quality standards have already been established under the Federal
Water Pollution Control Act for all of the waters to which these bills relate ex-
cept the waters of the contiguous zone, a gap which will be closed if H.R. 5966,
an Administration proposal to amend the Federal Water Pollution Control Act,
is enacted. H.R. 5966 would also make these standards enforceable by civil
penalty and injunction. Under H.R. 4723, the Administration’s ocean dumping
proposal, the Administrator of KPA would be precluded from issuing permits
which violate water quality standards, and under the Refuse Act Permit Pro-
gram, the Corps of Engineers will not issue permits which violate or permit a
violation of these standards. Moreover, H.R. 1383 and 805. by calling for Federal
standards which shall govern unless the States adopt more stringent standards,
are inconsistent with the established policy of the Federal Water Pollution Con-
trol Act, which places the primary responsibility for the establishment of water
quality standards on the States.
H.R. 285 and H.R. 983
H.R. 285 would require the Secretary of the Interior, acting through the Fish
and Wildlife Service, after a two-year study, to designate those portions of the
navigable waters of the United States and of the waters above the Outer
Continental Shelf into which he determines that sewage, sludge, spoil and
other waste can be safely discharged (in terms of ecological and environmental
values). After making such designations, the Secretary of the Interior would
be required to establish standards applicable to the discharge of material within
101
such designated areas. The purpose of the standards would be to insure that no
damage to wildlife, or pollution of United States navigagle waters, results from
such discharges. States would be authorized to establish standards of equal or
greater stringency provided they contain adequate procedures for enforcement.
Discharges of sewage, sludge, spoil or other waste into any waters within the
jurisdiction of the United States which are not within a designated discharge
area would invite civil penalties of up to $10,000 per offense. Violators of
discharge standards applicable to discharge areas would be subject to comparable
civil penalties. District courts would have jurisdiction to restrain violations.
Outstanding Federal discharge permits would be nullified on the effective date
of the proposal. Thereafter, no Federal permits could be issued which would
authorize any activity prohibited by this bill.
H.R. 983 is the same as H.R. 285 except that (1) designation of discharge
areas would be carried out jointly by Interior and EPA; (2) standard setting
and enforcement would be carried out by EPA rather than by Interior; and (3)
the maximum authorized civil penalty per violation would be $40,000 rather than
$10,000. Both bills define covered “discharges” to include “any spilling, leaking,
pumping, pouring, emitting, emptying, or dumping.”
H.R. 285 and 983 are similar to H.R. 1383 and 805, discussed above, except that
they would be applicable to all United States navigable waters, and would call
for the designation of safe discharge areas as well as for the establishment of
discharge standards. EPA is opposed to the enactment of these bills for the
same reasons it is opposed to enactment of H.R. 1363 and 805: basically, the
fact that they are designed to accomplish, in a somewhat different way, what
is already being accomplished under the Federal Water Pollution Control Act.
The overlap is even greater than in the case of H.R. 1383 and 805, in view of
the broad application to all “navigable” waters. Interstate navigable waters
are already subject to the standard-setting provisions of the Federal Water
Pollution Control Act, and intrastate navigable waters will be brought within
the coverage of that Act if the Administration’s H.R. 5966 is enacted.
H.R. 1095
H.R. 1095 would require the Secretary of the Interior, acting through the
Fish and Wildlife Service, after a one-year study, to designate those portions
of the navigable waters of the United States and those portions of the waters
above the Outer Continental Shelf into which he determines that sewage, sludge,
spoil, landfill, heated effluents, or other wastes or substances cannot be safely
discharged, such areas to be known as “marine sanctuaries.’’ Persons who
discharge (defined to include spilling, leaking, pouring, etc.) any wastes or
substances into such designated waters would be subject to fines of up to $10,000
per offense. All Federal permits would be terminated to the extent that they
authorize any discharges into such areas, and no new Federal permits authoriz-
ing such dumping could be issued.
The Secretary of the Interior would be required to establish standards appli-
cable to the discharge of all wastes and substances into areas not so designated
as marine sanctuaries. Such standards would be for the purpose of insuring
against damage to marine life or wildlife, or pollution of United States navigable
waters. The standards would be required to provide that no sewage or industrial
waste may be discharged: (1) after January 1, 1973, unless it has received at
least primary treatment or its equivalent ; (2) after January 1, 1975, unless it has
received at least secondary treatment or its equivalent; and (38) after January 1,
1977, unless it has received at least tertiary treatment or its equivalent. States
would be authorized to establish standards of equal or greater stringency pro-
vided they contain adequate provisions for enforcement. Dischargers of any
waste or substance in violation of the established standards would be subject to a
civil penalty of not more than $10,000 per day of violation. All Federal permits
would be terminated to the extent they authorize discharges which violate such
standards. District courts would have authority to restrain violations.
The Secretary of Defense would be required to make a complete inventory of
all existing munitions, chemical, biological, and radiological warfare agents, and
other military materials, the disposition of which may present a danger to man,
the environment, or to fish and wildlife, and to determine the date beyond which
each such item cannot be safely retained. He would also be required to prepare
a plan for the demilitarization, detoxification or decontamination of such mili-
tary materials. After the date of enactment of the bill, he would be required to
102
determine such disposition dates and to prepare such disposition plans for any
new military materials prior to acquiring them. After the date of enactment of
the bill, all disposal of such military materials into any navigable or coastal
waters of the United States, or into any international waters, would be
prohibited.
EPA has the following comments with respect to this bill:
1. The establishment of “marine sanctuaries’ has been discussed above in
connection with H.R. 4359.
2. The establishment of discharge standards has been discussed above in
connection with H.R. 1383, 805, 285, and 983.
3. The prohibition against the discharge of sewage or industrial wastes which
have received less than a specified level of treatment has been discussed above
in connection with H.R. 3662.
4. EPA does not believe that a legislated ban on the dumping of military
materials is necessary. Recent policy declarations by the Department of Defense
indicate that an effective ban is already in effect or is being implemented.
Furthermore, as already discussed in connection with H.R. 3662, there may be the
rare exceptional case in which ocean disposal will present a lesser threat to
human health, welfare or the environment than land-based disposal.
H.R. 337 (also 549, 1381) ; H.R. 4584; H.R. 4217 (also 4218, 4719)
H.R. 387 would prohibit any person from discharging, into any of the navigable
waters of the United States or into international waters, any munition, or any
chemical, biological, or radiological warfare agent, or any other military material,
except in accordance with a certificate issued by the Council on Environmental
Quality establishing the terms, conditions and limitations of such disposal. H.R.
4584 is the same as H.R. 337, except that the certificate would be issued jointly
by EPA and NOAA rather than by CEQ. H.R. 4217 is the same as H.R. 4584,
except that the certifying authority would be EPA exclusively, and the bill’s
requirements would apply not only to military materials but also to “any other
refuse matter of any kind or description whatsoever.”’
EPA has the following comments on these bills:
1. All of them, applying to discharges by any person into international waters,
without regard to citizenship or point of origin of the discharged material, may
raise problems under international law.
2. EPA prefers the comprehensive approach taken in H.R. 4723, which would
apply a dumping permit requirement to a broad range of materials, including
military materials, to the ad hoc approach of H.R. 337 and H.R. 4584.
3. CEQ serves an advisory rather than a regulatory function and should not
be the certifying authority as provided in H.R. 337. CEQ supports H.R. 4723,
under which such regulatory authority would be vested in HPA.
4. With respect to discharges into navigable waters, H.R. 4217 duplicates the
requirements of the Refuse Act of 1899, which requires a permit from the Corps
of Engineers for the discharge of any refuse matter into navigable waters other
than refuse flowing from streets and sewers in a liquid state. Discharges not
covered by the Refuse Act are subject to control under the Federal Water Pollu-
tion Control Act, and proposed amendments thereto.
H.R. 336 (also 548, 1382, 1674)
This bill requires the CEQ to make an investigation and study of all aspects of
existing national policy with respect to the discharge of materials into the At-
lantic and Pacific Oceans, the Gulf of Mexico, and other waters within the terri-
torial sea or contiguous zone of the United States, and to report to the President
and Congress the results thereof, and its recommendations for a national ocean
dumping policy, including any treaties, agreements or legislation necessary in
connection therewith. EPA is of the opinion that CEQ has already performed this
task, as evidenced by its report entitled “Ocean Dumping—A National Policy”
submitted to the President in October, 1970. The Administration’s ocean dumping
bill, H.R. 4728, is based on the recommendations contained in that report.
The Office of Management and Budget has advised that there is no objection to
the presentation of this report and that enactment of H.R. 4723 would be in accord
with the program of the President.
Sincerely yours,
WILLIAM D. RUCKELSHAUS,
Administrator.
103
FEDERAL POWER COMMISSION,
Washington, D.C., April 16, 1971.
Combined report on H.R. 285, H.R. 805, H.R. 983, and H.R. 1095, 92d Congress,
related bills to amend the Fish and Wildlife Coordination Act
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Longworth House Ojjice Building, Washington, D.C.
DEAR Mr. CHAIRMAN: In response to your requests of February 9 and Feb-
ruary 17, 1971, we enclose 20 copies of the report of the Federal Power Com-
mission on the subject bills.
The Office of Management and Budget advises there is no objection to the
presentation of this report and, that enactment of H.R. 4723 would be in accord
with the program of the President.
Sincerely,
JOHN N. NASSIKAS,
Chairman.
FEDERAL POWER COMMISSION
REPORT ON RELATED BILLS, H.R. 285, H.R. 805, H.R. 983, AND H.R. 1095—-92D CONGRESS
H.R. 285, A bill, “To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by requiring the
designation of certain water and submerged lands areas where the depositing
of certain waste materials will be permitted, to authorize the establishment of
standards with respect to such deposits, and for other purposes.”
H.R. 805, A bill, “To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by providing for
orderly regulation of dumping in the ocean, coastal, and other waters of the
United States.”’
H.R. 988, A bill, “To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by requiring the
designation of certain water and submerged lands areas where the depositing
of certain waste materials will be permitted, to authorize the establishment of
standards with respect to such deposits, and for other purposes.”
H.R. 1095, A bill, “To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by requiring the des-
ignation of certain water and submerged land areas where the depositing of
certain waste materials is prohibited, to require the establishment of stand-
ards with respect to such deposits in all other areas, and for other purposes.”
H.R. 285 would amend the Fish and Wildlife Coordination Act to provide
additional protection to the ecology of the Nation’s marine and fresh waters by
authorizing the Secretary of the Interior acting through the Fish and Wildlife
Service to designate those portions of the navigable waters of the United States,
of the waters above the Outer Continental Shelf, and of the submerged lands
relating to those waters, on which sewage, sludge, spoil or other waste can be
safely discharged. H.R. 285 would direct the Secretary of the Interior to estab-
lish standards applicable to the discharge of material within designated dis-
charge areas “for the purpose of insuring that no damage to, or loss of, any
wildlife or wildlife resources or pollution of the navigable waters of the United
States will result from such activity.” The bill would also permit the States
to establish more stringent discharge standards. Initial designation of dis-
charge areas would be delayed for two years after enactment of the bill pending
completion of an investigation and study of potential discharge areas by the
Secretary of the Interior in cooperation with the Secretary of the Army acting
through the Chief of Engineers. H.R. 285 contains enforcement provisions (sub-
sections (g) and (k) and provides civil penalties for discharge of waste in
undesignated areas and for violation of applicable discharge standards (sub-
section (i) ). Subsection (j) provides that:
“(j) Upon the designation of waters or submerged lands under subsection
(a) of this section, all licenses, permits, or authorizations which have been
issued by any officer or employee of the United States under authority of any
other provision of law shall be terminated and of no effect to the extent
104
they authorize any activity prohibited by subsection (i) of this section. There-
after no license, permit, or authority shall be issued by any officer or employee
of the United States which would authorize any activity prohibited by sub-
section (i) of this section.”
H.R. 805 would require the Administrator of the Environmental Protection
Agency and the Secretary of the Interior (acting through the United States
Fish and Wildlife Service) in consultation with the Secretary of the Army
(acting through the Chief of Engineers), to establish standards for the dis-
charge of waste:
for the purpose of insuring that no damage to the natural environ-
ment and ecology including but not limited to marine and wildlife ecology
of the ocean, coastal, and other waters of the United States, will result from
any such activity. ...”
H.R. 805 would also permit the imposition of more stringent state standards.
H.R. 805 does not provide for the designation of areas within which waste may
be safely deposited. Instead, the bill would require any person, before depositing
or discharging industrial wastes, sludge, spoil or other materials into the ocean,
coastal, or other waters of the United States, to “present sufficient evidence to
sustain a burden of proof that such materials in the location in which they are
to he deposited will not endanger the natural environment and ecology of these
waters and to meet such additional requirements as the Administrator may
deem necessary for the orderly regulation of such activity.” The bill further
rovides in subsection (d) that the standards established ‘“‘shall be applicable
to all of the departments, agencies, and instrumentalities of the Federal Gov-
ernment, to the States and their agencies, including any person having any
license, permit, or other authorization from such State or agency for any such
activity with respect to any such ocean, coastal, and other waters.” The civil
penalties set forth under H.R. 805 are less stringent than those contained in
H.R. 285 and apply only to violations of discharge standards. Subsection (i) of
H.R. 805 is much more stringent than the parallel subsection (j) of H.R. 285
supra in that it provides:
““(i) Upon the effective date of this section all licenses, permits, or authoriza-
tions which have been issued by any officer or employee of the United States
under authority of any other provision of law shall be terminated.”
Unlike the parallel provisions’ in H.R. 285, H.R. 9838 and H.R. 1095, subsec-
tion (f) of H.R. 805, which relates to recordkeeping and reporting, does not
provide for confidential treatment of information relating to trade secrets.
H.R. 983 is substantially the same as H.R. 285, except for the following differ-
ences. Under H.R. 983, the Secretary of the Interior, acting through the Fish
and Wildlife Service, and the Administrator of the Environmental Protection
Ageney would have joint responsibility for designating discharge areas. How:
ever, H.R. 988 would give the Administrator of the Environmental Protection
Agency, instead of the Secretary of the Interior, sole responsibility for the
determination of applicable federal discharge standards. The civil penalties
which H.R. 983 would establish are the most stringent of those provided in
any of the bills included in this report.
H.R. 1095 is similar to both H.R. 285 and H.R. 805, but is drafted in a converse
form. Under H.R. 1095, the Secretary of the Interior, acting through the Fish
and Wildlife Service, would be authorized to designate those areas into and onto
which he determines certain waste materials cannot be safely discharged. Such
areas then would be known as “marine sanctuaries.’”’ Persons discharging waste *
in “marine sanctuaries” would be subject to heavy fines (Sec. 5B(e)). Initial
designation of these areas would be delayed for one year after enactment of the
bill pending completion of an investigation and study of potential “marine
sanctuaries” by the Secretary of the Interior in cooperation with the Secretary
of the Army acting through the Chief of Engineers.
Section 5B(d) of H.R. 1095 would provide that once such areas were designated
as “marine sanctuaries”.
“|. all licenses, permits, or authorizations which have been issued by any
officer or employee of the United States under authority of any other provision
of law shall be terminated and of no effect to the extent they authorize any
1H.R. 285, subsection (h) ; H.R. 983, subsection (h) ; H.R. 1095, section 5C(b).
2In describing the wastes affected by the bill, H.R. 1095, unlike H.R. 285, H.R. 805
and H.R. 983, refers specifically to heated effluents and to solid, liquid or gas wastes
(§§ 5B(e), 5C(a)).
105
activity prohibited by subsection (e) of this section. Thereafter no license, per-
mit, or authority shall be issued by any officer or employee of the United States
which would authorize any activity prohibited by subsection (e) of this section.”
Section 5C(a) of H.R. 1095 would require the Secretary of the Interior, within
one hundred and eighty days after the designation of areas as “marine sanc-
tuaries”’, to establish standards for the discharge of waste materials ? in all other
areas. The standard contained in this section is again a federal “no damage”
standard.’ The standard also includes requirements for the treatment of wastes
and like H.R. 805 would require persons before discharging wastes to ‘“‘present
sufficient evidence that discharging materials in the location in which they are
to be deposited will not endanger the natural environment and ecology” of the
navigable and coastal waters of the United States and international waters.
Subject to certain exceptions which would allow the States to establish more
stringent standards, these standards would be binding on the States and state
agencies as well as the Federal Government and all federal agencies. Section
50(b) would allow the Secretary of the Interior to appoint officers to enter and
inspect property, plants and facilities in order to determine whether there has
been compliance with this section.
Section 5C (f), of H.R. 1095 would provide that :
“(f) Upon the issuance of standards under subsection (a) of this section
applicable to any area, all licenses, permits, or authorizations which have been
issued by any officer or employee of the United States under authority of any
other provision of law with respect to discharges in an area shall be terminated
and of no effect to the extent they authorize any activity prohibited by subsection
(g) of this section.” *
Umike H.R. 285, H.R. 805, and H.R. 988, H.R. 1095 contains specific require-
ments for disposal of military materials including chemical, biological, and radio-
logical warfare agents.
It is not entirely clear from the language of the bills, what impact H.R. 285,
H.R. 805, H.R. 983 and H.R. 1095 would have on the Commission’s responsibilities
for licensing non-federal hydroe'ectric projects under Part I of the Federal Power
Act (16 U.S.C. 792-823), and for issuing certificates of public convenience and
necessity for the construction and operation of natural gas pipeline facilities under
Section 7 of the Natural Gas Act (15 U.S.C. 717f). It could well be argued that
the definitions of wastes used in the bills are not intended to encompass dis-
charges from non-federal hydroelectric power p'ants or from natural gas pipeline
facilities. H.R. 805 could have a similarly limited impact by virtue of its nar-
rower definition of “ocean, coastal, and other waters”.
The Commission opposes enactment of H.R. 805 in its present form because
subsection (i) would terminate all FPC licenses, permits and certificates on the
date H.R. 805 becomes effective. We believe that enactment of H.R. 805 would
seriously impair the attainment of an adequate supply of electric energy through-
out the United States. The proposed bill is contrary to the national policy of com-
prehensive development of the Nation’s water resources articulated in Part I of
the Federal Power Act. (First Iowa Hydro-Electric Cooperative v. F.P.C., 328 U.S.
152, 180-181 (1946).
While the Commission supports their basic intent, we question whether the
provisions in H.R. 285, H.R. 983 and H.R. 1095 represent the best or most orderly
means of achieving the general objectives of these bills. We believe that the com-
prehensive approach embodied in H.R. 4723, the Administration’s proposed
“Marine Protection Act of 1971” offers a significantly better solution to the grow-
ing problem of unregulated ocean dumping. Under that proposal the Adminis-
trator of the Environmental Protection Agency would be authorized to issue
permits for the dumping in the oceans, coastal and other waters of materials
which he determines ‘‘will not unreasonably degrade or unreasonably endanger
human health, welfare or amenities of the marine environment, ecological sys-
tems or economic potentialities”. In reviewing and evaluating individual permit
applications the Administrator wou'd apply criteria which extend to both (1)
the likely impact of the proposed dumping on human health and welfare and the
2 See footnote on p. 104.
3 “Such standards shall be for the purpose of insuring that no damage to, or loss of, any
marine life or wildlife or other resources necessary for the ecological balance of the area
or pollution of the navigable waters of the United States will result from any such
activity .. .”’ §5C(a).
4Subsection (g) would subject persons discharging wastes in violation of established
standards to heavy fines.
62-513 O—71——_8
106
marine environment and (2) alternative disposal locations, the probable impact
of requiring the use of such alternative locations and the public interest con-
siderations associated with issuing or denying permits. In establishing or revising
such criteria the Administrator would have the benefit of the comments and sug-
gestions of various Federal agencies, including those of the Federal Power
Commission.
The Commission also questions the practicality of the absolute “no damage”’
standard contained in the bills. In practice, this standard would have the effect
of prohibiting any discharge of waste material into navigable or coastal waters.
The federal “no damage” standard and the more stringent state standards
which could be imposed under H.R. 285, H.R. 805, H.R. 983 and H.R. 1095, could
well, if pressed too far, impair or defeat the attainment of other national ob-
jects, including the development of adequate utility services and the production
of needed supplies of industrial goods. The Commission is cognizant of the im-
portance of protecting marine and wildlife resources. However, the Commission
believes the more flexible case-by-case approach utilized in H.R. 4723, the Admin-
istration bill, would be preferable.
The Commission has no comments to offer on the provisions of H.R. 1095 which
relate to the disposal of military wastes.
The Office of Management and Budget advises there is no objection to the
presentation of this report and, that enactment of H.R. 4723 would be in accord
with the program of the President.
FEDERAL POWER COMMISSION,
JOHN N. NASSIKAS, Chairman.
DEPARTMENT OF HEALTH, HDUCATION, AND WELFARE,
May 21, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
Dear Mr. CHaIRMAN: This letter is in response to your request of February 19,
1971, for a report on H.R. 336 and H.R. 548, bills “To require the Council on
Environmental Quality to make a full and complete investigation and study of
national policy with respect to the discharging of material into the oceans.”’
These bills would provide that the Council on Environmental Quality make a
full and complete investigation and study of all aspects of existing national pol-
icy with respect to the discharge of any material of any kind into the waters of
the Atlantic and Pacific Oceans, the Gulf of Mexico, and any other waters within
the territorial sea and the contiguous zone of the United States. The bill provides
that upon completion of such investigation and study the Council would report
to the President and Congress its recommendations for a national policy with re-
spect to discharge into such waters. Such recommendations would include
treaties. agreements, and legislation necessary in connection therewith.
The Administrator of the Environmental Protection Agency transmitted to the
Congress on February 10, 1971, the Administration’s proposal, which is embodied
in H.R. 4247 and H.R. 4723, to regulate the dumping of waste material into the
oceans, coastal, and other waters of the United States. The need for such regu'a-
tion is made clear in the President's message of February 8, 1971, transmitting a
program to save and enhance the environment. This Department strongly sup-
ports the Administration’s proposal.
While this Department would defer to the views of the Council on Hnviron-
mental Quality and the Environmental Protection Agency with respect to whether
the study contemplated by H.R. 336 and H.R. 548 is necessary, it wou'd appear
that the bills’ basic objectives have already been achieved. In October 1970, the
President made public a Council on Environmental Quality report entitled “Ocean
Dumping: A National Policy,’ which included recommendations for a comprehen-
sive national policy in the area of ocean dumping and which was the basis for
the Administration’s proposed legislation.
We are advised by the Office of Management and Budget that there is no ob-
jection to the submission of this report, and enactment of H.R. 4247 or H.R. 4723
would be in accord with the Administration’s program.
Sincerely,
(S) Etrtotr lL. RIcHARDSON,
Secretary.
107
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
May 10, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
DEAR Mr. CHAIRMAN: This letter is in response to your request of February
26, 1971, for reports on H.R. 4247 and H.R. 4723, bills “To regulate the dumping
of material in the oceans, coastal, and other waters and for other purposes.”
These identical bills embody an Administration proposal transmitted to the
Congress by the Administrator of the Environmental Protection Agency on Fel
ruary 10, 1971. They would prohibit, except as authorized by the Administrator
of the Environmental Protection Agency, the transportation of material from the
United States for the purpose of dumping it into the “oceans, coastal, and other
waters,” and the dumping of material into the “oceans, coastal, and other waters’
of the United States. Nevertheless, the proposal would authorize the Adminis-
trator of the Environmental Protection Agency to issue permits for such pur-
poses where, in his judgment, such transportation or dumping will not unreason-
ably degrade or endanger human health, welfare, or amenities, or the marine
environment, ecological systems, or economic potentialities. It wou!d require the
Administrator to develop criteria for reviewing and evaluating the issuance of
such permits, after consultation with the Secretaries of Commerce, Interior,
State, Defense, Agricu!ture, Health, Education, and We!fare, and Transportation,
the Atomic Energy Commission, and other appropriate Federal, State, and local
officials.
In addition, the proposal would authorize the Administrator to designate
recommended sites for the dumping of specified materials. Provision would be
made for penalties for violation of the Act. The proposal would also direct the
Secretary of State, in consultation with the Administrator of the Environmental
Protection Agency. to seek effective international action and cooperation to en-
sure protection of the marine environment and would authorize him to formu-
late, present, or support specific proposals in the United Nations and other com-
petent international organizations for such purposes.
The need for this new program is made clear in the President’s message of
February 8, 1971, ‘Program for a Better Environment”. We urge its enactment.
We are advised by the Office of Management and Budget that enactment of
this proposal would be in accord with the Administration’s program.
Sincerely,
(S) Exziot L. RICHARDSON,
Secretary.
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., April 5, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
Dear Mr. CHAIRMAN: We respond to your recent requests for comment on H.R.
285. H.R. 805, H.R. 983, H.R. 1095. H.R. 1383, H.R. 1661, H.R. 3662, H.R.
4359, and H.R. 5050, bills which have as their common objective the regulation
of ocean dumping to retard degradation of the marine environment.
While these bills are similar in terms of the problem addressed. they can be
distinguished with resnect to the mechanism or procedure proposed as a solu-
tion to that problem. H.R. 285. H.R. 983. and H.R. 1095 would amend the Fish
and Wildlife Coordination Act to vest in the Secretary of the Interior and the
Administrator of the Environmental Protection Agency responsibility for the
designation of ocean sites into and onto which waste material could be safely
dumped. H.R. 1095 would require. further, that the Secretary establish environ-
mental standards for waste disposal in areas not so designated. and would estab-
lish a schedule for minimum treatment of sewage and industrial waste dis-
charged into areas subject to such standards. Each of these bills also provides
for the State aeccentance of disposal standards comparable to those promulgated
by Federal authority.
108
H.R. 805 and H.R. 1883 would also amend the Coordination Act by adding
new language, but contain no provision for the designation of recommended
dump sites. Rather, they provide for establishment of standards applicable to
ocean disposal ‘‘of all industrial wastes, sludge, spoil, and all other materials
that might be harmful to the wildlife or wildlife resources or to the ecology” of
ocean, coastal, and other waters of the United States. The Secretary of the In-
terior, in consultation with Chief of Army Engineers (H.R. 1883), or the Secre-
tary and the Administrator of the Environmental Protection Agency, in con-
sultation with the Secretary of the Army (H.R. 805) would be responsible for
promulgation of such standards.
H.R. 4359 would amend the so-called Estuary Protection Act of 1968 (82 Stat.
625) to prohibit the marine disposal of waste materials without an appropriate
permit from the Administrator of the Environmental Protection Agency and,
like H.R. 1095, to require advanced treatment of sewage and industrial waste.
Section 3 of H.R. 4359 would also direct the Secretary of Commerce to study
and select those areas worthy for designation as marine sanctuaries. H.R. 3662
provides for an amendment to the Coordination Act that would also prohibit
dumping without a permit from HEPA. This bill also contains provision for
treatment of waste material and the designation of recommended dump sites.
H.R. 1661 and H.R. 5050 are identical bills that would make it unlawful for
the owner or master of any vessel to load or permit the loading of waste for ocean
disposal without having first obtained a permit to do so from the Administra-
tor of EPA. The Administrator would be authorized to issue such permits, to
prohibit absolutely the loading, transporting or dumping of any material deemed
hazardous to human health or the marine environment, and to designate ocean
dump sites.
Each of these bills represents recognition of the need to control a practice that
now threatens our marine environment, and to prevent recurrence in ocean and
coastal waters of that blight which afflicts the Great Lakes. In recognition of
these same needs, President Nixon last year requested that the Council on En-
vironmental Quality study the problems posed by ocean dumping. We participated
in the conduct of that study, and were consulted during the preparation of
draft legislation to implement recommendations contained in the Council’s final
report, “Ocean Dumping—A National Policy’. That legislation is now pending
before your Committee as H.R. 4247 and H.R. 4723, and we recommend that it
be enacted in lieu of the bills discussed herein.
While specifics of the proposed ‘‘Marine Protection Act of 1971” are covered
in a sectional analysis submitted by EPA and in our report on the introduced leg-
islation, it should be noted that H.R. 4247 and H.R. 4723 combine several pro:
visions of the bills described above. The result, we believe, is a comprehensive
framework for regulating the transportation and dumping of wastes in the
oceans, coastal waters, and the Great Lakes. As several of the other bills propose,
a manadatory permit system would be administered by the Environmental Pro-
tection Agency. Permits for the transportation and ocean disposal of waste mate-
rial could be issued when the Administrator determines that such activity ‘will
not unreasonably endanger or unreasonably degrade human health, welfare, or
amenities, or the marine environment, ecological systems, or economic poten-
tialities’. The Administrator would also be authorized to prohibit the dumping
of a specified material. and to designate recommended dump sites.
This Department and others would be consulted by the Administrator in estab-
lishing criteria against which to measure permit applications. We believe that
such consultation will afford an opportunity to contribute our knowledge of the
marine environment, and to seek protection of the wildlife, recreation and min-
eral resources for which we have primary responsibility. In this connection, we
agree with the Council on Environmental Quality that regulatory authority
should be vested in an agency whose chief role is environmental control. Amend-
ment of the Fish and Wildlife Coordination Act for this purpose would tend to
disperse regulatory authority and to discourage effective coordination with pro-
grams already administered by EPA for the maintenance of air and water quality.
The Council’s study and implementing legislation proposed by the Environ-
mental Protection Agency are worthy of careful consideration and, as we recom-
mend, prompt approval by your Committee and the Congress. We believe that
109
enactment will help to curtail the use of our coastal waters for waste disposal
and contribute to the development of feasible land-based alternatives.
The Office of Management and Budget has advised that this report is in accord
with the program of the President.
Sincerely yours,
HARRISON LOESCH,
Assistant Secretary of the Interior.
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., April 5, 1971.
Hon. EpwArpD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
DEAR Mr. CHAIRMAN: We respond to your request of February 19 for comment
on H.R. 336 and H.R. 548, identical bills “To require the Council on Environ-
mental Quality to make a full and complete investigation and study of national
policy with respect to the discharging of material into the oceans.”’
ELRB. 336 and H.R. 548 would require that the Council on Environmental Qual-
ity make an investigation and study of national policy with respect to the dis-
charge of all materials into the territorial sea and contiguous zone of the United
States. Upon completion of its study, the Council would be required further to
report its findings, both to the President and the Congress, together with its rec-
ommendations for a national policy concerning such discharges.
Commenting last year on similar legislation pending before the 91st Congress,
we noted that President Nixon had already directed the Council to conduct such
a comprehensive study of ocean dumping, and to recommend such action as may
be appropriate to the establishment of a national policy on ocean dumping. Those
recommendations of the Council, “Ocean Dumping—A National Policy,’ were
endorsed by the President and transmitted to the Congress on October 7, 1970
(Congressional Record, Oct. 7, 1970, p. H9780; H. Doc. 91-3899). Further, a legis-
lative proposal to implement the Council’s recommendations, the “Marine Pro-
tection Act of 1971,” has been submitted to the 92nd Congress by the Environ-
mental Protection Agency as part of the President’s environmental program.
Thus, while we feel there is no longer a need for enactment of H.R. 336 or
H.R. 548, we urge that your Committee give prompt and favorable consideration
to the “Marine Protection Act of 1971.” We agree with EPA Administrator
Ruckelshaus that “this legislation would provide a comprehensive framework for
regulating the transportation and dumping of materials and forestalling pres-
sures to dispose of a vast new influx of wastes in the oceans, coastal waters and
the Great Lakes.”
The Office of Management and Budget has advised that there is no objection
to the presentation of this report from the standpoint of the Administration’s
program.
Sincerely yours,
HARRISON LOESCH,
Assistant Secretary of the Interior.
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., April 5, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DearR Mr. CHAIRMAN: We respond to your recent requests for comment on
E.R. 337, H.R. 549, H.R. 4217 and H.R. 4584, similar bills that would require
certification either by the Council on Environmental Quality, the Environ-
mental Protection Agency, or the National Oceanic and Atmospheric Adminis-
tration prior to ocean disposal of military waste material.
110
We recommend the enactment of H.R. 4247 or H.R. 4723, this Administration’s
proposal to regulate all ocean dumping and the transportation of material to be
dumped, in lieu of H.R. 337, H.R. 549, H.R. 4217, and H.R. 4584.
As the sponsors of these bills recognize, the unregulated ocean disposal of
military material, including obsolete munitions and chemical, biological or
radiological warfare agents, constitutes a grave threat to the marine environ-
ment. As we noted during hearings held last summer on the Army’s ““Opera-
tion Chase” by your Subcommittee on Oceanography, the disposal of wastes at
sea has been poorly monitored, making it difficult to measure the extent of dam-
age already done. We do know, however, that degradation of water quality and
physical alteration of marine habitat will take its toll from among species of
sport fish and other aquatic wildlife.
H.R. 4247 and H.R. 4723 would vest in the Administrator of the Environmental
Protection Agency responsibility for the issuance and enforcement of permits
to regulate all kinds of ocean dumping. We think it appropriate that such au-
thority be given to an operating agency broadly charged with protection of the
environment, and that its Administrator be required to establish environmental
standards for the transportation and disposal of all waste material, whatever
its source. It should be noted, too, that the Administrator would be empowered
to prohibit absolutely the dumping of a specified material when he finds that such
material cannot be dumped without harmful impact upon the marine
environment.
Thus, while we support the objectives of H.R. 337, H.R. 549, H.R. 4217, and
H.R. 4584, we believe that they can be best attained by the enactment of more
comprehensive legislation pending before your Committee as H.R. 4247 and
H.R. 4278.
The Office of Management and Budget has advised that there is no objection
to the presentation of this report from the standpoint of the Administration’s
program.
Sincerely yours,
HARRISON LOESCH,
Assistant Secretary of the Interior.
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., April 5, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives,
Washington, D.C.
Dear Mr. CHAIRMAN: We respond to your request of February 26 for comment
on H.R. 4247 and H.R. 4723, identical bills ‘‘To regulate the dumping of material
in the oceans, coastal, and other waters and for other purposes”, the “Marine
Protection Act of 1971’.
The Department of the Interior strongly recommends enactment of this Ad-
ministration proposal to provide long sought regulation of waste disposal in
ocean, coastal, and Great Lakes waters of the United States.
H.R. 4247 and H.R. 4723 would vest in the Administrator of the Environmental
Protection Agency authority to control ocean dumping of waste materials through
issuance of permits and enforcement of a prohibition against the unauthorized
transport or dumping of such material. In determining whether or not to approve
a permit application, the Administrator would be required to consider (1) the
impact of dumping on the marine environment and human welfare and (2) other
possible locations and methods of disposal, including land-based alternatives, but
in no event would a permit be issued for a dumping in violation of applicable
water quality standards. Section 5 provides authority to designate recommended
sites for the dumping of specified materials, and would allow the Administrator
to deny, alter or revoke a permit for the disposal of any material that could
threaten human health or the marine environment.
Jurisdiction would extend to all persons, including Federal, State, and foreign
governmental organizations, who seek to dispose in territoriai waters of the
United States or the adjacent contiguous zone, to the extent that such disposal
111
in the contiguous zone may affect the territorial sea or territory of the United
States. Section 6 provides a civil penalty of not more than $50,000 for each
violation of the prohibition against unauthorized transport or disposal and
criminal sanctions for knowing and willful violations. Surveillance would be
conducted by the Coast Guard, and legal action taken by the Attorney General
upon request of the Administrator. A thorough analysis of its draft bill was
transmitted to the Congress on February 10 by the Environmental Portection
Agency.
As your Committee is aware this Department has frequently expressed its
opposition to the use of ocean waters for waste disposal. Implicit in our opposition,
to all ocean dumping, however, has been the recognition that feasible alternatives
are not always available. Our concern for the environmental effects of uncon-
trolled dumping led to recent studies of the New York Bight and participation
in the review of ocean dumping generally which preceded the issuance on Octo-
ber 7, 1970 of ‘(Ocean Dumping—A National Policy”, a report prepared by the
Council on Environmental Quality.
We participated, too, in the preparation and review of legislation to implement
the Council’s recommendations. The bills now pending before your Committee,
H.R. 4247 and H.R. 4723, are the end result of close cooperation among those
several Federal agencies with responsibility for the protection, conservation and
management of our Nation’s natural resources. The Department of the Interior
will provide whatever assistance it can to the Administrator of the Hnviron-
mental Protection Agency under section 5(a) of the Marine Protection Act of
1971.
President Nixon noted in his environmental message of February 8 that
ocean disposal has a number of harmful effects, including destruction of marine
life, decreased abundance of fish and other economic resources, modification of
marine ecosystems, and impairment of aethetic values. We urge prompt enact-
ment of H.R. 4247 or H.R. 4723, as the President suggested, “to assure that our
oceans do not suffer the fate of so many of our inland waters, and to provide the
authority needed to protect our coastal waters, beaches, and estuaries”.
The Office of Management and Budget has advised that this report is in accord
with the program of the President.
Sincerely yours,
HARRISON LOESCH,
Assistant Secretary of the Interior.
os
DEPARTMENT OF THE NAVY,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, D.C., April 21, 1971.
Hon. Enpwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives,
Washington, D.C.
DeEAR Mr. CHAIRMAN: Your request for comment on H.R. 4359, a bill ‘“‘To amend
the Act of August 3, 1968 (82 Stat. 625), to protect the ecology of estuarine areas
by regulating dumping of waste materials, to authorize the establishment of a
system of marine sanctuaries, and for other purposes,’ has been assigned to this
Department by the Secretary of Defense for the preparation of a report expressing
the views of the Department of Defense.
The purpose of the bill is to amend the Act of August 3, 1968 (82 Stat. 625), to
provide for the protection of the ecology of estuarine areas by regulating the
dumping of waste materials, the authorization of the establishment of a system
of marine sanctuaries, and the implementation of these general goals.
The Department of the Navy, on behalf of the Department of Defense, is
deeply concerned about the adverse ecological and environmental effects asso-
ciated with the discharge of wastes and other materials into the oceans, coastal,
and other waters. We are also concerned, however, that certain features of H.R.
4359 could unnecessarily prohibit some important activities not necessarily harm-
ful to the marine environment. We are especially concerned that the proposed
new section 7(c) (1) to the Act of August 3, 1968, as set forth in section 3 of
112
H.R. 4359, could be construed to preclude operation of U.S. nuclear powered war-
ships, including the strategic deterrent Fleet Ballistic Missile Submarine force.
Such a result would be untenable to the security of the United States.
We are also concerned that the bill could be construed to apply to areas over
which the United States does not have jurisdiction. Under international law a
state has complete jurisdiction over its territorial seas, subject only to the right
of innocent passage. The United States’ territorial waters extend three miles sea-
ward from the mean low-water line. Beyond this territorial sea the United States
has sovereign rights for the purpose of exploring and exploiting the natural
resources of its continental shelf and also has the right to enforce its customs,
fiscal, immigration or sanitary regulations within a zone of the high seas
contiguous to its territorial sea. (Article 2, 1958 Geneva Convention on the
Continental Shelf, TIAS 5578; Article 24, 1958 Geneva Convention on the Terri-
torial Sea and the Contiguous Zone, TIAS 5639). Under the 1958 Geneva Con-
vention on the Territorial Sea and Contiguous Zone the extent of the contiguous
zone must be no more than 12 nautical miles. In addition, customary international
practice presently recognizes the coastal state’s right to control fishing within
12 miles of its coast. In consonance with the recognized international practice, a
9-mile fisheries zone contiguous to the United States 3-mile territorial sea was
established by the United States in 1966 (Public Law 89-658; 16 U.S.C. 1091-1094) .
As presently formulated, H.R. 4859 would provide for unilaterial United
States regulation and control of activities well beyond these specialized juris-
dictional rights recognized under international law. Such unilateral claims which
go beyond the confines of recognized international law, although couched in terms
of domestic legislation, can and frequently are used as a basis for exaggerated
offshore jurisdictional claims by other nations. Such unwarranted extensions of
offshore jurisdiction erode the principle of freedom of the high seas which is
essential for naval mobility.
H.R. 4859 would authorize the Secretary of Commerce to designate as marine
sanctuaries those areas which the Secretary determines should be preserved or
restored. The exercise of this authority conceivably could restrict or prohibit
research, development, testing, survey work, or training exercises conducted hy,
or under the sponsorship of, the Department of Defense, without prior coordina-
tion with the Department of Defense.
The Department of the Navy, on behalf of the Department of Defense, believes
that the Administration’s well drafted, comprehensive bill, H.R. 4723, intro-
duced by you on February 22, 1971, to the 92nd Congress, realistically provides
for the intent expressed in H.R. 43859 with respect to preventing harmful, unregu-
lated dumping into the oceans, coastal, and other waters. The Department
of the Navy, on behalf of the Department of Defense, therefore favors H.R.
4728, in lieu of H.R. 43859.
This report has been coordinated within the Department of Defense in ac-
cordance with procedures prescribed by the Secretary of Defense.
The Office of Management and Budget advises that, from the standpoint of
the the Administration’s program, there is no objection to the presentation of
this report for the consideration of the Committee.
For the Secretary of the Navy.
Sincerely yours,
LANDO W. ZECH, Jr.,
Captain, U.S. Navy,
Deputy Chief.
DEPARTMENT OF STATE,
Washington, D.C., April 22, 1971
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
Dear Mr. CHarrMAn: Thank you for your letter of February 17 giving this
Department the opportunity to comment on H.R. 1095, a bill to amend the fish
and wildlife coordination act to provide additional protection to marine and
wildlife ecology by requiring the designation of certain water and submerged
land areas where the depositing of certain waste materials is prohibited, to
113
require the establishment of standards with respect to such deposits in all
other areas and for other purposes.
The Department of State in agreement with the general intent of Section
5 B(a) of this bill to establish marine sanctuaries—but only insofar as those
sanctuaries would be within the territorial sea limits of the United States. The
United States may, of course, restrict dumping within its territorial sea. Beyond
that, the Geneva Convention on the Territorial Sea and the Contiguous Zone
provides that a coastal state may, in a zone of high seas contiguous to its ter-
ritorial waters, prevent infringement of its customs, fiscal, immigration or sani-
tary regulations within its territory or territorial sea. The United States may,
therefore, restrict dumping in the contiguous zone which would contravene the
sanitary regulatoins of its territory or territorial sea. The high seas beyond the
12-mile limit of the contiguous zone are, however, entirely beyond U.S. juris-
diction.
The Department notes that the establishment of sanctuaries in or under inter-
national waters would require international action and thus could not be
accomplished unilaterally.
The Department is also in favor of the establishment of general dumping stand-
ards in areas other than marine sanctuaries as provided in Section 5C—but
only insofar as they apply to United States nationals or to areas under the
jurisdiction of the United States. Again, the establishment of dumping stand-
ards for foreign nationals in international waters would require international
action and could not be accomplished unilaterally. The Department would pro-
pose that the general problem of ocean dumping as discussed in this Section of
the bill be dealt with by a comprehensive regulatory measure such as that
proposed in H.R. 4247 which would prohibit the transport from the United
States by any person of material to be dumped in the ocean without a permit.
The Department sees no objection to the enactment of Section 5 D as far as
the foreign policy interests of the United States are concerned.
The Office of Management and Budget advises that from the standpoint of
the Administration’s program, there is no objection to the submission of this
report.
Sincerely yours,
Davip M. ABSHIRE,
Assistant Secretary for
Congressional Relations.
DEPARTMENT OF STATE,
Washington, D.C., April 21, 1971.
Hon. Epwarp A. GARMATZz,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
DEAR MR. CHAIRMAN: Thank you for your letter of February 26, 1971, request-
ing the views of the Department of State on H. R. 1661, a bill to regulate the dis-
charge of wastes in territorial and international waters.
The Department of State agrees that there is a need to regulate dumping in
order to protect the marine environment in the oceans. Also, it is clear that there
is growing international concern over the effects of indiscriminate ocean
dumping.
From the viewpoint of foreign policy and international law, the Department of
State has no objection to the enactment of this bill. However, the Department
favors the adoption of H. R. 4247, the Marine Protection Act of 1971, which is
before your Committee for consideration.
The Office of Management and Budget advises that from the standpoint of
the ae arablonts program there is no objection to the submission of this
report.
Sincerely yours,
Davin M. ABSHIRE,
Assistant Secretary for
Congressional Relations
114
DEPARTMENT OF STATE,
Washington, D.C., April 21, 1971.
Hon. EpwArD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DEAR Mr. CHAIRMAN: Thank you for your letter of March 9, 1971, requesting
the views of the Department of State on HR 3662, a bill to amend the Fish and
Wildlife Coordination Act in order to protect the marine environment by regu-
eee the dumping of wastes in the coastal and ocean waters of the United
tates.
The Department of State is in agreement with the need to protect the marine
environment by regulating dumping. However, we wish to point out two problems
of international law raised by the present language in HR 3662.
Section 5B (a) provides that “no person may dump waste material into the
ocean waters of the United States or transport such material through such
waters unless he has first obtained a permit from the Administrator of the En-
vironmental Protection Agency authorizing such dumping” (emphasis added).
The Geneva Convention on the Territorial Sea and the Contiguous Zone, to
which the United States is a party, provides the right of innocent passage through
territorial waters for all vessels. Article 14 (4) of that Convention states that
passage is innocent so long as it does not prejudice the peace, good order
or security of the coastal State. This provision places on the United States an
international legal obligation not to restrict, prevent or regulate passage through
its territorial waters except on the above grounds. The simple transport of waste
material through United States territorial waters would not be considered
prejudicial to the peace, good order or security of the United States. Of course,
the United States does have jurisdiction to control the transport from its terri-
tory of materials to be ocean dumped. Therefore, the Department of State
recommends that the phrase on lines seven and eight of Section 5B (a) “trans-
port such material through such waters” be deleted.
In addition, Article 24 (1) of the Convention provides that a coastal State may,
in a zone of high seas contiguous to its territorial sea, prevent infringement of
its customs, fiscal, immigration or sanitary regulations within its territory or
territorial sea. The United States may, therefore, restrict dumping in the con-
tiguous zone which would contravene the sanitary regulations of its territorial
sea or territory. However, the high seas beyond the 12-mile limit of the con-
tiguous zone are entirely beyond United States jurisdiction.
The Department of State strongly favors enactment of comprehensive legisla-
tion to regulate ocean dumping. It is quite clear that indiscriminate ocean dump-
ing of waste products from the United States in the territorial waters and con-
tiguous zone and on the high seas is a matter of great international coneern. In
order to regulate such activities the Department of State favors the adoption
of HR 4247, the Marine Protection Act of 1971, which is before your committee
for consideration.
The Office of Management and Budget advises that from the standpoint of the
Administration’s program there is no objection to the submission of this report.
Sincerely,
Davip M. ABSHIRE,
Assistant Secretary for
Congressional Relations.
DEPARTMENT OF STATE,
Washington, D.C., April 7, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DEAR Mr. CHAIRMAN: The Secretary hias asked me to respond to your letter of
February 11, 1971 on H.R. 549, and your letter of February 25, 1971 on H.R.
337 and H.R. 4217, bills concerning the discharging of material into any of the
navigable waters of the United States.
The proposed bills would regulate discharges in international waters by any
person of certain materials. There is no basis in international law for an exer-
cise of jurisdiction over the conduct of foreign nationals on the high seas. We
would propose that this problem be dealt with in the context of a comprehensive
regulatory scheme such as that proposed in H.R. 4247, the Administration’s pro-
115
posed “Marine Protection Act of 1971.” That proposal would meet the essential
objectives of the subject bills by prohibiting the transport from the United States
by any person of material to be dumped in the ocean without a permit.
The Office of Management and Budget advises that from the standpoint
of the Administration’s program there is no objection to the submission of these
reports.
Sincerely yours,
DaAvip M. ABSHIRE,
Assistant Secretary for
Congressional Relations.
DEPARTMENT OF STATE,
Washington, D.C., April 21, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives.
DEAR Mr. CHAIRMAN: Thank you for your letter of March 9, 1971 requesting
the Department of State to comment on H.R. 1383, a bill to amend the Fish and
Wildlife Coordination Act to provide additional protection to marine and wild-
life ecology by providing for the orderly regulation of dumping in the coastal
waters of the United States.
The Department of State shares the concern regarding the protection of the
marine environment to which H.R. 1383 is directed and has no objection to its
enactment from a foreign policy viewpoint. However, the Department would
prefer a more comprehensive proposal to regulate the dumping of materials in
the oceans as contained in the Marine Protection Act of 1971 (H.R. 4247 or H.R.
4723).
The Office of Management and Budget advises that from the standpoint of the
Administration’s program there is no objection to the submission of this report.
Sincerely yours,
DaAvip M. ABSHIRE,
Assistant Secretary for
Congressional Relations.
DEPARTMENT OF STATE,
Washington, D.C., April 7, 1971.
Hon. EpwarpD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of Representa-
tives, Washington, D.C.
DrsaR Mr. CHAIRMAN: The Secretary has asked me to reply to your letter of
February 26, 1971, enclosing for the Department’s comments copies of H.R.
4247 and H.R. 4723, bills cited as the “Marine Protection Act of 1971”.
The Department’s views on this legislation, which we fully support, are set
forth in the prepared statement delivered to your Committee in advance of the
hearings today at which the Department’s Legal Adviser, John R. Stevenson, is
testifying on this general subject.
The Department recommends favorable action on this legislation which the
Office of Management and Budget advises is in accord with the program of the
President.
Sincerely yours,
Davip M. ABSHIRE,
Assistant Secretary for
Congressional Relations.
(The position paper referred to follows:)
ANNEX I.—POSITION PAPER ON OCEAN PROTECTION
THE NEED
The oceans, the common heritage of mankind and essential to his survival, have
always been regarded as too vast and productive to be damaged by man. But
today we know that existing threats to the health and productivity of the oceans
are both real and grave. We can no longer afford the myth that the oceans are
an unlimited cornucopia for exploitation by mankind.
116
Man poses two direct threats: overexploitation and pollution. Through over-
fishing some species, such as the Blue Whale, the largest animal ever to exist
on the Earth, have been virtually exterminated. Pollution in the form of oil
spills, pesticides, radioactive material and other toxic substances, is increasing
rapidly.
Man’s impact on the marine environment also occurs through the simplifica-
tion of a complex ecosystem through arbitrary selection in species and fish
population. The elimination of competing predators to increase production from
a fishery or the elimination of an anadromous fish environment in order to extend
irrigation agriculture, can be guaranteed to produce adverse environmental
consequences.
Existing institutions have not yet been able to prevent pollution or overfishing.
A few efforts, now under way, show some small signs of success in handling parts
of the problem but new and innovative efforts are urgently required. The urgency
stems from the fact that the time scale within which we must respond may be
measured in years, not decades.
Additionally, the growing pressures upon the resources of the sea will make
the solution of these problems even more difficult.
Oceans, atmosphere and land are interdependent: a disturbance in one is
quickly reflected in the others. A particularly critical area is the coastal zone,
where the land meets the sea—and much of the seafood used by man depends
directly or indirectly upon this zone. Exploitation and pollution in the estuaries
and continental shelf area thus pose significant threats to the health of a great
portion of the world fishery.
A decline in the productivity of the oceans, combined with rising population
levels, would cause serious problems for any nation. To the underdeveloped coun-
tries, this represents imminent disaster.
In the past the developed countries, owing to their advanced technology, have
taken the greater share of marine resources without proper measures to induce
rational utilization. If this trend continues the developing nations will never
receive their equal share of this finite resource. The present catch from the world’s
oceans might, under ideal conditions be increased by a factor of 50% to 200%.
Increasing pollution of the oceans however must and will decrease their pro-
ductivity, and the nevitable losses will be suffered by those who can least afford
them.
Some believe, almost as an article of faith, that when the problems of the oceans
become sufficiently acute, technology will somehow produce a miraculous cure.
The history of the deteriorating aquatic environment does not support this faith.
Until better evidence is available that irreversible changes are not taking place.
reason demands that we proceed more carefully, with greater concern for the
health of the seas. Mankind cannot assume the risk of precipitating irreversible
changes.
THE POTENTIAL THREAT
Without positive protection of the oceans, we can anticipate with varying
degrees of certainty and severity:
Diminution or destruction of coiastal and oceanic fishery resources through
physical, chemical and/or biological disturbances in the ecosystem.
Inadvertent modification of weather and climate, inadequately monitored
by existing or planned weather systems, in time producing major adverse
changes in ecosystems.
Disturbance of the diversity, stability and productivity of the oceans.
Accelerating reduction in the recreational value of the oceans.
THE PROPOSALS
1. We recognize the need for the conservation and rational use of the ocean
environment consonant with the foregoing discussion, organized to assure the pro-
tection and rational use of the oceans for the benefit of all nations, particularly
the undeveloped nations.
2. To work toward this goal, we urge governments jointly to strengthen
existing international organizations concerned with the ocean-atmosphere enyiron-
ment and we stress the value and importance of non-governmental public service
groups to support this concern.
117
3. We recognize the need for the development of an international network of
monitoring stations for the ocean-atmosphere environment coup'ed with adequate
facilities for data collection and distribution to nations and organizations
desiring them.
4. We further recommend that the following functions be considered as integral
to the establishment of any organization purporting to act for the protection of
the ocean-atmosphere environment :
(a) long-range forecasting and evaluation of data, including (where
appropriate) simulation studies.
(b) continuing surveillance of potential long and short-range problems,
specifically incorporating means for providing public information and rec-
ommendations for action.
5. We express the strong hope that preparations for the United Nations Con-
ference on the Human Environment will lead to carefully prepared interna-
tional conventions covering the primary threats to the ocean ecosystems (see
attached Appendix).
6. We propose that an interdisciplinary interim committee be established to
refine and develop recommendations 1-3 above, including the preparation of
progress reports to the participants in this convocation.
7. Finally, we express gratitude to the Center for the Study of Democratic
Institutions, with particular reference to the work of Mrs. Hlisabeth Mann
Borgese, for its Jeadership in preparing for and conducting the present con-
vocation and we hope that its work on behalf of an effective Ocean Regime will
continue undiminished.
APPENDIX
1. Effective international regulations are necessary to prevent irreversible
changes in the ocean environment. Areas in which such regulation may be appro-
priate include:
(a) Prohibition of emission of oil into the oceans.
(0) Prohibition or reduction of the manufacture and use of persistent
environmental poisons, such as certain pesticides, and heavy-metal com-
pounds.
(c) Rules for the transportation of toxic substances harmful to the
environment.
(d@) Rules for the storage and final disposal of environmental poisons and
radioactive materials.
(e) Rules to prevent overfishing of certain stocks.
2. There is a need for education and training in both developed and especially
underdeveloped and developing countries with respect to the ecological require-
ments of international planning and development. We recommend the setting up
of training centers and the publishing of supporting information to this end. as
well as the dissemination of relevant information produced by existing organiza-
tions and those organizations established pursuant to the Malta recommendations
of July 1970.
3. We realize that an increase in the number of organizations working on behalf
of the world’s oceans adds to the difficulty of coordinating the work of the
new with that of the old, and also adds to the probability of duplication. How-
ever, we also believe that the increase in organizational complexity is a con-
comitant of expanding population and technology. Moreover, accelerating threats
to the ocean ecosystems and the need for innovative and rapid corrective action
require adding to the diversity and consequent strength of the forces available
to mankind to protect the global environment.
Mr. Lennon. Our first witness is a very distinguished and able
member of our full committee, the Honorable John M. Murphy.
_ Let me see if the distinguished member from Florida, Mr. Fascell,
is here. I don’t know whether Congressman Whitehurst, Congress-
man Pepper, and the chairman of the full committee are here or not,
but we will, gentleman, with your permission, hear the several Mem-
bers of Congress in the order that I have called them and with your
118
permission we will defer questioning of the Members of Congress until
they have finished, if there is no objection to that, because we have to
be ready at 11 o’clock to hear Chairman Train.
Now, if you gentlemen have something that you would like to have
goon the record, you can appeal to the Chair to rescind that decision
I have just made.
We welcome you, Mr. Murphy.
STATEMENT OF HON. JOHN M. MURPHY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Murenuy. Thank you, Mr. Chairman.
Since I last testified before this committee, the administration has
conducted a massive study of ocean dumping. In October of 1970, the
Council on Environmental Quality issued a complex report of its
findings and recommendations. I find myself in almost complete agree-
ment with them, at least as far as they go.
This is not unusual as they follow the precepts that I outlined in
the bill I introduced 1 year ago and in my testimony before the com-
mittee on July 27, 1970. In the meantime, nothing much has been done
by the administration in the way of substantive action, and an addi-
tional 620 billion gallons of garbage have been dumped into New York
Harbor.
During that year, another 16,400 billion gallons of industrial waste
were poured into our rivers, lakes, and coastal waters; 7,300 billion
gallons of waste water were pumped into our sewers.
Lake Erie, one of our many “dead seas,” received its annual 3
million tons of pollutants.
Almost 40 million tons of dredge spoils were dumped on our coastal
waters, 14 million tons of which were polluted.
Five million tons of industrial wastes polluted our seas.
Four and a half million tons of sewage sludge were dumped at
sea, 4 million tons off New York Harbor alone.
I will agree with the conclusion of the report that “the volume of
wastes duniped in the ocean is increasing rapidly, that many are
harmful or toxic to marine life, hazardous to human health, and
esthetically unattractive.”
However, I cannot and will not accept the conclusion of the report
that the volume of ocean-dumped wastes will “increase greatly” in
the future. We cannot let this happen. This committee has the power
to stop it. The solution, however, will not be found by creating more
pollution farther out to sea; the solution will come from our scientists
and other ecology experts who must be given a firm mandate to find
new answers to the disposal of our cosmic trash problem. Otherwise,
we are all going to end up, those of us left alive, living on one gigantic
garbage pile.
The issues are clear and simple. We are throwing too much of so-
ciety’s excrement into our water and it is coming back to haunt us.
If I cannot appeal to you on esthetic or ecological grounds let me do
it on a gastronomical level. Your very lives may depend on it.
How many would enjoy a lobster salad at lunch knowing that shell-
fish have been found containing hepatitis virus? How many would
119
enjoy a lobster dinner not knowing if it came from those polluted
areas where shellfish contain concentrated polio virus 60 times that of
the fish in surrounding waters? Pollution has already closed 20 per-
cent of our commercial shellfish beds and of the large clam industry
areas, particularly in my area.
Oil in the water is a real killer of our marine life, but it may come
to the time where it has a second strike capacity—it may kill human
beings. Direct contact with the breathing apparatus of undersea life
kills many and weakens others. Cancer in fishes is a likely result of
oil pollution with cancers, growths, and concentrated cancer produc-
ing agents being found in a variety of marine life exposed to those
parts of the ocean polluted by oil refineries. Oysters and mussels from
polluted areas have been found to contain concentrations of hydro-
carbons known to cause cancer in man. And don’t think because your
oysters are fried you’re safe. These potentially lethal hydrocarbons,
oneness and invisible, are still locked into seafood tissues even after
rying.
Food and Drug Administration scientists say it is possible that
these cancerous fish could cause cancer in humans, although they have
not had medical evidence of this yet. I, for one, do not want to take
that chance and J don’t think the American people want to take that
chance, either.
For those of you who are clam lovers, I would remind you that
clams harvested from the New York Bight contained coliform bac-
teria 50 to 80 times above acceptable levels set by the Food and Drug
Administration. And when you consider the poor little shrimp, I
call attention to the ironic case in Florida where uncontaminated
shrimp were contaminated by being cleaned on land with polluted
water taken from the harbor at Key West.
Of course, the recent mercury pollution flap is receding from our
minds, but let us not forget that mercury contamination is still with
us; it will be with us for a long time, and its dangers are still very real.
You may remember my statement last July when I described the
greatest cessnool of our seas, the New York Bight. I carefully out-
lined the “plight of the bight” in my remarks then. Nothing has
changed, but the fact is that pollution in our harbor is getting worse.
The importance of all this is that it is not only happening in the
New York area but in all coastal areas of the United States. There are
121 other ocean-dumning sites on the Atlantic coast, 56 on the gulf
coast, and 68 on the Pacific coast, where we are dumping upward of
50 million tons of trash from tin cans to cannons and poisonous iso-
tones to poisoned gas.
New York and its own “dead sea” is being emulated by a string of
fledzing dead seas from Maine to Washineton State, and we must not
forget our polluted inland waterways and lakes that are fast turning
into a massive national disgrace.
T have an exnlanation of mv bill that I have submitted in two Con-
eresses now, H.R. 285. H.R. 285 offers a total program for the solu-
tion of the water pollution problem not only in New York Harbor
but throughout America wherever wastes are disposed of in our waters.
In a nation where 85 nercent of the population lives in the coastal
environment, and in which 100 percent of the people depend on that
120
environment, the problem is nationwide in scope and needs a com-
prehesive national solution.
The bill amends the Fish and Wildlife Coordination Act to provide
additional protection to marine and wildlife ecology by requiring the
designation and regulation of certain water and submerged-land areas
where the depositing of any waste material will be permitted. The bill
established a mechanism for developing effective disposal standards
within these areas and provides that all other marine areas will be
maintained in a “no dumping” status and preserved and protected as
marine sanctuaries.
The guiding principle is to require the Secretary of Interior or the
new Environmental Protection Agency to identify and designate
those areas in which certain dumping can be safely accomplished.
For example, some quantities of cellar dirt may be safely dumped on
the Continental Shelf without damaging the ecology of the marine
environment if carefully controlled and regulated. Elsewhere the bot-
tom configuration and other factors may permit disposal of certain
chemicals or other wastes that are absorbed into the water without
causing imbalance.
There has never been a comprehensive program to determine what
kinds can be safely disposed of in which waters. Previously, factors
such as effects on navigation and distance from population centers
were considered but specific ecological effects were generally ignored.
My bill tasks the Secretary of Interior—or EPA—with studying
the national marine envirenment with a view to identifying each river,
harbor, and coastal area and designating which of these areas can
accept certain types of waste disposal. Standards for the types and
amount of dumping would follow in cooperation with the States and
the vast majority of our marine environment would be maintained
as disposal-free marine sanctuaries where wildlife and fish could exist
without the threat of foreign introduction of harmful materials.
The bill includes stiff penalties which I am convinced are justified
for dumping in nondesignated areas and for illegal dumping in desig-
nated areas: $10,000 per day, per violation, with each day of violation
constituting a separate offense. Two years are permitted for com-
pletion of the study and identification and designation of disposal
areas, and the Secretary of Interior—or EP A—is required to cooperate
with the Secretary of the Army in the execution of the study of poten-
tial water and submerged-land areas.
Following formal designation by Interior—or KPA—all existing
licenses will be revoked and suspended and the Army Corps of En-
gineers will receive new applications for controlled disposal in des-
ignated areas. Enforcement of dumping standards—standards based
on the capacity of a specific marine area to absorb wastes harmlessly—
shall be undertaken by the Coast Guard.
The foreging represents an innovative approach to the problem of
waste disposal in our harbor, river, and coastal waters, and has apphi-
cation to every type of waste disposal throughout the Nation. I
strongly urge your prompt approval of this approach and hope that
we may see House action on this proposal before the close of the cur-
rent session.
So I implore the committee, let us take the first step. I have a great
deal of pride of authorship in this legislation but I am perfectly will-
121
ing to cooperate with the committee in reporting out an administra-
tion bill which contains the provisions needed to get the job done. But
I do urge cautious speed. :
I urge this committee to act quickly to report out a bill that contains
those provisions needed to halt the destruction of our marine and
wildlife ecology. My only qualification is that the committee consider
these sections of the administration bill that fall short of the standards
contained in my bill, H.R. 285.
In that respect I point out that the administration bill is lacking a
major provision of my original legislation, the establishment of “no
dumping” sanctuaries for marine life. I insist that proposals which
simply move dumping grounds from one area to another are myopic
and only increase the danger of prolonged pollution and international
complications growing out of contaminating the world’s oceans.
I ask the members of this committee to carefully consider the in-
corporation of the concept of no-dumping sanctuaries for marine life
into any bill they report.
T ask that a physical description of the New York Bight and a map
showing the location of ocean disposal sites in the area be printed at
the conclusion of my remarks today.
Mr. Chairman, there were proposals made last year that ocean dump-
ing be mandated at 100 miles off the coast and other people said 25
miles off the coast. In effect they were trying to move the dumping
areas off the Continental Shelf. What they would do is make it im-
possible to dispose of wastes that have to be disposed of.
In the New York area I think there were three or four oceangoing
barges that would be permitted by the Coast Guard to go those dis-
tances at sea. In effect what that type of legislation or approach would
do would be simply to cut off dumping that could not be cut off. Those
wastes were formerly dumped in New York Harbor and now they are
dumped in a controlled area. H.R. 285 goes into the problem of con-
trolled dumping areas without affecting marine sanctuaries and pro-
tecting the ecology.
I appreciate the opportunity to appear before this committee and
particularly its chairmen, Chairman Dingell and Chairman Lennon,
who worked so long in the ecology field and are so identified with the
progress we have made.
_ Mr. Lennon. Without objection, at the gentleman’s request, follow-
ing his remarks a description of the New York Bight and a map show-
ing disposal sites in the area should be printed in the record.
(The description and map follow :)
THE NEw YorK BIGHT
The New York Bight is a slight indentation of the Atlantic coast, extending
northeasterly from Cape May inlet, New Jersey, for some 200 miles to the east-
ern end of Long Island, New York, at Montauk Point. Its coastline is generally
a moderately sloping sand beach shore, broken by indentations of the sea into the
land. Among these are a number of small inlets along the New Jersey coast,
Lower Bay of New York Harbor, Hast Rockaway Inlet, Jones Inlet, Fire Island
Inlet. Moriches Inlet, and Shinnecock Inlet.
Depths in the Bight generally exceed 100 feet about 50 miles off shore but
are substantially less than that in most inshore areas. The bottom is mostly
sandy and is subject to shifts due to tidal actions or storm surges. Consequently,
channels have been dredged and maintained by the U.S. Engineers to accom-
62-513 O—71——_9
122
modate the large volume of sea commerce into the industrial and commercial
complex of Greater New York. Sandy Hook Channel leads into Sandy Hook
Bay and Raritan Channel branches off into Raritan Bay. Ambrose Channel is
the principal entrance into New York Harbor leading to Upper Bay and New
City. The inlets to the east (Hast Rockaway, Jones, and Fire Island) are also
subject to shifting sands from time to time.
The New York Bight is a contract in extremes. It contains the only remain-
ing strip of virgin barrier beach between Cape Cod and Cape Hatteras (Island
Beach State Park, New Jersey) and supports the most heavily populated and
industrialized complex in the country—between Sandy Hook, New Jersey, and
Jamaica Bay, New York. The Bight supports some of the most heavily utilized
and valuable recreation areas in the country. For example, New Jersey’s four-
county coastal waterway supports a two-billion-dollar recreation industry
e pA eget yee et “wy
REP NURORY - REREMD IY. | he Z :
= 6 \®
f 137) A. (35) ves
z u es oir
Sy
NEWARK
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iS CITY
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; } GREA} “ PB ot
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{ STATEN ? SWINBURNE # BREEZY POINT
) TsLAND ee ee
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Luention off Qeuun Disposal Sites in New York Bight
123
annually and New York’s Coney Island beach recorded 22 million visitors in
1968. The Bight area also supports excellent sport and commercial fishing re-
sources. Some of the finest oyster grounds are found in this area ; approved shell-
fish harvesting operations for inshore and offshore clams continue within sight
of the New York skyline. Both New York and New Jersey contemplate removal
of inadequately treated sewage effluent from condemned inshore shellfish waters
that will assure even greater shellfish production in this area.
Mr. Lennon. I would like to ask you also, please, Congressman, if
you can furnish us for the record, following the introduction in the
record of what we have just agreed to, the 121 ocean-dumping sites
on the Atlantic coast, and the 56 on the gulf coast and the 68 on the
Pacific coast that you ‘have referred to in the third paragraph of your
statement on page 3. Do you have those sites by identification ?
Mr. Murruy. Yes, Mr. Chairman, I have those sites and I would
be happy to furnish them.
Mr. Lennon. Without objection, then, they shall be inserted in the
record at this point.
(The information referred to was included in chapter I of the
Report of the Council of Environmental Quality on Ocean Dumping
and is as follows:)
124
House Document No. 91—399
REPORT OF THE
COUNCIL ON ENVIRONMENTAL QUALITY ON
OCEAN DUMPING
MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
A REPORT OF THE COUNCIL ON ENVIRONMENTAL
QUALITY ON OCEAN DUMPING
125
CHAPTER I
Ocean Dumping: Location, Quantities,
Composition, and Trends
Bout 48 million tons of wastes were
dumped at sea in 1968. These wastes in-
cluded dredge spoils, industrial wastes, sew-
age sludge, construction and demolition
debris, solid waste, explosives, chemical muni-
tions, radioactive wastes, and miscellaneous
materials. This chapter indicates rapid in-
creases in ocean dumping activity over the
last two decades and the potential for great
mmereases in the future. At the same time,
ocean dumping of wastes from other sources
should decrease through implementation of
water quality standards and new Federal
laws dealing with control of sewage from ves-
sels and with oil pollution.
DISPOSAL SITE LOCATIONS
Data on disposal sites are still incomplete,
with little definitive information on sites off
Alaska and Hawaii and outside the U.S. con-
tiguous zone (more than 12 miles offshore).
There are almost 250 disposal sites off U.S.
coasts. Fifty percent are located off the At-
lantic Coast, 28 percent off the Pacific Coast,
and 22 percent in the Gulf of Mexico. Table
1 summarizes the number of sites for each
major area and the number of permits issued
for their use. The locations of the disposal
sites are indicated in Figure 1.
TABLE 1.—Ocean Dumping: Site Location
Summary (22, 66)
Number of Active Corps
Coastal area sites disposal
permits
AtlanticiCoastesse= ee 122 136
(Gul Coastie eee eo : 56 50
acifich@ oastsmeesee no se ee 68 71
otal Sessa eae ee a 246 257
Not included in Table 1 are some 100 arti-
ficial reefs constructed by private concerns
under permits issued by the U.S. Army Corps
of Engineers. (66) These reefs, sometimes
formed of old car hulks or tires, are intended
to provide artificial shelters for fish.
QUANTITIES AND TYPES
OF WASTES
The categories of wastes covered in this re-
port are used because of the large quantities
of materials currently dumped, their poten-
tial for increase, or their special character-
istics, such as toxicity. The quantities for each
category are summarized by coastal region
in Table 2. Radioactive wastes and chemical
munitions are not included in the table be-
cause weight is not a meaningful descriptor.
Each, however, will be discussed later.
The Bureau of Solid Waste Management
estimates that the data in Table 2 represent
about 90 percent of ocean dumping. However,
the data undoubtedly underestimate the size
and scope of the problem because of the time
lapse and the possibility of many small com-
munity operations or illicit operations by
private firms. Also not included in the table
are those wastes that are piped to sea.
Each major category of ocean dumping
sources is now discussed and the possible
chemical composition of the wastes delineated
as an aid in evaluating their present and
potential effects on the marine environment.
Dredge Spoils
_ A large percentage of dredging is done di-
rectly by the Corps. The remainder is done by
private contractor under Corps permit.
Spoils are generally disposed of in open
coastal waters less than 100 feet deep.
LEGEND
DREDGE SPOILS
INDUSTRIAL WASTES
SEWAGE SLUDGE
EXPLOSIVES
RADIOACTIVE WASTES
SOLID WASTE
INACTIVE SITE
Se
127
Figure 1.—
aaa Se is
Known Dumping Sites Off U.S. Coasts (22, 66)
T 7 y
TABLE 2.—Ocean Dumping: Types and Amounts, 1968 (66)
(In tons)
Waste type Atlantic Gulf Pacific Total Percent of
total
Dred els poise esses See ewe ees Sees wee Ae 15, 808, 000 15, 300, 000 7, 320, 000 38, 428, 000 80
Industrial wastes- - 3, 013, 200 696, 000 981, 300 4, 690, 500 10
Sewage sludge 4, 477, 000 0 0 4, 477, 000 9
Construction and demolition debris 574, 000 0 0 574, 000 <1
(SGUG! WES oo cet octet eee Ste Se Ee Rese Se eS Se Se Heese 0 0 26, 000 26, 000 _..) 610 . 0054 ous
Industrial Wastes
Industrial wastes were the second largest
category of pollutants dumped at sea in 1968
(4.7 million tons, or 10 percent of the total).
(66)
Most industrial wastes are commonly
transported to sea in 1,000- to 5,000-ton-ca-
pacity barges. Sites are 4 to 125 miles off the
Atlantic Coast, from 25 to 125 miles off the
coast of the Gulf of Mexico, and from 5 to 75
miles off the Pacific Coast. Most of the sites
are at the nearshore end of the range.
Highly toxic industrial wastes are some-
times contained in 55-gallon drums and are
jettisoned from either merchant ships or dis-
posal vessels at least 300 miles from shore.
The containers are sometimes weighted and
sunk. More frequently, they are ruptured at
the surface, either manually with axes or by
small arms or rifle fire. (66)
The breakdown for disposal methods by
geographic area is shown below.
TABLE 5.—I/ndustrial Wastes by Method of
Disposal (66)
(In tons)
Coastal area Number Bulk Container-| Total
of sites wastes | ized wastes
Atlantic Coast______- 10 | 3,011,060 2,200 | 3, 013, 200
GulfGoast2 2 = 6 690, 000 6, 000 696, 000
Pacific Coast___- if 981, 000 300 981, 300
Totals a 2==-* 23 | 4,682, 000 8, 500 | 4, 690, 500
Table 6 shows the relative quantities of
major industrial wastes found in a survey of
50 producers in 20 cities.
TABLE 6.—I/ndustrial Wastes by Manufacturing
Process (66)
Type of waste Estimated Percent
tonnage
Wiaste:acids-=2 == (ae ee eee 2, 720, 500 58
Refinery wastes__ a 562, 900 12
Pesticideswastestessesse so = ee eee 328, 300 7,
Paper milltwastes=: = see =e seee see 140, 700 3
QOther'wastes==22 244 .- - ee 938, 100 20
The types of contaminants in industrial
wastes dumped at sea vary greatly because of
the diversity of industries and production
processes involved. Many of the wastes are
toxic—some highly toxic. For example, re-
finery wastes, which are 12 percent of the
total ocean-disposed industrial wastes, can in-
clude cyanides, heavy metals, mercaptides,
and chlorinated hydrocarbons. Pulp and
paper mill wastes may contain “black liquor”
and various organic constituents which are
toxic to the marine environment. Chemical
manufacturing and laboratory wastes that
are dumped include arsenical and mercuric
compounds and other toxic chemicals. (66)
129
Sewage Sludge
Sewage sludge is the waste solid byproduct of
municipal waste water treatment processes.
These solids can be further treated by di-
gestion, a process which allows accelerated
decomposition of the sludge to control odors
and pathogens. Most sewage sludge is dis-
posed of on land or is incinerated. Relatively
small amounts (4.5 million tons on a wet
basis) are currently dumped at sea, of which
almost 4.0 million tons are dumped off New
York harbor. (66) As of 1968, there were no
similar operations on either the Gulf or Pa-
cific Coasts, although sludge is being dis-
charged from Los Angeles by pipeline.
Sewage sludge in digested or undigested
form contains significant quantities of heavy
metals. A study by the FWQA indicated that
copper, zinc, barium, manganese, and molyb-
denum are present: in sewage sludge. (9)
The concentrations and types of toxic mate-
rials vary because sludge is the residual of
waste water treatment and contains whatever
domestic and industrial contaminants have
entered the system. Table 7 shows the mini-
mum, average, and maximum values for three
heavy metals found in one analysis of sewage
sludge.
TABLE 7.—Heavy Metals Concentrations in Sewage
Sludge (8, 9, 36)
(In parts per million)
Concentrations in Natural Concentra-
sewage slud~e concentra- tions toxic
Metal tions in sea to marine
. water life
Min. Avg. | Max.
Copper--__--- 315 64° | 1,980 . 003 aul
ANC == eeena|| 18350) 2, 459 3, 700 .O1 10.0
Manganese._ 30 262 790 BC UP2 i) ee ey Sees, ea
Sewage sludge also contains significant
amounts of oxygen demanding materials. In
1969, sludge dumped in the New York Bight,
encompassing the New York harbor and
some adjacent coastal areas, had an oxygen
demand of about 70,000 tons. (15) These
wastes also include some bacteria that cause
diseases in man.
Construction and Demolition Debris
Only New York City disposes of debris at sea
in significant quantities because of the lack
of nearby available landfill. Sea disposal is
conducted with 3,000- to 5,000-ton capacity
barges that are towed some 9 miles offshore.
These materials are generally inert and non-
toxic.
Solid Waste
Solid waste, the byproducts and discards of
our society, amounts to approximately 5.5
pounds per capita per day collected by munic-
ipal and private agencies. (28) Although
these wastes total approximately 190 million
tons per year, ocean disposal accounted for
only about 26,000 tons. (66) Ocean dumping
of solid waste occurred exclusively on the
Pacific Coast, where they were generated by
cannery operations and commercial and naval
shipping operations. Other sources no doubt
exist, but the overall magnitude of the cur-
rent problem is minor.
The composition of solid waste, ascertained
by sampling, is shown in Table 8. It is pre-
sented here to indicate the materials that
would be introduced into the marine environ-
ment if ocean dumping of solid waste be-
comes a common practice. )
Solid waste disposed of in the ocean in-
teracts with the water, but the resultant chem-
ical products are difficult to determine.
Studies have been done on the interaction be-
tween solid waste and fresh water in sani-
tary landfills as the water percolates through
the waste materials. (The resultant mixture
of water and chemicals is called leachate.)
130
TABLE 8.—Composition of Solid Waste (28)
Type of waste Average
(percent)
Paperproductss-b sete. nee ne eee 43.8
Food! wastes: = -<--=-—- 2-2 eR at ne Rett oe! 18, 2
Metals Chat
GiJassJand!ceramicsSsssee ses a eeneeeeee 9.0
Garden wastes. 39-3622 neo eae ioe 7.9
Rock, dirt, and ash__----------- ind Sh 7
Plasties, rubber, and leather Sh al
Teéxtiles.s0eM <5 2 Oe eet a A eet Aa 2,
Wa0d secrets... Ue ak, Pi Be og 2.5
TPOtaYS == Soe DACRE ALES OE see a 100.0
The percentage of pollutants in solid waste is
not nearly as high as in sewage sludge or
dredge spoils, but it does contain nutrients,
oxygen-demanding materials, and heavy
metals. Laboratory studies of water contami-
nated by solid waste have shown significant
quantities of heavy metals, with zinc, nickel,
and magnesium present in concentrations of
13, .27, and 378 parts per million respectively.
(29) These concentrations are well above
toxic levels for marine life.
Up to 50 percent of solid waste is usually
paper, wood, plastics, and rubber, all of which
ean float to the surface. Particularly signifi-
cant are the plastics which will not become
water soaked and will not degrade for many,
perhaps even hundreds, of years. Even if
baled before ocean disposal, it is almost cer-
tain that over time the bales will disintegrate
and the floatables will rise to the surface. The
potential esthetic problems of large quanti-
ties of solid wastes floating to the surface and
then being carried to shore are staggering.
Explosives and Chemical Munitions
Unserviceable or obsolete shells, mines, solid
rocket fuels, and chemical warfare agents
have been disposed of in deep water for many
years. In 1963, the Navy initiated Operation
“CHASE,” in which munitions were disposed
of by sinking them in obsolete hulks. Since
then, 19 gutted World War II Liberty ships
containing munitions have been scuttled. In
the last six operations, the weapons were to
detonate, but the S.S. ROBERT LOUIS
STEVENSON failed to do so as planned and
is located on the continental shelf near Alaska
in 2,200 feet of water.
Since 1964 at least 18,342 tons of ammuni-
tion and explosives have been dumped in this
manner. Additional cargoes of approxi-
mately 35,000 tons containing an unknown
proportion of net explosives were also scut-
tled. A detailed listing of the ships scuttled,
their cargoes, and disposition are shown in
Table 9.
Detonation of explosives can result in trace
amounts of lead, nickel, bronze, and other
metals in the water, depending on corrosion
processes and the materials used in the
munitions.
Radioactive Wastes
Most nuclear waste products are liquid and
of low radioactivity. They consist mostly of
decontaminated process and cooling waters
from reactors, fuel processing, and other
operations. Small amounts of liquid wastes
are highly radioactive; they result from the
reprocessing of reactor fuel elements.
Solid radioactive wastes are produced by
contamination of equipment and other mate-
rials during nuclear power plant operations,
from medical use, and by research and devel-
opment activities.
Solid radioactive wastes have been buried
in carefully controlled landfill sites. Low-
level liquid nuclear wastes are treated and/or
stored to reduce radioactivity before dis-
posal. High-level liquid wastes are stored ex-
clusively in tanks at land-based sites.
131
TABLE 9.—Ecxplosives and Chemical Munitions, 1964-1970 (30)
Year Name
1964 S.S. John F. Shafroth
Secawillages iG ne Soke em ee Bae ssa
19G5venVveq Goastale Mariner 2200-22 fi! _ <3 ey) Fa See ness
SaScis cinta orlelesiaves 5 Wt 2222 ee ee Ss
1966esS:Ssvlssac ViantZandthss Seat £2) cei ie Ve ees Baek
SiS pl oracesGreely2. 22%. = 22 8 oe ke
Total Nature Net I Ee
cargo of cargo explosives Disposition
(in tons) (in tons)
9,799 | A&E Unknown | SDW
Ree eg 7,535 | A&E Unknown | SDW
pe oe ae 4,040 | A&E 512 | D at 1,000’
ent ees 8,715 | A&E 408 | D at 1,000’
pos cs gee 7,500 | A&E 1,625 | D at 4,000’
ios a a 6,033 | A&E 442 | D at 4,000’
1967 SeoueRobt-rls-;Stevenson=-. 1-250.) Skven7 seeey es ieee ye Ded
SES eR@OLPOLalub ric! Ge) Ga DSO =e aaa aa ee ene
Sigeivionahaneee= =". seen nwo ae eae oe es ceseee eee eee
6,600 | A&E 2,327 | S
9,005 | Chem. None | SDW
833 | A&E Unknown | SDW
1968 S.S. Mormactern
Ses miiChaTGSON Seca ene sane nee Seren ens Rone ee ee oe
TYG) — ASS (CN ATES Ben 0S 0S a a
Ses @ape Gatoches ws. 22: 2222 £2.82 9 eed es oe eee ea F.
Srom@ardinali@”@onmelli= se eae me ee ee
7,763 | Chem. N.A. | SDW
7,437 | A&C 138 | SDW
7,626 | A&E _ 1,145 | DU
1970 S.S. Frederick E. Williamson----......_----------------------
S.S. Cape Comfort -_-_.-..-_.--_-_---
S.S. Walker D. Hines_
S.S. David Hughes_----.-.------__-
S o-leBaronvrusselleBrpps = == 2-22 aoe oe nnn
aa Ea 6,348 | A&E 1,359 | DU
aA ee 6,431 | A&E 2,144 | DU
SEAN ED 5,245 | A&E 473 | DU
& 6,200 | A&E N.A. | DU
f 6,500 | A&E N.A. | DU
Ed 5,000 | A&E N.A. | DU
Be > ae? 2,664 | Chem. N.A. | SDW
Definitions: A&E=ammunition and explosives; N.A.=not avail-
able; DU=Detonated unintentionally; SDW=sunk in deep water;
D=detonated; S=sunk at less than 4,000 feet and did not detonate
Liquid and solid radioactive wastes which
have been dumped in the ocean are usually
in concrete-filled metal drums or containers.
Table 10 summarizes the amounts of these
wastes disposed of at sea.
The quantities of radioactive materials dis-
posed of at sea have decreased dramatically
for several reasons. First, in 1960 the Atomic
Energy Commission placed a moratorium on
new licenses for disposal of radioactive wastes
in the ocean. Only one commercial organiza-
tion (which has never conducted any sea dis-
posal), two Government agencies, and one
university are still authorized to dispose of
radioactive wastes in the ocean. Second, the
major contractors of the AEC have not dis-
posed of any wastes at sea since 1962. And
for economic reasons, those firms with licenses
as planned; A&C=ammunition and cylinders contaminated with
residues of GB nerve gas.
are phasing out sea disposal of radioactive
wastes in favor of land disposal.
TABLE 10.—Radioactive Wastes: Historical Trends,
1946-1970 (70)
Estimated
Year Number of activity at
containers | time of disposal
(in curies)
76, 201 93, 690
4, 087 275
6, 120 478
129 9
114 20
24 5
43 105
12 62
0 0
26 26
2 3
Total eo se oy 86, 758 94, 673
132
Two sites have been used for disposal of
most of the wastes in the Pacific Ocean. These
sites are approximately 48 nautical miles west
of the Golden Gate Bridge. One commercial
firm has disposed of wastes in the Pacific
Ocean farther than 150 miles from the U.S.
coast; these disposals, 11 in number, were at
depths greater than 6,000 feet. In the Atlantic
Ocean, the major sites for disposal were in
the area of Massachusetts Bay, approximately
12 to 15 miles from the coast ; approximately
150 miles southeast of Sandy Hook, N.J.;
and approximately 105 miles from Cape
Henry, Va. With the exception of the Mas-
sachusetts Bay site, disposal was at depths
greater than 6,000 feet. The Massachusetts
Bay site was in 300 feet of water.
PAST TRENDS
Figure 2 shows significant increases in ocean
dumping activities during the years 1951—
1968. These data do not include dredge spoils
or explosives because historical data could
not be readily reconstructed. Radioactive
between the 1959-1963 period and the 1964—
1968 period is largely attributable to dra-
matic increases in industrial wastes and
sewage sludge disposal. In 1959, industrial
wastes disposed of at sea approximated 2.2
million tons. By 1968, the amount had in-
creased to over 4.7 million tons, a 114 percent
increase in 9 years. The amount of sewage
sludge disposed of at sea increased by 61 per-
cent in the same period, from 2.8 million tons
to 4.5 million tons. (66)
FUTURE TRENDS
Assessing future trends in ocean dumping re-
quires analysis of basic population trends.
Population growth is accompanied not only
by increased amounts of wastes but also by
decreased space available for their disposal.
Between 1930 and 1960 the coastal popula-
tion increased by 78 percent, compared with
a 48 percent increase nationwide. (36) The
figures below (25) indicate the population
growth in the coastal region projected
through the year 2000:
wastes are also excluded because of their neg- 19602 ths NOD AG CS) eee eae 57, 946, 000
ligible weight contribution. 1970720 See OE Bee 68, 397, 000
Table 11, on which Figure 2 is based,shows: 1980 ___________-__- «4 9 8 76, 607, 000
a fourfold increase in tonnage dumped at sea 1990) ) 2LAl1ss0 0k sv Joes bee aaa 92, 940, 000
from 1949 to 1968. The 28 percent increase 2000) AWE ILL Dae Rees aan ae 106, 900, 000
TABLE 11.—Ocean Dumping: Historical Trends, 1949-1968 * (66)
1949-1953 1954-1958 1959-1963 1964-1968
Coastal area
Total Avg./Yr. Total Avg./Yr. Total Avg./Yr. Total Aveg./Yr.
Atlantic Coast__________ 8,000,000} 1,600,000 | 216,000,000 | 3,200,000 | 27,270,000 | 5, 454,000 | 31, 100, 000 6, 200, 000
GulliGoastae=- sees 3 40, 000 8, 000 283, 000 56, 000 860, 000 172, 000 2, 600, 000 520, 000
Pacific Coast____________ 487, 000 97, 000 850, 000 170, 000 940, 000 188, 000 3, 410, 000 682, 000
Motalesh-2ie eee 8, 527, 000 1,705,000 | 17, 133, 000 3, 426,000 | 29, 070, 000 5,814,000 | 37, 110, 000 7, 422, 000
1 Figures do not include dredge spoils, radioactive wastes, and mili-
tary explosives.
2 Estimated by fitting a linear trend line between data for preceding
period and data for succeeding period.
3 Disposal operations in the Gulf of Mexico began in 1952.
133
Figure 2.—Average Annual Tonnage Dumped at Sea—
by Coastal Area (66)
tons
(in millions)
7.0
All Coasts
6.0
Atlantic Coast
5.0
4.0
3.0
2.0
1.0
Pacific Coast 2
1951 1956 1961 1966 1968 year
Solid Waste
About 65 million tons of solid waste are gen-
erated annually in the coastal region. Based
on a conservative estimate of 8 pounds of
waste generated per person per day in the
year 2000—the generation rate which will be
reached by 1980—over 150 million tons will
need to be disposed of for that one year. (28)
If 10 pounds per person per day are gen-
erated, total wastes in the coastal area will be
close to 200 million tons, more than triple
current levels. The pressure to use the ocean
for waste disposal will increase as land dis-
posal sites become more scarce, costs increase,
and metropolitan areas face political prob-
lems in obtaining new land disposal sites.
Several cities are currently exploring the use
of the ocean as a solid waste disposal site,
and this interest is expected to increase. In
some cases operations may begin within a
year. If even a small percentage of the solid
waste annually generated in the coastal area
were disposed of at sea, the quantities enter-
ing the marine environment would be many
orders of magnitude greater than all solid
waste disposed of at sea to date.
Sewage Sludge
Based on an average of .119 pounds of sludge
generated per person per day, potential
sludge disposal quantities for the coastal
region can be roughly estimated. (37) In
1970, approximately 1.4 million tons of sludge
will be disposed of in the coastal areas, and
in the year 2000, approximately 2.1 million
tons will be generated, an increase of 50 per-
cent in 30 years. If anything, these figures
may underestimate future quantities of
sludge. For example, between 1960 and
1980, 20-year period, the sludge generated
by the Baltimore-Washington area is ex-
pected to increase from 70,000 tons to 166,000
tons, or about a 140 percent increase. New
134
York City’s sludge barged to sea is expected
to increase from 99,000 tons in 1960 to about
220,000 tons in 1980, a 120 percent increase
in 20 years. (66)
Industrial Wastes
The volume of industrial production, which
gives rise to waste production, is increasing at
a rate of 4.5 percent annually, or three times
the population growth rate. Additionally,
the FWQA estimates that the manufacturing
industry is responsible for three times as
much waste as that produced by the Nation’s
population. And about 40 percent of the Na-
tion’s industrial activity is concentrated in
the estuarine economic region. (36) Given in-
creasingly stringent water quality standards
and the ever expanding level of industrial
waste generation in the coastal zone, the po-
tential for increased industrial waste dump-
ing at sea is great.
Radioactive Wastes
The amount of liquid and solid radioactive
wastes will rise with projected increases in
nuclear power generation. The amount of
high-level liquid radioactive wastes will in-
crease from 100,000 gallons in 1970 to 6,000,-
000 gallons by the year 2000 and radioactive
solid wastes, from approximately 1 million
cubic feet in 1970 to 3 million cubic feet by
1980. (70) As mentioned earlier, however,
ocean dumping has been virtually nonexistent
since the early 1960’s because of the AEC
moratorium and the economic advantage of
land disposal.
Large radioactive structures, an additional
source of radiation, are not yet a significant
problem. In the past, the few that became ob-
solete have been decontaminated, dismantled,
and kept under surveillance on land—with
the exception of parts of one nuclear sub-
marine, which were disposed of in the ocean.
Currently, however, there are 16 nuclear
power plants in operation, 55 under construc-
tion, and 25 for which construction permit
applications are pending with the Atomic
Energy Commission. (70) If current fore-
casts are realized, by the year 2000, the equiv-
alent of up to 1,000 nuclear power units,
each with a capacity of some 1,000 mega-
watts, may be operating. In addition, the
Navy has about 90 nuclear-powered sub-
marines and surface ships, and many more
may be built in the next 30 years as a large
portion of the current naval fleet is replaced.
Commercial nuclear ships—currently the
N.S. SAVANNAH is the only one—may
become economically feasible in the future.
A lifetime of 10 to 30 years for the power
plants’ and ships’ reactor vessels is reasonable
in terms of physical or technological obsoles-
cense. Their radiation levels vary considera-
bly, up to 50,000 curies of induced radiation
in each structure. (70)
Individually none of these sources adds
significant amounts of radioactivity to the
ocean. Taken together, however, the increases
could be of significant concern.
Dredge Spoils
In the long run, the reduction of polluted
discharge from municipal and industrial
sources, brought about by water quality
standards, will lessen the problem from
dredge spoils. However, they will remain a
problem for at least the next 5 to 10 years.
During this period, there will be pressures
for more dredging to deal with increasing
marine commerce, to meet the desire of cities
135
for new deep-water harbors, and to provide
draft for larger vessels (including the super-
tankers used to transport oil). These needs
will all increase total dredging and hence
dredge spoils.
Explosives and Chemical Munitions
The following are Department of Defense
estimates of conventional munitions planned
for disposal: in 1970, 103,777 tons; in 1971,
88,835 tons; and in 1972, 80,000 tons. (26)
These quantities are several times larger than
the total volume of these wastes disposed of
at sea in the last two decades. They indicate
the quantities which would enter the marine
environment if no other disposal technique
were employed.
Chemical munitions have also been dis-
posed of at sea in three deep-water disposal
operations, but actual quantities involved are
not known. No future ocean disposal opera-
tions are planned. Biological agents have not
previously been disposed of at sea, and no
future disposal is projected.
SUMMARY
The data indicate that the volume of wastes
dumped in the ocean is increasing rapidly.
Many are harmful or toxic to marine life,
hazardous to human health, and esthetically
unattractive. In all likelihood, the volume of
ocean-dumped wastes will increase greatly
due to decreasing capacity of existing dis-
posal facilities, lack of nearby land sites,
higher costs, and political problems in ac-
quiring new sites.
136
Mr. Lennon. Gentlemen, without objection we will follow the rule
that I established, and we would be delighted if you could find the
time to stay here in case the members wanted to question you after
we have heard the other Members scheduled to be heard.
Mr. Morpuy. Thank you, Mr. Chairman.
Mr. Lennon. Would you submit a list of the definitive amendments
to the so-called administration bill which would implement specifi-
eally your philosophy that you enunciated in your statement, which
had to be done in ae point of time but which the administration bill
did not do?
Mr. Mourpeny. I will be happy to provide that also, Mr. Chairman.
Mr. Lennon. Thank you.
(The list follows :)
AMENDMENTS TO H.R. 4728, AS INTRODUCED, OFFERED BY Mr. MurRpHY oF NEW
YORK
Page 2, lines 17 and 18, strike out “and the Great Lakes.” and insert “the
Great Lakes, and the navigable waters of the United States.”
Page 8, between lines 5 and 6 insert the following:
Designation of Dumping Areas and Application of State Dumping Standards
Thereto in Certain Cases
Sec. 6. (a) During the two-year period after the date of the enactment of
this Act, the Administrator, in cooperation with the Federal officers listed in
section 5(a) (1), shall make a full and complete investigation with respect to
the oceans, coastal, and other waters for the purpose of designating specific areas
therein where material can be safely discharged. Before designating any such
area, the Administrator shall take into account (1) those factors specified in
section 5(a) relating to the protection of the general welfare and the environ-
ment, and (2) the criteria developed in the administration of such section 5.
After designating any such area, the Administrator shall prescribe such stand-
ards relating to the discharge of material within such area as may be necessary
and appropriate. Such standards (hereafter referred to in this section as the
“Federal standards’) shall apply with respect to permits issued under section 5,
but nothing in this subsection shall be deemed to prohibit the Administrator
from appropriately modifying any Federal standard prescribed under this sub-
section in order to take care of any exceptional circumstance which may be
raised in connection with the issuance of any permit.
(b) (1) If within one year after the Administrator prescribes Federal stand-
ards with respect to any area designated by him pursuant to subsection (a)
of this section, a State establishes standards with respect to dumping within
such area, such State standards shall apply with respect to any dumping in
such area if such area is within the jurisdiction of such State if, within such
one year period, the Secretary, after public hearings—
(A) determines that such State standards are equal to or more stringent
than the Federal standards prescribed by him pursuant to subsection (a)
of this section, and
(B) that there are adequate procedures by which the State can enforce
such standards.
If the Administrator determines that such State standards are not as stringent
as the Federal standards then the Federal standards shall apply within such
area.
(2) Any State standards found to be applicable within an area, designated
by the Administrator pursuant to subsection (a) of this section shall continue
to apply until such time as the Administrator, after public hearing, determines
that such standards are not equal to or more stringent than the comparable
Federal standards. The Administrator shall review all such standards of each
State at least once each calendar year for purposes of comparing them with
the applicable Federal standards.
(ce) The Administrator is authorized to ‘issue new Federal standards and to
amend existing Federal standards from time to time as he determines necessary
137
with respect to any area designated by him under subsection (a) of this section,
and such new or amended standards shall be considered to be the initial Federal
standards issued pursuant to such subsection (a) for the purposes of this section.
And redesignate the succeeding sections of the bill accordingly.
Page 12, line 15, after the period insert the following: ‘‘No license, permit,
or authorization issued by any officer or employee of the United States shall be
of any effect to the extent that it authorizes or regulates any activity regulated
by a State pursuant to State standards which apply to any area designated by
the Administrator under section 6(a) of this Act. For purposes of the preceding
sentence, an ‘activity regulated by a State pursuant to State standards’ includes
transportation of material to the designated area concerned.”
Mr. Lennon. Now we are delighted to recognize the distinguished
gentleman from Florida, Mr. Dante Fascell.
Mr. Fascetu. Thank you, Mr. Chairman.
Mr. Rocrrs. Mr. Chairman, would you yield ?
Mr. Lennon. Delighted.
Mr. Rocers. I am particularly pleased to see my colleague from
Florida here. He has taken a big interest in this problem and has
been a leader in the field and we welcome him to the committee.
Mr. DrinceEtu. I would like to take this opportunity to welcome our
good friend this morning and if we might take just a moment I think
we should take note of some well-deserving facts about the gentle-
man from Florida.
Congressman Dante B. Fascell is serving his ninth term in the
House of Representatives. He is a ranking member of the Committee
on Foreign Affairs and chairs its Subcommittee on Inter-American
Affairs.
I want the record to show that Congressman Fascell was appointed
by President Nixon to be a U.S. delegate to the 24th General As-
sembly of the United Nations, and he recently represented the United
States at the inauguration of Mexico’s President, Luis Echeverria.
An acknowledged leader in the fight to protect our beleaguered
environment, I want the record to further show that Congressman
Fascell is presently a member of the Conference Committee of the
International Conference on Scientific Aspects of the Global En-
vironment, which will be held in November in Miami, Fla. In addi-
tion, while he was chairman of the Foreign Affairs Subcommittee on
International Organizations and Movements in 1968, Mr. Fascell con-
ducted extensive hearings which were reported under this title: “The
Oceans: A Challenging New Frontier.”
STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Fasceiu. Thank you.
Mr. Chairman and gentlemen, I appreciate the opportunity to ap-
pear once again before this committee on this very important prob-
lem. I commend the committee for its prompt action initially in pur-
suing this most urgent and difficult problem.
Mr. Chairman, before I begin my formal statement I think that I
would like to make this comment. The chairman of the Conservation
and Natural Resources Subcommittee of the Committee on Govern-
ment Operations has by letter, just recently, asked several agencies of
Government to do that which ought to be done under current law,
and that is one of the things we all have to consider here. Chairman
.62-513, O—71——10
138
Reuss stated to the Corps of Engineers and to the Coast Guard that
the corps can control under supervisory law where wastes are trans-
ported from New York, Norfolk, and Baltimore Harbors. The Coast
Guard controls all hazardous materials; for example, poisons, and so
forth. So one of the problems, in other words, that we face is that we
have several agencies in the act and one of the things we want to con-
sider is whether or not we want to change that; and it is an important
consideration.
The other, gentlemen, it seems to me is the question of whether or
not any kind of dumping ought to be permitted unless we have a sound
scientific base for it. I cannot get too excited by saying that dumping
is bad inside of 3 miles but it might be all right a hundred miles out.
I know that the committee will have to struggle with that problem
also. The whole question of designated dumps and supervised dumps
and authorized dumps is not one easily resolved.
We have reached the point in the crisis of the pollution of our
oceans where anything less than comprehensive legislation to strictly
control ocean dumping internationally would mean that the cancer
we face is terminal.
Not. too long ago, 1966 as a matter of fact, the philosophy which
the chairman has enunciated in his opening statement was rather
strongly urged. A delegate at the First International Conference on
Waste Disposal in the Sea in 1966 said this:
The great economy inherent in the discharge of urban sewage and industrial
wastes into near-shore waters for final disposal is apparent to all who will
investigate. It is doubly apparent to those charged with the responsibility of
disposing of such wastes without excessive cost to the public or menace to public
health. If the ocean. or one of its arms, can be reached with a sewer outfall within
the bounds of economy, the grim spectre of an expensive complete treatment
plant grows dimmer and dimmer until it fades entirely and, to the great satis-
faction of those who have to gather funds for the public budget, as well as
they (you and I) who have to pay the bill, the good old ocean does the job free.
And small wonder that we look to the sea for this assist. Its vast area and
volume, its oxygen-laden waters, its lack of potability or usefulness for domestic
and most industrial purposes, present an unlimited and most attractive reservoir
for waste assimilation.
Now, that was in 1966. I guess we have come a long way. I think we
have come a considerable way, and we have got a long way to go. We
in this Government have already taken strong steps to protect water
quality within the 3-mile limit, where most of this type of dumping
takes place. But the increase in the problem of dumping in waters
beyond the 3-mile limit has been exponential.
The concept of the sea as an infinite source of waste absorption must
be laid to rest before the disruption in the life cycle of this planet lays
the human race to rest.
Evidence? There is plenty of evidence, gentlemen; some of which
we touch upon here.
Thor Heyerdahl, in his attempt to cross the ocean in a reed ship,
found that he could not fill tooth mugs in the middle of the ocean be-
cause of the filthy condition of the water.
Dr. Max Blumer of the Woods Hole Oceanographic Institute has
declared that the amount of tar on the surface of the sea already equals
the amount of its surface sea life.
Two officials of the Federal Water Pollution Control Agency re-
cently rode a dredge-clammer 14 miles out into the Atlantic from the
139
Delaware Bay and watched as the ship dredged 200 pounds of sewage
sludge containing many dead clams. ais
The presence of mercury, lead, DDT, and pesticides 1s increasing
dangerously in sea life. It has been shown that pesticides inhibit the
ability of diatoms in the ocean to produce oxygen. The world’s supply
of oxygen comes mainly from the photosynthetic activity of these tiny
diatoms.
Dr. Jacques Cousteau, famed oceanologist who has traveled nearly
155,000 miles in the last 314 years exploring the oceans of the world,
recently concluded: “The oceans are in danger of dying. The pollu-
tion is general.”
Mr. Chairman, we are all familiar with inside the United States
and the waters close by, but down our way we have the specter of the
Gulf of Mexico becoming a dead gulf in a very short time and it is a
very real danger. It is going to take a tremendous effort in terms
of technology to restore the Gulf of Mexico to what it ought to be in
terms of clear water and as an asset for mankind.
The hearings I am sure will be replete with evidence, Mr. Chairman,
that the need is urgent and that the time is short.
At the present time there is neither legal provisions for the control
of ocean dumping nor enforcement beyond the 3-mile limit. Further-
more, there is a regulatory vacuum in international waters which lie
outside even the 12-mile outer limit of the territorial seas of a coastal
nation.
Recently the United Nation’s Intergovernmental Maritime Con-
sultative Organization adopted in London a U.S. resolution calling
for an end to willful ocean dumping and accidental spills by 1975 if
possible, but certainly by the end of the decade. This is a positive step,
pe I fear we cannot afford the luxury of waiting until 1980 or even
oa:
The various legislative proposals before this distinguished com-
mittee offer unilateral restraints on the part of the United States. My
bill is not an exception. I have got a repeat of the package put in here
last year. H.R. 4719 is part of a legislative package which includes,
among other things, a concurrent resolution calling for an interna-
tional agreement, under the auspices of the 1972 United Nations Con-
ference on the Human Environment, to prohibit dumping in the waters
of the world and provide the necessary framework for review and
enforcement.
In the final analysis, Mr. Chairman, this is a problem affecting all
the nations of the world, and we must have international cooperation
in order to meet it successfully. House Concurrent Resolution 146 on
uae point is now pending before the House Committee on Foreign
airs.
The part of my legislative package which is before this committee
is, of course, H.R. 4719. Simply and comprehensively it prohibits the
discharge into the waters of the world of any military or waste ma-
terial without a certification by the Administrator of the Environ-
mental Protection Agency approving such discharge.
As the operational agency charged with the responsibility of en-
forcing and administering air and water quality standards, the HPA
is the logical watchdog against pollution of our oceans.
140
Another encouraging aspect of our attempts to control ocean dump-
ing is the recent announcement by Department of Defense Secretary
Laird that no more military chemicals or munitions would be dumped
into the ocean and that alternative, ecologically safe methods would
be developed for future disposal of such agents.
We have come a long way in the period since last year’s dumping
of obsolete nerve gas by the Department of the Army in the Atlantic
Ocean off the coast of Florida. The volatile condition of the material
left us with no choice in the matter.
Still, these are voluntary restraints. The third part of my package
of legislative proposals, Mr. Chairman, which could be before this
committee and I think it will be, now pending before the House Armed
Services Committee, would require that before any new munition of
a chemical or biological nature is added to the U.S. arsenal there
must first be submitted to EPA and approved a date by which the
material must be disposed and the means of disposal. In addition, the
Department of Defense would be required to inventory all such muni-
tions on hand, the future disposal of which might present a potential
harm to mankind or the environment. Now, the thrust of that is so
obviously logical, Mr. Chairman, that I wonder that we have not
done it before but maybe it is like the safety pin.
Legislation of this kind will prevent us from again finding ourselves
in the untenable position of having tons of a lethal agent in a volatile
condition, with the ocean as the least objectionable place to get rid
of it.
One of the deficiencies in the administration’s bill, it seems to me,
Mr. Chairman, is its provision that :
Nothing in this act shall prohibit any transportation for dumping or dumping
of material where such transportation or dumping is necessary, in an emer-
gency, to safeguard human life.
Now, that sounds like an easy, necessary provision, but on the other
hand it might be an out. It seems to me that if we could take the cau-
tions in advance for the inventory of those dangerous agents, decide
on the methods of disposal, the time of disposal scientifically, that we
would eliminate if not all at least a substantial part of the emergency.
As you can see, H.R. 4719 is an integral part of a three-pronged leg-
islative attack which in its entirety forms an effective control and
regulation of the various and harmful practices of ocean dumping. I
am pleased that more than 65 of our colleagues have joined me in the
sponsorship of these proposals.
I am also cosponsoring a bill which combines the provisions of the
bill before this committee and the bill which I have referred to earlier
about the defense inventory which got before the Armed Services
Committee, and I hope this committee can consider that joint bill.
In the face of a problem as potentially dangerous as ocean dump-
ing, however, the important thing is not who sponsors the legislative
remedy but how effective the legislation is in protecting the environ-
ment and the citizens of this Nation. I am confident that this com-
mittee will report out an effective bill.
Mr. Chairman, let me just remind you by quoting from the sum-
mary of the findings of the Council on Environmental Quality’s re-
port on ocean dumping in which they say:
[The Nation has an opportunity unique in history—the opportunity to act to
prevent an environmental problem which would otherwise grow to a great mag-
141
nitude. In the past, we have failed to recognize problems and to take corrective
action before they became serious. The resulting signs of environmental degrada-
tion are all around us, and remedial actions heavily tax our resources. ‘This is
clearly the time for a conscious national decision to control ocean dumping.
I am delighted that these committees which are presently here today
have that challenge, have that opportunity, and I am confident that
they will take the necessary action to close the gaps at least legisla-
tively.
Thank you very much.
Mr. Lennon. Thank you very much, Congressman.
Now we would like to make the same request of you, sir, if you would
submit for the consideration of the committee and the counsel of the
committee the specific amendments to the so-called administration
bill that would accomplish the purpose you seek.
Mr. Fascetu. Be very happy to do that, Mr. Chairman.
Mr. Lennon. Now our next witness is a very distinguished Member
of our body in Congress who served on both sides of the Capitol. We
are delighted to have you, Senator Pepper, or Congressman Pepper,
whichever you prefer. The gentlemen is again from Florida.
Mr. Rocers. Thank you, Mr. Chairman.
I want to welcome to the committee again another colleague from
Florida who has been vitally interested in this question. You can see,
because of the location of our State and the problems we have, I think
that is one reason that so much interest is centered in Florida. So I
join in welcoming Congressman Pepper.
STATEMENT OF HON. CLAUDE PEPPER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Perrer. Thank you very much, Mr. Chairman and members
of the committee. I particularly thank my distinguished colleague from
Florida for his kind words.
My remarks will be brief. I appear here in support of H.R. 808
which I am one of the cointroducers of and which I think means a
great deal to our State as it does to many other parts of the country.
T have not heard any technical definition of it but I know we have
one. If you take in all of the indentations of our coast, I suppose that
we have probably the longest water coastline in the United States.
Would you not think that might be true, Mr. Rogers? Or one of the
longest at least. :
I think the definition of this bill which defines oceans, coastal and
other waters would include oceans, gulfs, bays, salt-water lagoons, salt-
water harbors, other coastal waters where the tide ebbs and flows, the
Great Lakes and so on is a very appropriate description to which this
proposed legislation should apply basically.
Mr. Chairman and members of the committee, what is proposed in
this legislation is that anybody who puts anything of a deleterious
character or may be proved to be polluting in its confluence into one
of these waterways as so defined shall be required before he is au-
thorized to do so to get the approval of the appropriate agency which
in this case is the administration of the Environmental Protection
Agency acting through the U.S. Fish and Wildlife Services and in
consultation with the Army Chief of Engineers.
142
Nobody, it seems to me, has a right to pollute the waters of our
cast—the waters, for that matter, of the interior, but that is another
matter. The presumption is that any material capable of polluting does
pollute unless unless one of these bodies determines after an appro-
priate application and license is applied for that it does not have any
polluting effect upon the water to which it can be discharged.
I think it is extremely necessary that we enact legislation of this
sort because along many of our bays—Biscayne Bay, for example, in
my area and Mr. Fascell’s area is generally referred to as being polluted
to the degree that it is not even suitable for bathing. It certainly is not
desirable that a great beautiful body of water like that has any con-
tamination or any pollution, and that is due to the fact that over the
years we have simply poured sewerage and poured these polluting and
contaminating properties into this beautiful bay without any regard
for the public interest at all. We have also done the same thing for
the ocean.
I don’t think anybody particularly is to blame because up until
recently we thought it was all right to build an outfall into the ocean
with only preliminary treatment of the material that goes into the
outfall and therefore is distributed into the ocean. We thought that
was just a public dumping ground where you could put anything you
wanted to and it was not going to hurt anything or anybody: it was
so big and so much water and generally so deep that you could dump
anything into the ocean with impunity.
It has been many months since I have had the honor to appear
here before the committee to talk about the dropping of these weapons
into the ocean. Even 2 or 3 years ago nobody would ever have thought
of questioning that because our awareness of this ecology problem
and contamination and pollution problem had not come to be so acute
as it has in the recent past. So I think it perfectly proper to put the
burden of proof that it will not harm a public waterway upon who-
ever disposes materials into such a waterway that would have some
deleterious effect.
Let me comment on this. In the county of Dade, of which I have
the honor to represent a part here, Mr. Fascell a part, Mr. Burke a
part, many of our municipalities have these outfall lines out into the
ocean where they dump their sewage and those outfall lines have been
built at quite a lot of expense—in fact, they have been wrestling with
the financial problem of building those outfalls. My understanding is
that generally speaking they have only given preliminary treatment
to the sewage that has gone through those outfalls and dumped into
the ocean.
I don’t know just how our public bodies would be affected by this
legislation. While I think it is right in principle, on the other hand,
if acting under permissible conceptions and permissible authority in
the past, public bodies have done things that have burdened them
with debt and they should be required to set up other facilities before
they should be permitted to such dumping, why I think the Federal
Government ought to help them to make the necessary adjustments
to accommodate themselves to the criteria of the present in respect to
the pollution of waterways.
I know we have had sewerage money available. To my regret the
administration has reduced the request for such money, perhaps held
143
up quite a bit of it, but we are going to encounter collateral problems
probably. What private industry should have to do to make adjust-
ments to this is also a matter that should give us concern. It may well
be that we should have loan programs that would permit private in-
dustry which has been set up in the past to dispose of its waste in this
way to make the necessary adjustment. It might bankrupt some of
them if they did not get such assistance.
I would not propose giving money to private industry but that we
might well set up a system of loans to enable private industry to con-
vert its functioning so that it would not in any way be in conflict with
the public interest. Although this principle is sound, Mr. Chairman.
Now I want to say this. I guess it is not politic to say. I think some
of our people who are dedicated and devoted to the cause of conserva-
tion and the ecology—one of the Cracker politicians calls it “ec’o
log’ogy” because everybody has not got accustomed to this new phrase
or new wording yet. I think some of those good people are going to
the extreme in some of their demands that they are making, and they
are going to run into and provoke a reaction, I think, if they do insist
upon going to the extreme.
I think they therefore ought to contemplate that they are now where
you cannot talk about anything but what they say that it pollutes
something. I wonder sometimes whether when you walk across the
grass you might step on the bugs that might have a right to live in the
luxurious green foliage of many of our grassy areas.
But this kind of thing, this is sound and this should be insisted upon
and this should have priority. Any other pollution to any of our
streams should have priority. Pollution of the air, nobody has a right
to pollute the air which we breathe. I think the pollution of the water,
the pollution of the air should have priority and those programs should
go strongly ahead, but it gets to the point now you cannot build an
airport or you cannot fly a plane without somebody telling you it is
going to damage the ecology.
There is going to be eventually, I am afraid, a reaction. I don’t want
to see any reaction toward the very desirable ends of protecting the
environment of our people but we are on solid ground when we are
talking about preserving our waterways and preserving the air of our
people, and that is what this bill primarily relates to.
Thank you very much, Mr. Chairman.
Mr. Lennon. We thank you very much for your excellent. presenta-
tion and recognition that there must be a balance somewhere.
Mr. Pepper. Right.
Mr. Lennon. Now we will hear from the distinguished chairman of
the full committee who wants to address the two subcommittees this
morning on this subject.
Mr. Garmatz.
STATEMENT OF HON. EDWARD A. GARMATZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MARYLAND
Mr. Garmatz. Thank you, Mr. Chairman.
I introduced H.R. 4723, which is an administration bill, because I
think it is essential for this Nation to protect its marine resources
144
from pollution by the indiscriminate and uncontrolled dumping of
harmful waste material into America’s coastal and offshore waters.
I scheduled hearings on this issue because I think this is a critical
problem. On March 16, 1971, when I announced these hearings, I said
they would probably comprise the most important consideration of
environmental legislation to be held in this session of Congress. And
I explained that statement by saying there is an urgent need to estab-
lish a national policy on ocean dumping now—before this Nation
resorts to an irreversible pattern of wholesale dumping into the
oceans.
I might add to that by saying that I think the legislation which
ultimately evolves from these hearings will become landmark legis-
lation.
But I want to emphasize at this point that, even though I intro-
duced H.R. 4723, I am concerned over some of the proposals it
contains.
Approximately 40 other ocean-dumping bills have been referred to
this committee, and some of them also contain disturbing proposals.
Original bills, of course, are not expected to be perfect, they merely
provide a vehicle for formulating a more effective approach to any
problem. That is the reason for these hearings.
My concern can best be explained, I think, by pointing to the broad
scope of responsibility of the full House Committee on Merchant Ma-
rine and Fisheries. Among its many other functions, the full commit-
tee plays a rather unique dual role. The Subcommittee on Merchant
Marine is responsible for the protection and promotion of a healthy
maritime industry, including shipping and port facilities and port
development. On the other hand, the Subcommittee on Fisheries and
Wildlife Conservation is responsible, as its title implies, for the con-
servation of our fish and wildlife resources and for the protection
and enhancement of our environment, including our estuaries, our
fresh waters, and our oceans, and all the precious living resources in
those waters. The Subcommittee of Oceanography is also concerned
over any activity which might adversely affect the ecology of the
oceans and of America’s coastal waters.
Because of the joint concern of the latter two subcommittees, I de-
cided hearings on these ocean-dumping bills should be held jointly,
with both subcommittees participating. I might add that Congress-
man John Dingell, chairman of our Subcommittee on Fisheries and
Wildlife Conservation, and Congressman Alton Lennon, chairman
of our Subcommittee on Oceanography, both held extensive hearings
on ocean dumping in the last session of Congress. Both of these dis-
tinguished chairmen are equally concerned over this serious problem,
and I think it appropriate that they share the responsibilities of the
chair during these proceedings.
I am here today to speak both as chairman of the full House Com-
mittee on Merchant Marine and Fishcries and as chairman of the Sub-
committee on Merchant Marine. In the latter capacity, I want to
reiterate my concern over certain proposals contained in many of the
bills we will be considering during these hearings. .
My primary concern is that some of these bills. if enacted as now
drafted, could seriously impede future port development and, there-
fore, adversely affect the entire maritime industry.
145
For instance, in the case of the administration bill, H.R. 4723, no
dumping of waste materials in our coastal or Great Lakes waters
would be allowed without a permit from the Environmental Protec-
tion Agency, known as EPA. Many representatives of various port
authorities have personally come to me to express their fear over this
provision. They are convinced that, if this provision is enacted, it
would seriously delay the completion of many dredging projects—
such as port and harbor channels—which are vitally ‘needed if these
ports are to survive in the fiercely competitive fight for cargo.
In the past, dredging permits have been obtained from the Corps
of Engineers. The administration bill, however, would require the
corps to obtain a permit for any dredging i in port and harbor areas
from the EPA. It is sincerely felt by many that such a requirement
would introduce a significant element of delay in processing applica-
tions, In gaining firm approval, and in actually completing the chan-
nel project. Such delays could be economically disastrous to many
American ports. It is also sincerely felt by many that the corps has
the expertise, the staff, and the total capability to justify that agency’s
retention of authority for approving channel-dredging projects, and
that the EPA, a newly created agency, has teria he staff, the ex-
perience, nor the capability, to do the necessary research and admin-
istrative work needed for rapid approvals.
We all realize the disposal of dredging spoil is a practice which can
be harmful to any marine ecology if the spoil is discharged indis-
criminately. There have been occasions in the past when the Corps
of Engineers has shown a lack of interest or indifference toward the
conservation of our great natural resources. But I have recently been
impressed with the fact that the corps has been converted to the cause
of conservation, and that it now seems dedicated as much to that cause
as it is to industrial development.
I think that Chairman Dingell, who is a staunch conservationist.
has done more than his share to convert the Corps of Engineers and
I would be happy to hear his expert views upon what I considered to
be the corps’ healthy and sensible approach to this problem by attempt-
ing to establish a balance between the need to promote industrial and
economic development and the need to protect and preserve our environ-
ment.
Achieving that kind of balance may be difficult, but that is the kind
of balance I would like to see personified in the bill that ultimately
comes from this committee. I might say there is a precedent for such
an approach to this seeming dilemma. Public Law 90-454, which was
enacted August 3, 1968, and which calls for the protection of our
estuarine areas, says in part, and I quote:
It is therefore the purpose of this Act to provide a means for considering the
need to protect, conserve and restore these estuaries in a manner that adequately
and reasonably maintains a balance between the the national need for such pro-
tection in the interest of conserving the natural resources and natural beauty
of the nation and the need to develop these estuaries to further the growth and
development of the nation.
Mr. Chairman, I am proud to say that this act and this language
emanated from our Subcommittee on Fisheries and Wildlife Con-
servation, which held hearings on the original estuarine legislation and
146
was responsible, on the House side, for its passage and ultimate enact-
ment.
It should also be noted that the first annual report of the Council on
Environmental Quality, in its declaration of national environmental
policy, said, and again I quote:
... It is the continuing policy of the Federal Government, in cooperation
with State and local governments, and other concerned public and private orga-
nizations, to use all practical means and measures, including financial and tech-
nical assistance in a manner calculated to foster and promote the general welfare,
to create and maintain conditions under which men and nature can exist in pro-
ductive harmony...
T am also proud to say that the Environmental Quality Council was
established by a law which originated in legislation introduced by our
distinguished chairman, Congressman Dingell, and that it was his
subcommittee which held hearings on the enabling legislation.
It is natural that I am concerned about the impact of any legislation
on port deveolpment, since the port facilities are vital to our national
economy and to a healthy American maritime industry. In my own
State of Maryland, the Maryland Port Authority plans to spend $90
million in the next 10 years to improve its port facilities. Other ports
around the country are making similar plans for future development.
Mr. Chairman, I am not here to plead for any select interest but I am
here to speak out on behalf of our national interest and for the general
welfare.
America has been blessed with a wonderful abundance of natural
resources, which have helped to make our country great. But these
resources have been abused, and now that they are threatened, there is
a justifiable move to protect them. What we must guard against is over-
reaction, against an anti-industry movement which could contain the
seeds of destruction. After all, industry and technology have also
helped to make this a great nation.
I know that Chairman Dingell and Chairman Lennon are aware of
the essential nature of industry, just as they are aware of the need for
strong environmental legislation; and I know they will, therefore, give
all concerned parties a chance to present their views on this important
and controversial subject.
Mr. Chairman, I am sorry that my statement has been so lengthy.
But there was no brief way for me to get my thoughts on such a
complex matter on the record.
In the beginning of my opening statement, I said that the legislation
which is ultimately reported out by this committee, as a result of these
extensive hearings, will become landmark legislation.
I say this because I sincerely feel that the final bill our full com-
mittee reports out will reflect the balanced interest of the entire com-
mittee, and will, therefore, be designed to promote our Nation’s total
welfare, by protecting our environment and at the same time assuring
continued economic and industrial growth, not only for the immediate
generations but for al] future Americans.
Thank you very much, Mr. Chairman.
Mr. Lennon. Thank you, Mr. Chairman, for the fine statement that
will certainly be considered in depth by the joint subcommittees.
T would now like to eall on our good friend from Texas, an ex-mem-
ber of this committee, the Honorable Bob Casey.
147
STATEMENT OF HON. BOB CASEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Casry. Mr. Chairman, and distinguished colleagues of these two
important subcommittees, permit me to express my personal thanks to
you for the expeditious hearings on the grave problem of waste dis-
charge in our coastal waters. Iam especially pleased that the bill which
I have had the pleasure of cosponsoring with my friend, Representa-
tive John M. Murphy of New York, is included in legislation being
considered by these hearings.
I think the gravity of the problem is well recognized, and the fact
that two important subcommittees are holding joint hearings on this
issue certainly testifies to that fact. Having been privileged to serve on
the House Merchant Marine and Fisheries Committee for several terms,
Tam well aware of the leadership it has taken through the years in pro-
tecting our natural resources under its legislative jurisdiction.
We, along the Texas gulf coast, know only too well that there is much
to do in conserving and protecting our great coastal areas. We know
that it cannot be done by the county, or the State of Texas, and we
must have broad Federal legislation. For decades, we have callously
disregarded the vital resource provided by our seas and coastal zones,
and have looked upon them as vast dumping grounds for every type of
refuse—from municipal garbage to obsolete munitions and explosives.
Along the Gulf of Mexico, few people realize the enormity of the
problem we face. Our great gulf is the dumping ground for pollution
of all types carried by river drainage from 31 of our States. Our five
coastal States—A labama, Florida, Louisiana, Mississippi and Texas—
have 17,141 miles of tidal shore, 18 percent of the U.S. total. In our own
State of Texas, almost three-fourths of our population live within 50
miles of the gulf, and I am sure the same fact is true in many of our
sister States. This tremendous rate of growth is continuing to accelerate
as new heavy industries seek the many advantages offered by the gulf’s
shoreline.
As Tamsure my colleagues know, the gulf is a vast reservoir of natu-
ral resources, mostly undeveloped, for our Nation. Petroleum is but one
of the great assets to be found there. It is, for example, the production
area for 80 percent of our country’s oil and gas—and it is estimated that
60 percent of the enormous Continental Shelf petroleum reserve lies
under the warm waters of the gulf. This vast area of the gulf holds 33
separate bay systems, averaging each about 550 miles, which are the
spawning area for our seafood resources—and the principal drainage
pits for waterborne pollution. The importance of protecting these
areas becomes more evident when you realize that about one-third of
the country’s commercial fish crop comes from the gulf.
We, along the gulf, are fortunate to one extent. As I advised the
Subcommittee on Fisheries and Wildlife Conservation in hearings on
the similar bill we introduced in the 91st Congress, there are invaluable
studies underway which will provide the basis for intelligent and con-
certed action in years to come. We have underway now a major study
of Galveston Bay, a joint State-Federal project. And we have in the
initial stages a massive 10-year study of the gulf environment by
the Gulf Universities Research Corp., a consortium of 17 major uni-
148
versities in our five coastal States, and including the University of
Mexico, and many major industries. It is estimated the total cost of
this mammoth project will total $150 million, and it holds exciting
promise for the future. It is, I might add, the only study focused in its
entirety on a single oceanic system adjacent to our coastline, and on the
common but vital problems of marine preservation, conservation, and
development. This study will utilize the great wealth of talent of these
institutions—some 1,400 of our Nation’s top scientists.
We cannot, of course, wait 10 years to begin work in cleaning up—
and preventing further degradation of our ocean systems. Some scien-
tists even now point out that the Gulf of Mexico is a prime candidate
to be another Lake Erie, unless immediate remedial action is taken to
protect it from pollution. A great deal of effort is underway, and it is
not my intention to fault the effort by our county, State, and Federal
agencies concerned with pollution, for they are moving against those
who are causing the problem. But I believe that H.R. 285, or legislation
similar to it, will give us the long-range answer to this problem and
would be an incentive to the States to take the lead in resolving this
problem.
Many of you, I know, are familiar with my own home of Houston
and Harris County. Although 50 miles inland, we alternate between
being second- or third-ranking port in tonnage in the country. To reach
the port of Houston, ocean-going vessels traverse the Houston ship
channel, a 40-foot-depth channel dredged the length of Buffalo Bayou.
This dead body of water has often been termed the most polluted in our
country. Along the banks of this great channel stand massive petro-
leum and petrochemical complexes, steel mills, and foundries. The
waste product of one is often piped into the plant next to it as its raw
product. These great industrial complexes have brought dynamic
growth and economic prosperity to our area. They also brought major
problems of air and water pollution, still unresolved. Much is being
done at the loca] and State level to control emissions, and most of these
plants are fully cooperating in a responsible manner. But the Houston
ship channel is the main drainage system for a highly devloped
urban area of nearly 2 million people, and it empties into Galveston
Bay all of the accumulated wastes from sewage-treatment plants, the
industrial complex, and the unbelievable residential runoff from our
6-, 8-, or 10-inch tropical rainstorms. Adding to this are the spills
from oil and chemical tankers, from chemical plants, or from those
obtuse industrialists who in spite of warnings from man and nature
continue to view any body of water as their own private industrial
sewer.
Unlike the problems of the eastern seaboard, municipalities in Texas
have not as yet viewed the Gulf of Mexico as its private garbage dump
for municipal solid wastes. But I need not tell you here today that it
is but a matter of time before this will be viewed as the easiest. and
cheapest solution to the urban problem of garbage disposal. The cost
of land, and the vigorous objections of those neighboring counties to
being a dump for nearby city, are forcing city officials to seek this
method. This is why action is needed urgently to enact this legislation,
to chart those areas where dumping will not be allowed, and to set
guidelines to control it.
149
Mr. Chairman and members of the subcommittee, on behalf of the
people of my district and my State, I wish to say that I know you
share our concern for protection of our environment and our great
natural resources. We cannot delay too long in moving to protect our
estuarine areas, and I believe our bill, H.R. 285, provides a solid basis
for remedy of this difficult and complex problem. I commend you
highly for your prompt consideration of legislation to control this
problem.
Mr. Lennon. Thank you for an excellent statement, Mr. Casey.
Our next witness will be the gentleman from Connecticut, our
colleague Bob Giaimo.
STATEMENT OF HON. ROBERT N. GIAIMO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CONNECTICUT
Mr. Gratmo. Mr. Chairman and members of the committee, I am
pleased to offer my support for legislation designed to curtail un-
regulated discharge of industrial waste into coastal waters, oceans, and
related bodies of water. In particular, my testimony is in support of
H.R. 807, of which I am a cosponsor.
The time has long passed when America believed that large bodies
of water and large masses of air could absorb the byproducts and
aftereffects of industry and remain unaffected, or that the many and
complex forms of life living in oceans, bays, harbors, and marshes
could survive our assaults on their environment.
Certain of our industries are indiscriminately turning coastal wa-
ters in particular into repositories for toxic materials, and all indus-
tries must belatedly concern themselves with the unintended but
devastating consequences of their prosperity.
The coastal waters of Connecticut, and in particular the shellfish
and fishing industries dependent on those waters, have suffered con-
siderable long-term damage from unregulated dumping of waste, and
the economic consequences have spelled disaster for the men who work
those waters.
While the Marine Science Council has estimated that 8 percent of
all shellfish that could potentially be harvested are unsafe now for
human consumption, that figure in Connecticut is surely much higher
since major harbors and shoreline areas, for example New Haven
Harbor, no longer can yield edible shellfish.
H.R. 807 is a measure with several features of particular importance
in regulating this coastal carnage. For example, by placing the bur-
den of proof—not absolute proof, of course, but a “preponderance of
evidence” proof—on those seeking permits to dump wastes, that such
wastes will meet standards to be set by the Environmental Protection
Agency, industry will have to take a larger role in protecting oceanic
environments.
In addition, provision for stronger State regulations, which would
supersede Federal regulations if States could also demonstrate enforce-
ment capacity, would allow those areas particularly damaged by waste
discharge additional protection from stricter State standards.
Finally, the standards adopted by the EPA under this measure
would supersede standards promulgated by any other agency of the
150
Federal Government and would help to both clarify and to strengthen
the Federal role in enforcement.
It is inexcusable that in the midst of concern for other areas of our
environment no standards have ever been adopted by the Federal Gov-
ernment which would effectively regulate the discharge of industrial or
other waste into ocean or coastal waters, that no industry wishing to
dump in coastal waters has been required to demonstrate the effect of
that dumping, and that, as a result, some 48 million tons of materials
are yearly deposited in what is a vanishing but hopefully salvageable
natural resource.
Mr. Lennon. The subcommittee appreciates your testimony here
this morning, Mr. Giaimo.
Our friend from New York, the able Seymour Halpern, will now
be our next witness.
STATEMENT OF HON. SEYMOUR HALPERN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Hatrern. Thank you for this opportunity to speak in favor of
legislation designed to halt the promiscuous dumping of waste ma-
terials into the ocean and to develop orderly arrangements for regula-
tion of the practice.
T am told that over 44 bills aimed at regulating ocean dumping have
been introduced in Congress so far this session. Some of these bills
call for designating specific dumping sites and for standards to apply.
Others specify areas of sanctuary wherein nothing can be dumped.
There are bills dealing solely with oil and other hazardous substances
while others are concerned with disposal of munitions and poisonous
gases. Obviously all of these bills have merit and serve to demonstrate
how broad the problem is.
Perhaps the outstandingly bad example of environmental abuse by
ocean dumping is in the New York Bight into which the City of New
York dumps its sewage and sludge along with all sorts of garbage
euphemistically called solid wastes. Studies by the Corps of Engineers,
the State University of New York at Stony Brook, the Fish and
Wildlife Service have recently been completed. Their report has been
released and is contained within hearings before this committee held
July 27, 28, September 30, 1970, entitled “Dumping of Waste Mate-
rial,” Serial No. 91-389. I would like to quote for the committee certain
of the summary conclusions drawn by this report:
1. The New York Harbor Complex must rank as one of the largest grossly
polluted areas in the United States.
2. The major sources of pollution in the New York Bight are (1) sewer and
industrial outfalls, (2) ocean disposal of sewage sludge and dredge spoil, (3)
river discharge and land runoff, (4) wastes from vessels, (5) accidental spills.
and (6) harbor debris.
3. No significant improvement in the water quality in the New York Bight can
be expected until the mid-70’s. Complete secondary treatment is not scheduled
for New York City and Passaic Valley Sanitation Commission until 1976. Addi-
tional pollution treatment facilities in up-river and shoreline communities will
not be completed until the mid-70’s. Vessel pollution should be significantly re-
duced under the provisions of the Water Quality Improvement Act of 1970.
4. Even with completion of all currently proposed pollution abatement pro-
grams, conditions in the New York Bight will fall short of what must be the
ultimate goal of protecting coastal ocean environments from serious degradation.
151
5. There will be increased pressure for more ocean disposal of sewage sludge
and dredge materials in the New York Bight. This will raise to a potentially
critical level the threat of pollution to land and surrounding ocean.
6. The projected increase in pollution from ocean disposal practices calls for
stricter control of future ocean disposal practices in the New York Bight.
7. The major threat to full enjoyment of the proposed Gateway National Rec-
reation Area and other beaches in the New York Bight is pollution. To date.
however, there has not been demonstrated any connection between present ocean
dumping practices and water pollution at any of the proposed Gateway sites.
8. The present ocean disposal of sewage sludge and dredge fill may be a serious
threat to the sanitary quality of local populations of ocean quahogs and surf
clams (4-10 mile radius).
9. Accumulation by fish and shellfish of heavy metals and other persistent
toxic compounds is another potential health hazard in the New York Bight.
This threat appears to be most serious from the sludge disposal areas.
10. Ocean disposal of sludge and dredge spoil materials, along with pollution
from other sources, offer a potential threat to local fish populations.
No amount of rhetoric will present a more eloquent argument
for the need to develop orderly regulation of needless destruction
of the marine environment due to dumping wastes into the ocean
and coastal waters, especially since the situation in the New York
Bight is by no means unique. This same report and others such as
the report of the Council on Environmental Quality demonstrate
that similar problems exist elsewhere. For example, the report of the
CEQ identifies 246 sites off the coasts of the United States into which
48 million tons of dredge spoil, sewage sludge, building debris, indus-
trial wastes, radioactive wastes, and outdated munitions are dumped
every year. A later report by a responsible Federal agency states that
there are 281 dumping sites receiving 62 million tons of wastes of all
sorts.
All indications are that, as serious a problem as this is now, it is be-
coming inore so at an alarmingly rapid rate. Time is no longer avail-
able to luxuriate in detailed studies and deliberations. We must move
expeditiously to enact legislation which will halt this senseless destruc-
tion of our coastal waters. I vigorously support the legislation before
this committee as a sound approach to prevent further destruction of
the marine environment.
Mr. Lennon. You gave a very enlightening statement, Congressman.
We appreciate your time.
Our next witness will be the gentleman from Florida, the Honorable
Charles E. Bennett.
STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF FLORIDA
_ Mr. Bennett. Mr. Chairman, I appreciate the opportunity to testify
im support of legislation which I have pending to end ocean dump-
ing without a certificate from the Council on Environmental Quality.
This legislation is section 2 of my bill, H.R. 1214, which is a compre-
hensive environmental protection bill, which was referred to the House
Public Works Committee.
For some time now, I have been extremely concerned about de-
terioration of our oceans by pollutants. Oceans cover 140 million square
miles of water surface and over 70 percent of the area of the earth.
The world environment and our very existence are dependent on the
152
oceans, and we must stop using them as huge open sewers which can
absorb pollutants on an unrestricted and indefinite basis.
Reports on ocean contaminants from leading scientists and engineers
are truly alarming. Thor Teyderdahl, in his attempt to cross the ocean
in a reed ship, found that he could not fill containers for desalting for
drinking water in the middle of the ocean because of the filthy con-
dition of the water. Dr. Jacques Cousteau, famed oceanologist who has
traveled nearly 155,000 miles in the last 314 years exploring the oceans
of the world, recently concluded: “The oceans are in danger of dying.
The pollution is general.”
I am pleased that the President has taken affirmative action in seek-
ing greatly reduced ocean dumping and I am glad that the thrust of
the administration bill and my bill are similar. My bill requires a cer-
tification from the Council on Environmental Quality before any ocean
dumping would be allowed, while the administration bill requires a
certificate from the Environmental Protection Agency. In light of the
increased responsibility of the Environmental Protection Agency for
monitoring various aspects of environment pollution, I favor amend-
ing my bill to place jurisdiction with the Environmental Protection
Agency.
It has been estimated that in 1968 slightly over 48 million tons of
waste were dumped at sea off the shores of the United States. Many of
these wastes are oxygen-demanding materials, which have the poten-
tial to reduce oxygen in ocean waters to levels in which the aquatic life
cannot live. The volume of waste dumping is growing rapidly, and
with many major cities running out of landfill areas, they will be look-
ing toward the oceans to get rid of their wastes.
As the most prosperous industrialized nation in the world, we must
set an example for other nations to follow in cleaning up and keeping
clean our oceans.
I hope that the committee will give careful consideration to section 2
of my bill, H.R. 1214. to control ocean dumping, as I believe it directly
and firmly attacks the problem and will aid in preserving our life-
giving oceans.
I thank the committee for the opportunity to present this statement.
Mr. Lennon. Thank you for an excellent statement, Congressman.
I would now like to call the gentleman from New York, our friend
Jack Kemp.
STATEMENT OF HON. JACK F. KEMP, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
_ Mr. Kemp. The problem of water pollution has, unfortunately, been
ignored for too long. The results of such apathy are now being paid
for, and they have been and will be paid in far larger amounts than
would have been expended upon an enlightened and effective policy
of preventing such pollution.
In the last 7 years, for example, commercial fishing off the New
York-New Jersey coast has dropped from 673 million pounds to 133
million, a decline of 80 percent. Oyster production for the same pe-
riod is off by 48 percent. As the New York Times recently noted, “A
major factor in these staggering losses is the sludge dumped offshore
153
daily, as though the Atlantic were an infinite catch-basin for the wastes
of man.”
In January 1971 the Governments of Canada and the United States
released a report by the International Joint Commission on Pollution
of Lake Erie, Lake Ontario, and the international section of the St.
Lawrence River.
The report concluded that water pollution extends throughout the
lakes; the principal causes are wastes discharged to the boundary
waters and tributaries by municipalities and industries; pollution is
taking place in all jurisdictions sharing the boundary waters.
The Commission expressed the view that urgent remedial measures
are required, including adoption and adherence to the recommended
water quality objectives; immediate reduction of the phosphorus con-
tent in detergents; and the prompt implementation of a vigorous pro-
eram to treat municipal and industrial waste and to reduce phosphorus
inputs into these waters.
In 1969 the IJC was asked to extend its inquiry to the adequacy
of existing requirements for the prevention of oil leakage into Lake
Erie as well as of existing measures for cleaning up any major oil
spill.
The IJC concluded, in an interim report submitted to both Gov-
ernments and confirmed in its present report, that safety require-
ments and procedures applicable to drilling and production operations
were adequate if effectively supervised and properly enforced. With
respect to cleaning up a major oil spill, the IJC found current. methods
to be primitive and inadequate. In addition, an urgent need now exists
for a formal plan of international cooperation on oi] spills.
In the present report on pollution in the Lower Lakes, the IJC
finds that Lake Erie, particularly its western basin, 1s in an advanced
state of eutrophication, or aging, and that accelerated eutrophication
is occurring in Lake Ontario.
Asa result, the IJC recommends that both Canada and the United
States adopt the water quality objectives set out in the report and enter
into agreement on programs, measures, and schedules to achieve them.
Just last month Secretary of Transportation John A. Volpe an-
nounced that a committee of the Intergovernmental Maritime Con-
sultative Organization meeting in London had adopted a U.S. reso-
lution calling for the end of willful marine pollution and minimization
of accidental spills by 1975.
The magnitude of our water pollution has been made evident to
Americans in at least one dramatic respect. Last December, Prof.
Bruce McDuffie, a chemist at the State University of New York, tested
a can of tuna fish and the question of the concentration of mercury in
fish erupted into worldwide proportions.
The tuna contained a mercury concentration well above the U.S.
Food and Drug Administration limit. So did frozen swordfish steaks
also tested by McDuffie. The FDA confirmed his findings and took a
million cans of tuna, and most swordfish, off the market.
For many years no one worried about dumping insoluble, organic
mercury into water. In 1967, however, scientists discovered that bac-
teria could convert inorganic mercury into a highly toxic, soluble,
organic form called methylmercury. The bacteria are eaten by tiny
62—5138—71——11
154
forms of aquatic life, which are eaten by small fish; the small fish are
eaten by bigger fish, and as the mercury moves up the food chain, it
becomes more and more concentrated. In a body of water containing
.00001 parts of mercury per million, the food-fish might contain 10
parts per million. Tuna and swordfish have large amounts, in part
because both are wide-ranging predators, at the top of long food-
chains.
We should have been alerted before this to the danger of mercury.
In Japan, between 1953 and 1960, at least 48 people died and scores
were permanently disabled—suffering blindness, deafness, convulsions,
coma, mental retardation—from eating fish caught in a bay where a
plastics factory had been dumping mercury.
In the 1950’s, Sweden discovered that mercury was responsible for
her dwindling bird population, and that her fresh-water fish were con-
taminated. The Government there has banned the use of mercury-
treated seed, and recommends that people eat no more than one fish
meal a week.
Pollution has many sources. This applies to the disposal of indus-
trial wastes and sewage from urban communities, insecticides, and
fertilizers from land runoff, seepage of petroleum from offshore drill-
ing, as well as the pollutants that accumulate in the marine food chain
since many species of fish and other marine biota tend to inhabit the
relatively shallow areas of the ocean.
This bill, which I am pleased to cosponsor, states clearly that it is
the policy of the United States “to regulate the dumping of all types
of material in the oceans, coastal and other waters and to prevent or
vigorously limit the dumping into oceans, coastal, and other waters of
any material which could adversely affect human health, welfare, or
amenities, or the marine environment, ecological systems, or economic
potentialities.”
In addition, the bill provides for the means of making this policy
a reality.
It is also my hope that our private industries will voluntarily do
everything possible to limit pollution. We have already seen many
instances of such action. In one instance, for example, the Dow Chem-
teal Co. in Midland, Mich., has prevented waste through such steps as
recycling raw materials. It has made each man—“right down to the
janitor”—accountable for pollution, using the rule: “If you mess it up,
you clean it up.” Dow has attached the same emergency-type impor-
tance to a pollution incident as to a fire, explosion, or personal injury.
Two years ago when the program started, Dow’s monitors turned
up 1,100 potential pollution problems. Three hundred of them serious
enough to require immediate action—such as the fact that contami-
nants sometimes get into cooling water. Last year Dow spent $800,000
to put in a system with devices that can sense contaminants in the
cooling water and immediately divert the water into a 50-million gal-
lon pond. There it is treated before it is allowed to get back into the
Tittabawassee River.
There are many other instances of such private initiative. It is my
hope that a bill such as the one we are discussing today, and private
efforts by business and industry, can together help us to ease this
major problem of water pollution.
155
For too long we have ignored this question. It is now essential that
we act as quickly as possible to gain some of the valuable time we
have lost. ;
Mr. Lennon. That was an excellent statement, Mr. Kemp. We cer-
tainly appreciate your efforts.
Now [I would hike to call the gentleman from Massachusetts, the
very able Silvio Conte.
STATEMENT OF HON. SILVIO 0. CONTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Conte. I wish to thank the Committee on Merchant Marine
and Fisheries for the opportunity to express my support for H.R.
805 and H.R. 3662, two bills which I cosponsored, that deal with the
serious problems of dumping waste materials into the oceans.
The dangers of indiscriminate dumping are very grave as I am sure
this committee is aware. Thousands of square miles of ocean have been
reduced to lifelessness, with a resulting threat not only to the economy
of the fishing industry, but to health and even life itself.
We know now that the depositing of waste materials in certain of
the Great Lakes was responsible for their present lifelessness and,
indeed, poisonous condition. If we continue to pollute our oceans at the
Lees rate, it is only a matter of time before they, too, cease to support
ife.
Scientists may disagree about the extent to which the oceans are
now polluted, and they may disagree as to how long the oceans can
absorb an increasing quantity of waste without serious and-perhaps
permanent harm. There is substantial agreement, however, on two
facts. First, there is a limit to the amount of waste that the oceans
ean absorb over a given period of time. Second, even the waste now
being dumped in the oceans is producing effects which are not evident
and visible, but which are real, nonetheless, and will have consequences
which cannot now be foreseen.
Mr. Chairman, your committee has a number of bills before it deal-
ing with this matter, and eventually you will draw the conclusions as
to which of these bills will best serve the interest of our Nation.
I wish at this time to urge you to support a strong bill that will
reflect what I feel is a newer and tougher sentiment in Congress
regarding pollution. I assure you that there exists in this country a
vast constituency which would not only support, but which whole-
heartedly desires, such legislation.
T believe that both H.R. 805 and H.R. 3662 are strong, responsible
bills. There are differences between them which I shall not discuss
at this time. These differences are matters of degree since both bills
have substantially the same thrust.
Both H.R. 805 and H.R. 3662 would have the Federal Government
set standards with regard to dumping, require permits or licenses
to be obtained before dumping is allowed, and provide for penalties
should violations occur.
These two bills deserve your careful consideration. I recommend
them to you and urge you to either give one of them your approval,
or else to devise a measure which in your view embodies the best ele-
ments of both of these proposals.
156
Thank you. :
Mr. Lennon. We also thank you for an excellent presentation.
I understand the gentleman from Arizona, the Honorable John J.
Rhodes, would like to give a very brief statement at this time.
STATEMENT OF HON. JOHN J. RHODES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Ruopes. Mr. Chairman, as a cosponsor of the legislation before
you today I appreciate the opportunity to speak on behalf of these
bills proposing a limit on the dumping of hazardous materials into
our coastal waters.
I do not believe that pollution must be the end product of our
Nation’s industry. I believe this country can conquer the menace of
environmental pollution as it has other problems in the past. How-
ever, in order to do this there will have to be legislation enacted by
Congress.
Presently there are no effective standards to regulate the dumping
of waste products in our coastal waters. No one wishing to dump waste
products is required to demonstrate that the material is harmless.
We must have effective standards now. I hope that this committee
will act favorably on this legislation as soon as possible.
Mr. Lennon. Thank you very much, Mr. Rhodes.
I note two other Members of Congress would like to give statements.
Would Congressman Mikva please take the witness chair ?
STATEMENT OF HON. ABNER J. MIKVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Mrxva. Thank you very much, Mr. Chairman.
The sea stirs the spirit of man. In many respects, it is the last unex-
plored and untouched region of the earth. Its vastness defies the imag-
ination; its savage independence frustrates our feeble attempts to
tame it. Yet man is slowly killing the majestic oceans by quietly and
relentlessly dumping his garbage into the sea.
_ It is not fair to say that the problem is only beginning. Many areas
of our coastal waters are already irrevocably contaminated. The New
York Bight isa prime example. A study conducted by the U.S. Marine
Laboratory at Sandy Hook, N.J., and completed last year indicates
that 40 years of dumping has destroyed the marine ecosystem and
rendered most of the area uninhabitable for any sea life. The bight
1s appropriately referred to as “The Dead Sea.”
The prevalence of disease and contamination, which not only threat-
ens the Atlantic coastal fisheries, but also gravely endangers public
health, was indicated by studies conducted in this area. More than a
dozen species of fish captured in the befouled area of the bight were
suffering from a disease known as fin rot. Lobsters and crabs exposed
under laboratory conditions to the same pollutants as are pouring
daily into the bight developed a fouling of their bronchial chambers
and gills. The test animals all perished in 3 to 4 days. A report
recently prepared by M. Grant Gross, Research Oceanographer at the
Marine Sciences Center, State University of New York at Stony
Brook, warns of high concentrations of a number of toxic and cancer-
157
causing elements. If these elements enter or have entered the food
chain, we are faced with a serious hazard to public health. Studies
conducted by a group of scientists under the direction of the Smith-
sonian Institute substantiate these terrible conclusions.
Unfortunately, the situation in the New York Bight is not an iso-
lated phenomenon. Commercial fisheries have collapsed all along the
Atlantic shore because of the deterioration of previously abundant
fishing grounds. There are some 49 dumps off the populous East
Coast and all of them pose a continuing threat to the health of
the Atlantic and to the livelihood of those who depend on it. If left
alone, things are only going to get worse. As sanitary landfill sights
become more crowded and less practical, the ocean is fast becoming the
cheanest and most convenient garbage dump for many coastal cities.
Tf our oceans are to remain a source of food, esthetic pleasure, and
sheer wonder for future generations, then we must stop treating them
like a gigantic open sewer. It is for this reason that I vigorously en-
dorse H.R. 2581, a bill introduced by my colleague from Massachusetts,
Mr. Harrington. This bill represents an important initial step toward
reducing ocean pollution. The proposal authorizes the Administrator
of the Environmental Protection Agency, in conjunction with the Sec-
retary of the Interior and the Chief of the Army Corps of Engineers,
to promulgate standards designed to protect the delicate marine
ecology of our coastal waters, It then requires any potential dumper
within a 12-mile limit of U.S. shores to demonstrate that such dump-
ing will not violate these standards. In short, this legislation puts the
burden where it should be—on the dumper—to show that the dumping
of his garbage is not detrimental to marine life.
While H.R. 2581 is vital to the attack on ocean pollution, it will not
eliminate the preblem. It unquestionably makes it more difficult for
polluters, but it does not preclude further pollution. Cities could
simply take their garbage past the 12-mile limit and dump it or they
may attempt to evade the law through nighttime or clandestine
dumpings. I personally favor an outright ban against ocean dumping.
The United States should prohibit American citizens or vessels from
dumping any deleterious matter into any ocean. Such a unilateral
declaration could prompt other nations to follow suit. The Interna-
tional Oceanographic Commission established by UNESCO in 1961
is a prime example of international cooperation to stop the contamina-
tion of international waters. The organization 1s now sponsoring a
program of research on the Mediterranean Sea, involving some 20
nations including the U.S.S.R., Israel, Syria, and the United States.
The mutual cooperation of these normally antagonistic nations demon-
strates the pragmatism of international policing of our seas.
Ultimately, however, the problem is one of solid waste disposal. We
in America have developed a throwaway society of historic propor-
tions. With sheer arrogance born of obsession with convenience, we
use things once and throw them away, not caring or realizing that all
that garbage piling up has to go somewhere—whether to an incinera-
tor, a landfill site, or some body of water. All three alternatives are un-
satisfactory. The final solution is recycling, and we must begin to
implement ways of reutilizing our resources before we are inundated
with our own waste.
158
The sea has played a great spiritual role in the history of man, and
I would hate to see it die of our own neglect. But that is what is hap-
pening. No event dramatizes this fact better than the voyage of Thor
Heyderdahl who traversed the Atlantic in a small papyrus boat. This
brave man, like Leif Erickson, Columbus, and Magellan before him
challenged the sea and, by enduring the pain and brutality of the
Atlantic, conquered it. And yet thousands of lonely miles at sea the
water was sometimes so full of oi] and other junk that bathing was im-
possible. What a sad commentary on the imprint man has made on his
earth.
Mr. Lennon. Thank you for a very interesting and informative
statement.
Our next witness will be the Honorable Lawrence Coughlin, a very
able Member of Congress from the State of Pennsylvania.
STATEMENT OF HON. LAWRENCE COUGHLIN, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Coucutitn. I am pleased to testify today on a bill, H.R. 805,
that provides specific Federal authority to enforce waste disposal
regulations and curb ocean pollution within a 12-mile limit of the
shoreline of the United States. The ultimate goal of this legislation is
to contribute to the improvement of the ocean environment by allow-
ing only that matter into the oceans that is essentially inert or which
could be assimilated without adverse effects.
As cosponsor of this bill, I recognize that we cannot undo with
one law what has been allowed to happen over the many decades. I
feel, however, that we as Federal legislators must initiate action that
will enable the United States to make meaningful contributions to-
ward ending rampant pollution of the very basis of our life on
earth—the oceans.
The President’s Council on Environmental Quality in its October
1970 report indicates to what degree the cavalier dumping of wastes
off our shores has affected our environment and our economy. Closing
of beaches and bays has become so commonplace that it is accepted al-
most as a fact of life in the United States today. Many of us in the
Congress have supported legislation to protect and increase the use
of recreation areas in and around the coastal waters of the country.
Yet, our efforts in this field cannot succeed in any reasonable measure
until we abate the wholesale polluting of these coastal waters.
According to the Council, about 48 million tons of waste were
dumped at sea in 1968. Dredge spoils accounted for 80 percent by
weight of all our ocean dumping. The Army Corps of Engineers est1-
mated about 34 percent, or 13 million tons, of the material was
polluted.
In 1969, sewage sludge dumped in the New York Bight, an area
encompassing the New York Harbor and adjacent coastal areas, had
an oxygen demand of approximately 70,000 tons. Tests conducted on
wastes taken from this area contained bacteria that cause hepatitis
in man.
All of us are aware of the reports of mercury and DDT which are
discharged from industrial plants or run off from our lands, flow into
our streams and rivers, and eventually find their way into the ocean.
159
Sludge generated by the Baltimore-Washington area is expected
to increase between 1960 and 1980 from 70,000 to 160,000 tons, a rise
of about 140 percent. For the New York area during the same period,
the increase is expected to be from 99,000 to 220,000 tons for a 120-
percent increase.
Industrial wastes are growing at a rate of 4.5 percent annually or
three times the population growth. Many of these wastes are harmful
or toxic to marine life, hazardous to human health, have gravely dam-
aged the shellfish industry, and are destroying the esthetic beauty and
use of recreational areas.
The volume of wastes can only increase as existing facilities decrease.
Landfill sites are becoming scarce or are being outlawed. Escalating
costs from land-based methods of disposal are further encouraging
dumping in our oceans.
The destruction to our shellfish industry by dumping of wastes 1s
appalling. The Council stated that pollution from these dumpings
had closed at least 20 percent of the Nation’s shellfish beds. Affected
shellfish had been found to contain hepatitis, polio virus and other
pathogens hazardous to human health.
The economie effect, aside from obvious and dangerous health haz-
ards, has been devastating. The National Estuarine Pollution Study,
conducted by the Federal Water Quality Administration in 1970,
noted that the annual commercial harvest of soft-shelled clams was
between 100,000 to 300,000 pounds before 1935. This clam digging is
virtually nonexistent because of pollution.
The annual commercial landings of the shrimp fishery before 1936
were as high as 6.5 million pounds. Landings in 1965 were only 10,000
pounds.
The potential value of the U.S. shellfish catch in 1969 was $320
million, As a result of increased pollution in ocean and coastal! waters,
the actual value in 1969 was $257 million, a $63 million loss in this
specific industry alone from the effects of ocean-dumping wastes.
Commercial fisheries, of course, are on the decline with the resultant
loss in business and jobs. Pollution caused by dumping has wiped
out many fishing grounds and sent United States commercial fleets
to distant waters.
A side effect of this situation has been the overfishing of prime
grounds for such species as tuna and salmon. The supply of salmon
particularly is in peril from huge foreign fishing fleets that have
found their feeding grounds in the North Atlantic.
F iz assessing the damage to fishing, we should not overlook sports-
shing.
Milhons of sports fishermen can attest to the dwindling supplies
of ocean fish. At a time when we are attempting to increase recreational
activities, the sport of fishing is being hit hard by the pollution of
rivers, bays, and coastal waters.
Specifically, in the Pennsylvania-New Jersey-Delaware area J cite
the virtual disappearance of the croaker which once roamed the Dela-
ware Bay and even the lower Delaware River in vast quantities. Once
the prime fish for anglers in those waters, the croaker no longer is
available for sports fishing or commercial fishing in the Delaware
Bay. It is a rare occasion when a fisherman catches a croaker in these
waters.
160
It is clear to me that the authority to establish standards should rest
with the EPA. Problems have arisen in the past with current au-
thorities, such as the Army Corps of Engineers, which are mainly
concerned with the navigability of our waterways and not the ecology.
Section 5B(a) defines “ocean, coastal, and other waters” as “oceans,
gulfs, bays, salt-water lagoons, salt-water harbors, other coastal wa-
ters where the tide ebbs and flows, the Great. Lakes, and all waters
in a zone contiguous to the United States extending to a line 12
nautical miles seaward from the baseline of the territorial sea as pro-
vided in article 24 of the Convention on the Territorial Sea and the
Contiguous Zone.” This 12-mile limit would prevent those infractions
which occur today outside of the current territorial sea limit of 3
miles which has left the Army Corps of Engineers helpless to act.
Section 5B(a) also requires that the person wishing to dump sustain
the burden of proof that the materials that are dumped will not en-
danger the natural environment of those waters and will meet any
additional requirements as the Administrator of the EPA deems nec-
essary for the orderly regulation of such activity. Certainly, the time
has come for those who persist in dumping harmful wastes in the
ocean to be held accountable for their action and, in fact, through
this legislation, begin to terminate the amount of ocean dumping
entirely.
The legislation provides that the standards established be adopted
and applied to all parts of the Federal and State authorities which
have the right to issue authorizations to discharge or deposit mate-
rial into these waters.
Furthermore, States may establish their own standards with re-
spect to the activity covered by the Federal standard with the condi-
tion that the State standard would have to be more stringent than
the Federal standard and provide adequate procedures for enforce-
ment. This allows the States not to be hampered by past Federal
uniform minimum standards which serve to hamper rather than to
effect the causes of the activity.
Section 5B(f) provides that every State and Federal instrumen-
tality and every person applying for authorization to discharge or
otherwise dispose of any material into these waters maintain records,
make reports, and provide whatever additional information the Ad-
ministrator of the EPA needs to determine that there is compliance
with the standards.
Section 5B(g) provides that the district courts of the United States
have jurisdiction to restrain violations of this act.
Section 5B(h) provides that each violation of these standards shall
be punishable by a fine of not more than $10,000 nor less than $5,000.
This section would make each dumping in violation of the standards
punishable by fine.
It is clear to me that we must take those steps which are necessary
to turn this spiraling rate of pollution spoilage around, so that we
begin to protect not only human lives but the use of the sea, both eco-
noinically and from a recreational purpose. The dumping of any
waste materials which could create hazardous conditions, toxic or
otherwise, in ocean and coastal waters, must stop. Ocean disposal of
polluted dredge spoil, undigested sludge, and improperly treated sew-
age effluent must be terminated. Disposal of unpolluted dredge spill,
161
rubble, and similar wastes, which have been demonstrated to be inert
and nontoxic, should be evaluated on a case- -by-case basis. Municipal
or industrial refuse, such as garbage, should not be dumped into the
sea. Finally, ocean dumping of digested or other stabilized sludge
should be discontinued as soon as feasible.
I believe the time to act is now or we may find ourselves in a posi-
tion where we cannot change the biochemical reactions which are oc-
curring in the ocean at this very minute.
The state of the oceans is rapidly approaching the crisis stage.
This bill would provide the means for effective and prudent restraints
on ocean dumping within a 12-mile limit from our shores and would
be an instrumental step in seeking international cooperation so indis-
pensable if we are to save our oceans, and life itself, from death by
pollution.
Passage of legislation of this type is especially important in view of
the attitude of “foreign countries. For instance, American initiatives
for an absolute ban on ccean dumping have been rejected by our NATO
allies.
he United States alone cannot end the killing of our seas, but we
can provide the leadership necessary. The spread of dead and dying
sections of our oceans must be stopped.
I hope that the committee will review all testimony and act favor-
ably on measures to curb ocean dumping.
In support of this testimony on H.R. 805, I submit as exhibit A a
letter from the person most expert on the oceans of the world—
Jacques- Yves Cousteau.
I feel that his testimony, based on 30 years of exploration, is the
best available to alert us to the damages we have done to our oceans
and to the dangers we face if we do not act quickly and constructively.
I am grateful “for his support of H.R. 805 and offer, as exhibit B,
biographical information on him that attests to his knowledge and
expertise.
I thank you for the privilege of presenting this testimony and
Jacques- Y ves Cousteau’s letter on behalf of H.R. 805.
Mr. Lennon. Congressman, we are grateful to you for an excellent
statement. If there is no objection, the exhibits you mentioned will
appear at this point in the record.
Mr. Covucuuiry. Thank you for your time, Mr. Chairman.
(The exhibits referred to follow:)
EXxuHisir A
LiIvING SEA CORP.,
Ios Angeles, Calif., April 8, 1971.
Congressman LAWRENCE COUGHLIN,
336 Cannon Office Building,
Washington, D.C.
DEAR CONGRESSMAN COUGHLIN: It is gratifying to learn of the introduction
of bill HR-805 to prevent the dumping of pollutants into the oceans.
For nearly thirty years my companions and I have been studying the waters
of our unique planet. Our observations have been made in stations all over the
world—in the Mediterranean, the Red Sea, in the northern and sounthern Indian
Ocean, the southern Atlantic, the Caribbean and the Pacific—places we have
visited not just once, but often. These observations lead us to an assessment,
true everywhere, that the intensity of life has diminished by more than thirty
percent over the past twenty years. This reduction applies to fixed fauna, to vege-
162
tation, plankton, shellfish, edible and non-edible fish, coral, and, in fact, all
marine life.
There are reasons other than pollution for the diminution of life in the seas:
overfishing is one, and the destruction of breeding and living areas by alteration
of underwater environments is another. But the primary reason is pollution,
for every pollutant on land and in the air eventually finds its way to the sea.
Cleansing rains run through streams and rivers and pipelines directly or indirect-
ly to the ocean.
Because 96 percent of the water on earth is in the ocean, we have deluded our-
selves into thinking of the seas as enormous and indestructible. We have not
considered that earth is a closed system. Once destroyed, the oceans can never
be replaced. We are obliged now to face the fact that by using it as a universal
sewer, we are Severely over-taxing the ocean’s powers of seif-purification.
The sea is the source of all life. If the sea did not exist, man would not exist.
The sea is fragile and in danger. We must love and protect it if we hope to
continue to exist ourselves.
Men of all nations must join together in an effort to Save our seas. I am sure
that by such measures as are called for in HR—-805, we will succeed.
Sincerely yours,
JACQUES-YVES COUSTEAU.
EXXHIBIT B
BIOGRAPHY OF JACQUES-YVES COUSTEAU
For centuries man has dreamed of unlocking the secrets of the mysterious
world beneath the sea. Through his inventions, books, films and television spe-
cials, undersea explorer Jacques-Yves Cousteau has taken man into this inner
space—both vicariously and personally.
Since the day Cousteau donned a pair of goggles more than thirty years ago
and looked into the sea, his goal has been to go deeper, stay longer and learn
more. His dissatisfaction with existing breathing devices led him to design the
compressed-air Aqualung in 1948 in collaboration with the French engineer Emile
Gagnan. Throughout World War II he dived and made underwater films with
companions Frederic Dumas and Philippe Tailliez as a cover for his under-
ground intelligence work.
Cousteau was born in 1910 in St. André de Cubzac, France. He is a graduate
of the French Naval Academy of Brest and served in the French Navy as a
gunnery officer. For his wartime services he was made a Knight of the Legion
of Honor and awarded the Croix de Guerre. Subsequently he was made Officer
of the Legion of Honor in recognition of his contribution to Science. After the
liberation, Cousteau with Dumas and Tailliez founded the Group for Undersea
Research in the French Navy. The Group participated in many underwater
activities including the clearing of German mines from Mediterranean harbors,
testing the effects of compressed air diving and explosions underwater on the
human body, exploring the romantic Fountain of Vaucluse, excavating a Roman
ship sunk off Tunisia in 80 B.C. and aiding with the first dive of a bathyscaphe
in 1948.
Fearing that he would be rotated away from the sea to a desk job, Cousteau
took leave from the Navy in 1950 to create the non-profit Compagnes Océano-
graphiques Frangaises, through which the American-built Calypso, a former
minesweeper, is now operated as an oceanographic research vessel.
Calypso made her maiden voyage as a research vessel in 1951 to the Red Sea
where, for the first time, an underwater television system developed by Cousteau
and French engineer Andre Laban, was put in use. In 1953, Cousteau in collabora-
tion with Frederic Dumas published his first book, The Silent World, a classic
account of exploration and adventure and an immediate best-seller. In the years
between the book’s publication and release of the film of the same name in 1956,
Calypso Expeditions was involved in an archeological dig near Grand Congloue,
off Marseilles, of a Greek wine ship dating from 205 B.C. To trace the route of
the ship, Calypso visited the island of Delos where evidence of the ship’s owner
was found in the ruins of his villa. In 1954, Calypso and divers explored for oil
deposits in the Persian Gulf before making two long cruises to the Seychelles
Islands, the Indian Ocean and Red Sea to film The Silent World, winner of the
163
“Palme d@Or”’ at Cannes in 1956, and the first of three Cousteau films to be
awarded the Motion Picture Academy Award “Oscar”.
In 1957; Cousteau resigned from the Navy and was elected Director of the
Musée Océanographique of Monaco. His engineering organization in Marseilles,
now known as CHMA (for Centre d’Htudes Marines Avaneés), began, under
the direction of engineer Jean Mollard, the design and construction of the Diving
Saucer (DS-2) Denise, 'a revolutionary two-man research and observation sub-
marine of circular design, propelled by water jets capable of going to 1,000 feet of
Gepth,
On her voyage to New York to participate in the International Geophysicai
Year in 1959, Calypso towed a deep-sea camera sled or “Troika”, built by CHMA,
through the depths of the Atilantic’s Rift Valley, making the first continuous
photographic record of that bottom. The Diving Saucer was successfully tested
during that same year and became a major tool for exploration of the continental
shelf.
In 1962, Cousteau and his group establishhed the worid’s first underwater
station, Conshelf I, in which two divers lived continuously for one week in
thirty-five feet of water. The following year a more amibitious underwater com-
munity was established in the Red Sea, and the feature film, World Without Sun,
was made to record the experience. In Coneshelf II five men lived in Starfish
House, submerged in thirty-five feet of water fora month, while further down at
85 feet, two men lived for one week in Deep Cabin. A hangar for the Diving
Saucer and a tool shed completed the underwater station.
During the period from Calypso’s acquisition through the Conshelf III experi-
ment, Calypso expeditions and many Cousteau group projects were funded by
the French Ministry of Education and by the National Geographic Society. Ac-
counts of his experiences were made periodically by Cousteau and appeared in
the Nationa! Geographic Magazine. In 1963, in collaboration with James Dugan,
The Living Sea, which enlarged and expanded on these accounts, was published.
In the following year the construction of Deepstar—4000 for the Westinghouse
Corporation was completed and the three-man submarine was delivered from
CEMA’s manufacturing facility in Marseilles, France. That year also saw another
unique Cousteau project—the world’s first anchored open-sea oceanographic
buoy, Mysterious Island—put into operation in the Mediterranean. Currently,
CEMA is constructing an advance version of the Diving Saucer (the 8.P. 3000)
capable of operating at 10,000 feet of depth and the “Argyroneie’, a ten-man
submarine designed to operate at 2,000 feet and from which four oceanauts will
emerge to carry on assigned tasks on the ocean floor.
Consheif Til in 1965 was a major advance in underwater habitats which
housed six oceanauts at a depth of 328 feet for three weeks. Their experiences
were filmed as a television special entitled The World of Jacques-Yves Cousteau
for the National Geographic-CBS-TV. The popularity of this program triggered
a contract for twelve television specials with Metromedia Producers Corp. and
ABC ealled The Undersea World of Jacques Cousteau. The series of specials has
since received numerous awards throughout the United States and Hurope.
In 1967, carrying special new equipment including two one-man minisubs, (the
“S.P. 500”), Calypso left Monaco for an extended voyage of underwater explora-
tion and filming. The long cruise took the ship and its crew to the Red Sea, In-
dian Ocean, around the Cape of Good Hope, to the ‘South Atlantic, the Carib-
bean, Pacific, Peru, Alaska, the Galapagos Islands, the British Honduras and the
Bahamas before she returned to France in September of 1970. The enthusiastic
response from critics and viewers to the first twelve programs resulted in a con-
tract for a new television Series.
On his return with the Calypso, Cousteau voiced his growing concern over
pollution of the seas. ‘“The sea is the universal sewer’, he said. ‘“‘All pollutants
on land eventually reach the sea’. In 1960, Cousteau had lead a successful cam-
paign to prevent the French Atomic Energy Commission’s dumping of radio-
active wastes into the Mediterranean. At that time he remarked, ‘‘We risk
poisoning the sea forever just when we are learning her science, art and philos-
ophy and how to live in her embrace.”’
Cousteau is also Chairman of the Board of U.S: Divers Co., a diving equip-
ment manufacturing firm; Les Requins Associés, a French film production com-
pany; Living Sea Corporation, a marine structural and design firm in charge
of the design of the Museum of the Sea Aboard the Queen Mary; and Thalassa,
164
Incorporated, which specializes in feature and television films. He is President
of the World Underwater Federation, representing free divers in thirty coun-
tries, a member of the U.S. National Academy of Science and he holds degrees
from the University of California at Berkeley and Brandeis University as an
honorary Doctor of Science. In October 1970, Cousteau was again honored.
He received the Potts Medal from the Franklin Institute and the Spirit of St.
Louis award from Saint Louis University.
More recently, Cousteau is the founder and Chairman of the Board of
EUROCEAN, a new European organization set up to study and implement the
exploitation of the ocean.
Mr. Lennon. We have at this time the distinguished chairman of
the Council on Environmental Quality, Mr. Russell E. Train. If you
have anyone with you, Mr. Train, you may bring them forward and
have them sit at the table with you.
Mr. Trary. I have another member of the staff in the audience but
I don’t believe I will bring him up to the table except in case of need
perhaps to answer questions, but at this point I will deal with it myself.
Mr. Lennon. All right.
STATEMENT OF RUSSELL E. TRAIN, CHAIRMAN, COUNCIL ON
ENVIRONMENTAL QUALITY
Mr. Trary. Mr. Chairmen—and I have used that word in the plural
here as I gather we have cochairmen: I was not sure whether to say
Mr. Co- Chairmen—Congressman Pelly and Congressman Mosher, I
appreciate the opportunity to meet with your subcommittees and to
testify in support of the President’s proposals for the control of ocean
dumping. Protection of the marine environment has been and contin-
ues to be a high priority concern of this administration.
The Council on Environmental Quality has been deeply concerned
about and involved with the problems of ocean dumping from its in-
ception slightly over 1 year ago. In his message to Congress of April
15, 1970, on the subject of Great Lakes and other dumping, the Presi-
dent directed the Council to make a study and report on the ocean
disposal of wastes. Through the summer of last year the Council
worked to prepare a report to the President on the subject.
On October 7, 1970, the President transmitted the completed report
to Congress, endorse the Council’s recommendations and stating
that: specific legislative proposals in the form of a bill would be pre-
sented to the 92d Congress. The bill was transmitted to Congress as
a part of the President's recent environmental mess: age on February 8,
This bill has been introduced by Congressman Pelly as H.R. 4247 on
February 10 and also has been introduced as H.R. 4723 by Congress-
man Garmatz, your distinguished chairman; as H.R. 5239 by “Con-
gressman Kemp; as H.R. 5268 by Congressman Ruppe; as H.R. 5477
by Congressman Pelly; and as H.R. 6T71 by Congressman Gerald
Ford.
During our formal study we became convinced that there is a critical
need for Federal legislation to implement a national policy on ocean
dumping. I would like briefly to present our reasons for reaching this
conclusion and for adhering to it in the light of our subsequent work.
Then I would like briefly to describe our legislative proposal and com-
ment on several of the other proposals now pending before the House
and this committee.
165
We often do not take adequate account of the fact that oceans—140
million square miles of water surface—cover over 70 percent of the
earth. They are critical to maintaining the world’s environment, con-
tributing to the oxygen-carbon dioxide balance in the atmosphere, af-
fecting global climate, and providing the base for the world’s hydro-
logic system. Oceans are economically valuable to man, providing,
among other necessities, food and minerals.
The coastlines of the United States are long and diverse, ranging
from the tropical waters of Florida to the Arctic coast of Alaska.
These areas, as biologically productive as any in the world, are the
habitat for much of our fish and wildlife. They also provide transpor-
tation, recreation, and a pleasant setting for more than 60 percent
of the Nation’s population.
These waters are also the final receptacle for many of our wastes.
Sewage, chemicals, garbage, and other wastes are carried to sea through
the watercourses of the Nation from municipal, industrial, and agricul-
tural sources or directly by barges, ships, and pipelines.
The amount of wastes actually transported and dumped in the ocean
is small in terms of the total volume of pollutants reaching the oceans.
But even so, the Council estimated that in 1968 slightly over 48 mil-
lion tons of waste were dumped at sea off the shores of the United
States. Of this total, the main source of ocean dumping were:
(1) Dredge spoils—the solid materials removed from the bottom
of water bodies, generally for the purpose of improving navigation
(80 percent of the total by weight) ;
(2) Industrial wastes—acids, refinery, pesticide and paper mill
wastes, and assorted liquid wastes (10 percent) ;
(8) Sewage sludge—the solid material remaining after municipal
waste water treatment (9 percent by weight) ;
(4) Construction and demolition debris—masonry, tile, stone, ex-
cavation dirt, and similar materials (about 1 percent) ;
(5) Solid waste—the common refuse, garbage, or trash generated
by residences, commercial, agricultural, and industrial establishments
(less than 1 percent).
And, as we all know, small but potential tonnages of other materials,
such as explosive munitions and chemical warfare agents, have been
dumped.
Tonnages are not a good indicator of the effect of the dumped ma-
terial. Dredge spoils, for example, can be contaminated with pollutants
from industrial, municipal, agricultural, and other sources on the bot-
tom of water bodies. If these contaminants are oxygen-demanding ma-
terials, they can reduce the oxygen in the receiving waters to levels
at which certain acquatic life cannot survive. Heavy metal contamina-
tion can also create water concentrations toxic to marine life. Sewage
sludge, whether or not digested to control odors and pathogens, can
also contain significant concentrations of heavy metals and of oxygen-
demanding materials.
Most of the dumping takes place in designated sites for the disposal
of certain types of wastes. Disposal sites for dredge spoils are scattered
off the Atlantic, gulf, and Pacific coasts, but most of the ocean disposal
of other wastes is concentrated in Atlantic sites off the heavily pol-
luted Northeastern States. The effects of dumping in a designated
166
area can be disastrous, as studies of the New York Bight and the
areas off Rehoboth Beach indicate.
The problem that faces us is not limited to the effects of materials
presently being dumped. The volume of waste dumping is growing
rapidly, and the future impact of dumping could increase significantly
relative to other sources of pollution in the ocean. Because the capacity
of land-based disposal sites is becoming exhausted in some coastal
cities, some communities are increasingly looking to the ocean for dis-
posal. And, higher water-quality standards could lead industries to
also look to the ocean for disposal.
A number of alternatives are presently available for wastes now
being dumped at sea. Our report discusses these aiternatives in detail
and also evaluates present efforts to develop other disposal options,
some of which such as land reclamation and recycling can be environ-
mentally beneficial. After an evaluation of the effect of specific types
of wastes currently being dumped and of the alternatives to dumping
available, the Council recommended adopting certain policies respect-
ing the ocean disposal of given types of materials.
Mr. Chairman, the next three pages are essentially summaries from
the ocean dumping report. I would just as soon skip over these with
the request that they be inserted in the record, or if you would prefer
T will be happy to read through them.
Mr. Lennon. If you have the time, I would like you to read through
them; I think it might be better.
Mr. Trarn. All right, sir. I would be happy to do so.
OCEAN-DUMPING POLICY
cean dumping of undigested sewage sludge should be stopped as
soon as possible and no new sources allowed.
Ocean dumping of digested or other stabilized sludge should be
phased out and no new sources allowed. In cases in which substantial
facilities, and/or significant commitments exist, continued ocean dump-
ing may be necessary until alternatives can be developed and imple-
mented. But continued dumping should be considered an interim
measure. :
Ocean dumping of existing sources of solid waste, other than sewage
sludge, should be stopped as soon as possible. No new sources should
be allowed; that is, no dumping by any municipality that currently
does not do so, nor any increase in the volume by existing municipal-
ities.
Ocean dumping of polluted dredge spoils should be phased out as
soon as alternatives can be employed. In the interim, dumping should
minimize ecological damage. The current policy of the Corps of Engi-
neers on dredging highly polluted areas only when absolutely nec-
essary should be continued, and even then navigational benefits should
be weighed carefully against environmental costs.
The current policy of prohibiting ocean dumping of high-level
radioactive wastes should be continued. Low-level liquid discharges to
the ocean from vessels and land-based nuclear facilities are, and
should continue to be, controlled by Federal regulations and inter-
national standards. The adequacy of such standards should be con-
tinually reviewed. Ocean dumping of other radioactive wastes should
167
be prohibited. In’a very few cases, there may be no alternative offering
less harm to man or the environment. Im these cases ocean disposal
should be allowed only when the lack of alternatives has been demon-
strated. Planning of activities which will result in production of radio-
active wastes should include provisions to avoid ocean disposal.
No ocean dumping of chemical warfare materials should be per-
mitted. Biological warfare materials have not been disposed of at
ea and should not be in the future. Ocean disposal of explosive muni-
tions should be terminated as soon as possible.
Ocean dumping of industrial wastes should be stopped as soon as
possible. Ocean dumping of toxic industrial wastes should be ter-
minated immediately, except in those cases in which no alternative
offers less harm to man or the environment.
Ocean dumping of unpolluted dredge spoils, construction and dem-
olition debris, and similar waste which are inert and nontoxic should
be regulated to prevent damage to estaurine and coastal areas.
Use of waste materials to rehabilitate or enhance the marine en-
vironment, as opposed to activities primarily aimed at waste disposal,
should be conducted under controlled conditions. Such operations
should be regulated, requiring proof by the applicant of no adverse
effects on the marine environment, human health, safety welfare, and
amenities.
That concludes the summary of the policy recommendations includ-
ed in our report. —
Current regulatory activities and authorities are not adequate to
carry out such a policy. The States, the Army Corps of Engineers, the
Coast Guard, the Atomic Energy Commission and the Environment-
al Protection Agency each exercise some control, but the dispersion
of authority along with an accompanying inadequate jurisdictional
basis and lack of statutory standard-setting guidance prevent an effec-
tive governmental response to ocean dumping problems.
Government: witnesses who will appear before you in the coming
days will describe our bill in detail. But, in a nutshell, to control ocean
dumping adequately, the administration bill would provide a ban on
the unregulated dumping of all materiais into the oceans, estuaries,
and Great Lakes and would provide authority te limit strictly ocean
disposal cf any materials harmful to the marine environment. It
would require a permit from the Administrator of the Environmental
Protection Agency for the transportation for dumping in estuaries,
the Great Lakes, and the oceans anywhere in the world of wastes
which originate in the United States and for dumping by United
States and foreign nationals in our territorial waters and in the con-
tiguous zone when the dumping would affect our territory or terri-
torial sea.
The Administrator would be empowered to ban ocean dumping of
certain materials and to designate safe disposal sites for others. Trans-
portation for dumping or dumping without a permit, or dumping in
violation of a permit would be subject to civil and criminal penalties.
The Coast Guard would perform surveillance and cther:appropriate
enforcement activities.
Specific considerations are set. out) for use by HPA in developing
criteria for ccean dumping. EPA could refine and modify the criteria
as additional knowledge on the effects of ocean dumping is gained.
168
In no ease could dumping violate Federal-State water quality stand-
ards in the United States territorial sea or contiguous zone. ‘The pro-
posal would encourage Federal research on the effects of materials
dumped or spilled into the oceans and the development of means of
monitoring and controlling such disposal. In developing the criteria
and the enforcement programs, EPA would work with the Coast
Guard and the National Oceanic and Atmospheric Administration.
Our premise is that action is necessary now to avoid a serious na-
tional problem from ocean dumping. Yet, the proposed action is not
all preventive. Adequate regulation could contribute to the restoration
of many of the presently damaged areas. J
Congress now has before it a number of other legislative proposals
which also seek to control ocean dumping. I would lke to comment
on these proposals briefly, discussing these aspects which involve prin-
ciples essential to effective control over ocean dumping. The commit-
tee is very fortunate to have the benefit of a number of fine proposals,
and I commend not only the interest which you have demonstrated in
this subject but also the cooperative and bipartisan spirit in which you
have approached the matter. We would hope that you will consider our
comments as constructive suggestions and that we could work together
in arriving at a solution.
H.R. 3662 would amend the Fish and Wildlife Coordination Act by
providing for a new section 5B which would prohibit dumping waste
material into or transportation of such material through estuarine
areas, the territorial sea, the Great Lakes, and the waters above the
Outer Continental Shelf, except where a permit has been obtained
from the Administrator of EPA. We obviously appreciate the recita-
tion of factors such as land-based alternatives and the effect of the
dumping on human health and welfare, fisheries resources, and marine
ecosystems which the Administrator would consider before acting on a
permit application.
Nonetheless, the State Department has advised us that the jurisdic-
tional provisions of this bill are unsound as a matter of international
law. Mr. Stevenson, the State Department’s Legal Adviser, will be
discussing the jurisdictional problems with you on Wednesday. Not-
withstanding the jurisdictional issues, we are concerned with the bill’s
failure to regulate transportation for dumping beyond the 200-meter
depth contour for the Outer Continental Shelf.
We suggest that the United States should control the transport of
material from the United States for dumping in the outlying areas of
the high seas. The need for such control is demonstrated by the recently
disclosed practice of disposing of solid arsenic wastes originating in
Pennsylvania by dumping it in steel drums 1,000 miles out to sea.
We also suggest that effective and efficient implementation of the
regulatory concept would be aided by placing primary emphasis on
control of the transportation for dumping of material which originates
within the United States. Very nearly all of our problems arise from
such dumping and accordingly our concerns must be with regulating
this dumping along with developing environmentally sound domestic
alternatives to the ocean dumping means of disposal of our wastes.
Nonetheless, direct control seems desirable for all dumping in our
territorial sea and in our contiguous zone where it affects our territory
169
or our territorial sea. Further direct controls over dumping in the
waters above the Outer Continental Shelf of wastes not originating
in the United States do not seem necessary. In light of the experience
gained through our study such dumping does not present a practical
problem. As far as we know, no such dumping takes place.
Paragraph (b) (4) of H.R. 3662 would prohibit the Administrator
from issuing permits to dump radioactive wastes, toxic industrial
wastes, and chemical and biological warfare materials. Subsection 5(f)
of our bill would give the Administrator more flexibility in dealing
with the problems caused by particular pollutants, providing, where
and when appropriate, for a complete ban on the dumping of partic-
ular materials.
Satisfactory alternatives to ocean dumping may not be available
in all cases. We would not favor foreclosing the Administrator from
considering a disposal option which in a given case may be environ-
mentally the most desirable or, put another way, the least undesirable.
Some have said that the specific ban on dumping particular materials
actually only carries out the policy as expressed in our report and
which I have described earlier. This is not the case.
For example, we recommended continuing the present prohibition
on the dumping of high-level radioactive wastes. We recommended
maintaining careful controls on dumping certain low-level wastes.
And, where careful advance planning could not avert occurrence of a
situation where the ocean dumping alternative was demonstrably the
least harmful, we recognized that it should be chosen. The upshot of
our whole approach is that the Administrator will be in the best
position to assemble, not only from his agency but other agencies, the
scientific and technical data necessary to choose between an immediate
ban, a gradual phasing out, or other regulatory control as warranted
by the facts of each case.
A further bill, H.R. 1661, would regulate the discharge from vessels
of wastes originating in the United States, requiring that a permit be
obtained from the Administrator of EPA prior to such loading. This
bill would also bar the discharge of wastes in waters between the
seaward edge of the Continental Shelf and the coast of the United
States. Again, we agree with much that is contained in H.R. 1661, and
particularly with its focus on regulating the transport of wastes from
the United States.
We do recommend extending regulation to transport other than by
vessel, since much dumping of material such as dredge spoils does not
take place from vessels but rather from special conveyer systems or
pipelines which are not considered outfalls. And, we do not advocate
an absolute ban on dumping for any area which is selected only by
geography and not by its ecological characteristics. Relationship of the
area to alternatives to ocean dumping also is important because many
materials such as unpolluted dredge spoil can be dumped in the par-
ticular general sea area from which they originated, and returning
them to a carefully selected nearby site may be the action most in ac-
cord with maintaining and preserving the existing land and marine
environments.
Another bill, H.R. 4359, would combine many of the elements of
the bills previously mentioned, but would also direct the Secretary of
62—5138—71——12
170
Commerce, acting through NOAA, to establish marine sanctuaries
where, among other things, dumping would not be permitted. We
wholeheartedly agree that dumping should not be permitted in given
areas and have provided authority for the Administrator to take ef-
fective action to achieve such an end by simply not issuing any per-
mits for dumping in such areas. As he desired, the Administrator
could designate recommended sites for dumping and thereafter only
grant permits relating to such sites.
I would not wish to neglect research needs in my comments. As our
report pointed out, serious Information deficiencies exist, and research
is required in such broad and diverse areas as the pathways of waste
materials in marine ecosystems and the recycling of wastes and the
development of alternatives to ocean dumping. Agencies such as EPA,
NOAA, and the Coast Guard have authority and have presently oper-
ating programs to gain such information. Implementing an ocean-
dumping policy by enactment of appropriate legislation would provide
a focus for a cooperative research effort. The Council is presently en-
tering upon a study of recycling to evaluate the policy optiens avail-
able in that area. Other such efforts will be stepped up.
My remarks have been extensive and I would not wish to prolong
them further except to comment briefly on our international efforts and
prospects in this area. Through domestic legislation such as that which
we have proposed, in my judgment very effective action can be taken
to curb the present and potentially harmful effects of ocean dumping.
Further, such action can be taken consistent with accepted principles
of international law. Very nearly all of our problems in the United
States with ocean dumping arise as a result of disposing of waste mate-
rial which originates within the United States.
We can and should through domestic legislation control the trans-
port for dumping of such material. We can and should also control
all dumping in our territorial sea and dumping in our contiguous zone
which affects our territory or territorial sea. And, as the President has
stated, we will urge other nations to adopt similar measures and en-
force them. But, a completely effective system for the control of ocean
dumping would involve regulation of at least all harmful materials,
wherever they may be generated, and wherever and by whomever
they may be dumped.
The administration bill contains a section requiring the Secretary
of State to “seek effective international action and cooperation to in-
sure protection of the marine environment. .. .” State, in conjunc-
tion with the Council and other concerned agencies, is taking steps to
assure accomplishment of this objective. We anticipate that the 1972
United Nations Stockholm Conference on the Environment will be a
useful forum in this respect.
Tf the United States is in fact to exercise leadership in this critical
area, if it is to persuade other nations to control their ocean disposal
of wastes, then it is essential that the United States first put its own
house in order. In my opinion, prompt and favorable action by Con-
gress to establish effective regulation of ocean dumping is a pre-
requisite to action by other nations.
Thank you, Mr. Chairman. That concludes my prepared statement.
Mr. Lennon. Thank you, Mr. Train. I personally do not think that
171
your remarks have been too extensive; they were very interesting, in-
formative, and certainly will be most. helpful.
Mr. Rogers. :
Mr. Rogers. Thank you, sir.
Mr. Train, I notice that you take pretty much the position the bills
have taken generally that certain elements should be permitted all
together. My understanding is that the President said there would be
no more ocean dumping for Federal agencies. Am I correct or incor-
rect on that?
Mr. Trarn. It is the President’s policy that Federal agencies prior
to the enactment of legislation endeavor, to the extent practicable, to
conform to the policy which he has recommended for legislation. Cer-
tainly the Federal agencies would be covered by our proposed legis-
lation.
Mr. Rocrrs. What I am concerned with—we had a problem with
the Army where we got into all this nerve gas thing, as you recall,
and then we had problems with the Navy in my own State where they
dumped acids and oil. Now i find, and I have predicted this would
happen, we would have to go service by service to get anything done.
Now I find the Air Force is out dumping in California and I am sure
from other bases in an attempt that I think will soon kill off part
of the water in the ocean there off southern California and that is the
Norton Air Force Base.
They have been dumping chemicals into the ocean via barge. Now
they are supposed to dump them 5 to 10 miles off, but. if it is good
and foggy they say they do it quickly and they even had a problem
there where they could not get them to sink so they used rifies to sink
the containers and even had one blow up and blow part of a ship out,
too, I understand. Now they have stopped the dumping by barges
since the President’s direction came out, but do you know what they
are now doing? They are now taking it in trucks and just dumping
it into the sewerage system and it goes right into the bay.
Now I think that is a perversion of what the President intended
and I would hope that there is some action that could be taken to
prevent that. That is probably the largest film depository where they
develop a lot of film in Hollywood, so all of these chemicals that are
most deadly are dumped right into the sea. In fact, there are some
that directly effect cancer.
Are you aware of this situation ?
Mr. Tratn. No; I am not, Mr. Rogers: That is new information
to me and I am certainly very glad to have it. I assure you that I will
be in touch with the Air Force as soon as this hearing is over to dis-
cover what is going on.
Mr. Roczrs. Should they not be filmg an impact statement with
you if they dump 1.2 million gallons of chemicals, including cyanides,
sulfates, hexa chromium, and 94 other chemicals? The truck leaves
the base each m 1orning by 7:30 to 8:30 and they simply dump inte the
sewer lines into the bay, and the truck is marked, incidentally,
corrosives
Mr. Train. In specific answer to your question, Mr. Rogers, from
what you describe I would consider these actions to be subject to the
National Environmental Policy Act and the subject of environmen-
tal impact statements under section 102; yes.
172
Mr. Rocers. I understand they have not filed such a statement.
Mr. Trarn. To my knowledge, no.
Mr. Rocers. I think you are correct, we have also checked with EPA
and have not found that to be the fact.
Also, I would just like to recall while we are going into this just
a minute the fact that when the Navy ordered the dumping into the
St. Johns River of the acids we went into the problem cf who is
responsible, what happens. The Corps of Engineers under the law
is supposed to recommend an action by the Attorney General. Well,
they are afraid to do it against the Navy. We have talked to the
counsel over there; “Oh, we don’t think we can do that.”
We said; “What about the individual who gives the command ?”’
“Well, there may be some authority there, we better let the Navy
do it.”
Now the Navy told us they were going to investigate. It has been
over 6 months and still no action taken against the person who gave
that order. Now if this continues, the perversion of what the President
has ordered has gone astray, the intent of the law is not being carried
out. We will never stop dumping unless we begin to center respon-
sibility and take some action or at least a reprimand, and I have not
even seen that done. I don’t see as much point in us passing a lot of
laws if our own establishments are going to ignore the law and ignore
the intent of Presidential directives.
Do you suppose we can get any action on that ?
Mr. Tratn. Well, as I say, having this information I will certainly
take it up with the "Air Force right. away. We are very much depend-
ent on the council on information to provide a basis for identifying
problems.
Mr. Roeers. I understand.
Mr. Tran. As you understand, this kind of information is not gen-
erally volunteered to you by either a government agency or a private
source if that is what is involved. So it is helpful to us to have this
kind of information and we can certainly proceed to look into the mat-
ter and see what 1s going on.
Mr. Rogers. Would you, and let us know ?
Mr. Tratn. I certainly will.
Mr. Rogers. I think it is very vital.
Mr. Tratn. And I do. At the same time, with all of the continued
actions which are clearly inconsistent with the policy which the Presi-
dent has recommended, I do note that the Defense Department has
been moving to put its house into order. The Secretary has banned, as
you know, all dumping of chemical and biological warfare agents.
This has been completely stopped. Of course no biological warfare
agents have ever been dumped at sea, but chemical warfare agents, as
this committee well knows, were dumped and this has been now com-
pletely banned. There are no explosive dumpings presently underway.
There was one that was scheduled but that has been held up pending
an extensive Navy study of alternative methods of disposal.
The Navy has also to my knowledge moved, I hope effectively since
the dumping of the oily wastes off the Florida coast some months back,
to prohibit any reoccurrence of that kind of action from any of its
other bases around the coastline. Now on the other hand, the kinds of
173
cases to which you referred do arise and we have to keep working on
them.
Mr. Rocers. I think some action needs to be taken, and also on mer-
eury. I think we could have prohibited the dumping of mercury but
the agencies still have not done this. We know it takes action, we know
the deadliness of it. We have had a few suits brought where they still
permit them to continue, and I would hope you could encourage some
action, too.
I won’t continue now because I know the other members have ques-
tions. There are many questions I would like to go into, Mr. Chair-
man, with Mr. Train at a later time.
Mr. Lennon. Would you like to submit the specific questions and let
him include them in the policy review ?
Mx. Rogers. Some of them. I think it would be actually helpful to
have a little rapport because you don’t always get the answer you
need.
Mr. Lennon. Thank you.
Mr. Pelly.
Mr. Parry. Thank you, Mr. Chairman.
Mr. Train, before you came into the hearing room one of the wit-
nesses testifying in behalf of his own bill said that the administra-
tion bill is lacking in the major provision of his own original legisla-
tion—the establishment of no dumping sanctuaries for marine life. His
comment was that “Proposals which simply move dumping grounds
from one area to another are myopic and only increase the danger of
prolonged pollution and international complications growing out of
contaminating the world’s oceans.”
I think you referred to the subject of sanctuaries in your discussion.
Would you care to comment on this witness’s statement ?
Mr. Tratn. I suspect I was commenting upon the same bill, although
T am not certain. I was simply noting for the information of the com-
mittee that under the administration bill—while it does not have a
marine sanctuary section in it, that was not really the purpose of the
legislation—it does have authority for the Administrator of EPA to
prevent any form of dumping in certain fixed areas at his discretion.
Mr. Perry. In other words, you don’t agree that the administration
bill would result in just moving a contaminated area from one place to
another ?
Mr. Trai. Oh, no; certainly not. The administration bill, that is,
the purpose of the bill, is to either stop or to phase out as rapidly as
possible all harmful dumping.
Mr. Peny. In the administration bill there would be a requirement
for a permit for transportation of material in the United States to be
dumped anywhere at sea and then also it would require a permit for
the actual dumping by any person. Is that duplication or is there any
reason for the distinction ? |
Mr. Trarn. We are not talking about two permits. It is the trans-
portation from the United States which is the jurisdictional hook, if
you will, upon which we hang the authority of the United States to
regulate dumping anywhere in the world. So if a ship carries wastes
from a U.S. port to dump anywhere in the world, it will have to have
a permit from the Administrator of the EPA.
174
Mr. Pruuy. In other words, there is a legal power to control carrying
pollutant materials through the the territoria! sea and on that basis you
propose to prevent it from being dumped outside.
Mr. Train. It is actually the taking from the United States proper,
not the passing through the territorial sea.
Mr. Pxuuy. In other words, it is an export permit. What legal au-
thority would there be for taking material from a port as against going
through our sovereign territorial waters ?
Mr. Traryn. Well, of course, you could not leave a port without going
into the waters but it would be under the commerce power, I presume.
We do not by that authority seek to govern the case, for example, where
wastes are loaded in a foreign port and for some reason carried
through the U.S. territorial waters and then back out to the high seas
somewhere and dumped. We would not seek to assert U.S. jurisdiction
over that dumping by this legislation.
Mr. Prntiy. Does the International Cenvention on the Law of the
Sea give us authority to prevent dumping over the Continental Shelf?
Mr. Tratn. If we get into the complexities of international law in
this area, you might be better advised to rely on Mr. Stevenson of the
State Department. But, I would say this: that our jurisdiction insofar
as territorial seas are concerned extends only 3 miles, and 9 miles
beyond that to the contiguous ozone.
Mr. Pruiy. Over the bottom, but we don’t actually cover the free-
swimming fish, for example. .
Myr. Tratn. Under the Geneva Convention with respect to the deep
seabed we have jurisdiction over the resources of the seabed out to
the 200-meter isobath or so much further out as we have the ability
to exploit it. I hope Iam close to the language.
Mr. Prexry. You are almost word for word but I just thought per-
haps there would be some limit on our power to prevent anybody
ape over our seabed to the extent of 12 miles, the Continental
Shelf.
Mr. Tran. We believe that we have complete authority to regulate
the dumping by anyone within our territorial waters, no matter from
where those wastes come or whether there is any touching at a U.S.
port. We likewise believe that we have authority completely to regu-
late any such dumping in the contiguous zone to the extent that it
could affect the territorial waters or our shores. In effect, we say this
gives us authority to regulate ocean dumping within the 12 miles. To
the extent that a dumping takes place outside of the 12-mile limit,
whether on the Continental Shelf or beyond the Continental Shelf, we
do not believe that the United States has unilateral sovereign author-
ity to regulate that except where the wastes originate in the United
States.
Mr. Pstiy. I think some of the bills that are before the committee
actually do seek to control outside the 12-mile limit.
Mr. Trarn. They do, sir; and this is one of the problems to which
I have referred in my statement. To the extent that they do seek to
regulate dumping on the Outer Continental Shelf bevond the con-
tiguous zone where the wastes do not orignate from the United States.
we believe there is raised a very serious question under international
law. At the same time I go to great pains to point out there is no evi-
dence of such dumping so it is not at the present time a real problem.
175
Mr. Pewuy. Mr. Train, I just have two quick questions, and answers
to which I think should be in the record. One has to do with the
matter of violations. The administration’s bill provides that each day
of the continuous offense shall be counted as a separate violation.
With respect to the dumping of material from barges, however, would
it not be better to consider each incident a separate violation since
more than one barge load of material could be transported within a
given day?
Mr. Trartn. I think I better give you a response for the record
on that.
Mr. Petry. Yes.
(The response follows :)
Subsection 6(c) of the bill provides that “each day of a continuing violation
shall constitute a separate offense.” Dumping from a single waste-carrying
barge would be a separate, identifiable incident and not a “continuing viola-
tion’, even if the same barge were to make a second dumping trip later in the
same day. Accordingly, each such barge dumping would be considered a separate
violation under the present language of the bill.
Mr. Prtxiy. Then the other question I have has to do with the rights
that are given to the States to establish their own standards. Well, I
don’t see any provision in the administration bill that requires that
the State standards should have greater strength than actually the
standards provided in this bill.
Mr. Train. Where are you reading from in the bill, Mr. Pelly ?
Mr. Petiy. Well, I have some notes here and I will read them. I
don’t have the actual bill before me.
The bill does not state that the State requirements must be more
stringent than the Federal law.
It issection 7(e) Iam told.
In other words, should we imply or should the bill be amended to
assure that any State requirements would be more stringent than the
Federal requirement ?
Mr. Train. The Federal Government is taking over—well, no, that
is not entirely correct.
What the bill provides in section 7(e) is that the fact of Federal
regulation as provided by this bill will not preempt the States from
exercising regulatory authority if they wish. Now in effect what this
means is that if a State wishes to set more stringent rules than the
Federal within the 3-mile limit of the territorial waters, it will be free
to do so. On the other side of the coin, a State could not set less vigor-
ous standards within the 3-mile limit, or if it did the Federal regula-
tions would override them because the Federal permit would be needed
and would rest on the Federal criteria.
Mr. Petxy. So I will not take too much of the other Members’ time,
I will ask you to supply for the record the answer to my question with
regard to the jurisdiction in connection with oil.
Mr. Trarn. Yes, sir.
(The information follows :)
Discharges of oil are strictly regulated by other Federal laws. For example,
section 11 of the Federal Water Pollution Control Act bars making discharges
of oil determined to be harmful into the territorial sea or the waters of the
contiguous zone. By regulation, any discharge creating a visible sheen has been
determined to be harmful. Further restrictions, particularly on the high seas,
are imposed under the International Convention for the Prevention of Pollu-
176
tion of the Sea by Oil, 1954, as amended. Pertinent further amendments to
this Convention were adopted by a Conference of Contracting Governments
in 1969, and the President has transmitted these Amendments to the Senate for
its advice and consent.
Mr. Petiy. Thank you, Mr. Chairman.
Mr. Lennon. Thank you, Mr. Pelly.
Mr. Karth.
Mr. Karru. Mr. Chairman, I know time is fleeting. I merely would
like to make a request, if I may. Pursuing what our distinguished col-
league from Florida started, if he is correct about the Air Force
dumping, I would like to have you, Mr. Chairman, submit for the
record the name or names of those who are responsible for having
given the order to dump and the name or names of those responsible
for filing with you or the EPA an application to dump. Would you do
that for the record ?
Mr. Tran. Certainly. I will endeavor to get the information—that
should be my correct answer.
Mr. Kartn. I am sure you can.
(The material follows:)
We have been informed that the Air Force has transmitted to you a factual
statement describing the circumstances involved in Norton Air Force Base’s han-
dling of liquid wastes. To our present knowledge, the treatment given the Norton
wastes is consistent with applicable water quality standards. We have asked
the Environmental Protection Agency to review the present Norton handling
practices for such wastes and to assess the adequacy of the applicable treatment
standards. At your request, we have also asked the Air Force to identify those
officials who are responsible for the Norton practices and to send you their names
in a Separate, subsequent letter.
Mr. Kerra. Would the gentleman yield?
Mr. Karrn. Yes.
Mr. Kerrn. I hope you would add the corrective action that is neces-
sary to overcome this condition and to make certain it does not occur
again.
Mr. Kartu. If you would, Mr. Chairman, the results of your in-
vestigation and your recommended action.
Mr. Rogers. Would the gentleman yield ?
And also the point I mentioned about the Navy doing nothing
about the dumping at the St. Johns, I think we need some informa-
tion on what action is taken there, what investigations, what action
has been taken against the officer who gave the dumping order. I in-
tend to pursue it but I think it might be helpful if you could request
it also.
Mr. Tra. Which exact case was this?
Mr. Rogers. Where they dumped the acid in the St. Johns River.
The command was given from the Naval District Office, not the little
Lieutenant who actually translated the order but the order was given
from up the line. We need to know who did that, and some action
should be taken against those people.
Mr. Train. I will to the best of my ability get together these an-
swers for you. As you may know, there will be a witness here from
the Navy, I believe, later this week.
Mr. Rocrrs. Maybe you can ask if he has the answer when he comes.
Mr. Train. I certainly will mention this to him.
Mr. Lennon. We are talking about the May berry, incident, in which
the contractor for the Navy dumped, with the permission of the Navy,
Lag
first of all sulfuric acid, and then subsequently caustic soda, which
the Administration on Oceanography became involved in and had the
assurance of the Navy there would be an investigation, and a report
and an assurance, too, that they would take it up with you.
We would like to know, and we think we are entitled to know, if
they did carry out that directive which obviously they have not be-
cause you have no recollection of it. |
-I thank the gentleman for yielding. Mr. Mosher.
Mr. MosHer. Judge Train, at the bottom of page 10 you commend
the committee for its interest in the subject and you speak of the co-
operative and bipartisan spirit. I judge you are implying there that
the administration has considerable flexibility in its attitude on this
legislation, and you are prepared for some give and take as the com-
mittee considers legislation, and you anticipate that the administra-
tion bill will be changed to include provisions in those bills introduced
by members of our committee. I hope that is the case.
Mr. Train. That is absolutely correct, Mr. Mosher. The adminis-
tration’s purpose is to achieve strong ocean-dumping control legisla-
tion as soon as possible.
Mr. Mosuer. So now the issue between the administration bill and
the bills that have been generated on the Hill seems to be the degree
of discretion which the Administrator of the Environmental Protec-
tion Agency would have. The administration bill gives him almost
whole discretion—at least it 1s very wide discretion—whereas most of
the other bills restrict his options in one way or another.
I think that inevitably will be taken into consideration as we ponder
this legislation. Do you have a certain degree of flexibility at that
point? Do you anticipate that perhaps we should sharpen and strength-
en, and perhaps limit that discretiionary power to a greater degree
than in the administration bill ?
Mr. Train. I think it would be my view that while the policy should
be very clearly announced, and while the criteria which are developed
by the Administrator of the Environmental Protection Agency should
be made a matter of public record, and settled only after public com-
ment, that the Congress should permit great flexibility in the admin-
istration of this program rather than trying to legislate fixed rules
concerning what can and what cannot be dumped, and fix time tables
or specific references to geographic areas.
I believe that we are dealing with a highly complex problem. I
do not believe that you can pretend to, or seek to, regulate the marine
environment in some sort of separation from the land environment. We
are talking about one total interrelated problem. This is the reason
why, for example, the administration’s legislation contains the require-
ment that the Administrator of the Environmental Protection Agency
in setting standards must take into account the effect on the marine en-
vironment, and also the availability of alternative disposal methods.
I think that it would be both unrealistic, and I think incorrect, to
require ocean-dumping decisions to be made irrespective of the effect
of other alternatives.
Mr. Mosner. Well, the complexity of the job is very apparent. I
agree that there is a need for considerable discretionary flexibility,
but at the same time I think that we are going to have to have this
178
very serious and thorough consideration as to certain limits, cer-
tain standards, certain requirements as guidance. I think Congress
cannot relinquish its responsibility just by shoving off to the admin-
istrative agency complete discretionary authority. This is something
that we will all be discussing, of course, 1n the days ahead.
Mr. Rocsrs. Would the gentleman yield ?
I think it will be well to have your comment, Mr. Train, about the
provisions that those of us who introduced H.R. 3662 provided in this
proposed legislation, my bill, to begin to set deadlines as to treatment
of wastes before they can be dumped into the water; for instance,
primary, secondary, and tertiary treatment to set specific dates just
like you did in the air pollution bill.
Now, unless we have goals and dates set, I am afraid all of this dis-
cretion in the administration bill will end up in no decisions and no
real progress being made. I think it is essential for us to have deadlines
as to when we must have primary, secondary, and tertiary treatment
before they can be dumped. I think it would be helpful if we could
have your opinion in the record on this.
Mr. Mosuer. Of course, the Air Quality Act was unique, because
Congress for the first time did establish quantitative standards and
deadlines, and I think this will be almost the prime question before
us as to whether we want to follow that example or not.
Mr. Rogers. I think the gentleman is correct. If you could let us
have your comment on that?
(The comment follows:)
Requirements for primary, secondary, and tertiary treatment of wastes would
generally apply to those liquid wastes which are discharged through outfalls.
Discharges of effluent from outfalls are excluded from regulation under H.R.
4723, with the expectation that such discharges will be addressed under the Ped-
eral Water Pollution Control Act and the Refuse Act. The Administration has
proposed amendments to the Federal Water Pollution Control Act which are now
being considered by other Committees; Mr. Ruckelshaus, the Administrator of
the Environmental Protection Agency, could and to my knowledge will discuss
the details of these water quality proposals with you.
Mr. Lennon. The gentleman from California, Mr. Anderson.
Mr. Anprerson. Yes. Thank you, Mr. Chairman.
Mr. Train, to follow up Mr. Pelly’s question a moment ago concern-
ing the establishment of no-dumping sanctuaries for marine life,
would you be opposed to an amendment to your bill that would incor-
porate the concept of the no-dumping sanctuaries ?
Mr. Train. No, I am not opposed to it. I am personally rather in
favor of the establishment of marine sanctuaries and some system
of that sort. As you know, the administration bill proposed legislation
last year for the acquisition of Santa Barbara oil leases and the estab-
lishment of a marine sanctuary in that particular area off the Santa
Barbara Channel. So this is a concept which, I think, speaking very
generally, I would strongly favor.
There can be, obviously, differences in detail. Whether this is the
proper vehicle or not is something else again. I think that the authority
for the establishment. of marine sanctuaries is probably more appro-
priately placed in the Secretary of the Interior, which I think the bill
in question does do, rather than in the Administrator of the Environ-
mental Protection Agency, for example.
179
Mr. Anperson. Thank you. I have another question.
Mr. Trarn. Let me also comment beyond that. There is a great deal
involved, obviously, in the establishment of a marine sanctuary that
goes far beyond questions of dumping which define the scope of this
particular legislation. There are questions of resource development,
and, I suppose, other questions of international law, a whole range of
concerns which we have not gone into, either in our report or in this
legislation, and I would think that perhaps ought to be dealt with
separately.
Mr. Anperson. I believe Congressman Murphy’s idea is to have
regulated dumping in these areas but, in addition to the dumping
areas, to have no-dumping sanctuaries, areas free from dumping con-
cessions, along our coasts, where no dumping whatsoever is allowed.
This appeals to me, particularly on sections of the California coast,
where I would like to see areas set up wherein no dumping of any
kind occurs. Furthermore, in those areas where dumping is allowed,
some regulation should be required. I think that concept probably
should be included in your bill.
Mr. Train. Well, it is included in the bill to the extent that the
Administrator has the authority to ban all dumping in given areas.
That is, as I pointed out, part of the authority in the bill.
Mr. Anverson. Such authority could almost be construed as the no-
dumping sanctuary which he is recommending in his bill.
Mr. Tratn. Yes, I think it is; but also, as I repeat, a lot other than
dumping is involved in the marine sanctuary. There is oil development,
for example; deep sea mining. I would imagine that is involved. I
think these are very complex questions that should be gone into before
you put the label of marine sanctuary on a given area. That would be
my only suggestion, that all of those concerns in fact should be taken
into account in a marine sanctuary proposal.
Mr. Anperson. I have another question. In your bill your definition
of the word “dumping” does not include the disposition of any effluent
from any outfall structure. I interpret this to mean the exclusion of
any industrial-waste outfall. Am I right on that ?
Mr. Train. Well, yes and no. The outfall at the present time that is
within the 3-mile territorial sea is governed by the Water Pollution
Control Act and by the water quality standards. The President recom-
mended last year, and again in his environment message this year, that
water quality standards be extended to include the contiguous zone
also; so that would then cover all outfalls out to the 12-mile limit. To
the extent that you have an outfall that is beyond the 12-mile limit, T
would question whether the water quality approach is an effective
one, and would think that, if it were desired to control such outfalls,
such control be accomplished through a permit system under this legis-
lation. The relationship of the Water Quality Act to this permit au-
thority is one I think you will want to discuss very closely with the
Administrator of the Environment Protection Agency; it is a complex
relationship.
Mr. Anprrson. In your remarks this morning on page 14, you said
you recommended “extending regulations to transport other than by
vessel, since much dumping of material such as dredge spoils does not
take place from vessels but rather from special conveyor systems or
pipelines which are not considered outfalls.”
180
T would like to determine in my own mind when you consider a pipe-
line an outfall and when you do not. Would a pipeline built for the
purpose of conveying sludge and ground-up refuse be considered an
outfall and would your proposed legislation apply ? Municipal and in-
dustrial sewer lines are considered outfalls and would not be covered
in your bill, according to your definition.
Mr. Train. Iam not sure that is correct, Mr. Congressman. I would
like to direct myself to that in a written answer if I may.
Mr. Anperson. That is all I have.
(The answer follows :)
The first proviso to subsection 3(f) excepts from “dumping’’ covered by the
bill, “a disposition of any effluent from any outfall structure.” We note that “‘out-
fall structure” is a term of art used as a matter of practice in such related areas
as the regulations promulgated by the Corps of Engineers for administration of
the Refuse Act. See 33 C.F.R. § 209.131(f) (2), published at 36 Fed. Reg. 6567.
We consider an “outfall structure” to be an identifiable artificial or artificially-
adapted-natural discharge point for effluents which are transmitted either from
facilities located on shore or from artificial islands or other fixed structures lo-
cated off shore.
To our knowledge, the three primary means of dredging used in the United
States would not involve outfall structures. A “pipeline” dredge uses a cutter
head and suction to remove material from the bottom of a water body. The re-
moved material is then pumped through a pipe to the designated disposal loca-
tion. A “sidecast’ dredge disposes of the removed material by casting it to one
side of the dredging implement. It is mainly used in intercoastal or inland
waterways where the removed material is unpolluted; e.g., where it is clean
sand. A “hopper” dredge is often used in seagoing operations and involves taking
up the removed material, transporting it to the designated disposal area, and
then dumping it.
Mr. Lennon. Mr. Keith.
Mr. Kerrn. Thank you, Mr. Chairman.
T was glad to have some introduction on the subject of marine sane-
tnaries. As vou know, that is a pet of mine. Massachusetts has legisla-
tion establishing a sanctuary within the 3-mile limit off the cape of
our national seashore along the shorelines of Massachusetts and they
now have legislation establishing a marine sanctuary for many more
areas.
Does the administration have the authority for creatine marine sanc-
tuaries within the area known as the fishing area—3 to 10 miles?
Mr. Traty. This is an international law question. Twelve miles
could well go beyond the Continental Shelf in some areas. I would say
that to the extent that the jurisdiction over deep sea dead resources
extends the United States would have jurisdiction to establish a ma-
rine sanctuary related to the exploitation of those resources.
Mr. Keriru. Pertinent to the shelf but not the water column ?
Mr. Tratn. That falls under another bodv of law with which IT am
less familiar. I just don’t know the answer to that.
Mr. Kerrn. From the State Department I suspect that is really a
very rough one and that is perhaps one of the reasons that we have
not moved more readilv in this area. I am concerned of course about
the fishing gromnds and the possible conflict as we continue our search
for oil, the exploration phase followed by the exploitation phase. The
State of Massachusetts has moved forward and I would hope that
we could.
You referred to the State Department. Would the concept of zoning
of the Continental Shelf be the kind of a vehicle that we would utilize
181
for improving the environment of the shelf? Could we as a nation
abutting the Continental Shelf be able to use that as the authority for
unilateral action to zone C?
Mr. Train. Weil, I don’t think that by a process of zoning we can do
anything which we are not otherwise entitled to under international
law. In other words, I don’t think any unilateral action can give us
greater jurisdiction than we already have under international law.
Mr. Kerrn. So if we wanted to proceed with legislation protecting
the water column, we would have to go to IMCO and the international
treaty group.
Mr. Trarn. Within the 3-mile limit you can do anything you want
with the water. Within the contiguous zone I am uncertain what you
can do. I just don’t know, there are a number of rules. You can control
dumping to an extent but only if it affects your territorial waters and
your shore.
Mr. Kerru. Does your concept, or your role, have a positive nature
as well as a negative one? Can you take steps to
Mr. Tratn. I very definitely hope so, Mr. Keith.
Mr. Kerru. I have particular reference to the fishing zone.
Mr. Trarn. Can I answer very quickly before you proceed because
I think the previous question and maybe my answer will look a little
strange here on the record. I would say that the record of our Council
in terms of positive proposals, including the ocean dumping policy
sent to the Congress by the President last October, is a positive one.
I think most of our work is of a positive nature. The legislative pack-
age which the President sent to this Congress, some 15 to 20 bills, is
a very positive program which we have developed.
Mr. Kerrn. Unfortunately, we have to undo a lot that has been
done and we must police the area before we can improve it. Most of
the legislation which is in effect police action and we want to improve
the environment by positive roles and it can’t be done until we establish
our authority on these resources and further establish the authority on
the Continental Shelf and in the water above it.
We have to try to clear the area before we can improve it, and with
the shortage of protein I would hope that we could spend some time
and thought as to what we might do to make it more rewarding from
a resource point of view, particularly as relates to fisheries. Because
we have to police that area in a positive way; we have to have con-
servation measures and we have to have some way of making a better
habitat for the fish and the shellfish on the ocean ficor. And it is
going to require an imaginative course of action if we are going to
get the resources that will be required to take care of the population.
I have no further questions at this time.
Mr. Lennon. Thank you, Mr. Keith.
Mr. Kyros.
Mr. Kyros. Thank you, Mr. Chairman.
Mr. Train, while oil and radioactive wastes are glamorcus issues
at present, you point out that 80 percent of what is removed from
the bottom is dredge spoils, and 34 percent is polluted. And every
day, while we sit here the State of Maine people are dredging off the
Atlantic coast. I don’t see in all of your materials any real solution of
the problem. Possibly taking dredge spoils out a little further, instead
of 3 miles from the coast line, possibly taking them out 10 miles; and
182
then, perhaps, some long-range efforts. But what are we going to do
in the interim with the dredge spoils? Is there some crash program
that we are going to have, something more practical in solving the
problem ?
Mr. Train. Of course in the Great Lakes the administration has
instituted a program for shifting from the dumping of dredge spoils
in the lakes themselves to a system of diked disposal areas along the
shoreline which in itself is not completely satisfactory but is certain-
ly a major improvement over what was done before.
T don’t think that that is probably a feasible solution over much of
our exterior coastline because there we run into the- problem of de-
struction of wetlands whose protection we are equally concerned with.
I have indicated that the Corps of Engineers has instituted a policy
of taking the water quality effects of the disposal of spoils very much
into account as part of the process of deciding whether to dredge a
given area or not. This isa new development and I think a significant
improvement.
This is being weighed in the process along with the navigational
and economic benefits of dredging. I can’t hold out to the committee
any real hope that the dumping of spoils is going to come to a very
rapid end because the alternative of disposal on land is not a very
appealing alternative. As I mentioned a moment ago it probably would
involve wetland destruction and this may well be a far more environ-
mentally harmful alternative than a continued disposal at sea.
Looking well down the road, as water quality standards generally
become increasingly effective, the polluted nature of our river bot-
toms and port bottoms should steadily improve so that hopefully,
again looking somewhat down into the future, these dredge spoils
will not be as polluted and environmentally harmful as they are at
the present time.
Mr. Kyros. Do we have a cutoff date for municipal sewage dump-
ing? Where the dredge is going to happen, is there a set date State-
by-State, port-by-port ?
Mr. Train. There are implementation schedules under the Water
Pollution Control Act, yes.
Mr. Kyros. So you could look forward to those dates. In the in-
terim, I notice that under 7(c) of the act the Army and the Corps
of Engineers retain authority as to where to dump. In other words,
they still don’t have to come to you or to the EPA, for a permit do
they ?
Nt Tran. You are referring to their dredging and filling author-
ity under the Rivers and Harbors Act. We do not supersede that by
this legislation, but the legislation does require that the Corps of
Engineers must get certification by EPA that a given dredge and fill
operation is acceptable from the standpoint of the criteria of this
legislation, so they are meshed together.
Mr. Kyros. Do you feel that this is sufficient authority in order to
have your own agencies exercise complete and uniform control over
the dumping of dredge spoils, as well as over the other materials
which you will be watching ?
Mr. Trarn. Yes, I believe so. It is as broad as we think you can
provide. I would also suggest that this is a brand new program and
183
T think that this and other committees of the Congress would want
to keep a very close eye on its administration. At the present time we
really have no control over ocean disposal in any effective sense. We
are recommending total regulation of all disposal offshore originating
from the United States. So it is a very broad authority and a very
basic shift, almost a revolutionary shift in the extent of our existing
authority. How it is in fact administered is exceedingly important.
We believe that this is a matter of urgency, that harmful
dumping should either be stopped or phased out as rapidly as possible
as a matter of urgency.
Now if it turns out in effect that this is not being administered as
vigorously as you would desire, then I think that it would be entirely
appropriate for the Congres to set specific deadlines if it wished along
with other specific rules, but I do believe that in the meantime it is
very important to have a strong element of flexibility in the way this
is done.
Mr. Kyros. But on section 7(c) there will be this kind of conflict.
As I see it, people want their harbors dredged, and Congressmen want
their own particular districts to get the dredging because of their
boating and fishing and commercial fishing. Then, on the other hand,
we have budgetary restraints which will prevent us from taking the
dredged spoils out so far to sea as we would like to in the optimum
situation. There will be a conflict.
I am just wondering if you are going to have sufficient power, within
these restraints, to see that the dredging is done properly.
Mr. Trarn. As you will note in section 7(c) (2), as I indicated the
Corps must in all of these cases go to the administrator of EPA and
get a certification, and I quote here from the bill, “that the activity
proposed to be conducted is in conformity with the provisions of this
act and with the regulations issued hereunder.”
That concludes the quote.
Now I would say that is a requirement that would be enforcible
in the courts by injunctive proceedings and otherwise. So I think
there are very strong tools here.
Mr. Kyros. Thank you, Mr. Train.
Thank you Mr. Chairman.
Mr. Lennon. Mr. McCloskey.
Mr. McCrosxey. Thank you, Mr. Chairman.
Mr. Train, on line 10 of page 3 I note that the—
Mr. Tratn. Let me just add one point here. I am reminded that
under the bill before the Corps could in fact dump as a result of its
own dredging activities, they would have to go to EPA to get a permit.
So to that extent dredging is covered even more strongly than I have
indicated by speaking of the certification process. The certification
process primarily goes to the granting by the Corps of a permit to
some private party or municipality to conduct dredging.
Mr. Lennon. Would the gentleman yield.
Do ft infer from what you said under existing regulations now the
Corps of Engineers does not not have to go to the Department of the
Interior or the Secretary or the Regional Director of the Department
of Interior to get a permit for dredging ?
Mr. Tratn. No, sir. Under the Fish and Wildlife Coordination Act
they get comment.
184
Mr. Lennon. This is in addition ?
Mr. Trat. Yes.
Mr. Lennon. I thank the gentleman for yielding.
Mr. McCuosxkey. In the administration bill that the chairman has
introduced, Mr. Train, on page 3 at line 10 I note that this bill applies
to any person, including employees of the Federal Government, with
the exception that Department employees are exempt from civil or
criminal penalties. Can you tell me why a Federal employee should
not be subject to penalty 1f he violates this law ?
Mr. Train. I don’t know what the answer to that is, Mr. McCloskey,
ofthand.
Mr. McCrosxey. This may be a legal matter.
Mr. Trarn. It definitely is, and I see it refers to section 6.
Mr. McCuiosxry. That is the penalty section. They can violate this
law but not be subject to criminal or civil prosecution.
Mr. Trarn. That is correct.
Mr. McCuosxery. I wonder if perhaps at this point in the record we
can afford the Council the opportunity to give us the legal explana-
tion as to why they seek to exclude Federal employees from civil and
criminal penalties.
Mr. Lennon. Does Mr. Train understand the question ?
Mr. Trarn. Yes, and I would be happy to provide an answer for the
record.
Mr. Lennon. Would you provide a definitive answer because one of
the things that concerns me is the image of the American Government
particularly in relation to what its agencies and departments can do
with immunity and what industry and municipalities across the coun-
try cannot do.
So definitively answer that question for the record.
(The answer follows:)
The exception from the penalty provisions is that contained in section 3(e),
which provides that the penalty and enforcement provisions of section 6 do not
apply to “any employee, agent, department, agency, or instrumentality of the
Federal Government.” The exception should be retained for Federal departments
and agencies since it would be pointless for one Federal agency to sue another
Federal agency to collect a penalty. The exception for Federal employees
and agents could be removed by rephrasing section 3(e) as follows: ;
“(e) ‘Person’ means any private person or entity, any employee, agent,
department, agency, or instrumentality of any State or local unit of govern-
ment, or foreign government, any employee or agent of the Federal Govern-
ment, and except as to the provisions of section 6, any department, agency,
or instrumentality of Federal Government.”
Elimination of the exception for Federal employees and agents is not rec-
ommended, however, since the Federal Government has traditionally used in-
ternal disciplinary measures, as authorized and sanctioned by Congress and
the courts, to secure compliance by Federal employees with Federal recom-
mendations or requirements.
Mr. McCroskey. Thank you, sir.
The second question goes to a policy question, Mr. Train. I note
that in the bill the administration excludes sewer outfall structures
under the provisions of this act, and to my understanding the adminis-
tration is submitting separate legislation to apply to sewer outfalls
going into the oceans and the estuaries. I wonder if you could com-
ment briefly on the administrative structure which would result be-
185
cause, as I understand it, the quality of ocean waters will then be
regulated in the following! manner :
First, for industrial waste the 1899 Refuse Act applies to any in-
dustry ‘water or pollution into the navigable waters of the United
States.
Second, the sewage which is excluded from the operation of the
Refuse Act is also excluded from this act. It will come under water
quality. Third, the Environmental Protection Agency will regulate
ocean dumping and fill.
Thus, out of the four areas, sewage is apparently the one excluded.
Tt will be regulated by some other agency under some other standards.
Could you tell us why ?
Mr. Traty. Well, the Water Pollution Control Act which is admin-
istered by the Environmental Protection Agency.
Mr. McCroskry. Does the Environmental Protection Agency set
water standards for the ocean adjacent to the United States?
Mr. Tran. Well, they are set under the Water Pollution Control
Act; they are part of the standards adopted by the States and re-
viewed and approved by the Federal Government.
Mr. Dincetx. Would the gentleman yield ?
But those are to extend only 3 miles.
Mr. Trartn. That is correct, and the President has recommended
that this be extended to the 12-mile limit.
Mr. Dincetu. You are exempting outfall structures so that today if
somebody runs an outfall 3 miles and a quarter off shore he is exempt
from water quality standards and he also would be exempt from the
ocean-dumping prohibition. Now assuming that this committee and
the Congress enacts this bill, you will find yourself in a situation where
you will be able to control dumping but not from outfalls.
Now if the Congress does not enact legislation extending water
quality standards out to 12 miles, then you will be in the situation
where the addition of perhaps a quarter of a mile of pipe to exist-
ing outfall will completely exempt it from any Federal regulation
whatsoever.
Mr. Train. That is correct, Mr. Chairman. It is important that all
of these legislative proposals ‘be considered as part of an inter-related
mechanism and that the Congress be aware that it is at the present time
considering water quality legislation which would extend the water
quality standards to the contiguous zone. Now as I indicated earlier,
there is no legislation before the Congress which would extend beyond
the contiguous zone, so to that extent at least you would have to rely
upon this permit system under the ocean dumping authority if you
wish to control that.
Mr. Dinceti. What gives you reason to believe that the States have
the right to regulate from 3 to 12 miles insofar as water quality stand-
ards? It is an awful big area and it is a goodly distance beyond the
shore.
Mr. Train. I am not aware that this would be a State regulatory
activity at all but I believe Federal standards
Mr. Drincxt. If you extend water quality standards to 12 miles, you
are making this a possibility.
186
Mr. Tran. No, sir; I believe these would be standards set by the
Federal Government which would apply to the contiguous zone.
Mr. Dineetx. You are not going to go through the mechanism then
that you have with water quality standards?
Mr. Train. We have mechanisms under the existing law for the Fed-
eral Government to set standards in cases where States refuse to set
standards.
Mr. Dineetxu. I am going unduly into my colleague’s time but the
State sets standards, the Federal Government approves them and the
State enforces them. Now are you going to use a different mechanism
with regard to the distance between 3 and 4 miles offshore?
Mr. Tratn. That is the legislation that has been before Congress
since last year; yes. The States have no regulatory authority over the
contiguous zone, it is entirely a matter of Federal regulation and it
always has been.
Mr. Dincrtzi. Do you propose to set up specific Federal water
quality standards of the contiguous zone between the 3 and 12 mile
limit ?
Mr. Trarn. That is my understanding of the proposal.
Mr. Dincett. As opposed to the State mechanism ?
Mr. Tran. Yes, sir.
Mr. Drncett. I see.
Mr. McCrosxey. I have a question that I think also justifies consid-
eration here in view of your last answer, Mr. Train. In the San
Francisco Bay area one of the proposals is the so-called Kaiser plan
which would take sewage an undetermined number of miles out into
the Pacific Ocean for disposal. I gather from your testimony under
this Act that if dumping occurs 12 miles out, those dumpings would be
immune to Federal regulation.
We have the danger here that, unless this legislation goes precisely
to this question, the entire local government-State government op-
eration, involving hundreds of millions of dollars, would not know
what to expect from the Federal Government on the question of the
right to dump sewage 12 miles out. It seems to me that the question of
the long 15-mile sewer outfall ought to receive concern, for example.
The other question, though, is with our separate act.
Mr. Lennon. Would the gentleman yield ?
Let the gentleman comment on that question.
Mr. Trarn. I agree with you. I think the legislation should address
itself to that problem.
Mr. Lennon. Thank you.
Mr. Dincetit. Would the gentleman just yield ?
Would you want to give us some language that might be helpful
to the committee In coming to some proper judgments as to how we
could meet the approval of the legislation and carry out the matter
that our good friend from California just suggested ?
Mr. Tratn. I think what I would suggest is that we will work with
the Environmental Protection Agency on this together with your staff
and see what we can suggest along those lones.
Mr. Kyros. Would the chairman yield?
Mr. Lennon. We are really cutting in on Mr. McCloskey’s time.
Mr. Kyros. Don’t sections 4 and 5 already cover that, Mr. Train?
It says here you can issue permits for transportation, and then, under
187
prohibited acts, 4(b), no one can dump material in a zone contiguous
to the 12-mile zone that would affect our territorial waters. So, if some-
one had a pipeline that transported the materials 1214 miles out, but
you concluded that this would affect our territorial waters within 12
miles, you could take action ?
Mr. Trarn. No; that is outside the contiguous zone.
Mr. Kyros. It says in 4(b) :
No person shall dump material * * * in a zone contiguous to the territorial
sea of the United States, extending to a line 12 nautical miles seaward from the
base line of the territorial sea * * * to the extent that it may affect the terri-
torial sea or the territory of the United States.
So if that dumping affected water within 12 miles because of
currency
Mr. Tratn. No, sir.
Mr. Kyros. No?
Mr. Train. It is confusing, I will certainly agree with that. What
this is saying is that from the 3-mile limit to the 12-mile limit of the
contiguous zone any dumping that occurs within that zone is subject
to the control of the act if it has an effect or if it may affect the terri-
torial sea which is within the 3-mile limit or the territory of the
United States itself.
Mr. Kyros. I see. But does the term “transportation” include within
it the definition by pipeline as well as by ship?
Mr. Train. I am not sure of the answer to that.
Let me say for the record this is Mr. Charles Lettow, an attorney
with the staff of the Council.
This apparently falls in the definition of dumping rather than in any
definition of transportation, so that if there is a gap here in the cover-
age of the act this is probably where the language would be operated
on.
Mr. Lennon. Would the gentleman from California yield further
to the gentleman from Maine?
Mr. McCroskey. Yes, sir.
Mr. Kyros. Thank you. Iam all through, sir.
Mr. Trarn. It excludes the disposition of an effluent from the outfall
in the definition of dumping so that your normal pipe would not be
covered by this act. Now, excuse me.
Mr. McCriosxrey. Thank you, Mr. Chairman. I have no further
questions.
Mr. Lennon. The gentleman from Delaware.
Mr. puPont. Thank you, Mr. Chairman.
Mr. Train, I would like to raise some questions in what I think
is an area that maybe we ought to make a direct about face from the
previous Federal practice and that is in the question of permitting
overlapping State jurisdiction. I have recently had some contacts
with the Environmental Protection Agency in regard to the enforce-
ment of the Air Quality Act and frankly it is an administrative dis-
aster over there and I will take that up with those people when they
come.
Looking for a minute at ocean dumping and the fact that you might
permit States to set up standards of their own, it seems to me that
there are four questions raised that suggest very strongly that we
188
ought to completely free up this area and get the States out of it.
I would like your comments.
First of all, in an area such as the Delaware River where you have
two States bounding either side of the river you have the problem of
allowing a dumper to choose his jurisdiction. New Jersey sets up one
standard and Delaware another one and they are different. The dump-
ing company or the dumping concern could choose between the two
of those if both of them had standards that were more stringent than
the Federal.
Second, as soon as you permit a State to set up its own law that is
more stringent than the Federal law and preempt the Federal law
thereby, then you throw out the window all the Federal enforcement
pr ocedures. If you take away the Federal law, you take away Federal
enforcement, you take away the Federal court system, any citizen suits
that you per mit , anything of that kind.
Mr. Lennon. Would the gentleman let Mr. Train comment on both
of these various good questions ?
Mr. puPont. All right. I have two more.
Mr. Lennon. He may not get a chance to answer any of them.
Mr. puPont. Perhaps we could start with those two and get your
comment generally.
Mr. Train. Let me be sure I understand the question. Your con-
cern with the case within the 3 mile limit is where a State would have
more stringent standards for disposal than would Federal Govern-
ment and what that would do to the system. Now as I understand
the act, Mr. DuPont, all dumping will require a permit from EPA,
all of it in every case. Under the Water Quality Improvement Act of
last year, Section 21(b) wherever the Federal Government grants a
license for an activity which by a discharge could affect State and
water quality standards it must get a certification from the State of
the effect of the discharge in light of the standards and that I think
is what would happen in this case. The State would say, “We have
stronger water quality standards with respect to this 3 mile area and
we would not approve a dumping tested only by the Federal standards,
and this is what. you would have to do for us to go along with it.
Mr. puPonr. So the State would have the final authority.
Mr. Trary. No, the Federal Government would give the permit, as
I understand it, but only if it met the State water quality standards.
Mr. puPonr. In other words
Mr. Train. You better permit me to send you an answer for the
record on that.
Mr. puPonrt. I would appreciate it.
Mr. Trary. I am really not familiar enough with the interrelation-
ship of these more than to just muddy the record for you.
Mr. Lennon. Mr. Train, I think the two questions, you have two
more yet to go, are very vital to the ultimate decision this committee
would have to make in the point of time that it has to report out the
bill. You can see a permit issued by the State of South Carolina within
the 3 mile mit but who is going to bear that? You said you
cannot just move the length of the ship off the coast of North Caro-
lina and dump or off the coast of Geor gia and dump, move out of
Port Charleston, Wilmington, or Mor chead, N.C. I am just illustrat-
ing those because I do know them. Do go into that in depth.
189
(The answer follows) :
The interelationship of Federal and State controls over ocean dumping in-
volves consideration of both water quality standards and ocean dumping cri-
teria. H.R. 4723 saves from preemption State rules of either type.
Moreover, state-adopted water quality standards would be a consideration
in the evaluation of a Federal ocean dumping permit application, if the appli-
cation were for a dumping to take place within the three mile territorial sea.
Section 21(b) (1) of the Federal Water Pollution Control Act provides in part
that: “Any applicant for a Federal license or permit to conduct any activity...
which may result in any discharge into the navigable waters of the United
States, shall provide the licensing or permitting agency a certification from the
State in which the discharge originates ... that there is reasonable assurance...
that such activity will be conducted in a manner which will not violate applicable
water quality standards. . . .No license or permit shall be granted until the
certification required by this section has been obtained or has been waived...”
Section 21(b) (2) goes on to provide for a means of dealing with the situation
where a discharge would affect more than one State’s waters.
Mr. puPonvr. The third question and fourth question are kind of
wrapped together on the same subject. If you are going to have HPA
issuing permits on the basis of State law, then I think you have a very
difficult jurisdictional question and that is whether a Federal agency
has the power to interpret and enforce State law. I think you will find
those who want to dump will take advantage of this and bring innu-
merable suits involving due process and a lot of things to set the
whole thing.
Perhaps if you are going to make some comments in this area you
would let us have the benefit of your thoughts on taking the States
out of this field entirely. We are generally dealing with non-State
bodies of water, we are dealing with really interstate and interna-
tional water almost exclusively. If you would give us your comments
on eliminating the States completely, and let the Federal Government
preempt entirely.
Mr. Trarn. Be happy to de that.
Mr. Du Pont. Thank you.
(The answer follows :)
States could be involved in controlling ocean dumping only where they have
jurisdiction, 7.e., ordinarily in their territorial sea, which normally extends three
miles from shore. Since States would necessarily become inyolved through es-
tablishing their own permit system alongside a Federal permit system, and
since both permits would be required, the State standards would necessarily
have to be stricter than the Federal criteria to be meaningful. In consideration
of a State’s close interest in the waters near its shore, and in light of the fact
that ordinarily is exercise of jurisdiction is restricted to these ocean waters, we
did not believe that preemption of State regulatory efforts was necessary.
Mr. puPonv. No further questions, Mr. Chairman.
Mr. Lennon. The gentleman from Michigan, Mr. Ruppe.
Mr. Ruprs. Thank you very much.
Is there anything in the existing legislation, Mr. Train, or in this
legislation here before us that would actually reduce the pollution in
our territorial seas to the extent that perhaps in 5 years or 10 years the
dredge material will be removed therefrom? This is a major problem
in the Great Lakes and I am sure in the Atlantic Ocean. Is there a
chance then of alleviating the basic pollution problem in this dredge
material ?
_Mr. Trai. I think that the impact of the dumping of these mate-
rials will lessen, as I pointed out in response to an earlier question. It
190
is the policy of the port at the present time to take the impact of dis-
posal into account in making a decision as to whether to dredge in
the first place, and I understand this is reducing the amount of dredg-
ing and dumping situations in the case of polluted spoils.
As [ also pointed out, the increasing impact of water quality stand-
ards over the years will certainly reduce the pollution of bottom ma-
terials in harbors and river bottoms.
Mr. Ruprn. You cannot do much to eliminate the pollution that is
already there but you feel it can immeasurably reduce the pollution
that would take place in the future.
Mr. Trarn. Yes; over a long period of time and then also the impact
of the dumping of these spoils can be minimized by careful selection of
site, shifting of sites, and so forth.
Mr. Ruppr. Do you know if the program in the Great Lakes of not
dumping back any polluted dredge spoils has actually taken effect
yet ? Is there anything to demonstrate concrete results ?
Mr. Trax. I believe this is underway. It is something to be done
over a period of years. It is not a complete answer at the present time.
Mr. Rupre. Have you had anything to do in your agency with the
dumping of mine tailings or taconite sands in Lake Superior?
Mr. Tratn. I am generally familiar with the problem. No; we have
not had any specific activity.
Mr. Ruvrs. Would they fall into one of the classifications you con-
sider should be eliminated or terminated under the identifications you
have listed in this testimony ?
Mr. Trary. Well, I think it quite clear that they would be either
under this dumping control or they would be under the permit sys-
tem set up under the Refuse Act which the President ordered in
December.
Mr. Roper. You say they would be effective?
Mr. Trary. Yes. They certainly would be controlled one way or the
other.
Mr. Ruprr. But the determination would have to be made, either
controlled or eliminated. This bill would not specifically eliminate
them as such, is that correct ?
Mr. Trarn. That is correct. This bill provides the authority for
regulating.
Mr. Ruppr. Thank you.
Thank you, Mr. Chairman.
Mr. Lennon. Thank you.
The subcommittees will stand in recess until 2:15.
Whereupon, at 12:45 p.m., the subcommittee recessed, to recon-
vene at 2:15 p.m.)
AFTERNOON SESSION
Mr. Dincett. The subcommittee will come to order.
This is a continuation hearing on ocean dumping begun this
morning.
At the time the subcommittee adjourned we were hearing from our
good friend. Russell E. Train, Chairman of the Council on Environ-
mental Quality.
The Chair will recognize for purpose of questioning our counsel,
Mr. Everett, for any questions he wishes to ask.
Mr. Evererr. Thank you, Mr. Chairman.
191
Mr. Train. Before Mr. Everett begins, Mr. Chairman, there is one
point we were talking about this morning where I think I may have
misspoken, and that 1s with respect to the sewer outfalls that extend
or coextend beyond the limits of the contiguous zone.
It is my understanding that the present version of the administra-
tion’s proposals now before the Congress would extend water quality
standards to outfalls that reached the high seas, and that is beyond
the contiguous zone, if they originate in the United States. So, 1 was
incorrect to the extent I suggested that neither under the pending
legislation in the water quality field nor under this legislation as
presently written would the Federal Government have a hand.
That was not correct.
Mr. Dincett. Thank you.
Mr. Evererr. Mr. Train, in connection with that same title, on
page 3 of the bill, section (f), goes on to read, and says:
And provided further, That it does not mean the intentional placement of any
device in the oceans, coastal, or other waters or on the submerged land beneath
such waters, for the purpose of using such device there to produce an effect
attributable to other than its mere physicial presence.
I was wondering if you could elaborate on that particular provision
of the bill, as to what type of device we are talking about.
Is that part of the national defense feature, or just what ?
Mr. Trarn. I am sure it covers all of those things. It would cover oil
well drilling and production platforms, military installations, I pre-
sume, of various kinds, and oceanographic surveillance, and monitor-
ing systems.
None of these things would normally be thought of as examples of
dumping, but for purposes of certainty, the bill seeks to sure that
the definition of dumping does not include them.
Mr. Everett. But some of these devices could result in a discharge of
an effluent that could be constituted pollution, could it not?
Mr. Train. Yes.
Mr. Evererr. But based on the way this section is written, it would
exclude those from being covered under the act, things like pipelines,
drilling structures, things of that sort ?
Mr. Train. Drilling structures, and I think pipelines also are cov-
ered by regulations of the Department of the Interior, which include
very stringent environmental protection elements.
Pipelines are to some extent, I believe, regulated by the Department
of Transportation, and also, I believe, by the Coast Guard.
Mr. Evreretr. How about nuclear reactors?
I understand there is a program on the way to investigate the de-
sirability of placing nuclear reactors in these offshore waters.
They would also be excluded ?
Mr. Tram. I do not think we are saying quite the same thing when
we say they are excluded.
We are excluding the placing of the structure from the definition
of dumping.
This does not go to discharges, and things of that sort, from the
structure itself.
Mr. puPont. Mr. Train, are you saying if an oil structure, or
nuclear powerplant, or something is placed a mile offshore, will or
will not this bill cover the effluent from that structure?
192
Mr. Train. It would not cover any oil discharges, as that is specif-
ically excluded by the bill, as it is governed by other legislation.
Mr. puPonr. If you had people living on it, how about simply
sewage from the structure ?
Mr. Drncetu. I believe that is excluded, too, am I correct, Mr.
Train ?
Mr. Tran. No, I am not positive. I am not sure whether it is cov-
ered. I would think by this legislation, or other water quality stand-
ards, and the Refuse Act permit authority, but I cannot answer your
question specifically.
Mr. Dinceit. Would you get us an answer to that ?
That is a very interesting point.
Mr. puPont. If the chairman would yield, also, and perhaps a
little more relevant is the question of heated water discharge from the
nuclear powerplant in the Delaware River, and I don’t know if this
bill covers that, or if it is covered under the previous Water Quality
Act.
Mr. Tran. Well, that is being dealt with under the permit author-
ity, under the Refuse Act.
This has been construed to include thermal discharges now by the
administration, so that I would be pretty sure would not be covered
by the dumping legislation.
Mr. Dincetxt. Mr. Train, counsel has observed to me the relevant
section of the bill to which we are addressing ourselves appears to be
on page 3, at the top of the page, and the question I think concerns
outfall, and since we are not talking about a vessel, does this fall
under the meaning of dumping, or just what does this matter of the
runoff and effluent fall under ?
Mr. Traty. I think it could fall under either one, depending on
how the different acts are administered, and I think this could prob-
ably be clarified as to which of the intentions it 1s.
J do not know the specific answer to the question.
Mr. puPont. Let me focus a minute on procedural questions from
another point of view.
How do you envision the permit issuing process as working?
An application is made from some firm. Is there a hearing on each
permit, or once the EPA has generally classified areas, can they issue
permits with no hearing?
Mr. Tratn. EPA clearly has the authority to hold hearings, and
they doubtless will have hearings in a number of cases.
There is no requirement in the statute that they hold a hearing in
every single case of an application for a permit under this authority,
and I would not think that Congress would require a permit and hear-
ing in every such case.
This is true, for example, with the Corps of Engineers dredging
and filling permit authority under the Rivers and Harbors Act.
They do have hearings in many cases, but they decide this of their
own discretion, such as in cases of great public interest, new questions,
or questions of importance and so forth.
They issue some 6,000 such permits a year, and it would be an ad-
ministrative impracticality to have hearings in each case.
Mr. puPont. As the environment groups get more and more strength,
I wonder that each time a permit is sought, that some group, either
193
continuing or ad hoc, will not spring up and fight the dumping and
request a hearing.
I wonder if we ought to have anything in our legislation to deal
with a situation of that type.
Mr. Train. I think it would be perfectly appropriate to require pub-
lic notice of an application for a permit.
This has been done, for example, under the Refuse Act permit
program.
The final regulations being issued by the Army, I think later this
week, on Wednesday, as a matter of fact, will spell out this in great
detail.
I happen to have a copy of the Refuse Act regulations with me. The
requirement of publication extends to all of the information and data
pertaining to the application, and I would imagine that adminis-
tratively this will be required in the case of the dumping permits.
Mr. puPonrt. I would think that would be a sensible approach, and
then if you had to have a public notice, you could have some further
mechanism.
Mr. Trarn. And, of course, there is as in all such cases, opportunity
for judicial review.
Mr. puPont. All right.
Thank you. I have no further questions.
Mr. Evererr. I have some further questions.
Mr. Dineext. I am just curious about this.
In regard to language in a piece of legislation of this type such as
‘After notice and opportunity for hearing,” would you have any ob-
jection to that kind of language with regard to proceeding with the
issuance of a dumping permit ?
Mr. Trarn. I do not know that there is any problem in principle,
Mr. Dingell.
There is no such statutory language pertaining to the dredge and fill
permit authority.
Having said that, I would like to have the opportunity to expand on
that for the record.
Mr. Dinceit. We are running into a constitutional problem that
you deny the applicant a hearing.
Anybody could have a constitutional question, and I suspect prob-
ably the Administrative Procedures Act requires it anyway, so It oc-
curs to me there probably would not be too much objection.
Mr. Tratn. No. It may be in some cases superfluous, and in some
cases may raise a question because of rights under other legislation or
the constitution.
Mr. Dincetu. Let me ask this question.
There is no intent anywhere in the legislation to repeal or modify
the National Environmental Policy Act im section 102(2) (C) thereof,
is there?
Mr. Train. No, sir.
Mr. Drveetu. As I understand, 102(2)(C) requires the issuance
at this time, am I correct?
Mr. Trarn. Not in the way the National Environmental Policy Act
has been administered to date. I think, as you know, we have construed
the legislative history of the act as expressing an intent to exclude
194
environmental regulatory activities from the environmental impact
statement requirement.
Mr. Drnceu. It never has referred to the Corps of Engineers’
permits.
The Corps of Engineers has always required the 102(2)(C) state-
ments ?
Mr. Tratn. Yes, sir; but we do not consider their functions as one
of the environmental regulatory activities.
Mr. Dincetx. You have a very clear question on this point, wherein
the agreement between the corps and the Department of Interior was
sanctioned by the courts, stating therein that the corps could dis-
approve of permits of this kind on environmental grounds.
This is permit to deposit material in the waters, and I am curious to
understand just what the legislative history is.
My personal interpretation is an absence of expression would mean
102(2) (C) would apply.
I would like to hear your testimony. We have to have the matter very
clearly nailed down here.
Mr. Train. Well, obviously it could be administered either way, and
I see no objection as a matter of principle to including an environ-
mental impact statement requirement.
Certainly the criteria announced by EPA will be subject to very
careful review, and it will be a matter of review by our Counsel under
both the enabling legislation of the Environmental Policy Act and.
Mr. Dincett. Let me go to another question.
Mr. Train. I am trying to think what the policy considerations
would be which would suggest that a dumping permit either should
or should not be the subject of the environmental impact statement.
Mr. Dincetu. Let me ask this question, if I may.
Who carries the burden of proof on whether dumping will unrea-
sonably degrade or endanger human health ?
Mr. Tratn. Well, mainly it is the applicant.
Mr. Dincett. The applicant bears that burden ?
Mr. Tratn. Yes.
Mr. Dincxtx. Now, tell me, must there be specific findings, must the
Administrator make specific findings in each case where the permit is
issued subject to public review ?
This relates to the question that I raised before.
Should he file the 102(2)(C) statement under the Environmental
Policy Statement Act?
Mr. Trarn. It is my understanding the Administrator would make
such findings.
Mr. Diner. And would the materials submitted by the applicant
for permit be open to public inspection ?
Mr. Trarn. As I indicated in response to Mr. DuPont’s question,
following the same procedures which have been or are being an-
nounced for the permit program under the Refuse Act, yes, but this
is not set forth in the legislation, and I am just assuming this would
be the practice followed by the Administrator.
Of course, the Freedom of Information Act has some generally ap-
plicable requirements that would extend to this entire procedure.
Mr. Dineeru. I am sure you are familiar with the Fish and Wild-
life Coordination Act which requires consultation with sister agencies,
195
particularly with the Interior Department and with other similar
conservation oriented organizations.
I note a reading of the Administration’s bill permits the Admin-
istrator of the EPA to consult, but does not require him to do so.
Ts it the intention of the Administration by this particular language
to change or to amend the Fish and Wildlife Coordination Act?
Mr. Train. No, it is not my opinion that it does.
Mr. Drnceix. The question would be does this amend the Fish and
Wildlife Coordination Act?
Mr. Train. Mr. Chairman, rather than give an off-the-cuff answer,
I would like to look at the exact language of the Fish and Wildlife
Coordination Act in this language and render you a legal cpinion on
that.
Mr. Dineety. Very well. It would be helpful to me if you did, and
T also would like you to indicate to us what is your intention, if it is
to alter the Fish and Wildlife Coordination Act as it applied tradi-
tionally to the Corps of Engineers in its dumping permits.
As a matter of fact, they are specifically included in that statute,
and in their dredging and fill permits, and I would be curious to
know why a rather similar permit issued by the Environmental Pro-
tection Agency would not be under the Fish and Wildlife Coordina-
tion Act, so in your response, would you indicate to me any difference
in treatment, if you propose to have a difference in treatment.
Mr. Trar. I would be glad to do that.
(The information follows:)
The Fish and Wildlife Coordination Act does not contain a statement defining
the territorial extent of its requirements, including the requirement of consui-
tation found in Section 2 (16 U.S.C. § 662). Normally, however, a statute of the
United States is presumed to be applicable only within the territorial jurisdiction
of the United States, i.e., includling, but not beyond, the waters of the terri-
torial sea. American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909)
(Holmes, J.). The special authorization for consultation contained in Subsection
5(a) of H.R. 4723 is designed to allow the Administrator to accomplish con-
sultations such as those described in the Fish and Wildlife Coordination Act,
even if the terms of that Act might not otherwise apply because the dumping
itself is to take place within the contiguous zone or on the high seas. The fact
that the material is transported from a U.S. port may not be a factor bringing
the Fish and Wildlife Coordination Act’s provisions into play. In any event,
there is no intention to amend or limit in any way the terms of the Fish and
Wildlife Coordination Act.
Mr. Dinceuy. Mr. Train, now, this does concern the Chair, because
there is no requirement, as I read the bill, that the other agencies pro-
vide comments. For example, the Department of Interior would not
be compelled to give information as to dumping permits, or give
comments, and it occurs to me philosophically, there should be di-
rection that there be consultation to protect the fish and wildlife
values. This would tend to indicate to me there might be some reason
to be very apprehensive of a bill of this kind, until and unless there is
a requirement for clear consultation and the views from relating
agencies to be put in writing.
This is in direct confrontation to the Fish and Wildlife Coordina-
tion Act.
Would you like to comment on that also, sir?
Mr. Train. There is certainly ample authority in the legislation to
permit consultation, and I would certainly suggest strongly that the
Administrator consult widely in the granting of these permits.
196
Mr. Dinerti. As I read it, Mr. Train, there is no requirement to
do so.
It says he may. There is a very wide difference between may and
shall, as Iam sure you would agree.
It only says he may consult. It does not say he should receive the
comments of the sister agencies. I am sure you can understand there
isa very distinct difference there.
Mr. Trarn. There is a very definite difference. I think it is a question
as to what extent such a formal requirement of written request and
written comment in each of what may be many thousands of applica-
tions is really serving the purpose of environmental protection; such
a thing could hold down the administrative machinery in paper Work.
Mr. Drxcert. I am glad you mentioned that, because as you will
notice, the statute that the administration has presented us with, in
its criteria, that the Administrator of the Environmental Protection
Agency must consider, no mention is made to fish and wildlife values,
or protection of fish and wildlife from hazards, and, of course, you
can understand the importance of the living resources, and I am
curious to know why that should be omitted if EPA is not being
required to consult with other related agencies.
Mr. Trarty. The language of the bill very clearly covers fish and
wildlife through its reference to marine environmental and ecological
systems.
This covers fish, wildlife, and all other elements of the ecosystem.
Mr. Dixerut. But Tam referring now to the latter section dealing
with the specific matters he is considering.
For example, on page 5, line 9, he is considering “the likely impact
of the proposed dumping on human health, w elfare, and amenities,
and on the marine environment, ecological systems, and economic po-
tentialities, including an assessment of —( a) the possible persistence
or permanence of the effects of the proposed cep (5) the volume
and concentration of materials involved; and (¢) the location pro-
posed for He dumping.”
You are saying ecological system, ecological potentialities including
fish and wildlife ‘values?
Mr. Train. Marine environment and ecological systems certainly
includes fish and wildlife.
Mr. Dryczti. Now, would you please, Mr. Train, comment on this
particular point.
The report of the Council on Environmental Quality recommended
to the President that ocean dumping be immediately halted on chem-
ical biological warfare materials, such as high level radioactive wastes
and toxic industrial wastes.
While the Administrator would have the power to do this he would
not. Can you tell us why the difference in the drafting of the bill and
the recommendation of your Agency ?
Mr. Trarn. First, the recommendation as to chemical warfare and
biological warfare weapons has already been implemented by the
Department of Defense by order of the Secretary, so legislation is not
necessary in that case.
Mr. Drneett. Of course, the administrative romularien can be
changed by administrative move.
197
Mr. Tratn. I believe as I pointed out in my statement, that before
you ban something, you had better be sure that there is no better way,
or that there is a better way of disposal available.
Mr. Dincett. I am simply taking your recommendations, and con-
trasting with the bill, and I am asking you for your comment.
I would assume the Agency was dead serious when it made that
recommendation.
Mr. Tran. You will also find in our report, Mr. Chairman, a full
recognition of the need for the development of an alternative disposal
site and methods; this runs through the entire report.
Tt is in our view unrealistic just to ban things, when there is no sug-
gestion as to any alternative method of disposition.
Mr. Dincetx. You are bringing up another matter which I think is
important.
Your report indicated the necessity for substantial research in the
area of ocean dumping.
The bill provides neither authority nor funding for such research.
Can you comment to us as to the reason for that, or whether or not
some consideration by this committee should be given to the establish-
ment and funding of a research program in this area ?
Mr. Tratn. There is, as I pointed out in my statement, we believe
ample authority at the present time for the various agencies interested
in the marine environment for research, and that has a bearing on this
legislation.
That is true for the Environmental Protection Agency. It is true for
the Coast Guard. It is true for the National Oceanic and Atmospheric
Administration.
Mr. Drvcetz. This question I am certain will be asked of this com-
mittee when the matter comes to the floor.
Can you outline to us, not at this particular time, but at your con-
venience, when you have more opportunity for an understanding, pre-
cisely what kind of research is going on, and the kind of research that
the administration contemplates will be needed to receive the answers
that are necessary in the field of ocean dumping.
I would like this so we can understand precisely what you have in
mind with regard to the research program.
Tam sure our colleagues will ask this question when the matter comes
before us on the House floor.
Mr. Trarn. I can certainly try to break down the prevalent research
programs as they exist, and as they have been proposed by the Presi-
dent in his 1972 budget.
i is just a bit difficult to speculate what will be proposed subsequent
to that.
I would note that it is not easy to break down the parts of the
research programs, as, for example, in NOAA, to define exactly those
portions which you would say ocean dumping related research, or
simply marine environment in some other, but related matter.
You could say that practically all of the marine biological research
being done by the US. Government in any agency is of importance, and
real significant to this legislation.
Mr. Dincerx. Well, Iam curious to find out the limit of it.
198
I have the feeling we are always told the research is related to
something, but on more careful study, oftentimes one finds this is
really not so. !
The bill refers to emergencies where permits will not be required.
What would these emergencies constitute, and what would be the
handling of emergency procedures?
Mr. Trary. It has been suggested to me that this is dealing with, m
part, the case where a vessel may be in distress on the seas, and dumps
its cargo, or some part of it as a matter of saving lives, or something
of that sort.
Mr. Drvcert. Is that the only emergency to which that section
alludes?
Mr. Tram. It isthe only one I have any knowledge of myself.
T will be glad to explore this further.
Mr. Drncett. I think the committee would be grateful for your help.
I have a distinct feeling that if the emergency is alluded to, the
bill should be more precise.
Do you contemplate any emergency disposal matter from land
sources, like carrying radioactive materials, rockets, nerve gas, or
something for dumping en an emergency basis ?
Mr. Trar. Certainly nothing of that sort is contemplated.
I suppose it is perfectly possible, if for some reason something
will blow up inside of a half hour, you will try to get rid of it.
I do not see anything of that sort here, and it is not the reason
for this provision as far as I know.
Mr. Dincexx. Would it not be possible in some kind of land origina-
tion to ocean disposal, that if that was necessary, you could authorize
the Administrator of EPA to set up some kind of emergency pro-
cedures to handle this kind of thing on a quick basis, rather than say
they could proceed without a permit ?
owes you want to give the committee your views on that, Mr.
rain ?
Mr. Tran. Well, I do not think I can really add to what I have
already said, Mr. Chairman, without a little more information as to
just the kind of situation that this covers.
It is in fact a vessel in distress sort of thing, I do not think
there are any procedures that could be set up that would not be too
slow.
Mr. Dryeetu. Now, the Chair would like to consider very carefully
the relationship of permits called for under the legislation to other
permits authorized under present laws. 4
You have, first of all, the permit under the Refuse Act.
That would not be impaired; am I correct ?
Mr. Tratn. That is correct.
Mr. Dinceiu. You have the 1888 act, am I correct, which dealt with
the harbor in Philadelphia, and so forth, that would not be impaired ?
Mr. Tratn. This would be superseded by this legislation.
Mr. Drncett. All right.
i You have the requirement of the Fish and Wildlife Coordination
Act.
Mr. Trai. No.
199
Mr. Dinecerx. Then I am rather curious, we seem to be getting our-
selves in a situation where there is a petentiality for two permits,
possibly three permits in these matters.
Is that really desirable ?
Mr. Trarn. Well, I do not suppose it is desirable, although there are
many cases wherein both State and Federal permits are required, but
insofar as multiple Federal permits, that certainly is not desirable.
Mr. Dinecett. Of course, it 1s clear the Refuse Act permit system now
under the corps is beginning to work rather well; is that correct ?
Mr. Tray. It is a little early to say. It has just gotten underway,
and the regulation will be issued this week, but I am hopeful it will be
working well.
Mr. Dinceur. The indications are that 16 will be working well, and
it includes requirements of the Fish and Wildlife Coordination Act,
and an agreement between the Interior and the corps.
Would the legislation before us be subject to the same limitation,
that is, the requirement of the Fish and Wildlife Coordination Act,
and also the requirement of the agreement between Interior and the
corps, with regard to fish and wildlife values and dumping’?
Mr. Trar. As I said, this legislation requires consideration of fish
and wildlife values.
Jt requires this consideration not only within the territorial limits
with regard to the Fish and Wildlife Coordination Act, but also to the
high seas, where it does not extend.
Mr. Divnerrxi. Now, on page 6, lines 6 to 9—and I would hope
that you would refer to those sections, Mr. Train—the statute refers to
the following language.
Tt says, and I quote:
In reviewing applications for permits, the Administrator shall make such provi-
sion for consultation with interested Federal and State agencies as he deems
useful or necessary.
I know we have gone over this ground a couple of times, but would
you tell us again, does this amend the Fish and Wildlife Coordination
Act in any fashion ?
Mr. Tratn. Not to my knowledge.
Mr. Drycetu. Now, this does trouble me greatly.
There are no provisions in the bill for public participation, or in
consideration of permit applications, such as notice in public hearings.
Can you tell us why that requirement was excluded from the bill ?
Mr. Trarn. I suppose we thought it was not necessary. I have no
doubt that permit applications and all of the data that is part of the
application will be made available to the public as a matter of course
under the regulations of the Administrator.
That is done under the permit authority.
Mr. Dixexix. Let’s suppose the Administrator of EPA was deter-
mined to set up a dumping ground right in the midst of the best oyster
beds off the U.S. coast.
Under this bill, there is no requirement in the legislation before we
hold hearings.
What would a citizen do if he were a shell fisherman, or something
of that kind, to protest if he felt under the particular circumstances
that the bill provides no relief to him ?
200
Mr. Trary. I presume one thing he might do, if he is well advised,
to go into court to get an injunction for violation of the National En-
vironment Act.
Mr. Drncexx. With regard to 102 (2) (C) statement ?
Mr. Trarn. Not in violation of the 102(2) (C) statement, but there is
the general violation of the congressional policy that environmental
conditions and circumstances must be taken into account in making
decisions. :
Mr. Dincetu. I am delighted to hear you say that.
ET want you to know that. I think that would be excellent, but I have
no recollection of the courts ever extending the breath and width of
the National Environmental Policy Act so wide as that.
Now, they have enjoined g governmental actions where there was a
failure to care for the requirement of 102(2) (C), but never do I recall
them enjoining actions of policy statements.
If there is some new change in the law, it would help the commit-
tee to know.
Mr. Trarty. Well, I am not changing the law, Mr. Dingell.
Mr. Drncett. I am not accusing you of that.
IT know of no changes in the law which dealt with this particular
point.
Well, you suggested, T gather, if the Administrator of EPA vio-
lated his _proper discretion, and issued a dumping permit for an area
where it is clearly harmful, in your opinion, under this act, and under
the National Environmental Policy Act, a citizen, ora citizens’ organl-
zation, would have a pretty good chance of going into court and en-
joing such an act.
IT would like as wide as possible an interpretation of a statute in
this direction.
I enthusiastically support your interpretation, but even I in my
enthusiasm have never interpreted it quite so broadly as the point
you alluded to.
I do not think the courts have joined either one of us on this point.
How would a citizen get a hearing under the statute before us?
He might have a redress under some other statute, but I see no re-
dress under the statute you have here.
Mr. Tran. All I can say relates to the way it works under the
dredge and fill permit authority, for example, of the Corps of En-
gineers. Under the Rivers and Harbors Act, there is no statutory pro-
vision for public hearing.
The corps provides for public hearing at its own discretion.
Whenever there is any interest in public hearings, the corps has
them.
While there has been a lot of interest with some of the final permit
actions on the part of the public, very little dissatisfaction has come
about with the hearing procedure, to my knowledge.
So far as I know, we expect this to also be true under the adminis-
tration of the permit program under the Refuse Act, and as I in-
dicated there is nothing in the Refuse Act which requires public
hearing in connection with those permits.
However, the Department of the Army’s regulations are being is-
sued this week, and they do provide for public notice, and I believe
201
hearing in cases where this is held to be desirable, and I would expect
this will work equally efficiently. ,
Mr. Diner. This being so, then there would be no strong objec-
tion to require notice of hearing in connection with the bill before us?
Mr. Tran. This could well be. You certainly do not want to require
a hearing as a matter of course in all of these permit applications, I
would think.
Mr. Dinceix. Now, you are going to have some cases where you are
going to have dual permit authority.
Who will issue the permit for ocean dumping, will it be done by both
agencies, or will it be done through some joint permit issuing process ?
Mr. Tratn. The issuing authority is the Environmental Protection
Agency.
Mr. Drncety. You will find certain instances where ocean dumping
will be covered by the permit requirements of the statute, that are
proposed before us today, and also through the 1899 act.
Mr. Trarn. I think I may have misspoken before. This supersedes
the Refuse Act.
Mr. Dinceix. It does supersede the Refuse Act in total ?
Mr. Tratn. In connection with dumping covered by this act.
Mr. Dincety. Well, thank you very much, Mr. Train.
Mr. Everett.
Mr. Evererr. Thank you, Mr. Chairman.
Tn connection with the question you just answered, you did state
a moment ago this act did not supersede the 1899 Refuse Act, and I
note now you say that it does.
Mr. Train. Yes. You will find that on page 14.
Mr. Evererr. Yes, sir.
Mr. Train. Subparagraph (e).
Mr. Evererr. [t is not clear to me what the net effect would be with
respect to those portions of the 1899 act that are superseded, and I was
wondering if you could summarize just what the net effect of subsec-
tion (e) is on section 13 of the Rivers and Harbors Act of 1899.
Mr. Tran. Frankly, Mr. Chairman, it sounds like I am ducking the
question. I do not mean to. This 1s a highly technical complicated area
of the interrelations of three or four different statutes.
One program is really not even in effect yet. One is the legislation
before you, much of the application of which is going to turn upon
the kinds of regulations which will be issued by the Administrator.
IT would be happy to address myself in writing to the committee as
best I can, in talking with other agencies on these questions, but I think
I probably will be doing a disservice to this committee if I should try
to speak off the cuff to that particular question.
T will be most happy to answer that in writing.
Mr. Drneerrx. In perfect fairness to you, It is a highly technical
question.
I will direct this question to be answered in writing.
(Answer follows:)
Section 7 of H.R. 4723 deals with the relationship of this legislation to other
laws. Generally, except as provided in subsections 7(b) ‘and 7(c), it provides that
after the Act’s effective date, existing licenses, permits, or authorization would
be terminated to the extent they authorize activity covered by this proposal, and
62—513—71——14
202
that further licenses, permits, or authorizations of a similar nature could not be
issued.
Subsection 7(b) maintains present responsibility and authority contained in
the Atomic Bnergy Act of 1954, and provides that the provisions of Sections 4
and 7(a) of the bill do not apply to actions taken under that Act. However, the
AEC must consult with the Administrator before issuing a permit to conduct any
activity otherwise regulated by this proposal. Moreover, the AKC must comply
with the radioactive-material standards set by the Administrator, and the
Administrator is directed to consider the policy expressed in subsection 2(b) of
this proposal along with the factors stated in subsections 5(a) (1) and 5(a) (2)
in setting such standards for the waters covered by this proposal.
Subsection 7(c) relates to authorities contained in the Rivers and Harbors Act
of 1899, respecting dredging, filling, harbor works, and maintenance of navigabil-
ity. The powers are exercised for the most part by the Secretary of the Army
and the Chief of Engineers. Except for the limited supersession found in sub-
section 11(e). the Rivers and Harbors Act authorities are not negated or abro-
gated, nor are existing licenses or permits issued under the Act terminated.
Rather, in situations where this bill and the Act of 1899 both would apply to
dumping of material in connection with a dredge, fill or other permit issued by
the Corps of Engineers, issuance of the permit requires a certification by the
Administrator of EPA that the activity is in conformity with this proposal and
any regulations issued under it. The Administrator will not issue separate per-
mits in such eases.
Subsection 11(e)’s limited supersession of the Rivers and Harbors Act per-
tains only to Section 13 (the “Refuse Act”). Nonetheless, after this Act be-
comes effective, the Department of the Army’s permit program under the Refuse
Act, which is administered in close cooperation with EPA on all water quality
matters, will continue to regulate the disposition of any effluent covered by the
Refuse Act from any outfall structure regardless of the waters into which this
disposition occurs. In addition, the Refuse Act will continue to apply to all de-
positing of material into those navigable waters of the United States or their
tributaries which are not covered by subsection 4(b) of this Act.
The objective of the limited supersession is to remove a double permit require-
ment in the area of overlap between H.R. 4723 and the Refuse Act. To achieve
this objective, subsection 11(e) supersedes the Refuse Act only insofar as it
applies to dumping as defined in subsection 3(f), of material in the waters
covered by subsection 4(b). One further consideration deserves mention. Simple
supersession of part of the Refuse Act’s coverage would leave an accompanying
gap in protection of navigation. Accordingly, subsection 7(d) provides for
consultation by the Administrator of EPA with the Secretary of the Army in
eases where the Administrator finds that proposed activity regulated by the
ocean dumping system may affect navigation or create an artificial island on
the Outer Continental Shelf.
Besides the provision relating to Refuse Act, Section 11 contains a number
of other repeals or supersessions. Subsections 11(a) and 11(b) repeal the
Supervisory Harbors Act of 1888, as amended (83 U.S.C. §§ 441-451b), and the
provision of the Rivers and Harbors Act of 1899 (33 U.S.C. § 418) which pre-
served the Supervisory Harbors Act from supersession by the 1899 Act. The
Supervisory Harbors Act provides a special authority to control transit in and
from the harbors of New York, Baltimore, and Hampton Roads, Virginia. This
authority has been used to regulate ocean dumping. The proposed Act would
replace that authority. Subsection (e) repeals Section 2 of the Act of August 5,
1886 (33 U.S.C. § 407a), which pertains to deposits of debris from mines and
stamp works. These deposits are covered by this bill or the Refuse Act. Lastly
Section 4 of the Rivers and Harbors Act of 1905 (83 U.S.C. § 419), which has
been used to buttress the Corps of Engineers’ authority to regulate ocean dump-
ing, is superseded, insofar as it authorizes action that would be regulated by
this proposal.
Section 4 of the 1905 Act has been used to set aside areas for oyster cultivation.
If the oysters and other material placed in the oyster beds were ‘‘devices’”’, they
would be exempt from the coverage of this bill under the second proviso to sub-
section 3(f). A ‘“‘device’, however, ordinarily connotes a mechanism or a piece of
equipment. and accordingly oysters and thus oyster beds are not exempted from
coverage. As a further result, section 4 of the 1905 Act would be superseded in the
area.
As an aiternative to the foregoing approach, the Committee could delete the
supersession of section 4 of the 1905 Act. The Corps could then continue to use
203
this section to designate areas for oyster cultivation. While H.R. 4723 would also
apply, the Administrator could use the authority of subsection 5(e) to issue gen-
eral permits for “dumping” oysters and supporting material in the areas so desig-
nated.
Mr. Evererr. Mr. Train, if you would provide for the record, par-
ticularly at the bottom of page 18, just what section 11(a), which
relates to a portion of the 1899 act, and subsection (e) relate to, it would
be most helpiul, and that I would appreciate.
Now, with respect to the 1905 act, I am concerned about the areas
that are set aside for oyster cultivation, under section 4 of the 1905
act, and | am wondering what this particular language in the bill
would have on that public law. Aiso with respect to the N.Y. Harbor,
Tiampton Roads Harbor law i note that one of the provisions that
law has a tinaers fee in it.
I am going to ask you what your thinking is on how effective that
finders fee provision has been ?
Mr. Trarn. I do not really know how well that has been working.
Of course, for the finders fee under the 1899 Refuse Act, I cannot
answer your question.
i do not know whether that has proven to be an eifective device or
not.
Mr. Evererr. After you have had a chance to reflect on that also, J
wish you would give the committee the benefit of your thoughts.
Could you do that for us?
Mr. Trarn. I would be most happy to.
(Answer follows :)
We do not advocate adapting to this bill an informer’s fee similar to that
found in Section 16 of the Rivers and Harbors Act of 1899. Problems have arisen
with administration of Section 16, see United States v. Transit Mix Concrete
Corp., 2 E.R.C. 1074 (S.D. N.Y. 1970), and we would prefer to rely on other ayve-
nues for citizen participation in administration of an ocean dumping regulatory
statute. For example, we believe that citizens and citizen groups are most likely
to be helpful in reviewing criteria and in commenting on individual applications
for a dumping permit. We have also gone on record as favoring citizen suit pro-
visions analogous to Section 304 of the Clean Air Act as “an important comple-
ment to Federal enforcement efforts where Federal environmental standards
and procedures have been established.”
Mr. Evererr. Also, would you provide, somebody has to do it for
us, the estimated cost of this legislation ?
If you wouid also submit that for the record, I would greatly ap-
preciate it.
T think one of the requirements ought to be what you anticipate for
the next 5 years 1f the legislation were enacted, what would be the cost
to the Government ?
Mr. Train. We do have those estimates. We will be glad to provide
those.
Mr. puPonrt. I would like that also to include enforcement from the
Coast Guard point of view.
Mr. Trarn. Yes; that will be included.
Mr. Dinceiu. That is an admirable suggestion, because I am appre-
hensive with the limited resources the Coast Guard has at this time
to carry out its responsibilities, whether it would take on any addi-
tional chores like chasing ocean dumpers.
(Answer follows:)
Our estimate of the cost both of administering the permit system and of de-
veloping and using alternate disposal means to ocean dumping were made at or
204
near the time we issued our ocean dumping report. See, for example, the table
on page 20 of the report comparing estimated solid waste disposal costs. The
operating agencies, particularly the Environmental Protection Agency, the Coast
Guard, and the National Oceanic and Atmospheric Administration haye more
recently developed estimates of the cost of administration. We understand that
these agencies can provide the desired information for you.
Mr. Evererr. On page 13, under subsection (c) of section 8, it says:
The Secretary of the department in which the Coast Guard is operating shall
conduct surveillance and other appropriate enforcement activity to prevent
unlawful transportation of material for dumping or dumping.
Does this give the Coast Guard sufficient authority to enforce devia-
tion of the permit?
Mr. Tratyn. What do you mean by that ?
Mr. Everett. It looks like the prohibition goes to the transporting
or the dumping, where there has been no permit issued.
Now, where a permit has been issued, and the dumping is in a dif-
ferent locality, this does not meet the requirements or conditions
attached to the permit, and who has the authority to enforce this?
Does subsection (c) give the Coast Guard the authority, or should
the Coast Guard have that authority ?
Mr. Tran. I think clearly
Mr. Evererr. The language seems to be written narrowly to pre-
vent transportation or dumping.
Mr. Train. Certainly an unlawful transportation would in my view
include any transportation followed by a dumping in violation of a
permit, and IT would include as a violation of a permit a substantial
divergence from its terms.
Mr. Everett. I notice under the provisions under section 6, you say :
A person who violates section 4 of this Act, or regulations promulgated under
this Act, or a permit issued under this Act by the Administrator shall be
liable to a civil penalty of not more than $50,000 for each violation to be assessed
by the Administrator.
But I am just wondering if the language is broad enough in sub-
section (¢) on page 13 to include violations of a permit issued under
the act.
You might reflect on that.
Mr. Trarn. I think if there is any uncertainty there, it could well
be clarified.
We will be glad to take a look, another look at that to see if that
could be strengthened.
Mr. Evererr. You have the authority to designate areas where safe
sites can be located for purposes of dumping.
Do you have any indication as to how long it would take to study
these areas with respect to identifying them for this purpose?
Mr. Tratn. No, Mr. Everett; I do not have e any information I could
give you on that.
The act takes effect, as you know, 6 months after enactment, but
that does not give any indication as to when that study could be
concluded.
Mr. Evererr. One other thought with respect to the Coast Guard.
It is not spelled out in the bill, but do you think, either in the bill
or the regulations, that there should be some requirement that the
vessel operator, or the vessel itself, should have a permit displayed on
the vessel in some appropriate place so that it could be readily seen
and checked by the Coast Guard ?
205
Mr. Trarn. I would certainly assume that the regulations would
cover this.
IT would rather doubt that it is necessary to put it into the statute.
Mr. Evererr. One last question with respect to the Atomic Energy
Act of 1954.
IT am not sure as to the effect of this legislation on that act. Would
you exclude all radioactive waste from the provisions of the Atomic
Energy Act?
I wonder if you could enlighten us on that some?
Mr. Tratn. There is not any exclusion. It is just a matter of how
it is handled.
First, as you know, none of these things are being dumped at the
present time.
The Atomic Energy Commission has stopped all of these disposals;
however, what we have done under the legislation is to continue the
Atomic Energy Commission’s existing permit authority, rather than
try to shift it to another agency, yet at the same time requiring with
the language beginning on line 21 of page 10, that prior to issuing
any permit for dumping radioactive materials the Atomic Energy
Commission would be required to consult with the Administrator, and
that in issuing any such permit, the Atomic Energy Commission would
be required to comply with standards set by the KPA Administrator,
respecting limits on radioactive exposure levels, or concentrations or
quantities of radioactive materials.
Mr. Everett. I am wondering, why you would go to all of the trouble
to require conditions to be established by EPA and to be met in con-
sultations with AEC, why not just require the Atomic Energy Com-
mission to comply with the legislation like all other Federal agencies?
What justifies their exclusion, if I may ask, or different treatment
from the other Federal agencies?
You say they are not dumping now.
Lam at a loss to understand the rationale with respect to the other
agencies.
Mr. Tratyn. The Atomic Energy Commission traditionally has had
regulatory authority throughout an entire process that in any way
relates to radioactive materials, transport, and so on.
Mr. Evrererr. The whole range of activities related to radioactive
materials ?
Mr. Tratn. That is correct.
Mr. Dincett. Is the Atomic Energy Commission permitted to dump
radioactive matter into the waters is defiance of Federal policy
standards?
Mr. Tratn. At the present time
Mr. Drncett. Are they permitted to violate those policies?
Mr. Tratn. They are not doing any disposal offshore.
Mr. Drncety. The statutes, the Air and Water Quality Acts apply
to the Atomic Energy Commission; do they not?
Mr. Tratn. I do not know what the relation is between those acts,
Mr. Chairman. :
Mr. Drncety. I am curious why the Atomic Energy Commission
would be different from all other agencies, and why it would be given
this rather special treatment under the proposed statute.
Mr. Train. It had the authority ever since the beginning, and all of
the handling of radioactive materials is under regulation by the
206
Atomic Energy Commission throughout every step of the process and
it always has been, and this legislation would simply continue that
legal arrangement, but it does say that no permit can be granted by the
Atomic Energy Commission for the disposal of radioactive wastes
you the agreement of the Environmental Protection Agency.
tsays:
In issuing any such permit, the Atomic Energy Commission shall comply with
standards set by the Administrator respecting limits on radiation exposures or
levels, or concentrations or quantities of radioactive material.
It says:
In issuing any such permit, the Atomic Energy Commission shall comply with
standards set by the Administrator * * *.
Mr. Drtncetx. Go ahead, Mr. Everett.
Mr. Evzrerr. The previous sentence that concerned me, it says
“shall consult” and then you say, “in issuing any such permit, and so
on,” but I am wondering where is the language that requires the En-
vironmental Protection Agency or directs them to set the standards.
It says AEC shall abide by standards set by the Administrator.
Where is the authority directing him to set the standards?
Mr. Trary. The Environmental Protection Agency has that author-
ity in my opinion under existing law through Reorganization Plan
No. 3 of last year.
My. Drncrxt. Is not this going to give us one set of standards ad-
ministered by two different. agencies ?
Mr. Tratn. Well, in one sense, I suppose; yes.
Mr. Dincxtx. Now, the Atomic Energy Commission usually does not
in its disposal of substances use the oceans, and it will be giving permits
to other persons who will in turn engage in practice of ocean dumping ;
am I correct, Mr. Train ?
Myr. Tratn. I believe that would be the case, as a rule.
It would be an Atomic Energy Commission contractor or something
of that. sort.
Mr. Dincett. I find myself hard put. I might be able to swallow the
idea that the Atomic Energy Commission could do its own dumping,
but I find myself hard put to see why the Atomic Energy Commission
should become the permitting agency.
Mr. Trarn. Well, it is.
Mr. Dives. For dumping.
Is not the reason the Environmental Protection Agency set up to
have one place for all environmental matters, where all of those
matters will be handled ?
Was not that the basis on why Reorganization Plan No. 3 was issued ?
Mr. Trarn. I do not see any great objection in principle either way
the Congress would prefer to handle it.
Mr. Dincet. I really think we ought to keep it all in one place, to
having one set of standards administered by two different agencies, I
am rather curious as to why, and as I read the wind, the Atomic
Energy Commission will be rather anxious to get rid of this stuff,
and that being so, they might tend to view the environmental protec-
tion standards rather differently than would the Environmental Pro-
tection Agency, and it occurs to me, where you allow the Atomic
207
Energy Commission to engage in permits under the circumstances, it is
not good.
Wr. Tratn. Let’s remember the Atomic Energy Commission has
taken the lead worldwide in stopping ocean disposal of radioactive
waste.
Mr. Drncext. I can remember the day when they were loading the
rivers with just hundreds of tons of curious radioactive materials, and
this was the water source of many communities out there in New
Mexico, Arizona and Colorado.
Now, it may be the Atomic Energy Commission has arrived in the
20th century, but I am prepared to see that more clearly than fT have
so far.
Well, thank you.
Mr. Everett. That is all I have.
Mr. puPont. One final question.
T have looked at your data in your policy report concerning ton-
nage dumping, and so forth, but nowhere in here do I see an estimate
of, if you had a permit issuing authority in Environmental Protection
Agency, how many permits a year you think yeu would be dealing
with.
Are you talking of 10,000, or a thousand ?
Have you any feel for that at all ?
Mr. Tratn. No, Mr. duPont.
Now, maybe we do have that information. I am sure that in arriving
at estimates of expenditure requirements for the administration of
this permit system, that there are some estimates that have been
developed.
How accurate they are, I don’t know, but I will certainly see to it
we develop something before you.
Mr. puPont. I think the primary responsibility of EPA is in try-
ing to pull its air quality standards together. If you take 10.000 per-
mits, and require a hearing, and put this in addition, they will have
to have a substantial increase of manpower, and we appreciate that.
Mr. Tratn. Yes, sir.
(Material follows:)
The Environmental Protection Agency has estimated that at least 3,000 permit
applications per year will be received under this bill if enacted. We generally
concur with this estimate. The number of total regulatory actions required
by EPA may be higher if requests for EPA certification of the dumping aspects
of corps dredge and fill permit applications under the Rivers and Harbors Act
of 1899 are added to the number of direct applications for an ocean dumping
permit.
Mr. Dinceut. Mr. Andersen.
Mr. Anprrson. Mr. Train, in circumstances where degrees of statu-
tory stringency exist among various regulatory bodies, I can see the
possibility of serious complication and much confusion arising.
For example, if a State or local government has its own regulations
and the Federal Government its regulations, would the applicant be
required to obtain a permit from each of the local governments as
well as the Federal ?
_ Mr. Trarn. It is the intention that EPA would regulate all dump-
ing offshore, including within the 3-mile limit, but that in cases where
208
the State in question had stricter rules than those prescribed by the
Administrator, that the Administrator in granting the permit would
take those more strict rules into account.
Mr. Anperson. Who would be the one to determine which is more
strict ?
I could see where a small jurisdiction could have more stringent
requirements in a particular area while a larger State jurisdiction, for
example, could have strict requirements overall. Who determines
which requirements apply ?
Mr. Train. Well, of course, the Administrator will be referring his
permit application for comment to the applicable State and the Jocal
water quality agency where there is a case of dumping within the
3-mile limit, and the State would make representations at least as to
whether or not the proposed dumping would contravene State water
quality standards.
I suppose in the final analysis, the Administrator of EPA would
have to ie ake that determination.
Mr. Anperson. So there would then be one permit, but the appli-
cant would in effect have to comply with the requirements of both ?
Mr. Trarn. Really it would be the requirements laid down by the
Environmental Protection Agency, but they could in that case be
stricter standards than EPA would be applying perhaps in some
other coastal area.
Mr. Anperson. That is all, Mr. Chairman.
Mr. Dineery. Mr. Pelly.
Mr. Parry. No questions.
Mr. Drncexz. Mr. Train, it is always a privilege to have you before
this committee, and you deserve coner atulations with respect to your
very fine work.
It is a long time since we have had you before this committee, and
everytime it has always been a pleasure.
Mr. Train. Thank you, Mr. Chairman. It is always a pleasure to
be here.
Mr. Drncett. We also express our thanks to your associate.
Our next witness is Mr. Paul A. Amundsen, executive director of
the American Association of Port Authorities.
Mr. Amunpsen. Mr. Chairman, I understood we were to testify
tomorrow afternoon.
Mr. Dincetu. The witness list indicates you were to be heard today.
Tf you wish to be heard tomorrow afternoon, we will make an op-
portunity for you to be heard tomorrow.
Mr. Amunpsen. I would be glad to be heard, but I do not have my
statement with me.
Mr. Dincetu. We will try to hear you tomorrow afternoon.
I suspect we have a rather full schedule tomorrow, but we will try
to give you an opportunity to get your statement before this
committee.
Mr. Amunpsen. Mr. Langlois is our witness tomorrow of the Port
of Portland, Maine.
Mr. Drincent. Perhaps it would be helpful for the Chair to read off
the list of witnesses.
Tomorrow morning we have several of our colleagues scheduled to
testify.
209
We have representatives of the Atomic Energy Commission. We
have Mr. Harrison Loesch of the Department of the Interior.
In the afternoon we have our colleague, Congressman Williams, and
we have Dr. Ketchum, associate director of Woods Hole Oceano-
graphic Institute.
We then have Mr. Langlois of Port of Portland, Maine, and he will
be heard at 3:15, and he is your associate, is that correct 4
Mr. Amunpsen. That is correct.
Mr. Drycexu. Is there anyone else here who is on the witness
list ?
Well, perhaps, it would assist the committee to read the lst of
witnesses for Wednesday, but to finish for tomorrow first.
We have at 4 o’clock Mr. James Beggs, and then at 4:30 we have
Mr. James J. Reynolds.
On Wednesday we have Congressman Harrington, Congressman
Gallagher.
Also Mr. William D. Ruckelshaus, Mr. John R. Stevenson, Mr.
Henry Douglas, Mr. James Wakelin, Brig. Gen. George Hayes, Dr.
Richard Barber, Louis Clapper, and then the Sierra Club.
Mr. Penry. It appears to me we have some important legislation on
Wednesday, Mr. Chairman.
There may be a controversial issue, and now that we have a re-
corded teller vote, I doubt we will be able to hear all of the witnesses.
Mr. Drncetn. You may be correct.
Mr. Pretuy. That may present a problem for Wednesday, Mr.
Chairman.
Mr. Dincett. The gentleman is probably correct as always.
The subcommittee will stand adjourned until 10 o’clock tomorrow
morning.
(Whereupon, the committee meeting was adjourned at 3:30 p.m.,
scheduled to reconvene at 10 o’clock, April 6, 1971.)
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OCEAN DUMPING OF WASTE MATERIALS
TUESDAY, APRIL 6, 1971
House or REPRESENTATIVES,
JOINT SUBCOMMITTEES ON OCEANOGRAPHY AND
FISHERIES AND WILDLIFE CONSERVATION,
Washington, D.C.
The joint subcommittees met, pursuant to notice, at 10 a.m. in room
1334, Longworth House Office Building, Hon. Alton Lennon (chair-
man of the Subcommittee on Oceanography) and Hon. John D. Dingell
(chairman of the Subcommittee on Fisheries and Wildlife Conserva-
tion) presiding.
Mr. Dincetu. The subcommittees will come to order.
This is a continuation of the hearings begun yesterday on the series
of bills regarding the matter of ocean dumping.
Our first witness this morning will be our good friend and col-
league, the Honorable Charles W. Sandman, Jr.
Mr. Sandman, we are glad to welcome you.
Will you identify yourself fully, for the record.
STATEMENT OF HON. CHARLES W. SANDMAN, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Congressman SanpmMan. Thank-you, Mr. Chairman, and the dis-
tinguished members of the Subcommittees on Fisheries and Wildlife
Conservation and Oceanography..These hearings are most. timely.
_ I say timely because starting this Easter weekend and continu-
ing through late fall, millions of American tourists and sportsmen
will fiock to the seashore resorts such as Atlantic City, the Wildwoods,
and Cape May in the congressional district I represent.
They are attracted primarily by the Atlantic Ocean, its clean white
beaches, its surf, the cool fresh air it brings to the shore and the bath-
ing, fishing, boating and other recreational opportunities it provides.
They will spend an estimated $3 billion this summer alone, an income
upon which a large number of the people I represent are dependent
for their livelihood. Yet the seashore as a vacationland may soon be a
thing of the past if we do not act now to stop ocean pollution.
This committee’s deliberations are also timely because one of the
Nation’s most historic, basic and important industries may well be
threatened with near extinction because of ocean pollution. Commer-
cial fishing hauls continue to go down in quantity and quality; the
fleets are dwindling in size and recently, over 80 percent of the in-
shore waters in my district and large portions of offshore waters have
been declared off limits for the taking of shellfish. All because of
pollution.
(211)
212
Therefore on opening day of this session of Congress, I introduced
H.R. 1661 (H.R. 5049 and 5050 for cosponsors), a bill to regulate and
eventually eliminate indiscriminate ocean dumping.
The premise of this legislation is simply that the oceans and other
waters are not the proper places to dispose of man’s wastes: human,
industrial or any other kind. Our marine resources are too valuable as a
source of food and other natural resources and valuable as a source of
recreation to spoil.
Therefore, my intention and hope is that this committee and Con-
egress will, through unequivocal legislation, declare the oceans uncon-
ditionally off limits as dumping grounds.
Now I realize, Mr. Chairman, that ocean dumping has been going
on for some time and that elimination of this practice in some cases
cannot be expected to happen overnight. But this must not divert
our attention from the real need: to phase out ocean dumping alto-
gether.
~ Thad the privilege of testifying before the U.S. Senate Public Works
Committee hearing on ocean pollution on March 26 at Rehoboth Beach,
Del. I spoke, I listened to and I later read the remarks of all who at-
tended the hearings, conducted by the Subcommittee on Air and Water
Pollution. I was the only Member of the House present.
Also, I personally initiated the two, already historic and precedent
setting the U.S. district court cases on ocean dumping of industrial
wastes. The research and legal strategy and negotiations on these cases
was most extensive.
I mention these items of background, Mr. Chairman, not so much
to establish my credentials, but rather to spare the distinguished mem-
bers of these subcommittees a lengthy blow-by-blow account of events
upon which I base the recommendations I will make to you here today.
I am prepared to justify any of these points to you in detail.
There are eight points I want to bring to your attention briefly.
(1) There is no excuse for dumping wastes of any kind in the oceans.
I am not impressed with any of the arguments advanced by those who
try to defend or justify ocean dumping and I’ve heard them all. Other
than the fact that the oceans contain vast amounts of water in which
some materials can be diluted easier and perhaps cheaper than on land,
ocean dumping exists for only one reason, best identified with the
cliché: “Out of sight, out of mind.” Ocean polluters operate with the
very same intent as housewives who sweep dirt under the carpet.
(2) Safe and economical land-based waste disposal sites and facili-
ties can be developed. The technology now exists and given a con-
gressional ultimatum to cease ocean dumping, the creative genius of
American enterprise will develop new, possibly cheaper and more ef-
fective methods of disposing of wastes on land.
In this connection, I do want to note in all fairness that waste dis-
posal site selection and acquisition is a serious problem. Nobody, as
the old saying goes, wants to live next to a dump. As a result of this,
local zoning laws and sanitary landfill and other disposal site licens-
ing requirements in most communities of the Nation tend to “freeze
out” disposal facilities. It is possible there is a need for Federal
legislation to cope with this very real problem.
As further testimony that ocean dumping is not necessary, I point
with pride at the fact that the city of Bridgeton—the only municipal-
213
ity in my district that barged sewage sludge to the ocean to be
dumped—has now ceased this practice. In January, Bridgeton stopped
ocean dumping and is now allowing private nurserys to pick up its
treated sewage sludge for use as fertilizer, one of the best available.
(3) Until all dumping can be phased out, the practice should and
can be regulated effectively without undue hardship. I have proposed
a simple permit system in my bill and am pleased to note this approach
is included in other legislation now before these subcommittees. Sim-
ply, no dumping could take place unless a permit is first obtained from
the Environmental Protection Agency (EPA). This permit would
only be issued if the EPA Administrator 1s satisfied that the proposed
dumping will not damage the marine environment.
Additionally, H.R. 1561 establishes an immediate ban against dump-
ing anything between the Continental Shelf and the coast of the
United States. This is a reasonable requirement in my opinion, for it
is inside the first 75 to 100 miles that the current damage from ocean
pollution has been done. Congressional support for this minimum
distance for dumping, effective immediately, will accomplish two
very important things. First, the immediate threat to fishing and
recreation will have been alleviated. In time, the nearshore ocean floor
will be cleansed by the flush of tidal action and therefore shellfish-
ing and commercial and sport fishing will improve. Next, the increased
distance a load of waste would have to be transported will tend to
discourage dumping and encourage development of land-based dis-
posal sites and facilities.
I want to point out briefly that I have seen detailed proposals by a
private contractor showing that sewage sludge could be transported
100 miles offshore in the interim for approximately the same cost and
in approximately the same time it now takes to transport the sludge
only a few miles offshore. The idea is simple and sensible. It is to use
fast, high-capacity ships instead of slow, low-capacity barges to trans-
port the material. Based on this, I am confident such a dumping mini-
mum as I propose will not pose an unsolvable problem to those who,
in fact, will be unable to stop dumping immediately altogether.
(4) International regulations on ocean pollution are essential. In
the long run, even assuming the United States is eventually able to
phase out all dumping of pollutants in the oceans, cooperation from the
other nations of the world must be sought immediately. I urge this
committee, perhaps by a separate joint resolution, to urge adoption of
pollution abatement programs such as ours by the other countries and
through the various international organizations.
(5) No arbitrary time limits for ending dumping or allowing it
to continue should be included in this legislation. There are a variety
of proposals, Mr. Chairman, before Congress now to establish a specific
time by which dumping will no longer be allowed. One bill asks 5 years;
another says 2. My view is that more can be accomplished faster with-
out any arbitrary time limits. If the committee reports a proposal
that dumping shall be illegal after 5 years, for example, I am certain
many of the municipal and industrial polluters will take the full limit
to cease operations. I urge that scheduling be left up to the EPA
which will act on each case individually to establish phasing-out of
mean dumping. -
(6) The traditional jurisdictional limits of the United States should
not be tampered within order to regulate ocean pollution. We simply
214
don’t have the time. The business of rewriting international treaties is
a time-consuming one and in my opinion, this approach is cumbersome
and unnecessary in order to establish the necessary jurisdiction to con-
trol ocean pollution.
(7) Adequate research and development funds should be available
to help establish land-based waste disposal technology and facilities.
I urge this committee to investigate whether existing Federal grant
and loan programs are adequate to meet the needs for the transition
from ocean disposal to land-based disposal of wastes. If it is deter-
mined that exising programs are inadequate, I will support new or
increased appropriations for this purpose.
(8) New jurisdiction is needed to deal with ocean dumping. This is
my final point, Mr. Chairman. It is one with which I am completely
familiar because the matter of U.S. jurisdiction was the crux of my
U.S. district court suits on ocean pollution.
Academically, I feel the Federal Government does now have a form
of jurisdiction over ocean pollution. It is based on the concept that in
our Federal Union, every State is expected to exercise reasonable
reeard for the health and welfare of the people of every other State.
T have maintained in court that the loading, transporting, and dump-
ing of certain pollutants constitutes a threat to the health and welfare
of certain of our citizens.
The fact is, however, this case has not yet been argued to a decision
in the courts. In both civil actions I initiated this year on ocean pollu-
tion, the defendants consented to the restraints I requested rather than
to contest the jurisdiction upon which I based my cases. But I know
from years of courtroom experience what raised eyebrows on the part
of the presiding judge means. At best, Mr. Chairman, our current jur-
isdiction to control dumping beyond 3 miles is highly questionable. At
worst, it doesn’t exist.
In my bill (H.R. 1661) therefore, I propose that Congress establish
controls where we now have jurisdiction without question; namely at
the loading docks and ports of the Nation. To load any vessel with
waste material intended for ocean dumping, the permit I have previ-
ously mentioned must be obtained.
Armed with this new jurisdiction, Mr. Chairman, and with the in-
creased surveillance and minimum dumping distance required under
the permit system I have proposed, this Nation can finally proceed to
clean up and strive to protect forever our precious marine and coastal
environment.
Mr. Sanpman. Very basically, I think the most important thing we
have to accomplish, Mr. Chairman, and the biggest obstacle we have
is time.
We do not have time to lose in establishing a law that is going to give
us some teeth by which we can control the promiscuous dumping in the
ocean outside the 3-mile limit.
T feel that the only kind of measure that we can pass, and pass with
dispatch, will be a bill such as the one I have introduced. Other mem-
oar have introduced the same kind of bill in both the House and the
erate.
My bill is known as H.R. 1661, and it requires any person or com-
pany who is moving any kind of substance, any kind of waste substance,
215
that is going to be dumped in the territorial waters of the United States,
to first get a permit from the Environmental Protection Agency.
That permit has in it a condition precedent that each applicant must
show exactly how the wastes are going to be loaded, where it is going
to be loaded, how it is going to be transported, and most of all, where
it is going to be disposed of, and by what method.
This permit will give the U.S. district court jurisdiction, and it can
give it a supervisory ability which we do not have now in the present
law, and which we sorely need.
Tt will require that the U.S. Coast Guard be given at least 4 hours
notice before any ship is leaving any port in the United States, and,
secondly, broad powers are given to the Environmental Protection
Agency ona regulation of the entire bill.
T have suggested in this bill that very heavy penalties be inflicted,
because we are dealing with something highly dangerous to our en-
vironment.
IT have recommended a first offense penalty of $50,000, a second
offense penalty of a hundred thousand dollars, or confiscation of the
vessel or both, and the liability should be joint and several with every-
body involved.
_ The other measures that have been introduced basically have only
few deviations from what I have preposed.
Some bills would like to seta cutoff time. So that we understand
each other, it is my view that the ocean is not the proper place to dump
anything; any kind of waste, whether it be toxic or otherwise. I would
like to see this ended as quickly as possible, but I think it is wrong
to put a time limit in any legislation, Mr. Chairman. You know, and
T know, if you give any industry 5 years, or 2 years to do something,
that is how long they will take to do it.
IT would rather see the Environmental Protection Agency have the
authority, because of experience with the various people and indus-
tries, as to when dumping must end.
Now, here is a good example. Of the three cities that have dumped
only 10 miles from where I live, off the coast of Cape May, N.J., one
of those cities, only 3 months ago developed a new method—new to
them—on how they can use this waste for a fertilizer, and this is what
they are doing today.
I can see that the city of Philadelphia, because of its tremendous
problem, and its great volume, perhaps cannot stop disposing of the
sludge immediately.
This might be too much of a hardship, and I can understand that.
But as for the city of Bridgeton, which has already reached a point
through its own exploration where it does not have to dump any of
its waste, the cutoff time has already arrived as far as the city of
Bridgeton is concerned, and they should not be permitted at any time
to dump sludge into the Atlantic Ocean.
When the day arrives that the other two cities have reached that
point, whether it be next month cr next year, that is when their permits
should expire.
There are many other things that I could elaborate upon; however,
i know you have many other witnesses, and I have touched on those
things I think are the most important, and, again, gentlemen, this is
a very dangerous situation.
216
The Federal courts, in most legal minds today, does not have the
jurisdiction that it should have to handle this kind of a problem ade-
quately, and I am hopeful that your committee will be working, with
dispatch to pass a measure that will regulate the dumping in the ocean.
Mr. Diner. Mr. Sandman, the committee is grateful to you. We
are aware of your long assistance to this committee, during the last
session of the Congress, and we are glad to say that this time we think
we are able to move forward on legislation.
Mr. Peviy. Mr. Chairman, Mr. Sandman has made an unusual con-
tribution, because he has had an active fight against the dumping, and
in his experience J think it will be very helpful to this committee.
Mr. Dinecett. I thoroughly agree.
Mr. Sanpman. Thank you, gentlemen.
Mr. Dincein. The Chair is happy to welcome as our next witness,
and a former member of this committee, Congressman Louis Frey, Jr.
We are sorry he is not here with us on the committee this year.
Mr. Frey, we are certainly happy to welcome you.
STATEMENT BY HON. LOUIS FREY, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Frey. Thank you, Mr. Chairman. These bills, H.R. 4359, H.R.
4360, and H.R. 4361, were cosponsored by 52 members from both sides
of the aisle, including the distinguished chairman of the oceanography
subcommittee, Mr. Lennon. Other cosponsors who are members of
the Merchant Marine and Fisheries Committee include Mr. Grover,
Mr. McCloskey, Mr. Hathaway, and Mr. Keith. In addition, the
bill introduced by Mr. Rogers—H.R. 662—and cosponsored by
Messrs. Dingell, Pelly, McCloskey, Keith, Moss, and Conte differ in
only one major respect from my bill—it does not provide for the estab-
lishment of a system of marine sanctuaries.
Mr. Chairman, we are all well aware of the seriousness of the present
situation. Marine pollution has seriously damaged the environment
and in some areas it 1s posing a great threat to human life. There have
been heavy kills of fish and at least one-fifth of the Nation’s commercial
shellfish beds have been lost due to pollution.
Shellfish have been found to contain hepatitis, polio virus, and other
pathogens. In the lagoons and estuaries in Brevard County, Fla., for
example, heavy fresh water runofis from agricultural areas have re-
sulted in the banning of shellfish harvesting, which was a major in-
dustry in the area. Lifeless zones in the marine environment have
actually been created.
Man has also been seriously affected. Not only has there been a loss
of recreational opportunities and adverse esthetic effects, but there
have been instances of lethal and sublethal effects. By 1965, over 41
persons living on Minamata Bay, Japan, had died due to mereury
poisoning in fish and shellfish. Recent tests off Long Island indicate
the presence of mercury in fish that is within the range reported for
the first that caused the Minamata Bay disease in Japan.
According to the Council on Environmental Quality, 48 million
tons of waste were dumped at sea in 1968. These wastes included
dredge spoils, industrial wastes, sewage, construction and demolition
217
debris, solid waste, explosive chemical munitions, radioactive wastes,
and. miscellaneous materials.
There are at least 250 known official and unofficial disposal sites off
U.S. coasts. Half of the.ocean dumping grounds are located off the
Atlantic coast while the other half is evenly divided between the gulf
and Pacific coasts. A large area of the Atlantic Ocean off New York
Harber has become an ecological desert as a result,of the dumping of
sewage sludge in that location for 40 years.
Aside from areas such as that off New York Harbor which have
been used continuously for the dumping of deposition by outfall of
sewage and other toxic material, there have been hundreds of other
incidents of spillage of hazardous material. A very thorough study
recently compiled by the Coast Guard listed 157 separate instances
o£ reported spillages of dangerous or hazardous materials in the past
2 years.
Decisions made by municipalities and industries in the next few
years could lead to dramatic increases in the level of dumping. Be-
cause the capacity of land-based disposal sites is rapidly being ex-
hausted in some coastal cities, communities are looking to the ocean
as a dumping ground for their wastes.
Forced with higher water quality standards, the industries may
also look to the ocean for disposal. The result could be a massive in-
erease in the already growing level of ocean dumping.
It is largely the responsibility of the Federal Government to halt
and reverse the environmental deterioration taking place along coastal
areas, and particularly those adjacent to large urban centers. How-
ever, the Federal Government presently lacks sufficient authority and
some of the Federal roles are overlapping with no clear-cut idea as to
the lead agency responsibility. It was this tangled bureaucratic web
that impelled me to search for a more comprehensive approach that
includes specific guidelines.
Let’s look at the present system. Ocean dumping in territorial wa-
ters is not “reoulated” under the Refuse Act of 1899, the 1888 Super-
visory Act, the 1905 River and Harbors Act, and the Federal Water
Pollution Control Act of 1965, as amended. The first three acts are ad-
ministered by the Corps of Engineers and the Water Quality Act by
FWQA which is now a part of the Environmental Protection Agency.
Beyond the territorial sea, authority to enforce pollution laws ap-
plicable to U.S. nationals is assigned to the Coast Guard. Apparently,
the authority applies only to vessels carrying oil. No Federal agency
has authority to completely regulate or control dumping beyond the
territorial sea. Applications to the Corps of Engineers for disposal
of wastes at sea are hardly ever denied beyond the 3-mile limit even
when public health groups object, because of a lack of explicit regula-
tions and guidelines.
st peep study for the Bureau of Solid Waste Management con-
cluded :
Although there are many Federal, State, and local agencies involved in one
way or another with the disposal of wastes from barges and ships in any one
city, rarely did more than one of these agencies have a comprehensive picture
of the total activities of this city. This lack of effective data management ap-
pears to be due primarily to both a lack of communication between agencies
62—513—-71——_15,
218
involved and the concentration of interest in a given agency in only specific types
of wastes.
Also, the expertise in one agency often isn’t made available to an-
other. There is also breakdown in obtaining and processing environ-
mental data to assess future waste disposal activities. At present, there
isn’t a continuous monitoring and surveillance of disposal activities.
Furthermore, there is no regulation of dumping by other nationais
within the contiguous zone. Legislation has not been passed to imple-
ment article 24 of the Convention of the Territorial Sea and Con-
tiguous Zone of 1958.
Mr. Chairman, the legislation which I have introduced not only
clears up this administrative mess, but also creates the authority neces-
sary to effectively regulate clean dumping.
In my opinion, this bill offers several important and desirable fea-
tures which are lacking in the bill proposed by the administration. In
addition, by bill, unlike that of the administration, conforms closely
to the recommendations of the Council of Environmental Quality as
to what provisions ocean dumping legislation should contain. These
recommendations, it should be remembered, were the result of a com-
prehensive study initiated by President Nixon on April 15, 1970.
It is important that we in the Congress decide the kinds and places
of dumping that should be proscribed and not leave it simply to the
discretion of the Administrator. After all, it is the lack of specific
guidelines and direction which has caused indecisiveness on the part
of the administering agencies. Furthermore, this is an area of such
importance that strong legislation is required. Delegating full au-
thority to the Administrator of EPA could easily result in a so-called
balancing of interests which would result in less strmgent regula-
tions and enforcement. The Congress should establish a national policy
embodying specific guidelines to halt the practice of using our
coastal areas and Great Lakes as a dumping ground simply because
it is the “cheapest method of disposal.” The fact is that the dollar cost
of ocean dumping coupled with the ecological costs make it the most
costly method.
The legislation I have introduced has a threefold approach. First,
instead of designating areas where dumping may be conducted safe-
ly, my bill concentrates on determining which areas of our marine
environment are most valuable and setting them aside as sanctuaries.
Second, similar to the administration’s proposal, my bill also prohibits
the dumping of waste material into the oceans, coastal waters, and es-
tuarine areas, except under a permit signed by the Administrator of
the EPA. Third, the bill proscribes absolutely the dumping of toxic,
radioactive, and chemical biological warfare material.
T have chosen as a vehicle for this legislation the act of August 3,
1969, which declared as a national policy the concept that the estu-
arine areas of the United States are of great value to America and must
be protected and conserved for the future of this Nation. This act was
chosen, Mr. Chairman, because of the need to relate the problem
of ocean dumping to the broader problem of preserving certain eco-
systems within the coastal zone area. This need exists because the
dumping of dredge spoil constitutes the largest single element in the
growing volume of refuse being dumped into the ocean.
219
And most dredge spoil is dumped relatively inshore, where it may
contaminate the valuable shellfish and fish species generally.
The report of the Council on Environmental Quality recommended :
High priority be given to protecting those portions of the marine environment
which are biologically most active, namely, the estuaries and the shallow, near-
shore areas in which many marine organisms breed or spawn. These biologically
eritical areas should be delineated and protected.
Both the act of August 3, 1969, and the report of the Council would
seem to mandate that any ocean-dumping legislation would have to in-
clude a provision for setting aside as sanctuaries those areas of our
marine environment which are determined most valuable.
Section 3 of the bill authorizes the Secretary of Commerce acting
through the newly established National Oceanic and Atmospheric Ad-
ministration, in conjunction with the Secretary of the Interior, the Ad-
ministrator of EPA, and the Council on Environmental Quality, to
designate as marine sanctuaries those areas which the Secretary deter-
mines should be preserved or restored for their recreation conserva-
tion, ecological or esthetic value. This section directs the Secretary to
make an initial designation of marine sanctuaries within 2 years fol-
lowing the date of enactment of the legislation, and: require him to
submit an annual report to the President and Congress reviewing the
activities under this act. Adequate funds are authorized for the con-
duct of studies leading to the designation of marine sanctuaries. The
Secretary of Interior may not renew any license or permit for marine
mining activity within an area under study for designation as a marine
sanctuary, nor may the Administrator of EPA issue or renew any
permit for dumping in any areas under study.
Section 2 of the bill amends section 6 of the 1968 act to prohibit
disposal of waste materials without a permit issued by the Adminis-
trator of KPA, under such terms and conditions as he determines
necessary to insure that the dumping or disposal will not damage the
ecology of the marine environment.
The minimum guidelines which this bill sets forth for the issuance
or permits corresponds with those suggested by the Council on En-
vironmental Quality and differs markedly from those contained in
the administration’s proposed bill.
My bill calls for a gradual phasing out of municipal sewage and in-
dustrial waste outfalls. These outfalls constitute one of the major
sources of marine pollution. Sewer outfall is the primary pollutant in
the New York Bight. 130 municipal waste outfalls discharge 2 billion
gallons per day.
Waste material is defined so as to include all solid and liquid indus-
trial byproducts, chemicals, sewage, sludge, dredging spoils, and debris.
Disposal is defined as the placing, releasing or discharging by any
means whatsoever.
The administration’s proposal, on the other hand, specifically ex-
cludes municipal sewage cutfalls or industrial waste outfalls from the
definition of dumping.
Following the recommendations of the Council on Environmental
Quality, my bill proposes a phasing out of the dumping, or disposal of
municipal sewage, or industrial wastes. After January 1.1972, no dis-
posal could take place unless such sewage or industrial waste has
220
received primary treatment in accordance with standards established
by the Administrator.
After January 1, 1974, no permit may be issued unless such’ sewage
or industrial waste has received primary and secondary treatment, and
after January 1, 1976, no permit can be issued unless primary, second-
ary, and tertiary treatment has been received.
This gradual strengthening of standards will allow the companies
and municipalities involved leadtime to develop new processes for
treatment and also eradicate a major source of ocean pollution.
The dumping of radioactive wastes, toxic industrial wastes, and
chemical and biological warfare material are completely prohibited.
The serious adverse effects which the dumping of these materials
could and do have, coupled with interim and long-term alternatives
to their dumping in the oceans leads me to believe that no rational
balance of interests requires the use of our oceans and coastal waters
for their dumping.
In this regard, the Council on Environment Quality concluded
that “no ocean dumping of chemical warfare materials should be
permitted,” and “ocean dumping of industrial wastes should be stopped
as soon as possible.” They also called for more stringent standards
regulating the dumping of radioactive materials.
It should be noted that other studies, including a recent study of the
New York Bight for the Department of Interior and a study by the
Coast Guard, also recommend that the dumping of these categories
of material should cease entirely.
Alternatives exist to outfalls of sewage sludge, industrial wastes,
and the dumping of other toxic, chemical-biological and radioactive
materials. In some cases these alternatives actually cost less. And
when you add in the ecological costs imposed on the marine envi-
ronment by dumping at sea, in almost every instance it would be less
expensive, in both economic and social terms, to revert to land-based
disposal systems.
Sewage sludge can be disposed of in sanitary landfills or used as
a soil conditioner. Industrial wastes can be treated and disposed of on
land, or they can be incinerated. Radioactive materials can be en-
tombed in salt mines, and dismantled chemical and biological waz-
fare material can be neutralized, incinerated, or buried. Of course,
longer-term alternatives such as recycling can and should be explored.
Finally, the bill recognizes the fact that stringent enforcement of
these regulations is required in the purpose and spirit of the act is
to be accomplished. Fines for unauthorized use of dumping range
from a minimum of $2,000 up to $10,000 for the first offense, and from
$10,000 to $25,000 for each succeeding offense.
It further provides that any vessel or barge engaged in dumping
in violation of the act shall be forfeited. The Administrator of EPA,
the Coast Guard, and the Corps of Engineers, acting jointly, shall en-
force the act. This legislation also empowers the Coast Guard to stop
and search vessels in our territorial waters and in the contiguous
zone to determine whether they are engaged in unauthorized dumping
activities or related transportation activities.
TI guess the problem of ocean dumping really hit home to me during
the hearings on the dumping off the cape, when we found the laws
we had just were not adequate, and did not do the job.
221
There is no reason to relate the problems to the committee of the
great growth in pollution, and the fact that the ocean is becoming
a garbage dump.
f think we recognize this, and we also recognize we have to do
something about it.
The question in front of the committee is what are we going to do
about it. Are we going to just make a pass at it, or are we going to
put it under one roof and make it a tough law that has teeth in it.
Very briefly, my bill has a somewhat different approach from the
administration’s bill that has been introduced.
To begin with, the initial thrust of the bill is to set up sanctuaries,
areas, where as a matter of national policy, there can be no dumping of
any kind under any circumstances.
Second, it prohibits the dumping of waste materials in the ocean,
the coastal waters, and the estuaries, except under a permit signed
by the Administrator of the Environmental Protection A gency.
Third, we allow, or we prohibit absolutely the dumping of any
toxic, radioactive, or chemical biological warfare material in any
lace.
The bill that I propose follows very closely the report to the Pres-
ident, prepared by the Council on Environmental Quality on ocean
dumping which was filed in October, 1970.
The act aiso provides that the Coast Guard be given the funds
to carry out surveillance of any dumping by the shipping that may be
using these waters.
Té also calls for Federal preemption and uniform regulation. I
think we can see it in the Delaware Bay area. If we allow the States
themselves to act, and Delaware, for instance, does not have.as strict
a standard as New J ersey, you will find people going over the line
and dumping their garbage.
I think this is a national question. I do not think it should be one
that the States themselves should decide.
The act I propose is somewhat different from the administration’s
act, in that it is broader. It prohibits, not only our flagships from
dumping im our territorial and contiguous waters, but any foreign
national from doing it.
it addresses itself to one other problem, and that is the question of
waste disposal.
This is extremely important. The administration’s bill does not
say anything about waste disposal. It just ignores it. Part of the ra-
tional as I understand it, is that this will be handled by the Public
Works Committee under the Water Quality Control Act. But even
under that act, only the question of efiinent standards is considered
and not other factors, such as where the dumping takes place.
My bill calls for a gradual phaseout beginning in 1972 and ending
in 1976. And, of course, there is precedence for this under the Air
Control Act.
It, in essence, brings everything under one head, and it gives one
agency, the power to carry this out.
Lam somewhat puzzled at the reluctance to follow the recommenda-
tions of the ocean-dumping report of Council on Environmental Qual-
ity, which is I think of importance in drawing this act.
222
_ The penalties themselves are on a graduated basis for a first offense,
being between $2,000 and $10,000, and more for the second offense.
I am not tied in my bill to any particular approach. I am not tied
necessarily to the penalties, if they could be increased, but I feel very
deeply the problem must be met.
_It cannot be done piecemeal, and I am not for just delegating broad
discretion to an agency to make up the rules.
I think this is of such importance to our Nation that the legislation
should restrict to a good deal the ability to trade off, or to balance off
the various interests, because I think the interests In preserving our
ocean are greater than any other interests that might come into
conflict.
I would be glad to answer any questions on this that you may have,
but I think my statement is fairly complete in laying out this matter.
One last point, I do want to emphasize the difference between this
approach, and the approach I think that the administration has taken.
This bill, or a bill like it is a complete, not a piecemeal, approach
to the problem.
Tt just does not take one particular part of it, and try and isolate
it. It just does not work. It has not worked in the past, and I think we
need to do a lot more in this area.
Mr. Dinceti. Mr. Frey, you have given the committee an excellent
statement, and we are indeed grateful to you.
The Chair would appreciate receiving, at your convenience, such
amendments to the administration’s bill you might deem appropriate
in addition to the comments you have made this morning.
Mr. Frey. Thank you very much, Mr. Chairman.
Mr. Dineen. Our next witness is our good friend and colleague,
Hon. Sam Gibbons, Congressman.
Mr. Gibbons, we are glad to welcome you to present such statement
as you wish to give at this time.
STATEMENT OF HON. SAM GIBBONS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Giseons. Thank you, Mr. Chairman.
IT am a cointroducer of a couple of the bills that are before you this
morning, and I want to state [am not wedded to the specific language
of any of the bills I have introduced.
T respect the ability of this committee.
I would urge you to bring out as early as possible a strong tough
law on the matter of dumping, and the matter of the pollution of our
coastal waters and estuaries.
i came here this morning to tell you from the point of view of a per-
son who has lived very close to the sea all of his life, that I see what
is developing, and I think something needs to be really done.
Let me describe my background. I am a native of Florida. I have
lived near the gulf all of my life. I live on one of the most highly
polluted estuary waters in the United States. That is not something to
brag about, but it isa fact.
The port of Tampa is one of the largest, probably the eighth or ninth
largest port in the United States.
—
223
The Bay of Tampa has been badly treated by the merchant marine
and by the people of the Tampa area.
Last month when I was home, I took a tour of the bay, and it was
the filthiest body of water I have seen. It has gotten progressively
worse. It is a combination of things of sanitary sewage dumping, run-
off from the streets, and also dumping from plants in the area, as well
as the merchant marine ships in that area.
As you recall, we had one of the largest oil spills in my bay last year,
and we have had very serious repercussions from that.
On the gulf coast of Florida, as far as the committee jurisdiction
is concerned, you will find the bay scallops, and the small fish that used
to grow in the bays around there no longer exist.
For years I have fished, and retrieved scallops and things of that sort
from this area, and they no longer exist.
The whole opportunity to catch fish and use the estuary qualities of
the bay has practically ceased to exist in my part of Florida.
Tt is a very hardy fish that can survive in the kind of pollution that
has been created there.
The gulf beaches of Florida have become littered with broken bot-
tles, with trash of all kinds, with all kinds of floating things from
ships, and from people who are careless in their use of the beaches, and
from people who use fishing piers in that area.
T think that in drawing a law, you must make sure it touches all of
these things.
At Christmas time, I was using my boat, and I landed on a little
island in the mouth of one of the passes, and there had been quite a bit
of erosion.
Frankly, it was almost impossible to use the beach in a barefooted
condition, because there were so many broken bottles on it.
I realize that is not completely within the jurisdiction of this com-
mittee.
It is not something the Merchant Marine and Fisheries Committee
ordinarily would be taking up, but I think someone in the Congress
must do so.
Some method must be found, either by putting a tax on bottles,
requiring them to be returned, or to require them to be made from
material that does not shatter, so that the beaches won’t be a complete
boobytrap for people.
I know of these hazards personally. A few years ago, I went in
swimming in front of my house on the Gulf of Mexico, and I tripped,
fell down, and put my hand down on the bottom, and cut myself on a
very jagged piece of glass.
This is the kind of thing that is happening today. I say today
because it is something that is happening more frequently.
For years I have fished in the gulf waters, and I find that there is
more and more trash in these waters, beer cans, bottles, everything
you can think of.
Fishing fleets have been putting out for years, and I have watched
nets retrieved on my shore, and frankiy now, you catch a few fish, and
an awful lot of bottles and can. These are coming from not only people
but from boats on the sea, from fishing piers, and from party boats.
224
Although the beaches in the Miami area, are some distance from my
area, [ have gone there many times to fish.
After the war, they said because so many subs, and so many mer-
chant marine ships were sunk, there was a lot of oil on the beach.
Here 25 years or a quarter of a century since that time, there is still
fresh oil fioating up on Miami Beach, and you cannot go swimming at
any of the most expensive hotels, or any of the hotels, down there,
without having to come out and practically take a bath mi some kind
of solvent to get the oil off your feet.
Tt gets on everything.
Of course, I think most of this is coming from ships that just dump
the material out, helter-skelter all over the ocean.
I think the time is now, and the time is very critical, and I hope that
you gentlemen will use all of the skill and all of the determimation you
have on this committee to do something about it. It needs to be done.
Mr. Drneexu. Thank you.
This committee is grateful to you for your very helpful testimony.
The committee would appreciate any suggestions you might give us
with regard to amendatory language to the administration’s bill.
We thank you very much for your fine statement, Mr. Gibbons, and
we appreciate your help.
Mr. Gispons. Mr. Chairman, I have a prepared statement I would
like inserted into the record.
Mr. Dincsrtx. Without objection, let the prepared statement of the
gentleman appear at this point in the record.
(The statement follows :)
STATEMENT OF Hon. SAM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF FLORIDA
Mr. Chairman: Thank you for this opportunity to present testimony to this
Committee concerning the need to regulate the dumping of waste materials into
the ocean. I had the privilege of introducing H.R. 4218, a bill to prohibit the
discharge into any of the navigable waters of the United States or into interna-
tional waters of any military material or other refuse without a certification by
the Environmental Protection Agency approving such discharge. I am also a
co-sponsor of H.R. 807, a bill to amend the Fish and Wildlife Coordination Act
to provide additional protection to marine and wildlife ecology by providing for
the orderly regulation of dumping in the ocean, coastal, and other waters of
the United States.
Recent reports have left no doubt that our current practice of haphazard dis-
posal of wastes by ocean dumping has seriously damaged certain areas of our
eoastal zone and is on the verge of causing worldwide, irreversible environ-
mental effects. In order to alleviate the existing problem and to forestall it from
becoming worse, many members of the Congress have introduced, either as in-
dividuals or in conjunctions with one or more of their colleagues, legislation
regulating ocean dumping. I am told that the number of bills dealing solely and
directly with ocean dumping exceeds 44, and that many other measures con-
cerned with water pollution or with coastal zone management have sections
regulating ocean dumping. Because there have been so many measures intro-
ree I would like to briefly review the major provisions of HR 4218 and HR
HR 4218 is a very short bill, yet quite inclusive. It states that after the date
of enactment, no person shall discharge, either directly or indirectly, into any
of the navigable waters of the United States or into international waters, any
munitions, or any chemical, biological, or radiological warfare agent, or any
other military material except in accordance with a certificate issued by the
Administrator of the Environmental Protection Agency. Further, this bill would
prohibit the dumping of any other kind of refuse material of any kind or de-
225
seription whatever except as approved by the Administrator of the Environ-
mental Protection Agency,
HR 807 is far more specific in its approach, It identifies the waters to be pro-
tected including the oceans, gulfs, bays, salt-water lagoons, and other eoastal
waters where the tide ebbs and flows, the Great Lakes, and all waters in a zone
contiguous to the United States extending twelve miles seaward from the base-
line of the territorial seas as provided for in the Convention of the Territorial
Sea and Contiguous Zone.
Like HR 4218, this bill declares that the Administrator of the Environmental
Protection Agency shall be responsible for administering this act. The Admin-
istrator will, in conjunction with the Secretary of the Interior, and in consulta-
tion with the Secretary of the Army, establish standards for the deposit or dis-
charge of waste materials into the coastal waters of the United States. The kinds
of materials which will be regulated include dredge spoil, sewage sludge, indus-
trial wastes, building rubble, and all other materials which might be harmful
to the quality of the receiving waters or to its inhabitants. The purpose, of
course, of the standards program is to guarantee that disposal of waste materials
will cause no damage to the natural environment.
In the administration of this act, the person seeking to discharge waste will
bear the burden of proof that his action will not violate the standards estab-
lished, and he must present evidence to this effect before any permit can be
granted. The Administrator may, at his discretion, include additional require-
ments that he feels are necessary for the orderly regulation of ocean dumping.
These standards will be adopted and enforced by any arm of the Federal
and State Governments issuing any license, permit, or any other authorization
which regulates dumping into coastal waters. Further, these standards will be
applicable to all the departments, agencies and other instrumentalities of the
Federal Government, the various State governments involved, and to any person
operating under any kind of license or permit from any of these authorities.
Unless the State standard is more stringent than the one established by the
Administrator of the Environmental Protection Agency, the Federal standards
will apply in all coastal waters. The decision as to which standard applies in the
various State jurisdictions will be made by the Administrator. The actual legal
jurisdiction shall fall to the District courts of the United States. Violation of the
standards will make a person liable to a civil penalty of not more than $10,000 nor
less than $5,000. In the case of a continuing violation, each day counts as a sepa-
rate offense.
Upon the effective date of this Act, all licenses, permits, and authorities which
have been issued under any other provision of law shall be terminated.
Mr. Chairman, I feel that there is real need for the Congress of the United
States to enact strong legislation establishing a national policy on ocean dump-
ing and establishing an effective mechanism for regulating this common and
widespread method of waste disposal. There is no doubt of the destructiveness
of promiscuous ocean dumping. Within the last year. several excellent reports
have been released documenting the extent of environmental damage being
wrought. An example of the extent of this abuse may be inferred from just one
statistic taken from the report submitted to the Secretary of Interior on June 24,
1970, entitled: “Evaluation of Influence of Dumping in the New York Bight.” On
page 26 of this report, the following statement is made: ‘During fiscal year 1968
disposal of materials in dumping grounds amounted to 17,110,144 cubic yards...”
For purpose of comparison, this volume is almost exactly four times that of
Hoover Dam on the Lower Colorado River. Bearing in mind that this is the
amount of material dumped into the New York Bight alone. it is disheartening
to note that the report on Ocean Dumping prepared by the Council on En-
vironmental Quality identified 246 dumping sites off the coasts of the United
States. And even at the present vast levels of dumping, the Council felt that
ocean dumping is not a serious nationwide problem now but could become one
within the next few years because of the rapid rate of increase in ocean dumping.
rT urge this Committee to move quickly in the directicn of effective legislation
which will control this growing threat to the marine ecosystems of the United
States. It is imperative that legislation be enacted promptly which will provide
for strong and effective regulation of ocean dumping.
Mr. Drvesrz. Our next witness will be the gentleman from Cali-
fornia, Hon. Don Edwards.
226
STATEMENT OF HON. DON EDWARDS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Epwarps. Mr. Chairman, to say that effective legislation estab-
lishing a national policy on ocean dumping is needed is to greatly
understate the crisis this country is likely to observe in the near future.
The relative and absolute increase of pollution in the face of disastrous
health, economic and environmental consequences is shocking. The
President’s Council on Environmental Quality has reported that
between 1964-68.an average of about 7.5 million tons of waste was
dumped at sea. Without proper controls, this can be expected to climb
to over 150 million tons by 1980. If such activity continues, the only
and inevitable consequences we can expect is the unleashing of a Pan-
dora’s box producing a mixed bag of interrelated and almost insolu-
able problems.
What is astonishing is to discover that the Federal Government is
the Janus-headed offender in the field of water pollution. By virtue of
the Government’s tardiness in handling the problem of ocean dump-
ing, toxic pollutants have been deposited in the ocean, creating harm-
ful and unattractive waters. By its laxity in enforcing statutes already
on the books, the Government has been a conspirator to the pollution
of our coastal and inland waterways. But the blame cannot end here.
Above all, what 1s most horrifying is that the U.S. Government has
been traditionally the major offender in the area of ocean dumping.
To begin with, it is estimated that the Department of Defense plans
to dump 88,835 tons of munitions: alone this year; exploding large
quantities of explosives results im pollution and destroys marine life.
The Defense Department believes that a detonation of 1,000 tons of
explosives—not an unusual amount to be disposed—will be sufficiently
strong to kill marine organisms from 1 to 4 miles—depending on the
species.
Yet, this activity is miniscule in scope when compared with the ex-
tent of other offenses. Empowered with the right to dump sludge into
waters, the Army Corps of Engineers is responsible for most if not
all of dredge dumping, which experts calculate constitutes 80 percent
of the weight of all ocean dumping: The Army has admitted that at
least. one-third of these wastes are polluted. This type of dumping
is responsible for. adding oxygen-demanding materials and heavy
metals which are detrimental to whole communities of marine or-
ganisms.
The administration’s bill is but a slight improvement over what
we have on the books now. Due to the application of legislative cos-
metics, H.R. 4723 would make it difficult to halt Government dumping
operations. I refer specifically to the construction of section 3(e) which
does not place “any employee, agent, department, agency, or mstru-
mentality of the Federal Government” under the sanctions of section
6. Then too, because the bill fails to clearly delineate the jurisdiction
of the courts, it is unlikely that private citizens will have the oppor-
tunity for a forum in which to seek redress from Government dump-
ing operations. Moreover, section 11 of the administration’s bill dis-
courages public involvement in reporting illegal dumping activities
by oe the finder’s fee provisions of the Rivers and Harbors Act
of 1899.
227
Tt is for these reasons, Mr. Chairman, that I suggest the committee
report out H.R. 805 as a substitute for H.R. 4723.
Mr. Drycetu. Thank you for a fine statement, Congressman.
We will now hear from our colleague from New York, Hon. Lester
Wolff.
STATEMENT OF HON. LESTER L. WOLFF, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Wotrr. I very much appreciate this opportunity to express my
strong support for legislation to control ocean dumping. I am a co-
sponsor of two of the bills under consideration by the subcommittee—
H.R. 808, to provide for the orderly regulation of dumping in the
ocean, coastal, and other waters of the United States; and H.R. 4859,
to regulate dumping of waste materials and authorize the establish-
ment of a system of marine sanctuaries.
For several years, I have been deeply involved in the fight to restore
and protect Long Island Sound, which is used for recreational pur-
poses by residents of New York, Connecticut, and Rhode Island.
Eleven million residents of those States live within 15 miles of the
sound. Unfortunately, however, the sound’s waters are becoming less
and less appealing for recreational activities.
One of the chief causative factors in the sound’s rapid deterioration
has been man’s dumping of his wastes—sewage, sludge, or, worse yet,
untreated sewage; dredge spoils; industrial wastes. Strong Federal
legislation to control such dumping is urgently needed if we are to
prevent further destruction of the sound and other bodies of water,
and eventually reclaim and preserve them.
Both of the bills I have cosponsored would help halt indiscriminate
dumping of man’s waste products in our coastal waters. H.R. 808, of
which Congressman Harrington is the chief sponsor, would place the
burden of proof on the person who wishes to dump to demonstrate that
the waste materials would not endanger the natural environment and
ecology of the area in which he plans to dump. The Administrator of
the Environmental Protection Agency and the Secretary of the In-
terior would be authorized to establish standards to govern ocean
dumping—standards to insure that no damage to the natural environ-
ment and ecology of the ocean, coastal, and other waters of the United
States would result from any discharge or dumping activity. Failure
to comply with the established standards would result in a fine of
$5,000 to $10,000.
H.R. 4359, of which Congressman Frey is the principal sponsor,
carries these principles a step further by authorizing the Secretary of
Commerce to designate as marine sanctuaries those areas of the
Nation’s tidelands which should be protected for their recreation, con-
servation, ecologic, or esthetic values. These marine sanctuaries, whicly
would be analogous to the wilderness areas in our national parks sys-
tem, would be out of bounds for mining activities, industrial develop-
ment, and dumping or disposal of waste material.
_In addition, H.R. 4859 would prohibit the dumping of waste mate-
rial into the oceans, coastal waters, and estuarine areas, except under
a permit issued by the Administrator of the Environmental Protection
Agency after he determines the dumping will not damage the ecology
228
of the marine environment. The dumping of radioactive wastes, toxic
industrial wastes, and chemical and biological warfare materials would
be flatly prohibited, and standards would be established for treatment
of sewage and industrial wastes disposed of under a permit. Violation
of the permit requirement would be punishable by a fine of $2,000 to
$10,000 for a first offense, and $10,000 to $25,000 for each succeeding
offense.
Recent news reports about the contamination of marine life, in-
cluding the fish we eat, by mercury, DDT, and NTA, and the destruc-
tion of the waters of the New York Bight through excessive sludge
dumping, prove the danger of indiscriminate dumping. Remarkable
as the marine ecosystem may be, it cannot continue to cleanse itself
indefinitely while man dumps infinite amounts of waste into the ocean.
Action to protect our marine environment is urgently needed, and I
urge adoption of a strong bill by these subcommittees and by your full
committee.
Mr. Dincrtu. The subcommittee appreciates your time for an excel-
lent and informative statement.
Next we wish to have our good friend and very able minority
leader of the House, Hon. Gerald R. Ford.
STATEMENT OF HON. GERALD R. FORD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Forp. Thank you Mr. Chairman. The horrendous problems cre-
ated by our pollution of the environment have finally come to the fore-
front of the national conscience and are receiving the attention they
deserve.
Cleanup has become an everyday word. But how much better it would
have been had we forestalled the pollution which is necessitating clean-
ups throughout the Nation and throughout the world.
There are environmental problems that are far more critical than
ocean dumping. But there is no time better than the present for ac-
knowledging that the current level of ocean dumping is creating serious
environmental damage in some areas.
We should recognize now that the volume of wastes dumped in the
ocean is increasing rapidly. :
‘We should warn ourselves now that a vast new influx of wastes is
likely to occur as municipalities and industries look to the oceans as a
convenient spot to dump their wastes.
We should view with alarm now the trends indicating that ocean
dumping could become a major, nationwide environmental problem.
The oceans cover nearly three-fourths of the world’s surface. They
are critical to maintaining our environment. They contribute to the
basic oxygen-carbon dioxide balance upon which human and animal
life depends.
We must act now to safeguard our basic environmental balance by
banning unregulated dumping of any materials into the oceans and by
strictly limiting the ocean disposal of any materials harmful to the
environment.
T have introduced a bill, H.R. 6771, which would accomplish these
objectives. Needless to say, I strongly endorse the identical bills now
229
being considered by the subcommittee. I urge favorable committee
action on this legislation. ,
Mr. Drycert. Thank you Gerry, we are very grateful for your
thoughts.
The gentleman from Pennsylvania, the Hon. Lawrence G. Williams,
will be our next witness. ;
STATEMENT OF HON. LAWRENCE G. WILLIAMS, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE C¥ PENNSYLVANIA
Mr. Wiiurams. Mr. Chairman and members of the committee, IT am
here this morning to testify in behalf of H.R. 4723, troduced by Mr.
Garmatz, and H.R. 5050, which was introduced by Mr. Charles Sand-
man of New Jersey for himself and for a number of other members,
including myself.
I believe that it is long past the time when we must stringently con-
trol the discharge of waste into our oceans in territorial and mterna-
tional waters. We know that there are methods in which to dispose
of waste that will not contaminate our oceans or other bodies of water.
These methods may be somewhat more expensive but this increased
cost is a small price to pay to avoid pollution of our oceans.
T can remember as a young teenager seeing parts of Lake Erie posted
for “no swimming” due to pollution. This pollution was ignored and
during the 91st Congress, I heard a number of Members refer to Lake
Hrie as being “dead.” Of course, back in the 1920’s, everyone thought
that Lake Erie could take everything that was put into it. This, of
course, was a complete fallacy. During the intervening years, raw
sanitary sewage and industrial wastes were dumped into Lake Erie un-
til, today, Lake Erie has almost no marine life worthy of mention and
the lake is entirely polluted.
Even during the 91st Congress when Members were deploring the
sad condition of Lake Erie and called it “dead,” raw sewage and in-
dustrial waste continued to flow into Lake Erie.
Privately, I asked some of these same Members how long it had
taken the States abutting Lake Erie to kill it and why they were sur-
prised that the Lake “died.”
Precisely the same thing can happen in our oceans. In many cases,
raw sanitary sewage sludge from sanitary sewage treatment plants is:
being taken by barge down our rivers and dumped into our oceans.
I have heard some comments to the effect that this has no detrimental
effect on our oceans. This is just plain nonsense.
If the solids from sanitary sewage have no effect on marine life,
why has it killed all of the fish that used to be in our rivers on which
metropolitan areas are located? Why has the shad disappeared from
the Delaware River ?
Further, what sense does it make to build sanitary sewage treatment
plants costing millions of dollars in order to remove the solids from
the sanitary sewage and then dump these same solids in the form of
sludge back into the ocean ?
We must make certain that all sanitary sewage is processed by
sewage treatment plants that contain primary, secondary and tertiary
facilites. This type of plant provides a 90-94 percent efficiency in treat-
230
ment when measured by the biological oxygen demand (BOD). These
sewage treatment facilities must include on-site sludge incineration
facilities.
The fact is that sludge incineration facilities can be built with the
ultimate in air pollution controls. A proper sludge incineration plant
can reduce sludge to 8 percent of its original volume and produce an
inorganic ash that can be used as fill without fear of contamination.
Modern incinerators, with adequate air pollution controls, have been
developed that will do almost the same thing as the disposal of trash,
garbage and other solid waste materials.
Industrial waste which is now being dumped in our oceans must be
treated by the industry that is producing such waste. The cost of
properly treating industrial waste to avoid pollution must be part of
the cost of doing business and this is just one reason why national
standards must be established to control air and water pollution.
As far as dumping dangerous materials into the ocean, I am confi-
dent that proper scientific research will produce means of treating
these dangerous materials chemically so that they can be rendered
harmless. Of course, this chemical treatment of such things as nerve
gases and other types of gases could be a slow and rather costly pro-
gram. However, again, the cost would be justified by keeping these
dangerous materials out of our oceans.
Tt is a matter of public record that thousands, and perhaps millions,
of pounds of seafood have had to be taken off the market due to mer-
cury contamination and other forms of contaminants. Unless we stop
dumping waste materials of any kind in our oceans, this problem wil}
continue to become more acute and have an adverse effect on our entire
population.
I want to commend these subcommittees for devoting the time to
consider these matters and I want to express my appreciation for hay-
ing the opportunity to appear before you.
Mr. Drneeti. Thank you Congressman, that was an excellent state-
ment.
Our next witnesses are from the Atomic Energy Commission. Wel-
come to the committee.
STATEMENT OF HON. JAMES T. RAMEY, MEMBER, JOSEPH F. HEN-
NESSEY, GENERAL COUNSEL, AND HAROLD L. PRICE, DIRECTOR
OF REGULATIONS, ATOMIC ENERGY COMMISSION
Mr. Ramer. Thank you, Mr. Chairman.
lam James T. Ramey, member, of the Atomic Energy Commission.
I have with me Mr. Joseph F. Hennessey, General Counsel of the
Atomic Energy Commission.
On my right is Mr. Harold L. Price, Director of Regulations of
the Atomic Energy Commission.
Myr. Divert. Gentlemen, we are happy to welcome all of you to the
committee.
Mr. Ramey. Mr. Chairman, members of the committee, I have a
prepared statement which I will read.
We are pleased to accept the subcommittee’s invitation to appear
before you today to testify concerning legislation dealing with the
231
problem of ocean dumping. The committee counsel has asked that
we address our remarks to section 7(b) of H.R. 4723, “a bill to regu-
late the dumping of materials in the oceans, coastal, and other waters,
and for other purposes.”
We strongly support effective measures to protect and preserve our
environment. The problem of ocean dumping has been extensively
examined by the Council of Environmental Quality in its report,
“Ocean Dumping; a National Policy” October 1970. In implementa-
tion of the recommendation in this report, a proposal for legislation
dealing with ocean dumping was included in the President’s message to
the Congress on pollution control, dated February 8, 1971, and has
been introduced in the House as H.R. 4723.
Since the committee is fully familiar with the provisions of H.R.
4723, rather than present a summary of the bill, I shall address myself
directly to the caption “Relationship to Other Laws,” in the middle
of page 10 of the bill. Under that caption the bill provides in section 7
(b) that:
Nothing in this Act shall abrogate or negate any existing responsibility or
authority contained in the Atomic Energy Act of 1954, as amended, and section
4 and subsection 7(a) of this Act shall not apply to any activity regulated by
that Act: Provided, the Atomic Energy Commission shall consult with the Ad-
ministrator prior to issuing a permit to conduct any activity which would other-
wise be regulated by this Act. In issuing any such permit, the Atomic Energy
Commission shall comply with standards set by the Administrator respecting
limits on radiation exposures or levels, or concentrations or quantities of radio-
active material. In setting such standards for application to the oceans, coastal,
and other waters, the Administrator shall consider the policy expressed in sub-
section 2(b) of this Act and the factors stated in subsections 5(a) (1) and 5(a)
(2) of this Act.
Under the Atomic Energy Act of 1954, as amended, the Atomic
Energy Commission regulates the receipt, use and disposal of source,
special nuclear and byproduct material to assure the common defense
and security and public health and safety. AEC regulations governing
the disposal of radioactive materials have been established in 10 CRE
parts 2, 20, 80, 40, and 70.
Because of the nature of radioactivity, the AEC has vigorously
exercised its authority in regulating the marine disposal of radioac-
tive wastes and materials. No new licenses authorizing radioactive
waste disposal at sea have been issued in the past 10 years. Only one
commercial organization (which has never conducted any sea dis-
posal), two Government agencies, and one university are still author-
ized to dispose of radioactive wastes in the ocean. The major contrac-
tors of the AEC have not disposed of any wastes at sea since 1962.
We believe that the AEC has exercised and is exercising effective
regulation over the ocean disposal of radioactive substances to the ex-
tent that this type of operation poses no threat to the marine environ-
ment now or in the foreseeable future. In this regard, the AEC has as
one of its primary responsibilities the protection of the ocean and its
ecosystem from any harmful effects of radioactivity.
Thus, we believe that the policy and purpose of the proposed bill,
that is, “to regulate the dumping of materials in the oceans, coastal,
and other waters and for other purposes,” already is being effectively
carried out with respect to radioactive substances regulated by the
AKC. Section 7(b) recognizes this fact and continues, in effect, the
232
full licensing and enforcement authority of the AEC over ocean dis-
posal of radioactive material. This provision eliminates the possibility
of dual regulation over these materiais, yet 1t provides for full partici-
pation by the Environmental Protection Agency in the program. The
provision in section 7(b) of the bill requiring consultation and the
setting of standards is a useful one in that it will assure an ‘“‘across-the-
board” approach to the problems associated with ocean dumping. Also,
it will assure that the relationship between KPA and the AEC wiil be
consistent with the relationship set forth in Reorganization Plan No. 3.
In continuing to regulate the disposal of radioactive materials at
sea under the provisions of section 7(b), the AEC would plan te con-
tinue its practice of prohibiting the disposal of high-level radioactive
wastes in the ocean. We believe that ocean disposal of other solid
radioactive wastes should be prohibited to the extent that practicable
alternatives are available which provide less risk to man and his
environment. 7
I will be glad to answer any questions you may have.
Mr. Dincetz. We are very grateful to you for your very helpful
testimony.
Mr. Lennon.
Mr. Lennon. Thank you, Mr. Chairman.
I want to be as specific for the record as I can. Your representation
here this morning that you gentlemen are making is on behalf of the
Atomic Energy Commission, and you are the representatives of the
Atomic Energy Commission, is that correct ?
Mr. Ramry. Yes, sir.
Mr. Lennon. Are either one of you three gentlemen members of the
Commission ?
Mr. Ramey. Yes, sir; I am.
Mor. Lunwon. Well, I am delighted to see this spirit of cooperation
and recognition on the part of the Atomic Energy Commission, and
for the sake of the new members, I am going to just quickly recapitu-
late my experience with the Atomic Energy Commission last year.
When the Congress learned after the fact the decision had been made
to dump off Cape Kennedy some 416, as I recall, coffins of nerve gas,
which was, and I recall that the Secretary of the Army, and the rec-
ognition that the fuses on the rockets, and the propellers were deterior-
ating, and, therefore, there was some reason to believe there was immi-
nent danger, so that the Secretary of the Army called on the National
Scientific Foundation to recommend an ad hoc committee, of scien-
tists to determine how best we could dispose of the caskets, or coffins of
the nerve gas. He convened this committee of scientists, and they came
up with recommendation No. 1, that they could be disposed of by the
Atomic Energy Commission, and the Atomic Energy Commission was
asked to look into the matter, which they did. This committee of scien-
tists said we do not have experience in ordnances, munitions, or explo-
sives, and they suggested to convene an ad hoc committee of these gen-
tlemen who have experience, and they came up with the same specific
and definitive recommendation, that the Atomic Energy Commission
be called on to dispose of these 416 plus coffins of nerve gas, and ihe
Atomic Energy Commission in turn went to its, I believe you called
the Lawrence Radiation Laboratory, and they came back, and said
yes, we can dispose of it.
233
They said, we have a place, where it can be done, but it will inter-
fere with—if you gentlemen want to read the record, I will not mis-
state anything, but it will interfere with our on-going projects.
We suggest you ship it out here. This is a recommendation of your
laboratory, ship it out here, and we will store it in a safe isolated spot,
and in time we will dispose of it.
I recall in those hearings, some of them were held in the evenings,
nighttime, and we confirmed this, and the Commission made a deci-
sion that this was not politically the smart thing to do for the Atomic
inergy Commission, instead of writing to the Army, and putting it in
writing, saying, we do not want to do this, because of the problems we
are having around the country with atomic energy reactor power, we
suggest you move it from Alabama, out of Blue Grass Kentucky, down
to a point in North Carolina, and ship it to Cape Kennedy, and dump
it in the ocean, but you did not put it in writing.
You called the Army late one night, and you told them you just
could not get involved in it, and the Army did not have the intestina!
fortitude——
We call it guts in my part of the country, to take that decision to
the President, and let him resolve it, and I lost most of the respect
T ever had for the Atomic Energy Commission, because of your un-
willingness, or gutless attitude in that respect, and as much as I
love the services, and I am on the Armed Services Committee, I lost
a great deal of respect for them, that they did not have the courage to
take that decision to the President.
ft am sure he would have followed the recommendation of your
laboratory, the Lawrence Laboratory.
Now, you have moved right far, and I am delighted to see it.
If you gentlemen do not believe what I said is the truth, all I
ask you is to do is to take the record and read it.
Tt is all in there.
That is the reason I am delighted that you have finally accepted the
fact that Government agencies should be as responsible for ocean
dumping as private enterprise.
I am pleased to see the change in attitude, but having lived with
this thing between the Federal district court, and North Carolina
was a trying experience. We brought the Surgeon General here be-
fore the committee, and he having just made a public statement that
they were giving every hospital im the entire area some sort of anti-
dote to be injected in case anybody inhaled this gas. We asked him,
how long it took him to park his car, and get to his office, and he then
said you would take this injection of antidote within 2 minutes, from
the time you inhaled it, or within 10 minutes, or it was lethal. When he
came here, I asked him the question if he drove to work occasionally.
He said he did. I said how long does it take you to get from your
car where you park it in the office, and he said about 10 or 12 minutes.
I said then the only way this antidote would avoid a lethal dose of
this gas would be to be fortunate enough, unfortunate enough to be
sitting in the emergency room of a hospital, but not for that purpose,
and after you inhaled the gas that came through the window, you
might avoid it by getting an immediate injection. I want to make that
crystal clear to you gentlemen, it was your decision which caused
those coffins to be dumped off the Florida coast.
62-513—71—_16
234
You told the Army no, we do not want to do this, our political in-
terests would be hurt, and you did not have the guts to put it in
writing.
You did it in a late telephone call one night.
Thank you.
Mr. Dineett. Thank you very much.
Mr. Ramey. Mr. Chairman
Mr. Dineett. I think you are entitled to at least say something at
this point.
Go ahead.
Mr. Lennon. And then that will permit me to say something.
(Laughter.)
Mr. Ramey. Mr. Chairman, I would be glad to provide for the rec-
ord a littie statement on this.
This sort of starts us out in the hole, you might say. Of course I was
familiar with this problem when it occurred. However, I do not re-
collect that, and I would doubt that, the Commission would recom-
mend any type of disposal of some other agency’s materials.
One of the things the Commission gets accused of a lot is of not
being very aggressive in any of its recommendations.
I would also point out that the method of disposal of these gases so
far as the possibilities of it being done by the Atomic Energy Com-
mission through nuclear means, was a type of disintegration using
atomic explosives underground. This was a method that some of the
laboratory people thought could be effective, but it was one that was
essentially untried, and in the required time sequence this would have
been a rather difficuit thing to have been accomplished. The Com-
mission did not believe that it could undertake this—certainly not at
that time.
That is about all I have to say, Mr. Chairman.
Mr. Dincetu. We thank you very much, Commissioner.
Mr. Pelly.
Mr. Peuxy. I have just one question, Mr. Chairman.
I would like to ask the Commissioner why is it possible for the
Commission to revoke the authority that he referred to in the
statement ?
How can he revoke that authority of other agencies when his own
agency is disposing of the same radioactive waste of one university
and two agencies that I know of ?
Mr. Ramey. These are essentially licensees involved in research
activities, and the licenses are in the process of being terminated.
Mr. Petty. I think for the record, we would like you to name the
university and the two agencies.
Mr. Ramey. One of the agencies is the NIH, and the other is the
National Oceanographic and Atmospheric Administration. The uni-
versity isthe University of Hawaii.
Lue Prtiy. And then there is one commercial organization, is there
not ¢
Mr. Ramey. There is one commercial organization, yes, sir. The
California Salvage Co. of San Pedro, Calif.
As I mentioned, they have not engaged in the actual disposal of
radioactive waste.
—
———
235
Mr. Petry. It might be well before they do to revoke it, because that
word “salvage” kind of scares me.
It sounds like they want to get rid of anything they have.
Anyway, I raised the point, and you have indicated that the Agency
has taken its course. I would indicate that you implement that action.
Mr. Dinee tt. Thank you.
Mr. Rogers.
Mr. Rogers. I would like to question on this.
How much has been dumped in the ocean ?
Mr. Ramey. Mr. Price, do you have the figures?
Mr. Price. We have some figures, Mr. Rogers, going all the way
back to 1946.
Mr. Rocers. Why don’t you just give us the last two nearest.
Mr. Price. 1970?
Mr. Rocers. Can you submit that ?
Mr. Dincein. Without objection, the full list will be inserted in
the record at this point, subject, gentlemen, to appropriate discussion
of your staff and our staff with regard to the actual security questions.
(The subject list follows:)
SEA DISPOSAL OF RADIOACTIVE WASTES—HISTORICAL TRENDS, 1946-70
Estimated
activity at
time of
Number of disposal
Year containers Cin curies)
1946 through 1960 76, 201 93, 690
i961__ 4, 087 275
1962__ 6, 120 478
Ce ees Se ees 129
AO pA we venee POEL WIT heh Feats DT a Pa A 114 20
15 RRS RE AOS ee Si ee, Se Se Ta ind 24
WSR oe Se ee UE SS cack cay Sek arg he, RS GOS Bee oly ie ee 43 105
NGG ene my ee nos le TARY ST RIAG OTS MT 12 62
UGGS ce eS oe 2 Ts Shs © els ie i) he Tae Bk ie 8 a re oe Te 0 0
CYS) ee EE eee tae eee oe eee Be eee eens oe w= Bake hE ee OS 36 26
FAD) Se secon aoe En a are eg ee eee Ee eee 22
Tay get 2 A UN Elle Soe a Rte Re SO ey ee ee > Bee teed See FC Sere Ae, 86, 758 94, 673
__1The number of containers differs from the number contained in ocean dumping—A national policy, A report to the Pres-
ident prepared by the Council on Environmental Quality, October 1970 to reflect information recently received on dispos-
als made by the University of Hawaii in 1969 and 1970. The quantity of radioactive material disposed by the Univers-
‘ty of Hawaii in 1969 was approximately 7 millicuries and in 19/70 approximately 25 millicuries which does notsignificantly
change the quantity of radioactive material disposed in 1969 and 1970.
Mr. Price. In the last 2 years: 1970, two containers, 3 curies; 1969,
26 containers, 26 curies.
Mr. Rocrrs. What is a curie?
Mr. Pricer. It is a measure of radioactivity.
Mr. Rogers. How could you explain it to a layman?
Mr. Price. I will have to get some technical help, please.
Dick Cunningham, could you say something ?
This is Richard Cunningham.
Mr. Cunnineuam. A curie is a measure of radioactivity in terms
of a rate of decay. It is 3.7 X 10” disintegrations per second.
Tt is a measure of rate of decay of radioactive material.
Now, as an example, an average wristwatch being manufactured
today has 5 millicuries on it, and a millicure is one-thousandth of a
curie.
236
Mr. Rogers. In other words, the curie is a thousand times more
than you have in your wristwatch ?
Mr. Cunnineuam. Yes, approximately.
Mr. Rogers. And you say it is the rate of disintegration ?
Mr. Cunnineuam. Yes.
Mr. Rocers. How long does it take to disintegrate ?
Mr. Cunnzxncuam. That depends on the type of radioactive material.
Mr. Rogers. Give us this example of what you are dumping in the
ocean.
Mr. CunnincHam. Sir, I do not know what. radioisotopes were
involved on the list of disposals I have here.
The rate of decay, depends on the type of radioisotope.
It may go to half its activity in seconds or it may take hundreds of
thousands of years, depending on the radioisotopes.
Mr. Rocers. Could we estimate ?
Mr. Cunninenam. For any specific radioisotope, ves, sir; werdo
know.
Mr. Rocrrs. Do you have those figures on the dumpings?
Mr. Cunnineuam. [ do not have them available here.
Mr. Rogers. Does the Commission have them ?
Mr. Ramey. Yes, sir; we do.
Mr. CunnincHam. Could you let us know what those are for the
record ?
Mr. Price. We have those; yes, sir.
Mr. CunnincHam. We have the coordinates on the dump locations.
Mr. Rogers. Where have these been dumped ?
Mr. Price. In the Atlantic Ocean, beyond the Centinental Shelf,
east of Norfolk.
Now, all of these places are beyond the Continental Shelf, and we
could furnish for the record the exact locations.
Mr. Rogers. I would appreciate that.
(The information follows :)
The radioactive material disposed of at sea contained types and quantities
of radioactive material associated with research and development activities of
the Atomic Hnergy Commission, use of radioactive materials by hospitals, uni-
versities, industrial firms, and other places where radioisotopes are used for
various purposes. Such wastes were most often in the form of contamination
on equipment such as test tubes, bottles, rubber gloves, paper wipes, etc. Most
of the radioactivity involved radioisotopes with atomic numbers 1 through 83.
It also includes some uranium and thorium and to a very much lesser extent,
transuranium elements.
Mr. Rocers. Now, is the dumping supervised ?
Mr. Price. Well, the packaging is supervised, but we do not send
somebody out.
an cannot tell you for sure whether we send somebody out on each
shi
i. think we have in cooperation with the Coast Guard and the NIH
in connection with their dumping, but I am not sure.
Mr. CunnitncHam. The Coast Guard has taken the NIH materials
out to sea.
On other dumpings, we have had an inspector on board ship.
Mr. Roerrs. In all instances ?
Mr. CunntncuHam. No, sir.
Mr. Pricer. Not in all.
237
Mr. Rogers. I think this would be.a rather important point.
You leave it to a contractor or some agency. I am not sure they
go all the way out, as you say, or put it in the proper place.
How do you know they do?
Mr. Price. Well, if we are not there, we cannot be sure.
Mr. Rogers. That is correct.
Mr. Pricer. But these quantities, they are so small, that it really is
not very important.
Mr. Rocrrs. Even though you are dumping them all at the same
spot, maybe, there is no buildup ?
Mr. Price. No, sir, we do not think there is.
Mr. Rocers. You do not think so?
Mr. Price. Not for these quantities, that is right, sir.
Mr. Ramey. Last year there were only two containers.
Mr. Rogers. But there were 26 in the year before.
What is the highest you had ?
Mr. Price. In 1961, 4,000 containers, approximately 275 curies;
1962, 6,000 containers, approximately 478 curies.
Now, they were not all at one place. Some of them were off Norfolk.
Some of them were off New Jersey.
All of them were out at about 150 miles.
Mr. Rogers. What is the area that you had been concerned with
recently ?
Mr. Price. We have stopped ocean dumping effectively.
Mr. Rocrrs. What is the level that you are really concerned with?
Mr. Price. I do not think we know of a level, Mr. Rogers.
Mr. Rogers. You could dump any amount, is that right ?
Mr. Ramey. No, sir. The permissible level of radioactivity on the
surface of the cask effectively limits the quantity of radioactive ma-
terial which can be handled and dumped. But back in the late fifties,
and early sixties, there was concern expressed, particularly on the
problem of a few casks which were allegedly washed up. But these
were low-level radioisotopes being disposed of; and with the means
oe land disposal the Commission has adopted, it is no longer a prob-
em.
Mr. Rocers. I do not think you have quite gotten to what I asked.
I asked at what level do you consider a dangerous amount, and you
said some of them even washed up on shore.
Mr. Ramey. A very few, yes, sir.
Mr. Roczrs. When did that happen ?
Mr. Ramey. Back in around 1959, 1960, 1961.
Mr. Rogers. Have we had any other examples of that washing
ashore ?
Mr. Ramey. Not in recent years.
Mr. Price. There have been none in recent years.
i think, Mr. Rogers, if we would be permitted, we would like to
supplement the record on this quantity safety situation that you have
raised, because back in the early sixties, the National Academy of Sci-
ences published a report on ocean disposal, in which they concluded
that there were about 25 sites along the Atlantic coast, I think it is
about 25, close in, as close as 3 or 4 miles, where it would be perfectly
all right to dump x quantities per year.
238
We never did that, but it was in the furor over that report that
people thought we were dumping in those close-in areas, in those quan-
tities, that we in effect stopped all ocean dumping for all practical
purposes, except for these few little amounts that are now being
cleaned up, so I think we would like to supplement the record in the
light of that report, because I do not think we today can give you a
number that would say up to here it is all right, and beyond that it is
not, but that report would help to put this in perspective.
Mr. Rocrrs. I think we should have that, and I think we should have
a summary on where the heavy dumpings have been.
(The information follows:)
DUMPING SITES OF RADIOACTIVE WASTES
The major areas used for dumping of radioactive wastes in the ocean were at
the following location's :
ATLANTIC OCEAN
1. 80°38’N, 72°06’ W approximately 150 miles southeast of Sandy Hook.
2. 37°50’N, 70°35’'W approximately 230 miles southeast of Sandy Hook.
3. 36°56’N, 74°23’W approximately 105 miles east of Cape Henry, Virginia.
4, 42°25.5’N, 70°35’W approximately 12 to 15 miles from the coast in Massa-
chusetts Bay.
PACIFIC OCEAN
1. Within an area bounded by points designated as
37°38’N, 123°18’ W ; 37°38’N, 123°30’W ;
37°438’N, 123°24’W ; and 37°43’N, 123°30’ W
approximately 48 miles west of the Golden Gate.
2. 33°39’N, 119°28’W approximately 53 miles west of Point Vicente, California.
Nore: All sites listed above are beyond the continental shelf where the depth
exceeds 1000 fathoms except No. 4 for the Atlantic Ocean which was a toxic
chemical dumping area designated by the Corps of HMngineers. The last disposal
at this site was in August 1959.
Mr. Rogers. Do you monitor where you dump this material ?
Mr. Price. We did where we were authorizing the dumping.
There was a periodic monitoring of these dumping areas.
Mr. Rogers. How often ?
Mr. Price. We would have to check the record.
Mr. Rocers. But there is no more monitoring ?
Mr. Ramey. There is very little dumping.
Mr. Rocers. It is already down there. We are not monitoring what
may be happening then ?
Mr. Ramey. I think it is not being monitored now.
Mr. Rogers. I think we ought to know that for the record.
Mr. Price. We would be glad to clear the record.
(The information follows :)
MONITORING OF RADIOACTIVE DUMPING SITES
In October, 1957, a survey of the Atlantic Ocean disposal area located approx-
imately 150 miles southeast of Sandy Hook was conducted by the Chesapeake
Bay Institute in cooperation with the U.S. Coast and Geodetic Survey. The
survey consisted of taking a series of samples of ocean bottom in and near the
disposal site. Radiological analyses of these samples indicated no radioactivity
detectable above background levels. A similar survey by the Scripps Institute
of Oceanography of Pacific Ocean disposal areas located off the Farallon Islands
and in the Santa Cruz Basin indicated comparable results.
In June, 1959, a site in Massachusetts Bay was surveyed by the U.S. Coast
and Geodetic Survey. Core samples, sediment samples, and water samples were
239
analyzed. There was no indication that there had been any change in the level
of radioactivity at the site as compared with levels of radioactivity found at
other ocean sites where no wastes were disposed.
In March, April, and November of 1960, studies were made by the Pneumo
Dynamics Corporations, Hl Segundo, California, of the two Pacific Ocean sites
noted above. Assays of samples of bottom sediment, organisms, and bottom-
eaught fish revealed no evidence of radioactivity above natural background
levels.
The sea disposal of radioactive waste diminished considerably in the 1960’s
because of the opening of land burial facilities for disposal of waste. In view
of the 1957-1960 survey results and the diminution in the quantities of radio-
active wastes dumped in the ocean since the studies were made, there has not
appeared to be a need for further monitoring studies of the type conducted.
Accordingly, no further surveys of waste disposal sites have been made.
Mr. Rocmrs. Would 275 curies injure anybody in this room ?
Mr. Price. It certainly could, but not on the bottom of the ocean.
Mr. Rocrrs. If it washed ashore?
Mr. Ramey. 275 curies would not be injurious in a cask. Not in the
way it would be shielded.
Mr. Roeers. If it is shielded, what is the point of dumping it out
in the ocean ?
Mr. Ramey. It was a means of providing for permanent disposal.
Mr. Price. Please understand, we are not arguing now for ocean
dumping.
We have effectively stopped it, but in the time when waste was being
dumped it was mostly in solid concrete mixtures in 55 gallon
drums designed to sink to the bottom in whatever the depth is beyond
the Continental Shelf.
Mr. Rogers. But evidently some did not.
Mr. Price. I think a few drums did wash up on the shore, and there
never was
I would have to go back to the record.
Thisisa long time ago.
Mr. Rogers. I would be concerned about this, because if you have
dumped 6,000 drums 1 year, 4,000 drums another, it seems to me with-
out any monitoring, I do not know how many would be out there, and
I do not think this committee would, and I think we should at least
have some monitoring.
Mr. Pricn. There was a followthrough during those years.
I do not believe it has been continued in recent years, but I would
have to supplement the record on that.
Mr. Rocrrs. I understand, but I think it ought to be done.
I should think in quantities of. that amount, they are dumped off
the shore, and where we have had examples where they have come into
the shore, we certainly ought to keep track of this.
Mr. Pricer. I will submit some information on that.
(The information follows:)
RECOVERY OF ITEMS DUMPED IN THE OCEANS
The following summaries identify the 13 occasions en which drums were
found either washed ashore or picked up at sea. Of the 13 cited items, only 3, 11,
and 12 appeared to inyolve radioactive materials. None of these three occasions
involving radioactive materials appeared to have resulted from any violations
of Atomic Energy Commission regulations and, consequently, no action was
taken by the Atomic Energy Commission.
240
1. July 1959—A 55-gallon drum washed ashore at Coos Bay, Oregon, was
thought to contain radioactive material but analysis determined the contents to
be lubricating oil and sea water. No radioactive materials were associated with
either the drum or its contents.
2. September 1959.—A 55-gallon drum was found on a beach at Tacoma, Wash-
ington, on September 27, 1959. The drum bore a radiation symbol and the words,
“Do not open.” Investigation showed that neither the drum nor its fiuid con-
tents were radioactive. The fluid contents were a type of mineral oil used in
refrigerator compressors. No information could be obtained as to the source
of the drum.
3. September 1960.—A 30-gallon drum was netted on September 29, 1960, in
about 275 feet of water about 12 miles east of Marblehead, Massachusetts. The
drum was examined by the Coast Guard, Boston, Massachusetts, on October 3,
19¢9: and no breaks were found in the drum. The radiation levels at the surface of
the drum were found to be well below the radiation levels permitted for normal
transportation of radioactive materiais as specified in Interstate Commerce
Commission regulations. Crossroads Marine Disposal Corporation, an AHC
license, identified the drum as one dropped by it. Crossroads took possession of
the drum and shipped it to Oak Ridge National Laboratory for disposal.
4. October 1960.—On October 22, 1960, Mr. EKisendrath, Daily Herald; Biioxi,
Mississippi, informed Oak Ridge Operations Office that some picnickers had
found a plastic container with a wooden top and bottom on the beach at Biloxi.
The container had stenciled on it, ““Danger—Radiation. Use Equipment Within
10 Feet. ANC 19637 MISS.” The container was not seaworn and appeared to
have been recently placed in the water. The police were informed and they
notified Kessler Air Force Base. A representative from the Air Force Base
surveyed the container with a radiation survey meter and found no evidence
of radiation. The container was disassembled and the inside of a vacuum bottle
was found therein. Inside the vacuum bottle insert were flashlight batteries
connected to a buzzer which was activated when the container was moved. It
was concluded that this was a hoax.
5. March-April 1961.—Seven commercial fishing trawlers netted about 40
steel drums about 80 miles southeast of Manaquan, New Jersey. All the drums
were dumped back mto the sea by the fishermen shortly after they were netted.
No evidence was found by AEC that any radicactive waste had been disposed of
in that area, nor was there any evidence that the drums contained any radio-
active materials.
6. January 1962.—Three steel drums, two of 55-gallon size and one of 30-gallon
size were netted by a fishing trawler off the New Jersey coast. Two of the drums
contained ‘a plastic-like material and the third drum was empty. A sample of
the material was analyzed and found to be organic material and non-radioactive.
The Bureau of Explosives concluded that the material was a residue from a
plastic manufacturing process.
7. June 1962.—Ten drums were found along the Florida coast which were deter-
mined to contain metallic sodium and were not radioactive. They were taken
out to sea and destroyed by a Naval Demolition Team. The drums were from a
shipment aboard the motor vessel “‘Heedless’”’-which sank in the Gulf of Mexico
on January 29, 1962.
8. July 1962.—A 2-inch by 2%-inch cork wrapped in lead foil was found on
the beach at Oceanside, Oregon. There were no AHC markings but there was a
radiation symbol, apparently attached as a tag. It did not appear to have been
in the water very long. It was taken to the Coast Guard Station at Garibaldi,
Oregon. The cork was surveyed at. Hanford and no radiation above background
was found.
%. March 1965.—A refrigerator door was found on the beach at Long Branch,
New Jersey, on March 28, 1965. There was a 1-inch by 6-inch tape on the door
with the radiation symbol and the words, ‘“Caution—Radioactive Material.”
The Safety Director from Fort Monmouth, New Jersey, surveyed the door and
the beach in the immediate vicinity and found no radiation above background.
10. April 1967 —Four drums and three smaller containers washed ashore near
Gloucester, Massachusetts. Investigation by the Coast Guard revealed that the
contents were petroleum derivative wastes and were nonradioactive. They had
been dumped 10 miles out by a Massachusetts firm.
11. May 1967.—A fishing boat netted a concrete container about 5 miles off the
coast at Scituate, Massachusetts. Markings that were noted on the container
before it was dumped back overboard identified it as a container that had been
delivered to Crossroads Marine Disposal Corporation in August 1957 for disposal
24)
by the Naval Research Laboratory, Washington, D.C. It reportedly contained
radium dials and thorium oxide but was dumped back overboard before author-
ities could check it. Surveys of the vessel showed no evidence of contamination.
12. September 1968.—The fishing trawler “Resolve” picked up three drums
while trawling about 60 miles off Atlantic City. Two of the drums were returned
to the ocean by the ‘‘Resolve.” A Coast Guard Cutter rendezvoused at sea with
the “Resolve” and monitored the third drum and found a maximum radiation
level of 0.7 milliroentgens per heur. The drum was returned to the ocean. The
drums appeared to have been in the area for several years and had started to
deteriorate so that it was not possible to identify them. A survey of the trawler
by the Virginia State Health Department upon return of the trawler to Hampton,
Virginia, revealed no contamination.
13. July 1970.—The Coast Guard at Galveston, Texas, reported on July 30,
1970, to the Manned Spacecraft Center at Houston, Texas, that a shrimp beat
had retrieved a 55-gallon drum, which was labeied “Atomic Waste,” from the
Gulf of Mexico on July 29, 1970, and had docked at Freeport, Texas, with the
drum aboard. Investigation was made by a Coast Guard monitoring team from
Freeport and the investigation revealed that the drum was labeled “Resin Paint
Thinner,’ bore no “Atomic Waste” wording or cauticn labels, and was not
radioactive.
Mr. Rocrrs. Now, I would like to know something about the rela-
tionship between the Environmental Protection Agency and the
Atomic Energy Commission.
I notice now in all of these pollution matters, there is always a
little clause that nobody can tell the Atomic Energy Commission what
to do.
Now, you have the fina] determination on what standards will be,
or does the Environmental Protection Agency ?
Mr. Ramey. The Environmental Protection Agency establishes the
standards.
Under Reorganizational Plan No. 3 of the Federal Radiation
Council, which had been responsible for establishing radiation stand-
ards, and its functions were transferred to the Environmental Pro-
tection Agency. The plan provided that EPA would’ exercise: the
standard setting, but that the Atomic Energy Commission would
continue to license, and to implement the standards that the Environ-
mental Protection ‘Agency sets. This proposed legislation, concerning
ocean disposals provides that the Environmental! Protection Agency
will provide the standards, and that the Atomic Energy Commission
consult with them before any type of radioactive waste > disposal could
be made.
Mr. Rocers. Tt says nothing in this act shall abrogate or negate any
existing responsibility or authority contained in the Atomic Energy
Act.
What does that mean ?
Mr. Ramey. That means that the Atomic Energy Commission has
the licensing authority.
Mr. Rogers. That is all?
Mr. Ramey. Essentially, I believe so, yes, sir: and then at the bot-
tom here, it provides, that :
In issuing any such permit, the Atomic Energy Commissiion shall comply
with standards set by the Administrator respecting limits on radiation exposures
or levels, or concentrations or quantities of radioactive material.
Just before that, it says:
The Atomic Energy Commission shall consult with the Administrator prior to
ee a permit to conduct any activity which would otherwise be regulated by
is act.
242
Mr. Rocrrs. Let me ask you a final question here.
Do you see any reason why you should continue to permit radio-
‘active wastes to be dumped in the ocean ?
Mr. Ramey. Essentially, no; except in very minor situations.
Mr. Rocrrs. Would you have the Commission review this, and let
this committee know whether you are going to continue these existing
permits?
Mr. Ramey. As I indicated, we are not going to do any dumping.
Mr. Rocers. When are you going to take action ?
Mr. Ramey. Existing licenses are in the process of being phased
out now.
Mr. Rogers. What is the time element ?
Mr. Ramey. I would say 6 months, a year.
They are essentially research activities, you understand, Mr. Rogers,
by these agencies.
Mr. Roczrs. To dump wastes ?
Mr. Ramey. They are using radioactive materials for their research,
as I understand it.
Mr. Rogers. But you plan to phase all of this out ?
Mr. Ramey. Yes, sir. Now, the report by the Environmental Quality
‘Council did indicate that there may be in the future situations where
in balancing the risk and benefit, that some type of disposal might be
necessary, but again.
Mr. Rocers. Would you file an impact statement in that instance ?
Mr. Ramey. Yes, sir; we would be required to.
Mr. Rocers. That is clear
Mr. Ramey. Yes, sir.
Mr. Rocers. Thank you very much.
Mr. Dincett. Mr. Keith.
Mr. Kerru. Thank you, Mr. Chairman.
Were any of you gentlemen on the Commission in 1960?
Mr. Ramey. Mr. Price was Director of Regulations, and Mr. Hen-
nessey was Associate General Counsel at that time.
I happened to have been the Staff Director of the Joint Congres-
sional Committee of the Atomic Energy Commission at that time,
watching this situation.
Mr. Kerrn. Well, good.
Were the casts identifiable? Were they marked in case one of them
washed ashore so you would know the contractor that put them there
and where they came from ?
Mr. Price. They were required to be, as far as I know.
Mr. Kerry. Do you happen to know what action was taken to get
damages for failure to comply with the terms of the contract?
Mr. Price. Well, sir; I will have to go back to the record.
You mean on those few that washed up on the shore ?
Mr. Krrrn. Yes.
Mr. Pricr. My recollection is they were never positively identified
as containing radioactive material.
i poe of them had some labels on them, but I would have to check
ack.
Mr. Kurrn. You are hung by your own statement.
You just said they were identified.
243
Mr. Price. I said that disposal containers are supposed to have
identification marks on them, and I would like to check the record.
Mr. Kerru. I did not realize you said they were supposed to have
been marked.
I thought you said they were identifiable.
Mr. Price. Here again, if somebody does not comply with the re-
quirements, and we do not know about it, I am just recognizing that
that could happen.
Mr. Krrrn. It seems to me, as you said, you did know about it.
I do not want to pursue it, but it does not look very good on the
record.
Mr. Price. Sir, I am trying to clear the record. I think you are talk-
ing about the cans that washed up on the shore.
I do not think we were ever able to trace them to any particular
person, but I would have to check the record.
That wasa long time ago.
Mr. Kerru. My question was certainly leading up to whether or not
they were identifiable, and, therefore, corrective action could be taken.
I would have thought all of you as witnesses would have anticipated
what I had in mind.
Mr. Ramey. I might say, Mr. Chairman, we were requested to
testify yesterday, to come in this morning.
Mr. Kriru. Excuse me.
Mr. Price. I would like to submit something on that to clear the
record.
Mr. Kerru. Fine.
(The information follows :)
RADIOACTIVE WASTE LABELING REQUIREMENTS
Hach container of radioactive waste dumped at sea was required to be labeled
with the following information :
1. Total activity in millicuries, or in the case of source and special nuclear
material, the total weight of the radioactive material ;
2. Principal radioisotopes ;
3. Radiation level at the surface of the container and at one meter; and
4. The name and address of the licensee.
In 1970, two disposals at sea were made. One disposal, by Chevron Research
Company, Richmond, California, consisted of two drums containing about 25
millicuries of cobalt 60 in sealed sources, 6 millicuries of cobalt 60 metal, 35
millicuries of strontium 90 in sealed sources, 22 millicuries of cesium 137 fixed on
eatalyst beads, and 3 curies of tritium (hydrogen 3). The other disposal, by the
University of Hawaii, consisted of 20 packages containing about 5 millicuries
of carbon 14, 10 millicuries of calcium 45, and 10 millicuries of tritium (hydro-
gen 3).
Mr. Kerriru. Now, the Atomic Energy Commission in accordance
with this bill will be excluded from complying with the terms of the
act, as though they had sufficient capability to police their own actions.
Mr. Ramey. It is not just our own actions, Mr. Keith. The Commis-
sion is a regulatory authority. The Commission is regulating nuclear
powerplants, utilities, and others, and under its authority, as we in-
dicated, we have cutback on ocean disposal, and are in the process of
phasing it out.
Mr. Keirn. | think what we are concerned about is what the people
are concerned about.
244
The reliability of the Government agencies, is to conform to the
statutes, and the intent of the statute, and you said you were respon-
sible for the regulation of nuclear atomic powerplants.
Mr. Ramey. Yes.
Mr. Kerr. I have in my constituency a nuclear powerplant, and
I am naturally concerned about how thoroughly it. is being moni-
tored and regulated and how much statutory authority there is, to
make certain that the plant does not get constructed in an area where
it could be a contaminant, either with atomic or other radioactive fall-
out, and also in terms of thermal! pollution.
Is it your agency that is responsible for monitoring, first anticipat-
ing any possible hazard, and then monitoring the operation?
Mr. Ramey. Of the nuclear powerplant ?
Mr. Kurru. Yes.
Mr. Ramey. Yes, sir.
Mr. Kerra. Would you briefly describe how the public is protected
in the authorizing of a site, and the design, and operation of the
plant?
Mr. Ramey. Thatis a
Mr. Kerru. That is a big thing.
I would like you to give us a quick appraisal that will reassure the
members of this committee and our constituencies. :
Mr. Ramey. The Commission under the Atomic Energy Commission
Act is responsible for issuing rules and regulations concerning the
use of radioactive materials and it has issued quite a number to regu-
late the safety and site selection of nuclear powerplants.
It is also responsible for listening to individual complaints.
We have a separate regulatory organization under Mr. Price here
as Director of Regulation through which the Commission regulates
the site selection, the design, the construction, and the operation of
these plants.
In establishing its regulations, the Commission is implementing
radiation standards which have been issued by the Federal Radiation
Council, and which will now be issued by the Environmental Protec-
tion Agency.
The Commission has issued regulations that essentially cover both
the design and the site for nuclear powerplants. The regulations, gov-
erning the suitability of sites, from a radiological standpoint, also
factor in population density, meteorological conditions, and so forth.
When a utility, called an applicant, under the Commission’s regu-
lations files an application to construct a nuclear powerplant, the
application has to be submitted with a great deal of factual mate-
rial, and it. is usually about 12 inches thick. Copies of these applica-
tions have in the past, and are at. present, sent to Federal and State
agencies that have an interest in them, and their comments are solic-
ited. Included are agencies such as the Fish and Wildlife Services,
and also the Geological Survey, both of which are in the Department
of Interior. The Commission gets their comments on the radiological
aspects of the proposed plant, and its relationship to the environment.
More recently, under the National Environmental Policy Act, we
required the utilities to submit, not only this application and safety
analysis, but also an environmental report.
245
Copies of that report are also sent to all interested agencies of the
Federal and State Governments, and comments are obtained on it. I
previously testified before this committee concerning the Commission’s
regulations on this. Based on the comments, and on the original
report, the regulatory staff then puts out a final environmental state-
ment, analyzing the environmental impact of a proposed nuclear
powerplant.
The regulatory staff also, as I mentioned, reviews the safety anal-
ysis report which the utility has submitted on radiological safety
aspects.
The applicant’s safety analysis report and these environmental
statements go through sort of a four-part process in the Comission’s
regulatory consideration of the license application.
First, the safety analysis report is reviewed by the Commission’s
regulatory staff. Then there is review by our Advisory Committee on
Reactor Safeguards, which is a
Mr. Kerru. May I interrupt ? .
Ié sounds quite impressive—and may in fact be. The thing that con-
cerns me a little bit and I have seen it in the advisory commissions
statute, it says that the Atomic Energy Commission shall consult.
Now, in these procedures you have outlined, is there any agency
of Federal or State Government that can say stop, or are you the
finai authority ?
Mr. Ramey. Well, this licensing authority that the Commission is
exercising is essentially a quasi-judicial function. I had not gotten
quite to that, but the Commission has Atomic Safety and Licensing
Boards. We have a mandatory hearing process on each nuclear power-
plant before this Board. It is an independent board, independent of
our regulatory staff, and its decisions are reviewed by an appeal board,
under limited conditions.
Tt can be reviewed by the Commission, and then can ultimately go
to the courts.
Mr. Kerru. Somebody over here asked if you would kindly say,
“Vas”? or “NTO.”
Mr. Ramey. Unfortunately it is not a question that one can give
a yes or no answer to, because it is a quasi-judicial process, similar to
any other regulatory proceeding.
Mr. Kerry. May [interrupt ?
If a State agency, or another agency of the Federal Government
disagreed with your decision to put a plant in a particular place, would
that agency then have to take it to the administrative procedure in
order to adjudicate the difference of opinion ?
Mr. Ramey. On the question
Mr. Kerrn. Yes or no; is that correct?
Is the Administrative Procedures Act the recourse that the other
agencies of Government have for appealing a decision you have made?
Mr. Ramey. Generally, where a Government agency appears as a
party before the Licensmg Board, on the question of the radiological
safety of the plant, and the adequacy of the site from the radiological
safety standpoint——
Mr. Kerru. Is “Yes” the answer in those areas?
Mr. Ramey. In those areas; yes, sir.
Mr. Kerru. I appreciate your generosity with your time.
246
Mr. Ramey. I would point out, Mr. Chairman, if I might, just to
have a complete record here, that we have been working with inter-
departmental agencies and groups, including the Environmental Pro-
tection Agency, on the President’s legislative proposal on the siting
of powerplants, and in this context, the role of the States. As the tra-
ditional organization that worries about land use, and other aspects
of the siting of industrial facilities including powerplants, the States
could exercise a fairly large role if they chose.
Mr. Dinceu. Thank you.
Mr. Petry. I just want to recall the fact that we have had wit-
nesses before this committee from the Federal Power Commission.
Their ecological adviser was an engineer, formerly consultant to
private power companies, and he has no background as far as I could
tell as an expert in either radiation or thermal pollution, or anything
else as far as the environment is concerned, so I assume in that case,
you perform that function; is that right ?
Mr. Ramey. Well, the Federal Power Commission does not have
any jurisdiction over ‘the licensing of nuclear powerplants.
They have some authority over hydroelectric plants, and they also
regulate rates of plants from an economic standpoint in interstate
commerce, as I understand it.
Mr. Petry. All right. I feel better.
Mr. Ramey. As I indicated, we have people technically trained on
our regulatory staff.
We also, as I indicated, go to the expert agencies in the Federal and
State Governments for their advice, such as the Fish and Wildlife
Service, the Geological Survey, and we have worked with these and
other agencies for many years.
Mr. Dincett. We must move rapidly along here. I want to give you
all of the time you need to respond to questions, and the Chair is try-
ing to give every member a full opportunity to ask questions.
1 hope that you will limit yourself, if you please, to the point of the
question, and also, if you please, as briefly as possible, so that the mem-
bers can get the questions that they desire to ask into the record.
Mr. Downing.
Mr. Downtne. How do you dispose of atomic waste now ?
Mr. Ramey. The high level waste is stored at the present time on an
interim basis, at Atomic Energy Commission sites.
These wastes are in tanks at Hanford and Savannah River, and at.
one commercial facility south of Buffalo, N.Y.
Low-level waste is buried in AEC or State-regulated land-based
disposal facilities.
Mr. Downtne. What is done with it ?
Are they still in containers somewhere ?
Mr. Ramey. Yes, sir.
Mr. Down1ine. So you have not really disposed of them ?
Mr. Price. The low-level waste, Mr. Downing, of the kind that
used to be disposed of at sea is packaged and buried at land burial
sites, and those sites of course are monitored, but it is buried, covered
up.
This is low-level waste, and as Mr. Ramey said, the high-level waste
is kept in tanks at Commission installations.
247
Mr. Downince. Does this constitute a danger ?
Mr. Price. Yes.
Mr. Ramey. The high level ?
Mr. Downtne. Yes.
Mr. Ramey. The program and plan the Commission has established
is to require that these high-level wastes which come from licensed
nuclear powerplants, must be solidified, and permanently stored far
below the ground, such as in a salt mine.
Mr. Downine. When are you going to do this with the high-level
waste ?
Mr. Ramey. We are in the process of this now. We have plans and
a program for a demonstration facility to be prepared in the next
few years.
We have done many experiments on storing there high-level wastes:
in dry salt mines, and we believe this is the best technological form.
for this permanent storage.
Mr. Downine. When a submarine carrier is recalled, what do you
do with that?
Is that radioactive?
Mr. Ramey. The reactor is, of course, but there is essentially no.
disposal of waste in a harbor.
Mr. Prics. The “spent” fuel cores, from U.S. Navy vessels are sent
to an AEC chemical reprocessing plant, and it is the waste from that
operation which is the so-called high-level waste. It is stored in tanks:
at_a Commission installation, and then solidified and put in long-term:
storage.
Mr. Downine. You have not pursued any further with the idea of
atomic disposal of this material ?
Mr. Ramey. This has not been an alternative method that has been
seriously considered.
Mr. Roczrs. I am somewhat concerned about these plants that have
been built, and the thermal pollution.
Did you previously allow any thermal pollution to exist?
Mr. Ramey. Mr. Congressman, this is again a pretty broad subject..
I have to remember the chairman’s prescription here.
Mr. Rocrrs. Just yes or no.
Mr. Ramey. Until NEPA was passed, and the Muskie act was passed,
the Commission did not have authority to consider the thermal effects:
of nuclear powerplants.
Since that time, as I testified before this committee, the Commis-
sion does apply the requirements of NEPA and the Muskie act.
Mr. Rocsrs. Do you still permit mixing areas?
Mr. Ramey. We essentially apply the requirements of the State:
agencies, and we get a certificate from the State water pollution peo-
ple as a condition of our granting a construction permit, so it would
depend on what the State water pollution people did in consultation
with the Environmental Protection Agency.
Mr. Rocers. As I understand it then, your standards are set by the
States, not by you as far as thermal pollution is concerned ?
Mr. Ramey. That is right.
Mr. Rocrrs. Should you set the standards?
Mr. Ramey. This has been discussed a great deal. We believe that,
under the current Federal-State pattern, with the States in con-
248
sultation with, and subject to arrangements and regulations that they
have with the Environmental Protection Agency, | the States are the
es late group.
r. Rogers. You mean the Environmental Protection Agency now
sets “the standards?
Mr. Ramey. Yes, sir. They have to approve the State standards.
Mr. Rogers. Do you advise the Environmental Protection Agency on
the standards?
Mr. Ramey. Only in the sense that we do have authority to conduct
research and development.
Mr. Rogers. I thought you said they would consult with: ron
Mr. Ramey. Under this proposed bill.
Mr. Rocsrs. They do not presently ?
Mr. Ramey. No, sir.
Mr. Rogers. They do not presently consult with you as to what the
standards should be?
Mr. Ramey. We discuss in a more general sense the results of our
research and development.
Mr. Rocers. But not standards specifically ?
Mr. Ramey. It is fairly early at this stage, they have only been in
existence for less than a year, and we are——
Mr. Rocers. We have had the Water Pollution Control Agency for
some time, the quality of standards of water, but you have not con-
sulted that ?
Mr. Ramey. Not as to specific standards.
Mr. Rocrrs. That is shocking. I am surprised.
Thank you.
Mr. Dineetu. Mr. McCloskey.
Mr. McCrosxey. Thank you, Mr. Chairman.
Mr. Commissioner, as I understand your testimony, within 6 months
you expect to phase out all ocean dumping of radioactive materials?
Mr. Ramey. Yes.
Mr. McCrosxey. If that is true, and this act does not become effective
for 6 months, under section 12, why is there any need in the act for
section 7(b) ?
Since you are going to do it in 6 months anyway, why not allow
this act to absolutely prohibit any waste disposal of radioactive waste
in the ocean ?
Mr. Ramey. I think the only possible future use is, as far as 1t was
brought out in the CEQ report on ocean dumping, I think it is on page
27, in which they recommended that the door sort of be left open on a
benefit risk basis.
For example
Mr. McCrosxey. Let me refer you to Chairman Train’s testimony.
He said ocean dumping of other radioactive waste should be prohibited.
That was as I understand the administration’s testimony. He says
it should be prohibited.
Do you have any objection to that ?
Mr. Ramey. I think there was a sentence before that.
Mr. McCrosxey. It says that low-level liquid discharge to the ocean
from vessels and land -based nuclear facilities are and should continue
to be controlled by Federal regulations and imternational standards.
Do you have any objection to this bill prohibiting ocean dumping
of radioactive solid wastes, yes or no?
249
Mr. Ramey. I would just refer you to this report as stated.
Mr. McCuosxry. Mr. Ramey, you are one of the most intelligent
lawyers I know. We have had a good deal of experience in the courts
together. You know what a yes or no answer would be.
Does the Commission object to the prohibiting of dumping of radio-
active solid wastes in this bill?
Mr. Ramey. I would request we be given an opportunity to answer
that question.
Mr. McCtosxey. You cannot answer it with a yes or no?
Mr. Ramey. I can.
Mr. McCuosxery. What is your answer?
Mr. Ramey. I would say that
Mr. McCtrosxkey. Yes or no.
Mr. Ramey. I would have to speak from my own standpoint on this,
because the Commission’s position has been essentially what was the
CEQ position in its report.
Mr. McCuosxey. The answer to the question is yes, you do not feel
we should prohibit solid radioactive solid waste disposal ?
You feel you should have freedom to dispose of some radioactive
solid waste ?
Mr. Ramey. I think it has to be that the door should possibly be left
open in a very minor way.
Let me give you a kind of example.
Mr. McCtosxey. I want to make sure I understand your testimony.
You do not want this committee to prohibit solid radioactive waste
disposal by the Atomic Energy Commission, do you?
Mr. Ramey. What I would like would be an opportunity for the
Commission to take up this specific question that you are raising, and
to supply you with our position on it.
Mr. McCuosxry. The answer to my former question is at this time
you cannot answer the question yes or no because the Commission has
not deliberated on this question.
Is that your answer to my question ?
Mr. Ramey. Yes, sir; that is what I was trying to say.
Mr. McCroskery. Well, that is fine. That is a perfectly legitimate
answer. If you do not want to answer the question at this time, because
the Commission has not deliberated on it, that is fine.
Now, Chairman Train has testified ocean dumping of radioactive
waste should be prohibited, including solid radioactive waste.
You will take up that question ?.
Mr. Ramey. Yes.
Mr. McCrosxry. How soon ?
Mr. Ramey. Within the next week or 10 days.
Mr. McCroskey. Then we will await that answer.
(The information follows:)
U.S. Atomic ENERGY COMMISSION,
Washington, D.C., April 26, 1971.
Hon. Paut N. MCCLOSKEY, IJr.,
House of Representatives.
DrEar Mr. McCiosKeEy: I am pleased to submit for the record the position of
the Atomic Energy Commission with respect to three questions which you raised
during my appearance before the Subcommittees on Oceanography and Fisheries
and Wildlife Conservation on April 6, 1971.
Question 1. Does the Commission object to a prohibition of the dumping of
radioactive solid waste in H.R. 4723?
62-513 O—71——17
250
Answer. The Commission participated in the writing of the report of the Coun-
cil on Environmental Quality entitled ‘(Ocean Dumping: A National Policy”,
dated October 1970. At page 28, the report stated :
Because of the need to keep all sources of radioactivity at the lowest pos-
sible level, ocean disposal of the wastes should be avoided except when no
alternative offers less harm to man or the environment. These cases should be
carefully examined to assure that no safe and practical alternatives do
exist. If ocean disposal is necessary, it should be carefully controlled.
As I indicated in my testimony, the AEC has not permitted ocean disposal of
high level radioactive waste and is phasing out licenses to dump waste materials
containing low levels of radioactivity into the ocean and has no intention of
dumping any such material from its own operations. However, it does not follow
that a complete prohibition of such dumping is indicated. We are in the early
stages of a great deal of national research into the effects of various actions
on the environment. We believe that until more is known about the environ-
mental effects of other types of waste disposal, it is not in the national interest
to make a decision at this time which would foreclose a particular disposal, in
the future, of radioactive waste under proper conditions and controls in some
part of the ocean. A possible candidate for such disposal could be a reactor
pressure vessel from the dismantling of a civilian power plant located at an
ocean-side site or from the dismantling of a propulsion reactor in a military
vessel. Until scientific bases are sufficiently advanced for enlightened decisions
with respect to alternate methods of waste disposal, we believe it would be pre-
mature to foreclose all options.
Question 2. Does the Commission object if it is brought under the Ocean Dump-
ing Act and required to secure a permit from EPA in connection with the dis-
posal of radioactive waste generated by its own operations?
Answer. We do not believe that it is necessary, in order to assure that AH'C
waste disposal actions are consistent with the Act, for the AEC to secure a permit
from EPA. Under the bill as presently drawn, if the Commission should wish
to make an ocean disposal of its own radioactive waste under some unusual cir-
cumstances, as described in the CEQ report, it would first consult with the Ad-
ministrator, and comply with the standards set by the Administrator respecting
limits on radiation exposures or levels, or concentrations or quantities of radio-
active materials, in the Same manner as under section 7b. of the bill required
for AKC licenses. If the Congress were to amend section 7b. to require an HPA
permit for all Government agencies proposing ocean disposal of radioactive waste,
we foresee no resulting undue interference with Commission operations. Other
Government agencies, however, planning ocean disposal of radioactive waste
would still be required, in addition to securing an EPA permit, to secure an
AKC license.
Quesion 3. Is the Commission agreeable to the applicability of civil and crim-
inal penalties to AEC employees for violation of laws on ocean dumping?
Answer. As a Government-wide matter, it is not desirable to impose civil and
criminal penalties on Federal employees arising in the course of the substantive
performance of agency missions. To do so ean seriously inhibit the performance
of necessary Government functions. Thus, the Commission opposes applicability
of civil or criminal penalties to Federal employees for violation of laws on ocean
dumping. To charge each Federal employee with knowlédge of laws pertinent
to the discharge of his official duties, pursuant to direction of his supervisors,
and with the requirement that he pre-assess at his peril compliance with such
laws, is, in our view, unrealistic, unduly burdensome, and not likely to result
in the prompt and efficient conduct of official business. We doubt that, in the
private sector, subordinates would, in fact, be charged with violation of ocean
dumping laws—rather, the violation would be charged to the head of the
organization. Thus, the responsibility for violations of ocean dumping laws
should likewise be that of the head of the Government agency conducting the
operations. No useful purpose would be served by subjecting higher echelon
Government officials to such penalties. (Agencies are, in appropriate cases,
answerable civilly under the Tort Claims Act.) In any event, we think the
responsibility for assuring compliance by Federal departments and agencies
with such laws in the operation of their facilities should rest with the President
of the United States.
Submissions for the record in connection with other matters discussed at the
hearing will be transmitted to you separately.
Sincerely,
JAMES T. RAMEy, Commissioner.
251
Mr. McCutosxey. Now we come to the question that Chairman Train
testified to about low liquid waste discharges, of vessels and land-
based.
I take it you want the Commission to have the right to continue
to regulate those nuclear facilities?
Mr. Ramey. Yes.
Mr. McCurosxey. Section 7(b) of this act reads as follows:
Provided, The Atomic Energy Commission shall consult with the Administra-
tor prior to issuing a permit to conduct any activity which would otherwise be
regulated by this act. In issuing any such permit, the Atomic Energy Commission
shall comply with standards set by the Administrator respecting limits on radia-
tion exposures or levels, or concentrations or quantities of radioactive material.
That refers to a permit. Presumably a private party of govern-
mental agency is included in that.
Do you intend that the Atomic Energy Commission should have
the ability without permit to continue this kind of liquid low-level
waste from vessels and land-based facilities?
Mr. Ramey. That would have to be under a permit.
Mr. McCuoskxery. The language of the administration’s bill would
leave you free to do this without a permit.
Mr. Ramey. Under the Atomic Energy Commission Act, it has to
be by means of a license or permit.
Mr. McCrosxry. Even of your own agency when you are referring
to yourself?
Mr. Ramey. You mean the operational activities of the Atomic
Energy Commission ?
Mr. McCiosxey. Yes.
Mr. Ramey. I would prefer to have Mr. Price answer that question.
Mr. Hennessey can also if he wishes.
Mr. Hennessey. I interpret this section 7(b) would have the effect
of exempting the Atomic Energy Commission’s own activities from
any requirement for a permit.
Mr. McCrosxry. Do you have any objection if the Atomic Energy
Commission is brought under the act and required to comply with
the act as an agency itself?
You would have to get a permit from the Environmental Protec-
tion Agency before you could do any of this dumping yourselves.
Would you object to that?
Mr. Ramey. Again, I would like to provide you with a written
answer.
This is again something which we have not specifically taken up in
connection with this testimony.
As I pointed out, we were informed that we were being requested
to testify yesterday, and we have not had a Commission meeting in
that period.
Mr. McCioskey. You will examine that second question ?
Mr. Ramey. Yes, sir.
(See section 2 of the letter dated April 26, 1971, which may be found
on p. 249.)
Mr. McCroskey. Could you also examine a third question? That is
whether or not you are willing to be bound by an administration
permit, like any other agency of government, and to respond as to
whether or not civil or criminal penalties should be or could be as-
sessed against your employees if they violate the law?
202
Mr. Ramry. We will examine that. This is more of an across-the-
board policy for the Federal Government.
Mr. McCiosxkey. That is exactly correct.
(See paragraph 3 of letter on p. 249.)
Mr. McCiosxry. Do you recall, that the President, shortly after
taking office, created an Environmental Policy Council, and it was
stated by Dr. DuBridge that we need not pass an environmental pro-
tection act because environmental protection was already being han-
dled by the Federal agencies ?
The Department of Defense and the Atomic Energy Commission
were specifically excluded from that Environmental Policy Council
as it was first set up, and I think it is extremely important we have
your reaction whether your agency should be excluded from criminal
and civil penalties, and whether you are willing to submit to Environ-
mental Protection Agency proceedings.
Mr. Drnceri. I would just lke to have Mr. Ramey tell us why
the Atomic Energy Commission is the only agency in government
which is exempt from the Environmental Protection Agency’s license
requirement.
What I am curious to know is if there is any logic behind that.
Mr. Ramey. Do you mean under
Mr. Dinceti. Under the administration’s bill, why is the Atomic
Energy Commission exempt from licensing requirements ?
Why is it and its contractors not compelled to go to the Environ-
mental Protection Agency ?
Tam very curious as to that very quaint situation.
Mr. Ramey. Well, I believe that one of the main reasons is that un-
der the reorganization plan, it was determined by the Congress and
the administration that in the field of radiation, and radiological mat-
ters, affecting nuclear powerplants, and the whole nuclear cycle, the
Government had set up a pattern with the Atomic Energy Commis-
sion continuing to exercise a fairly broad licensing authority. The
standards making authority had always been in the Federal Radiation
Council, so this was following the same pattern in transferring the
standards making to the Environmental Protection Agency, and re-
taining the licensing authority in the Atomic Energy Commission.
Mr. Diners. We find ourselves then in passing strange conditions,
where the Atomic Energy Commission will issue the permit, but ac-
cording to the language on page 10, line 24, under 7(b), this lanuague
appears as follows:
In issuing any such permit, the Atomic Energy Commission shall comply with
standards set by the Administrator respecting limits on radiation exposures or
levels, or concentrations or quantities of radioactive material.
So as I read this particular statute, the Atomic Energy Commission
will be issuing the permit, out to comply with the standards and
qualifications set out by the Environmental Protection Agency.
Now, is that not a very, very strange thing?
Why do we need to have two different permit issuing agencies, when
effectively they will meet the qualifications and standards which will
be laid down by the Environmental Protection Agency.
It appears that the Atomic Energy Commission will simply be serv-
ing as a ministerial clerk to process some of the Environmental Pro-
tection Agency’s papers.
203
Now, why should that legislation go through?
Mr. Ramey. Well, my understanding of the Environmental Protec-
tion Agency’s role, generally, is that in their standard-setting in the
radiological area, they have taken over what the Federal Radiation
Council has accomplished for the last 10 or 12 years. This language
in the pending administration bill would carry forward that general
pattern, of an agency setting overall standards, and another agency,
as the licensing agency, implementing them.
Now, I recognize in the case of ocean dumping we are talking about
something that from a practical standpoint is of no very great con-
sequence. I just think the general pattern as set forth in the bill is
consistent with the reorganization plan, and the way the Commission
will be operating in the general radiological area.
Mr. Divert. We keep coming back to the same point: that the
Atomic Energy Commission will be doing what the Environmental
Protection Agency is supposed to be doing.
Mr. Ramey. Well, as I said, the Environmental Protection Agency,
presumably will be issuing relatively broad scale types of standards.
Mr. Drvcet. I am curious as to why we have to have an Atomic
Energy Commission doing this work though, and regardless of your
organization plan, and the wisdom of it, I do not think we should
be debating.
I happen to be one who opposes the particular organizational plan,
so I would like to challenge its validity, but regardless of its validity,
why should the Atomic Energy Commission be doing the Environ-
mental Protection Agency’s work, if you are not going to have any
discretion, you will simply be stamping these things approved or dis-
approved, according to the standards the Environmental Protection
Agency has laid down.
It seems to me we have a very curious situation before us.
Mr. Ramey. As I mentioned, Mr. Chairman, in this field of radio-
logical regulation, the Commission has by far the greater amount of
experience and expertise, particularly in relation to the whole sequence
of the fuel cycle.
Mr. Dinceu. Excepting that here you shall be issuing permits us-
ing the Environmental Protection Agency’s standards. That does not
indicate that whoever drafted this bill had much greater faith in your
capacity to issue permits than set standards, does it? I am still curious
° find out why you folks will be doing essentially what they will be
oing.
Why should you folks be excepted from the act at all?
Mr. Ramey. As I indicated, Mr. Chairman, in the whole radiologi-
eal field, the Environmental Protection Agency has taken over the
responsibility from the Federal Radiation Council to issue standards,
so in the future, the Atomic Energy Commission will be implement-
ing EPA general standards.
They will be reviewed from time to time by the Environmental Pro-
tection Agency. I do not think we wili be exercising anything unusual
in this whole subsidiary regulation area, and in the specific licensing
of powerplants, and so on, we will not be exercising a ministerial or
clerical role.
I do think in relation to ocean disposal, in view of the fact that we
are phasing out even the very small amounts going on, and that any
254
future uses of the ocean would be very minimal, from a practical
standpoint, we are not arguing about a lot.
Mr. Dineett. Commissioner, I want to thank you, and I just want
to observe you play a bad hand rather well.
The Chair recognizes Mr. Tiernan.
Mr. Trernan. Thank you, Mr. Chairman.
With regard to your first answer to Mr. McCloskey’s questions, you
indicated the Commission had not taken any position, and you want
to supply that for the record.
Mr. Ramey. Yes. We have supported the language in the CEQ
report.
Mr. Trernan. Mr. McCloskey quoted Mr. Train’s statement before
this committee yesterday, and that report was filed in October.
I assume you have had chance to review the language in that re-
port, and also the administration’s bill, and it seems you are in con-
tradiction to the Administrator who testified here with regard to the
objectives.
Mr. Ramey. I would not make it quite that degree of disagreement.
Mr. Trernan. Well, what degree would you make it ?
Mr. Ramey. The bill of course does not contemplate, it does not
have authority for
Mr. Trernan. But the Administrator saw no other reason for that
authority, except to liquefy radioactive materials, is that correct ?
Mr. Ramey. I am not sure that that was it.
Mr. Trernan. You question the quote of Mr. Train’s statement ?
Mr. Ramey. I would take it that he was saying under this authority
he would expect that it be prohibited.
Mr. Trernan. And you do not agree with that ?
Mr. Ramey. I have stated that I would like to review this with my
fellow commissioners.
Mr. Trernan. You mean since October, and since the bill was in-
troduced in February, that the Commission has not considered this
at all?
Mr. Ramey. No. I say we have not considered it since we saw Mr.
Train’s statement.
Mr. Trernan. When did you see Mr. Train’s statement ?
Mr. Ramey. This morning.
Mr. Tirrnan. You saw the bill the administration placed before
the committee ?
Mr. Ramey. Yes, sir.
Mr. Tiernan. And in view of that, you think that Mr. Train’s state-
ment is of further restriction than the language in the bill ?
Mr. Ramey. It is not a restriction in the language of the bill. It
indicated
Mr. Tiernan. You think his statement indicates a further restric-
tion in the application of the language of the bill ?
Mr. Ramey. It indicated how he would expect the bill to be admin-
istered, and it is a further restriction on what is stated in the report
of the CEQ, of which he was chairman. .
Mr. Tiprnan. And if we were to act on his recommendation, you say
the Commission has not taken a position yet ?
Mr. Ramey. No, sir.
299
As I indicated, from a practical standpoint, I do not think it is a
big problem.
Mr. Tiernan. Now, with regard to the issuing of permits and sites
of construction of nuclear powerplants, have you ever denied a permit
for construction ?
Mr. Ramey. Yes.
Mr. Trernan. When ?
Mr. Ramey. In the case of the Malibu Atomic Power Plant, the city
of Los Angeles, this must have been about 4 or 5 years ago, the Com-
mission approved the denial of a construction permit by a Licensing
Board for building of that powerplant.
Mr. Tiernan. At that particular site?
Mr. Ramey. Yes.
Mr. Trernan. Wasit built at another site ?
Mr. Ramey. No.
Mr. Tiernan. How many applications have been filed for construc-
tion before the Commission, how many applications have been filed ?
Mr. Ramey. I would like Mr. Price to answer that.
Mr. Price. I think probably close to a hundred. I don’t know exactly.
That is for powerplants.
Mr. Trern an. That is powerplants, generating plants.
How many have been denied ?
Mr. Pricer. I would have to check that.
Mr. Ramey. There have been other examples, whereby in the process
of review, the applicant—the utility has withdrawn its application.
For example, Con Edison proopsed to build a plant across the East
River in Queens. That did not get through the Commission’s Advis-
ory Committee on Reactor Safeguards, before they asked enough ques-
tions that the utility decided to withdraw the application.
Mr. Tiernan. Mr. Price, how many of those hundred applications
have been refused ?
Mr. Price. Let me just give my best guess, and I will provide the
specifics for the record, but I would say that either by the staff, my
staff, or the ACRS telling the applicant that the site was not good
enough, or that the case had too many problems in it, that about six
to 10.
Mr. Tiernan. Six to 10?
Mr. Price. Yes.
Mr. Tiernan. Could you tell me whether or not there has been——
Well, when was the first application filed with your agency?
Mr. Pricer. Back in 1955 or 1956.
Mr. Trernan. 1955 or 1956?
Mr. Price. Yes.
Mr. Trrrnan. Those six or seven applications. Were they recent
clenials, or were they over the period of 1955 to 1956?
Mr. Price. They are spread out, because sometimes we will have the
applicant come in and talk about a site, and we will say we do not
think that isa very good site.
Mr. Tiernan. Is that Con Edison application included in those six
or seven ?
Mr. Pricer. That is right.
Mr. Tiernan. Do you feel that your Commission has an objective
viewpoint on the applications ?
Mr. Price. We try to, Mr. Tiernan.
206
Mr. Tiernan. Do you have any outside advisory group ?
Mr. Price. We sure do. We have not only the technical staff of the
Commission, but we have an Advisory Committee on Reactor Safe-
gards that are independent, and then when we get through, and they
get through, there is a public hearing before a licensing board, and
that is reviewed by the appeals board, and sometimes the Commis-
sioners themselves.
In addition, in working through these cases, we consult, like on
earthquakes, with the Geological Survey group.
Mr. Trernan. Mr. Chairman, I think that was pretty well gone
over step by step as to that procedure.
I would like to request the Commission supply for the record the
actual step-by-step procedures.
Mr. Drnce tw. I think that would be helpful, if you would do so, and
without objection, that will be inserted in the record.
(The information follows:)
STEP BY STEP PROCESS FOR LICENSING OF POWER REACTORS BY THE ATOMIC
ENERGY COMMISSION
Introductory Note :
As was pointed out by the Commission’s responses to Mr. Tiernan’s questions
on April 6, before a formal application is made by a utility for a construction
permit, the prospective applicant is encouraged to meet with AEC regulatory
staff to discuss the overall suitability of the plant site. Such discussions have
in the past led to applicants deciding not to build specific plants at specific
locations.
Once an application is submitted, the Commission regulatory staff and ACRS
spend from 12-20 months reviewing the utility’s application and environmental
report and discussing the site and the plant design with him. There frequently
are revisions made in the applicant’s plans, including the design of the plant, as
a result of these discussions.
The numbers of withdrawals by applicants and denials and suspensions of
construction permit or site approval applications have to be considered within the
context of the above two features of the licensing process.
The role of nuclear reactors in the production of electricity is growing rapidly.
With this increased use of nuclear power reactors has come greater public interest
in, and awareness of, the safeguards to public health and safety which are pro-
vided for these nuclear power plants.
When the atom is split. or “fissioned,” in a reactor, it produces energy—heat
energy and radiation energy. Positive control of this energy is achieved in a
reactor through the design of the facility and by careful operation. By these
means, constant care is taken to prevent injury to employees or to the general
publie.
Comprehensive safeguards to protect public health and safety are engineered
into power reactor plants. These include: a system of controls to regulate the
reactivity and rate of energy release in the reactor core where the nuclear
fuel elements are placed ; a heat extraction system to convert the thermal energy
from the reactor to the generation of electric power; containment systems
designed to prevent the escape of harmful amounts of radioactivity in the event,
however remote, of an accident; and a waste handling system to control the
release to the environment of the low-level radioactive effluents produced during
normal operation. These systems are checked periodically to assure that they are
working properly.
Protection of health and safety is the primary goal of the Atomic Energy Com-
mission’s regulatory program. Under this program, the licensed uses of radio-
active materials and the construction and operation of licensed nuclear facilities,
of which reactors are one type, are regulated by AEC.* State and local officials
are kept informed of AEC licensing actions taken in connection with a power
reactor project.
1 Commission owned power reactors located at non-AEC sites and operated as part of
conventional utility systems are not licensed. However, procedures which are parallel to
those discussed here are used in the issuance of authorizations for construction and opera-
tion of these reactors.
257
SELECTION OF A REACTOR SITE
The selection of a reactor site is the responsibility of the company proposing to
build the reactor. To assist prospective applicants, the Atomic Energy Commis-
sion has published criteria which it uses as guides in the safety evaluation of
proposed sites for stationary licensed power and test reactors.
Factors considered by the Commission in judging the safety of proposed sites
for power reactors include dimensions and characteristics of the site under the
operator’s control; population density in the area surrounding the proposed site,
and the uses which are made of this area, such as industrial, farming or resi-
dential; and the seismology, meteorology, geology and hydrology of the area.
Other factors considered are the characteristics of the proposed reactor, including
maximum power level, and the particular safeguards to be engineered into the
plant either to prevent accidents or to limit their consequences; and the extent
to which the design of the reactor incorporates unique or unusual features that
may have a Significant bearing on the probability or consequences of an accident.
Before formally filing an application for construction and operation of a power
reactor a prospective applicant is encouraged to discuss informally the possible
sites for the reactor with the Commission’s regulatory staff. In this way an
applicant can receive additional guidance as to the acceptability of a site and the
information which must be included in the application for a license to construct
and operate a reactor.
APPLICATION FOR A CONSTRUCTION PERMIT
Before a company can begin to build a power reactor at a particular site, it
must obtain a construction permit from the Commission. Such things as site
exploration, site excavation, procurement or manufacture of components and
construction of non-nuclear facilities may be done before an AEC construction
permit is received.
As a major part of the application, the company files a preliminary safety
analysis report. This report presents the preliminary design and safety features
of the proposed reactor, as well as comprehensive data on the proposed Site.
The report discusses various accident situations and the safeguards which will be
provided to prevent accidents or, if they should occur, to prevent overexposure
of the public and employees to radiation.
Copies of the application are sent to the Commission’s Advisory Committee
on Reactor Safeguards (ACRS). The ACRS is a committee established by
law to advise the Commission on safety aspects of reactors. It is composed
of scientists and engineers who are eminently qualified in the various fields
related to reactor technology. Copies also are sent to the state and local officials,
and are placed in the AHC’s Public Document Room. A public announcement
of the receipt of the application is issued by AEC and a notice is published
in the Federal Register and in trade and news publications which will give
reasonable notice to municipalities, public bodies, private utilities and corpora-
tions which might have a potential interest in the facility. Copies of all cor-
respondence and filings relating to the application are placed in the public records
of the Commission, which are available to any member of the public at the
Commission’s Washington office.
REVIEW AND SAFETY EVALUATION
The application is reviewed by technical experts of the Commission’s regu-
latory staff. This staff is headed by the Director of Regulation, who reports
directly to the Commission. There are seven divisions under the Director of
Regulation. They are the Divisions of Reactor Licensing, Reactor Standards,
Materials Licensing, Radiological & Environmental Protection, Compliance, State
and Licensee Relations and Nuclear Materials Safeguards.” The review includes
2 The Division of Reactor Licensing handles AEC staff review of applications to construct
and operate nuclear reactors. The Division of Reactor Standards develops standards,
eriteria and guides for location, design, construction and operation of reactors. The Divi-
sion of Materials Licensing issues licenses for the use of radioactive materials and reviews
applications to build and operate reactor fuel reprocessing plants. The Division of Radio-
logical and Environmental Protection develops and recommends to the Commission regu-
lations to limit exposures of persons to radiation from licensed activities ; and develops, as
required by the National Environmental Policy Act, statements which evaluate the environ-
258)
consideration of all the radiation safety aspects of the proposed reactor, as
well as the applicant’s technical and financial qualifications. The Division of
Reactor Licensing supplements this study of the safety analysis report with
conferences with the technical staff of the applicant, and may ask for further
information if required.
The data submitted should provide the necessary information to permit evalua-
tion of the adequacy of the proposed site for a reactor of the power level and
type planned. Even though final design details are usually not available at the
time of the application for a construction permit, the data submitted should
provide reasonable assurance that the proposed reactor can be constructed
and operated at the selected site without endangering the health and safety
of the public, including plant employees.
ACRS SAFETY EVALUATION
The Division of Reactor Licensing prepares an evaluation of the safety
aspects of the proposed power reactor for the Advisory Committee on Reactor
Safeguards, which has already received the applicant’s preliminary safeguards
report. Particular problems which may exist are identified for consideration
by the ACRS. The Advisory Committee considers the applicant’s preliminary
safety analysis report, together with the evaluation prepared by the Division
of Reactor Licensing. Representatives of the applicant and members of the
technical staff of the Division of Reactor Licensing meet with the ACRS to
deal with questions that arise during the Committee’s review of the reactor.
Usually a subcommittee meeting is held, often at the proposed site, before
full Committee review. When it has reached a conclusion as to the safety aspects
of the proposed reactor, the ACRS reports its views to the Commission. This
letter report is made public.
HEARING ON CONSTRUCTION PERMIT
The Commission has begun the practice of giving earlier notice in nuclear
power plant licensing proceedings which is expected to facilitate participation
by the public in licensing hearings and at the same time minimize licensing
delays. In addition, a public announcement is issued by AEC and sent to the
news media in the vicinity of the site.
The Commission’s rules of practice permit persons whose interests may be af-
fected by the proceeding to intervene as parties in accordance with the require-
ments of the regulations. Person who wish only to make a statement of their
views concerning the project may be permitted to make “limited appearances.”
In advance of the public hearing, an evaluation of the safety aspects of
the proposed reactor, prepared by the Division of Reactor Licensing, is made
avai able to the public. This evaluation takes into account the recommendations
and advice of the ACRS. Copies of the evaluation are also furnished to state
and local officials and to newspapers in the area which surrounds the proposed
site of the reactor.
An Environmental Report is submitted by the applicant in accordance with
AKC regulations (10 CFR 50, Appendix D). As required by the AHC’s policy
statement implementing the National Environmental Policy Act of 1969, the
regulatory staff prepares a draft detailed environmental statement and forwards
it along with the Applicant’s report to the appropriate Federal, State, and
local agencies for comment. At the conclusion of the comment period, the
regu'atory staff prepares a final detailed environmental statement which in-
cludes a discussion of any problems or objections raised and the disposition
thereof. The detailed environmental statement is then made available to the
public and will accompany the application through the Commission’s review
process.
mental impact of nuclear facilities proposed for license by the AEC. The Division of State
and Licensee Relations administers the AEC program for transferring part of the Commis-
sion’s regulatory authority to the states, conducts the licensee indemnity program, and
export licensing. The Division of Compliance conducts inspections of licensees and initiates
enforcement actions to assure that the provisions of licensees and AKC regulations are
being met. The Division of Nuclear Materials Safeguards reviews safeguards programs of
those licensees authorized to possess and use more than 5,000 grams of contained U-235,
U-233 and/or plutonium in a form other than sealed sources and issues safeguards amend-
ments to licensees to incorporate nuclear material controls as licensee conditions. Safe-
epards. inspections are conducted at licensed facilities to determine compliance with
regulations.
209
The public hearing usually is conducted by a three-member atomic safety and
licensing board appointed by the Commission. The board is composed of two
technical experts and one lawyer, who acts as chairman of the board for the
hearing.
The application, any amendments to the application which may have been
filed, and any other pertinent documents are submitted for the record. The pro-
posed findings by the regulatory staff and the proposed construction permit are
presented. Testimony is given both by the applicant and by the AEC regulatory
staff on the safety aspects of the reactor and on the applicant’s technical and
financial qualifications to construct the facility.
The board considers matters of radiological safety involved in the application
for this proposed reactor at the selected site. In addition, any party to the
proceeding may raise as an issue whether the issuance of the permit would be
likely to result in a significant, adverse effect on the environment. If such a
result were indicated, in accordance with the declaration of national policy
expressed in the National Environmental] Policy Act of 1969, consideration will
be given to the need for the imposition of requirements for the preservation of
environmental values consistent with other essential considerations of national
policy, including the need to meet on a timely basis the growing national re-
quirements for electric power.
With respect to those aspects of environmental quality for which environ-
mental quality standards and requirements have been established, proof that
the applicant is equipped to observe and agrees to observe such standards and
requirements will be considered a satisfactory showing that there will not be
a significant, adverse effect on the environment. Certification by the appropriate
agency that there is reasonable assurance that the applicant for the permit will
observe such standards and requirements will be considered dispositive for this
purpose. In any event, there will be incorporated in construction permits a
condition to the effect that the licensee shall observe such standards and re-
quirements for the protection of the environment as are validly imposed pur-
suant to authority established under Federal and State law and as are determined
by the Commission to be applicable to the facility that is subject to the licensing
action involved.
In a hearing on an uncontested application for a construction permit, the
licensing board will determine (1) whether the application and the record of
the proceeding contain sufficient information and (2) whether review of the
application by the AEC regulatory staff has been adequate, to support the find-
ings proposed to be made by the Director of Regulation and to support issuance
of a construction permit also proposed by the Director of Regulation. If an
application is contested—that is, if there is a controversy between the AEC
regulatory staff and the applicant concerning the issuance of a permit or any
of its terms or conditions, or if the application is opposed by an intervening
party to the proceeding—then the licensing board will consider any matters in
controversy.
The proceedings are conducted informally, consistent with legal requirements
and fairness to all parties.
FINAL ACTION ON CONSTRUCTION PERMIT
The licensing board considers the evidence which has been presented, together
with any briefs which may have been filed, and issues a decision. The decision
is effective immediately, unless the board finds that good cause has been shown
by a party why it should not be. If authorized by the decision, a construction
permit is issued. The decision and the permit are subject to review by the
Atomic Safety and Licensing Appeal Board or by the full Commission upon
filing of exceptions or on its own motion. The Commission may, on its own
motion, review certain appeal board decisions on certain specified grounds.
The permit includes a finding, however, that AEC is satisfied it has enough
information to provide reasonable assurance that the proposed facility can be
constructed and operated safely at the proposed location.
OPERATING LICENSE
As construction proceeds on the reactor, it is inspected periodically by repre-
sentatives of the Commission’s Division of Compliance to assure that the re-
quirements of the construction permit are met. Amendments to the application
and reports may be submitted from time to time for review by the Division
of Reactor Licensing.
260
When final design is completed, and plans for operation are ready, the appli-
cant submits the final safety analysis report in support of an application for an
operating license. The information includes plans for operation, procedures
for coping with emergency situations, and pertinent details on the final design
of the reactor itself—such as containment design, design of the nuclear core,
and waste handling systems. Once again the Division of Reactor Licensing makes
a detailed review of the information on the reactor and presents an evaluation
of it to the Advisory Committee on Reactor Safeguards. The ACRS again makes
an independent evaluation and reports its opinion to the Commission. This is
made public.
Applicants for operating licenses are required to submit an Hnvironmental
Report discussing the same environmental considerations, to the extent that
they differ significantly from those discussed in the Report submitted at the
construction permit stage. The same procedure is then followed as during the
construction stage review.
A publie hearing is not required by law on every application for an operating
license. Under the new practice of early noticing the 30-day notice to the public,
that the Commission is considering issuance of an operating license, will be
issued while the technical reviews by the AEC staff and the ACRS are in the
later stages. The regulatory staff’s evaluation of the safety aspects is prepared
and made available to the public after technical reviews have been completed.
Normally the Commission will not direct that a hearing be held at this stage
unless there is a difficult safety problem of unusual importance, or substantial
public interest which would warrant that course. In the event no hearing is
scheduled initially, the published notice states that in the absence of a timely
petition to intervene and a request for a hearing, the license will be issued.
If a public hearing is held, the decision of the licensing board is subject to
Commission or appeal board review.
‘Hach license for operation of a nuclear reactor contains specific license con-
ditions called technical specifications which set forth the particular safety
characteristics of the facility and the conditions of its operation which are to
be met in order to assure protection of the health and safety of the public.
Persons who operate the controls of a power reactor are required to be indi-
vidually licensed by the Commission. The AEC conducts examinations of indi-
viduals which include an operating test and a written examination on knowledge
of specific details of the facility and the procedures used in its operation.
CONTINUING REVIEW
AKC inspection and review of power reactors does not. stop when the operating
license is issued. The reactors are inspected periodically by representatives of
the Commission’s Division of Compliance to make certain operations are being
conducted in accordance with terms of the license.
Thus, reactors are subjected to detailed review by technical experts before
construction is permitted, before operation is permitted and during the entire
period of their operation. In the event an unsafe condition is discovered after
operation begins, the Commission has authority to order the licensee to shut down
the reactor and take any safety measures which may be necessary. It should be
emphasized, however, that the outstanding safety record of the atomic energy
industry has been achieved because persons who deal with atomic energy respect
the potential hazards and exercise great care in the handling and use of atomic
materials.
Since April 1955, 85 applications have been filed requesting construction of 110
central station nuclear power plants.
Construction Permit or Site Approval Applications Withdrawn, Denied or
Suspended
1. Ravenswood—Consolidated Edison Co.
Application Filed—12/10/62
Withdrawn—1/17/64
(Opposition from citizens of New York City due to high population density. Al-
leged availability of alternative cheaper sources of power from Canada and other
areas. Note AEC regulatory staff and ACRS wer asking a series of penetrating
questions on siting of the plant.)
2. Bolsa Island—Department of Water & Power of the City of Los Angeles—
Southern California Edison Co.—San Diego Gas & Electric Co.
261
Applications Filed—9/5/67
Withdrawn—11/4 & 12/30/68
(The dual nuclear power and desalting plant project was postponed due to
economic and organizational problems. )
3. Florida West Coast Nuclear Power Group, Inc.
Application Filed—12/10/59
Withdrawn—6/26/61
(The 50 MWe gas-cooled heavy water reactor project was terminated in mid-
1961 because of technical and economic uncertainties. )
4, Easton Station—Niagara Mohawk Power Corp.
Application Filed—8/1/67
Withdrawn—8/22/68
(Application had difficulties obtaining site approval from other governmental
bodies dealing with matters not related to radiation safety. )
®). Bodega Bay—Pacific Gas & Electric Co.
Application Filed—12/31/62
Withdrawn—11/4/64
(Application withdrawn due to opposition of the AEC regulatory staff based
on a need for a design against positive ground displacement, because of the
proximity to the San Andreas Fault.)
6. Malibu—Los Angeles Department of Water & Power
Application Filed—11/26/63
(The Atomic Energy Commission’s decision, issued 3/27/67, upheld an Atomic
Safety and Licensing Board’s determination that the probability of permanent
ground displacement at the proposed site was sufficiently high to require that
the design criteria for the plant be modified and supplemented to include provi-
sion for ground displacement from earthquake activity before a construction
permit could be issued. Although the application was not formally withdrawn, the
applicant’s contract with reactor supplier was terminated. )
7. Burlington—Public Service Electric & Gas Co.
(The AKC regulatory staff and the Commission’s Advisory Committee on Re-
actor Safeguards (ACRS) told the company informally that they found no way
in which Burlington could be approved. The applicant amended its application
changing the site to Salem County, New Jersey.)
8. Bell Station—New York State Electric and Gas Corp.
(The applicant announced indefinite postponement of its plans to build a
nuclear plant at Cayuga Lake, New York, in order to provide more time for addi-
tional research of cooling systems for thermal discharge from the plant and for
consideration of the economic effect of such systems. Although this application has
not been formally withdrawn, it is considered to be inactive by the AHC.)
9. Seabrook—Public Service of New Hampshire
(In November 1969 the applicant announced deferrment of plans for the pro-
jected Seabrook Nuclear Station as a result of a decision by one of the partici-
pants not to contribute to the funding. Although this application has not been
formally withdrawn, it is considered to be inactive by the ABC. )
EHzamples of Results of Informal Site Reviews by AEC
10. Jamestown Site, New York
(Proposed for the Small Size Pressurized Water Reactor Project.) First site
(35 acres of city-owned land located in the northwest corner of the city approxi-
mately 1.75 miles from the center) was disapproved by the ACRS (letters 3/14/
60 and 6/30/60) due to smallness of site, proximity of City of Jamestown with
its high population density, unfavorable meteorlogy, and consequent adverse ef-
fects on liquid waste disposal.
Two additional sites (located east of Jamestown) were found suitable by
the Committee (letter 11/7/60) , but project was abandoned.
11. Point Loam Site, California
(Proposed for the Experimental Low-Temperature Process-Heat Reactor
Project) The ACRS (letter 3/14/60) considered the site unsuitable due to
unfavorable meteorology and high population density.
12. Cayucos, Oxnard, Sycamore Canyon and Tehachapi Sites, California (City
of Los Angeles)
262
The ACRS (letter 7/22/66) found the Cayucos site acceptable provided addi-
tional geological studies confirmed expectations and proper attention was given
to seismic design.
The Oxnard and Tehachapi sites had specific problems requiring considerable
effort and additional safeguards. Insufficient geological information was avail-
able concerning the Sycamore Canyon site.
Mr. Tiernan. Thank you. I have no further questions.
Mr. Dincetz. Mr. DuPont.
Mr. DuPont. Thank you, Mr. Chairman.
Mr. Ramey, under the 1954 act, did the Atomic Energy Commis-
sion have authority to issue permits for dumping of anything other
than radioactive material ?
Mr. Ramey. Not in the sense that you are talking about, no, sir.
Mr. DuPont. How can the Atomic Energy Commission get in-
volved in the question that Mr. Lennon was asking about, the nerve
gas?
Mr. Ramey. Well, as I indicated, I did not believe that the Com-
mission made any recommendations as to disposal of something it
the jurisdiction of the Department of Defense.
Where the Commission got involved was in the question as to whether
it might be possible to disintegrate these nerve gases by means of an
underground atomic explosion. In any such an arrangement, the Com-
mission would be essentially providing a service, if you want to call
it that, as a fellow Government agency on the disintegration of this
material.
As I indicated, this had never been done on an experimental basis,
and it was something that needed a great amount of experiment and
study in our judgment before we made a decision on it.
Mr. DuPonr. But you have no authority to dump anything, or to
issue permits for the dumping of anything other than radioactive
material ?
Mr. Pricr. Radioactive material is the only material that we have
regulatory authority over to control the dumping by others.
Mr. DuPont. No, that is not quite the question.
Does the Atomic Energy Commission have the permission, if I came
to you with a sack, and said I want a permit to dump this in the ocean,
and it does not contain radioactive material, do you have statutory
authority to give me a permit ?
Mr. Price. No, sir.
Mr. DuPont. Do you have exclusive authority over the dumping
permits of radioactive material? .
That is, could a State enact a radioactive dumping law that could in
any way impinge on your jurisdiction ?
Mr. Pricr. No; we have exclusive authority under section 274 of the
Atomic Energy Act.
The Act permits some limited delegation of the States to regulate
radioactive material, but it expressly excludes ocean disposal.
Mr. DuPonr. And, finally, would you object to an amendment to
eliminate section 7(b) of the administration’s bill ?
Mr. Ramey. This is one of these points that I would like to consult
my fellow Commissioners on.
Mr. DuPont. Well, I understand that.
Maybe the question is not quite a fair one.
263
I am sure the Atomic Energy Commission will have a position, but
do you see, from a personal point of view, any particular problem, do
you feel you would be in any kind of a bind if you did not have this
authority and if you had to go to the Environmental Protection Agency
for a permit ?
Mr. Ramey. You mean with respect to the Atomic Energy Commis-
sion’s own proprietary activities in disposing of waste ?
Mr. DuPont. Yes.
Mr. Ramey. Again, this is something that I personally cannot
answer.
I would have to consult the Commissioners on that.
Mr. DuPont. I have no further questions.
Mr. Drncett. Mr. Kyros.
Mr. Kyros. Thank you, Mr. Chairman.
I would like to ask you about nuclear plants situated on the coast-
line, where a discharge of heated water goes into the ocean. That
causes some problems, does it not, such as thermal pollution ?
Mr. Ramey. That has raised some questions in certain cases.
Mr. Kyros. Now, within this act, under the definition of dumping,
is the discharge of this heated water included? I am referring to sec-
tion 3, subsection F.
Mr. Ramey. I would like to have Mr. Hennessey comment on that.
Mr. Hennessry. Our understanding is that it is not covered as
dumping under this bill.
Mr. Kyros. Yes. Is the dumping of refuse into navigable waters,
under the 1899 Rivers and Harbors Act, is that covered here?
Mr. Ramey. That is the position that has been taken by the En-
vironmental Protection Agency, and the Justice Department, and be-
ing contested in the courts now.
Mr. Kyros. Under the exemption of section 7(b), in which your
agency becomes exempted, is nothing contemplated as to the discharge
of ace thermal pollution? Is nothing contained in there which refers
to that?
Mr. Ramey. This is already being regulated, of course, by the Fed-
eral Water Quality Act of 1970, and by Executive order under the
1899 Refuse Act.
Mr. Kyros. But the Atomic Energy Commission has no jurisdiction
over that part of the discharge from a nuclear plant. Is that correct ?
Mr. Ramey. We come in in connection with our licensing authority.
We do serve as the enforcement agency for these other Federal and
State requirements.
Mr. Kyros. For example, a power company putting in an atomic
plant along the coast at Wiscasset, Maine when they come to you to
get a license, is this one of the issues you have to consider? That is,
whether they will thermally pollute the bay ?
Mr. Ramey. We require they will provide a certificate from the ap-
propriate state water pollution agency that they have met the State
water quality standard that has been approved by the Environmental
Protection Agency.
_ Mr. Kyros. Now, do you automatically accept that, if certificate
is so provided? Or do you examine the matter initially yourself?
Mr. Ramey. We accept that as being adequate.
264
Mr. Kyros. Because, you know, one of the problems we hear about
is the fact that numerous plants are planning to set themselves up
along the coastlines, because of the available cooling sea water. And I
just wanted to know, apart from the radioactive waste you have al-
ready discussed, what would happen with the problem of thermal
pollution, if it is as great as we believe it to be?
Mr. Ramey. This would come under the States and the Environ-
mental Protection Agency, under their water pollution standards.
Mr. Kyros. This would not be within the jurisdiction of your agency
in other words?
Mr. Ramey. Only as I say, where the Commission, under the NEPA
and the Muskie act, conditions its license on meeting the State and
Federal requirements.
Mr. Kyros. Thank you very much.
Mr. Dincetu. Mr. Everett.
Mr. Evererr. One question, Mr. Chairman.
Mr. Ramey, will you supply for the record the Atomic Energy Com-
mission’s regulations mentioned on page 2 of your statements?
Mr. Ramey. Yes, I will be glad to.
(The information follows:)
The attached copies of AEC regulations—10 CFR Parts 2, 20, 30, 40 and 70—
were referred to by Commissioner Ramey as those which related to the receipt,
use and disposal of source, special nuclear and byproduct material. It should be
noted that there are no specific references in any of these regulations to the
ocean dumping of radioactive waste. (The regulations were placed in the files
of the committee. )
Mr. Evererr. One final question. I was wondering, with respect to
7(b), if you give us any indication as to the number of permits for
ocean dumping of material we might be talking about in the future?
Mr. Ramey. We will be glad to do this. I would say there will be
very few.
Mr. Evererr. But you will supply that for the record ?
Mr. Ramey. Certainly.
(The information follows:)
All routine dumping of radioactive wastes into the ocean was, for all practical
purposes, discontinued in 1962, when two commercial land burial facilities com-
menced operations. The few remaining licenses, referred to previously, are being
phased out. We do not have plans for issuing licenses for ocean disposal of radio-
active material in the foreseeable future and we hlave no intention of dumping
any such material from our own operations. Thus, the number of permits for
ocean disposal of radioactive material will be zero.
We believe, however. it does not follow that a complete prohibition of ocean
disposal is indicated. Until more is known about the environmental effects of
other types of waste disposal, it is not in the national interest to make a de-
cision at this time which would foreclose a particular disposal, in the future, of
radioactive waste under proper conditions and controls in some part of the ocean.
We have no way of estimating at this time the frequency which such proposals
would be made and, if made, favorably considered.
Mr. Evererr. That is all, Mr. Chairman.
Mr. Dinceitit. Mr. Commissioner, could you tell us, in matters like
ocean dumping, what has been the practice of the Atomic Energy
Commission ?
_ Have you given public notice, and had hearings, or have you simply
issued permits to dump?
Mr. Ramey. Mr. Price, do you want to comment on this?
265
Mr. Price. Mr. Chairman, we have not issued any licenses since
1960, when we stopped that part of the program.
I think the rules still provide that in order to issue a license, for
waste disposal, commercial waste disposal, we have to publish a notice,
and offer a public hearing.
I do not remember what cases ended up in a hearing, if any.
It was 10 years ago. I would have to check the record.
Mr. Dincett. Would you check that, and inform us if you please,
first, what were the requirements with regard to public notice and
hearing, and second, whether in those days, a public hearing was held
on any of the permits which were ultimately issued.
I remember I was a member of this committee, and we had some
very heated discussions with the Atomic Energy Commission on some
dumping off the coast of California. It may be that you remember
those discussions, and there was great displeasure expressed by the
oceanographic subcommittee at that time over the practice of dumping,
and I think that may have contributed at that time to the halting of
dumping off the California coast, and I remember, the California Sal-
vage were the people doing it at that time, am I correct about that?
Mr. Price. I think it was probably another company, Mr. Chair-
man, but I would have to check.
Mr. Dinceiti. Would you get us the information on those?
Mr. Pricr. I would be happy to.
(The information follows:)
RULES OF PRACTICE AUTHORIZING OCEAN DUMPING
The Atomic Energy Commission’s “Rules of Practice,” 10 CFR Part 2, became
effective on March 6, 1956, and provided for notice to others of the filing of the
application as required by Atomic Energy Commission regulations and such
additional notice as it deems appropriate. Although not formally required at
the time, notices of receipt of applications for licenses authorizing sea disposal
of radioactive waste were filed in the Federal Register. Notices of proposed
issuances of such licenses were also published in the Federal Register. The
notices offered the opportunity for public hearings.
The Commission’s ‘Rules of Practice’ have been amended so that the regu-
lation now provides that an applicant for a license authorizing commercial
disposal of waste radioactive material shall serve a copy of the application on
the chief executive of the municipality in which the facility is to be located or
the activity is to be conducted or, if the facility is not to be located or the
activity conducted within a municipality, on the chief executive of the county.
The Governor or other appropriate official of the State is sent a copy of the
application by the AEC and a notice of receipt of the application is published in
the Federal Register.
A hearing on an application for commercial disposal of radioactive waste at
sea is not mandatory. A notice of proposed action is required to be published in
the Federal Register which provides the opportunity for any person whose
interest may be affected by the proceeding to file a petition for leave to inter-
vene within 15 days from the date of publication in the Federal Register. At
the time the notice of proposed action is published in the Federal Register,
State and local officials are notified of the proposed action and ‘a public announce-
ment concerning the proposed action is issued by the AKC.
If no requests for leave to intervene are received, a notice of issuance of the
license is published in the Federal Register and State and local officials are
notified of the license issuance.
There have been two hearings relating to applications for licenses authorizing
sea disposal of radioactive wastes.
1. A hearing was held on November 19, 1958, on the application filed by the
Walker Trucking Company, which requested authority to establish a waste
storage facility in Portland, Connecticut, and to dispose of radioactive waste at
62-513 O—71——18
266
sea. Subsequent to the hearing, the license was granted on March 18, 1959.
Walker Trucking Company never disposed of any radioactive waste at sea. On
April 9, 1964, Walker Trucking Company withdrew its request for authority to
dispose of radioactive waste at sea; a license amendment issued November 27,
1964, deleted sea disposal.
2. A hearing was held on January 22 and 23, 1959, in Houston, Texas, on an
application filed by Industrial Waste Disposal Corporation, Houston, Texas,
which requested authorization to dispose of radioactive waste in the Gulf of
Mexico. The Initial Decision by the Hearing Examiner on May 29, 1959, granted
the license. After review by the Commission, the matter was remanded to the
Hearing Examiner to take testimony concerning the integrity of low-level waste
containers after their disposal in the Gulf of Mexico. On April 20, 1962, the Com-
mission denied the application for disposal of radioactive waste in the Gulf of
Mexico because of objections by the Government of Mexico.
The following licensees have disposed of radioactive waste off the coast of
California :
. Chevron Research Company, Richmond, California.
Coastwise Marine Disposal Corp., Long Beach, California.
. Isotopes Specialties Company, Burbank, California.
U.S. Naval Radiation Development Laboratory, San Francisco.
. Nuclear Engineering Company, Walnut Creek, California.
Ocean Transport Company, Richmond, California.
Mr. DineEtyt. Gentlemen, the committee wishes to thank you for
your statement, and for your being here on short notice.
We are very grateful to you. You have been very helpful. We have
had a very vigorous and enlightened discussion.
We will take our next witness this afternoon at 1:45, and the staff
will notify the members of the committee as to the hour.
The committee stands in recess.
(Whereupon, the subcommittee recessed at 12:30 o’clock p.m.)
OD OUP 9 DD
AFTERNOON SESSION
Mr. Dinceiu. The subcommittee will come to order.
This is a continuation of the hearings begun yesterday on the sub-
ject of dumping of waste materials of different kinds in the ocean.
Our first witnesses this afternoon are witnesses on behalf of the In-
terior Department, Mr. Harrison Loesch, Assistant Secretary for Pub-
lic Lands Management.
Mr. Loesch, we are happy to welcome you to the committee. The
Chair notes that you have with you an old friend of the present occu-
pant of the Chair, Mr. Linduska. If you will identify yourself and
Mr. Linduska for the purposes of the record, we will be most happy to
listen to any statement you choose to give.
STATEMENT OF HON. HARRISON LOESCH, ASSISTANT SECRETARY
FOR PUBLIC LANDS, 0F THE DEPARTMENT OF THE INTERIOR,
ACCOMPANIED BY DR. JOSEPH P. LINDUSKA, SPECIAL DIRECTOR,
BUREAU OF SPORT FISHERIES AND WILDLIFE, DEPARTMENT
OF THE INTERIOR
Mr. Lorscu. Thank you very much, Mr. Chairman. I appreciate
very much being before the committee.
Tam Harrison Loesch, and I have with me Dr. Joseph P. Linduska,
Associate Director, Bureau of Sport Fisheries and Wildlife.
T am sure, Mr. Chairman, that Dr. Linduska will be able to give me
the expertise here which I personally lack.
267
Mr. Drncett. I have always found you a capable witness.
Mr. Lorscu. Thank you, sir.
Mr. Chairman, my statement, as you may have noticed, is a rather
general one, and unless the Chair prefers otherwise, I would just as
soon have it placed in the record, and highlight it very briefly.
Mr. Dinceti. Without objection, that is ordered and while we are
discussing matters of that sort, Mr. Loesch, I will observe that the In-
terior Department has submitted to this committee a series of reports
on legislation before us. I will tell you that you are the first, and the
only department which has done so, and I must confess it is with a
measure of pleasure that I compliment you and regretfully observe
that other agencies have not carried out their duties in the same
fashion.
Mr. Lorscu. I must say, Mr. Chairman, that that is a compliment I
am not really used to receiving. Before certain other committees of
this House, I am quite often criticized because the reports didn’t get
there until I did. I appreciate it.
Well, Mr. Chairman, my report, of course, adverts to the dangers
and damages of dumping in the ocean, which I think this committee is
especially very well acquainted with already. I think we need not go
into the general nature of the damage and pollution which the legisla-
tion before this committee is designed to correct.
We especially are commenting on H.R. 4247 and H.R. 4723, now
pending before the full committee, which is the result of cooperation
between a number of the Federal agencies, including our own.
And those bill vest, of course, in the Administrator of the EPA the
authority to control the ocean dumping through permits and enforce-
ment of prohibitions against unauthorized transport or dumping of
waste materials.
In determining whether or not to approve the permit applications
provided for by the legislation, the Administrator would have to con-
sider the impact of dumping on the marine environment and human
welfare, and other possible locations and methods of disposal, includ-
ing land based alternatives.
To my mind, it is quite similar to the situation under the National
Environmental Policy Act, which requires us in performing any or in
studying any proposal to consider all possible alternatives which might
have a less adverse effect or no effect at all upon the environment.
I haven’t any doubt, though I am not acquainted with what has gone
on before in this hearing before this committee, that the Environ-
mental Protection Agency has presented the specific of this mat-
ter, and I think we should note that the proposal by that agency in-
corporates several provisions of the other bills, of which I believe, if I
am not mistaken, there are about 20, altogether.
Mr. Dincext. At least.
Mr. Lorscu. The comprehensive framework provided by these two
bills, we wish to support. We believe that the consultation provided for
in the act between the Administrator and the Department of the Inte-
rior and others, would establish the proper criteria, and would afford
our Department an opportunity to contribute the knowledge and ex-
pertise of the marine environment that we have, and to seek the pro-
tection of wildlife, minerals, recreation resources, for which we have
the primary responsibility.
268
In this connection, we agree with the Council on Environmental
Quality that regulatory authority should be vested in an agency whose
chief role is the enforcement of environmental standards.
Amendment of the Fish and Wildlife Coordination Act, as several
bills, propose, would tend to disperse the regulatory authority and to
discourage effective coordination with air and water quality programs
already administered by EPA, and, of course, since the loss by the
Interior Department of the Bureau of Commercial Fisheries and
FWQA, an amendment of the Fish and Wildlife Coordination Act
would not at this time appear to be very productive, especially in view
of the possibility of further reorganization of the executive branch of
the Government.
That concludes a summary of my formal statement, Mr. Chairman,
and I am prepared to answer questions 1f I can.
Mr. Dinceuu. The Chair thanks you for a very helpful statement,
Mr. Loesch.
Mr. Drncett. The Chair notes also that we have the reports from
your agency, which the Chair without objection directs the staff to
insert into the record at a place appropriate, together with such other
reports as may be received from the agencies of the executive branch.
There is also a letter from the Attorney General relative to this
matter, which the Chair without objection directs the staff to insert
in the record at the appropriate point.
Mr. Pelly?
Mr. Prtuy. Mr. Secretary, you support this bill without equivoca-
tion, and I am going to quit while I am ahead.
I don’t want to invite any questions which might in any way cause
you to weaken as far as your support is concerned. I think you made a
fine statement, and we are very happy to have it.
Mr. Lorscu. I hope, Mr. Pelly, that any questions you might ask
would not have that effect.
Mr. Petiy. Thank you.
Mr. Dinceti. Thank you very much, Mr. Pelly.
Mr. Loesch, the Chair wishes you and your able associate there,
Dr. Linduska, to direct your attention very carefully to the Fish and
Wildlife Coordination Act, and to the agreement that was executed
by and between your agency and the Department of the Army rela-
tive to dredging, filling and dumping.
Would it be too much to ask that you submit to us a copy of that
agreement which I am satisfied is in the files of your agency for pur-
poses of inclusion in the record at this particular point?
Mr. Lorscu. I am sure we can do so.
(Document referred to follows :)
MEMORANDUM OF UNDERSTANDING BETWEEN THE SECRETARY OF THE INTERIOR AND
THE SECRETARY OF THE ARMY
In recognition of the responsibilities of the Secretary of the Army under sec-
tions 10 and 13 of the Act of March 3, 1899 (33 U.S.C. 403 and 407), relating to
the control of dredging, filling, and excavation in the navigable waters of the
United States, and the control of refuse in such waters, and the interrelationship
of those responsiblities with the responsibilities of the Secretary of the Interior
under the Federal Water Pollution Control Act, as amended (33 U.S.C. 466
et seq.) the Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661-—
666c), and the Fish and Wildlife Act of 1956, as amended (16 U.S.C. T42a
269
et seq.) relating to the control and prevention of water pollution in such waters
and the conservation of the Nation’s natural resources and related environment,
including fish and wildlife and recreational values therein ; in recognition of our
joint responsibilities under Executive Order No. 11288 to improve water quality
through the prevention, control, and abatement of water pollution from Federal
and federally licensed activities; and in recognition of other provisions of law
and policy, we, the two Secretaries, adopt the following policies and procedures:
POLICIES
1. It is the policy of the two Secretaries that there shall be full coordination
and cooperation between their respective Departments on the above responsibili-
ties at all organizational levels, and it is their view that maximum efforts in the
discharge of those responsibilities, including the resolution of differing views,
must be undertaken at the earliest practicable time and at the field organiza-
tional unit most directly concerned. Accordingly, District Engineers of the U.S.
Army Corps of Engineers shall coordinate with the Regional Directors of the
Secretary of the Interior on fish and wildlife, recreation, and pollution problems
associated with dredging, filling. and excavation operations to be conducted
under permits issued under the 1899 Act in the navigable waters of the United
States, and they shall avail themselves of the technical advice and assistance
which such Directors may provide.
2. The Secretary of the Army will seek the advice and counsel of the Secretary
of the Interior on difficult cases. If the Secretary of the Interior advises that
proposed operations will unreasonably impair natural resource or the related
environment, ineluding the fish and wildlife and recreational values thereof, or
will reduce the quality of such waters in violation of applicable water quality
standards, the Secretary of the Army in acting on the request for a permit will
earefully evaluate the advantages and benefits of the operations in relation to
the resultant loss or damage, including all data presented by the Secretary of
the Interior, and will either deny the permit or include such conditions in the
permit as he determines to be in the public interest, including provisions that
will assure compliance with water quality standards established in accordance
with law.
PROCEDURES FOR CARRYING OUT THESE POLICIES
1. Upon receipt of an application for a permit for dredging. filling. excavation.
or other related work in navigable waters of the United States, the District
Engineers shall send notices to all interested parties. including the appropriate
Regional Directors of the Federal Water Pollution Control Administration, the
United States Fish and Wildlife Service, and the National Park Service of the
Department of the Interior. and the appropriate State conservation, resources,
and water pollution agencies.
2. Such Regional Directors of the Secretary of the Interior shall immediately
make such studies and investigations as they deem necessary or desirable, consult
with the appropriate States agencies. and advise the District Engineers whether
the work proposed by the permit applicant. including the deposit of any material
in or near the navigable waters of the United States, will reduce the quality
of such waters in violation of app'icable water quality standards or unreason-
ably impair natural resources or the related environment.
3. The District Engineer will hold public hearings on permit applications
whenever response to a public notice indicates that hearings are desirable to
afford all interested parties full opportunity to be heard on objections raised.
4. The District Engineer, in deciding whether a permit should be issued, shall
weigh all relevant factors in reaching his decision. In any case where Directors
of the Secretary of the Interior advise the District Engineers that proposed work
will impair the water quality in violation of applicable water quality standards
or unreasonably impair the natural resources or the related environment, he
shall, within the limits of his responsibility, encourage the applicant to take steps
that will resolve the objections to the work. Failing in this respect, the District
Engineer shall forward the case for the consideration of the Chief of Engineers
and the appropriate Regional Director of the Secretary of the Interior shall sub-
mit his views and recommendations to his agency’s Washington Headquarters.
5. The Chief of Engineers shall refer to the Under Secretary of the Interior
all those cases referred to him containing unresolved substantive differences of
270
views and he shall include his analysis thereof, for the purpose of obtaining the
Department of Interior’s comments prior to final determination of the issues.
6. In those eases where the Chief of Engineers and the Under Secretary are
unable to resolve the remaining issues, the cases will be referred to the Secretary
of the Army for decision in consultation with the Secretary of the Interior.
7. If in the course of operations within this understanding, either Secretary
finds its terms in need of modification, he may notify the other of the nature of the
desired changes. In that event the Secretaries shall within 90 days negotiate such
amendment as is considered desirable or may agree upon termination of this
understanding at the end of the period.
(S) Stewart L. Udall,
Secretary of the Interior.
JULY 13, 1967.
(S) Stanley Resor,
Secretary of the Army.
JULY 13, 1967.
Mr. Dinceutu. The Chair regards that as very important, because
the Chair is very interested in observing with some care, one, whether
the Fish and Wildlife Coordination Act is in any way amended,
altered, or repealed by the legislation before us, and two, whether or
not the memorandum of agreement would in any way be affected,
altered, superseded, or changed by the legislation that is before us.
Are you able to give us your interpretation of whether or not the
legislation before us, specifically the administration’s bill, or identical
measures, would in any fashion alter or amend or change, first of all,
the Fish and Wildlife Coordination Act?
Mr. Lorscu. The legislative counsel of the Department advises me,
Mr. Chairman, that 1t will not.
Mr. Dinecetu. In no fashion whatsoever ?
Mr. Lorscu. In no way. Am I correct?
Dr. LinpusKxa. That is correct.
Mr. Dinceti. Now can you give us your understanding of the
impact of this legislation on the agreement between the Fish and Wild-
life and the Interior Department on the one side, and the Department
of the Army Corps of Engineers on the other regarding dumping,
dredging, and filling ?
Or is it your impression that that legislation as construed by the
Boca Ciega case, carried forward, unimpeded, unimpaired, and unaf-
fected under the legislation before us, under the new kind of permit
which would be issued by EPA for similar ocean dumpings?
Mr. Lorscu. Yes, it is my impression, Mr. Chairman, that the old
agreement, the agreement we have, would remain in full force and
effect without alteration.
Dr. Linduska, do you have a comment?
_ Dr. LainpusKa. We have had no reason to believe it would be changed
in any way, up to this point, Mr. Chairman.
Mr. DrnceLy. Very well. The Chair is going to direct the staff to see
to it that the Supreme Court case, it finally deciding the Boca Crega
case, be inserted in the record at this point, so as to make very clear
precisely the case, the agreement, and the statute to which you and I
have been allowed in our colloquy at this time, for purposes of estab-
lishing a firm and a hard and very clear legislative record.
(The document follows :)
271
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
No. 27555
ALFRED G. ZABEL and DAVID H. RUSSELL,
Plaintiffs-Appellees,
versus
R. P. TABB, COLONEL, CORPS OF ENGINEERS,
DISTRICT ENGINEER, DEPARTMENT OF THE ARMY,
JACKSONVILLE, FLORIDA, DISTRICT;
_ STANLEY R. RESOR, SECRETARY OF THE ARMY;
AND UNITED STATES OF AMERICA,
Defendants-Appellants.
Appeal from the United States District Court for the
Middle District of Florida
(July 16, 1970)
Before BROWN, Chief Judge, TUTTLE and MORGAN,
\ Circuit Judges.
BROWN, Chief Judge: It is the destiny of the Fifth
Circuit to be in the middle of great, oftentimes explo-
Sive issues of spectacular public importance. So it is
here as we enter in depth the contemporary interest
272
in the preservation of our environment. By an injunc-
tion requiring the issuance of a permit to fill in eleven
acres of tidelands in the beautiful Boca Ciega Bay
in the St. Petersburg-Tampa, Florida area for use as
a commercial mobile trailer park, the District Judge
held that the Secretary of the Army and his function-
ary, the Chief of Engineers, had no power to consider
anything except interference with navigation. There
being no such obstruction to navigation, they were or-
dered to issue a permit even though the permittees
acknowledge that “there was evidence before the Corps
of Engineers sufficient to justify an administrative a-
gency finding that [the] fill would do damage to the
ecology or marine life on the bottom.” We hold that
nothing in the statutory structure compels the Secre-
tary to close his eyes to all that others see or think
they see. The establishment was entitled, if not re-
quired, to consider ecological factors and, being per-
suaded by them, to deny that which might have been
granted routinely five, ten, or fifteen years ago before
man’s explosive increase made all, including Con-
gress, aware of civilization’s potential] destruction from.
breathing its own polluted air and drinking its own
infected water and the immeasurable loss from a si-
lent-spring-like disturbance of nature’s economy. We
reverse.
I
| Genesis: The Beginning
In setting the stage we draw freely on the Govern-
ment’s brief. This suit was instituted by Landholders,
273
Zabel and Russcll, on May 10, 1967, to compel the
Secretary of the Army to issue a permit to dredge
and fill in the navigable waters of Boca Ciega Bay,
in Pinellas County near St. Petersburg, Florida. On
August 15, 1967, the United States and its officers, De-
fendants-Appellants, filed a motion to dismiss the suit
for lack of jurisdiction which was denied. The United
States and other defendants then answered the com-
plaint alleging lack of jurisdiction and that the Court
lacks power to compel a discretionary act by the Secre-
tary of the Army. The United States and other defend-
ants moved for summary judgment. Landholders, Za-
bel and Russell, also moved for summary judgment.
After a hearing, the District Court, on February 17,
1969, granted summary judgment for Landholders and
directed the Secretary of the Army to issuc the permit.
It granted a stay of execution of the judgment until
this appeal could be heard and decided. We invert
the summary judgments, reversing Appellees and ren-
dering judgment for the United States.
Landholders own land riparian to Boca Ciega Bay
and adjacent land underlying the Bay. It is navigable
water of the United States, being an arm of Tampa
Bay which opens into the Gulf of Mexico. The Zabel
and Russell property is located about one mile from
the Intracoastal Waterway.
Landholders desire to dredge and fill on their prop-|
erty in the Bay for a trailer park, with a bridge or
culvert to their adjoining upland. To this purpose they
first applied to the state and loca] authorities for per-
mission to perform the work and obtained the consent
274
or approval of all such agencies having jurisdiction
to prohibit the work, namely Pinellas County Water
and Navigation Control Authority (which originally re-
jected permission, but ultimately issued a permit pur-
suant to state Court order),' Trustees of the Internal
Improvement Fund of the State of Florida, Central
and South Florida Flood Control District, and Board
of Pilot Commissioners for the Port of St. Petersburg.
Landholders then applied to the Corps of Engineers
for a federal permit to perform the dredging and filling.
The Pinellas County Water and Navigation Contro] Au-
thority (which originally rejected permission, but ul-
timately issued a permit pursuant to state Court order)
continued to oppose the work as did the Board of County
Commissioners of Pinellas County, who also comprise
the Pinellas County Water and Navigation Control Au-
thority, the County Health Board of Pinellas County,
the Florida Board of Conservation, and about 700 in-
1The Authority’s denial of a permit was affirmed by the Florida
District Court of Appeal in Zabel v. Pinellas County Water &
Navigation Contro} Authority, Fla. Ct. App., 1963 154 So.2d
181. The Supreme Court of Florida reversed that decision be-
cause Zabel had been required by the Authority to show that
there would be no adverse effect on the public interest, rather
than the burden of adverse effect being placed on the Authority.
It held that on this record there was insufficient showing of
adverse effect, so that denial of a permit would be a taking of
property without compensation. It said (p. 381). “In view of
the foregoing, the decision appealed from is quashed and the
cause remanded for disposition consistent herewith.” Zabel v.
Pinellas County Water & Nav. Con. Auth., Fla., 1965, 171 So.2d
376. Against the Authority’s contention that this ruling intended
further proceedings on the application, to accord it a chance
to establish adverse effect, the District Court of Appeal direct-
ed issuance of a permit. Pinellas County Water & Nav. Con.
Auth, v. Zabel, Fla. Ct. App., 1965, 179 So.2d 370.
275
dividuals who filed protests. The United States Fish
and Wildlife Service, Department of the Interior, also
opposed the dredging and filling because it “would
have a distinctly harmful! effect on the fish and wildlife
resources of Boca Ciega Bay.”
A public hearing was held in St. Petersburg in No-
vember, 1966, and on December 30, 1966, the District
Engineer at Jacksonville, Florida, Colonel Tabb, rec-
ommended to his superiors that the application be de-
nied. He said that “The proposed work would have
no material adverse effect on navigation”? but that:
“Careful consideration has been given to the
general public interest in this case. The virtual-
ly unanimous opposition to the proposed work
as expressed in the protests which were re-
ceived and as exhaustively presented at the
' public hearing have convinced me that approv-
al of the application would not be in the public
interest. The continued opposition of the US.
Fish & Wildlife Service despite efforts on the
part of the applicants to reduce the extent of
damage leads me to the conclusion that ap-
proval of the work would not be consistent with
the intent of Congress as expressed in the Fish
& Wildlife Coordination Act, as amended, 12
August 1958. Further, the opposition of the
State of Florida and of county authorities as
2There was evidence both that it would aid navigation and that it
would obstruct navigation. There was similar evidence on pollu-
_tion.
276
described in paragraph 5 above gives addition-
al support to my conclusion that the work
should not be authorized.”
‘The Division Engineer, South Atlantic Division, Atlan-
ta, Georgia, concurred in that recommendation stat-
ing: “In view of the wide spread opposition to the
‘proposed work, it is apparent that approval of the ap-
‘plication would not be in the public interest.” The Chief
of Engineers concurred for the same reasons. Finally,
the Secretary of the Army denied the application on
February 28, 1967, because issuance of the requested
permit:
1. Would result in a distinctly harmful ef-
fect on the fish and wildlife resources in Boca
Ciega Bay,
2. Would be inconsistent with the purposes
of the Fish and Wildlife Coordination Act of
1958, as amended (16 U.S.C. 662),
3. Is opposed by the Florida Board of Con-
servation on behalf of the State of Florida, and
by the County Health Board of Pinellas County
and the Board of County Commissioners of
Pinellas County, and
\
4. Would be contrary to the public interest.
Landholders then instituted this suit to review the
Secretary’s determination and for an ‘order compelling
him to issue a permit. They urged that the proposed
200
work would not hinder navigation and that the Secre-
tary had no authority to refuse the permit on other
grounds. They acknowledged that “there was evidence
before the Corps of Engineers sufficient to justify an
administrative agency finding that our fill would do
damage to the ecology or marine life on the bottom.”
The Government urged lack of jurisdiction and sup-
ported the denial of the permit on authority of $10
of the Rivers and Harbors Act of March 3, 1899, 30
Stat. 1121, 1151, 33 U.S.C.A. § 403, giving the Secretary
discretion to issue permits and on the Fish and Wild-
life Coordination Act of March 10, 1934, 48 Stat. 401,
as amended, 16 U.S.C.A. §§ 661 and 662 (a), requiring
the Secretary to consult with the Fish and Wildlife
Service and state conservation agencies before issuing
a permit to dredge and fill.
The District Court held that it had jurisdiction, that
the Fish and Wildlife Coordination Act was not authori-
ty for denying the permit, and that:
“The taking, control or limitation in the use
of private property interests by an exercise of
the police power of the government or the pub-
lic interest or general welfare should be auth-
orized by legislation which clearly outlines pro-
cedure which comports to all constitutional
standards. This is not the case here.
As this opinion is being prepared the Con-
gress is in session. Advocates of conservation
' ‘are both able and effective. The way is open to
obtain a remedy for future situations like this
278
one if one is needed and can be legally granted
by the Congress.”
The Court granted summary judgment for Landholders
and directed the Secretary of the Army to issue the
permit. This appeal followed.
The question presented to us is whether the Secretary
of the Army can refuse to authorize a dredge and
fill project in navigable waters for factually substan-
tial ecological reasons even though the project would
not interfere with navigation, flood control, or the pro-
duction of power. To answer this question in the affirm-
ative, we must answer two intermediate questions af-
firmatively. (1) Does Congress for ecological reasons
have the power to prohibit a project on private riparian
submerged land in navigable waters? (2) If it does,
has Congress committed the power to prohibit to the
Secretary of the Army?
II
Constitutional Power
The starting point here is the Commerce Clause®
and its expansive reach. The test for determining
whether Congress has the power to protect wildlife
in navigable waters and thereby to regulate the use
of private property for this reason is whether there
3“The Congress shall have power to regulate Commerce with foreign
nations, and among the several states, and with the Indian |
Tribes.” U.S. Const. Art. J, § 8, Cl. 3.
279
is a basis for the Congressional judgment that the ac-
tivity regulatec has a substantial effect on interstate
commerce. Wickard v. Filburn, 1942, 317 U.S. 111, 125,
63 S.Ct. 82, , 87 L.Ed. 122, 135. That this activity
meets this test is hardly questioned.* In this time of
awakening to the reality that we cannot continue to
despoil our environment and yet exist,> the nation
knows, if Courts do not, that the destruction of fish
and wildlife in our estuarine waters does have a sub-
stantial, and in some areas a devastating, effect on
interstate commerce. Landholders do not contend oth-
erwise. Nor is it challenged that dredge and fill projects
4Landholders cite Weber v. State Harbor Comm’rs, 1873, 85 U.S.
(18 Wall.) 65, 21 L.Ed. 798 and United States v. River Rouge
Improvement Co., 1926, 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed.
339 as limiting the power of the Federal Government over
navigable waters to control for navigational purposes. Not sur-
prisingly, the narrow view these cases take of the commerce
clause is pre-United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct.
451, 85 L.Ed. 609.
sComplcte documentation of the concern over environmental prob-
lems would surely be voluminous, but it is indirectly evidenced
by the amount of very recent legal activity. See National En-
vironmental Policy Act of 1969. Pub. Law 91-190 (Jan. 1, 1970),
infra note 24; Our Waters and Wetlunds: How the Corps of En-
gineers Can Help Prevent Their Destruction and Pollution, H.
Rep. 91-917, 91st Cong., 2d Sess, March 18, 1970, infra text at
note 26; Executive Order 11507, Feb. 4, 1970, 38 L.W. 2436;
United States v. Ray, 5 Cir., 1970, F.2d {No. 27888,
Jan. 22, 1970]; E.B. Elliott Advertising Co. v. Hill, 5 Cir., 1970,
F.2d [No. 27589, April 3, 1970]; Citizens Committee —
for the Hudson Valley v. Volpe, S.D.N.Y., 1969, 302 F. Supp.
1083, aff’d, 2 Cir., 1970, F.2d -[No. 428-33, April
16, 1970]; National Advertising Co. v. Monterey, Calif., 1970,
Calif. Rptr. (38 L.W. 2433, Jan. 30, 1970; MacGib-
bon v. Duxbury Board of Appcals, Mass., 1970, N.E.2d
——. [38 L.W. 2429, Jan. 29, 1970); California v. SS Bournemouth,
C.D. Cal, 1969, 307 F. Supp. 922; Creation of ABA Special
Committee on Environmental Quality, 15 Am. Bar News No.
3, March 1970.
280
are activities which may tend to destroy the ecological
balance and thereby affect commerce substantially.
Because of these potential effects Congress has the
power to regulate such projects.
III
Relinquishment of the Power
Landholders do not challenge the existence of power.
They argue that Congress in the historic compromise
over the oil rich tidelands controversy abandoned its
power over other natural resources by the relinquish-
ment to the states in the Submerged Lands Act.* By
it they urge the Government stripped itself of the power
to regulate tidelands property except for purposes re-
lating to (i) navigation, (ii) flood control, and (iii)
hydroelectric power. This rests on the expressed Con-
gressional reservation of control for these three pur-
poses over the submerged lands, title to and power
over which Congress relinquished to the states.”
643 U.S.C.A. § 1301, et seq. See Continental Oil Co. v. London
Steamship Owners’ Mut. Ins. Ass’n., 5 Cir., 1969, 417 F.2d 1030,
A.M.C. ———, cert. denied, 1970, U.S. ;
S.Ct. ___, 25 L.Ed.2d 92, A.M.C. ———; Atlantis Devel-
opment Corp. v. United States, 5 Cir., 1967, 379 F.2d 818.
.7The relinquishing provision states, 43 U.S.C.A. § 1311 (a) and (b):
(a) It is determined and declared to be in the
public interest that (1) title to and ownership of the
lands beneath navigable waters within the boundaries
of the respective States, and the natural resources
within such lands and waters, and (2) the right and
power to manage, administer, lease, develop, and use
the said lands and natural resources all in accord-
ance with applicable State law be, and they are, sub-
ject to the provisions hereof, recognized, confirmed,
281
The argument assumes that when Congzess relin-
quished title to the land and the right and power to
Manage and use the land, it relinquished its power
under the commerce clause except in particulars (i),
(ii), and (iii). It also assumes that reservation of these
three enumerated aspects of the commerce powcr im-
plied that Congress gave up its plenary power over
the myriad other aspects of commerce. See, e.g., Heart —
of Atlanta Motel, Inc. v. United States, 1964, 379 U.S.
established, and vested in and assigned to the respcc-
tive States or the persons who were on June 5, 1950,
entitled thereto under ihe Jaw of the respective Stites
in which the Jand is located, and the respective grant-
ees, lessees, or successors in interest thercof;
(b) (1) The United States releases and relinquishes
unto said States and persons g¢foresaid, except as other-
wise rescrved herein, all right, title, and interest of
the United States, if any it has, in and to all Se
lands, improvements, and natural resourccs * * *.’
The reservation provision referred to states, 43 U.S.C.A.
§ 1311 (d):
“(d) Nothing in this chapter shall affect the use,
development, improvement, or control by or under
the constitutional authority of the United States of said
lands and waters for the purposes of navigation or
flood control of the production of power, or be constru-
ed as the release or relinquishment of any rights of the
United States arising under the constitutional authority
of Congress to regulate or improve navigation, or to
provide for flood control, or the production of pow-
er se ¢ eu
The term “natural resources” is broadly defined to include
both the animate and inanimate:
“The term ‘natural resources’ includes, without
limiting the generality thereof, oil, gas, and all other
minerals, and fish, shrimp, oysters, clams, crabs, lob-
sters, sponges, kelp, and other marine animal and
plant life but does not include water powcr, or the
use of water for the production of power;”
43 U.S.C.A. § 1301 (e)
62-513 O - 71 - 19
282
2A1, 58 S.Ct. 348, 13 L.Ed.2d. 258; Katzenbach v. Mc-
Clung, 1964, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290.
A nice argument can be contrived that the net ef-
fect of these provisions was to vest in the adjacent
states [1] title in these tidelands and their natural
resources ‘and |2] [a] the exclusive power to use,
exploit and manage these lands [b] only subject to
the reserved power of the Federal government regard-
ing (i) navigation, (ii) flood control, and (iii) produc-
tion of power. Certainly, this brief synopsis of (1) and
(2) (a) is the literal import of $1311 (a) (1) (2). Like-
wise, the reservation summarized as (2) (b) is literally
specified in § 1311 (d). On this approach, the Federal
Government turned over to adjacent states the full.
management and use of the tidelands reserving only
those limited powers over commerce comprehended
within the three particulars.
But this argument ignores both language found else-
where and the legislative purpose of the Act. The con-
troversy, often pressed with emotional] overtones, was
over oil and gas and whether the states were to reap
the economic benefits of development royalties and
to regulate the exploration and devclopment or wheth-
er these benefits and these controls were to be exer-
ciscd by the Federal Government as an adjunct of
then newly declarcd “paramount rights”, United
States v. California, 1947, 332 U.S. 804, 805, 68 S.Ct.
20, _. _-_, 92 L.Ed. 382, 383. The Act and this relinquish-
ment reflect ithe legislative compromise found in the
combination of the Submerged Lands Act and the Outer
283
Continental Shelf Act.2 The adjacent states were to
be the “owner” of the resources and reap exclusively
the economic benefits of resources in the tidelands
and have full control over management and exploita-
tion. The Federal government, on the other hand, was
given exclusive ownership and control vis-a-vis the
states in the Outer Continental Shelf.
Although it was easy to make this division, the na-
ture of the physical area of the controversy presented
immediate operational problems growing out of the
water. The Federal government’s traditional concern
with navigation, especially on the high seas, its later
but then quite extensive concern in flood control, hydro-
electric power production, and the frequent combina-
tion of both under grandiose projects of a Corps of
Engineers, raised specific problems calling for accom-
modation of the (i) sweeping Federal divestiture and
(ii) the continued fulfillment of the Federal govern-
ment’s role in these activities. Thus, for example, the
states’ exclusive right to grant exploration privileges,
determine the location and spacing of development
wells or drilling platforms posed prospects of mari-
time hazards. Without imposing its own notions of how
development vught io be conducted, restricted, expand-
ed, or controlled, the Federal government had to have,
and reserved expressly this power even to prohibit
a drilling rig platform at a particular location These
specific reservations eliminated these frequent and ex-
tensive activities as a source of further state versus
national controversy.
843 U.S.C.A. § 1331, et. seq.
284
. Whatever remaining doubt there might be on this
reading was expressly eliminated by Janguage in
§ 1314 (a) which specifically retains in the Federal
government “all of its * ** rights in and powers of
regulation and control of said lands and *** waters
for the constitutional purposes of commerce ** *” 43
U.S.C.A. § 1314 (a).2 This section, which encompasses
and pervades the entire Act, makes it clear that Con-
gress intended to and did retain all its constitutional
powers over commerce and did net relinquish certain
portions of the power by specifically reserving oth-
ers.'°
9 “The United States retains all its navigational servi-
tude and rights in and powers of regulation and con-
trol of said lands and navigable waters for the consti-
tutional purposes of commerce, navigation, national
defense, and international affuirs, all of which shall
be paramount to, but shall not be deemed to include,
proprietary rights of ownership, or the rights of man-
agement, administration, leasing, use, and dcvelop-
ment of the lands and natural resources which are
specifically recognized, confirmed, established, and
vested in and assigned to the respective States and
others by section 1311 of this title.”
43 U.S.C.A. § 1314 (a).
solt is argued that the retention in § 1314(a) is limited to the three
aspects ecnumcrated in § 1311(d) by the words “[the com-
merce power] shall be paramount to, but shaJ] not be deemed
to include [relinquished rights].”’ But we have already shown
that the cnumcration of these three, which are explicitly stated
because they are particularly relevant to the regulation of
land lying under naviyable waters, does not imply that Con-
gressional power over other types of commerce was among
the rights relinquished. Because Congress did not give up any
of its power over all of interstate commerce in § 1311 (see
note 7, supra), they arc not “[reiinquished rights]” and the
limitation portion of § 1314(a) is inapplicable.
T’o hold otherwisc would render the reservation of constitu-
tional commerce power in § 1314(a) a useless reiteration of
285
All of this is additionally borne out by the legislative
history'' and United States v. Rands, 1967, 389 U.S.
121, 127, 88 S.Ct. 265, , 19 L.Ed.2d 329, 335:
“Finally, respondents urge that the Govern-
ment’s position subverts the policy of the Sub-
merged Lands Act, which confirmed and vest-
ed in the States title to the lands beneath navi-
gable waters within their boundaries and to na-
tural resources within such lands and waters,
together with the right and power to manage,
develop, and use such lands and natural re-
sources. However, reliance on that Act is mis-
placed, for it expressly recognized that the
United States retained all its navigational
servitude and rights in and powers of regula-
tion and control] of said lands and navigable
waters for the constitutional purposes of com-
merce, navigation, national defense, and in-
ternational affairs, all of which shall be para-
mount to, but shall not be deemed to include,
the implicdly retained powers in § 1311(d). But to hold that it
is an explicit reservation of all commerce powers gives the
section meaning. The section may be unneeded and overly
cautious in that it reserves a constitutional power that has
never been relinquished, but it should not be read in such a
way as to render it otherwise useless.
“This title does not affect any of the Federal consti-
tutional powers of regulation and control over these
areas within State boundaries. Such powers, as those
over navigation, commerce, national defense, interna-
tional affairs, flood control, and power production
where the United States owns or acquires the water
power.”
H. R. Rep. No. 215, 83d Cong., Ist Sess. (March 27, 1953), 1953
US.C.C. & A.N. 1385, 1389.
286
proprietary rights of ownership .... Nothing
in the Act was to be construed as the release
or relinquishment of any rights of the United
States arising under the constitutional authori-
ty of Congress to regulate or improve naviga-
tion, or to provide for flood control, or the pro-
duction of power. The Act left congressional
power over commerce and the dominant navi-
gational servitude cf the United States precise-
ly where it found them.”
Congress clearly has the power under the Commerce
Clause to regulate the use of Landholders’ submerged
riparian property for conservation purposes and has
not given up this power in the Submerged Lands Act.
IV
Prohibiting Obstructions to Navigation
The action of the Chief of Engineers and the Secre-
tary of the Army under attack rests immediately on
the Rivers and Harbors Act, 33 U.S/C.A. § 403, which
declares that “the creation of any obstruction * **
to the navigable capacity of any of the waters of the
United States is prohibited.’"2 The Act covers both
$2 ‘The creation of any obstruction mot affirmatively
authorized by Congress, to the navigable capacity of
any of the waters of the United Staites is prohibited;
and it shall not be lawful to build er commence the
building of any wharf, pier, dolphin, boom, weir,
breakwater, bulkhead, jetty, or other structures in any
port, roadstead, haven, harbor, canal, navigable river,
or other water of the United States, amtside established
287
building of structures and the excavating and filling
in navigable waters. It is structured as a flat prohibi-
tion unless — the unless being the issuance of approval
by the Secretary after recommendation of the Chief
of Engineers.'* The Act itself does not put any restric-
tions on denial of a permit or the reasons why the
Secretary may refuse to grant a permit to one secking
to build structures on or dredge and fill his own proper-
ty. Although the Act has always been read as temper-
ing the outright prohibition by the rule of reason a-
gainst arbitrary action, the Act does flatly forbid the
obstruction. The administrator may grant permission
on conditions and conversely deny permission when
the situation does not allow for those conditions.
But the statute does not prescribe either generally
or specifically what those conditions may be. The ques-
harbor lines, or where no harbor lines have been
established, except on plans recommended by the Chief
of Engineers and authorized by the Secretary of the
Army; and it shall not be lawful to excavate or fill,
or in any manner to alter or modify the course, lo-
cation, condition, or capacity of, any port, roadstead,
haven, harbor, canal, lake, harbor of refuge, or in-
closure within the limits of any breakwater, or of the
channel of any navigable water of the United States,
unless the work has been recommended by the Chicf
of Engineers and authorized by the Secretary of the
Army prior to beginning the same.”
33 U.S.C.A. § 403.
$3This Court recently held that under this same section together
with the Outer Continental Shelf Lands Act, 43 U.S.C.A.
§ 1333(f), a permit must be obtaincd before a project can be
begun on the Outer Continental Shelf. United Statcs v. Ray,
supra, note 5, which followed the remand and trial on the
merits in Atlantis Development Corp. v. United States, 5 Cir.,
1967, 379 F.2d 818.
288
tion for us is whether under the Act the Secretary
may include conservation considerations as conditions
to be met to make the proposed project acceptable.
Until now there has been no absolute answer to this
question. In fact, in most cases under the Rivers and
Harbors Act the Courts have been faced only with
navigation problems.” See, e.g. Sanitary Dist. v.
t4Landholders cite authority holding that the Secretary is em-
powered to deny a permit only for navigational reasons, Unit-
ed States Attorney Gencral’s opinion of February 13, 1925, 30
U.S. Atty. Gen. Ops. 410 at 412, 415, 416; WJiami Beach Jockey
Club, Inc. v. Dern, D.C. Cir., 1936, 86 F.2d 135, 136 (on petition
for rehearing). These determinations, by mo mcans inexorable
under the wording of the statute, see Greathouse v. Dern, infra,
pre-date the changes wrought by the Fish and Wildlife Co-
ordination Act, infra.
And they are out of step with the sweeping declaration of
power over commerce in United States v. Appalachian Elec-
tric Power Co., 1940, 311 U.S. 377, 423-27, 61 S.Ct. 291, ___.,
85 L.Ed. 243, 261-63:
“The state and respondent, alike, however, hold the
waters and the lands under them subject to the power
of Congress to control the waters for the purpose of
commerce. The power flows from the grant to regu-
late, iie., to ‘prescribe the rule by which commerce
is to be governed.’ This includes the protection of
navigable waters in capacity as well as use. This power
of Congress to regulate commerce its so unfettered
that its judgment as to whether a structure is or is
not a hindrance is conclusive. Its determination is
legislative in character. The Federal Government has
domination over the water power inherent in the flow-
ing stream. It is liable to no one for its use or non-
use. The flow of a navigable stream is in no sense
private property; ‘that the running water in a great
Navigable stream is capable of private ownership is
inconceivable.’ Exclusion of riparian owners from its
benefits without compensation is entircly within the
Government’s discretion.”
¢ es ¢ s
“In our view, it cannot properly be said that the
constitutional power of the United States over its
289
United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ied.
352; Wisconsin v. Illinois, 1929, 278 U.S. 367, 49 S.Ct.
163, 73 L.Ed. 426; United States v. Republic Steel Corp.,
1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903.
One very big exception is United States ex rel. Great-
house v. Dern, 1933, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed.
1250. There petitioners sought a writ of mandamus
to compel the Secretary of War and the Chief of En-
gineers to issue a permit to build a wharf in navigable
waters. The Secretary, specifically finding that it
would not interfere with navigation, denied the permit.
The Supreme Court held that mandamus would not
issue because the allowance of mandamus “is con-
trolled by cquitable principles *** and it may be re-
. fused for reasons comparable to those which would
lead a Court of equity, in the exercise of a sound dis-
cretion, to withhold its protection of an undoubted legal
waters is limited to control for navigation. By navi-
gation respondent means no more than operation of
boats and improvement of the waterway itself. In
truth the authority of the United States is the regu-
lation of commerce on its waters. Navigability, in the
sense just stated, is but a part of this whole. Flood
protection, watershed development, recovery of the
cost of improvements through utilization of power
are likewise parts of commerce control. * * * That
authority is as broad as the needs of commerce. * * *
The point is that navigable waters are subject to na-
tional planning and control in the broad regulation of
commerce granted the Federal Government. The li-
cense conditions to which objection is made have an
obvious relationship to the exercise of the commerce
power. Even if there were no such relationship the
plenary power of Congress over navigable waters
would empower it to deny the privilege of construct-
ing an obstruction in those waters.”
290
right.” The reason was that the United States had
plans to condemn petitioners’ land for use as a means
of access to a proposed parkway. Allowing a wharf
to be built would increase the expense to the govern-
ment since it would increase the market value of the
land and would require the government to pay for
tearing down the wharf. The importance of Greathouse
is that it recognized that the Corps of Engineers does
not have to wear navigational blinders when it con-
siders a permit request. That there must be a reason
does not mean that the reason has to be navigability.
Another case holds that the Corps has a duty to
consider factors other than navigational. Citizens Com-
mittee for the Hudson Valley v. Volpe, S.D.N.Y., 1969,
302 F.Supp. 1083, aff’d., 2 Cir., 1970 F.2d
(No. 428-33, April 16, 1970]. There the District Court
held that the Corps must consider a fill project in
the context of the entire expressway project of which
it was a part rather than just considering the fill and
its effect on navigation. The reasoning was that the
approval of the Secretary of Transportation was neces-
sary before a proposed causeway could be constructed.
The causeway, along with the fill, was an integral
part of the expressway project. However, if the Corps
and Secretary of the Army approved the fill and the
State completed it, the Secretary of Transportation,
considering the enormous expense of the fill, would
have no choice, other than approving the causeway.
The Army thus had exceeded its authority in approv-
ing the fill on only navigational considerations since
291
approval of the fill was effectually approval of the
causeway.'® din
But such circuity is not neccessary. Governmental
agencies in executing a particular statutory responsi-
bility ordinarily are required to take heed of, some-
times effectuate and other times not thwart other valid
statutory governmental policies. And here the govern-
ment-wide policy of environmental conservation is
spectacularly revealed in at least two statutes, The
Fish and Wildlife Coordination Act'® and the National
Environmental Policy Act of 1969.'7
The Fish and Wildlife Coordination Act'® clearly re-
18The Court essentially held that the Corps, where approval of
Transportation is also required, cannot be oblivious to the
effect of fill projects on the beauty and conservation of natural
resources. This inference arises from the fact that the Secretery
of Transportation is statutorily required to consider conserva-
tion before granting a permit. But if the fill on which the cause-
way was to be built were completed at the time the permit
for the causeway was requested, there would be no conserva-
tion factors for Transportation to consider. The Court held that
the Corps could not blind itself to this fact and thereby cut
off considerations of conservation by granting a fill permit
without Transportation’s approval of the causeway.
16 16 U.S.C.A. §§661-666.
i7Public Law 91-190, 42 U.S.C.A. §§4331-47.
18The Fish and Wildlife Coordination Act states:
“Except as hereafter stated in subsection (h) of this
section [not applicablc], whenever the waters of any
stream or other body of water are proposed or au-
thorized to be impounded, diverted, the channel deep-
ened, or the stream or other body of water otherwise
controlled or modified for any purpose whatever, in-
' cluding navigation and drainage, by any department
or agency of the United States, or by any public or
private agency under Federal permit or license, such
department or agency first shall consult with the
292
quires the dredging and filling agency (under a govern- |
mental permit), whether public or private, to consult
with the Fish and Wildlife Service,'® with a view of
conservation of wildlife resources. If there be any ques-
tion as to whether the statute directs the licensing
agency (the Corps) to so consult it can quickly be
dispelled. Common sense and reason dictate that it
would be incongruous for Congress, in light of the fact
that it intends conservation to be considered in private
dredge and fill operations (as evidenced by the clear
wording of the statute), not to direct the only federal
agency concerned with licensing such projects both
to consult and to take such factors into account.
The second proof that the Secretary is directed and
authorized by the Fish and Wildlife Coordination Act
to consider conservation is found in the legislative his-
tory. The Senate Report on the Fish and Wildlife Co-
ordination Act states:
“Finally, the nursery and feeding grounds of
valuable crustaceans, such as shrimp, as well
United States Fish and Wildlife Service, Department
of the Interior, and with the head of the agency ex-
ercising administration over the wildlife resources of
the particular State wherein the impoundment, diver-
sion, or other control facility is to be constructed, with
a view to the conservation of wildlife resources by
preventing loss of and damage to such resources as
well as providing for the development and improve-
ment thereof in connection with such water-resource
development.”
16 U.S.C.A. § 662(a).
‘i9Presumably Landholders must first obtain the Corps of En-
gineers permit before becoming a “private agency under
Federal permit or license.”
293
as the young of valuable marine fishes, may
be affected by dredging, filling, and diking op-
erations often carried out to improve naviga-
tion and provide new industrial or residential
land.
Existing law has questionable application to
projects of the Corps of Engineers for the
dredging of bays and estuaries for navigation
and filling purposes. More seriously, existing
law has no application whatsoever to the dredg-
ing and filling of bays and estuaries by private
interests or other non-Federal entities in navi-
gable waters under permit from the Corps of
Engineers. This is a particularly serious de-
ficiency from the standpoint of commercial
fishing interests. The dredging of these bays
and estuaries along the coastlines to aid navi-
gation and also to provide land fills for real
estate and similar developments, both by Fed-
eral agencies or other agencies under permit
from the Corps of Engineers, has increased
tremendously in the last 5 years. Obvious-
ly, dredging activity of this sort has a profound
disturbing effect on aquatic life, including
shrimp and other species of tremendous sig-
nificance to the commercial fishing industry.
The bays, estuaries, and related marsh areas
are highly important as spawning and nursery
294
grounds for many commercial species of fish
and shellfish.”?°
S. Rep. No. 1981, 85th Cong. 2d Sess. (July 28, 1958).
1958 U.S.C.C. & A.N. 3446, 3446, 3450. This Report clear-
ly shows that Congress intended the Chief of Engineers
and Secretary of the Army to consult with the Fish
and Wildlife Service before issuing a permit for a pri-
vate dredge and fil] operation.
This interpretation was judicially accepted in Udall
v. FPC:
“Section 2(a), 16 USC § 662(a), provides
that an agency evaluating a license under
which ‘the waters of any stream or other body
of water are proposed ... to be impounded
first shall consult with the United States Fish
and Wildlife Service, Department of the Interi-
or ... with a view to the conservation of wild-
20The Senate Report also shows how the exercise of the commerce
powcr in the conservation arena ties in with its exercise in
other areas:
“The amendments proposed by this bill would rem-
edy these dcficiencies and have several other im-
portant advantages. The aimendments, would provide
that wildlife conservation shall receive cqual consid-
eration with other features in the planning of Fed-
eral water resource development programs. This would
have the effect of putting fish and wildlife on the basis
of equality with flood control, irrigation, navigation,
and hydroelectric power in our water resource pro-
grams, which is highly desirable and proper, and
represents an objective long sought by conservationists
of the Nation.”
1958 U.S.C.C. & A.N. at 2459.
295
life resources by preventing loss of and dam-
age to such resources .... Certainly the wild-
life conservation aspect of the project must be
explored and evaluated.”
1967, 387 U.S. 428, 443-44, 87 S.Ct. 1712, 18 L.Ed.2d
869, 879.
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OCEAN DUMPING OF WASTE MATERIALS
WEDNESDAY, APRIL 7, i971
Housr or RepresENTATIVES,
JOINT SUBCOMMITTEES ON OCEANOGRAPHY
AND Fisnertms AND Winprire CONSERVATION,
Washington, D.C.
The joint subcommittees met, pursuant to adjournment at, 1.0, ati.
in room 1334, Longworth House Office Building, Fon. « John D. Dingell
(chairman of the Subcommittee on Fisheries and Wildlife Conserva-
tion). presiding. .
Mr. Drverri.. The subcommittees will come to order.
This is.a continuation of the hearings scheduled on the subject of
ocean dumping and on legislation related thereto.
The Chair observes that we have a statement presented to the com-
mittee by our colleague, Michael Harrington of Massachusetts. With-
out objection, that document will be inserted in the record in its
entirety.
STATEMENT OF HON. MICHAEL J. HARRINGTON, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Harrrneron. Mr. Chairman, it is my pleasure to appear before.
these subcommittees for the second time on this most important. sub-.
ject of ocean dumping.
When I testified last July 28 before the Fisheries and Wildlife Con-
servation Subcommittee, I had hoped that some form of strong anti-
dumping bill would be reported out of committee. That did not happen,
but the hearings were valuable in bringing to public attention the
danger in which we find ourselves—of losing our oceans to the pel
tion which is consuming our air and inland waters.
I am confident that a bill will come out of committee this year:
Chairman Garmatz has introduced his own bill, as subcommittee Chair-
man Dingell, and there are several others, aside from my own, pending
before the committee. All of these bills have mer it, and all recognize
the obvious need for legislation in this field.
We cannot wait any longer for firm and binding prohibitions against
dumping ecologically harmful materials into our oceans. We are in the:
position of being able now to save our last remaining natural resource
from certain destruction by pollution.
We are hearing more and more about the incredible value of our
oceans. We hear that our food supply may eventually come in greater
proportion from the ocean than from the land. Untapped mineral
resources lie within these waters. As a source of oxygen and through.
(379)
380
its Interaction with the terrestrial ecosystem, a healthy ocean may well
have critical importance for the survival of the human species.
Distinguished marine biologists are warning that unless we act, the
current accelerating pace of ocean pollution could destroy significant
life in the sea in 50 years or less. This would be catastrophic.
To halt this devastation, Congress will have to act immediately to
legislate major new policies backed by a massive aid and action
program.
If we are to legislate effectively to save our oceans, we need a bill
-a minimum—includes the following four provisions:
iL The broadest definition of the waters to be covered under the act.
The strongest prohibitions against the dumping or discharge of
eee harmful wastes made 4 in conjunction with the establish-
ment of strong standards before permission to dump is granted.
3. Stringent. enforcement of those standards with all necessary
Tenor y ‘provided.
Strong penalties—including fines and jail sentences for those who
fail to comply with those standards.
Tam testifying before you today in support of a bill which T believe
contains the provisions which I have outlined. H.R. 805, 807, 808, 1329,
and 2581 (all identical) will, if enacted, goa long way toward keeping
our oceans clean. I am gratified by the fact that more than 65 of my
colleagues have joined me in cosponsoring this legislation.
The committee is also considering legislation ‘introduced by. Con-
gressman Garmatz, H.R. 4723. I endorse the basic concept of Sete
Garmatz’ bill, but there are oul changes which I would like to s
incorporated 1 in the bill before I could fully support it. I believe fis
changes are essential, and I urge the committee to enact them.
In some respects, my bill is similar or identical to Mr. Garmatz?
bill. In other areas, we differ greatly. I would like to take the four
requirements I believe are essential and compare my bill with that of
Chairman Garmatz in those areas.
w
1. DEFINITION OF THE WATERS TO BE COVERED
aDpmpinte of harmful substances should be prohibited not only in
what we normally think of as ocean, but in all coastal waters. Salt
marshes and other such “inland” tidal features, because they nourish
and shelter many marine organisms, are as important to the marine
ecosystem as open water areas.
Section 5B(a) of my bill defines:
Oceans, coastal and othe rwaters as “oceans, gulf, bays, saltwater lagoons;
saltwater harbors, other coastal waters where the tide ebbs and flows, the
Great Lakes, and all waters in a zone contiguous to the United States extending
to a line 12 nautical miles seaward from the baseline of the territorial sea as
provided in article 24 of the Convention on the Territorial Sea and the Con-
tiguons Zone.”
This wording is identical to that found in Congressman Garmatz’
bill.
2. STANDARDS AND PROHIBITIONS
Section 5B(b) of my bill would require the Administrator of the
Environmental Protection Administration acting through the Fish
381
and Wildlife Service, and in consultation with the Army Chief of En-
gineers, to establish standards—
which apply to the deposit or discharge into the ocean, coastal and other
waters of the United States of all industrial wastes, sludge, spoil and all other
materials that might be harmful to the wildlife or wildlife resources or to the
ecology of these waters.
This section gives the Administrator jurisdiction over all wastes en-
tering the coastal waters.
I have included the U.S. Army Corps of Engineers in the standard
making, because they have some experience with ocean dumping, and
the mechanism is already established for issuance of dumping permits
by them under the provisions of the 1899 Refuse Act.
The Corps has not distinguished itself in its enforcement of the
Refuse Act, but with the Presidential order of last December and the
new regulations presently being reviewed—and most importantly with
new legislation, which this committee is considering, mandating pro-
tection of our oceans—the Corps will have the mechanism ready to go
to enforce antidumping regulations.
Congressman Garmatz’ bill would have the Administrator of the
EPA establish or revise criteria (section 5(a)) in consultation with
the Secretaries of Commerce, Interior, State, Defense, Agriculture,
Health, Education, and Welfare, and Transportation, the Atomic
Energy Commission, and other appropriate Federal, State, and local
officials.
I find this long list a little bewildering. The problem with the Gov-
ernment now is red tape and vested interests. Is it not time to allow the
person in charge of protecting the environment some latitude in do-
ing his job? Will not consultations with so many diferent agencies
merely delay the setting of criteria? No one has done any kind of job
in this area to date. We need less consultation and more action.
Congressman Garmatz’ bill exempts “effluent from any outfall strue-
ture,” and oil. I see no point in relying on the existing fragmented
regulatory structure dealing with these types of waste. Oil spillage
and effluent. from sewer outfalls contribute heavily to the pollution of
our most valuable recreational and commercial coastal waters. The
problem of ocean pollution, from whatever source, deserves treatment:
with coherent, comprehensive legislation.
J consider the exemptions of 011 and effluents from outfall structures
to be one of the most serious deficiencies of the Garmatz bill. The ex-
emption of these two pollutants is totally unacceptable.
The disposal of domestic wastes of all kinds into our coastal waters
has introduced toxic heavy metals and organics into these waters. The
result has been to lower the available oxygen content of the bottom
water.
Our new technology has also created new kinds and larger amounts
of material which must be disposed of. During the past 30 years we
have disposed of many synthetic chemicals heretofore unknown.
_These chemicals are foreign to organisms, and natural pathways of
biodegradation are lacking or inefficient. Thus, many chemicals now
dumped into our coastal waters enter the marine food chain and in-
crease in density as they move through the chain until they become
harmful to both marine and human life.
382
The problem is particularly acute when we look into the amount of
municipal and industrial wastes being dumped. im
The estuaries of this country are being fed approximately 30 billicn
gallons of sewage and industrial waste every day. In the New York
City area, five of the 18 municipal systems are still pumping raw sew-
age into the heavily polluted waters. And, in Boston, five municipal
systems dump 400 million gallons a day of only primary-treated sew-
age into the harbor.
The story is the same on the West Coast. In San Francisco Bay, for
example, about 700 million gallons a day of effluents are being poured
in—with about half of these wastes being treated at the primary level.
The situation is intolerable now. But the October 1970, Council on
Environmental Quality report stated that we can expect an increase of
50 percent by the year 2000 in sewage sludge generated in the coastal
zone.
With tougher water quality standards and coastal area industrializa-
tion, we can expect a massive increase in pressure for industrial dump-
ing at sea. Forty percent of the Nation’s industry is im coastal regions
right now.
We cannot duck this issue by omitting these effluents from the legis-
lation before us, as does the Garmatz bill. My bill covers all materials
harmfui to the ecology of the waters. ;
But we also cannot expect the cities and towns of this country to
build waste treatment facilities without additional Federal help. I
would, therefore, urge the committee to recommend greater Federal
aid to municipalities and industries for waste treatment.
We cannot legislate standards that are impossible to attain, nor can
we be so remiss as to ignore the fact that these wastes are a major
source of our ocean’s pollution.
I therefore have two recommendations. First, it is my intention
shortly to introduce legislation which will provide for 90 percent Fed-
eral funding of municipal waste treatment plants, and which will also
provide advance funding for waste treatment planning grants.
Many of our cities are on the verge of bankruptcy. They cannot af-
ford to pay 70 or 60, or even 50 percent of the cost of these treatment
facilities. They must receive our help.
We supply a greater Federal share for urban renewal, mass transit,
solid waste disposal, and law enforcement assistance than we do for
municipal sewage treatment.
When this Nation decided that, it required coast-to-coast highways,
it did not expect the States or localities to bear the great portion of the
cost. Instead, we established a Federal Highway Trust Fund, with the
Federal Government putting up 90 percent of the cost.
We are faced now with a need as great or greater than our need for
highways. Without clean water—and I include all inland waters as
well as our oceans—we cannot survive. It is time we squarely faced
that need and provided the funds required to build these municipal
waste treatment plants. Ninety percent is what is needed.
— Second, on January 22, 1971, I introduced the Industrial Water
Pollution Abatement Loan Act, H.R. 806. This bill, presently pending
before the Public Works Committee, would provide low-cost loans
to marginal industries to build waste treatment facilities beyond their
financial abilities. The cost of building a treatment plant in compli-
383
ance with State water quality standards would force some companies
to go out of business.
My bill would allow the Administrator of EPA to provide loans
to these marginal industries where he finds that :
(1) such business firm-could not continue to operate competitively if it were
required to bear the burden of the cost of such construction without such fi-
nancial assistance, or (2) that other financing credit is not reasonably available
to such business firm for the cost of such construction.
Of course, all loans made under this act would require that the
treatment facility be in compliance with a comprehensive plan ap-
proved by the administrator for the abatement of water pollution in
the city, town, or water pollution abatement district where the busi-
ness form applying for the loan is located.
This coordinated plan of 90 percent Federal grants to municipalities
and loans to marginal industries for waste treatment facilities, in
conjunction with strong antidumping bills, would save our oceans.
H.R. 805 states that the standards established “shall be for the
purpose of insuring. that no damage to the natural environment and
ecology including but not limited to marine and wildlife ecology of
the ocean, coastal, and other waters of the United States will result
from any such activity.”
This language is considerably more stringent and explicit than sec-
tion 5(a) of Congressman Garmatz’ bill, which permits such dumping
as “will not unreasonably degrade or unreasonably endanger human
health, welfare, or amenities or the marine environment, ecological
systems, or economic potentialities.”
T would like to know, Mr. Chairman, what constitutes an unreason-
able degradation of human health? We must realize that after we are
through temporizing and equivocating on this issue, we are faced with
a matter of human survival. There is only one standard that can be
applied to the establishment of standards or the issuance of dumping
permits—there must be no damage to the environment.
If we persist, as provided by section 5(a) (2) of Congressman Gar-
matz’ bill, in shortsighted assessment of “the probable impact of issu-
ing or denying permits on considerations affecting the public interest,”
our oceans will never be clean.
IT am deeply disturbed by the lack of clarity of this language. Before
I could support such legislation, I would have to know what is meant
by not unreasonably degrade or unreasonably endanger human health.
The language in H.R. 805 is, I believe, far more precise.
Another imprecise definition may be found in section 5(e) of
Mr. Garmatz’ bill which states that the administrator “may issue gen-
ral permits for the transportation of dumping or dumping, or both
of classes of materials which he determines will have a minimal impact
considering the factors cited in subsection (a).” How do we define
minimal? Certainly, mercury pollution was considered minimal until
last year. if
Can we afford to take the chance with other substances? Once again,
H.R. 805 states that there shall be no environmental damage.
Because the environmental effects of many. wastes are not yet per-
fectly understood it is important that no material be assumed safe
for dumping without decisive scientific evidence.
384
As Dr. Max Blumer, senior scientist at Wood’s Hole, notes:
The marine food web is so involved and the biochemical processes necessary
for the survival of every species are so complex that it is virtually impossible
to foresee which species might be damaged by a certain persistent chemical.
The award of the Nobel Prize to the discoverer of the insecticide DDT illustrates
our ignorance in this area. Lacking sufficient foresight we need to be much
more cautious in the use of persistent chemicals lest we disrupt inadvertently
processes in the sea upon which our survival may depend.
Accordingly, section 5B(a) of my bill requires that the person
wishing to dump sustain a burden of proof that the materials that
are dumped will not endanger the natural environment of these waters
and will meet any additional requirements as the Administrator
of the EPA deems necessary for the orderly regulation of such
authority.
T feel that placing the burden of proof on the dumper is an impor-
tant part of this legislation. It is time that those who wish to dispose
of refuse material be required to consider the ecological consequences
of their actions.
The public must not be asked to assume the risk of environmental
damage because there has been insufficient time to study the problem
thoroughly.
The Federal Government should not have to do all the work in
this one area. Dumping is a privilege—not a right. The right involved
here is the right of every American to a decent environment. This is
neither a new nor particularly startling concept.
I have introduced a constitutional amendment (H.J. Res. 522)
to accomplish this end. The right to a decent environment is as basic
as the right to life and liberty, for without a decent environment we
can have neither.
Therefore, it is the obligation of the people and the Government
to protect the environment as the Government.
Burden of proof does not require the person wishing to dump to
prove beyond a shadow of a doubt that the materials will be harmless.
Rather, burden of proof requires a preponderance of evidence which
demonstrates that the dumper can abide by the standards.
In addition, this legislation takes into account the fact that in
some locations materials can be dumped without harm to the waters,
whereas the same materials would be harmful to other areas.
I have always felt that a unilateral prohibition against dumping
was both unjust and unrealistic. Ocean currents in some areas will
disperse most refuse material to the point where it does no harm. In
other locations, however, the materials may stagnate.
H.R. 805 also provides that different amounts of the same type of
refuse may be dumped in different locations. Each dumping site and
material has its own particular characteristics and these must be
taken into account, as they will have to be by the person wishing
to dump. There are, of course, certain materials, such as mercury,
which would not be dumped at all.
The standards set by the Administrator of the EPA and the burden
of proof required by the dumper would effectively prohibit any
dumping of such materials. Therefore, this section provides a flexible
approach to the problem of dumping into the coastal waters.
385
Section 5B(c) of H.R. 805 provides that the standard established
by the Administrator of the EPA shall be adopted and applied to all
Federal and State authorities which have the right to issue authoriza-
tions to discharge or deposit material into these waters.
In his role as standardmaker, the Administrator would find it pos-
sible to establish longer term goals for reducing ocean pollution, as
well as issuing standards for the immediate guidance of regulatory
bodies.
I should point out that these provisions do not require every permit
application to cross the Administrator’s desk. My bill allows the reten-
tion of the present regulatory structure, subject to new standards
established by the administator. Since these standards will be desig-
nated to prevent all environmental damage, it is not essential that the
Administrator consult formally with the Secretary of every depart-
ment, and with every State board.
3. Stringent enforcement :
Section 5B(d) requires that the standards apply to all parts of
the Federal and State governments and all persons who have author-
ization from the State or its agency to deposit or discharge such
materials into these waters.
Section 5B(e) permits the States to establish and enforce stand-
ards covering these activities within their jurisdiction only on the
condition that the State standards are stricter than the Federal stand-
ards and that the States provide adequate procedures for enforcement.
I believe this section is important because, as we have seen in the case
of automobile pollution, many States have wished to enact. stricter
reeulations than the Federal ones but have been unable to do so
because Federal Jaws require that the Federal standards apply.
The Garmatz bill sets no minimum requirements for the States or
territories. Although section 7(e) states that Federal standards could
not preempt the requirements or liabilities imposed by States or ter-
ritories, the State or territory could set a much less strict standard
than the Federal Government’s.
The oceans are interstate bodies of water. The currents carry pollu-
tion from one State seacoast to another. It is not fair to require strong
standards of one State when another would be allowed to set weak ones.
I therefore, recommend that the wording of sections 5B(d) and 5B(e)
of H.R. 805 be incorporated into this bill.
Section 5B(f) of H.R. 805 provides that every State and Federal
instrumentality and every person applying for authorization to dis-
charge or otherwise dispose of any material into these waters maintain
records, make reports, and provide whatever additional information
the Administrator of the EPA needs to determine that the standards
are being complied with. The Administrator may also, upon request,
have access to these records.
Thus, we require that dumpers continually sustain a burden of proof
that their activities are harmless. The Administrator may revoke a
permit if the dumper fails to do so. Due process of law requires that a
person whose permit is revoked is subsequently entitled to a hearing,
but I feel that section 5(f) of Congressman Garmatz’s bill, providing
for formal hearings, before a permit may be revoked is unwise. No one
has an inalienable right to dump wastes into the oceans.
386
Denying the Administrator decisive power over permits forces the
public to bear much of the risks of non- complhance by dumpers.
Section 5B(¢) of H.R. 805 provides that the Distric> courts of the
United States have jurisdiction to restrain violations of this act. The
courts have subpena power and failure to obey the subpena may be
punishable by a charge of contempt of court.
I endorse Section 6 (a), (b), and (d) of the Garmatz bill which
provides for both criminal and civil penalties with the District courts
having jurisdiction to grant relief as the equities of the case require.
i would like to see the District courts having subpena power.
4, Punishment:
Section 5B (h) of H.R. 805 provides that each violation of these
standards shall be punishable by a fine of not more than $10,000 nor
less than $5,000. This means that each time refuse is dumped in viola-
tion of these standards, the violator is liable for this fine. In many
cases, several dumpings or discharges occur per day and each instance
is a violation punishable by the fine.
Mr. Garmatz’s bill would provide for a civil penalty of $50,000 for
each violation and a criminal penalty of “not more than $50, 000 or
imprisonment for not more than one year, or both.”
I heathily endorse these higher fines and would amend my bill to
melude them. In my amendment, however, I would set a minimum
fine in criminal penalties of $25, 000, retaining the maximum $50,000. I
would also increase the jail sentence to 5 5 years for repeated convictions.
The minimum fine is a stiff one—but the destruction of our environ-
ment is a deadly serious matter. Stiff minimum fines would be a
deterrent from the beginning.
I would also like to see amended the language of section 6(c) of
TLR. 4723 which states, “For the purpose of imposing civil penalties
and criminal fines under this section, each day of a continuing viola-
pon shall constitute a separate offense.”
T realize that the differences between Chairman Garmatz’s bill and
mine are very great. This testimony has emphasized those differences
but I want to say that there are many portions of H.R. 4723 which I
applaud and support. We basically agree on the need for an end to
ocean pollution, and this fundamental agreement is what is required
for effective legislation.
I would hope that the committee will seriously consider making
the change I have suggested in my testimony.
Al forms of ocean ‘pollution must be covered—including municipal
and industrial effluents and oil. Without a coordinated and compre-
hensive program, we are never going to be able to regulate cleaner
oceans.
The Federal Government must make standards which are applicable
to the States—otherwise chaotic enforcement will ensue, and we
could continue to have serious pollution problems throughout the
country.
Most importantly, Mr. Speaker, our standard must be no pollution.
We have already done irreparable damage to our waters through
ignorance and laziness. We must. develop alternate means of waste
disposal and we need a far greater Federal investment m municipal
and industrial waste treatment.
387
Everyone has the responsibility for saving our oceans and coastal
waters. The dumper has an obligation to all of us to demonstrate that
his material is not harmful. The Government has an equal respons!-
bility to set and enforce standards for dumping.
We need a strong law—a clear law—a comprehensive law —to halt
the degradation of our oceans and coastal environment. I urge the
committee to report out a bill of this nature. We in Congress bear a
primary responsibility for a decent environment. We have failed thus
tar to act to save our oceans and coastal waters.
We must act now.
Mr. Drncett. The same unanimous request is made with regard to
the statement of our colleague, Cornelius Gallagher.
STATEMENT OF HON. CORNELIUS E. GALLAGHER, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Gatuacuer. Mr. Chairman, I am very pleased to have the oppor-
tunity to testify this afternoon before your distinguished commiteee
on legislation to control the dumping of waste materials into our
oceans. For far too long, we have looked to the oceans as an inexhaust-
ible source for the disposal of side effects of man’s technological
abundance and urbanization. I contend, as have the many Members
of the Congress who have appeared before you, that it is no longer
possible. :
The problem of ocean dumping is one in which I am particularly
interested for two specific reasons: (1), in May 1969, the Subcom-
mittee on International Organizations and Movements of the House
Committee on Foreign Affairs, which I chaired at the time,-held what
is widely regarded as the first hearing on the dumping of any sub-
stance into the ocean; and (2), there are 250 major dumping areas
nationwide; 15 of these areas are located off the coast of my home
State of New Jersey. Two of these 15 areas have been closed to shell-
fish harvesting due to the impact of the dumpings.
The major feature of the bills I have cosponsored is that before
any discharge can take place in any ocean an approval must be ob-
tained from the Administrator of the Environmental Protection
Agency. This may seem like a somewhat small step to take when so
many in our land are speaking the language of doomsdaymanship and
are freely predicting ecocatastrophies, but I think this 1s vital.
Let me illustrate the essential nature of fixing responsibility in the
Federal Government for assessing the dangers of each ocean dump
by describing what we learned during our Foreign Affairs Subcom-
mittee consideration of plans to dump obsolete poison gas inte the
oceans.
This plan vitally affected the mandated responsibilities of the
Department of Defense, the Department of State, the Department of
Transportation, and the Department of the Interior. Each of these
Federal Agencies had a particular responsibility in the transporta-
tion of the trainloads of poison gas across our Nation and in the dispo-
sition of the poison gas in the oceans.
Yet, the only time representatives of these Agencies ever gathered
in the same room to discuss their mutual problem was in the hearing
388
room of the Subcommittee on International Organizations and
Movements.
This was after 12 similar shipments had already taken place. Not
only was the Congress in the dark, but the affected Federal Agencies
had not been informed, either.
It may be of special interest to subcommittees of the Merchant
Marine and Fisheries Committee that the only citizens who were in-
formed of the movement of this lethal gas were recreational boaters
who were warned to stay clear as the disposal ships were towed to sea.
Residents of the crowded urban areas which trains moved through
were not informed, and this includes a city in my 13th District of
New Jersey, Elizabeth. Fortunately, many changes have been made
in national policy since our subcommittee took its pioneering actions,
but I do believe that a significant weakness in Federal structure was
disclosed.
That is why it is absolutely essential that one man and one agency
be firmly fixed with the ultimate responsibility in this area. One staff
should evaluate competing interests and competing proposals, and
one decisionmaking apparatus should be the focus of evaluation and
review, and when necessary, of the wrath of those who disagree with
the final decision.
I, therefore, feel that no matter what the final form of the many
bills you are debating during these hearings may take, retention of
centralized control is essential. In this way we can prevent what
we discovered in May 1969; policy by default. and pollution by
indifference.
I appreciate the opportunity to make this brief statement, Mr.
Chairman, and I would close by stating that the environmental issue
is now closing in on each of us.
It is closing in a symbolic sense, as the operational arm of man’s
concern with the welfare of his fellow man. It is also closing in a
physical sense, by forcing us to realize that no man is an environmental
island, complete unto himself. The dangers of ocean dumping must
be dealt with before the accumulated sludge fills up the oceans and
there are no islands and probably no men, at all.
Mr. Dincrrn. The Chair observes that the Sierra Club has called
advising the committee that it will not be possible for the scheduled
witnesses on behalf of the Sierra Club to be present. For that reason,
the same order is made with regard to that and a like order from the
Chair with regard to a statement from distinguished Mr. Louis Clap-
per, Conservation Director of National Wildlife Federation, and you
will see to it that is also inserted in the record.
(The statements referred to follow :)
STATEMENT OF HUGENE VY. COAN, THE SIERRA CLUB
We appreciate this opportunity to present our views on the question of dump-
ing into the ocean and the Great Lakes, fer this has become a matter of growing
concern to us. Of all our many environmental problems, this one appears to hold
some especially grave dangers.
We have reached the time when we can no longer consider the ocean and the
Great Lakes to be a dumping grounds of last resort. We can no longer indiserimi-
nately place our waste materials in the sea and assume that they will not return
to haunt us again. For as large and powerful is the sea, it is surprisingly fragile.
It is also of growing importance to us. Given time, the fresh water of the world
ean cleanse itself, but the sea cannot. Once we put our chemicals and trash into
389
it, they may be there for a very long time. We are already familiar with the
tragic story of DDT, the first recognized and best understood of a growing list
of materials we have come to call “environmentally hazardous substances.” It is
probable that other chemicals will prove to be as long-lived and as harmful, for
instance the heavy metals, other chlorinated hydrocarbons, the petrochemicals
lost in oil spills, and radioactive plutonium.
When we commit environmental injustice on land, it is often within our power
to undo the damage, given enough time and money. If we do further harm to the
seas, it will be beyond our power to undo that harm.
There are three broad, interrelated areas of marine conservation. First, water
quality. Second, conservation of marine organisms, including fisheries and other
wildlife. Third, shore conservation and planning. Some of our fisheries have al-
ready declined. In some eases, it is very difficult to determine the reasons for
the declines, whether poor management of the fishery or the result of coastal
contamination. In some ways, the use of our shoreline is dictated by the degree
of water pollution. So, maintain water quality is a key factor in marine
conservation.
Obviously, the answer is that we must stop all pollution of the sea. The sea is
just as insufficient.an answer to the problem of waste disposal as food from the
sea is the solution to the problem of hunger and over-population.
Moreover, we cannot allow the deep sea to be the ultimate carpet under which
to sweep our trash. We know less about the life of the deep sea than any other
area of our planet. Recent work at Woods Hole has begun to show that the crea-
tures of the deep sea are more diverse and abundant than we had previously
supposed. We have no more right to contaminate and kill the organisms of the
deep sea than those of shallow water simply because they are less well known
and more distant from us.
We must move now to extract ourselves from this potential dangerous situa-
tion by establishing two basic goals. First, we must set in motion the machinery
which will enable us to find out what is happening to the sea and what we can
do about it. Then, we must take action now where we can.
To an extent, the necessary studies have already been initiated by the Environ-
mental Protection Agency, by the National Science Foundation, and by the Sea
Grant Program, now under the National Oceanic and Atmospheric Administra-
tion. What-is required is the proper funding of these programs, an overall, clear
set of goals, and coordination among these granting programs.
These research goals must be (1) to established baselines for the existing
levels of contamination or natural levels for as many substances as possible over
as wide an area as possible, (2) to establish water quality criteria based on
extensive testing of a wide array of substances on a wide array of marine
organisms. We must look not only for immediate toxicity of the substances but
their subtle effects on the health and reproductive ability of marine organisms
for more than one generation. We need to have this information about as many
organisms as possible, but certainly about the most important ones both com-
mercially and ecologically. Until we have such exhaustive information, we can-
not possibly set water quality standards. In this regard, the Environmental Pro-
tection Agency has a very long way to go. (3) HKinally, we need to put as much
money as possible into finding ways to reclaim and recycle so-called wastes. It
will only be after we have extensive information in all of these three fields that
we ean deal adequately and knowledgeably with the problem of dumping.
Needless to say, it will be a considerable time before we have most of the
required answers. We must act now upon the most serious problems and give
ourselves deadlines for eliminating marine pollution.
The legislation which should be enacted this Congress should, at a minimum,
do the following things:
(1) Establish a national policy and goal of eliminating environmentally harm-
ful dumping.
(2) Establish a permit system under the Environmental Protection Agency
for all forms of ocean dumping, including sewage discharge.
(3) Place the burden of proof on the parties wishing to dump materials into
the sea or Great Lakes to prove that no environmental harm would be done.
(4) Establish broad criteria for the use of the Environmental Protection
Agency in evaluating dumping permit applications.
(5) Allow public hearings when a dumping permit is contested.
(6) Completely prevent dumping into the sea of environmentally hazardous
substances, being defined as substances which persist in the marine environment
390
because of their physical, chemical, and biological properties, and/or which be-
come widespread in the marine environment because of their physical and chemi-
cal properties, and/or which tend to become more concentrated in living orga-
nisms than in the surrounding environment, and which may present a danger to
living organisms by their direct toxicity or their influence on the health or
reproductive ability of living organisms or the health of man.
(7) Establish fines for parties violating the regulations and necessary enforce-
ment procedures.
(8) Establish dates after which sewage to be placed in the sea or Great Lakes
must be upgraded. We would expect that increased Federal assistance will make
it possible to meet these deadlines.
(9) Enable substantial areas to be set aside in which no dumping would be
allowed. These would be especially fragile areas and a substantial number of
areas to serve as baselines for biological study.
(10) Finally, it would establish a national goal for the Department of State
to seek international cooperation with regard to preserving the oceans.
STATEMENT OF Louis S. CLAPppER ON BEHALF OF THE NATIONAL WILDLIFE
FEDERATION
Mr. Chairman, I am Louis S. Clapper, Conservation Director of the National
Wildlife Federation which has its national headquarters at 1412 Sixteenth Street,
N.W., here in Washington, D.C.
The National Wildlife Federation has affiliates in all 50 States and the Virgin
Islands. These affiliates, in turn, are made up of local groups and individuals
who, when combined with associate members and other supporters of the Federa-
tion, number an estimated 3 million persons.
' Mr. Chairman, we want to congratulate the Subcommittees for holding these
hearings on ocean dumping. In our opinion, this is a major problem—one which
merits immediate action and we are pleased by the interest of members of these
Subcommittees and by other members of the Congress who have introduced
appropriate legislation on the subject.
Basically, the Federation does not believe that the oceans or the Great Lakes
or other areas of the U.S. shorelines should be used for dumping or waste dis-
posal purposes. Hd Chaney, one of our Staff members, is outlining this attitude
in a forthcoming article for our NATIONAL WILDLIFE Magazine and he points
out quite appropriately that the earth is a closed system—that nothing actually
ean be thrown away. Unwanted wastes must be reclaimed or recycled back into
the overall ecological system.
We note that H.R. 4723 defines “material” as “matter of any kind or deserip-
tion, including, but not limited to, dredge spoil, solid waste, garbage, sewage
sludge, munitions, chemical, biological and radiological warfare agents, radio-
active materials, wrecked or discarded equipment, rock, Sand, cellar dirt, and
industrial wastes.” H.R. 3662 and H.R. 4359 defines “waste materials” as “all
solid and liquid products or byproducts of the industrial process (including
tailings, sediment, and like materials resulting from marine mining or dredging
activities), industrial waste acids, chemicals, sewage, sludge, garbage, dredge
spoils, radioactive materials, construction and demolition debris, military ordi-
nance, explosives, and any other form of discarded material or equipment.’
After reviewing these definitions, Mr. Chairman, we simply cannot see any valid
reason for using the Nation’s offshore water areas for waste disposal. For far
too long, this has been another indication of the ‘‘out-of-sight,” “out-of-mind” atti-
tude toward waste disposal and we no longer can afford this type of degradation
in our environment.
if dumping is to be allowed. however, then we generally are in agreement with
the below listed principles which are expressed by one or more of the bills under
consideration :
id. For the reasons already expressed, we note with exceptional interest that
some bills “phase out” ocean dumping. In the Senate, S. 192 would terminate all
dumping by June 30, 1975. H.R. 3662 and H.R. 4359 would phase out ocean dump-
ing of municipal and industrial wastes with primary treatment by 1972, by sec-
ondary treatment by 1974, and tertiary treatment by 1976. In lieu of outright
prohibition, we would be in accord with that schedule.
O91
2. It is cur firm belief that any regulation of dumping should apply to all U.S.
waters and the oceans outside this Nation’s territorial waters and the contiguous
zone. In this connection, we like the definition contained in Section 3(b) of
H.R. 4723 which specifies the coverage as “oceans, guifs, bays, salt-water lagoons,
salt-water harbors, other coastal waters where the tide ebbs and flows, and the
Great Lakes.” However, definitions in H.R. 3662 and H.R. 4359 are essentially
the same.
3. We think it is appropriate for the Environmental Protection Agency to be
empowered to issue permits, if any dumping is to be allowed, if the action will
not degrade the environment or ecological systems or endanger human health,
welfare, or the amenities. H.R. 4723 appears to give the EPA Administrator
suitable discretion in issuing permits and we like the provision in this proposal
which burdens the applicant with providing information ‘to justify a permit.
4. We agree that the HPA Administrator should be authorized to designate
by a permit the type and amount of materials to be transported and/or dumped
and the location, as well as the period of time that the permit is valid. This is
outlined in H.R. 4723. And, we also are in accord with that proposal’s require-
ment that a permit shall not violate applicable water quality standards.
5. We coneur with the principle expressed in H.R. 4723, whereby EPA will
establish and apply criteria for evaluating permit applications. We prefer this
discretionary process on this criteria more than formal regulations as in some
other bills before the Committee.
6. We do not disagree with the provision which names the Department’ of
Justice responsible for conducting any legal actions which may be necessary,
or with surveillance by the Coast Guard. However, we do note a wide variance
in the amounts of maximum fines to be applied to violators for each offense:
$2,000 in H.R. 4359, $5,000 in H.R. 808, $50,000 in both H.R. 4723 and S. 1238,
and $25,000 in §. 1286. Penalties should serve as deterrents and we question
whether $2,000 is enough in some instances. On the other hand, penalties can be
so severe that many courts would be reluctant to impose them. However, in our
judgment, we do not feel that $50,000 is so severe as to impede such sentencing
when this is a maximum.
7. We are in concurrence with provisions in H.R. 3662 and H.R. 4359 which
would immediately suspend the dumping or disposal of radioactive wastes, toxic
industrial wastes, and chemical or biological warfare materials.
8. We note with particular interest the provisions in H.R. 3662 which would
authorize and direct the Administrator of the EPA to conduct research and inves-
tigation on the marine ecology. We believe that the authorized appropriation of
$1 million per year for this purpose is both reasonable and appropriate.
9. We think favorably of the provision in H.R.4359, proposed new Section 7(g)
to the Act of August 3, 1968, wherein: “The Administrator of the Environmental
Protection Agency may by regulation prohibit the disposal or dumping of any
waste material which he determines may damage the ecology of the marine en-
vironment, and in making such determination he may rely upon whatever indica-
tors are currently available to him, regardless of the fact that such indicators
may not be conclusive.”
10. We recommend that the Subcommittees give consideration to proposed
Section 7 in 8.1082. This proposal would provide for determining means of re-
covering useful materials from wastes. Certainly, in our opinion, if a deleterious
waste can be transferred into a positive value, the entire environmental move-
ment will have been strengthened.
To conclude, Mr. Chairman, we have welcomed this opportunity of making these
remarks and we certainly hope that these Committees can take joint action to
report a bill to the full Committee at the earliest possible time.
Mr. Dinerii. The Chair is very pleased to welcome for our first
witness the very able Administrator of the Environmental Protection
Ageney, Mr. William D. Ruckelshaus.
We are happy to welcome you to the committee. The Chair observes
that you probably have members of your staff present in the room, and
if you would like to have any of them present with you at the table,
vou may feel free to do so, if you will only identify them for the record
by name and by responsibility.
392
STATEMENT OF WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY
DAVID DOMINICK, ACTING COMMISSIONER OF THE WATER
QUALITY OFFICE, EPA
Mr. Rucketsnavs. Thank you, Mr. Chairman.
I have with me today Mr. David Dominick, Acting Commissioner
of Water Quality Office of EPA, who will participate in the answering
of any questions that the committee or chairman may have.
Mr. Drycetn. Mr. Dominick, we are happy to welcome you.
You may proceed, sir.
Mr. RucketsHaus. Mr. Chairman and members of the committee,
Lappreciate the opportunity to meet with you today to discuss the Ad-
ministration’s proposal for the control of ocean dumping entitled,
“The Marine Protection Act of 1971.” This bill, H.R. 4723, has been
introduced in recognition of the critical need for a national ocean
dumping policy.
Our proposal is the product of an intensive and comprehensive study
of the problems of ocean dumping. That study and the recommenda-
tions for a strong policy of preventive and remedial measures were re-
ported to the Congress in the Report on Ocean Dumping prepared by
the Council on Environmental Quality. I understand that Chairman
Train has discussed the study and recommendations with you.
I believe we are all in agreement as to the need for a streng bill to
control ocean dumping. We e endeavored in the drafting of our proposal
to translate the recommendations of the Ocean Dumping Report into
law. Our purpose here is to recommend to the committee and to the
Congress the creation of the farthest reaching and strongest authority
that law and technology will allow.
Members of this committee and other members of Congress have
introduced bills which in many cases are similar to our own proposal.
Other proposals take somewhat different approaches.
Mr. Chairman, we wish to work with you and the committee to de-
velop the most effective legislation possible.
Our proposal, H.R. 4723, would invest regulatory authority over
ocean dumping in the Administrator of EPA. As that Administrator,
I propose to administer H.R. 4723, if it is enacted, in a way that will
fully implement the recommendation of the Council on Environmental
Quality as set forth in its Ocean Dumping Report.
I would like to describe briefly the principal provisions of our bill
and our thinking about it.
The purpose of H.R. 4723 is to regulate the dumping of all types
of material in the oceans, estuaries, and the Great Lakes, and to prevent
or strictly control the dumping into such waters of any material which
could adversely affect human health or welfare or the marine environ-
ment. These objectives would be carried out by means of a permit
system established and administered by the EPA.
An important feature of the bill is that it would require a permit for
two different kinds of activity. In the first place, persons desiring to
transport materials from this country for dumping into ocean or
coastal waters, anywhere, whether or not within our territorial juris-
diction, would be required to obtain a permit.
393
This requirement is based on the authority of the United States
to control the disposition of materials transported from U.S. territory.
Secondly, a permit would be required ior the dumping of mate-
rials—whether transported from this country or not—in waters
covered by the bill which are within our territorial jurisdiction, in-
cluding the 3-mile territorial sea, or in waters of the 9-mile contingous
zone beyond the territorial sea where the dumping may affect our terri-
tory or territorial! sea.
Both requirements would apply to foreign nationals and foreign
governments, as well as to United States citizens and to all agencies
and instrumentalities of Federal, State and local government.
Thus, the bill would utilize the regulatory authority of the United
States to its fullest extent consistent with the established principles of
international law.
The bill would apply to any disposition of material with several ex-
ceptions, the most important of which is the disposition of effluents
from outfall structures. The bill is aimed at intermittent dumping as
opposed to continuous discharges from fixed sources. This is an im-
portant distinction.
Continuous discharges from outfall structures into territorial waters
covered by the Act are already subject to regulation under the Federal
Water Pollution Control Act.
Amendments to that Act proposed by the Administration would
extend its coverage to outfalls in the contiguous zone and also to out-
falls in the high seas beyond the continguous zone which discharge
matter originating within U.S. territory.
The Administrator, in issuing permits to dump materials or to
transport them for dumping would be required to determine that such
activity will not unreasonably degrade or endanger human health, wel-
fare or amenities, or the marine environment, ecological systems, or
economic potentialities.
He would be required to establish criteria for evaluating permit ap-
plications, to include—
The likely present and future impact of the dumping on human
health and welfare and the marine environment.
The possible persistence or permanence of the effects of the
dumping.
The volume and concentration of the materials involved.
Alternative locations and methods of disposal, including land-
based alternatives.
The probable impact on the public interest of either issuing or
denying a permit or of requiring alternative locations or methods
of disposal.
These criteria would be refined as additional knowledge is gained
about the environmental impact of ocean dumping and about the
acceptability and feasibility of various land-based alternatives.
The Administrator would be permitted to impose restrictions in
permits relating to the type and amount of materials to be dumped, the
place of dumping, and the period of validity of the permit.
He would be authorized to deny the issuance of a permit where he
finds that the materials in question cannot be dumped consistently
62—513—71——26
394
with the criteria established for the issuance of permits, as well as to
alter or revoke permits upon such finding.
The Administrator would be authorized to require applicants for
permits to provide such information as he considers necessary to
evaluate the application. Information required by the Administrator
might include detailed plans for conversion to land-based disposal. The
Administrator would also be authorized to prescribe reporting require-
ments for actions taken pursuant to permits.
Any person who violates the act or the provisions of any regulations
or permit issued thereunder would be liable to a civil penalty of up to
$50,000 per day, imprisonment of up to one year, or both. The Attorney
General would be authorized to bring actions for equitable relief to
redress any such violations, and the Administrator would be authorized
to revoke or suspend a violator’s permit. The bill would require the
Coast Guard to conduct surveillance and other enforcement activity.
No permit would be denied, suspended, or revoked, or a civil
penalty assessed, without notice and opportunity for a hearing.
An important aspect of the bill is the clear definition of its rela-
tionship with other Federal laws related to ocean dumping and water
pollution control. As I have already indicated, the bill would be in-
applicable to internal navigable waters, except for estuarine areas and
the Great Lakes, and would be inapplicable to effluents discharged
from outfall structures.
Overlap with the Federal Water Pollution Control Act and the
Refuse Act of 1899, which between them deal with discharges of all
types into navigable waters, is avoided by specific provisions which
would prevent duplication or conflict with the provisions of these
other laws.
The Refuse Act requires a permit issued by the Army Corps of
Engineers for the discharge of wastes other than municipal sewage
into navigable waters. Duplicate permit requirements for the disposal
of wastes into waters covered by both Acts would be avoided, since
H.R. 4723 would expressly supersede the Refuse Act in areas in which
both apply.
With respect to the Federal Water Pollution Control Act, under
which water quality standards are established and enforced, H.R.
4723 provides that no permit may be issued for dumping of material
which would violate such standards.
Under another Administration proposal relating to standards and
enforcement, the Administrator of EPA would be given authority to
establish water quality standards for the contiguous zone with respect
to the discharge of matter originating within U.S. territory.
Such standards, as well as the standards already established by
joint Federal-State action for coastal waters out to the 3-mile limit,
will be of great assistance in implementing H.R. 4723 if it is enacted.
Except as I have just indicated with respect to the Refuse Act, all
existing authorities and actions taken under the Rivers and Harbors
Act of 1899 would be preserved. The authority of the Atomic Knergy
Commission to regulate the disposal of radioactive materials would
be affected.
In implementing H.R. 4723, EPA would rely on assistance pro-
yided by other Federal agencies. In establishing or revising criteria
for the issuance of permits, the Administrator would consult with
395
the Secretaries of Commerce, Interior, State, Defense, Agriculture,
Transportation, and Health, ‘Education and W eifare, and with the
Atomic Energy Commission.
He would consult with interested Federal and State agencies in re-
viewing individual permit Oe ee ets: and would be precluded from
issuing a permit where the Secretary of the Army determines that it
would cause an unreasonable impairment of navigation.
In administering the Act, EPA would be guided by the ultimate
onjective of terminating all ocean dumping which is damaging to the
marine environment.
We would adopt a precautionary, preventive approach, aimed at
terminating all dumping not clearly demonstrated to be safe. Ocean
dumping of materials clearly identified as harmful would be stopped
as soon as possible. Where existing information on the effects of ocean
dumping of particular materials is inconclusive, yet the best indica-
tions are that such materials may create adverse condyions when
dumped, the dumping of these materials would be phased ow
If further information conclusively proves that such ue dumping
does not damage the environment, it could be allowed to continue un-
der. regulation.
The dumping of some materials, such as chemical warfare materials
and toxic industrial wastes, would ‘be stopped immediately. The dump-
ing of other materials, such as sewage sludge and solid waste, would
be discontinued, as soon as possible, and no new sources of such dump-
ine would be allowed.
Tt might prove unnecessary to discontinue the dumping of some
inert, nontoxic materials, such as unpolluted dredge spoil and con-
struction and demolition debris, although the dumping of such ma-
terials would be strictly reculated to prevent damage to estuarine and
coastal areas.
As one example of how H.R. 4723 might be implemented, consider
the case of ocean disposal of sewage sludge. Some communities have
substantial financial investment, in facilities and equipment for the
barging of digested sewage sludge to sea. To impose an immediate ban
on ocean dumping by these communities would be uneconomic and
possibly self-defeating where acceptable land-based disposal methods
are not immediately available.
Im such cases, EPA would temporarily allow the dumping to be con-
tinued but would require it to be phased out entirely within a reason-
able period of time. No new sources of ocean disposal of sewage sludge
would be permitted.
This would mean that communities already dumping at sea would
not be allowed to increase the volume of such dumping over current
levels or what. the existing barging facilities will accommodate. In
the case of municipalities which do not currently dump sewage sludge
at sea, they would not be allowed to start.
H.R. 4723 would not place an absolute ban on the dumping of spe-
cified classes of materials, nor would it ban the dumping of materials
in, specified waters within the coverage of the bill. Instead, the Ad-
ministrator would he authorized, based on criteria developed by him
in consultation with other agencies, to permit, limit, or ban the dump-
ing of particular materials, in all or portions of the waters covered
by the bill, depending on all the circumstances of a particular case.
396
Tt would not be feasible to ban all ocean dumping at once. In some
instances, waste disposal methods which are less damaging to the env1-
ronment than ocean dumping are not immediately available. Research
is needed on the recycling of wastes and the development of other
alternatives to ocean dumping.
Conversion to land-based disposal methods will require a substan-
tial reallocation of resources by municipalities and others presently
disposing of wastes at sea.
EPA is making every effort to develop solutions to the often very
complex problems of recycling and alternate disposal of wastes which
otherwise would find their way into inland and ocean wastes.
Some of the projects now underway include an examination and
demonstration of the recycling of solid wastes, an examination of the
feasibility of mixing municipal sewage sludge and solid waste into
a composting cient the location of national land disposal sites
for the disposition of hazardous and toxic industrial wastes, the in-
cineration of solid wastes as a fuel for power production, and the use
of sewage sludge for soil enrichment or as landfill—especially in strip
mined areas.
We are also making an intensive effort through our grant and con-
tract authority to develop and demonstrate practical industrial waste
water recycling and by-product recovery as well as industrial methods
which minimize the production of pollutants.
Tn addition to the technological problems, we face an array of social,
legal, and economic problems when we seek answers to the puzzle of
waste chs st sites and waste transportation.
A great deal of effort and investment is necessary.
Some of the bills pending before these subcommittees would ban the
dumping of all materials into the territorial sea or into waters over
the Continental Shelf. EPA is not favorable to a ban of this nature
which would be applicable to all classes of materials since it might
lead to undesirable results in some instances.
For example, again using the case of sewage sludge, it might be
necessary for some communities which presently barge sludge for
dumping in near-shore ocean waters over the Continental Shelf to
invest substantial amounts in new equipment to barge a farther dis-
tance from shore. It might be preferable to allow such communities
to continue near-shore dumping on an interim basis and to invest their
money instead in developing a capability for land-based disposal.
However, EPA does agree that special protection should be accorded
to those portions of the marine environment which are biologically
the most productive and the most sensitive, that is, estuaries and shal-
low, near-shore areas in which many marine organisms breed or spawn.
In many cases, a complete ban of dumping in such areas might be
appropriate.
Several of the bills pending before this committee would require
designated levels of treatment for municipal sewage and industrial
wastes by specified dates. This approach does not take into account
variations in water use designations, the quality or characteristics of
the receiving waters, or other factors which bear on the appropriate
level of treatment in a given instance.
397
We believe that water quality standards established under the Fed-
eral Water Pollution Control Act provide more flexible and respon-
sive vehicle for the determination of base levels of treatment for these
continuous discharges.
Mr. Chairman, I wish to emphasize again our intention to cooperate
with the committee to the fullest extent.
We will be pleased to provide you with more detailed information
on any of the matters I have dealt, with here today, and to make such
information a part of the record of these hearings.
We wil! endeavor to answer now any questions you may have.
Thank you.
Mr. Dryceui. The committee thanks you for a, very helpful
statement.
The Chair has an observation I would like to bring to the attention
of my colleagues on the committee. I am informed that the House will
meet, at 11 o’clock. This being the case, the Chair observes that this
will leave a very limited amount of time for the members and it has
been the practice, the Chair observes, of this occupant of the Chair
not to impose the 5-minute rule. So the Chair will request that the
members do voluntarily restrict themselves to that period of time so
that everyone here present can have a full opportunity to question
Mr. Ruckelshaus on matters of interest and concern.
On the conclusion of that, the Chair will then afford members
additional time .on appropriate sequence to ask questions of Mr.
Ruckelshaus.
Mr. Pelly?
Mr. Pevuy. Thankyou, Mr. Chairman.
IT will be very limited in my questions and-then, if I may, Mr.
Ruckelshaus, refer questions to you for written reply for the record.
Mr. Ruckersuaus. Certainly.
Mr. Peixy. I am concerned about the fact the Administration bill
doesn’t have any provision for authorizing additional funds. EPA
would do the research work in recycling, for example, would it?
Mr. RucxensHaus. Yes, Mr. Pelly, we have under the Resources
Recovery Act of 1970, the specific responsibility for a great deal of
research in recycling of solid waste. In section 212 of that act, we have
a mandate from Congress to institute a 2-year study on national dis-
posal sites for solid waste. The results of that study are to be made
available to Congress. It would now be a year from this October when
the bill passed in October 1970.
Mr. Perry. Would you have adequate funds for carrying on the
necessary research ?
Mr. RucketsHaus. In our supplemental request for appropriation
to Congress, and also in our fiscal year 1972 request, we have allocated
funds for this study and for implementation of the Resource and
Recovery Act, and we believe those funds are adequate, Mr. Pelly.
Mr. Petty. If we could have some additional material placed in the
record with regard to the present state of recycling, I think it would
be very interesting and helpful to us, and I am not going to ask you
any questions on that.
There are one or two matters that have come up and that have been
brought up by other witnesses that I think I would like to ask you to
398
comment on now. One is the port authorities, who are greatly con-
cerned over the time that would be consumed in their channeling and
dumping of what I would say would be non-toxic materials. They
sought to have the bill provide that they could get permission from
the Coast Guard, as I recall, without having to go to two different
agencies of Government. Do you think that in connection with the
necessary channeling of ports to provide for the adequate depth for
ships that come into the port, that this procedure could be simplified ?
Mr. RucxeisHavs. I think it could, Mr. Pelly. Under the provisions
of the present law, any dredging of a channel of that nature in a port
would be handled under the dredge and fill permits of the Coprs of
Engineers. There is a specific provision in H.R. 4723 providing that
where a permit is issued under section 403 of the Rivers and Harbors
Act of 1899 there is no necessity for two permits to be used. But there
is a requirement for consultation with the Environmental Protection
Agency by the Corps in the instances in which they issue such permits.
Mr. Pretty. I should think that would be desirable and general for
EPA to keep surveillance over this commercial activity that is not
confined to just the channeling into port, but goes up rivers and has
a vast effect on the environment, I would think.
Mr. RucxertsHavus. Yes, I think it is under section 7(c) (3),
Mr. Pelly, where it provides that there is no need for duplication
of permit under this type of situation that you describe.
Mr. Preriy. I know the chairman of this committee testified as to
his concern as to some of the effects of this legislation and his interest,
of course, was the Port Authority of Baltimore. And I know there are
others of us who have various ports and we do want to make it possible
to conduct this necessary work as expeditiously as possible. But I am
sure none of us want to violate the principles of good environment.
Mr. Rucxersuaus. Yes, sir; that is precisely our position, too,
Mr. Pelly.
Mr. Petry. You would have no objection, would you, if we added
to the bill the provision which is in Mr. Rogers’ bill for authorization
of—I think Mr. Rogers had a million dollars. Some seemed to think
it should be more than that.
Mr. RucrrensHaus. We have some preliminary figures which T can
give to the committee now as to implementation of our bill, and this
does not include any of the other provisions which have been suggested
in other bills or in previous hearings.
Mr. Petry. Would you feel that there is reason to have an authori-
zation clause in the bill, so that we can fund ?
Mr. RucxetsHaus. There is a general authorization clause in sec-
tion 13 of the bill, as I understood the committee was interested in
how much we estimated the implementation of the act or the bill
would cost.
Mr. Perry. Chairman Dingell reminded another witness of the fact
that there is a new provision which is required that any legislation
now has to give the 5-year cost, and I presume you have that?
Mr. Rucwensnaus. Yes, we have the 6-year cost, Mr. Pelly, so we
will be glad to provide that.
Mr. Pexiy. Will you put that in the record ?
Mr. Ruckersuaus. Yes, we will.
399
(The information follows:)
Stx-YEAR Cost ESTIMATE ON IMPLEMENTATION Or H.R. 4247
WATER QUALITY (PROJECTED PROGRAM) MARINE PROTECTION ACT OF 1971
[In millions of dollars]
Fiscal year—
1972 1973 1974 1975 1976 1977
Budget authority:
Permit progranic2c2.=2berussig eon eek 0.5 0.5 0.5: 0.3 0.2 0.2
Disposal research:
oul 4 .3 a2 ae 2.
Contracts__. 1.0 A, 1 a7 a5 #5 2)
1.1 58) 1.0 7 7 7
nil 4 .6 .6 .6 .6
as) -6 2.4 2.4 2.4 2.4
4 2.0 3.0 3.0 3.0 3.0
2.6 4.0 4.5 4.0 3.9 3.9
Obligations:
Ren pIOR tans ses ee 5 8 2 Bees ot v2
Disposal research:
WnsNOUSeS 545 Ao ee Se sl 4 3 ye, +2 2
Contracts 1.0 that oll a) =) 5
SUD Total ean se eh os oe oe ih IES 1.0 7 7 7
Technical studies and monitoring:
InehouseOiiee ties vii TRoii oy * TE 4 -6 6 6 .6
Contracts! Bence th 2 cei ots 3 6 2.4 2.4 2.4 2.4
SOD (Ota ees a ieee ees ey ere 4 2.0 3.0 3.0 3.0 3.0
OKADA EPP es eA ire ee ru Bee gn ges 2.0 4.0 4.5 4.0 3.9 3.9
Qutlays:
Renirittn koe nam passe og see a r25 . 40 ~45 583 2 a:
Disposal research:
TIME OUS Gs ease IS en hase cr on ty 4 05 Be sl .2 2 2
Conthactse ae ke ee ee SR ee 65 88 43 4 7 6
SD totals sapere 28 ee estate can Sew oboe 7 1.20 .70 6 9 8
Technical studies and monitoring:
Inchiouseteeen se eee L aye .05 132 #55 6 .6 6
Gopilnacts epee bees ba Nei ENE 42 . 128 1.6 2.2 7) 2.6
Subtotats teres Sieh he dA A end 2 ~25 1.60 2.15 2.8 3.3 See
Mota nas wakeye OAT Ain Ole eee eld 12 3.2 3.3 Sh 7 4.4 4.2
POSilOlismemeereearr eters Sree ean ames okie 70 100 110 90 79 79
Cost or IMPLEMENTING THE MARINE PROTECTION ACT OF 1971
INTRODUCTION
In a message to the Congress on April 15, 1970, the President directed the
Council on Environmentai Quality to work with other Federal Agencies and with
State and local governments on a comprehensive study of ocean disposal that
would result in research, legislative, and administrative recommendations. Their
report was issued in October 1970 and a legislative proposal has heen prepare]
by the Administration for submission to the Congress.
If the proposal is adopted, the transportation and dumping of all materials in
the oceans, estuaries, and the Great Lakes will be regulated by the issuance of
permits. The Administrator would be authorized to establish criteria which
would consider the possible detrimental effects of ocean disposal and the impact
of the use of alternative locations and methods; to ban ocean dumbing of specific
400
materials and to designate safe sites; and to issue permits where the applicant
presents information indicating that proposed transportation and/or dumping
will not unreasonably degrade or unreasonably endanger human health, welfare,
or amenities, or the marine environment, ecological systems, or economic
potentialities.
Implementation of this legislation will require the development of criteria and
regulations for the granting of permits. This development must recognize both
the characteristics of the materials to be dumped and their potential impact on
receiving waters. To accomplish this will require not only an augmented re-
search effort and understanding on the effects of different waste materials on
the marine environment but also a series of baseline technical investigations of
existing water quality conditions in present and potential dumping areas.
As a continuing effort it will be necessary to continuously evaluate and up-
date the impact of ocean dumping on the marine environment. While the act
specifically assigns surveillance and enforcement functions to the Coast Guard,
it will be necessary for HPA to work closely with the Coast Guard in carrying
out these functions and in modifying permit requirements and regulations as
environmental] requirements or conditions change.
HPA already has available staff expertise on marine pollution problems and
has laboratory capabilities of running a wide variety of laboratory tests. If must
be recognized, however, that HPA does not presently have any ocean-going ship
capabilities; it is therefore anticipated that WPA will make full use of the
Coast Guard, National Ocean Survey, and Corps of Engineers’ ocean-going
equipment and personnel to carry out environmental investigations of marine
pollution problems. It may also be anticipated that the services of private con-
tractors will be utilized for this purpose under the supervision of HPA person-
nel. (A contract for establishing the organizational framework of an overall
coastal monitoring network, which will include monitoring of ocean dumping
zones, will be negotiated during FY 1971. The report from this. study should be
available about the middle of FY 1972.)
It should also be recognized that extension of water quality standards to the
contiguous zone will require the same type of technical investigation and moni-
toring as will be required by the Marine Protection Act specifically for ocean
dumping problems. The program outlined here is directed specifically toward
implementation of the Marine Protection Act; however. it should be recognized
as part of an overali attack on coastal and marine pollution problems.
STAFFING
A supervisory headquarters staff will be required to initiate the program, to
supervise itS operations, coordinate efforts within HPA and all other Federal
and State agencies concerned with the program. The staff would control final
granting of permits. After development of criteria, regulations, and guidelines
for the granting of permits had been developed, some of the authorities for the
granting of permits will be delegated to the regions.
Headquarters staff will also be required to coordinate research efforts on a
continuing basis and to assist in the continuing review and up-dating of criteria
and regulations. It is anticipated that much of the research necessary will be
carried out by grants or contracts or integrated into the surveillance and moni-
toring programs and baseline technical investigations of environmental
conditions.
Development of a broadly based technical staff to supervise the technical in-
vestigations necessary to provide a viable program with the ultimate goal of
stopping ocean dumping completely is a necessary part of the overall research
and monitoring effort. A broadly based headquarters technical staff is needed
to work with the Coast Guard. NOAA, Corps of Engineers, and other Federal
and State agencies whose facilities will be used to carry out monitoring and
surveillance functions and to make full use of the facilities of other agencies in
carrying out ocean disposal research programs. It is expected that each coastal
region will develop its own specialized technical expertise to deal with the over-
all problem as well as problems unique to the region.
OCEAN DISPOSAL PERMIT PROGRAM
Fiscal year 1972: Positions : 48 ; Budget : $500,000
The law as proposed will become effective 6 months after passage. Within this
time interim criteria and regulations for the granting of ocean disposal permits
401
must be established and guidelines for permit evaluation must be developed
and promulgated.
The headquarters staff will convene an advisory committee and set up a task
force of in-house personnel to develop the necessary criteria, regulations, and
guidelines. The work of this group should be closely coordinated with the setting
of water quality standards for the contiguous zone if such laws are enacted. An
approximate $100,000 is required for the operation of this advisory committee,
and $100,000 for the salaries of eight headquarters personnel for an average of
6 months during FY 1972. A total of 40 personnel will be placed in the eight EPA
coastal regions: Boston, New York, Philadelphia, Atlanta, Dallas, San Fran-
cisco, Seattle, and Chicago. The tasks of these personnel will be to: coordinate
input from all EPA offices; develop working relationships with all Federal and
State agencies concerned; receive and review applications for permits ; issue per-
mits where applications fall within established criteria or send to the head-
quarters control group those applications having unusual problems that cannot
be resolved locally; coordinate permit information with the enforcement and
surveillance agency (Coast Guard) ; establish a time schedule with other exist-
ing or proposed regulations; coordinate and select suitable interim disposal sites
with NOAA and the fisheries agencies; and coordinate with State and Federal
agencies selection of alternative methods of disposal. Approximately $300.000
will be required for salaries of regional personnel during FY 1972.
Fiscal year 1973: Positions : 48; Budget : $500,000
During this fiscal year, the permit regulations and guidelines will be re-
evaluated in terms of actual practice and a stronger set of criteria will be devel-
oped to discourage ocean disposal except of the most innocuous materials. It is
anticipated that during this fiscal year, the initial results of research and tech-
nical studies will become available and consideration can be given to the elimina-
tion 6f Some ocean disposal areas and relocation of others.
Fiscal year 1974: Positions : 48; Budget : $500,000
During this fiscal year, a solid environmental data base on the impact of
ocean dumping on the environment should begin being available and the thrust
of the ocean disposal permit program will be toward the elimination of ocean
disposal where possible and the relocation of dumping grounds to areas of small
ecological significance.
Fiseal year 1975: Positions : 35; Budget : $300,000
By fiscal year 1975, research and technological development should have ad-
vanced to the point where ocean dumping as a disposal technique can begin to
be phased out. The reduced staff allocation to this part of the program during
this year assumes this condition.
Fiscat years 1976 and 1977: Positions : 24; Budget : $200,000
By this time, ocean disposal should be eliminated except for demonstratively
innocuous materials and the criteria and guidelines should be developed to the
point where only the most routine permit granting efforts are required. It is ex-
pected that a regional staff of twenty people will be maintained in this part of the
program with a supervisory staff of four in headquarters.
OCEAN DISPOSAL RESEARCH
Fiscal year 1972: Positions: 11; Total Budget: $1,100,000; Contracts: $1,000,000
During this fiscal year, a major effort will be initiated to evaluate the impact
of ocean disposal on the marine environment and alternative methods of dis-
posal of material presently being dumped. A combination of 11 new personnel
and $100,000 for their salaries during fiscal year 1972 and grants, contracts.
and interagency agreements totaling $1,000,000 in fiscal year 1972 will be
required. Much of the work will be integrated into technical studies, monitor-
ing, and baseline studies for surveillance; the bulk of this work will be done
in cooperation with the Coast Guard, NOAA, the Corps of Engineers, and
various fisheries agencies. Specific research projects to be initiated during this
fiscal year are:
(1) Alternative Methods of Disposal—$-400,000.
(2) Environmental Impact Studies—$300.000.
(3) Beneficial Use of Wastes in the Marine Environment—$300,000.
Fiscal year 1973: Positions: 22; Total Budget: $1,500,000; Contracts: $1,100,000
402
During this fiscal year, $1,100,000 will be used in contracts, grants, and reim-
bursable agreements for ocean disposal research. This money will be split be-
tween developing technical and alternative methods of disposal to eliminate
ocean dumping and toward determining environmental impacts of continuing
ocean disposal in the past. Research activities during this fiscal year will begin
being channeled into the beneficial uses of wastes in enhancing the marine
environment. Some funds will also be allocated toward the solution of ocean
disposal problems of particular concern in certain regions and an inerease of
regional staff is indicated to support this action.
Fiscal year 1974: Positions: 22; Total Budget: $1,000,000; Contracts : $700,000
This fiscal year research efforts specifically directed toward ocean dumping
should deerease as problems are solved. It is not anticipated that additional
efforts in new directions will be initiated, but that funds will be directed toward
the more difficult problems as found during the preceding two years.
Fiscal years 1975, 1976, and 1977: Positions: 15; Total Budget: $700,000; Con-
tracts : $500,000 r
During these years, a continuing research effort will be maintained directed
toward eliminating the environmental impact of .past dumping and toward
the solution of specific regional problems.
TECHNICAL STUDIES AND MONITORING
Fiscal year 1$72: Positions: 11; Total Budget: $400,000; Contracts : $390,000
Contractuai or reimbursable agreements will be negotiated with Wederal
ageneies, such as the Coast Guard, or with private contractors for carrying out
studies of specific dumping areas as an interim guide for the granting0f permits.
In carrying out such studies, it is anticipated that HPA personne! wiil be very
closely associated with the survey efforts, either as on-board observers, as project
officers or both. EPA laboratories will be required to provide some laboratory
support, particularly in the more difficult types of determination. Therefore
studies of the dumping grounds of the New York Bight and the New Jerse)
coast will be in the first order of priority.
During this year, the mechanism needed for continued surveillance of ocean
disposal sites and the continued laboratory support of surveillance operations
will be developed. The ocean disposal surveillance program will be integrated into
the overall HPA coastal and ocean monitoring network.
Fiscal year 1973: Positions: 30; Total Budget: $2,000,000 ; Contracts : $1,600,000
During this fiscal year, an intensive series of studies of ocean dumping grounds
will be carried out, with purticular emphasis being given to the development
of disposal sites with small ecological significance. Part of the work earried on
will be of a research nature and will absorb funds from the research part of the
program. Much of the contract money will go for vessel support and iaboratory
facilities. Sixteen personnel will be distributed among the regions and will pro-
vide technical expertise on specific regional problems. It is anticipated that these
personnel will participate in surveys and will assist the Coast Guard in its
surveillance activities.
Fiscal year 1974: Positions: 40; Total Budget: $8,000,000; Contracts : $2,400,000
By fiscal year 1974, the Coast Guard should be maintaining a full scale surveil-
lance of all dumping activities with close support from EPA personnel and
laboratories. Additional personnel will be needed in the regions to deal with
svecific local problems.
Fiscal year 1975: Positions: 40; Total Budget: $3,000,000; Contracts: $2,400,000
During this fiscal year, a major effort will be made on the overall impact of
ocean dumping on the coastal and marine environment. The bulk of the con-
tract money will go to reimbursable agreements or contracts or ship support
to assist in these activities. By the end of this fiscal year, all the important areas
of the coastal environment subject to dumping impact will have been evaluated
in terms of their ecological significance and usability for continued ocean
disposal.
Fiscal years 1976 and 1977: Positions: 40; Total Budget: $3,000,000; Contracts:
$2,400.000
By this time, a continuing program of surveillance can be earried out by
contract or reimbursable agreements with the major EPA effort going into
laboratory support and studies of particular local or regional programs. The
403
personnel and budget indicated are those which it now appears necessary to
commit to have a sustained surveillance program through the Coast Guard
to meet HPA objectives. It should be noted, however, that this surveillance
program and the studies associated with ocean disposal will probably be
integrated into an overall coastal and oceanic monitoring network and that
the personnel and budget indicated specifically for the ocean dumping programs
will also continue toward this overall effort.
COST OF IMPLEMENTING THE MARINE PROTECTION ACT
{In millions of dollars]
1971 1972 1973 1974 1975 1976 1977
Bidgewauthantyese ees: 7) seco 0 2.0 4.0 4.5 4.0 3.9 3.9
Whligatonsseeee a ee 4) 2.6 40 AS 4.9 3.9 3.9
OVI EN Ge 5) ee oes & ae Bae ee) 0 W2 ore gh 3.7 aa 4.2
Wor-vedrsmees eo ews eee oe 0 70.6 100.0 110.0 100.0 79.0 79.0
Mr. Dixeeri. Mr. Rogers?
Mr. Rocers. Mr. Ruckelshaus? It is good to see you.
Just to pursue for a moment the question on solid wastes, what is the
Administration’s request for funds? What are your requests for funds?
Mr. Rucxrersuaus. I don’t have those figures before me, Mr. Rogers.
I can provide them for you. We have requested in our Solid Waste
Office as we inherited it, a budget of approximately $17 million. We
have requested in our supplemental request which is still in the process
of approval more money for the purposes of new and innovative
demonstration projects under the Resource Recovery Act. And in
addition to that, we have requested additional funds for the fiscal year
1972 submission for this same purpose, for new and innovative demon-
stration projects, and also for all of the studies which we were
required to make under the Resource Recovery Act.
Mr. Rocers. What is your 1972 request? It is only about $17 million,
isn’t it?
Mr. Ruckertsuaus. No, it is more than that.
Mr. Rocrrs. What is your figure?
Mr. RucxersHavs. I can’t give you the figure now, because there
was a Separate request in the budget that was sent to Congress of $85
million.
Mr. Rogers. For how much?
Mr. Rucxensuaus. Highty-five million dollars. This did not just
cover the Solid Waste Office of the Environmental Protection Agency.
This was because our agency came into existence so late in the budget
cycle that the Office of Management and Budget gave us this extra
$85 million to meet the additional needs that we would have as an
agency. This budget information will be submitted as soon as we have
allocated the funds.
Mz. Rogers. This hasn’t come up to the Congress yet?
Mr. RucwkersHaus. Highty-five million dollars has come up, but
there has been no designation as to what the request represents.
Mr. Rocrrs. You don’t know whether you will get any of it for Solid
Waste or not?
Mr. RuckersHavus. We have requested some of it for that purpose.
I can’t tell you the exact figure at this time, because I can’t recall.
Mr. Rocrrs. What is your 1972 budget request for solid waste, which
404
was already submitted? In the President’s budget, what figure is that
for solid waste ? :
Mr. Rucxevsuavs. I think it is between $17 and $19 million.
Mr. Rocers. As I recall, it is about $17 million, maybe it is
$19 million, which is far under the authorization, isn’t it?
Mr. Ruckxetsnaus. Yes, that is right.
Mr. Rogers. About how much under?
Mr. Ruckersuaus. Well again I would have to look at that authori-
zation figure in the act.
Mr. Rogers. Are any of your people here who could help us? I
realize you may not have every figure in your mind. Don’t you have
some Solid Waste people here who can help us?
Mr. Rucxersuaus. No, we don’t have any Solid Waste people here
with that figure.
Mr. Rocers. Well, I won’t pursue that at this time, 1f you wilJ
furnish that for the record.
(The following was submitted in response to the above:)
This information has not yet been cleared by the Office of Management and
Budget. It will be provided as soon as such clearance has been obtained.
Mr. Rocers. Don’t you think it is a good idea to have specific dead-
lines as to when we should say everything must have primary, second-
ary, tertiary treatment before you dump it in the waters? Would you
support that principle?
Mr. Rucxetsuats. I think it is a good idea to have deadlines. I
think it is a question of whether it is to have deadlines in the act or
whether to have deadlines administratively proposed.
Mr. Rocers. Have you set any deadlines?
Mr. RuckersHavs. No, because we don’t have authorization to set
deadlines at all.
Mr. Rocers. Then we ought to either give you deadlines or give you
the authorization to do it?
Mr. Ruckersnaus. Yes, I think that is right.
Mr. Rocers. In principle, you are for that, as I recall, and you were
for that in the air pollution bill.
Mr. RucketsHatvs. Yes.
Mr. Rocrrs. We have that in the proposal and I am hopeful we can
do it, and I see no reason why it could not be done legislatively.
Mr. Ruckersnavs. It is my belief that, where you have a problem
that may be complex, as where different kinds of dumpings that are
involved, that there ought to be legislative authorization to have
administrative agency set the deadlines.
Mr. Rocers. Perhaps if we set the goal, we may have some slippage—
we hope not—but in principle you agree to the deadline idea?
Mr. RuckersHavs. Yes.
Mr. Rocers. Let me ask you this. Do you think municipal sewage and
discharge of waste should be exempt from any requirement of permits ?
Mr. Recxersnavs. That is covered under the Water Pollution Con-
trol Act, Mr. Rogers. We think it is better to control it under that act
than to try to control under the provisions of this act. We don’t want
to exempt them from regulation, but we think the regulation under
the Water Pollution Control Act is a more effective way of doing it
than through ocean dumping control legislation.
405
Mr. Rocsrrs. I thought you said the Refuse Act requires a permit
issued by Army Corps: of Engineers for discharge of waste other than
municipal sewage.
Mr. Rucketsuavs. That is right. But we control the discharge of
municipal sewage into the territorial sea under present law, the Federal
Water Pollution Control Act, not under the Refuse Act. We are asking
in our proposed amendment to the Federal Water Pollution Control
Act to extend that coverage to the contiguous zone, and even beyond,
when it originates here in our own country.
Mr. Rocers. In other wor ds, you do believe municipal systems should
be covered ?
Mr. Rucketsuaus. They should be controlled, not necessarily by
permits.
Mr. Rogers. Well, standards that they would have to meet, and so
forth ?
Mr. RuckextsHavs. Yes.
Mr. Rocrrs. Now you also say dumping of some materials, such as
ehemical warfare materials and toxic industrial wastes, would be
stopped immediately. Should this be stopped immediately ?
Mr. Rucxersnavs. We think it should be, Mr. Chairman. That is
why we suggested that power should be given to the agency to stop it,
Mr. Rogers.
Mr. Rocers. Is there any reason now why Federal installations
couldnt immediately be stopped in line with the Presidential intent ?
Mr. RuckersHaus. I think that the Federal agencies, in compliance
with Presidential Executive Order 11507, should stop the discharge of
any of these materials.
Mr. Roerrs. Are you aware of the dumping that the Norton Air
Force Base has been ay ing on ?
Mr. Ruckerstavs. I understand, Mr. Rogers, you brought that. up
yesterday and that Chairman Train was going to get you an immediate
answer to it. I have just gotten back late ast night and will work with
him in getting that answer for you.
Mr. Rocers. There was some discussion by the Norton Air Force
Base that they were dumping, but they said it was treated by the pub-
lic body into which they have arrangement to make their dumpings
into the waste system. When we talked to the body out there, they said,
“Oh, no, it must be treated by the people who dump before we accept
it”.
So, we have a chicken and an egg, and nobody does it. And do you
recall any impact statement having been filed by them?
Mr. RucKexsuavs. No, I do not.
Mr. Rocrrs. As a matter of fact, has any military installation filed
an impact statement with your office?
Mr. Ruckersnaus. I think some of them have, but I can’t give you
any specific examples. But I would be glad to supply them for you.
Mr. Roegrrs. I presume they would file it with counsel, but they
would ask for your comment, wouldn’t they ?
Mr. RucxetsHavs. That is right. Under the Security Order we are
the agency which gives them technical assistance in treating their
waste of every kind.
406
Mr. Rocers. Well, we checked with EPA yesterday and we find that
no impact statements have been filed for military bases. Don’t you
think that is unusual ?
Mr. Rucxernsuats. I not only think it is unusual, I am not sure it
is even so.
Mr. Rocers. That is what your people are telling us. I don’t know
whether I can believe them or not.
Mr. Rucxeisnavs. Mr. Dominick says he knows of one or two.
Mr. Dominicx. We have had impact statements filed with the agency.
Mr. Roerrs. For military bases ?
Mr. Dominick. From military bases. I believe we had one filed from
Fort Dietrick the other day with respect to certain chemicals that
they were proposing to discharge into a sewage system.
Mr. Rogers. Wouid you let us know for the record how many ?
Mr. Domrntcr. We certainly will.
Mr. Rogers. Because the information we got from your informa-
tion people yesterday was that none had been filed.
(The information follows :)
ENVIRONMENTAL IMPACT STATEMENTS RECEIVED BY HPA AND ITS PROGRAM UNITS
FROM THE DEPARTMENT OF DEFENSE—MAY 15, 1970—Aprin 15, 1971
DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS
Anclote River, Fla.
Anacostia River and tributaries, Md. and D.C.
Atlantie Intracoastal Waterway bridges
Alpine Lake project, Texas
Areadia Reservoir, Okla.
Arkansas-Red River Basins water quality control study, Texas, Oklahoma, and
Kansas
Aipine, Pecos River, Tex.
Baker Brook flood protections project, Massachusetts
Baltimore Harbor and Channels, Md. and Va.
Brazos Island Harbor, Tex.
Brush Bayou, La.
Beals.Creek at Big Springs, Tex.
Beaver Brook Reservoir, N.H.
Big Creek Watershed, Kans.
Biack River Harbor, Alcona County, Mich.
Big Creek, Lower White River, Ark.
Baldwin and Hannon Sloughs, Ala.
lue Marsh Lake project, Pennsylvania
Bucks Harbor project, Maine
Bristol Harbor navigation project, Rhode Island
Blue River, Mo. and Kans.
Bodega Bay dredging, California
Brookfield Lake, Mo.
Blue Springs Lake, Mo.
Brownsville Washington navigation improvement
Buchanan Reservoir project, Chowchilla River Basin, Calif.
Butler Valley Reservoir project, California
Caseadia Dam and Reservoir, Wash.
Cottonwood Creek, Stuart Gulch, Wash.
Caleasieu River, Devil’s Elbow, La.
Cedar Bayou, Tex., navigation
Choptank River, Md.
Central and southern Florida, small boat navigation
Champlin Slough Watershed, Tehama County, Calif.
Chino Canyon improvement project, Polin Springs, Calif.
Citadel, santitary landfill permit request, Charleston, 8.C.
407
Caleasieu River at Coon Island, La.
Charles River Dam, Mass.
Columbia River and tributaries, canyons 1 and 2, Wenatchee, Wash.
Clear Creek, Tex., flood control project
Cliff Walk, scienic restoration project, Rhode Island
Coos Bay, ‘Oreg.
Corpus Christi ship channel—45-foot project, Texas
Corpus Christi ship channel, Port Aranas, Tex. -
Corpus Christi Beach, Tex.
Corte Madera Creek, channel improvements, Marin County, Calif.
Candy Dam and Reservoir, Okla.
Cottonwood Creek, Calif.
City of Munday, Tex.
Crescent City Harbor Dredging and breakwater extension, California
Cucamonga Creek, San Bernardino, and Riverside Counties, Calif.
Clayton Dam and Reservoir, Jack Ford Creek, Okla.
Crutcho Creek, channel improvements
Delaware Bay-Chesapeake Bay Waterway
Delaware coast protection, Delaware
Des Moines River at Ottumwa, Iowa
Dewitt, Ark., flood control project
Dickey-Lineoln School Reservoir, Maine
Dunkirk Harbor, NY.
Dog and Fowl River. Mobile Bay. Ala.
Dodge City, Las Animas, Arkansas River and tributaries. Great Bend, local
protection, New Mexico
East River and Steinway Creek, N.Y.
Duck Creek, channel improvement, Garland, Tex.
Buffalo Bayou and tributaries, Texas
Birch Dam, Birch Creek, Okla.
Cow Creek, channel improvement _
Big Hill Dam and Reservoir, Big Hill Creek, Kans.
Copan Dam, Little Chaney River, Cin and Kans.
Clinton Lake, Kans.
Chariton and Little Chariton Rivers, Mo.
Davis Creek Lake, Iowa
Entiat River, Seattle, Wash.
Elk Creek, Wash.
Hast River, N.Y. (spur channel to Astoria waterfront)
HI Paso, local protection project and central area, Texas
Eastern Rapids and South-Central Avoyelles Parishes
Ellicott Creek, N.Y.
Boone, Colo., flood protection project
Bayou Des Gloises Division, channel and tributaries, Louisiana
Bayou Coden, Ala.
Bayous Rapids, Boeuf, and Cocodria and outlets, Louisiana
Edgartown Harbor, Edgartown, Mass.
Eldorado Dam and Reservoir, Walnut Creek, Kans.
Ellicott Creek project, New York
Fall River Harbor, channel project, Massachusetts
Fall River Harbor, navigation project, Massachusetts
Flood control on Merced County streams, California
Flood control project, Bennington, Vt.
Flood protection project. Danbury, Conn.
Fort Charles and Ivy Landing, drainage, district No. 5; and Sttingtown Drainage
and Levee District No. 4, Illinois
Fisheating Creek Area, Fla.
Fort Meyers Beach, Fla.
Four Mile Run, Va.
Fiat Rock Creek, Tulsa, Okla.
Freeport Harbor, Tex.
Gilham Reservoir, Ark.
Gulf Intracoastal ‘Waterway, Texas section
Frenchboro Harbor, Maine
Gulf Intracoastal Waterway, Offatts Bayou: Galveston, Tex.
Highland Bayou, Tex.
408
Frio River in the vicinity of Three Rivers, Tex.
Gulf Intracoastal Waterway, Chocolate Bayou, Tex., navigation project
Gulf Intracoastal Waterway, mouth of Colorado River, Tex.
Galveston Harbor and Channel, Tex.
Giww, Port Isabel side, channels, Texas
Genesee River Basin study, New York
Geneva-on-the-Lake, Ohio
Gila River, below Painted Rock Dam, Ariz.
Gila River Canal, improvements, Arizona
Goleta, Calif., and vicinity, Santa Barbara County
Gordons Creek, Miss.
Intracoastal Waterway to vicinity of Boute, La.
Great Lakes and St. Lawrence Seaway, navigation season extension
Grand Lagoon, Fla.
Gypsum, Kans.
Hidden Reservoir, Madera County, Calif.
Hoonah Harbor, Alaska, harbor improvements
Hogtown Creek, Fla.
Jacksonville Harbor, section 2, Florida
Humboldt Harbor at Sand Point, Alaska
Ipswich River, navigation project, Massachusetts
Ico Harbor Dam, Wash.
Indian Bend Wash project, Arizona
Jack and Simmerly Sloughs area, Calif.
John F. Baldwin Ship Canal project, California
Kaimu Beach, Hawaii
Kaneohs-Kailua Area, Oahu, Hawaii
Lahaina small boat harbor project, Hawaii
Lake Port Reservoir, Lake County, Calif.
Lee County, Fla., beach erosion control
Jacksonville Harbor, section 1, Florida
Lavon Dam and Reservoir, modification; and East Fork Channel, improvement,
Texas
Lido Key, beach erosion control, Sarasota County, Fla.
Las Cruces, local protection project, Las Cruces, N. Mex.
Lake View Dam and Reservoir project
Ludington Harbor, Mich., commercial harbor improvement
Lake Wichita, Holiday Careek, Tex.
Los Esteros, Pecos, Espanola, N. Mex.
Manteo (Shallow-Bay) Bay, N.C., navigation
Logan Airport, Mass.
Lagoon Pond, navigation project, Massachusetts
Local protection project, Marion, Kans.
Long Sands Beach project, Maine
Lower San Joaquin River and tributaries, Sanislaus County, Calif.
Merrimack River, N.H., Hooksett project No. 1913
Marysville Reservoir, Yuba River, Calif.
Massachusetts Port Authority, airport expansion
Merimentau River, La.
Mountain Creek, Trinity River Basin, Tex.
Laneport, North Fork and South Fork Lakes, San Gabriel River, Tex.
Lufkata Reservoir, Okla.
Little Rock Levee (Eastend-Fourche Bayou) Ark.
Kaw Dam and Reservoir, Arkansas River, Okla.
Little Blue, channel improvement, Missouri
Loup River, Nebr.
Lower Granite, Walla Walla, Wash.
Lake Stevens, Wash., section 205, Seattle, Wash.
Lapwai Creek, Idaho
Metlakatla Harbor, Metlakatla, Alaska
Mill Creek, interior survey report, southwest Ohio
Quachita, Monroe, Bayou Bartholemew, and Yazoo River, La.
Mississippi River between Columbus and Huhman, Ky.
Mississippi River, east bank, Warren to Wilkinson, La.
Mojave Forks Reservoir, recreational facilities, California
Mississippi River, flood control, Winona, Minn.
4C9
St. Bernard Parish, La.
Scayaquada Creek, N.Y.
San Diego Harbor, navigation channel improvements, California
Sacramento River, bank protection, California
Selma and Selmont, Ala.
Singlaw River, navigation channel, Washington
Shidler Dam and Reservoir, Salt Creek, Okla.
Sheyenne River N. Dak.
Short Sands Beach project, Maine
Smithfield Lake, Mo.
Snohomish River and tributaries, Washington
Slaughters Bar, Wash.
Scappoose drainage district, flood protection
Souris River, N. Dak.
South shore of Lake Ontario, Fort Niagara State Park, N.Y.
Streams in vicinity of Fairfield, Calif.
Tahquitz Creek, debris basin and channel, Palm Springs, Calif.
Tampa Harbor, Fla., navigation
Taylor Bayou, Tex., flood control and major drainage project
Texas City Channel, Tex., industrial canal
Tocks Island Reservoir project
Tybee Island, Ga., beach erosion control and hurricane protection Tyler Island,
Ga.
Verona (Staunton) Dam and Reservoir project, Virginia.
Great South Bay and Patchoque River, N.Y.
Pascagoula River Basin, Miss. and Ala.
Pajaro River levies, Santa Cruz and Monterey Counties, Calif.
Potomac River Basin, Sixes Bridge, Dam, and Reservoir project
Panama City Harbor, Fla.
Port Hueneume Harbor project, Ventura County, Calif.
Protective sandfill, Key Biscayne Beach, Fla.
San Diego River, Mission Valley, San Diego, Calif.
Spring River and tributaries, Mo., Kans. and Okla.
Mississippi River from Cassville, Wisc. to mile 300
Mississippi River at Moline, Ill. and Davenport, lowa
Mississippi River, Gulf outlet, Michoud Canal, La.
Mobile Harbor, Ala.
Monterey Harbor, breakwater project, California
Missouri River, N. Dak., S. Dak., and Nebr.
Murrells Inlet, Georgetown County, S.C.
Napa River flood control project, California
Nawiliwili, deep-draft harbor, Kauai, Hawaii
New London Harbor project, Connecticut.
New London hurricane barrier, Connecticut.
New Jersey coastal inlets and beaches, Great Egg Harbor Inlet to Stone Harbor
Nookagee Reservoir project, Massachusetts
North Nashua flood protection project, Massachusetts
North Nashua River, channel project, Massachusetts
Okeechobee Waterway, Fla.
New Madrid, Mo.
Osceola, Ark.
Jefferson River, Mont.
North Shore of Long Island, Suffolk County, N.Y.
North Harbor, Wisc. (Dorr County)
Lytle and Warm Creeks, San Bernardino, Calif.
Oachita and Black Rivers, navigation project, Arkansas and Louisiana
Ottawa River Harbor, Mich. and Ohio
Oakland, interharbor dredging, Alameda County, Calif.
Ohio River locks and dams, annual list of repair and maintenance projects
Pamlico River and Morehead City Harbor, N.C., navigation
Park River flood protection project, Connecticut
Pax Creek, snagging and clearing project, West Virginia
Peyton Creek, Tex.
Pattonsburg Lake, Mo.
Peripheral Canal, Central Valley project, California
Placer Creek at Wallace, Idaho
62—513—T1——27
410
Phillips Reservoir, Mass.
Piogahammond Reservoir, Pa.
Pleasant Bay, Cape Cod, Mass.
Oak Bluff Beach project, Massachusetts
Pisquatua River project, New Hampshire.
Point Place, flood control, Toledo, Ohio.
Platte River, channel, Missouri
Port San Luis project, California
Port Sutton, Fla. navigation
Pine Bluff, Bayou Bartholomew, flood study
Portugues and Bucance Rivers, Puerto: Rico
Posten Bayou, proposed flood control study
Red Brook Harbor project, Massachusetts
Red Run Drain, Clinton River, Mich.
Roseau River, Minn.
Reservoir operations
Reedy River, 8.C., Salvda River Basin
Red River of the North, flood control project, Pembina, N. Dak. |
Revene and Nantasket Beaches, Mass. |
Skiatcok Dam and Reservoir, Okla.
Ridgecraft Wash., channel, Kern County, Calif.
Stillwater Creek and tributaries, Stillwater, Okla.
San Antonio, improvement, San Antonio River and tributaries, Texas
Running Water Draw Watershed, Plainview, Tex.
Runuing Water Draw, Brazos River, Tex.
Spring Creek, Springdale, Ark.
Sabine River and tributaries, Texas and Louisiana
San Antonio, channel improvement project, Texas
Sand Bar, Milton, Vt.
San Leandro Marine, Alameda County, Calif.
Stratford hurricane barrier, Connecticut
Saxonville fiood protection project, Massachusetts
San Luis Rey River, San Diego County, Calif.
Sanema Creek, channel improvement, California
Small beach erosion project, Broadkill Beach, Del.
DEPARTMENT OF THE ARMY, OFFICE OF THE SECRETARY
Project Eagle, phase I—Disposal of mustard gas at Rocky Mountain Arsenal,
Denver, Colo.
Plan to dispose of biological agents and toxins at Fort Detrick, Md.; Pine Bluff
Arsenal, Ark.; Beale Air Force Base, Calif.; and Rocky Mountain Arsenal,
Colo.
DEPARTMENT OF THE AIR FORCE
Luke Air Force Base, runway improvements
DEPARTMENT OF THE NAVY
Underwater demolition of dud ordnance near the island of Culebra
Santa Rosa Wash project, Pinal County, Ariz.
Santa Paula Creek project, Ventura County, Calif.
Sunset Cliff, segment B, shore protection improvement, Osprey Street to Ladera
Street, city of San Diego, Calif.
Edwards Underground Reservoir, Guadalupe, San Antonio, and tributaries, Texas
Tennessee, Tombigbee Waterway project
Theodore Ship Channel, Mobile Harbor, Ala.
Corps of Engineers Circular No. 1120—2-69, guidelines
Tangipahoa River and tributaries, Louisiana
Vicksburg, Yazoo areas, Miss.
Project No. 1194, Union River, Maine
Whiteriver to Augusta, Ark.
Survey of Gulf Intercoastal Waterway to vicinity of Boutte, La. -
Ventura, Marina project, California.
Trumbull Pond Reservoir, Conn.
Tahquitz Creek, debris basin and channel improvement, Palm Springs, Calif.
411
Walnut Creek, Contra Costa County, Calif.
Trexler Lake, Lehigh County, Pa.
Westerly, R.I.; hurricane barrier
Whitmanville Reservoir, Mass.
West Tennessee tributaries projects
Wallisville Lake, Trinity River, Tex.
Turtle Creek, Yukon, Okla.
Whitney Lake, Brazos River, Tex.
Waurika Dam and Reservoir, Beaver Creek, Okla.
Water quality control projects, study, Arkansas, Red River Basins, Tex., Okla.,
and Kans., part II
Woodbine Lake, Kans.
Mr. Rocers. Do you know of any others besides the one you
mentioned ?
Mr. Dominick. We have had a number of statements filed with re-
spect to the dumping of munitions and other matters. Many of those,
of course, have been thoroughly reviewed by the Congress and by
others. But impact statements were filed in the more celebrated cases.
Mr. Roczrs. The nerve gas dumping ?
Mr. Dominick. That is correct.
Mr. Rocrrs. I was speaking of other than those that the Congress
has gone into. Well, if you will submit that.
I think it is important, if we are going into this whole question, to
set up some organization with some toxicologists in it. Do you have
any toxicologists operating in your Agency #
Mr. Ruckxetsuaus. Yes, we do.
Mr. Rocers. What is your setup there?
Mr. Rucxrerssavs. We are attempting to increase the number of
toxicologists that we have in the Agency.
Mr. Rogers. How many do you have?
Mr. Ruckersuaus. I can’t give you the specific number, because it
changes from day to day. We are trying to hire toxicologists, who are
in short supply in cur Agency and, indeed, in the country. Particularly
in our pesticides office we have a program to hire immediately approx1-
mately 50 additional toxicologists, in order to comply with the provis-
ions of the Pesticides Act.
Mr. Rogers. But you don’t know how many you have presently ?
Mr. Ruckxersuavs. I can’t give that exact figure. I can supply
it for the record.
Mr. Rogers. Do any of your people here know ?
Mr. Rucxersuavs. Not that I know of.
Mr. Rocrrs. Nobody knows? I won’t pursue it, if no one knows.
Mr. Rucxeisuavs. We can supply that information for the record.
Mr. Rogers. I think it would be helpful. I realize you can’t keep
everything in your head, but I think it would be helpful to have sup-
porting people here who could give us some of these answers that we
need to pursue.
(The information follows:)
TOXICOLOGISTS HMPLOYED BY THE HNVIRONMENTAL PROTECTION AGENCY
At the present time the Environmental Protection Agency employs 45 toxi-
cologists, all of them in the Pesticides Office. There are plans for the hiring of 18
additional people in this field in fiscal year 1971.
In the Pesticides Office toxicologists review products, labels, and laboratory
reports for determination of compliance with label requirements. Toxicologists
412
also review petition toxicology data for evaluation of sufficiency, and participate
in the establishment of tolerances for pesticides residues on or in food and
feedstuffs, They conduct (1a) studies on the toxic action of pesticides in small
animals from low and high level exposure, (b) research on the toxicological
effects of pesticides administered to subhuman primates to determine potential
risks from long-term low level exposure, and(c) toxicological studies of pesti-
cides residues in estuarine and marine life.
Mr. Rogers. Let me ask you this, Mr. Ruckelshaus. You have the
authority to ban mercury being discharged into the waters?
Mr. Ruckxersuavs. We would have the ‘authority, Mr. Chairman. In
any instances where a toxic substance is discharged into a waterway it
is in violation of water quality standards. And in the case of mer-
cury—we have, in all of the industries and installations where we have
found discharge of mercury to be occurring, stated that it was our goal
to eliminate any continued discharge of mercury from manmade
sources into the environment.
Mr. Rogers. Is there any reason why it shouldn’t be banned? Really,
we know the results of mercury in the water, don’t we?
Mr. Rucxersuaus. That is right.
Mr. Roerrs. We know how to remove it and to neutralize it. It is
very simple. Is there any reason why it should not be banned ?
Mr. Rucxersnavs. In discharging into the water, no; not that I
know of.
Mr. Rocsers. Would you consider doing that?
Mr. RucketsHaus. That is what we have stated.
Mr. Rocrrs. You say you want to phase it out. I am saying a ban,
a deadline; no more mercury in the water.
Mr. Ruckersnavs. That is essentially what we have done, Mr.
Rogers.
Mr. Rocrrs. I don’t think it is at all, Mr. Ruckelshaus, I know
we can talk about this, but it has not been banned. Mercury is still
being put into the waters of the United States. You know it and I
know it. In fact, even some of the cases that were settled authorized
them to do it. Why shouldn’t it be banned, if you have that authority ?
We know it is bad, there is no question about it. Shouldn’t it be
banned ?
Mr. Ruckentsuaus. I believe that what we are working toward is
the ban of mercury.
Mr. Rocnrs. I am not saying working toward, I said ban now, a
deadiine saying “No more after next. week.” Is there any reason this
shouldn’t be done?
Mr. Rucxetsuaus. There is no reason.
Mr. Rocrrs. Would you consider doing it ?
Mr. RucxersHaus. Yes; I would.
Mr. Rogrurs. Would you let me know what your decision finally is?
Mr. RucwersHaus. Yes; I will.
(The information follows:)
EPA POSITION ON DISCHARGES OF MERCURY
The position of the Environmental Protection Agency regarding the discharge
of mercury to public waters is to eliminate all man-made discharges. HPA’s
approach to this goal is to seek from all known industrial mercury dischargers
an immediate and substantial reduction. Experience shows this to be possible
and practical in most cases with ‘a nominal effort on the part of industry. In
413
a few cases substanital effort was required by industry, but significant results
have been achieved nevertheless. Given additional short periods, a matter of
a few months, more sophisticated process, product, or raw material changes
plus special treatment techniques have resulted in further reductions in mercury
discharges. The search for additional measures which will eliminate the addition
of mereury to the aquatic environment then continues, and complete elimination
has been achieved in some eases. This effort to identify and eliminate major
and specific point sources of industrial mercury discharge has resulted in meas-
urably improved conditions in waters formerly affected.
In addition to the identifiable industrial sources of mercury entering the na-
tion’s waters, there are ubiquitous sources from man’s activity, which at the
souree may be undectectable but when collected constitute measurable amounts.
A proposal to immediately ban the discharge of all mercury into navigable
waters would not recognize the practical limitations imposed by the fact of in-
numerable sources. Hospitals, dental clinics, university laboratories, medical
and scientific research facilities and many varieties of small businesses may
all discharge quantities of materials containing mercury. Most often these are
collected in municipal systems, where after treatment mercury may still be found
in the treatment plant discharge. The methods and alternatives available to
these small but numerous sources are far more limited than to a large industrial
source. Additionally, the capabilities of municipal waste treatment plants are
limited for purposes of completely eliminating any particular waste constituent,
including mercury.
The Hnvironment Protection Agency along with other governmental agencies
and private concerns, having recognized the potential threat from increasing
mereury discharges before any known damage to man has occurred in the United
States, have reversed that trend. With continued progress in the reduction of
man-made mercury discharges and continued enforcement of appropriate limita-
tions on water and food and the use of mercury in materials such as pesticides
and fungicides, it is believed that public health is adequately protected.
Mr. Rogers. Then one last question. How many enforcement actions
have been taken by your agency under the Air Pollution Act? I know
when you first came in you said you were concerned because only one
of any significance had been taken. Have you instituted any enforce-
ment actions ?
Mr. Ruckersnaus. One of the problems we have under the Air Pol-
lution Act is that we have two essential enforcement responsibilities.
One is to enforce the implementation plans as adopted by the States
now. Under the Clean Air Act of 1970, those implementation plans
are not adopted for 17 to 19 months after the last day of last year.
We have an emergency power under the act where there is a substan-
tial endangerment. to human health.
Mr. Rocrrs. Has that authority been used at all?
Mr. Ruckersnaus. That authority has not been used, because we
have not as of this time found any circumstances where this occurred
where we were not able to get the particular discharger into compli-
ance without going to court. - But we would certainly use that power if
we found it necessary.
Mr. Rocrers. How many actions have we had? The only ones I re-
call were in West Virginia, the chicken case; and the ones in West
Virginia were initiated ‘by the Governor.
Mr. Ruckersiavs. That is because of the cumbersome administra-
tive hearing procedures that were sod by the Clean Air Act
of 1970. Once we get: implementation plans adopted, we don’t have to
go through those cumpersonie procedures of having enforcement con-
ferences and hearings before we get into court.
Mr. Rocrrs. We passed the act last year and I want to know if any
actions have been instituted this year.
414
Mr. RucxetsHavs. There is no difference in the emergency provi-
sions under the old act and under the new act, but all of our ’‘enforce-
ment procedures under the new act are tied into implementation plans
which will not be adopted for 17 or 19 months.
Mr. Rocgsrs. I would like to pursue this more, but the chairman tells
me I have exceeded my time. I am very much concerned that no en-
forcement action has been taken by the agency.
Mr. Dineeiu. Mr. Goodling?
Mr. Goopiine. Thank you, Mr. Chairman. I shall be very brief.
Mr. Ruckelshaus, has your agency been in existence long enough to
have given thought to ocean dumping of automobiles ?
Mr. Rucxersuavs. No. The Federal Water Quality Administration,
which has been doing some research into certain problems involving
ocean dumping, prior to coming into HPA.
Mr. Gooprtrve. Have you come up with any answers whether it is
good or not? Is any harm being done by dumping of junked
automobiles ?
Mr. Rucxetsuavs. I don’t know the answer to that question.
Mr. Dominick. No, we don’t have specific answers to that question,
Mr. Goodling. I believe that there may be some areas in the oceans
where the placing of junk automobiles would be beneficial to fish
life, to provide a proper habitat. We can supply answers to you on
what studies have been done by the Bureau of Sport Fisheries and
Wildtife on that aspect.
(The information follows :)
STUDIES ON FisH HABITATS OF JUNKED AUTOMOBIES
Such information is contained in the attached reports at the pages indicated :
Progress in Sport Fishery Research, 1966, p. 12.
Progress in Sport Fishery Research, 1967, p. 176.
Progress in Sport Fishery Research, 1968, p. 17.
Progress in Sport Fishery Research, 1969, p. 185.
[Progress in Sport Fishery Research, 1966, p. 12]
ARTIFICIAL FISHING REEFS
Automobile body reef study
We made monthly SCUBA observations on the laboratory’s pilot artificial reef,
two miles off Monmouth Beach, New Jersey. Construction material consists of
16 junk automobile bodies sunk in a depth of 55 feet. The cars are supporting a
moderately heavy growth of encrusting organisms—primarily barnacles and
hydrozoans. The initial fouling rate during the last summer was very rapid, but
with decreasing temperatures the accumulation of encrusting organisms has been
reduced. A differential setting of organisms occurred on the car surfaces. The
heaviest fouling was on the painted and chrome surfaces of the bodies. The un-
painted and rusted surfaces of the engine and chassis have few marine organisms
attached.
The fish attracting quality of this test reef became evident soon after it was
established. The fish observed in or about the reef were: tautog, cunner, black
sea bass, scup, summer flounder, Atlantic mackerel, pollock, longhorn seulpin,
puffer, searobin, and ocean pout. Although most of the fish observed were adults,
there were also juvenile pollock, puffers, searobins, and hake. If the reef can func-
tion as a nursery habitat, it will not only atiract angling size fish from other
areas, but may enable fish to survive past the larval stage.
We noted a seasonal change in the reef fauna in December. Water tempera-
tures dropped and longhorn sculpins, a boreal species, had moved to the reef.
The two most common demersal invertebrates encountered in the reef were
starfish and sand dollars. We found both species densely packed under and
415
around the car bodies. The reason for the aggregation is not understood, but it
might be a response to eddy currents that are set up by the car bodies. The star-
fish were frequently aggregated into “balls,” made up of several individuals.
The Bureau of HWeonomic Research, Rutgers University, in cooperation with
our Laboratory, has submitted a research proposal to the Ford Foundation for an
economic feasibility study on the utilization of metropolitan wastes for the
construction of artificial fishing reefs.
A cooperative artificial fishing reef program was arranged with the Bureau of
Marine Fisheries, New York State Department of Conservation. We plan to con-
struct a pilot-reef off Rockaway Beach utilizing a permit issued to the State of
New York by the Corps of Engineers. Other areas along the Long Island littoral
zone and some old artificial reef sites will be made available to us to study. This
joint effort with New York will extend our research activity into an area of
heavy recreational angling.
LARRY OGREN.
[Progress in Sport Fishery Research, 1967, p. 176]
ARTIFICIAL REEF ECOLOGY
Our artificial reef program which began last year with the construction of
a pilot study reef off Monmouth Beach, New Jersey, is designed to determine the
effect of artificial fishing reefs on the distribution and abundance of marine game
fish. From the data that we have gathered this year, and information available
from other sources, there is no doubt that artificial reefs attract fish. However,
we believe these reefs may not only congregate available fish, but also serve to
increase the size of some populations by providing additional spawning sites for
adults and protected areas and food for the young.
We selected five sites between New York and Miami in addition to our Mon-
mouth Beach site, to compare species composition of fish and invertebrates at-
tracted to reefs in different latitudes and environments. In choosing these sites,
we considered depth of water, bottem type, ease of access by our survey team and
distance to coastal population centers. After selecting sites off Atlantic Beach,
Long Island, New York; Kiawah Istand, South Carolina (south of the Charleston
Harbor entrance) ; Jacksonville Beach, Florida; Palm Beach, Florida, and in
Biscayne Bay, Miami, Florida, we surveyed each area and assembled a list of
the marine plants and animals present before placement of the reef materials.
The initial construction phase is now complete on five of our sites and a
sixth, off Palm Beach, Florida is in the planning stage.
Part of our study is to determine (1) what type of reef material is best for at-
tracting fish and encrusting organisms, (2) life expectancy of the material and
(3) cost, both of material and handling. We are using a number of test materials
ineluding scrap metal, mostly in the form of junk car bodies, concrete culvert and
old tires. Tires were arranged in units of twelve, spaced on reinforcing rods and
weighted with concrete.
We plan to complete construction of our Palm Beach reef and add a number of
different materials at the other reef sites. Our direct observational techniques
using SCUBA to study the distribution of game fish on the reef sites will be com-
plemented with the use of fish traps for mark and recapture studies and hook and
line methods by project personnel and cooperating sport fishermen. Our plan in-
eludes close and continual cooperative research efforts with State conservation
departments. We are compiling a checklist of artificial and natural reefs along
the Atlantic coast from Maine to Florida to aid in future reef site selections, for
possible comparisons of new and old artificial reef habitats with natural reefs and
for dissemination to interested sport fishermen.
RIcHARD B. STONE.
Life history and behavior of reef fishes
We expanded our research diving activities to include the newly constructed
artificial reefs in waters from New York to Jacksonville, Florida. On the older,
established reefs we saw new and changing faunas. Reef materials have not been
scattered or buried by storms or currents.
In New Jersey, the year-old car body reef still afforded considerable relief
above the flat surrounding area. Currents scoured the sands out from under chas-
416
sis, which now rest on bed rock. Harly in the year the reef took on a different
appearance; the thin barnacle growth that covered the reef the first year was
almost completely replaced by a settlement of small mussels. Tautog. cunner and
black sea bass replaced the winter-spring fish fauna of ling and ocean pout. We
observed breeding behavior and collected ripe specimens of the cunner popula-
tion occupying the reef. Later in the summer, juvenile cunner appeared on the
reef, darting in among the hydroid growth. Such evidence suggests that artificial
reefs can inerease fish production as well as afford temporary haven and feeding
sites to adult fishes.
Preliminary trapping efforts to obtain animals for tagging and recapture data
were successful. A non-baited trap (modified lobster pot design) caught tautog,
eunner and black sea bass. The range of tautog appeared to be confined to the
immediate reef site since only traps placed within the reef caught tautog.
In August we constructed and placed a twenty unit tire reef (12 tires per unit)
about a mile south of the existing Monmouth Beach car reef. Black sea bass
immediately occupied this reef.
In November, off Jacksonville. Florida, divers observed a large assemblage of
fish on the three-month-old-reef. Over twenty species were counted, many prime
sport fish. Several hundred large amberjack schooled over the top of the reef.
Grouper, snapper, Sheepshead, and black sea bass occurred in and around the
culverts and ears. Groups of car bodies, cabled together, were completely hidden
from view by dense schools of small porgies and grunts. Of the organisms en-
erusting the reef, barnacles dominated, with lesser numbers of hydroids and tube-
building worms present. Although we saw many species of fishes in this area be-
fore construction of the reef, such dense concentration had not been observed
before. This reef is successfully attracting large numbers of adult animals from
other areas.
In Charleston, South Carolina, a similar but much more dramatic change in
the local fauna was effected by construction of a car reef on the sand flats off
shore. Pre-construction dives revealed a fish fauna of scattered sea robins, razor:
fish and jawfish. In December, twelve species of fishes were observed on the first
inspection dive on the reef. Principal forms were hbluefish, black sea bass, filefish
and longspine porgies, with several large sheepshead and black drum. Barnacles,
an important food item, were the most numerous encruster on the ear bodies. The
sediments around car bodies in contact with the sand bottom had been scoured
out about one foot, exposing a fossil oyster reef, a stratum which should prevent
the reef from settling any deeper.
We completed necessary plans for a January survey of our artificial reef in
Biscayne Bay, Miami, Florida.
LARRY OGREN.
[Progress in Sport Fishery Research, 1968, p. 17]
ARTIFICIAL REEF DEVELOPMENT AND MANAGEMENT
In 1968, we added a sixth unit to our series of experimental artificial reefs.
This one off Palm Bleach, Fla., is made up of three sunken ships—the 185-foot
vessel Mizpah, a 165-foot steel Navy patrol craft, and a 485-foot section of the
Greek freighter Amaryllis. It is in 85 feet of water, about a mile offshore just
north of Lake Worth Inlet. Observations on the reef have shown a good popula-
tion of fishes around the vessels.
During 1968, we also added to existing reefs. In August we put a small tire
reef down on the Monmouth Beach, N.J. site. To minimize preparation costs we
tried the simple method of stringing tires on Scrap anchor chain and put 1,100
tires into a 1,250 square foot area. Our reef off Rockaway Inlet, N.Y. was in-
creased in October when the New York State Conservation Department deposited
200 tons of concrete culvert and approximately 25 three-tire units.
Our experience shows scrap tires make the best reef material in many areas.
Tires are easy to obtain because they are a nuisance to dispose of on land but
are easy to handle and can be formed into units of almost any size. Techniques
for handling the masses of tires necessary to cover acres of bottom are under
study with funds supplied by the U.S. Public Health Service. The development
of an effective disposal technique will have many benefits: it will produce more
favorable habitat for coastal fish, help solve a critical disposal problem, and
inerease the esthetics of the landscape.
417
We received reports of excellent catches made by our Miami and Jacksonville
test reef sites. Fishermen in the Charleston, S.C. area also reported suecessful
fishing on our small test reef about 9 miles off Kiawah Island. To develop a more
stringent test of the utility of artificial reefs, we began planning a quantitative
Study of angler use and fishing success. Our preliminary studies will incorporate
various techniques to determine the most reliable and efficient method of execut-
ing a major creel survey. We will expand the study to obtain comparative esti-
mates of total harvest, fishing pressure and catch per unit of angling effort for
each reef site and adjacent natural fishing areas. {
Our survey of artificial fishing reefs for the Atlantic and Gulf coasts is near
completion. When finished it will show the location, history, composition, and
fish life for all major Atlantic and Gulf coasts artificial reefs.
RicHARD B. STONE AND CHESTER BUCHANAN.
Monitoring and fish population studies
During 1968, we inspected all the test reef localities except Jacksonville in
underwater surveys. We also made a pre-construction survey for the Palm Beach,
Fla., site that showed the ocean nearly barren of fish before the reef was built—
only a few individual grunts, porgies, and snappers had been observed foraging
over the bottom. We also were able to inspect an artificial reef in the Virgin
Isiands, built 8 years ago from 800 concrete buiiding blocks. Fishes were abundant
and diverse, but the low biomass of encrusting organisms was the principal eco-
logical difference between tropical and temperate reefs.
We conducted trapping and tagging experiments at the New Jersey and South
Carolina automobile reefs during spring and summer, and estimated catch rates
at the New York reef using muitiple hook sampling rigs. We received one un-
usual tag return. A tautog marked and released on our New Jersey car reef in
November, 1967, was recaptured one year later in eastern Long Island Sound,
about 100 miles from the release point.
Fish stomachs and gonads were collected and preserved since analysis of the
prey and forage items can help us describe the degree of reef dependency of each
Species.
Population estimates of the larger black sea bass on the South Carolina auto-
mobile reef showed that 200 adults occupied the 0.1 acre reef in April and May.
A related species, the rock sea bass, showed a different behavior which should
reduce interspecific competition. Rock sea bass were confined to the lower reaches
of the reef and always in contact with the substrate. Black sea bass, the domi-
nant form, were widely distributed, occasionally resting on parts of the reef and
bottom but usually swimming in and around the reef. They do not appear to ex-
clude rock sea bass from occupying their restricted lower portion of the reef.
Our Monmouth Beach, N.J., scrap tire reef (.03 acre) was observed to have a
five to ten foot profile. Initial oceupants included tube-building polychaete worms,
small lobsters, and cunner. Cur New York reef was inhabitated by hundreds of
2-3 pound squirrel hake last summer. In December we caught codfish as well as
tautog, cunner and squirrel hake.
A variety of bottom animals died in considerable numbers along the northern
New Jersey coast in September. First reports were received from SCUBA divers
visiting wrecks. We investigated and found dead and dying lobsters, cancrid
erabs, ocean pout, and cunner on both wrecks and natural reefs. In addition to
these species, sport divers reported seeing dead surf clams, sea stars, black sea
bass, and flatfish. We recorded such low levels of dissolved oxygen (0.34—0.72
ml/liter) at one wreck where we found distressed fish and dead lobsters that the
cause of death here was obviously suffocation. We are not Sure what caused the
oxygen deficiency. The coastal area affected was extensive, and apparently re-
stricted to depths of less than 100 feet. Die-off of the red tide blooms are
implicated.
LARRY OGREN AND JAMES CHESS.
Distribution and ecology of attached marine organisms
We continued investigation of attached marine organisms using the Multiple
Disc Sampling Apparatus (MDSA). ‘The third MDSA was placed off Cow and
418
Calf Reef, St. Thomas, V. I., in February, and a fourth unit was installed at
Gloucester, Mass. in May. Cooperating scientists subsequently developed MDSA
sites at Mattituck, L.1., N.Y. and Key West, Fla.
Dises from the site near the New Jersey car reef have been collected monthly
and analyzed. Attached organisms fluctuated seasonally (fig. 21) with general
low levels of reproduction and colonization during winter months. Unattached,
motile organisms such as gammarid and caprellid amphipods tend to occur when
habitat or cover is provided by hydroids or tube-building polychaete worms.
Severe competition for settling space develops between those epibenthic in-
vertebrate species fed upon by finfish and forms not generally used as food.
Several large invertebrate species have been noted to compete directly with fin-
fish for available food species. The seastar, Asterias forbesii, is an important
predator on mussels and barnacles at the New Jersey site. The sea urchin, Lyte-
chinus sp., is the dominant invertebrate predator on the Charleston, S. C. site
and competes with game fish for barnacles, a dominant encrusting food species
at this site. A small flatworm, Stylochus sp., is an important predator on barna-
cles at both the New Jersey and Charleston, S. C. site.
Gut content of fishes associated with car reefs and MDSA sites were analyzed
to determine game fish use of epibenthic resources. The diet of many fishes indi-
cates they feed exclusively upon attached and motile epifauna and are in direct
competition with each other and invertebrate predators. Other species appear to
forage on invertebrate species which live in bottom sediments adjacent to car
reefs. These infaunal species are therefore important in the ecology of certain
reef dwelling fishes.
During the first 10 months of the study, rubber appeared to be the most desir-
able substratum for colonization by most epibenthic organisms. After 18 months,
however, concrete appeared to be an equally effective or superior substratum.
Certain chemical components of raw concrete may have leached out which had
inhibited normal settlement or attachment of invertebrate larvae on the con-
crete discs during the early months of submergence. Steel, the poorest substratum
in terms of colonization by epibenthic invertebrates, undergoes rapid corrosion
which prevents formation of well developed communities.
Dises from the Virgin Island MDSA site indicated the development of epiben-
thie associations on artificial habitats proceeds slowly in this tropical environ-
ment. Evidently, finfishes grazing removed the fauna as rapidly as it became
established.
JACK B. PEARCE AND JAMES R. CHESS.
[Progress in Sport Fishery Research, 1969, p. 185]
ARTIFICIAL REEF DEVELOPMENT AND MANAGEMENT
During the first four years of our artificial reef program we found answers for
many of the questions we posed at the inception of this study. Some of the in-
formation we can now provide includes: 1). the cost and methods of building reefs
with several different materials, 2) life expectancy of car body reefs, 3) techni-
ques to use in building effective tire reefs, 4) which substrate appears to be most
effective for colonization by epibenthic organisms, and 5) feeding habits of vari-
ous fish on artificial habitats.
There are still many questions we are trying to answer. One of the problems
that has confronted us throughout our study is highly restricted visibility on our
artificial reefs in the New York Bight because of turbid water conditions. We
had hoped to obtain quantitative data on fishes and study their behavior on arti-
ficial habitats through the use of SCUBA. With poor visibility, however, this
has proved impractical.
With the addition of two reefs, one off Sea Girt, N.J., and the other off the coast
of southern Georgia, we now have 8 experimental reefs under study. We gave
technical assistance to groups creating 8 more reefs along the east coast, two off
the coast of New York, one in Chesapeake Bay, three off the coast of South
Carolina, and one each in Georgia and Florida. We completed a preconstruction
survey and site selection off Chincoteague, Va., in a cooperative experimental
reef effort between the Chincoteague National Wildlife Refuge and the Sandy
Hook Marine Laboratory.
Our cooperative study with the Environmental Control Administration’s Bu-
reau of Solid Waste Management investigating the use of scrap tires as arti-
419
ficial reefs was highlighted by the installation of 35,000 tires on two reef sites
in the New Jersey-New York area. We tested different techniques of incorporating
serap tires as reef-building material in configurations that provided necessary
relief, ease of handling, and low cost. These are necessary criteria if the ma-
terial is to be practical for use by sport fishing groups and conservation agencies.
After selecting a combination of rod units and single tire units, we deposited
30,000 tires between June and October on the Atlantic Beach artificial reef off
southern Long Island. We then deposited 5,000 tires in November on our new
experimental reef site off Sea Girt, N.J.
Our inspection dives on the Jacksonville and Palm Beach, Fla., reefs revealed
numerous game fishes of many species and a thick growth of encrusting orga-
nisms on the materials at both reefs. The car bodies on the two-year-old Jackson-
ville reef showed appreciable deterioration. The car frames remained intact and
supported a considerable growth of invertebrates but the thin metal of the roof
and sides of many cars had disappeared.
To compare the biomass of encrusting organisms on artificial reefs with popula-
tions on natural bottom around the reef, we resumed and refined the tabulation
of data collected on a benthic survey off southeastern Long Island from February
1966 to January 1967. Two polychaetes were tentatively identified as new to
this area. We found three types of invertebrate distribution present in this area,
two specific and one ubiquitous.
RICHARD STONE AND CHESTER BUCHANAN.
Creel survey technique
We developed and tested several creel survey methods for estimating fishing
pressure, catch per angler hour, and anglers’ total harvest around artifical reefs.
We defined the angling population in our study area as all sport fishermen fishing
beyond the surf zone between Manasquan Inlet, N.J., and Jones Inlet, N.Y. To
sample this population, we divided the anglers into two groups: 1) party and
charter boat anglers and 2) private boat anglers.
In our first attempts to gather information from party boat anglers, we dis-
tributed a limited number of log books to the captains and attempted to inter-
view the anglers when they returned to the docks. The dockside interviews proved
impractical. However, we are getting encouraging results from the log book
returns.
We designed a mail survey which proved to be the best sampling method for
private boat anglers. We identified the owner of a particular boat by recording
his registration number as he passed an observation point and then checking
with the State Marine Police to see who owned the boat. Then we mailed question-
naires to 196 boat owners. We received completed questionnaires from over 80
percent of the boat owners sampled. Errors introduced from non-response were
minimal—a follow-up survey differed by only 0.07 fish per hour in the estimate of
fish per angler hour and 4 percent in the number of unsuccessful anglers. We
are using aerial surveys to estimate total angling pressure in the test area.
CHESTER BUCHANAN AND RICHARD STONE.
Mr. Goonrirne. Are you going to continue to attempt to rid the coun-
tryside of these unsightly automobiles? To my way of thinking, they
are a pollutant just as much as many other things.
Mr. RuckxensHaus. Yes, we are, Mr. Goodling. Under the Resource
Recovery Act of 1970, we are specifically authorized and told to look
into this problem and come up with some solutions for it.
Mr. Goopiine. You are working on that problem ?
Mr. RuckeisHaus. Yes, we are.
Mr. Gooptrne. That is all, Mr. Chairman.
Mr. Dincey. Thank you, Mr. Goodling.
Mr. Downing?
Mr. Downtne. Thank you, Mr. Chairman.
Mr. Ruckelshaus, this bill excludes rivers and harbors, does it not?
Mr. Rucxesuavs. It does not exclude harbors from its provisions.
Mr. Downtne. It excludes rivers?
420
Mr. Rucxensuavs. It would exclude, yes, it excludes rivers. These
are covered under Federal Water Pollution Control Act. ;
Mr. Drncerz. If the gentleman would vield, it doesn’t include
rivermouths.
Mr. Rucxetsuaus. No, that is right. Estuaries and harbors and tidal
waters are specifically included.
Mr. Downtne. The Federal Water Pollution Act would cover the
rivers, then ?
Mr. Rucketsnavs. That is right, insofar as they are tidal.
Mr. Downtne. But this act does include harbors?
Mr. Rucxersnaus. That is right.
Mr. Downtne. What about dumping of ships, dumping into harbors,
cloes it cover that?
Mr. Ruckxernsnavs. You are talking about oi] dumping?
Mr. Downtne. Oil or sewage, either.
Mr. RucketsHaus. Oil is ; specifically included under section 11 of
the Water Pollution Control Act. The vessel regulation for the dis-
charge of sewage is covered under section 12 of the Water Pollution
Control Act.
Mr. Downtne. Does this include ships?
Mr. RucxensHaus. Yes, it does. All vessels. We are in the process
of adopting regulations now for the control of oe ge of sewage
from vessels.
Mr. Downtne. The Navy discharges sewage while in the harbors?
Mr. Rucxensnavs. That is right.
Mr. Downtne. Would that bein violation of the law ?
Mr. Rucxersnavs. It is not now in violation of the Federal water
pollution control law. We are in the process of adopting standards
for regulations to control the discharge of sewage from any vessels.
Mr. Downtne. A ship won’t have to file an impact statement to dis-
charge sewage, would it?
Mr. Rucxersnavs. Not that I know of.
Mr. Downtnc. How many people do you have in your office, Mr.
Ruckelshaus ?
Mr. RucxetsHavs. We have 6,000 employees in the agency.
Mr. Downtne. Do you think "that is adequate to handle the new
duties under this legislation?
Mr. Rucxensuaus. No, we have requested in our fiscal year 1972 sub-
mission to Congress a A1- -percent increase in our personnel in order to
meet the responsibilities, not only of this act, but under other acts that
we are requesting Congress pass.
Mr. Downtve. Thank you very much.
Thank you, Mr. Chairman.
Mr. Drncett. Mr. du Pont?
Mr. pu Pont. Thank you, Mr. Chairman.
Mr. Ruckelshaus, following up on Mr. Rogers’ line of thinking, one
of the reasons in my view that we haven't had any effective enforce-
ment yet of the Air Pollution Act of 1970 is because we have a tre-
mendous tangle of jurisdictions.. There have been three air pollution
standards approved by your agency at different times. We have State
jurisdiction. We have Federal jurisdiction, I am not convinced that
we are ever going to get out of that bog, but isn’t this kind of legisla-
tion an opportunity to avoid that bog “the second time around? Isn’t
421
this an ideal place to take jurisdiction away from the States? Let's
give it all to the Federal Government, let’s take AEC out of the busi-
ness.. Let’s get one comprehensive statute which you can enforce that
won’t have multiplicity of jurisdictions, that won’t have a lot of dif-
ferent agencies passing paper back and forth, and get the job done
a little bit faster.
I wondered if you could comment on the jurisdictional] questions.
Mr. RuckeusHaus. I think you are asking a number of questions
here. No. 1, I do not agree that the reason we haven’t enforced the Air
Pollution Act of 1970 is because of conflicting standards or because of
the fact that there are standards at local, State and Federai level. In
the 1970 Clean Air Act, all of our enforcement responsibilities are
tied into the adoption of an implementation plan. Implementation:
plans cannot be adopted until we have published national standards.
which we will do at the end of this month. And then every air quality
region in the country has to adopt emission contro] within their region
in order to achieve a national ambient air quality standard.
Once these implementation plans are submitted and approved by
the EPA, which again under the act is a 17- to 19-month proposition,
then that is when the act permits us to start enforcing these implemen-
tation plans. We just don’t have any power to enforce them at this
point. We can utilize emergency provisions of the act, but under that
provision you have to find an imminent and substantial endangerment
to human health.
Mr. pu Pont. Mr. Ruckelshaus, to avoid 17 to 19 months delay type
problem in ocean dumping, can’t we get legislation noww hich will
give all of the power to you? Why do we need AEC? The AEC man
was here yesterday, and I could see nothing that he said that convinced
me that you couldn’t do his job better than he could do it.
Mr. RuckersHavs. I read part of the testimony yesterday by the
representative of the AEC, and I must say I was somewhat confused
myself as to the precise reasons for that exclusion in the act, given
what he said yesterday. What I think we are going to have to get isa
clear understanding of the reasons for the exclusions that were given
in the testimony yesterday. Otherwise I must agree with you I don’t
see why we can’t do it as well as they.
Mr. pu Pont. Do you see any reason that we can’t take State juris-
dictions out of this? There is a clause in here that permits a State to
enact a statute that might be stricter than your standards.
Mr. RucxeisHavs. This is so throughout the pollution contro! laws.
It presents tremendous problems for us, but the air and water pollution
laws both are joint Federal-State statutes. They contain Federal-State
enforcement provisions in which the State, being the primary enforce-
ment arm, is called upon to act first and the Federal Government
coming in when the State refuses to act. States are given authority
to adopt stricter standards, if they so desire. It is my own feeling that,
as a general rule, the Federal Government should set a base line of
treatment that is necessary across the country. If a State decides in its
own wisdom that it would prefer to have a much stricter standard in
order to have cleaner air or cleaner water than provided under Federal
standards, that State ought to be allowed to do that as long as it knows
what its doing.
422
Its the same in the area of ocean dumping; if we set standards for
ocean dumping—and there is bound to be conflict of opinion about
these standards—there are going to be people who disagree. If States
want to have strict standards so the beaches are absolutely pristine in
their purity, it again seems to me within their jurisdictional right they
ought to have the power to do that. And it is for that reason that we
have not provided for preemption in this bill.
Mr. pu Pont. I am not sure that I agree with you. It seems to me
that there is an opportunity here for dumpers to select their jurisdic-
tion. If a barge of sludge and sewage is coming down the Delaware
River from Philadelphia, and Delaware has one kind of a law and
New Jersey has another one, that guy has an option. You are dealing
with navigable waters of the United States and it seems to me here is
a clear opportunity to get rid of a whole layer of redtape. I have a lot
of confidence that you can set some good standards and enforce them,
and I would appreciate if we could get for the record your considered
thoughts on whether you really think it would be not in the best in-
ee of preserving our oceans to eliminate the State clause from the
uls.
Mr. Rucxensuaus. Certainly the State would have no power to be
any more lenient than we should be. They can only be stricter and it is
not our intention to make these standards lenient. We intend to pro-
tect the oceans in the sense that I think the ocean dumping report of
the Council on Environmental Quality implies. It isa preventive meas-
ure in those cases where we haven’t gotten in trouble in the ocean.
Although off of Delaware we already have problems, and in many
other areas of the country, and we don’t want to see that proliferate.
It is our intention to set standards that are strict in their application to
the prevention of any degredation of the marine environment.
Mr. pu Pont. If we could have some detailed comments from you
for the record.
(The information follows :)
F'EpERAL PREEMPTION OF STATE ConTROL OF OcEAN DUMPING
We have long opposed complete Federal preemption of water quality control.
Section 1(b) of the Federal Water Pollution Control Act expresses a Congres-
sional policy in favor of State action to control pollution, and recognizes the
primary responsibilities and rights of the States in this regard.
We recognize that there are areas, such as the control of wastes from water-
craft, in which an unnecessary burden on interstate commerce or upon Federal-
State relationships would result if the States all exercised independent regulatory
powers. However, we believe that tthe existing partnership between the Federal
Government and the States is the most fruitful approach to dealing with most
environmental problems.
Under H.R. 4247, for example, the Administrator would be precluded from
issuing permits for disposal which would violate water quality standards, which
are set by the States. In the event that the Congress enacts S. 1014, the Adminis-
tration’s proposed amendments to section 10 of the Federal Water Pollution
Control Act, the States would be required, pursuant to Federal regulations, to
develop effluent limitations for discharges into all waters, including ocean waters.
These limitations, as well as the other components of water quality standards,
would be subject to Federal approval.
As the Administrator testified before this Committee on April 7, 1971:
“Ft is my own feeling that, as a general rule, the Federal Government should
set a base line of treatment that is necessary across the country. If a State de-
cides in its own wisdom that it would prefer to have a much stricter standard
in order to have cleaner air or cleaner water than provided under Federal stand-
423
ards, that State ought to be allowed to do that as long as it knows what it is
doing.
OTe is the same in the area of ocean dumping; if we set standards for ocean
dumping—and there is bound to be conflict of opinion about these standards—
there are going to be people who disagree. If ‘States want to have strict standards
so the beaches are absolutely pristine in their purity, it again seems to me within
their jurisdictional right they ought to have the power to do that. And it is
for that reason that we have not provided for preemption in this bill.”
Mr. pu Pont. Mr. Chairman, I am over my time. Let me ask one
more question.
Do you have an estimate of the number of ocean dumping permits
that you think you would have to handle every year under this legis-
lation, and do you think you have adequate provisions for staff to
take care of that?
Mr. RucketsHavs. Our present estimate is approximately 3,000
permits would be issued. We have requested, and we will submit for
the record our request for increased funding that will be necessary to
take care of this permit program. We don’t have adequate staff now.
We will need more people to handle this program, and we think the
funding we have requested will provide us with the additional staff
necessary.
Mr. pv Pont. Thank you.
Mr. Dineetz. Thank you, Mr. du Pont.
Mr. Karth?
Mr. Karrn. Thank you, Mr. Chairman.
Mr. Administrator, getting back to deadlines, one of our colleagues
testified im opposition to deadlines. His reasoning was, if you set a
5-year limit, everyone affected by the deadline will wait 4 years, 11
months, and 29 days, to comply and they would probably make a
greater effort and spend more money to run out the clock than to
comply with the act.
Mr. Rucxersnavs. I think you are right. That is why I am against
the legislatively imposed deadlines. In the case you mention we are
talking about one industry, the automotive industry, and the problem
is common to everyone in the industry. To set a deadline legisiatively
makes some sense in that case, but to try to set a deadline legislatively
for all dumping in the ocean when we have so many kinds of problems
involved in dumping does not make as much sense to me. Because,
wherever you set it, there are some people who even though they could
stop immediately, would be inhibited from doing this, or at least not
encouraged, because of this 12-month deadline.
Mr. Karru. What do you think is a reasonable deadline so long as
you suggest that this committee allow you that authority? What do
you think 1s fair, 6 months or a year ?
Mr. RuckxetsHaus. As I say, the authorization would be for dead-
lines to be set administratively and you might put it within a certain
framework. You might set an upper limit.
Mr. Karru. That is right, but I think this committee ought to know
what you have in mind.
Mr. RucxsisHaus. It would depend on the particular dumper. If
we are talking about municipal sludge, there may be an available al-
ternative site for them to take care of the sludge problem. There should
be no deadline. They should simply put the sludge in a different place.
424
For another community, there may be incredible problems trying to
find an alternative site. It seems to me we, as an agency, through the
Solid Waste Office, have to cooperate with them im attempting to find
a alternative way to-get rid of the sludge, and set a deadline in a
reasonable way so they can develop this alternative site. And at, the
same time we can phase out their ocean dumping. "Hosea ;
Mr. Karru. On page 11 you talk about “Toxic industrial waste
should be stopped immediately upon effective date of this act.” Is that
direct. toxic waste disposal into the waterways of thé country that
would be affected by the bill, or is that also toxic waste that would
go through channels of municipal disposal ?
Mr. RucxersHaAus. No; this has to do with dumping. This doesn’t
have to do with continuous outfall. We have under Federal-State
standards presently in existence regulations against discharge of
toxics.
Mr. Karra. Would it make any difference if they dump it by pipe-
line in the ocean ?
Mr. Rucwce.suaus. No; it doesn’t make any difference.
Mr. Karri. What about offshore oil, what do you think is a reason-
able time to eliminate any pollution from that particular source ?
Maybe you don’t call that dumping, but I do. fs
Mr. RucwxetsHaus. That is also covered under regulations issued
by the Interior Department and under Section 11 of the Federal Water
Pollution Control Act for the control of oi] as a pollutant.
Mr. Karri. Every one of the offshore oils, I assume, has some toxic
materials that every minute goes into the water. What are your
regulations with respect to offshore oil ?
Mr. RuckensiAus. With respect to the dumping of oi] from
Mr. Karru. No; I am talking about offshore oil wells, the actual
drilling operations, and the leaks once the oil wells have been
established.
Mr. Rucxersuaus. The regulations deal in terms of a visible sheen
as being a violation of the regulations any time a dumping or discharge
occurs.
Mr. Karru. Subject to the penalties of this act for a $50,000 fine?
Mr. Rucxeisuaus. No; they would be subject to penalties under
Federal Water Pollution Control Act.
Mr. Karra. What are those penalties ?
Mr. Rucxersyavs. Mr. Dominick might be able to give you an
answer.
Mr. Kartu. Mr. Dominick said $5,000. Is that sufficient, in your
judgment, Mr. Administrator?
Mr. Rucxersuavs. I don’t believe it is. That is an act we inherited.
: Mr. Dominick. That is, for failure to report, I believe it is up to
350,000.
Mr. Karru. How many of these oil rigs or drilling companies
have been fined under that act? Do you know? What is their track
record ?
Mr. Dominick. There are none under the act passed last spring.
We are in the process of developing regulations under section 11(j)
to impose equipment requirements on the offshore facilities in the
territorial waters.
425
Mr. "are: Wy as it because there has been no visible sheen or
because they are nice fellows? Which one is it ?
Mr. Rucxersuavs. I don’t think it is an either-or situation. We are
trying to develop regulations which can be met in a very short time
period by the industry on the many facilities which are located in
territorial waters.
Mr. Karru. But you are constantly pursuing that, are you,
Mr. Ruckelshaus?
Mr. RuckeutsHaus. That is right. Don’t think for a minute that
where we have had these repeated instances of accidents that we can
permit this to continue.
Mr. Kartu. Lam glad to hear you say that.
Mr. Chairman, one more question.
I thought yesterday I might be the only one confused by AEC’s.
testimony and apparently both of us, and other members of the com-
mittee, have been confused. What is your position on that? Do you feel
they really ought to have exclusionary clause in this 4723?
Mr. RuckersHaus. It is my understanding from testimony yester-
day that the present permits would run out before this act actually
came into existence, and the question in my mind is as to whether
there should be a distinction between AEC issuin g@ a permit and any
other agency a permit.
Mr. Karru. That is the same question in my mind. What is your
judgement on that?
Mr. Ruckeusnaus. It depends on the degree of consultation that the
act provides and the veto power that we would have over any permit
they issued. And if the testimony as I understand it yesterday was
correct, I really don’t see any reason for the exclusion.
Mr. Karru. Well, I agree with you that I don’t really understand
it; but as I understand it, probably that is the conclusion I would have
te come to. Basically, you do agree that there should be no exclusion
tor AEC, irrespective of whether we understand their testimony or
not? Do you agree?
Mr. Rucxetsuavs. I will have to qualify the statement by saying,
based on what I understand the testimony to be yesterday, I don’t see.
There may be some reasons that I am not aware of that [ will have to
inform myself on.
Mr. Karru. Whatever the reasons might be, and whatever their
testimony said, isn’t it fair to treat them the same as all other agencies
of the Government?
Mr. RucketsHavs. Certainly. No one can quarrel with that. I
don’t know that it is a question of equal treatment or fair treatment.
If that is the only question, then
Mr. Karru. Well, let’s say the same treatment, afford them the
Same treatment.
Mr. Rucketsuavs. That is right.
Mr. Karru. Nothing better and nothing worse.
Mr. Ruckersuaus. I can’t quarrel with that.
Mr. Karru. Thank you, Mr. Chairman.
Thank you Mr. Ruckelshaus.
Mr. Divert. Mr. Ruppe?
Mr. Rupes. Thank you, Mr. Chairman.
62—513—71——28
426
Mr. Ruckelshaus, does your agency have any kind of policy or
general attitude toward the dumping today, continued dumping or
future dumping of mine tailings or mine waste material in the Great
Lakes and particularly Lake Superior?
Mr. RucketsHavs. We have had at least three enforcement con-
ferences regarding the Reserve Mining Co. which I assume you are
alluding to in Lake Superior. We have presently the report from
2. committee that was assigned the responsibility under the last enforce-
ment conference to develop an on-land disposal site for the taconite
tailings involved in that situation. We don’t find that that report
is adequate and we have, and will shortly be announcing, the recom-
mendation of the Environmental Protection Agency as to what further
action should be taken relating to that particular incident.
Mr. Ruprr. Without going into that specific case, what are the
ranges of recommendations or directives that can come out of your
agency in a situation of that kind? What are the possibilities?
Mr. RuckersHavus. There are a number of possibilities. One of the
problems we have is that the enforcement conference it is a rather
cumbersome technique. In our water pollution control amendments
that are presently pending before Congress we have asked for the
authority to move much more quickly than we can under these en-
forcement conferences. We can make recommendations and the recom-
mendations are ignored as they have been in many instances. We then
go to an administrative hearing and make findings and further recom-
mendations and then from that hearing we have to go to court. That
is a very cumbersome administrative procedure, What we are asking
for in the water bill is precisely the same thing that was im the air
bill, that is, that the Federal presence come Tight up behind the
States in terms of their enforcement authority. In that instance, if
we go to court of equity as opposed to attempting to get a fine, the
range of options as to what is done is as broad as the equity power of
that court, which is limitless in terms of providing equitable solutions
to the problem.
Mr. Rupes. Thank you.
Thank you, Mr. Chairman.
Mr, Dinczti. Thank you, Mr. Ruppe. Mr. Anderson ?
Mr. Anprrson. Thank you, Mr. Chairman.
Mr. Ruckelshaus, who asked for the exclusion of AEC? Was this
asked for by the Commission itself?
Mr. Ruckersuats. I can’t give you the specific answer to that, Mr.
Anderson. This bill was prepared before our agency really came into
existence. We have reviewed the bill and this is the way the bill was
drafted in its final form. It was my understanding there were extenuat-
ing circumstances as to reasons for the specific exclusion of AKC, and
that is vi vhy I say that my understanding again of what was testified to
yesterday is somewhat different from my understanding again of the
reason. For that reason, I will have to consult with AEC to find out.
Mr. Anprrson. I had understood this was an administration bill,
so IT assumed it would come from your office.
Mr. Rucxersnavs. It, as most of the environmental bills presently
pending in Congress, was drafted under sponsorship of CEQ. We
didn’t come into existence until December 2. We are supporting these
427
bills. But in answer to your specific question, I can’t give you the his-
tory and genesis of all of these bills because we weren’t there at the
time this happened.
Mr. Anverson. Municipal and industrial sewage is excluded in this
act. Yesterday when we were discussing the dumping of rubbish, it was
brought out that the-act would apply in cases where rubbish was being
transported by trucks, barges and conveyor belt. In my district, we are
experimenting with a rubbish disposal project, in which rubbish is
ground up and delivered in pipes. If rubbish were delivered in pipes,
would this law be applicable?
Mr. RuckersHaus. It would be under the Federal Water Pollution
Control law. It would be under the same agency.
Mr. Anperson. The fact that it would be conveyed in pipes rather
than on a belt would be the difference ?
Mr. RucxetsHaus. Well, the question is, the distinction is between
the continuous discharge and intermittent dumping. The continuous
discharge,which is normally through a pipe, is controlled under Fed-
eral Water Pollution Control Act. What we need to do is to get control
over intermittent dumping, which is what this bill is aimed at.
That doesn’t mean that the standards would be any different in
terms of what we would do as far as water quality control is concerned
as far as what we would permit to be discharged from a pipe into
any ocean or river or lake under the Water Pollution Control Act.
Mr. Dincett. If you would yield, Mr. Anderson.
I am curious, isn’t that going to mean that a fellow who puts the
same amount of stuff in the water through an outfall or through barge
dumping or through a conveyor belt or through a ground-up dry dis-
charge through a pipe is going to get different treatment insofar as
the amount that he can put in and insofar as the deadlines that he is
going to have to meet ? For example, let’s say a fellow would be banned
absolutely by an order that you would issue with regard to putting
toxic industrial wastes or substances of this kind in from a barge, but
he would be able to continue, if he were to alter his operation. He
would then be able to continue by simply piping it in from an outfall
as liquid waste, so long as it didn’t impair the water quality stand-
ards; or if he were to divert it by a conveyor belt or through a pipe,
ground up in dry from, he might be able to get still different treatment.
Now it occurs to me that probably to treat it as dumping he is going
to get more stringent treatment than he is going to get. under the Water
‘Quality Act, because the Water Quality Act is not going to prohibit
against the positive dumping in the waterways; but it is going to deal
with the end result of what the deposit has to be.
tn other words, you would then be fixing a tolerance as opposed to
quite possibly an absolute prohibition. Would you want to comment on
that, Mr. Ruckelshaus.
Mr. Rucxersuauvs. Yes, Mr. Chairman. No. 1,1f we are talking about
toxic substances, and we were prohibiting the dumping of a,toxic sub-
stance under the ocean dumping authority, we would likewise prohibit
it from being discharged by an industry through the municipal system
or directly into a stream. )
Mr. Diner. This is not so, Mr. Ruckelshaus, and you well know
it. The law allows, and you do, I know—for example, up in our coun-
428
try you are allowing deposit of chemicals tinder water quality stand-
ards. These are toxic substances. You would never allow that under
the water quality standards bill. You are allowing mereury to 0 into
water. You have reduced it significantly, and T applaud you, but you
are still allowing mercury to go in water. You are allowing cadmium
waste to go into water by fixing the amount which may go. “But under
dumping provisions you would probably ban totally the deposit of
those substances into the waters.
What I am asking you is, aren’t we going to treat the fellow who
runs it in, through outfall or through the kind of device Mr. Anderson
is alluding to, differently than we treat the fellow who would casually
barge it out and dump it?
Mr. Rucxersuavs. To the extent that the discharge now of any sub-
stance labeled “toxic” would not violate water quality standards as
they are presently established, they are permitted to continue to dis-
charge them.
Mr. Drncetu. If he is dumping in a big waterway, the Mississippi
River or Detroit River or Hudson River that has a large flow, that
is going into an outflow like the Atlantic that has a heavy s stream flo W,
the probability is he is going to be able to put an awful lot in terms
of waste and volume of a particular waste which he would not be able
to do were he in a situation where he would try to barge it out or
put it in by conveyor belt ?
Mr. RucxersHavs. That again depends in part on whether the ef-
fluent standard which we have attempted to ot Congress to adopt 1n
the bill that we have presently submitted, whether we could set effluent
standards to limit very carefully how m any of these substances go into
water as opposed to setting water quality standards in dealing with
similar capacity of the waters that receive them.
If we get this additional authority, I think we can obviate much of
the problem you are discussing. That does not mean there may not
be some minimal amount of discharge to be permitted of a substance
that may normally be called toxic, even under effluent standards, which
could not be dumped. But the problem of dumping, it seems to me, 1s
concentration of that material into a certain area where there is no
flow going through or no way of dispering it into the waterway.
Mr. Dincetn. My question was not critical of you. I am trespassing
on my good friend’s time, but I wanted us to have a clear understand-
ing of the anomaly we have here. I hope that you will consider this
particular problem. I want to mention I was probably the first fellow
around here to come up with the idea of effluent standards on water,
and I support your endeavor in that particular direction.
Thank you, Mr. Anderson.
Mr. Rucxersuavs. I might say, Mr. Chairman, I did not mention
this problem before, but if somebody were prohibited from dumping
a particular substance by any prohibition that we issue and they
simply put a pipe on and dumped it through the pipe, it seems to me
this would be a clear violation of the spirit of this statute, if not in
substance.
Mr. Diner. I understand the violation of the spirit, but I would
like you to carefully address yourself to a violation of the substance
so we can understand whether or not we aren’t setting up an anomaly
429
which might justify some kind of rascality that neither this committee
or yourself wants to sanctify at this time. | would suggest that you
give us suggestions as to how we can meet this particular challenge,
and hope that you might be able to give us some legislative suggestions
for amendment to this particular bill to prevent that kind of situation.
Mr. RucketsHavus. We will certainly do that.
Mr. Dineetu. Thank you.
Thank you, Mr. Anderson.
Mr. Anpvrrson. A last brief question to follow up on Mr. Karth’s
discussion on the oil well spillage or dumping: You cited the $5,000
penalty. Isn’t there a difference on the 3-mile limit application? What
happens beyond the 3 miles? Is that area under the Department of
Interior’s supervision with a different set of penalties, or are the penal-
ties the same ¢
Mr. RucxensHatvs. I think they are, Mr. Anderson.
Mr. Domrninicx. Mr. Anderson, the application of regulations
under section 11 to offshore facilities would only apply to territorial
waters, and the regulation of offshore facilities in the contiguous zone
is by regulation of the Department of the Interior, U.S. Geological
Survey. I think the answer to your question is basically “Yes”; as to
offshore oil facilities, there is a difference between application of Fed-
eral Water Pollution Control Act and application
Mr. Anperson. Are the penalties the same?
Mr. Dominick. I am not aware of what penalties are now being
employed by the Department of Interior on the contiguous zone.
Mr. Anprrson. That isthe area beyond the 3 miles?
Mr. Dominick. That is correct.
Mr. Anverson. Thank you.
Mr. Dincetu. Mr. Kyros?
Mr. Kyros. Thank you, Mr. Chairman, I will yield my time to
Mr. Rogers.
Mr. Rogers. Thank you, Mr. Kyros.
Thank you, Mr. Chairman.
Mr. Ruckelshaus, to pursue this question just a minute on setting a
deadline, you say you believe it should be done administratively al-
though where there is one industry like oil you had no objection to
that. You say it might make some wait until the deadline. Suppose we
say that you could ban it on or before a certain date. Would you have
any objection to that?
Mr. Rucwetsuavs. No, I think that would cbviate some of the prob-
lem, but still when you have an outside date, there is still a tendency
for anybody who is discharging to look to that outside date as to time.
Mr. Rogurs. And when there is no date at all, they think they may
never have to do it unless you catch up with them?
Mr. RucxersHaus. If we don’t set a deadline, that is right.
Mr. Rogers. Sure. So I think it is better for us to try to set deadlines.
Now, I think it would be helpful to the committee to have some
suggested dates from you in the agency and you may not be able to
give them now, I realize, but I think we should have them very shortly.
For instance, why shouldn’t everybody have primary treatment, which
is practically nothing, by 1972, this coming year, the end of 1972?
Mr. RuckersHavs. Our goal under the Water Pollution Control
Act is secondary treatment for every municipality, and it is for that
430
reason that we discussed or we introduced the $6 billion, 3-year match-
ing funds program for $12 billion total.
Mr. Rocrrs. Give us a date for secondary, where we can skip pri-
mary if you don’t think we should. Secondary or equivalent.
Mr. RucxersHavs. We anticipate that in the $6 billion figure that.
we will have—this is a 3-year program of $12 billion—that we will
have all of the projects underway and approved in 3 years, to be com-
pleted within 5 years. This is our goal and again we have to constantly
reassess the amount of money that is involved, because it changes al-
most monthly as to how much is needed.
Mr. Rocrrs. What I am saying is, should it be tertiary by 1976, 1978,
or should it be secondary by 1974, 1975? What should be the goal ?
Mr. RucxersHavs. Again it differs widely depending on what area
you are in and just exactly what the standards themselves provide, if
we have water use designation, which we do have in most of the State-
Federal standards.
Mr. Rocrrs. Of course, you know what this does, it changes the
theory of saying you are licensing a certain amount of pollution in
every river, which the Water Pollution Act does. It authorizes and
licenses pollution. To set a deadline change the whole philosophy
and says, “We don’t want any waters polluted after a certain date
to this degree of treatment.” Right ?
Mr. Rucxexsuavs. That is right.
Mr. Rogers. Is that a good philosophy or isn’t it?
Mr. Ruckesuavs. Our bill still provides
Mr. Rocers. I know what your bill provides. What I am asking is,
is that a good philosophy? We are going to write the bill. We want to
consider yours, but we are going to write the bill in the committee. I
want to know your thinking, is it an equitable philosophy not to pollute
the waters or to license pollution ?
Mr. Ruckersnaus. If you put it between those two choices, obviously
not to pollute is the better philosophy.
Mr. Rocers. Of course, it is. And I knew that you would agree with
that and I think that is what the committee will do to try to be helpful
to you, to give you some tools to work with. Because his Water Pollu-
tion Act just says you can continue polluting and in certain rivers you
let them pollute tremendous amounts, as the chairman brought out,
even deadly chemicals.
Now, my concern about allowing administrative decision as to dead-
lines, when certain things should be done now, is proved by your lack
of banning mercury when we know the effects. Yet they are making
administrative decisions and saying, “We will let a little go in here
and there”, and so it is still being done. The Air Force base, that we
brought out the other day, putting cyanide into public dumping sys-
tems without being treated, and each one thinks that the other is treat-
ing it. And so what is happening, they are having a dead sea between
Catalina Island and the mainland and Westinghouse has been out
there with their submarines to take pictures to show what has hap-
pened. So I think it would be helnful if you could furnish to the com-
mittee suggested dates or deadlines on or before which primary,
secondary, tertiary, or equivalent treatment, or any other designation
431
that you think would be helpful would be required. Could you furnish
that ?
Mr. RucketsHavs. I would be glad to furnish you with a statement
of my philosophy as to how we go about
Mr. Rocgrs. I say I would like to have from the agency for the com-
mittee the suggested dates.
Mr. Rucxeisuaus. As to when primary, secondary, and tertiary
could be achieved ?
Mr. Rocers. That is right.
(The information follows:)
QUESTION: DEADLINE DATES FOR MUNICIPAL AND INDUSTRIAL WASTES
ANSWER
The postulation of a specific date for the attainment of a particular
level of waste treatment by all dischargers has the appeal of simplicity and
enforceability. However, it is not advantageous to have such a proposal ex-
pressed in the general terms of primary, secondary, and tertiary treatment.
These terms relate generally to types of treatment processes which have been
historically associated with the clarification of domestic sewage. They are
not easily defined or related to the treatment of industrial wastes. As an ex-
ample of problems associated with their definition, a treatment plant containing
a series of “primary” treatment processes (principally settling) with the addi-
tion of a phospate removal process designed to control eutrophication in the
wastes’ receiving waters would be essentially a tertiary treatment plant from
the standpoint of nutrient removal and a primary treatment plant from the
standpoint of the removal of oxygen demanding wastes.
In addition, these terms relate to the percent removal of pollutants and do
not account for the absolute amounts of pollutants being added to the receiving
waters.
The Federal Water Pollution Control Act, as amended, and the Administra-
tion’s proposed legislation, S. 1014, do not relate to the attainment of primary,
secondary, or tertiary treatment but instead refer to the treatment required to
meet the imposed water quality criteria to insure the full and designated uses
of the Nation’s navigable waters. It is imperative that all municipal and in-
dustrial waste discharges be in compliance with water quality standards.
All wastes both municipal and industrial should be required to provide on a
national basis a standard effluent level. Specific treatment requirements should
be imposed on those municipalities or industries above the standard effluent level
as necessary to insure the meeting and compliance with water quality standards.
This approach permits the maximum utilization of available financial resources
being applied in the most advantageous and cost effective manner, to insure
that the major effort be made in those areas where it is most urgently required.
The Federal Water Pollution Control Act, as amended, and the Administra-
tion’s proposal, S. 1014, required that each State adopt as part of their water
quality standards effluent criteria for its navigable waterways. The achievement
of these effluent criteria as discussed in the above paragraph will insure the
orderly attainment of water quality standards throughout the Nation. We there-
fore endorse the concept of effluent guidelines, as called for in S. 1014, and recom-
mend that the approach not be based on simply primary, secondary, or tertiary
treatment but on the concept of applying initially a base level of treatment re-
flecting the best level of technology.
The WQO/EPA is currently developing effluent criteria guidelines, in effect
standard efiluent limitations, for major industrial categories as well as deter-
mining the current state of the art for treatment and control within these
industries.
In dealing on an industry-by-industry basis we can specify effluent require-
ments consistent with available technology and for industries where technology
is presently not proven we allow for the scheduling of the necessary research and
development.
It must be remembered that municipal-sewered wastes and industrial wastes
do not constitute all of the national water quality problem areas. In addition,
432
there are such national-problem areas as agricultural wastes, other urban wastes
Gneluding urban runoff), power plant wastes (thermal), mining wastes (includ-
ing acid mine drainage), and oil and hazardous material discharges. All of
these problem areas, not just municipal. and industrial wastes, must be cor-
rected in order to meet water quality goals. Consequently, the WQO/EPA is
addressing effort in each of these directions to achieve national goals.
Mr. Rogers. Now, let me ask you this. You have 6,000 employees you
say ¢
Mr. Rucxensuavs. That is right.
Mr. Rocrrs. How many do you plan to hire in addition to the 6,000 ?
Mr. Rucnersnaus. We have requested an inerease of 41 percent so
we will go to 9,000 at this time next year, if the budget passes.
Mr. Rocers. Where will these people be used mainly 2
Mr. RucKxensuavs. Primarily in the Water Quality Office and in the
Air Pollution Control] Office, although we are in the process again of
reorganizing the Agency so that to strictly say they will be in one or
two of these offices ma .y not be true after the reorga anization, because
it may be we will functionalize in area of standard setting and enforce-
ment so that more people would be in those areas that might be spe-
cifically dealing with these problems, but not in those offices.
Mr. Rocrrs. What is the number of personnel you have for monitor-
ing in the field what is happening?
Mr. Rucxersatvs. We presently have, as best. we can determine be-
cause some people perform more than just one function, in the neigh-
borhood of 250 to 300 people involved in monitoring. We have an as-
sistant Administrator for research and monitoring. “One of his prime
functions is monitoring. There are a number of Federal agencies
which also do monitoring, NEAA and Interior Department and Corps
of Engineers that are involved in this, along with State agencies which
we finance and which we match funds for State pollution control agen-
cies which do a lot of monitoring. We do not have, in all honesty, a
very good fix on just how much monitoring is going on, how much we
need, and we need to get.a lot more information about this.
Mr. Rogurs. I agree. I think we are very deficient on efforts in moni;
toring. I would think one of the primary areas you would look at im-
mediately is the monitoring of outfalls. Is there any program for
that specifically ?
Mr. Rucxersuaus. Under the permit program, there is a provision
for monitoring by the industry itself which is discharging into any
stream. There has to be a sworn statement by the industry what is in
their effluent, and we will in turn monitor those statements to insure
that they have told us the truth, and that there is a provision in the
permit program itself for self-monitoring by industry.
Mr. Rocurs. When is the effective date of your permit program? —
Mr. Rucxersmavs. The application has to be in by July 1.
Mr. Rogers. Is there a cutoff date, when they cannot discharge un-
less they have a permit?
Mr. Rucxertsnaus. We don’t have anv strict cutoff date as of this
time. We are going to process these permits as fast as we possibly can.
Mr. Rogers. I believe you estimated it would be 40,000.
Mr. Rucxersmavs. That is right.
Mr. Rogers. What is the time element you have estimated that you
ean work through those?
433
Mr. RuckersHaus. One of the things that we do know is that in
traveling around to our regions in the country, we basically know who
the people are that are giving us the most problems, giving us the
most trouble, so what we want to do is select the permits and get at the
permits where we really are having the problems first, and then gradu-
ally get down to eliminate all of them, and we had set a deadline
approximately 12 months to process all of the permits. Whether we
achieve that or not, that is in itself imposed as an interna] deadline.
Mr. Rocers. How many people have you asked to do that specific
work ?
Mr. Rucxkersuaus. We have requested in a supplemental budget to
Congress 400 people in our agency to do that, and it is my understand-
ing that the Corps of Engineers has something like 300 that they have
requested.
Mr. Rocrrs. So it will be a joint effort. Is that it?
Mr. RuckxersHaus. That is right.
Mr. Rogers. Do you review all of the permits?
Mr. Rucxersnavs. We review them as to whether they meet water
quality standards.
Mr. Rocers. Water quality standards are set by whom ?
Mr. Rucxersuavus. Joint Federal-State standards in interstate
waters, and State in intrastate waters.
Mr. Rocers. How do you find out what those standards are in intra-
state waters ? :
Mr. RuckersHaus. As far as intrastate standards, they are sup-
plied to us by the State pollution control agency.
Mr. Rogers. You are going to check to see that they meet those
standards intrastate, too ?
Mr. RuckxersHaAts. We are going to do more than that. In some in-
stances they don’t have standards, in which case we will see that they
are in compliance with purposes of the Federal Water Pollution Con-
tro] Act, which will be essentially the standards we have set in other
areas of the country.
Where standards are so weak that they might as well not be any
standards at all, we are also not going to simply rubberstamp those
certifications from the States as they come through for our approval.
Mr. Rogers. Well, what authority do you have to set your standards
in intrastate waters? The State does not set any ?
Mr. Rucxertsnavs. To be perfectly frank, the authority is not as
clear as we would like to have it.
Mr. Rogers. Did youask for such authority ?
Mr. RucxersnaAus. We certainly have. We have asked in our amend-
ments to the Federal Water Pollution Control Act last year, and this
year, for authority to set standards in instrastate waters.
Mr. Rogers. Has it been granted ?
Mr. Ruckersnaus. It has not. It did not pass last year, and it is
pending before Congress this year.
Mr. Rogers. Maybe we should include it in here.
Mr. Rucxeisuavs. The ocean-dumping bill has been included in
the Federal Water Pollution Control Act. We had hearings in the
Senate Public Works Committee. The problems in determining who is:
434
responsible to do what probably can be cleared up if these bills are
treated together.
Mr. Rocrrs. What concerns me, Mr. Ruckelshaus, and I know you
have not had an opportunity to be in this long, for instance, you tell
me we are going to do this, and then I find out that you don’t even
have authority to do it.
Mr. Rucxexsuavs. I have not said we don’t have authority to do it.
Under the Refuse Act of 1899, when read in conjunction with 21 (b)
of the Water Pollution Contro] Act, we have arguable authority to
do it.
So we believe under that arguable authority we can look at these
certifications by the States and pass on those, weher clearly they are
deficient in any kind of water pollution control program at all.
Mr. Rogers. De you have the authority, or does the Corps of Engi-
neers have authority under the Refuse Act ?
Mr. RucxersHavs. Under the Refuse Act, they have the authority
to issue permits, and read in conjunction with section 21(b), we believe
the authority to pass on water quality is given to the Environmental
Protection Agency, and that we advise the Corps on the exercise of
that authority.
I admit this is not without some dispute, and that there are those
who say we don’t have that authority.
Mr. Roggrs. If you had deadlines, you could get at it quickly, could
you not?
Mr. RucxetsHaus. If we had the amendments that we suggested to
Congress, we could get at it quickly.
Mr. Rocrrs. Well, if this committee decided, that could really get
you going on this problem.
Mr. RuckxetsHaus. We would hope all of the committees would do
that.
Mr. Rocsrs. Regarding solid wastes, I just checked, we authorized
for fiscal 1972 $152 million. The committee thought the problem was
that significant. I notice the budget request was $19 million. Do you
think this is a proper request to meet the needs in this area?
Mr. RucxetsHavs. This is not the final, total request that we will
make, as I explained.
Mr. Rogers. You said there is $85 million, but you are not sure
whether any of that goes to solid waste.
Mr. RucketsHavs. We are requesting that some of it go to solid
waste.
Mr. Rocrrs. What is the major request for?
Mr. Rucketsuaus. For new and innovative demonstration projects.
Mr. Rocers. Of the $85 million, I mean.
Mr. Rucxersuaus. Probably to implement the Clean Air Act of
1970.
Mr. Rocrrs. What are the total requests for air pollution ?
Mr. Ruckxerrsuavs. Something in the neighborhood of $41 million.
No, that is not the total request. That is of the $85 million.
Mr. Rogers. Then for water pollution it is what?
Mr. RuckxeisHaus. Very little of the $85 million goes to water
pollution.
The reason I am a litte fuzzy on these figures is because we are stiil
in the process of trying to get a final answer from OMB as to just
435
where these will be allocated, and there is no final answer that I can
give you right now.
Mr. Rogers. I wondered what you had requested. I realized OMB
often does not agree with your request.
Mr. RucxetsHaus. We requested allocation of $85 million between
the problems of air and water pollution, and pesticides, radiation, and
solid wastes, and obviously we don’t come up with the authorization
in the bill, if it is even a portion of the $85 million.
Mr. Rocrrs. Very, very short ?
Mr. Ruckersuavs. That is right.
Mr. Rocezrs. Do you agree with that approach ?
Mr. Rucxensuaus. I believe that in looking at the new and inno-
vative projects which the bill authorizes us to fund as they come in,
there are not that many new and innovative projects. We have already
been criticized by GAO for funding projects that were not new and
innovative at all. In fact, they were redundant as to other projects.
I think we have to be careful to perform what Congress has said we
are supposed to perform, which is to put this money into new and inno-
vative demonstration projects.
Mr. Rocrrs. No; it is not just demonstration projects. There is a
section for demonstration projects. There is also a section to help com-
munities bring about new methods, but it is not just demonstration,
which does not mean it has got to be new over what they have out in
Seattle, Wash., the very latest there, but it means it 1s new in that
area, an improvement.
Mr. Ruckxeusnaus. 1 suppose this is an argument that in looking
at legislative history was an argument that went on through Congress.
It is our interpretation of the act that it does mean new in terms of
the Nation, because if the purpose of the act is for this Federal agency
to provide means of the treatment of solid wastes, that can be adopted
in communities around the country when they see they work.
Mr. Rogers. Well, may I say, then, you probably will end up with
only one project in the United States a year, or a month.
Mr. Rucxersuavs. No; I don’t think that is right.
_ Mr. Rogers. I thought you said there were not that many new and
innovative projects.
Mr. Rucxersuavs. Well, there are not, but there are more than one.
Mr. Rocers. If you will analyze, and I happen to be the author of
that section, [ would tell you that the intent is that it does not have to
be the same in Florida, on the same level as it does in Washington,
but it should be new and innovative in that area, an improvement for
that grant section for the demonstrations, yes.
f I dais if you will check that, maybe that will help in getting more
unds.
Then finally, let me conclude by saying I believe you do have pri-
mary responsibility for enforcement in the Air Pollution Act for new
stationary sources.
Mr. Rucnetsuavs. That is right.
Mr. Rocers. You don’t have to wait for the State.
Mr. Rucxensnaus. That is right.
Mr. Rogers. For airplane pollution ?
Mr. Ruckenuaus. We have a year before we have any authority for
airplane.
436
Mr. Rogers. You can set standards.
Mr. RucKEtsHavs. In a year.
Mr. Rocers. Well, I think that is true all over the act.
Mr. Rucxrersnavus. You asked why we don’t have enforcement
standards. We don’t have authority to set standards for a year.
Mr. Rogers. If you are going to get into that, which I was not going
to get into because of the time element, but there are a number of pro-
cedures that already have taken place as to regional establishments
under the prior act.
Mr. Rucxetsuaus. That is right. We have no implementation plans
approved as of this time.
Mr. Rogers. I don’t know why not, because some have been
submitted.
Mr. Rucxersnavs. That is right. Nineteen have been submitted.
Mr. Rogers. Sure. They told us we were going to have 52.
Mr. RucxensHavs. They are not in compliance. The implementation
will not implement.
Mr. Rocers. Under the old act, there are areas where you can pro-
ceed with enforcements, no question about it. You can have con-
ferences even under the old act.
Mr. Ruckesuaus. I agree with that. Under the conference proce-
dure, we could, but under the new act, we have new procedures.
Mr. Rocerrs. But we did not stop those procedures under the old
act in the new act. If they were on-going, they are still in existence.
Now, you know that.
Mr. Rocxersnavs. And we are going on with those.
Mr. Rocers. But not much is going on. That is the point I was
making. I will not pursue that with you.
Thank you, Mr. Ruckelshaus.
Thank you, Mr. Chairman.
Mr. Dincery. Mr. Du Pont.
Mr. puPont. f have an additional question, Mr. Chairman.
Mr. Ruckelshaus, you said that you thought there would be about
3,000 permit applications. .
Mr. RuckxersHauvs. That is the best estimate we can come up with.
That is a ball park estimate.
Mr. puPont. Do you envisage for each of these 3.000 applieations a
public hearing, or at least an opportunity for public hearing?
Mr. RucxKezrsuaus. I think there should be very similar to the
Corps of Engineers dredge and fill permits provisions for public hear-
ing, when a hearing is requested by affected citizens.
Mr. vu Pont. I agree with that. There ought to be an opportunity,
but do you foresee another bogging down of procedures here ?
It seems to me on every application that comes up that the more
militant citizens and conservation groups are going to want to have a
hearing ; they will want to testify ; and they are going to want to string
out procedures as long as they can to prevent the dumping.
Do you think if you go through all of this procedure that you are
going to issue any permits?
If you request enough permits, you will never get a permit, because it
will go on and on.
Mr. Rucxetsnavs. A lot of hearmgs go on in the Corps of Engi-
neers dredge and fill permits, and there is sometimes vigorous advo-
437
cacy on both sides. Sometimes the permits are issued, and sometimes
denied.
I don’t see that the hearing procedure itself would keep us from
issuing any permits. I think if you get the hearing procedure too
familiarized, and make it automatic for even a rather minor issuance
of a permit, you might well be bogging the agency down.
Mr. puPont. You might be better off to provide for notification,
and not fit the hearing clause into the law.
Mr. Rucweitsuavs. That is my present thinking on it. It is not a
question without some difficulty, because we are dealing with due
process and the right of people to be heard.
I would think when the application was filed, and with all of the
information in it that is provided in the act, that application would be
made public immediately, and that anybody would have within a cer-
tain number of days to comment on the application and request a
hearing on the application, if they so desire, and then, if it seemed
that the subject was of enough significance, and there was enough
controversy about it, we should hold a hearing.
That is essentially what the Corps does under dredge and fill per-
mits, and this procedure has worked very well under their regulation.
In that way, we could provide due process, and people the right to be
heard, and at the same time not get the program and issuance of per-
mits bogged down in a lot of endless procedure.
Mr. puPonr. I would like to ask one more question, Mr. Chairman.
Mr. Ruckelshaus, I wonder if you would consult the legal arm of
your organization and get a legal opinion on the question of substan-
tive due process when there are multiple standards approved by the
Federal Government or by overlapping Federal and _ State
jurisdictions.
What I am getting at here is under the Air Quality Act, for ex-
ample, in Delaware, the Federal Government has independently ap-
proved three standards. HEW set one under the Federal criterion.
Delaware submitted one that your agency approved, and now you are
about to issue a third one on your new standards.
There are three. Al] of the numbers happen to be different in one
of these cases. If I were an attorney on the other side, I would argue
that this is totally lacking in substantive due process here, because
they are irrelevant criteria. There are three criteria, all approved by
the Federal Government.
Mr. RuckxersHaus. I think clearly the national standard we are
about to approve would preempt the other two.
Mr. puPont. The reason this is important is if we allow the States
to legislate in the area, and you end up with two conflicting criteria
on ocean dumping, I suggest that maybe the whole thing could be
brought down by one lawsuit.
Mr. Ruckersnaus. We will look into it. I am sure the criteria is con-
flicting. One is more strict, and that one would apply.
Mr. puPont. Well, they are overlapping, if you will. But I think
oe is a chink in the armor that we should not perpetuate in this
aw.
Mr. RuckxersHaus. I agree with you, and I also think that I don’t
aa that we should not have stricter standards. I am not sure I agree
with that.
438
But one of the problems we do have are sometimes conflicting stand-
ards between air and water pollution agencies, and then agencies at
various levels of Government, and standards that change very quickly,
so it allows two things to happen.
One is an industry that sincerely wants to do something about it
does not know what the standard is, and they don’t do anything. It
also gives the industry which does not want to do anything an ex-
cuse to drag their feet and say they will wait until they find out what
the standard is going to be.
T see it as a function of our agency to try and make some sense out
of these conflicting standards, and try to give some clear signals to
people as to what is s expected of them.
We have not achieved it yet, but we are still trying.
Mr. puPonr. Mr. Ruckelshaus, you put it far better than I could
have put it, and that is exactly the problem. I think when we get to
ocean dumping, maybe we can avoid making a mistake made in the
Air Quality Act by removing the State jurisdictions to enact stand-
ards atall.
Thank you.
Mr. Drnceut. Mr. Sharood.
Mr. Suaroop. Mr. Ruckelshaus, I wonder if we could clarify cne
problem I have with the State preemption requirement.
If a State establishes requirements or standards under the act, will
you continue in the role of issuing or denying permits for dumping,
or will the total burden be transferred to the State?
Mr. RucxeitsHavs. Not under the present provision of the act. Any-
body who is going to dump any material in the ocean will have to
have a permit from, or any of the other areas of water covered under
the act, a permit from the Administrator of the EPA.
The fact that a State requires another permit is a burden on the
dumper, but that is not a burden that is not duplicated in other areas
of our law.
Mr. Suaroop. Let’s assume that the State did not require a permit,
but simply established a higher standard of some sort, and I have
some difficulty envisioning the kind of conditions the State might
impose with respect to ocean dumping.
Would you then be guided by those State standards and deny or ap-
prove a permit based upon the higher State standards?
Mr. Rucxersuaus. No, we would not have any authority, other
than what were provided in our own standards.
If we are going to treat people equally across the country, it seems
to me as far as our agency is concerned, you are entitled to a permit if
you comply with our standards.
If States want to prohibit you from dumping within their juris-
dictions, then that is a problem between the State and the person who
wants to dump.
Mr. Suaroop. If the State adopts a higher standard, the party wish-
ing to dump would simply have to go into a contiguous zone in order
fo avoid the State requirement ?
Mr. RUCKELSHAUS. There is a question whether a State can, from a
ship originating in its ports, control beyond the territorial seas, as
being one of their citizens of that State.
439
There is a California State law that apparently calls that into ques-
tion, but that is not without some ambiquity at this point.
But that is true. Lf the State did not have any authority outside
of the territorial sea, then that is where they would end up going.
Mr. Suarcop. You would not look to those State standar ds, if the
party came to you with a permit to go out 6 miles, or 4 miles from
shore, you would not take into account those higher State standards.
Is that true?
Mr. Rucxersuavus. Well, I think what our agency has to do a lot
more of, and it is difficult for me to promise in the context of this bill
that we ought to do it, is a lot closer coordination and cooperation with
the States in adopting standards as such.
There is a certain impetus, when a Federal agency adopts a stand-
ard, and makes it clear what that standard is, and makes clear the
reasons behind the standard, there is a certain preemptive force in this
kind of standard setting itself in that States then say, “Well, they
are handling it, and therefore there is no reason for me to do it.”
This has happened in some areas, particularly with HHW.
Mr. Suaroop. It seems pointless to provide in this legislation for a
provision such as this, if you are then going to ignore the State stand-
ards and are not going to take them into account, but issue permits
solely on the basis of the Federal standards. It does not seem to serve
any useful purpose.
Mr. Rucxetsuaus. I don’t think we can ignore them, but by the
same token, I don’t think we should be in the business of enforcing
State regulations. This could get to be a very confusing problem, if
we tried it, and we have not done it in the past.
Mr. Suaroop. My second question is perhaps a bit far out, but I
want to clarify another point for the record.
Let’s say the Army decided to transport surplus munitions of some
type from Vietnam to the central Pacific and dump them. That would
not come under the coverage of this act. Is that correct ?
Mr. Rucxwetsuaus. I think it would. I think they would have to
have a permit to do so.
Mr. SHaroop. As I read your permit system, you have to have a
permit to transport from the United States out into the ocean, and you
have to have a permit to dump within our territorial sea.
I don’t read anything in there that requires a permit for the U.S.
citizen or entity to transport material from a foreign country out into
the ocean for dumping.
Mr. Rucxetsuaus. I may not be in the act.
Mr. Suaroop. I am not suggesting that they would do this, but Iam
posing the question.
Mr. RucxetsHaus. We are asking for the authority under the
Federal Water Pollution Control Act to set standards beyond the
contiguous zone.
a Mr. SuHaroop. That relates to material coming out from the United
tates.
Mr. Rucxersuaus. And also affecting the territorial sea of the
United States.
Jt also, I think, might run into a clear problem under the Executive
order, or under the National Environmental Policy Act, but arguably,
this might be outside of the coverage of any present law.
440
Mr. Suaroop. That is the way I read it, and I wanted to get your
view on that, to make sure I was not misinterpreting it.
Do you think we should?
Mr. Rucxersnuaus. I think it ought to be made clear as to the cover-
age of the act in this kind of situation.
Mr. Srraroop. Will you submit some language ?
Mr. RuckensHaus. Yes, we will.
Mr. SHaroop. Fine.
(The information follows :)
DUMPING MATERIAL FRoM FOREIGN TERRITORY IN WATERS SEAWARD OF THE
UNITED STATES
A paragraph could be added after subsection 4(b) as follows:
“This Act does not apply (1) to transportation for dumping carried out by
United States citizens when such transportation originates in territory other
than United States territory, or (2) to dumping of material by United States
citizens when such material is not transported from ‘the United States for the
purpose of dumping it and the dumping takes place in ocean, coastal, or other
waters other than those described in subsection (b).”
The definitional section could be amended to define ‘“‘United States citizen” to
include natural persons who are citizens of the United States as well as United
States corporations and agencies of the Federal or of any State or local govern-
ment of the United States.
The amendment is not recommended because it is believed that section 4 is
already very clear that the activities in question would not be regulated by the
bill. Furthermore, without a careful reading, the additional language might be
misconstrued to mean that United States citizens would be given more favorable
treatment than foreign nationals, clearly an undesirable result.
Mr. Suaroop. I have another question with regard to the overlap or
tie-in between the Dumping Act and the proposed amendments to the
Water Quality Act.
As I read the proposal under section 10 of the Water Quality Act,
you will be establishing standards for the contiguous zone of the high
seas with respect to effluent which flows from the United States into
those waters, but until you have in fact established standards, there is
no effective prohibition or limitation upon a municipality or private
industry to run an effluent pipe, let us say, out into the contiguous zone
or the high seas.
Mr. RucketsHaus. There is not now.
Mr. Suaroop. But even after this act is presumably in force you
must first establish standards?
Mr. RuckersHaus. Well, the way we will get at it is through effluent
standards, which makes much more sense than water quality standards
that distance from the shore.
Mr. Sraroop. The next question is: viewing this from a nationwide
standpoint, effectively how long is it going to take you to establish
effluent standards which will encompass all of the seacoasts of the
United States, let us say ?
Mr. Rucxersuaus. We are in the process now of establishing
effluent standards for 21 basic classes of industries in the country, and
we expect to have the preliminary reports on those standards by the
first part of next month, and hopefully, we will have an ability to
establish effluent standards prior to July 1 for these 21 basic industries.
As far as effluent standards for municipalities are concerned, where
we have pipes outside of the 3-mile zone, they might well be estab-
441
lished on the basis of secondary treatment, which has a meaning in
terms of municipalities that is not nearly as clear in the case of in-
dustry.
Nir SE Bison. Would your water quality standards say for outfalls
that extend far beyond the contiguous zone, differ from your stand-
ards for outfalls that extend only 2 or 3 miles out from shore?
Mr. Rucxeisuavs. I think again it depends on the nature of the
ocean, and where the outfall is. I don’t know of any outfall that ex-
tends beyond the 12-mile zone.
Mr. Suaroop. Mr. McCloskey yesterday said San Francisco is con-
templating building one a 100 miles out in the Pacific. I don’t know if
this is true or not.
Mr. Rucxesuaus. This is why we have asked for rather flexible au-
thority, granted a great deal of authority, into the ocean dumping
bill, because there is a lot we don’t know, and it may well be that there
are places in the ocean in which it would be the most desirable environ-
mental place to either dump or discharge wastes, and as far as ex-
amples are concerned, they don’t readily come to mind, but I think
we need to keep this power and have this ability built into the statute.
Mr. Suaroop. Do you see any utility in this legislation requiring
that after a year your agency will report back to Congress on the
implementation and follow-through.
Mr. Rucxetsuavs. No, we are doing that in all of the bills that we
now have. We report up here about once a month.
Mr. Suaroop. I have two other short questions.
One is on the penalties. You have an exemption there for Federal
employees. This is probably more traditional, I suppose, than anything
else, from the criminal penalties, and yet 1t would cover State em-
ployees, municipal employees, and other governmental types. Why
carve out an exemption for a Federal employee who might willfully
violate this act, on a personal lability basis?
Mr. Rucxeisnavs. I think in stating your question, you stated the
reason, that it is a traditional reason for the Government suing itself,
and in this case
Mr. Suaroop. No, we are talking about a person, an employee, an
otficial of the Government.
Mr. Ruckersuavs. Of course, he would be acting outside of the
scope of his authority as governmental authority, if he was doing it.
I have some difficulty, myself, in saying exactly why there should be
an exemption, except that there are administrative procedures for
handling employees of the Federal Government who violate any rules
or regulations of their employment, and traditionally it has been
thought that these regulations and procedures were sufficient to handle
the situation in the case where an employee was involved in some part
of civil violation. —
Now, governmental employees are subject to criminal penalties, just
as are any other citizens. To the extent that this offense 1s similar to a
criminal offense, it becomes more difficult to exclude the Federal
employee.
It isa difficult question. cs
Mr. Suaroop. Is it logical to exempt a Federal employee and not the
State or local employee ? z
62—513—71——29
442
Mr. Rucxersuavs. It is more logical, because it is a Federal pro-
gram, and the Federal program can be administered more carefully
by the Federal Government, and there is more authority over the em-
ployees of our level of government than there is over the State level.
For instance, if any employee of the Federal Government. vio-
lated provisions of this act, he could be discharged, and there would be
means or ways of forcing his discharge. In the case of the State em-
ployee, if the State wanted to completely ignore the fact that he vio-
lated it, there would be very little we could do.
Mr. Suaroop. On the question of emergencies, you have a provision
here for the safety of human life, or words to that effect, that re-
quires a report, I believe.
Who determines whether or not there is a situation that endangers
human life, the private party who decides to go out and dump? Is it
totally their judgment, or must they consult with you, or will you have
any handle on this at all?
Mr. RucxersHaus. Clearly, if there was a dumping, it would be a
dumping without a permit, so on the basis of the fiat basis of the
statute itself, it would be a violation of the statute.
Their claim would be that they did this to safeguard human life, as:
the statute gives them an exception from having a permit.
They make a report to me, the Administrator of this agency, indicat-
ing that while they did violate the act on its face, they were exempted
from the act because of the need to safeguard human life, and there
would be a need for them to prove to me this is what happened.
Mr. SHaroop. What you are saying, in effect, is that this is a defense.
Mr. Rucxersuavs. That is right.
Mr. Suaroop. But the way it is written in the bill, it seems to me it is.
more of an exemption than a defense.
I wonder if you will consider rewriting that section to spell out a
little more clearly that this is a defense to a civil or criminal penalty,
and not an exemption, as it appears to be.
My. Drycett. Would you yield ?
Mr. Ruckelshaus, this is a matter that does concern me, too. I have.
the distinct feeling that, as the bill is presently constituted, anyone
would be able to come forward and say, “Well, it was an emergency,
and we had to run out and dump the stuff to get rid of it.”
And I am not sure precisely what you would do in that event, and
I think some great care should be devoted to preventing this exemp-
tion, or whatever you want to call it, from becoming virtually a license.
to evade the bill.
Mr. Rucxexsuavs. I agree with you, Mr. Chairman. If that is the.
import of the section, I think that the mere fact that they raised that
as an excuse for dumping without a permit would be pretty trans-
parent, unless they had some really good evidence as to why they
actually needed to engage in this particular dump in order to safe-
guard human life.
It seems to me it would be a pretty extreme situation in which this.
defense would come up.
Mr. Diycexu. Would you take a careful look at that and see whether
or not some amendatory language is necessary, and try to assist the-
committee with that particular provision ?
Mr. RucxersHavs. We will.
(The information follows:)
EMERGENCY DUMPING WITHOUT A PERMIT TO SAFEGUARD HUMAN LIFE
To accomplish this purpose we would recommend that subsection 5(h) be
renumbered aS subsection 6(g) and revised to read as follows:
“No person shall be subject to a civil penalty or to a criminal fine or im-
prisonment for transportation or dumping without a permit or in violation of a
permit if such person can prove that such transportation or dumping was
necessary, in an emergency, to safeguard human life. Any such transportation or
dumping shali be reported to the Administrator within such times and under
such conditions as he may prescribe by regulation.”
Mr. Swaroop. One last question on your recommended dumping
sites.
As I read the bill, you can recommend dumping sites, but is there
anything in the bill which enables you to require that the dumping
of the given material take place in a given site? Or will this be dis-
cretionary with the permittee?
Mr. RucxketsHaus. I don’t think so.
If we found, for instance, a particular site was preferable for that
permittee, I think we would simply stipulate in the permit that that is
where the dumping was to take place, and that they could not do so
otherwise, and that in that manner be able to control very carefully
where the material is dumped.
Mr. Drncetu. Would you want to give us your counsel, Mr. Ruckels-
haus, as to whether or not you would be able under this to require
a time for dumping? For example, when the current might be flow-
ing strongly, or the tide might be moving in a particular direction,
or the wind might be moving in a certain way, or the currents might
be moving in a particularly desirable direction, or when water tem-
perature might be at a particular level? Do you have the authority
to control those particular events with regard to dumping?
Mr. Rucxersuavs. I think we clearly do, under the provisions
of the act, have the discretion to, in the permit itself, limit very care-
fully the location and time and manner in which any dumping would
occur.
Mr. Drnextu. I don’t read the bill as being entirely clear on that
point.
Mr. Rucxrersuavs. We would certainly be glad to agree to any
language that would make it more clear, or suggest language.
Mr. Dincetu. I think it would be helpful to the committee if you
would suggest language which would enable you to give rather clear
direction as to all of the conditions of the permit.
(Suggested language to be furnished follows:)
CONDITIONS OF A DUMPING PERMIT
Section 5(c) of the bill as presently drawn provides that—
“Permits issued under subsection (a) may designate and include (1) the
type of material authorized to be transported for dumping or to be dumped;
(2) the amount of material authorized to be transported for dumping or to be
dumped; (3) the location where such transport for dumping will be terminated
or where such dumping will occur; (4) the length of time for which the permits
are valid and their expiration date; and (5) such other matters as the Adminis-
trator deems appropriate.’ (Emphasis added)
In view of the underlined language, further specificity as to the matters
which may be dealt with ina permit is not considered necessary. Such addi-
444
tional matters could deal with a great variety of things, such as the route to
the dumping site, safety precautions to ensure that the transportation and dump-
ing are carried out safely, the precise times when dumping will be allowed,
monitoring and reporting requirements, and the like. Greater specification of
the allowable permit provisions might lend support to the argument that the
listing is intended to be exclusive. EPA prefers the language of the bill as
presently drawn, which enumerates only the basic provisions of the typical
permit, namely, those relating to type and amount of material, location of dump-
ing, and expiration date.
Mr. Dinceiu. Now, it occurs to me, Mr. Ruckelshaus, that you are
going to be dealing under this section with persons who will constitute
a category of ocean dumpers. Are you going to want licensing author-
ity for those people, as opposed to permit?
Mr. RucketsHaus. You mean a more general license ?
Mr. Dryeett. [ am talking about contractors who will engage in this
business.
That is the way it is done today. Are you going to need or want that,
or will that be desirable for you to have ?
Mr. RuckesHavts. I reall
Mr. Dineett. Would you lke to reflect on that and give us your
guidance on that point, please ?
(The information follows:)
EPA AvtHority To LIicENSE TRANSPORT CONTRACTORS F'oR OCEAN DUMPING
We favor the minimum amount of regulation necessary to control ocean dump-
ing. The provisions of H.R. 4247 requiring a permit for each incident of dump-
ing or transportation for dumping provide all the control that is necessary.
Mr. Dincewy. Mr. Everett.
Mr. Everett. Thank you, Mr. Chairman.
Mr. Ruckelshaus, also, when you reflect on the emergency provision,
please give some thoughts to a way of expediting a procedure with re-
spect to these type dumpings, and still require a permit or some noti-
fication to you or the Department prior to the dumping of such
material.
Mr. Rucxersuats. All right.
Mr. Dincett. If you will yield, the Chair comes to the thought that
perhaps we ought at least to require that they do give you notice, in
the event of these so-called emergencies, so that if they are going to do
something that is hazardous, and it is not a bona fide emergency, then
you could bring into play whatever powers you felt necessary, includ-
ing resort to the courts for equity for appropriate injunctive relief.
Mr. Ruckersuavs. It is my understanding, Mr. Chairman, the pur-
pose of that provision is primarily for a distressed ship at sea, where
it is necessary to dump over a number of ballasts, or whatever might
preserve the ship.
Mr. Dineen. This was the Coast Guard’s interpretation, but I am
sure you recognize that the particular section is rather more broadly
drawn than that.
Mr. Ruckersuaus. Yes, it 1s. ; ont
Again, I would think that other than that specific application, even
if you are talking about toxic materials in the question as to whether
to dump them on land or in the ocean is safeguarding human life, I
cannot conceive of such a sitaution, but it is possible, and there is no
reason that could not be worked out as the general permit procedure
445
itself, with prior notice and a hearing, if necessary, and all of the pro-
visions of the granting of any permit.
Mr. Dince.. It would be possible, if somebody wanted a very fine
device to evade the probability of a hearing over a very unpopular
subject.
Mr. Ruckersuavs. I suppose that is right.
Mr. Dincxtti. Mr. Everett.
Mr. Evererr. Mr. Ruckelshaus, I am still not clear in my mind as to
how this would work with respect to the Corps of Engineers.
The chairman of the full committee is concerned about the plans
for the Baltimore harbor project. In a statement issued by Mr. Rey-
nolds yesterday, on behalf of the American Institute of Merchant Ship-
ping, he indicated that the project had already been approved, and that
the State of Maryland, the board of public works and State of Mary-
land have given assurance that disposal areas will be provided in the
Chesapeake Bay opposite Kent Island and/or in diked areas off Balti-
more Harbor.
If this bill is passed in its present form, what will take place with
respect to a permit application that would have to be obtained under
this legislation, so far as the dredge and fill permit is concerned ?
Mr. Rucxetsuaus. Well, as it would ordinarily work, if we are talk-
ing about a dredge and fill permit from the Corps of Engineers, where
under their authority under the Rivers and Harbors Act, there would
only be one permit issued, and if the permit is requested of them, any
dumping provisions relating to the issuance of that permit would come
under the purview of our responsibilities, under this act, and they
would have, under the act, as I read it, there is no requirement for a
separate permit.
Mr. Evererr. The State of Maryland said they would like to
have
Mr. RucketsHauvs. Excuse me. There has to be certification under
section 7(b) (2) to the Corps of Engineers by our agency that there is
no violation of the criteria.
Mr. Dinceti. Mr. Everett, if you yield, what you as saying here,
if you please, Mr. Ruckelshaus, is that under this particular proposal,
you would still have the corps continue to issue dredge-fill permits
as they do under existing law, but that the dredge-fill permits would
require an additional activity by your agency under lines 18, 19, 20, 21,
and 22 of the bill appearing on page 11, which, for the purpose of the
record, says:
And regulations issued hereunder, unless the Administrator has certified that
the activity proposed to be conducted is in conformity with provisions of this
Act and with regulations issued hereunder.
Am I correct in that ?
Mr. RuckxensHaus. That is right.
Mr. Drvnceu. So essentially, the corps would have to defer to you on
environmental matters, even though they would actually issue the
permit in that particular instance. Am I correct ?
Mr. Rucxexsuavs. I think the theory of this is one agency ought to
have responsibility for assuring that there is uniform treatment for
dumping whatever the material is in the ocean, and if you divide this
446
responsibility up, it would be more difficult to get consistent treatment
for dumping of material in the ocean.
Mr. Dincetu. This would refer also to estuaries, bays, salt marshes,
and also to the Great Lakes, which is a matter we have not discussed,
which I hope we will be able to address ourselves to a little later.
Thank you, Mr. Everett.
Mr. Everett. Does the certification requirement in effect give you
veto authority over this type of permit that would be issued by the
corps?
Mr. Rucxerrsuavs. That is right. They could not issue a permit
without the certification from us. )
Mr. Drncern. Mr. Ruckelshaus, for the purposes at this point, I
think it would be useful for you to give us, for the record, a statement.
Does this bill in any way amend or alter the Fish and Wiidlife
Coordination Act?
Mr. Rucrkersuaus. No, it does not.
Mr. Dincewy. Does the bill in any way amend the requirements of the
National Environmental Policy Act, particularly section 102?
Mr. RucxeisHaus. No, it does not.
Mr. Dinestu. Does it in any fashion at all change or amend the
agreement and understanding between the Corps of Engineers and
and the Interior Department, which has just been reviewed by the
Supreme Court in Zabze v. Tabb where they said they would con-
sider questions regarding fish and wildlife in issuing permits of this
kind?
Mr. Ruckersnavs. I am not familiar with that case. I would have to
defer that answer.
Mr. Drncetu. I will see to it that the precise title of the case is made
available to you, and you may submit the additional! informaticn to us.
Briefly, the Corps and Interior Department made an agreement
which said that the corps would condition dredge and fill permits on
consideration of 50-mile values.
This was challenged in the courts and was reviewed up in the
Supreme Court, and the agreement was upheld, it was held that the
corps agreement was proper, rather than Interior Department, and
that in light of the Coordination Act and in light of the National En-
vironmental Policy Act, these matters could be appropriate condition-
ing devices to dredge and fill permits issued by the corps.
After you have had a chance to review that more carefully, we would
like your guidance on that.
(The information follows:)
H.R. 4247 HErrect ON MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding deals with consultations between the
Department of the Interior and the Department of the Army on fish and wildlife,
recreation, and water pollution problems associated with dredging, filling and
excavation operations conducted under permits issued under the Rivers and
Harbors Act of 1899. H.R. 4247 would have no effect on this Memorandum of
Understanding (although it might be pointed out that Reorganization Plan No. 3
of 1970, by transferring responsibility for water pollution control from the De-
partment of the Interior to EPA, has narrowed the scope of application of the
447
Memorandum). Subsection 7(c) (2) of H.R. 4247 would require consultations be-
tween the Department of the Army and EPA in addition to the consultations
between the Department of the Army and the Department of the Interior re-
quired by the Memorandum of Understanding.
Mr. Everett. Mr. Ruckelshaus, how will this act affect applications
and permits that have already been approved ?
T notice the act takes effect 6 months after its effective date. How will
this affect projects underway, or applications that have been approved
by previous agencies ?
Mr. Rucxetsuavs. It would not affect them at all, unless there were
some dumping that was going to occur after the effective date of the
act. So if you had a dredge and fill permit that had been issued, unless
there was some violation of the act itself, it would not affect that par-
ticular permit, although it is conceivable to me that there may have
been a dredge and fill permit authorized in which we were dumping
polluted dredges in some sections of the ocean which seemed to be
inadvisable, where we would ask them to get a permit to do that, or
ask them to go through this procedure.
I think once the act took effect, that it would impact any dumping
that occurred after that, and, if a permit were issued for a dredge and
fill that covered several months, or even years, then at that point, when
the act took effect, there would have to be some control over that
continued dumping.
Mr. Everetr. Mr. Ruckelshaus, there has been some concern ex-
pressed by port authorities that maybe industrial and economic devel-
opment considerations would not be taken into account as much so as
they would under the National Estuarine Act and the National En-
vironmental Policy Act.
I don’t find too much language in the bill that relates to that. Are
you going to take all of these considerations in mind when you con-
sider where a dumping should take place, or if it should take place
at all?
Mr. Rucxensuavs. What specific kinds of considerations ?
Mr. Evererr. Under the National Environmenta] Policy Act, all
Federal agencies shall carry out their responsibilities in such way as
to achieve a balance between population growth, urbanization, indus-
trialization, and resource use, in order to attain the widest range of
beneficial uses of the environment without degradation to health,
safety, or other consequences.
Mr. RucxersHavus. Well, of course, we will carry out the provisions
of the National Environmental Policy Act, and any other act of
Congress.
Mr. Evererr. And to create or maintain conditions under which
man can exist in harmony and fulfill social and economic requirements
of present and future generations.
Under the National Estuarine Act, it likewise requires similar con-
sideration, that the estuaries will be utilized in such a manner that
balance will be maintained between the national need to protect such
areas in the interest of conservation and the need to develop these
estuaries to further growth and development.
448
Now, the concern expressed is that these concepts and requirements
might not be kept in mind under the administration of this act as they
would be under the administration of the National Environmental
Policy Act and National Estuarine Act.
Mr. Rucxetsuavs. I think we are clearly mandated to keep those
considerations in mind, and I think, given the present state of the law,
we have no ability to keep those considerations in mind in our ocean
policy, and we certainly would keep them in mind in the administra-
tion of this act.
Mr. Dincetu. Mr. Ruckelshaus, in the Great Lakes area you have
generally a freeze on open water dumping of polluted dredge spoil.
These spoils are deposited now, and must be deposited in closed, diked
areas.
Is it your intention to continue that practice with regard to the
Great Lakes area?
Mr. Rucxensuaus. Mr. Dominick may be able to give you an answer.
He has been involved in this directly, and he may be able to give you
a better answer.
Mr. Drncetu. I would lke your comments, if you please, Mr.
Dominick.
Mr. Dominick. Mr. Chairman, I think the important legislation that
has directed activity in this area is the Rivers and Harbors Act of
1970, section 123 of that act which refers to alternate disposal sites
in the Great Lakes for the dumping of polluted dredge spoils.
We are in the process of identifying now, with the Corps of Engi-
neers, those harbors where polluted dredge spoils are a significant
problem, and we have identified up to 40 or more at the present time.
Mr. Drncetz. In fact, you have not got a single Great Lakes harbor
that does not have polluted dredge spoil in it. Is that not a fact?
Mr. Dominick. I think most of them very definitely will have some
degree of pollution in them. We also want to evaluate whether addi-
tional dredging is going to be required in order to keep navigational
channels open.
As that evaluation is completed, we will be making determinations
and referring these determinations to the Administrator on the avail-
ability of on-land disposal sites, and on the Federal and State or local
funding required to implement those alternative sites.
Mr. Drnceti. Mr. Ruckelshaus, on page 11, you mentioned toxic
industrial wastes. You may not wish to do so at this particular time, but
would you give this committee a definition of what those are, not neces-
sarily the exclusive definition, but one which would give us an under-
standing of how you interpret that particular word ?
Mr. Ruckensuaus. Yes, we will.
(The definition follows:)
“Toxic INDUSTRIAL WASTES” DEFINITION
“Toxic industrial waste” is a general term used to describe various materials
having the ability to produce harmful effects in living organisms. These materials
are dumped by industry either because there are no straight forward or economi-
449
cal treatment methods or because the materials cannot be technically or economi-
eal recovered. These materials may be in liquid, solid or semi-solid form. When
discharged into the marine environment, the materials may be (1) deposited
on the ocean floor, (2) dissolved and transported by ocean diffusion, dispersion
and currents, (3) suspended in colloidal form and transported by currents, (4)
fioat and be transported by currents. The position that the discharged materials
occupy in the ocean determine what life forms may be damaged. The toxicity
of the wastes is dependent upon several ocean factors, such as pH, salinity,
turbidity, temperature and mixing.
Examples of the types of industries that can produce toxic wastes are petro-
chemical facilities, steel mills, paper mills, metal plating plants and others. Very
simply, much of these toxic industrial wastes are the residual materials from
“still bottoms”, settling basins, lagoon storage systems or concentrated precipi-
tates and sludges from solid-liquid industrial processing streams. Hlements and
compounds that may be regarded as hazardous substances are common in toxic
industrial wastes. These materials would include elements in their elemental form
or as ions, compounds, or in any combination or mixture such as antimony,
arsenic, beryllium, boron, cadmium, chromium, lead, mercury, nickel, selenium,
silver, thallium and zinc. In addition, organic materials, includuing certain
pesticides and residues that have been classified by Department of Transporta-
tion as Class B poisons in 46 CFR 146.25 are also toxic. A major threat to the
marine environment from toxic industrial wastes is the complexity of these mix-
tures and the high potential for synergism once discharged.
Mr. Drncetu. Are you satisfied that oil may be safely excluded from
the purview of this act because it is adequately covered elsewhere in
the statutes?
Mr. Rucxetsnavs. I think under section 11 of the Federal Water
Pollution Control Act, Mr. Chairman, there has been a very recent
efiort by this Congress to cover comprehensively the problems of oil
pollution, and we are in the process of attempting to implement
that act, and maybe after a little more experience with our efforts to
implement it, we can give you a clearer answer, but it is a comprehen-
sive effort to treat the problem of oil, and certainly we have by no means
got it completely under control, but we are in the process of trying.
Mr. Dincreii. You have here a question of existing legislation and
the question is whether bilge and hold pumping anywhere by American
ships is adequately handled, out of the 20-mile limit, or possibly 50
miles out.
Could you give us a comment on that particular problem ?
Mr. Dominick. We feel that the role of the United States in han-
dling the question of ballast dumping and bilge pumping beyond our
territorial waters or the contiguous zone must be undertaken in the
international convention areas, and, as you know, Secretary Volpe
has taken a very strong role with the NATO countries in seeking
international agreements to totally ban the discharge of ballast
waters on the high seas. I believe the date was by 1975 or 1976.
Mr. Dincetu. This brings to mind the question regarding matters of
some importance to the Chair.
Legislation pending elsewhere in the Congress would instruct the
administration, if it is the wish of Congress, that they should at an
early time enter into endeavors to achieve international controls on,
ocean dumping through treaties and similar devices.
Would you have any feeling as to the relative usefulness of a direc-
450
tion of this kind from Congress, and whether or not it would be neces-
sary, or would it conflict with any administration policy ?
Mr. RucxetsHavs. Well, it does not conflict with any policy, be-
cause we are attempting to ‘do this right now. I am going to Brussels
next week for a meeting of the Committee on Challenges to Modern
Society, in an effort to get some international cooperation with this
problem.
There is in section 10 of this bill, of course, a provision relating to in-
ternational cooperation, and I think that a direction like this, indi-
cating Congress is concerned that we make these international effor ts,
is very beneficial.
Mr. Dincety. Now, there are, if you please, gentlemen, in the last
two pages of the bill, pages 13 and 14, section iti, entitled “Repeal and
Supersession,’ > there are a whole series of statutes, sections, and so
forth, which are referred to at that point.
Would you gentlemen please inform the committee, would you,
please, gentlemen, give the committee at your convenience some state-
ment of P precisely ‘what the meaning of this particular section happens
to be?
Mr. RuckensHaus. Yes; we will.
Mr. Dincetu. It will be very helpful to the committee.
(The statement follows:)
“REPEAL AND SUPERSESSION” DEFINITION
We understand that this statement will be provided by the Council on Hnviron-
mental Quality.
Mr. Dineen. Now, in your statement, Mr. Ruckelshaus, page 5,
you state the Administrator in issuing permits to dump materials, to
transport them for dumping, will be required to determine that such
activity will not, and so forth,
On whom would be the burden of proof in that matter? Would it be
upon you, or would it be on the would-be dumper ?
Mr. Rucxetsuaus. I think it would be clearly on the dumper.
Mr. Dincetu. Is there amendatory language needed to make that
crystal clear?
Mr. Rucxetsuaus. I think it is clear from the present statute, but
I certainly would have no objection to making it clearer if the com-
mittee felt it was necessary.
Mr. Dinerti. I must tell you that I am not satisfied that it is as
clear as I personally would like.
Your words at this time have great impact on me, and I am satished
under the legislative history, but it would be appreciated if you would
review that point and let the committee have the benefit of your
views.
(The information follows :)
BURDEN OF PROOF FOR PROPOSED DUMPING PERMIT
In our view subsection 5(a) is sufficiently clear that such burden of proof is
upon the permit applicant.
Of course the Administrator must exercise his judgment as to whether such
451
burden has been met in determining whether, and on what conditions, a permit
will be issued.
It is the applicant, however, who must provide all the necessary information
upon which the Administrator makes his determination.
Mr. Dincetx. Now, at page 6 you mention that the Administrator
will be permitted to impose restrictions, and a little later you say he
would be authorized to deny the issuance of a permit, and then at the
last paragraph, he would be authorized to require applicants with per-
mits to provide information. And then, on down, you say he would be
authorized to prescribe reporting requirements.
I wonder if we ought not simply require you to do that, Mr. Ruckels-
haus. Do you have any feelings on that matter?
Mr. Rucseusuavs. I think the whole question involved is a question
as to whether it is better to permit Administrator flexibility in the ad-
ministration of a statute of this nature, or to put more mandatory
language in from the legislative branch, and the one reason I think we
have opted for the more flexible administrative approach in this statute
is that there are so many unknowables in the area of ocean dumping.
While we may feel today that one particular kind of activity is ter-
ribly harmful to the environment, further research may show us this
is the most beneficial we could be doing.
And to attempt to lock too many specifics into the statute in an area
where there are so many unknowns may have some hazards.
Where we are dealing with specific problems that everybody agrees
are known in terms of, for instance, high degree of radioactive waste,
I see no reason not to get more specific in the statute, but I also can see
in trying to implement this kind of statute, in reading the report of
the Council on Environmental Quality, that there are a number of
areas that we simply don’t have the knowledge we should have, and for
that reason there is a need for flexibility.
Mr. Drnceti. You are coming to a matter that is of considerable
concern.
H.R. 6332, which is authored by Mr. Rogers and the present occu-
pant of the Chair, and a number of our colleagues, generally sets out
a research program at a level of $1 million per year. You and every
other witness have indicated the great plausibility of knowledge, and
great need for research.
{am satisfied that you are carrying out research down there at your
agency, but I am troubled, since we really do not have any program
which has been here in a unified form, which the Congress may scruti-
nize and understand precisely what you folks in the administration
propose to do in this area, and I am wondering, would it be possible
for you to list for this committee the research requirements which you
would need to conduct a good research program in this area, so that
we could have before us, when we go into this statute, a very clear
understanding of what you are doing, and how it conforms with the
requirement of law to carry out a carefully thought out and integrated
program of research ?
Mr. RucxexisHavus. We will certainly supply that to the committee.
Mr. Dincetxt. Would you do that for us, please?
452
(The information follows :)
FISCAL YEAR 1972 PROGRAM PLAN FOR OCEAN DISPOSAL RESEARCH
[Dollar amoun
Project
Objective No. 1—Determine the size and nature of the
ocean and Great Lake disposal problem:
(1) Identify sources and amounts of municipal and
industrial sludges, dredge spoils, and other
wastes.!
(2) Characterize disposed materials for each disposal
site (physical, chemical, biological, and bac-
teriological characteristics).
Objective No. 2—Establish scientific criteria for disposal
site selection:
(A) Determine natural ecology: 2
(1) Establish natural marine preserves and
sanctuaries.
(2) Deteunitle natural ecology-food web
system
(3) Delineate iniclegieally critical areas_______
(B) Determine effects in existing disposal sites:
(1) Study the physical and geochemical
character and extent of deposits (con-
tinue studies of New York Bight, initiate
studies in Pacific, Guld of Mexico, and
Great Lakes.
(2) Characterize water circulation at disposal
sites (initiate multilayer circulation
model of coastal waters and plan field
measuremenis).
(3) Characterize and chemically analyze the
benthic biota in disposal sites.
(4) Determine the time/space distribution of
bacteria and viruses.
Objective No. 3—Establish marine water quality criteria for
disposal sites:
(1) Determine toxicity effects of sludges and their
constituents—organic and inorganic (marine
and freshwater).
(2) Develop testing protocol for use by waste disposers
in permit applications.
Objective No. 4—Establish monitoring systems for ocean
disposal: 2
(1) Develop site monitoring techniques____._________
(2) Develop water quality sampling procedures and
sensors for estuaries, coastal waters, open ocean,
and Great Lakes.
(3) Establish and maintain ocean pollution data man-
agement system.
Objective No. 5—E€stablish environmentally optimum
dumping methods:
(A) Characterize methods:
(1) Survey and study existing operational
technology and effects.
ts in thousands]
Positions
Grants Contracts
@) Scale: modeliproposedmethodse\s 25.22 Sy Qo he Ne a Ee eee
@)cConduckiuli-scalesdemonstrations=.=2. 2 3. ee a eee
Objective No. 6—Establish optimum waste management
procedures relative to ocean dumping.
(1) Develop and demonstrate alternatives to ocean
dumping.
(2) Study beneficial uses of waste 3_________________
(3) Develop marine restoration techniques___________
Objective No. 7—Program coordination and management:
Coordinate, Plan and Manage Ocean Disposal R. & D.4
1 This may have already been done.
2 During the lst year, headquarters will plan the program
(12K/
year, at
lapsed
Program office rate)
SWOIWQOA. es ee eee
WQO0:
NG OT) fetes ie tte ee 1
GUL QE cee ee Eee Re 1
NOAA, Interior, Smith- _________-
sonian Institution,
WQO
WQO, NSF, AEC, Smith- __________
sonian Institution.
WQO, Interior, NOAA___--_________
WQO:
MU /erer sete te tle 1
LOU2: 35 neu riaes 1
WQO:
1160/2 e sees eee 1
GY2! Hh bere a ee Bee
WQO0:
GO Derren sade Tee 2
GO (2 Seah ieee 1
S05: 23 Sa Are 1
1808s 4 Rhee eS 1
LOL2 Pests re OWEN ee
WQO0:
NGO 5 Seed Ek ae ees 1
GOV 2 sect sete Wee ee =
WwQo:
GO 5 SAS e Sates eo Sc
1805 eek tie cece 2
NBOGK: S25 See ee 3
WQO:
GO Jp eeer ser ae ae 1
11808 328 Se 1
WQO, USCG, NASA, 9 22222 222_8
NOAA, NOIC&NODC
WOGRLG07i2s ites Ses eae
WOO. SW yo. 8 Pee ee
(OOS eo 1
WOO1607S00) ive 2 eae eee
WwQo:
NG OT eee Sew hee eae
WO 7282 18 CR RIE EE! Tae
WQO Headquarters______ 3
with other agencies.
3 During the Ist year, a program plan will be developed by headquarters.
4 Includes 1 secretary.
S100 ge aS ems
abet ota e
AEA IE TS $200
bail Sea 75
Thus Rte
Legon at 50
UES BIS CRO 2
eat Terese ¥ wae
Pt eres Alagoas?
Ridies: jg) SEE T
i: saan
ME 50
PAN des Ceneeee,
100
453
Mr. Drxcett. One of the reasons I ask this is I happen to have read
some articles in the paper; for example, one mentioned that it 1s pos-
sible perhaps to properly encase and package these substances and put
them into places between the plates in the earth crust, where there is a
downward movement into the crust, and dispose of waste that way
with minimum hazard to the environment.
Then I observed another comment about utilization of pumps to
bring cold water up to create nutrient, and I wonder if we ought not
perhaps consider giving you the authority to engage in a program of
converting municipal sewage into useful nutrients. We have done that
in the Great Lakes with great success.
Tt occurs we might not have the putrification problem in the ocean,
if we treat sewage in the proper way and deposit it in the right place
to create a significant benefit.
Mr. RuckersHaus. I agree, Mr. Chairman, there are those who
believe that this can happen, and I think it may well be right. I think
we heed more research to determine whether this would be a proper
way to dispose of sewage sludge.
Mr. Dineeti. Perhaps a device of this kind might be highly desir-
able to include in the research authorization in the direction we are
discussing at this time.
Mr. Rucxetsuaus. We have had this same problem come up, the
same question, in virtually every bill which we presently have before
Congress, and in our general appropriations bill we have included a
considerable sum of money for research across the agency, and we have
attempted to deal with the problem of research money in our general
appropriation bill rather than trying to deal with it in each individual
bill that comes across.
We are trying to in the agency centralize the general research over-
view, and the effort to coordinate all of our research into areas where
it would seem to bear the most fruit for the environment.
Mr. Drincett. I can see the desirability from your viewpoint. but
from the standpoint of congressional review, we have the other prob-
lem, and that is comparing what you are doing as opposed to congres-
sional direction, and that is the reason I seek your assistance in this.
Mr. Ruckelshaus, the Chair is a little bit concerned here about the
language at page 12. You mentioned that no new sources of ocean dis-
posal of sewage sludge would be permitted, and then you went on to
say you would not allow an increase in volume of dumping over cur-
rent levels, that is a very strong statement, for what existing barging
facilities can accommodate.
How do you propose to carry out that particular policy statement ?
Mr. Rucxersnaus. How do I propose to carry out that statement ?
Mr. Dinepe tt. To carry out that statement.
I happen to be in entire agreement with it. I want to be sure we have
before us your proposal.
Mr. Rucxersuavus. There may be some specific problems with this
statement in sections of the country, in particular New York City, but
with the 6-month period in which we have to implement the act, I
think we can develop alternatives sites that will allow us to carry out
this pledge, at least not to have any increase.
Mr. Dincetu. You have indicated here again at pages 13 and 14 that
a great deal of effort and investment is necessary, and research is
needed in recycling wastes.
454
Could you give us and idea of the dollar amount of research that
you actually feel is needed in this particular area, in connection with
the questions that I asked earlier that you said you would furnish?
Mr. Rucxeisuaus. We have a submission in our 1972 budget of
$1,100,000 for ocean disposal research.
Mr. Drncetu. That level will rise to what figure over a 5-year
period ?
Mr. Rucxersuaus. The level for the bill itself, for the implementa-
tion of the act, which would not necessarily include research, because
we don’t have that built into these figures in fiscal year 1972, starts at
$2 million, and then by 1977 we are down to 3.9, because I believe the
phasing out of much of ocean dumping that we now know, it might
not necessitate as grave an expenditure of money.
Mr. Drncett. You have mentioned—at the bottom of page 15, top
of page 16, you said as follows:
Several of the bills pending before this committee would require designated
levels of treatment for municipal sewage and industrial wastes by specified dates.
This approach does not take into account variations in water use designations,
he quality or characteristics of the receiving waters, or other factors which
bear on the appropriate level of treatment in a given instance.
That statement does not change or alter or indicate an intention by
your agency to change the no degradation requirement, over which a
monumental fight took place some time back, does it ?
Mr. RucxersHavus. No, it does not.
It might imply a certain qualification of the statement by Mr. Rogers
a little earlier, when we discussed deadlines in terms of secondary and
tertiary treatment, as to how we would go about insuring clean water
in the country.
Mr. Dincetu. Now, the reason I asked that is, I am apprehensive in
looking over my shoulder at some of the industrial and municipal folks
who have ideas we should utilize the streams and lakes and oceans up
to their assimilative capacity. The understanding I have had with
your agency previous to your taking office was that was not going to
be the policy of the Public Health Service, and then the Interior De-
partment, and I think that 1s still not the policy, to allow the utiliza-
tion of these waters up to that capacity.
Mr. Rucxersuaus. No, that is not the policy.
Mr. Dincetx. There is a requirement that you consult with the De-
partment of the Interior with regard to achievement with the levels,
or, rather with regard to criteria and so forth with regard to ocean
dumping, but there is no similar requirement with regard to the is-
suance of permits.
Can you explain the difference there ?
Mr. Rucxensuavs. I think the difference is mainly a difference be-
tiveen substance and procedure, and that on the substantive matters,
v hich we would hope to cover in the criteria, upon which the issuance
of the permits would be based, we would want to insure that we had
complete concurrence in these other affected agencies with substantive
roquests that we were going to be making from the permittees, but as
far as actual administrative process of issuing the permits themselves,
there did not seem to be as great a need for coordination between the
agencies.
459
That does not mean that in given instances, where clearly another
agency 1s involved, and policy and statutory duty of another agency
is involved, we would not consult with them even on the issuance of a
ermit.
: Mr. Dineety. Would you have any objection to requiring that you
should consult with them on the issuance of these permits? It is done
under the Coordination Act in every instance.
Mr. RucwersHavs. The thing that disturbs me, as apparently dis-
turbed Mr. duPont and some of the witnesses yesterday, is admin-
istrative difliculty of issuing permits where you have multiagency
responsibility, and the time lag between the request and ultimate is-
suance of the permit can bog the program and destroy its effectiveness.
Certainly we have no objection to inclusion of language that we
should consult in every case where a problem arises, or where respon-
sibility with another agency occurs.
“Mr. Dinestt. Perhaps maybe to assist you and assist this commit-
tee, you can submit the language that you would deem appropriate
to carry that particular purpose out.
(The proposed language fol!ows:)
CONSULTATION PROVISIONS PRIOR TO ISSUING PERMITS
This matter could be dealt with by amending subsection 5(a) to include im-
mediately prior to the last sentence of that subsection, the following:
“Such provision shall require consultation with Federal agencies with respect
to factors specified in paragraphs (1) and (2) of this subsection for which
such agencies have responsibilities.”
Mr. Dixyceiy. With regard to the question of notice of hearing on
these matters, there is no clear statutory requirements for notice of
hearings.
You mentioned in response to questions from others of our colleagues
that there are both constitutional and due process, and also Adminis-
trative Procedures Act requirements would come into play.
As I recall it, and I don’t want you to give me a specific answer at
this particular moment, but I would like to have you reflect and give
us your answer aiter you have had a chance to consider the matter
soberly, it is more or less standard legislative boilerplate that says
that after notice and opportunity for hearing.
Would this be objectionable? Obviously, some permit requests are
going to be highly controversial, and it occurs to me the courts are
going to probably require you to give both notice and hearing in any
event, and probably statutory language of this kind wouid not do too
much mischief.
Mr. RucketsHavus. Let me, as you stated, upon sober reflection give
you a detailed answer on that, because notice of hearing can mean so
many different things, and I want to be sure that our position is crys-
tal clear on how we can provide due process and at the same time pro-
vide an expedited administrative process, if possible.
(The information follows:)
NOTICES AND/OR HEARINGS PRIOR TO THE ISSUING OF DENIAL PERMITS
We would not be opposed to the addition of the following paragraph as a new
subsection of section 5 of the bill:
“The Administrator shall issue a public notice of each application for a
permit, which shall provide a reasonable period of time within which inter-
456
ested persons may express their views concerning the application. The Ad-
ministrator shall hold a public hearing on an application whenever he
determines that there is substantial public interest in the application or that
a hearing will be of assistance to him in reaching a determination as to
whether a permit should be issued. and if so, the terms of the permit.”
Mr. Drncett. It is also my intention to be fair, and give you the
opportunity to have you give us your best judgment, because we intend
to lean heavily on this matter.
Mr. Everett.
Mr. Evererr. Mr. Ruckelshaus, when you have an opportunity, also,
section 5(f) and 6(f) of the bill are not clear to me, and I wondered
if they are duplicative. If not, would you provide a brief explanation
of what you are trying to get at with these two different sections?
Mr. RucKELSHAUS. ‘Yes, we will.
(The information follows 2)
INTENTIONS OF SECTIONS 5(f) AND 6(f)
Section 5(f) authorizes the Administrator to establish, by regulation, cate-
gories of dumping or transportation for dumping for which permits will not be
granted because of inability to comply with the criteria established under sec-
tion 5(a). Section 5(f) also authorizes the Administrator to alter or revoke
permits where he determines that the materials in question cannot be dumped
consistently with such criteria. Section 6(f) authorizes the Administrator to
revoke or suspend a permit which has been violated.
The sections are not duplicative. They both deal with revocation of permits,
but in different circumstances: 5(f) applies where the Administrator determines
that the material cannot be dumped consistently with the criteria (even though
there has been no violation of the permit), whereas 6(f) applies where there has
been a violation (even though the dumping authorized by the permit could be
carried out consistently with the criteria).
Mr. Evererr. Section 12 of the bill pertains to delegation of your
responsibility to other agencies, including the issuance of permits. Do
you contemplate that you will transfer or delegate this responsibility
to some other agency ?
Mr. RuckrersHaus. We have no present contemplation of doing
that. It just may be that in the administration of the act itself there
would be some area where dual permits or dual administration of the
act would not seem to be wise, that we would want to make such a
delegation.
We have no present intention, nor do I foresee any in the near future,
of making such a delegation.
Mr. Evererr. As Mr. Dingell mentioned a while ago, it is broad
language, and it opens the door.
One problem we have with respect to AKC is that they already are
exempted; but if this provision should be dropped from the legisla-
tion, you could still turn around and delegate the same responsibility
to AEC with respect to dumping of their own waste materials.
This is something that gives the committee some concern.
Mr. Dineen. Mr. Everett, if you will yield, as a matter of fact it
has been interpreted by some of the members of the committee as af-
fording a complete exemption to AEC from EPA regulation in cer-
tain instances of ocean dumping, and I would like it very much if vou
would please to direct your attention to the responsibility as to whether
or not some amendatory language is not necessary for the bill, so that
457
AEC will not be able to escape entirely your permit and regulatory
requirements.
Mr. Rucxke.suavs. That is not the intention, and so we will direct
our attention te amendatory language of that nature.
Mr. Drnce tu. I think it would be very helpful.
(The proposed language follows :)
AHC PERMIT AND REGULATORY REQUIREMENTS
One way of accomplishing this would be to delete section 7(b) of the bill al-
together, so that the AEC would be subject to the requirements of the Act just
like other Federal agencies.
As section 7(b) is now written, the ANC would be required to consult with
the Administrator prior to issuing permits for dumping, but would not, however,
be required to consult with the Administrator prior to carrying out the dump-
ing itself. Thus, another way of tightening regulatory control with respect to the
ABC would be to require consultation with the Administrator in the latter case
as well as in the former. The first two sentences of the proviso in section 7(b)
could be amended to read as follows:
“Provided, The Atomic Hnergy Commission shall consult with the Ad-
ministrator prior to conducting any activity or issuing a permit to conduct
any activity which would otherwise be regulated by this Act. In conducting
any such activity or in issuing any such permit, the Atomic Hnergy Commis-
sion shall comply with standards set by the Administrator respecting limits
on radiation exposures or levels, or concentrations or quantities of radioac-
tive material.”
Mr. Evererr. One final question, Mr. Ruckelshaus, with respect to
finder’s fee. I wondered what your thinking would be on including a
provision in the bill that would provide for an informer’s fee.
Mr. Rucxetsuaus. The informer’s fee has worked in some instances,
and has not in others.
The question I suppose really is whether you want to proceed with
the fine or through injunctive process. An informer’s fee is of no par-
ticular benefit through the injunctive process, and here, where you
have a specific act that is violated, maybe an informer’s fee would be
a good way to insure that the statute was complied with.
Mr. Everett. Would you have any particular objection to including
a provision of this sort ?
Mr. RucxeisHaus. I have not thought about it, but offhand I can-
not think of any.
Mr. Everett. Thank you very much, Mr. Chairman.
Mr. Dineetu. Mr. Sharood had a question he would like to direct at
you, please, Mr. Ruckelshaus.
Mr. Suaroop. In the penalty provision, dealing with actions against
the vessel, you have an exception for public vessels, and then it goes
on to say “as defined in the Water Quality Act or Water Pollution
Control Act or other public property of a similar nature.”
Could you tell us what you are referring to there, “other public
property of a similar nature” ?
Mr. Ruckxetswaus. I am not sure what they do have in mind, al-
though an action against a public vessel would again be taking out of
one pocket and putting it into another.
Mr. Suaroop. I want to know how far this exemption goes. There
may be some optional aspect to this. I cannot visualize what you mean
by “other puble property.”
458
Mr. Ruckensnaus. It apparently refers to channels and pipelines
and things of that nature.
We will supply for the committee the specific thing we have in mind.
(The information follows:)
Upon further consideration, we believe that this phrase is unnecessary and may
appropriately be deleted from the bill.
Mr. Dincetzi. Mr. Ruckelshaus, this is probably a question that
should have been asked earlier. It relates to just what authority and
which particular statute will apply where.
Dealing with the different kinds of permits, the Water Pollution
Control Office will apply out to 3 miles, or 12 miles, under existing
statute ?
Mr. Rucxersuaus. Under existing statute, they apply out to the
edge of the territorial sea, 3 miles.
Mr. Drncexiu. From 3 miles out, if somebody puts a sewage outfall
or something of that kind, they are exempt from the water pollution
control law ¢
Mr. Rucketsuatvs. We have no authority now, except possibly under
the dredge and fill permit, the navigational permit of the Corps of En-
gineers, if they put an outfall out that far, they have to get a permit
to do so from the corps, and at the beginning of that process we may be
able to insure under section 21(b) of the Water Pollution Control Act
that they meet pollution standards as well, water quality standards as
well, but once it is there, we cannot do anything about it.
Mr. Dincewu. The corps’ permitting authority goes to 3 miles, as I
understand it, or do they go out ?
Mr. RucKxetsuaus. It is a navigational permit, and I think under
the control of the navigational aspects of anything in the water, we
could control what goes out at the end of that pipe.
Mr. Diycetu. Providing it had an impact on navigation, or would
you go under the guidelines of the Executive order that has been issued
by the President ?
Mr. Ruckxeitsuaus. We cannot go any further, under the permit
program, than the 3-mile limit, unless we can try and get hold of it
prior to construction of any outfall through the corps’ other permit
authority under the dredge and fill.
Tt is not at all clear that we can. I don’t want to put too much
emphasis on this, because I am not sure we can.
Mr. Dincetu. This bill exempts outfalls, which would mean that it
would exempt sewage emissions between 3 and 12 miles. Am I correct?
Mr. RuckersHavs. That is right.
Mr. Dinertu. If we were to strike outfalls, what problems would
that create for you or the administration with regard to the projected
legislation which you are going to submit, or which has been sub-
mitted, to cover underwater quality standards the areas between 3 and
12 miles?
Mr. RuckensHaus. It would present problems, because we would
have two separate permit programs going on for discharges into
waters, and in the case of the Great Lakes, or in the case of estuarine
areas, or the ocean. ;
459
We have one permit program under ocean dumping provisions, and
another program under the Water Pollution Control Act.
Mr. Dinertt. You don’t have permits under the Water Pollution
Control Act, and the new legislation does not apply to permits, does it?
Mr. Rucxeisnavs. That is right, except we do have for the dis-
charge of industrial wastes not going through municipal systems. We
have a permit program including that.
Mr. Dinceui. All right. Now, would it be possible for you through
administrative action to control, or rather to merge the two programs?
For example, Secretary Volpe has merged the reporting requirements
under section 4(f) of the Transportation Act and 102(2)(C) of the
National Environmental Policy Act. Could you merge the two with-
out any difficulties ?
Mr. RucxersHaus. Assuming we had the statutory framework to
do so, I am sure we could, and I think that is what we have got to be
very careful about, and I think the passage of this act has got to be
leoked at carefully in terms of passage of the Water Pollution Control
Act, so we don’t have an overlap and so that the two programs can
clearly be merged under the two statutes.
Mr. Dinesiu. We would be giving the same agency the authority to
issue two permits. That should not create too much problem, if vou
would administer it wisely and well, would it?
Mr. Rucuensuaus. It would not, except we would be issuing one
permit under the Refuse Act, if industry was involved, and then an-
other permit under the Ocean Dumping Act, so they would have to get
two permits for doing essentially the same thing.
Mr. Drvexi. It would not create problems with water pollution
activity, would it ?
Mr. RucKersHavs. Other than the dual permit, which is not a-very
administratively neat way to do it, I don’t see that it would affect our
effort to clean up the water.
Mr. Dincetu. Actually, you are effectively, in some areas, doing
away with the Refuse Act permit, anyway, in other parts of the bill,
are you not?
Mr. Rucxrensnaus. Yes, but that is by distinguishing between inter-
mittent dumping and continuous outfall.
If you put outfalls into this act, we would be treating outfalls
differently, depending on where they are located.
Mr. Dinextn. Iam talking outside of the 3 miles. Does the corps’ Re-
fuse Act apply to the running of these outfalls beyond the 3-mile limit ?
Mr. Ruckxexsnaus. No.
Mr. Diner. That would not be a major problem, except insofar as
construction is concerned ?
Mr. Ruckeisiaus. As far as we know now, it is no problem because
I don’t know of any industrial outfall that goes out that far.
Mr. Drveriy. There are some long lines that are contemplated in
some parts of the country very shortly, and is it your view that these
are being done in part to avoid the requirements of the water pollution
control laws ?
Mr. RucKersnaus. I don’t think that they are being done to avoid
the requirements as much as they are to maybe take advantage of what
460
their engineers say is a better mechanism for dispersing the waste in
the environment.
I am not prepared to say they are trying to avoid the law. If they
are, I think they are going to be included very quickly.
Mr. Dinerty. That is one of the things I propose to try to do.
Let me ask you this other question. Outside 12 miles, what would be
the requirements for permits, under this legislation, under the other
proposed legislation that you have been addressing yourself to, and
under existing law, 1f you please ?
Mr. RucxetsHavs. Outside of the 12 miles, under existing law we
have no authority to do anything about either outfalls or dumping.
Under our proposed legislation, we would control the dumping of
any material from ships originating in our ports outside the 12-mile
limit. We would attempt to control the dumping from ships not orgi-
nating on our shores only in the contiguous zone as it affected the
territorial sea, and not outside the contiguous zone.
In terms of the Water Pollution Control Act, which we have sub-
mitted to Congress under the other provisions, we would control out-
falls originating in the United States, wherever they ended up in the
ocean, whether it was in the contiguous zone or in the high seas.
Mr. Dincetu. I see.
Mr. Ruckelshaus, you and Mr. Dominick have been very patient
with the committee, and very helpful. We thank you for your kindness
and great assistance for the committee this morning. It has been a
privilege to have you before us.
If there is no further business to come before us at this time, the
committee will stand adjourned until the hour of 2 o’clock.
(Whereupon, at 12:50 p.m. the joint subcommittees recessed, to re-
convene at 2 p.m., the same day.)
AFTERNOON SESSION
Mr. Dincetyt. The subcommittee will come to order.
This is a continuation of the hearings commenced this morning on
the general subject of ocean dumping, and a number of pieces of
legislation related to that matter.
Our first witness is Mr. John R. Stevenson, legal advisor, Depart-
ment of State.
Mr. Stevenson, we are pleased that you could be with us, and we will
be happy to recognize you for such statement as you choose to give.
Do you have any members of your staff or associates you would like
to have with you at the witness table ?
Mr. Stevenson. I have several with me, Mr. Chairman, but I don’t
think it is necessary for them to come forward.
Mr. Diner. It is entirely appropriate if you want to have them
at your side.
Mr. Stevenson. It may be that on some of the questions, I will need
to ask them to join me.
Mr. Dineeti. We will accede to your wishes.
If you will identify yourself fully for purpose of the record, the
chair will recognize you for your statement, Mr. Stevenson.
461
STATEMENT OF JOHN R. STEVENSON, LEGAL ADVISER,
DEPARTMENT OF STATE
Mr. Srevenson. Thank you very much, Mr. Chairman. I am John
Stevenson, the legal adviser of the State Department.
Mr. Chairman, committee members: I appreciate this opportunity
to meet with you to testify in support of the President’s proposal to
control ocean dumping. I would like to discuss with the committee the
jurisdictional aspects of the Marine Protection Act of 1971, H.R. 4247
and H.R. 4728, and the international efforts of the administration to
protect the marine environment.
The proposed Marine Protection Act of 1971 has been carefully
drafted to maximize U.S. control over ocean dumping activities con-
sistent with accepted principles of international law. In this connec-
tion, I wish to note the fact that to our knowledge all dumping off
our coasts at present originates from the United States and that we
have no reason to believe the situation will change. I would like to
briefly discuss the relevant principles of international law on which the
President’s ocean dumping proposal is based.
Traditionally, the law of the sea has been faced with two funda-
mental problems—defining the extent of coastal state jurisdiction over
the ocean and accommodating conflicting uses of the high seas. Al-
though we continue to work on several aspects of these problems, great
advances were made in 1958 with the adoption of the four Geneva
Law of the Sea Conventions. These conventions codified the existing
international law of the sea and established several important new
international legal principles. These conventions, to which we and
many other nations are parties, establish the present legal basis for
coastal state control of ocean activities.
The Convention on the Territorial Sea and the Contiguous Zone
provides in its first article that the sovereignty of a coastal state ex-
tends beyond its land territory to its territorial sea. With the exception
of the right of innocent passage through the territorial sea, the United
States under this convention and customary international law enjoys
complete control over all activities in our 3-mile territorial sea.
furthermore, this convention provides that a coastal state in a zone
of the high seas contiguous to its territorial sea may exercise control
necessary to prevent the infringement of its customs, fiscal, immigra-
tion, or sanitary regulations within its territory or territorial sea. The
convention specifies that this contiguous zone may not extend beyond
12 miles from the coast. Thus, within the contiguous zone, the United
States can enact measures to prevent unlawful pollution of its terri-
tory or territorial sea. It is important to bear in mind that the U.S.
authority under the convention does not derive from a right to pre-
vent pollution of the contiguous zone as such, but from a right to pre-
vent pollution of our territory or territorial sea.
A State, of course, has jurisdiction over vessels flying its flag on
the high seas irrespective of their location. A state may also determine
the conditions under which materials may be removed from its terri-
tory, and specifically has the power to prohibit such removal by its
own or foreign nationals and vessels. But, beyond 12 miles, a state has
462
no rights under international law to regulate the activities of foreign
vessels on the high seas in the absence of an international agreement.
The convention on the high seas is most explicit on this point; article
2 provides in relevant part that:
“The high seas being open to all nations, no state may validly pur-
port to subject any part of them to its sovereignty.”
Article 6, in part, provides:
Ships shall sail under the flag of one state only and, save in exceptional cases
expressly provided for in international treaties or in these articles, shall be
subject to its exclusive jurisdiction on the high seas.
The Administration’s proposed Marine Protection Act of 1971 es-
tablishes control over the transportation of material by any person
from the United States for dumping on the high seas. It also estab-
lishes control over the dumping of material by any person from any
source in the 3-mile territorial sea of the United States and in the
additional 9-mile contiguous zone adjacent to its territorial sea. Both
provisions would apply to American and foreign nationals and vessels.
We believe this is the proper exercise of our jurisdiction under inter-
national law, and that 1t fully meets all cases of dumping arising now
or likely to arise.
As there is legislation before this committee to control ocean dump-
ing on the basis of our jurisdiction over the continental shelf, I would
like to briefly discuss the legal problems inherent in this approach.
Under the convention on the continental shelf, the United States has
exclusive sovereign right for the purpose of exploring the continental
shelf and exploiting its natural resources. The convention does not
give the United States sovereignty over the continental shelf for all
purposes, and it explicitly preserves the status of the superjacent
waters as high seas. The drafters of the convention carefully considered
what rights and obligations necessarily flowed from the general right
of the coastal state over exploration and exploitation, and they were
quite explicit. The coastal state, for example, has a right to erect in-
stallations and exercise jurisdiction over them for the exploration
or exploitation of natural resources, as well as to establish safety zones
around the installations. It has certain rights over research under-
taken on the shelf and has an obligation to prevent unjustifiable in-
terference with other uses of the sea. Nowhere does the convention
authorize the coastal state to regulete dumping. Indeed, it is the con-
vention on the high seas, not the Continental Shelf Convention, which
specifically refers to the dumping of radioactive wastes. It is clear
that the Geneva conventions consider that dumping should be treated
under the high seas regume, that is by regulation of one’s nationals
and by international agreement.
In this connection, we must also consider the question of enforce-
ment. The basic principle regarding vessels on the high seas is that
they are subject to the exclusive jurisdiction of the flag state except
as otherwise agreed. There is no treaty giving the United States au-
thority to arrest a foreign vessel on the high seas for dumping.
Thus, legislation regarding dumping activities on the high seas
above the continental shelf would amount to a unilateral assertion of
jurisdiction by the United States without a firm basis in international
463
law, and in detogation of certain general principles of international
law. Such an assertion would be contrary to our established policy of
opposing unilateral claims as a means of solving high seas problems,
could result in protests by other states, is unnecessary in the light of
the fact that the prospects for effective international action under
this country’s leadership are quite good.
The accommodation of various uses of the high seas, as I mentioned
earlier, has been a fundamental issue in the development of the law
of the sea. Article 2 of the Tigh Seas Convention provides inter alia:
“The freedoms that is navigation, fishing, laying submarine cables
and pipelines, flying over the high seas, and others which are recog-
nized by the general principles of international law, shall be exercised
by all states with reasonable regard to the interests of other states in
their exercise of the freedom of the high seas.”
It is thus clear that dumping must be conducted with reasonabie
for the interests of other states in their exercise of the various free-
doms of the high seas. This obviously includes the protection of the
high seas environment and its fisheries and living resources. More-
over, it can be anticipated that a future international treaty on dump-
ing would be likely to place very heavy emphasis on the need to pro-
tect the common interests states have in preservation of the marine
environment.
What I would like to emphasize is that we cannot unilaterally re-
solve these marine pollution problems by extending our jurisdiction
in violation of accepted principles of international law. We must
resolve these problems multilaterally and we are presently working
to do so in several different forums.
The Preparatory Committee for the 1973 Law of the Sea Confer-
ence has charged one of its three subcommittees to work on the prob-
lem of marine pollution. I expect this committee to produce treaty
provisions for the 1973 Law of the Sea Conference establishing inter-
national protection for the marine environment. In this connection,
I had the honor to serve as U.S. representative to the Preparatory
Committee for the Law of the Sea Conference which met in Geneva
last month, and I there specifically suggested ocean dumping as one
aspect of the marine pollution preblem that required international
action. I am certain the committee will be pleased to note that the
United States was the first country to present such proposals to the
preparatory committee for specific action to combat marine pollution.
With your permission, I would like to make copies of our recent
statement in the preparatory committee available to this committee.
Mr. Dinceiyi. Without objection, they will be received and inserted
in the record at this point.
- (The document follows:)
[Press release from Hnlarged United Nations Committee on the Peaceful Uses
of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction,
Subcommittee III, Mar. 25, 1971]
STATEMENT BY THE HONORABLE JOHN R. STEVENSON, U.S. REPRESENTATIVE
Mr. CHarmMAn: The two principal subjects assigned to Subcommittee III are
“preservation of marine environment (including, inter alia, the prevention of
pollution) and scientific research.”
464
The United States believes strongly that preservation of the marine enyiron-
ment and marine pollution are appropriate subjects for international action,
and has supported various activities in this area for many years.
On May 23, 1970, President Nixon announced a new U.S. Oceans Policy in
which he pointed out that States are becoming apprehensive about the ecological
hazards of unregulated use of the oceans and seabeds. He urged that a new
international seabed regime should, inter alia, protect the ocean from pollution.
He stated that if new international agreements with respect to Law of the
Sea can be obtained, over two-thirds of the earth’s surface can be saved from
national conflict and rivalry be protected from pollution, and put to use for
the benefit of all.
The problems of pollution are no longer restricted to our cities nor to the
streams, rivers and estuaries of our land masses. Residuals of some pollutants
can now be found in all the seas and oceans of the world. Such pollutants have
their origin in both maritime and land-based activities. Pollution from the latter
is carried to the oceans by air currents, by fresh water run-off or is the result
from deliberate disposal of materials into the oceans.
Growth in the world population and advances in technology have produced
rapid inerease in waste products and the long held view that the oceans haye
infinite ability to accommodate the consequences of human activity has been
proven false. We now recognize that pollutants reaching the seas and ocean
are a threat to the health and general welfare of mankind, as well as to the
productivity of living resources of the oceans.
Pollution affects the maritime environment, its living resources and ultimately
human beings in a variety of ways. Toxic substances can kill anima!s or plants
which eome in contact with them. Still other pollutants may alter the oceans’
environment making it unsuitable for animal life. Finally, pollutants can be
concentrated into living resources of the ocean and as consequence these re-
sources may become unsuitable as human food.
The impact of some pollutants.on the ocean and its inhabitants and its con-
sequence to human beings is not yet clear. It is, however, obvious that increased
understanding of the amount, distribution and effects of pollution in the marine
environment will be required to implement effective measures for pollution
control and that a variety of actions will be required depending on the mature
and origin of the pollutant.
The complexity of the problem is further evidenced by the growing number of
international organizations dealing with some aspect of the marine pollution
problem. At the same time we have to recognize that the marine pollution prob-
lem and the need to preserve the marine environment are an important part, but
only a part, of the global environment problems to be discussed at the 1972
Stockholm Conference on the Human Hnvironment. The measures we decide to
take here in the marine area must take into account the wider problems of human
environment and should in no way conflict with measures which might be taken
in that wider area.
To be effective, action must be taken in concert among states to prevent pollu-
tion and they must be prepared to implement agreed actions. If only a few states
should take the needed anti-pollution measures, any resultant improvement might
prove to be temporary only. In the absence of cooperative international action,
competitive economic pressures will severely limit national abilities to take or
require the costly measures needed to protect the marine envircnment. Only a
broad international approach can provide sufficient incentives for all states con-
cerned to do their part.
The Seabed Committee, of course, has been assigned the responsibility for
dealing with seabed pollution. The Declaration of Principles regarding the seabed
adopted by the General Assembly in December 1970 contemplates that the inter-
national seabed regime will include such provision. Accordingly, this aspect of
the marine pollution problem must necessarily have an important relationship
to the work of Subcommittee I on the international seabed regime and machinery
as well as to the work of this Subcommittee. It is our view that the regime should
provide that all activities in the international seabed area shall be conducted
with strict and adequate safeguards for the protection of human life and safety
and of the marine environment. Moreover, the safe development of seabed
resources necessarily requires appropriate provisions in the regime treaty itself
as well as a major environmental protection role for the international machinery _
to be established under the regime.
465
In his second Foreign Policy Report, issued on February 25, 1971, the President
of the United States suggested that the following essential measures be taken by
the international community in the near future:
Identification of pollutants and other ecological hazards which are dangerous
on a global seale.
Hstablishment of an effective world monitoring network to keep track of these
environmental dangers.
Initiation of a global information system to facilitate exchange of experience
and knowledge about environment problems.
Establishment of internationally accepted air and water quality criteria and
standards.
Development of international guidelines for the protection of the environment.
Achievement of comprehensive international action programs to prevent further
environmetal deterioration and to repair the damage already done.
Development and improvement of training and education programs to provide
the skilled capability to meet the environmental challenge.
Almost all of these suggestions apply with special urgency to the marine
environment. In particular we need to focus our attention on drafting articles on
major problems relating to marine pollution.
In identifying such problems, we should acknowledge work accomplished by
IMCO concerning oil spills from ships, FAO and its technical conference of
December 1970 dealing with issues of marine pollution on living resources of
seas and expected contributions of the 1972 Stockholm Conference. Examples of
major areas of concern might include the following:
A. Such international machinery as may be required for determining marine
pollution research priorities, for coordinating research efforts, and for collecting
research infromation and arranging for its exchange.
B. Regulation of deliberate disposal of materials into the ocean.
We recommend that drafting of articles begin promptly. In the preparation of
draft articles we should seek assistance as required from the appropriate special-
ized agencies and other public and private international organizations active in
the field. Experts from these organizations should participate in a consultative
capacity. Similarly, we believe that our preparatory work should be closely
coordinated with the related work for the Stockholm Conference. We should avoid
duplication. In particular, should some parallel working group be established by
the committees engaged in the preparatory work for the two conferences, a
member of the bureau of each group should be invited to participate in the other
group.
I would like to emphasize again the complexity of the issues before us, the
need to take into account other efforts in this area, and the importance of tailor-
ing each solution to the special requirements of each particular problem.
I turn now to the second of the two subjects assigned to Subcommittee III,
scientific research.
The United States has long identified itself with the need to expand world
efforts in scientific research of the oceans. Our initiative calling for an Interna-
tional Decade of Ocean Exploration exemplifies that posture. We consider that
scientific research should not be interferred with and should be conducted with
the view to open publication for the benefit of all. We whole-heartedly support the
applicable principle stated in the Declaration of Principles (Resolution 2749)
which states in relevant part: “States shall promote international cooperation
in seientific research exclusively for peaceful purposes . .. through effective
publication of research programs and dissemination of the results of research
through international channels’. I have discussed already some forms of coopera-
tion we favor in connection with preservation of the marine environment and
marine pollution. In general, it is our belief that cooperation in scientific research
in the marine environment will help ensure that the oceans will be developed and
used in ways which will benefit mankind. Through increased knowledge we can
all better understand the oceans and make optimum use of their resources.
We recognize the particular interest of developing countries in learning how the
seas may help solve such problems as chronic shortfalls of protein for their
populations; how fresh water may be obtained from the sea; how weather may
be modified to improve crop porduction and to avoid such catastrophes as ram-
paging hurricanes; and how new, inexpensive energy sources might be tapped.
Answers to such questions will require further scientific activity and coopera-
tion in the period ahead.
466
Scientists have in fact a long tradition of sharing information, although the
vast quantities of data accumulated and the limitations on their processing and
interpretations often delay their dissemination and use. The best means of insur-
ing that there is a flow of scientific information is actual participation in scien-
tific projects and continued support for existing scientific mechanisms for the
‘exchange of data, such as the World Data Center System and the World Weather
Watch. New means of data acquisition, such as Harth Resource Survey Satellites,
may offer new opportunities for international cooperation and sharing of bene-
fits as they fulfill their promise.
In our view this Subcommittee should draw upon the experience and knowledge
‘of other bodies, such as the specialized agencies and intergovernmental organiza-
tions, in performing its work. Resolution 2750 (C) invites inter alia, the IOC to
cooperate fully with the Seabed Committee, in particular by preparing such scien-
tifie and technical documentation as the Committee may request. We favor taking
full advantage of this suggestion. Similarly, the Committee may well wish to draw
‘upon the FAO, IMCO, and the Human HWnvironmental Secretariats for support.
In this connection, it wouid be most helpful to our work if the Secretariat would
provide each of the members of this Committee with copies of treaties and other
basie documents produced by other international and intergovernmental organiza-
‘tions concerned with marine pollution and scientific research.
Thank you, Mr. Chairman.
Mr. Stevenson. Thank you, Mr. Chairman.
President Nixon’s proposals regarding the seabeds beyond the limits
of national jurisdiction are also -relevant. The Draft Convention on
the International Seabed Area submitted by the United States as a
working paper last August to the U.N. Seabeds Committee provides
that “all activities in the International Seabed Area shall be conducted
with strict and adequate safeguards for the protection of human life
and safety and of the marine environment.” The draft contains regu-
latory provisions to further these ends and contains provisions for
compulsory settlement of disputes. Accordingly, international means
would be available to insure that all seabed activities, including dump-
ing, are conducted in agreement with the requirement that there be
strict and adequate safeguards for the protection of the marine
environment.
An International Working Group on Marine Pollution has been
established by the Preparatory Committee for the 1972 United Nations
Conference on the Human Environment. The Working Group will
prepare a marine pollution agenda submission for the Conference. This
will probably include proposals that nations ban the dumping of cer-
tain harmful substances in the ocean and adopt systems for the regu-
lation of ocean dumping.
Work is also under way in the NATO Committee on the Challenges
of Modern Society and the Intergovernmental Maritime Consultative
Organization. The latter is preparing for a 1973 Conference to ban all
intentional discharges into the seas by ships of oil, oily wastes, and
other noxious substances,
Accordingly, I am confident that in the next few years we will see
major international developments banning the ocean disposal of toxic
industrial wastes, highly radioactive materials, heavy metals, chemical
warfare agents, as well as the setting of international standards to
prevent damage to the marine environment from exploration and ex-
ploitation of the seabed.
I strongly urge the adoption of this comprehensive ocean dumping
bill_the Marine Protection Act of 1971—as an important domestic
467
first step which should lead to international control of the universal
problem of marine pollution.
Thank you very much, Mr. Chairman.
I would be pleased to answer any questions that you or other mem-
bers of the committee might have.
Mr. Dineen. Thank you very much, Mr. Stevenson. Your testimony
is most helpful to the committee, and the committee is grateful to you.
Mr. DuPont?
Mr. DuPont. Just one question, I think, Mr. Chairman.
On page 3 of your testimony, Mr. Stevenson, you commented that
our authority to regulate the 9-mile contiguous zone, as far as anti-
pollution activities are concerned, really derives only from our right
to protect the 8-mile coastal zone. Does that imply any jurisdictional
weakness, as far as the United States is concerned ?
Mr. Srevenson. No, sir; this just reflects the provisions of the 1958
Geneva Convention with respect to the contiguous zone. The concept
of the contiguous zone is that you are able to do certain additional
things in that zone of the high seas, in order to protect our territorial
sea or our own territory. I think for present purposes, that this is
entirely adequate, because most of the dumping in the contiquous
zone we are talking about, would have an effect in the waters within 3
miles of our coast, so we could take the necessary action between 3 and
12 miles, to prevent that sort of activity.
Mr. DuPonrt. I have been proceeding on the assumption that we
could pass a piece of legislation that would have full and complete
jurisdiction now for 12 miles. There is nothing, in your view, nothing
in international law that prevents us from passing antidumping legis-
lation of the type being considered, that would be effective fully out to
the 12-mile limit?
Mr. Stevenson. The actual wording of the Geneva Convention gives
you the authority to exercise the contro] within the zone between 8 and
12 miles necessary to implement certain national policies with respect
to sanitation, among other things. It seems to me that the power pro-
vided to control certain actions in the contiguous zone would probably
justify most of the type of regulatory activity that is involved here.
This is not the same thing as saying we have a 12-mile territorial sea.
Our position still is that the United States has a 3-mile territorial sea,
with an additional contiguous zone between 3 and 12 miles. While
we have agreed that we would be willing to accept a 12-mile territorial
sea, by international agreement, until there is international agreement,
our position remains at a 3-mile territorial sea. You could not equate
the legal situation in the contiguous zone with the situation in the terri-
torial sea. There are differences.
Mr. DuPont. Can you give me a practical example of something
we could do within the 3-mile limit in regard to limiting dumping
that we could not do in the 8- to 12-mile zone?
Mr. Srrevenson. Well, basically, with respect to the sort of dump-
ing that we are talking about here, the only problems we have had have
been with the ocean dumping of materials originating on the U.S.
mainland. So that basically, everything that we need to control is
dealt with satisfactorily by the provision which controls the transport-
ing of materials from U.S. territority for ocean dumping purposes.
468
Now the main difference between the territorial sea and the con-
tiguous zone would have to do with regulation of vessels. As far as I
can see, we contemplate taking the most effective type of action that
the contiguous zone provision enables us to take.
Now the only possible difficulty that I could see would be where
there was some dumping of materials that clearly would not affect the
area within 3 miles. Something that clearly wouldn’t move shoreward.
Perhaps some type of nonliquid type of dumping. There might be a
problem with respect to that. I don’t think as a practical matter we
are talking about anything that is a serious problem.
Mr, puPont. I was with you until you said that last phrase, but
now you have got me concerned about dumping construction debris.
Are you saying if we have a prohibition against dumping cinder
blocks, broken cinder blocks, outside of 3 miles, that under interna-
tional law we are perhaps not able to prohibit that ?
Mr. Stevenson. Well, I am not an ocean pollution specialist, so I
am not sure that there wouldn't be a problem even with materials such
as cinder blocks, even though dumped within the contiguous zone. It
might very well come landward, and interfere with our territorial
sea. So that I think even in that area, I am not sure that we couldn't
act if we wanted to.
Mr. Drncetx. Would the gentleman yield?
We have got several concepts involved here. First of all, there is a
question of the rel ationship of the United States to other nations and
citizens of other nations, and the concept of the United States with re-
gard to its relationship with its own citizens. Then you have the ques-
tion of the area in the territorial sea which is 3 miles from our shore-
line. Then you have the question of the contiguous zone, which is from
3 to 12 miles out.
We can clearly control the activity of anybody within 3 miles—our
own citizens or citizens of other nations. As between the 9 and the 12, or
even 12 all over the high seas, we can control the actions of our own
citizens.
Between the 3 and the 12 mile limits, we may only engage in cer-
tain acts which would contro] the activities, rather than we can control
certain activities of citizens of other nations. Is that a kind of simpli-
fication of the question which vou are discussing with Mr. duPoné at
this time?
Mr. Stevenson. Yes, I think that is accurate.
Mr. Drneetxi. And so as to the dumping of cinder blocks, there
would be no problem of dumping cinder blocks out anywhere out to
12 miles, if it was an American citizen; if it was between 3 and 12 miles,
as to the nationals of other nations, we might have a problem, you are
saying, if we couldn’t demonstrate clearly that this would involve
some effect which would adversely affect the U.S. territorial sea or
the shoreline or its nationals. Is that correct ?
Mr. Stevenson. That is correct. I think the most important point
here, and I think it is the same point that Judge Train made before,
is that at the present time, there is no dumping off our shores that
469
doesn’t originate from our territory. So that the provision in this
act that regulates transporting of material for dumping covers at the
present time all dumping that is involved, wherever that dumping
takes place. It is regulated by the provision that affects transportation
from our shores.
Now as far as we know, there is no foreign dumping at all involved
off our shores. So that the question of what you do about foreign
dumping has not arisen as a practical problem. Though I think, bas-
ically, as you pointed out, with respect to regulating our own nationals
there is no problem in any event. We can do what we wish. In the con-
tiguous zone or beyond would only be a problem with respect to for-
eign nationals, and that just isn’t a problem at the present time.
Mr. puPonv. No further questions.
Mr. Dincett. Mr. Everett.
Mr. Evererr. Thank you, Mr. Chairman.
At the bottom of page 3, Mr. Stevenson, you said that a state, of
course, has jurisdiction over vessels flying its flag on the high seas, ir-
respective of their location. The question arose this morning as to
whether the language in the bill would cover a situation where an
American-flag vessel brought material in from a foreign country to
be dumped, beyond the 12-mile zone, shall we say. Would we have the
authority under your statement to regulate an American-flag vessel
bringing this material back to the U.S. waters and dumping it beyond
12 miles from our shores?
Mr. Srevenson. As far as U.S. vessels are concerned, there is no
international law problem. The only problem is the practical problem
of Coast Guard or other enforcement action against U.S. vessels.
Mr. Everett. The bill itself just says, “No person can transport
material from the United States”, and it doesn’t say about American-
flag vessels bringing material into these waters.
Mr. Stevenson. I think that is more a policy than an international
law question. Because once you do start to regulate the U.S. vessels
generally, you have the problem of effectively administering those
provisions. The other consideration is that since we are dealing not
only with U.S.-flag vessels, but with others, it would be better to handle
this worldwide problem by international agreement, so you have uni-
form standards and people know what to expect, in terms of
regulation.
Mr. Evererr. At the top of page 4 of your statement you say:
“A state may also determine the conditions under which materials may be re-
moved from its territory, and specifically has the power to prohibit such removal
by its own or foreign nations and vessels.”
Now, this does not extend to the dumping of it, does it ?
Mr. Srevenson. No. This is just the imitial act of removing the
material.
Mr. Evererr. Well, under this bill, though, if a foreign-flag vessel
picks up material at a U.S. port then EPA can control the dumping
anywhere in the world, supposedly. Is that correct ?
Mr. Srevenson. I am sorry ?
470
Mr. Everert. Under the legislation you could control the dumping
by a foreign-flag vessel that picks up material in a U.S. port, as far as
a hundred miles off the coast of the United States. That is what f have
been led to believe. And I was wondering if this statement you have.
at the top of page 4 covers that ?
Mr. Srevenson. Well, it was intended to cover that.
Mr. Everert. So, actually, you can control the removal as well as the
dumping, if it is picked up at a U.S. port—even though it is a foreign-
fiag vessel.
Mr. Stevenson. Yes.
When you are talking about the question of transporting material
from the United States for the purpose of dumping it, we could
regulate that—it wouldn’t matter where they were intending to dump,
in terms of the regulation that we imposed, in terms of not letting them
do it or accepting whatever conditions we were talking about—but
that does not mean that we would have enforcement jurisdiction, or
could, on the basis of this, set forth some sort of a general code regulat-
ing dumping beyond our jurisdiction. What we are regulating is the
removal of the materials from our shores for the purpose of dumping.
Mr. Evererr. Now with respect to these international conventions
you mentioned, they are only binding as to those nations that are
signatory to the Convention. Is that correct
Mr. Srevenson. In all cases we would only be talking about coun-
tries that became parties to the Convention.
Mr. Everett. Now, with respect to the Continental Shelf Conven-
tion, you indicated in the statement that, normally, controls over the
exercise of jurisdiction over the resources of the Continental Shelf were
primarily for the purpose of exploitability, I believe, and exploration.
One of the bills before us today has a provision that would try to-
control the dumping of materials out to the 200-meter depth contour by
foreign-flag vessels irrespective of whether the material was received
on board the vessel at a U.S. port or foreign port.
Do you think a coastal nation has the right to protect its resources
of the Continental Shelf from pollution as it has in its 3- to 9-mile
zone ?
Mr. Stevenson. Well, the Continental Shelf Convention does not
deal with the question of dumping. It deals with the coastal states’
rights to explore and exploit the Continental Shelf’s resources. The
clear intention of the Geneva Conventions is to make dumping beyond
the territorial sea and the contiguous zone governed by the High Seas.
Convention. Therefore, the rules for the area beyond the territorial sea
and contiguous zone are based on the high-seas conception of regulat-
ing our own flag vessels, or reaching international agreement as to
the appropriate regulatory rules. There is no right on the basis of
your jurisdiction over the Continental Shelf to regulate what happens.
on the seas above with respect to dumping.
Now, this does not mean that you have no rights. Even under exist-
ing law, in the absence of international agreement with respect to:
dumping, the high-seas regime requires that you exercise the freedoms
471
of the high seas with reasonable regard for the interests of other States
in their exercising the freedoms of the sea. So that if another country’s
flag vessel were to dump in an area of the high seas, which adversely atf-
fected the rights of our Nation—for example, to carry on fishing or
another of the high-seas rights—we would have a right to complain to
that the country, and have a valid international claim under the
High Seas Convention, because they would be unduly interfering with
our interests.
Mr. Everett. Mr. Chairman, that is all the questions I have,
thank you. ;
Mr. Drneeti. Thank you very much, sir. The committee is grateful
to you for your very helpful testimony. We appreciate your kindness.
Our next witness is Mr. Henry Douglas, chief of planning, Mary-
land Port Authority.
Mr. Dougias, we are happy to welcome you for such statement as
you choose to give, and if you will identify yourself in full for purpose
of the record, identifying the associates with you at the main table,
you may proceed to give your statement.
STATEMENT OF HENRY T. DOUGLAS, CHIEF OF PLANNING,
MARYLAND PORT AUTHORITY
Mr. Douetas. Thank you, Mr. Chairman.
My name is Henry Douglas, chief of planning for the Maryland’
Port Authority.
The Maryland Port Authority is an agency of the State of Mary-.
land, charged with the responsibility for promoting the waterborne
commerce of that State.
I am here to address myself to House bill 4723, the Marine Protec-.
tion Act of 1971, and I have given Mr. Everett copies of my prepared.
statement. However, I would like to follow your wishes, Mr. Chair-
man, as to whether I simply give a brief summary of the position set
forth in that statement, or read the entire statement.
Mr. Dincett. As far as the Chair is concerned, it is a matter-
of choice to you. If you were asking the counsel of the Chair in this.
matter, I would make the statement to you we will be happy to have:
your entire statement in the record; and you may then choose to high-
light such sections as you may wish.
Mr. Doveras. Mr. Chairman, we are fully in accord with the
intent of the bill to prevent or limit dumping into the ocean, coastal
or Great Lakes waters, of hazardous, noxious, or environmentally
detrimental substances.
However, we think that it would be a mistake to include dredging -
spoil in the same category as “solid waste, garbage, sewage sludge,
munitions, chemical, biological and radiological warfare agents, ra--
dioactive materials, etc.”. Also, we do not think that waters for which.
the States have been authorized to establish water quality standards by
the Water Quality Act of 1965 should be included with ocean and:
472
coastal waters. And finally, we believe it would be desirable to leave
the permit authority for disposal of dredging spoil within the U.S.
Army Corps of Engineers.
Consequently, we urge that the bill be amended to exclude from its
coverage the deposit of dredging spoil in waters to which State or
Federal-State water quality standards apply.
The reasons for our position are that we believe that:
(1) Dredging spoil disposal is already adequately regulated by the
States and the Army Corps of Engineers.
(2) Transferring the Federal permit authority for dredging spoil
disposal from the Corps of Engineers to the Environmental Protec-
tion Agency will increase the time involved in processing applications
for such permits, and thereby impede navigation channel projects.
With respect to the adequacy of the present regulatory setup:
(1) At the State level, deposit of dredging spoil requires compli-
ance with the water quality standards which have been established
by the States, or where a State has not established such standards,
compliance with standards established by the Environmental Pro-
tection Agency.
(2) At the Federal level, dumping of dredging spoil requires a
permit from the Corps of Engineers which, under current Federal
statutes and regulations, requires:
(a) Certification that State water quality standards are complied
with.
(b) Complhance with the Corps of Engineers “section 403” criteria
regarding environmental and ecological effects as required by: _
The Fish and Wildlife Coordination Acts, 16 U.S.C. 661 and 16
U.S.C. 742-A ; The National Environmental Policy Act, Public Law
91-90; The Water Quality Improvement Act, Public Law 91-224.
The reason we fear delay in the processing of applications for per-
mits as a result of shifting the permit authority from the Corps of
Engineers to the Environmental Protection Agency is that the Corps
of Engineers is equipped for the job with personnel experienced in
this field and 40 district offices, whereas the Environmental Protection
Agency does not have a comparable staff and, as we understand
it, envisions only 10 field offices. We believe there is a significant ad-
vantage in the more decentralized organization of the Corps of Fin-
gineers which brings the application and permit process much closer
to the applicant.
Since we are recommending changes in the bill involving dredging
spoil and the Corps of Engineers, we would like to offer some com-
ments on these two subjects.
First, as to dredging spoil. This is not necessarily the ogre that
it 1s frequently considered to be, in spite of the unpleasant connota-
tion of the word “spoil.” There is “good” spoil and “bad” spoil. Typical
of the former is natural uncontaminated bay or river bottom. Moving
it from one location on the bottom to another nearby location on the
bottom can hardly be considered as polluting the body of water
involved.
473
“Bad” spoil is typified by bottom material which has been sub-
jected to industrial or municipal wastes and become contaminated as a
consequence. Such “bad” spoil can be a pollutant and should be dis-
posed of so that it does not degrade water quality. To this end, Mary-
land is constructing at its own expense a $13 million disposal area to
receive and confine such “bad” spoil.
In Maryland we are confronted with the problem of simultaneously
advancing our most important economic asset, the port of Baltimore,
with its port-oriented heavy industry, and also preserving the en-
vironmental and ecological quality of our highly cherished Chesa-
peake Bay. This has caused us to give a great deal of attention to rec-
onciling the requirements of the two assets, with particular atten-
tion to the handling of dredging spoil, and as a consequence we have
learned some interesting things:
(1) Since 1924 a deep, natural trough in the bottom of the Bay,
known asthe dumping ground has received most of the dredging spoil
from Baltimore Harbor and channels. However, this same “Dumping
Ground” is the most popular sport fishing location on the bay, partic-
ularly for striped bass; and on any summer weekend, hundreds of
sport fishing boats can be seen there.
(2) Last year’s oyster harvest from the Chesapeake Bay was the
largest on record. The dumping ground lies near the center of the
relatively small area of the bay which was the most productive.
(3) A $268,000 study of an actual case of overboard disposal of
dredging spoil conducted by the Natural Resources Institute of the
University of Maryland in 1966 concluded that there were no observ-
able detrimental effects from such spoil disposal. See exhibit A.
(4) In the opinion of knowledgeable people concerned with natural
resources conservation, it is recognized that not all dredging spoil is
harmful, and that uncontaminated spoil need not be kept out of the
bay. See exhibit B.
With respect to the Corps of Engineers, we would lke to call atten-
tion to the changes in their permit criteria resulting from the passage
of the National Environmental Policy Act of 1969 (Public Law 91—
190, Jan. 1, 1970), and the Water Quality Improvement Act of 1970
(Public Law 91-224, Apr. 3, 1970), and promulgated by the Secretary
of the Army. These are succinctly expressed in press release 70-8 of
May 15, 1970, by the Baltimore District, Corps of Engineers, concern-
ing evaluation of permit applications, to the effect that: -
“The decision ... will be based .. . on an evaluation of the proposed
work on the public interest.” “Public interest” is described as in-
cluding factors such as: “navigation, fish and wildlife, water quality,
economics, conservation, aesthetics, recreation, water supply, flood
damage prevention, ecosystems, and, in general, the needs and welfare
of the people.” This change clarifies the standard against which per-
mit applications are to be judged and reemphasizes that the Corps is
no longer concerned only with the impact which a proposed project
may have on navigation.”
We respectfully request that the committees give due consideration
to the above points in their deliberations on H.R. 4723.
474
(Attachments to Mr. Douglas’ statement follow:)
RI GROSS PHYSICAL
- SPECIAL AND
REPORT BIOLOGICAL EFFECTS
No. 3 | OF
JULY 1970 OVERBOARD SPOIL DISPOSAL
IN
UPPER CHESAPEAKE BAY
an
NATURAL
RESOURCES FINAL REPORT
© the
INSTITUTE ad
Bureau of Sport Fisheries and Wildlife
United States Department ‘of the Interior
UNIVERSITY OF MARYLAND Under Contract 14-16-0005-2096
From:
(4)
, uses.
475
in Upper Chesapeake
Fish and Wildlife Service, Maryland Department of Natural
Resources, Maryland Board of Public Works and other
agencies concerned with optimal management of estuarine
areas.
These papers also make a major contribution to under-
standing of an important estuarine area which is becoming
subject to growing and sometimes conflicting demands and
It is highly probable that the results will serve many
uses in the solution of important practical and fundamental
questions.
The publications and reports are listed in the Appendix.
Effects of Dredging and Spoil Disposal in 1966
The following summaries ‘of effects draw freely from
data and conclusions in subsequent detailed final reports
by Biggs, Flemer, Pftzenmeyer, Goodwyn, Dovel and
Ritchie. Supporting evidence and discussion appear in those
reports. Suggestions of guidelines for dredging projects
and of certain recommendations have involved all of the
scientists of the program.
I. Fine sediments from the channel were released in shoal
Water over similar sediments, as a semi-liquid mixture.
2. Turbidity increased over an area of 1.5-1.9 square
miles (4-5 square kilometers) around the disposal site
(Fig. S-3). Over most of the area, the suspended sedi-
ment load was within the range of natural variation
ment load swas_within the range ol natural variatio
observed, but at a different season from observed nat-
ural maxima (see Biggs).
Fig. S-3. The area studied during the 1966 hydraulic dredging from
the DREDGED AREA and pipe-line disposal into the DISPOSAL
AREA,
served on flood tide, and-"B" is the spread seen on ebb tide. The
dark hatched orea of bottom was covered by at least | foot of
sediment. 1
3. Siispended sediments (in the top of 10 feet of water)
SIE ee He pee Foe
were ina tide- related plume to a maximunti
distance of about 3.1 miles aim meters), and_vir-
tually disappeared within two hours. when pumping
"A" illustrates the spread of water-borne sediments ob- °
" Gross Physical and Biological Effects of Overboard Spoil Disposal
ceased (see Biggs).
4. Total phosphate and nitrogen were increased in the
immediate vicinity of the discharge by factors of about
50 and 1000, respectively, over ambient levels (see
Biggs), but limied field experiments _did_not ‘show
any detectable effects on photosynthesis by phytoplank-
ton (see ee Flemer).
5. The spoil material deposited on the bottom covered to
at least 1 foot (.3 meter) an area at least 5 times as
large as that of the defined disposal site (see Biggs
and Fig. S-3}.
6. Approximately- 12% of the deposited sediment dis-
appeared from the spoil “pile” in 150 days after
3. DEFINITIONS.
a. Environmental Pollution: That condition which results from the presence
of chemical, physical, or biological agents in the air, water, or soil which
so alter the natural environment that an adverse effect is created on human
_ health or comfort, fish and wildlife, other aquatic ressurces and plant life,
structures and equipment to the exteat of producing eceaomic loss, impatring
. recreational opportuaity or marriang natural beauty.
: :
OAS FORM 62, 1 MAR 68
517
SUBJECT: Protection and Enhancement ».£ Environmeatal
Quality,
b. Environmental Quality Enhancement: Envirenmmental preservation and
improvement activities of the Army, including ali actions to curtail pollution of
the environment by installations, facilities, buildings, structures, equip-
ment, aircraft, vehicles, vessels, and any other property owned, leased,
and/or operated by the Armv.
4. DISCUSSION.
a. While significant public interest in environmental factors is rela-
tively new, elements of the Army have been actively concerned witn ecolosical
problems and projects for many years. It is noteworthy that in the present
era of austere budgets, Amy fiscal planning includes provisions for projects
relating to protection and enhancement of environmental quality. :
(1) In planning for operations and in designing materiel and facilities,
individual elements of the Army Staff have long recognized an interest and
responsibility in protecting environmental resources. However, the Army
Staff as @ whole has not given deliberate and coordinated consideration to
the requirement to avoid contamination and destruction of land, water, and
air resources.
(2) The increasing severity and pervasiveness of the contamination and
depletion of environmental’ resources require a universal awareness and a
thoroughly coordinated response by the Army. The inherent nature of military
Operations and the professional and technical resources of the Army place it
in a unique position - to contribute both to the problem and to its solution.
(3) The increasing attention being given the national pollution abatement
effort requires that Army planning consider the impact of Federal and local
environmental controls on the accomplishment of the Army's primary mission and
on the availability of resources. ; g
b. Environmental conservation issues have two common characteristics
which must be recognized in both Army planning and execution:
(1) Environmental considerations are pervasive and impact on almost every
aspect of Army activity. Each Army Staff agency must acquire and sustain a
knowledge of current developments in this field, outside as well as within
the Army. Planners and action officers must develop a sufficient understanding
of environmental pollution control to be able to give it due consideration
in their planning.
(2) Both the cause of deterioration and progracs for environmental pro-
tection and enhance.rent operate slowly and over i period of many years. Army
Staff planning for environmental pollutioa control mist be constant and
continuous in nature, rather than oriented only to immediate problems, if the
Army's long-range responsibilities are to be met.
62-513 O - 71 - 34
SUBJECT: Protection and Enhancement »f Environmeatal
Quality
e
S35 HOGI
.
’
a. The Army will comply fully with both the requirements and the
spirit of Executive Order 11507, subject: Prevention, Control and Abatement
of Air and Water Pollution at Federal Facilities, and with the National
Environmental Policy Act of 1969 as implemented by Executive Order 11514,
subject: Protection and Enhancement of Environmeatal Quality.
b. Pollution of the environment by installations, facilities, equipment,
vehicles, and other property owned and/or operated by the Army will be cur-
tailed. Continued efforts will be made to conserve or protect the natural
environment and to improve or enhance the changed eavironment when it is
altered by Army activities. ;
ce. Resources for the control and abatement of environmental pollution
will be allocated first to those programs which provide the most significant,
tangible results with the earliest payoff. Toward this end, cost and
eifectiveness measures will be developed for each resource programing pro-
posal, and alternatives will be considered to insure priority treatment for
only the most cost-effective proposals. Effort will be allocated in the
following order of priority: :
(1) To correct situations which constitute a-direct hazard to the nealth
of man.
(2) To conserve economic resources.
(3) To improve the recreational and aesthetic value of the environment.
d. Maximum effort will be given to incorporating environmental pollution
preventive m2asures in the basic design for weapon systems, military materiel,
tests and exercises, and projects for rehabilitation or modification of
existing structures and new construction. ;
6. RESPONSIBILITIES.
a. DCSLOG:
(1) Exercise primary Army Staff responsibility for coordinating
environmental preservation and improvement activities within the Army.
(2) Establish a central point of contact for the coordination of
environmental control and abatement actions (Suspense: 18 September 1970).
(3) Conduct, on a continuing basis and in coordination with appropriate
Staff agencies, a comprehensive review of Department of the Army statutory
authority, administrative regulations, policies, ane procedures - including
those relating to loans, grants, contracts, leases, licenses, or permits: —
519
ty
SUBJECT: Protection and Enhancement »f Environmental
Quality
to identify deficiencies or inconsistencies which prohibit or limit full
compliance with the provisions of the National Environmental Policy Act of
1969 and Executive Orders 11507 and 11514. DCSLOG will task other Staff
agencies, as appropriate, to accomplish portions of this s review.
(a) Propose actions to be accomplished by the Department of the Army
to correct identified deficiencies and inconsistencies to assure compliance
with the National Environmental Policy Act of 1969 and Executive Orders
11507 and 11514.
(b) With the concurrence of interested Staff agencies, implement those
actions developed in response to subparagraph (3)(a) above which are within
_the scope of DCSLOG's authority.
(c) Prepare and submit necessary action docusents to the Chief of
Staff to implement actions developed in response to subparagraph (3)(a) above
which require approval by the Chief of Staff or the Secretary of the Army.
(d) As necessary, recommend actions to be accomplished by OSD or higher
authority to provide DA the capability of conforming its policies to the
intent, purposes and PROS aNISES of the National Eye Orne ntal Policy Act of
1909. °
b. COA: Assist DCSLOG and other Army Staff BESNeLes in the developne
ESAS UNE ees WL QEEEE ES Lopment
of of cost and effectiveness _ measures to insure that tne Programing of resources
to to accomplis h pollutioa control and abatenent is consistent with the policy
established.by paragraph 5c, above.
ec. CRD: Review Army Research and Development activities which contribute
to the control and abatement of environmental pollution. Develop recon-
mendations to.insure that Research and Development programs fully support the
goals established by the National Environmental Policy Act of 1969 and Executive
Orders 11507 and 11504. :
d. ACSFOR: Review current procedures for establishing Qualitative Materiel
Development Requirements and recommend changes necessary to insure that future
Army materiel meets Federal pollution control standards (unless exception
thereto has been granted).
e. TJAG: Review existing pollution control and abatement laws and identify
legal requirements not currently satisfied by Department of the Army re gula-
tions, programs, and procedures.
£. CofEngrs:
(1) Assist DCSLOG in the review directed by paragraph 6a(3) above, with
Special emphasis on the engineering and construction aspects of pollution
abatement and control.
520
SUBJECT: Protection and Enhancement »f Environmeatal
2 ie
Quality
(2) When appropriate advise DCSLUG of Civil Works activities and programs
which are related to military functions.
Bo RSG “Assist DCSLOG in the review dire ted Dy paragraph 6a(3) above,
with special emphasis on the health and welfare aspdects of oa oe ‘health
and medical policy guidance, and pollution monitoring.
h. CINFO: Prepare, in coordination with DCSLOG and other appropriate
Staff agencies, national news releases which focus gublic attention on
Amy programs for the protection and enhancement of environmental quality.
i. SMD, OCofSA: In coordination with each Staif agency, insure that
appropriate responsibilities are included in the SHR ER QUEL statements of
Chief of Staff Regulations.
j- Each Armny Staff agency:
(1) Designate a point of contact for environmertal protection and
enhancement matters (Suspense to DCSLOG: 24 Septender 1970).
(2) Establish a planning capability for environmental pollution control
and assure its consideration in the discharge of agency functional respon-
sibilities.
(3) Coordinate planning and actions which impact on environmental
quality control with DCSLOG.
(4) Review, in coordination with DCSLOG and S$, OCofSA, current Mission.
‘and Function Statements and recommend revisions necessary to insure that
responsibilities for protection and enhancement of environmental quality are
. included in appropriate Chief of Staff Regulations.
BY DIRECTION OF THE CHIEF OF STAFF:
a lz : aoe
(|W SK ees yy
SUSPENSE: 5, . WARREN K. BENNE'T
DCSLOG-18 Sep 70--Central Major General, ¢S
Point of Contact Secretary of tha Géneral Staff
Other Addresses-24 -Sep 70--Points
of Contact to DCSLOG
521
Mr. Rocrrs. That is fine if they have. Each one has done that?
General Hayes. That is correct.
Mr. Rocerrs. Said that they should have a person in each command
specifically responsible ?
General Hayzs. That’s right.
Mr. Rocrrs. That it be done. That is fine, and I commend you.
Thank you very much.
Thank you, Mr. Chairman.
Mr. Dincet. Thank you, Mr. Rogers.
Mr. Everett. Thank you, Mr. Chairman.
Mr. Roerrs. Let me ask this before you proceed.
You will let us have this report on the Air Force dumping?
General Hayes. Air Force dumping?
The Air Force base in California, yes, sir.
Mr. Rocers. Thank you.
(The information may be found on p. 541.)
Mr. Dincett. Mr. Everett.
Mr. Evererr. Admiral Crawford, in conjunction with Mr. Rogers’
question with respect to the operation of vessels, in the next to the last
paragraph of your statement, it says as follows.
Finally, a good ocean dumping act should exclude the day-to-day operational
discharges from ships, such as sewage and oily bilge, which are properly subject
to regulation by other laws. In this connection it is our understanding that
‘dumping’ as defined in the proposed act would not include the incidental dis-
charge of some debris or other material the water from an activity provided
that disposition is not the primary objective of the activity. For example, waste
incidental to the operation of ships, the material and debris from missiles, spent
bombs and other projectiles would be excluded from this act.
Mr. Chairman, I would like to introduce into the record a letter from
Mr. Barry Sullivan, Washington representative of the River and Har-
bor contractors, addressed to Congressman Lennon, who raises this
same point.
Mr. Dineetyt. Without objection, the document referred to will be
inserted in the record at this particular point.
(Letter follows :)
THE NATIONAL ASSOCIATION OF RIVER AND HARBOR CONTRACTORS,
Washington, D.C., March 31, 1971.
Hon. ALTON LENNON,
Chairman, Subcommittee on Oceanography, Committee on Merchant Marine and
Fisheries, Rayburn House Office Building, Washington, D.C.
Dear Mr. CHAIRMAN: With reference to H.R. 4728, a bill to regulate the dump-
ing of material in the oceans, coastal, and other waters and for other purposes,
may we suggest that consideration be given to amendment of Sec. 38. (f) defini-
tions. As amended, the provision would read as follows:
“Dumping” means a disposition of material: Provided, That it does not mean
a disposition of any effluent from any outfall structure, or a routine discharge
of effluent incidental to the propulsion or operation of vessels. And provided fur-
ther, That it does not mean the intentional placement of any devise in the oceans,
coastal, or other waters, or on the submerged land beneath such waters, for the
purpose of using such devise there to produce an effect attributable to other than
its mere physical presence. (Proposed amendment italic above.)
In the operation of vessels, cooling water is required for equipment, such as
winches and derricks, auxiliary machinery, etc., and as effluent this cooling water
is the same as the effluent from propulsion.
Accordingly, we request such effluent receive the same statutory treatment as
“effluent incidental to propulsion of vessels.”
Sincerely,
Barry SULLIVAN,
Washington Representative.
522
Mr. Everett. And he is concerned that operation of the vessel and
equipment are not covered under the exclusion. And he suggests lan-
guage that would include language similar to what you did, that would
exclude the operation of the vessel from the coverage of dumping.
And so I take it that if the interpretation is that the discharges from
regular operation of vessels are not covered, then it is your suggestion
that these items be covered under the bill as an exclusion to dumping ?
Admiral Crawrorp. Well, we would like to make it clear that it is
certainly the intent, if not specifically in the bill, that routine opera-
tions of ships are to be excluded.
Mr. Everett. He suggested an amendment more or less to this effect,
in the operation of vessels, cooling waters required for equipment, such
as winches and derricks, auxiliary machinery and so forth, as effluent,
is the same as the effluent from propulsion, and the bill only speaks of
propulsion rather than operation.
Do you agree with Mr. Sullivan’s suggestion with respect to
operation ?
Admiral Crawrorp. I would agree to that, and if you think that it is
not sufficient to have the intent clarified on this, I would welcome the
opportunity to submit a statement as to how a portion of the bill should
read to satisfy these considerations.
Mr. Evererr. If you would, we would appreciate it, Admiral, if you
would submit suggested language to accomplish the purpose you seek.
(The amendment follows:)
AMENDATORY LANGUAGE RE VESSEL ‘‘DUMPING’”’
ys 1238—Sec. 3(f)—Recommend change in definition for “Dumping” to read
as follows:
f. ‘““‘Dumping”’ means a disposition of material: provided that it does not mean
a disposition of any effluent from any outfall, or a routine discharge of wastes
and effluent incidental to the operation and propulsion of vessels: and...
Mr. Evererr. General Groves, one of the definitions of the section
3(b) of the bill is that oceans, coastal, and other waters, means oceans,
gulfs, bays, salt water lagoons, salt water harbors, and other coastal
waters where the tide ebbs and flows, and the Great Lakes. I was won-
dering if you could give us some indication as to how far inland the
coverage of this bill would be with respect to the ebbing and flowing
of tides.
General Groves. I can give you a couple of very specific examples.
In the case of the Hudson, it would be up to about Troy, N.Y.
Mr. Everert. How far is that, sir? Roughly.
General Groves. About 150 miles in. And on the Mississippi it goes
up to, oh, slightly above Mile 350.
Mr. Everett. 350 miles?
General Groves. Yes. And I would be happy to give you some others
for the record, if you want.
Mr. Evrrert. If you would, Mr. Chairman, I would like to ask that
this information be supplied as to the effects of this definition con-
cerning the ebbs and flows of tides, with respect to these coastal areas
and the rivers and tributaries extending therefrom.
Mr. Drncett. General, I think that kind of counsel would be helpful,
if you could give it to us.
General Groves. All right, sir, we will try to work up something along
that line.
523
(The information follows:)
LIMITS OF TIDAL INFLUENCE ALONG CERTAIN RIVERS
Approximate
River and location: miles
Connechent= Windsor Woecks; -Conns 64
HST SOT IGE OPIN Yoo SO Be are 2 ee ee ee 134
DelawwiaTeseLrentoni Nid oo -sat a Le TES EE ee ee eee 127
Susquehanna; Conowingo,, Md 2 = 122) fa te PO ee eee 9
Potomac, Little Falls, Washington, D:C_____~___~_-_-__ 114
Rappahannock «Hredricksburg, Viaeus 22 107
eC CIMONG Vida kee ee 8 Se ee ee 91
MiSssissiprqoRed River Landing,. Lato 22 2 tse ee ee ee (AHP) 302
Keantarheeilamath: (Calitis=\ 2st 7 to jhe ents Nerd eee ee are Pele. (*)
Columbia eBbonneyville "Dam: 22%) 2920.0 sts ee Sal es ee 2 re 140
12 miles inside bar.
Mr. Everett. General, we have had some discussions about the har-
bor at Baltimore, and I was wondering if you could give me some indi-
cation as to the answer to this question. What would be the effect. on the
cost and economic justification of waterway improvement projects, such
as that which the Port of Baltimore has, in the event that the Ad-
ministrator of EPA should revise the dredge materia] disposal plans of
the corps, to require such material to be transported for disposal at sea
or other locations remote from the improvement project ?
General Groves. In the case of Baltimore the present project is based
upon disposal of the spoil near Kent Island in the Chesapeake Bay.
Mr. Dincetx. Would you yield? Is that open or dike-enclosed ?
General Groves. It is open disposal.
Mr. Divert. Is that polluted dredging? Or is this clean dredging ?
General Groves. I am sure it would be classed as polluted, yes, sir.
Mr. DrncE tz. It is polluted ?
General Groves. I would expect.so, yes, sir.
Mr. Drneexw. There is no question in your mind on that point?
General Groves. I wouldn’t think so, no, sir.
Mr. Dincett. Very good.
General Groves. I would say within whatever jurisdiction we might
have we would look to EPA for the establishment of water quality
standards. They would govern anything else that we do just as they
do govern in thecase of the section 13 permits now.
Mr. Dince.x. So that when we referred to the provisions here that
we have, section 7(c) (2), and I hope if you don’t have a copy of it,
I will see that the staff makes one available to you, 7(c) (2), refer-
ring down here:
Provided, That after the effective date of this act, no Federal license or permit
shall be issued under the authority of the Rivers and Harbors Act of 1899 to
conduct any activity otherwise regulated by section 4 of this ‘act and the regula-
tions issued hereunder, unless the Administrator has certified that the activity
proposed to be conducted is in conformity with the provision of this act and with
the regulations issued hereunder.
Would you behave strikingly differently if this statue were in ef-
fect with regard to the dredging and depositing of spoil in the Balti-
more Harbor than you would if it were not in effect under the water
pollution contract, national environmental policy acts and your agree-
ment with the Interior Department?
General Groves. I believe the essential difference would be this.
This particular act has a 6-month effective date on it. As I read this,
we would have to have applicable standards in order to proceed.
524
Under present conditions we would proceed using the best means
available to us.
In other words, if the EPA standards were not fully developed we
would proceed as at present. If they developed further we would
modify our work.
Mr. Dinceix. Would you have any reason to believe that you would
apply any lesser environmental safety standards before the enact-
ment of this legislation than you would after?
General Groves. I don’t really think, sir, it makes much difference.
We would use the best that we have. EPA is the source of those stand-
ards and that is where we would look to get them.
Mr. Dinceti. You would in any event get the standards on water
pollution and so forth from EPA ?
General Groves. Yes, sir. This is inherent in the five point environ-
mental statement if nothing else. We would have to coordinate it with
the various governmental agencies.
We would solicit and I am sure we would obtain EPA’s comments.
We would certainly abide by them.
Mr. Dinceti. What you are saying is that really your behavior,
either before or after the enactment of H.R. 4723 insofar as environ-
mental protection, will be very little different.
General Groves. I see no basic difference, except in the time neces-
sary to adopt alternate methods.
General Groves. Now if the law required that the dredged spoil
be disposed of at some more distant location, perhaps in an enclosed
location on land, say, in any case the cost of the project would
undoubtedly go up. This can lead you to a number of possibilities
Tf we were to follow the one course that might be taken when you
run a five-point environmental statement analysis through section
102(c) of the act and you arrive at the point where you have certain
irreconcilable conflicts and if at that point you decided you would
invoke the provisions of section 102(d) which says, in effect, you re-
formulate and start over and you come up with a project that does
have an adverse environment effect which, to eliminate would result
in higher cost, the first question you have to answer is to whom do
you charge these higher costs ?
If you could charge it to mitigation of the environmental damag»
under our present understanding of the system, it would have no
effect on the project economics. If, on the other hand, you had to pull
them into the project cost and, in effect, charge them to navigatior
the cost of the project would go up, the benefits would remain constant.
So, it is conceivable that the B-C ratio could become unacceptable.
This is one possible outcome.
Another possible outcome, almost a certain outcome, is that if you
had to go to sea and if you were going to have to do this on a large
scale, we have only a limited hopper dredge capacity, which is already
fully employed. It would take us about 5 years to build new dredges.
If you went to the industry, using a scow and dipper, it would take
them at least 2 years probably to react. So if this hits you throughout
the Nation, the effect on Baltimore Harbor might be that the work
would stop while we got a new capability.
This is one of the possible outcomes. It might become economically
unfeasible. In any case, it might be delayed or stopped.
525
Mr. Dincetu. You have been referring to what. would happen under
existing law, General, or under a transfer to EPA or a compliance
with section 102(c) and (d) ?
General Groves. My understanding of the question was, sir, that
it involved the assumption that we would have some requirement to
haul the dredged spoil to some more distant location than we now
ut it.
: Mr. Dincetx. Let me ask you a hard question here. Is it your as-
sumption that the Environmental Protection Agency would behave
strikingly different under the legislation in H.R. 4723 than you would
under the existing law, your agreement with the Interior Department,
and under the Environmental Protection Act? I am talking about
issuing permits generally for the dumping of polluted dredgings.
Mr. Drneetu. Do you see any basic difference in terms of the cost
of the project before and after the enactment by reason of the fact
that you are going to have to get formal certification from KPA in-
stead of having informal certification as you do at this particular
time ?
General Groves. Here I think, sir, the main difference is one of
timing. I think that if we were to apply the rule that we are applying
in section 13 which is that EPA governs water quality standards, they
are the same.
Mr. Dincetu. They are the same?
General Groves. They would be the same. If on the other hand
we were to consider the total public interest it might be slightly
different. .
Mr. Dinceti. Thank you.
Mr. Everett?
Mr. Everetr. General Groves, would the Corps be immediately
capable of maintaining the harbors and channels at their authorized
project depth if alternate disposal methods should become necessary
as a result of this legislation ?
_General Groves. Would you repeat the beginning of that, please,
sir.
Mr. Everetr. Would the Corps be immediately capable of main-
taining the harbors and channels at their authorized project depth
if alternate disposal methods should become necessary as a result of
this legislation ?
General Groves. I think the answer to that is that we would be
unable to maintain our total level of effort.
In other words, we would have to maintain a lesser amount initially
for the reasons that I mentioned, that the available plant, both corps
and contractor and especially the corps hopper dredge are fully
employed.
If we went to diked land disposal, our experience leads us to believe
that it would be several years before we would enter into the agree-
ments necessary and get the funds necessary and to build the
enclosures.
It would be quite a while, maybe a period of 5 years. If we went to
scow and dipper type operation it would take industry or we or both
several years to get the funds to build these things and put them in
operation.
62-513 O - 71 - 35
526
So, to answer your question, you are imposing a greater workload
on a fixed capability and less is going to get done overall for a while.
Mr. Everett. General Groves, there is still some ambiguity as to
what the intent of section 11 is.
I wonder if you could provide us with a memo with respect to sec-
tion 11(a), 11(b),11(d) and 11(e), on the effects of these reactions on
existing law if the bill is enacted as recommended in H.R. 4723.
General Groves. Do you want me to supply that for the record ?
Mr. Everett. Yes.
General Groves. I will be glad to.
Mr. Evererr. Does the bill in any way change your method of op-
eration or procedure under the Fish and Wildlife Coordination Act?
General Groves. No, indeed.
Mr. Evererr. How about under the national Environmental Policy
Act?
General Groves. No.
Mr. Everett. That is all I have, Mr. Chairman.
Mr. DinceEtu. Captain Heyward.
Mr. Heywarp. General Groves, in connection with section 11 there
were some discussions with other witnesses as to the effect of the EPA
procedures for issuing permits.
There has been disagreement on the interpretation of exactly what
supersession of corps permit authority is involved in this act.
May I ask you, can you tell me whether a particular section is used
by the corps as authority for issuing permits to dispose of dredge spoil ?
Is that under 33 U.S.C. 403 or are you aware of the specific number ?
General Groves. I am not aware of the code numbers. Essentially
they derive from the supervisory act and from the 1905 act, section 4.
Mr. Heywarp. Section 4 of the 1905 act ?
General Groves. Yes, sir.
Mr. Hrywarp. That is not being touched in any of this repealing
material, is that correct ?
Yes, that is 33 U.S.C. 419, whch is being superseded. This is the
question I was really getting to, whether or not the authority under
section 10 of the Rivers and Harbors Act is utilized by the corps in
connection with its permit for excavation and filling or whether you
rely on section 4 of the act of 1905 which is being superseded here.
General Groves. Now we are talking about ocean dumping, are
we not ?
Mr. Heywarp. We are talking about dumping in all these defined
waters, yes, sir.
General Groves. Section 10 of course applies to the territorial
waters. It is used primarily for structures and dredge and fill type
operations.
The subject of today’s hearing, ocean dumping, is covered under the
section 4 of the 1905 act.
Mr. Herywarp. This is the problem that we face in discussing this
because in section 7(c) (2) it says except as provided in subsection ©
11(e) nothing in the Rivers and Harbors Act is going to be superseded.
Now, if section 11 then turns around and superseded those elements
of the Rivers and Harbors Act that you rely on there is nothing left
for you to do in issuing the dredge spoil disposal permit.
This is the point I am sure Mr. Everett was getting to.
527
It would be very helpful for the committee to have a complete
analysis of what you need to retain your permit authority consistent
with the scheme envisioned here in 7(c) (2) which would not be ad-
versely affected by any of the repealers in section 11.
General Groves. All right, sir, we will be very happy to supply that
for the record.
(The information requested follows :)
Subsections 11(a) and 11(b) repeal the Supervisory Harbors Act of 1888, as
amended (33 U.S.C. §§ 441-451b), and ithe provision of the Rivers and Harbors
Act of 1899 (838 U.S.C. § 418) which preserved ‘the Supervisory Harbors Act from
supersession by the 1899 Act. The Supervisory Harbors Act provides a special
authority to control transit in and from the harbors of New York, Baltimore, and
Hampton Roads, Virginia. This authority has been used to regulate ocean dump-
ing. The proposed Marine Protection Act would replace that authority. A portion
of the Act of August 5, 1888 (383 U.S.C. § 407a), which pertains to deposits of
debris from mines and stamp works, and which is covered by the proposed Act
or the Refuse Act, is also repealed. A provision contained in the Rivers and
Harbors Act of 1905 (33 U.S.C. § 419), which has been used to buttress the Corps
of Engineers’ authority to regulate ocean dumping, is superseded, insofar as it
authorizes action that would be regulated by the proposed Act. Lastly, Section
13 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 407), commonly known as
the Refuse Act, is Superseded, but only insofar as it applies to dumping of
material in the waters covered by subsection 4(b) of the proposed Act. Except
for the limited supersession found in subsection 11(e), the Rivers and Harbors
Act authorities are not negated or abrogated, nor are existing licenses or permits
issued under that Act terminated. Rather, in situations where the proposed Act
and the Act of 1899 both apply to dumping of material in connection with a
_ dredge, fill or other permit issued by the Corps of Engineers, issuance of the
permit requires a certification by the Administrator of EPA that the activity is in
conformity with this proposal and any regulations issued under it. The Adminis-
trator will not issue separaitte permits in such cases.
After the proposed Act becomes effective, the Department of the Army’s permit
program under the Refuse Act, which is administered in close cooperation with
EPA on all water quality matters, will continue to regulate the disposition of
any effluent covered by the Refuse Act from any outfall structure regardless of
the waters into which this disposition occurs, in addition to regulating all de-
positing of material into other navigable waters of the United States not covered
by subsection 4(b) of this Act.
Mr. Heywarp. There is one other question.
In 7(b) (2) there is provisional authority as the EPA certification
comes only on permits issued after the effective date of the act, that
is to the extent that it does not repeal something, in effect, any permits
which you issued before the acts:
Would the Corps of Engineers in those cases where permits have
already been issued but where disposal of the dredging had not been
undertaken confer with the EPA consistent with the policy required
in section 7(c) (2) even if the statute does not specifically require it?
General Groves. I would expect so, sir. In any case, these permits
are for finite durations and when they came up for renewal, they would
have to be considered again.
Mr. Heywarp. Thank you, General.
Mr. Dincetu. Gentlemen, can you tell us about that impact of en-
actment of this bill on existing practices with regard to dredge and
fill operations in the Great Lakes?
General Groves. The dredge and fill operations in the Great Lakes,
sir, if this were enacted, would, of course, have to be conducted under
license from EPA, under permit from EPA.
528
Mr. Dincexxi. As I read the requirements of section 7 they require
that the permit be issued by the corps and that you carry out the
requirements of EPA.
As I read section 7(c) (2) you would still continue to issue permits
but you would have the added requirement that it would have to be
certified that the activity to be conducted is in conformity with the
provisions of the act and the regulations issued thereunder.
Captain Heyward and Mr. Everett were both inquiring as to this
particular point.
General Groves. Sir, I believe this is one of the points that probably
requires some clarification. It would depend in part as to whether we
were doing the dredging or one of our contractors.
Mr. Dincetu. If you were doing the dredging and your contractors
were doing the dredging you would have the same situation.
EPA would have to certify that your permit was issued in conform-
ity with the requirements of the law and in conformity with the
regulations ?
General Groves. My question really dealt more with specifics.
Mr. Dinecetx. I assume that in the Great Lakes you anticipate you
will probably continue to be obligated to utilize dike disposal areas for
pollutant spoil.
Am I correct on this?
General Groves. Yes, sir.
The Rivers and Harbors Act of 1970 provided a means by which
that can be accomplished.
We are certainly headed in that direction. I should point out though
that the proviso that the local interests be excused from their 25 percent
contribution if EPA certifies that they have an on-going acceptable
program is making it rather difficult for us to come to grips with them
so far.
Mr. Dincerz. Would you amplify that, please ?
General Groves. Yes, sir.
The initial reaction of any of these local interests that we go to is
that they will go to EPA first and see if they can’t be excused from
their contribution.
Mr. Dincetu. What is the effect of that on your program ?
Does it jump your cost ?
General Groves. It means that we are not making much progress
toward getting these dike enclosures underway.
Mr. Dincetu. Are you telling us that EPA is excusing them from
the requirement of using dike enclosures or simply paying the cost
and shifting the cost to you ?
General Groves. Sir, a pattern has not really emerged yet.
Mr. Dinceti. Obviously, when they go to EPA to be excused from
the 25 percent they either try to get out of the construction of the dike
area in its entirety or they are expecting to shift the burden to some-
one else.
General Groves. I think it is the latter.
Mr. Dineeti. Which is it, shift the burden to you ?
General Groves. We get that impression.
Mr. Drncerzr. You then have to rush out and get more
appropriations ?
General Grovrs. Yes, sir.
529
Mr. Drnce.u. That is what you referred to when you said it will
make it a little harder?
General Groves. Yes, sir.
_Mr. Dincett. I think you have answered all of my questions at this
time.
Gentlemen, if there are further questions the committee wishes to
have answered or further assistance, I assume we can come back to
you for guidance and counsel.
General Hayxs. We will be glad to assist you in any way.
Mr. Drncriu. Gentlemen, the Chair wishes to commend you for a
very able and very helpful presentation.
The Chair, as I am sure you know, has long been an admirer of the
efficiency of the corps. Of late I have come to be an admirer of the
corps for its environmental concerns. So, I wish to express that to
each of you for your presence today.
Mr. Dineceiu. Our next witness is Dr. Richard Barber, Duke Marine
Laboratory, Beaufort, N.C.
Dr. Barber, I don’t want you to feel that we have downgraded your
appearance. As a matter of fact, 1t might be said that we have saved
the best for last.
Weare grateful for your attendance.
Will you identify yourself in full by name and address.
We will be happy to recognize you.
STATEMENT OF DR. RICHARD BARBER, DIRECTOR, OCEANO-
GRAPHIC PROGRAM, DUKE MARINE LABORATORY, BEAUFORT,
N.C.
Dr. Barser. I am Richard Barber, director of the oceanographic
program at Duke University Marine Laboratory in Beaufort, N.C.
My experience with the ocean dumping is as an oceanographer study-
ing certain parts of the biological system in the waters over the New
York Bight dump sites.
The proposed bill, H.R. 4723 seems to me to be a very good first step
in improving relations between our way of life and the ocean.
The fact that the bill regulates the transportation, as well as the
dumping (sec. 4) of materials is wise and necessary in my opinion.
I favor passage of the bill, but I feel it could be strengthened.
This bill will perhaps be adequate in the future when we have good
water treatment facilities, solid waste recycling, and other environ-
mental amenities, but I question whether this bill will enable the Ad-
ministrator to deal in a reasonable manner with our current ocean
dumping problems.
The acutely dangerous, small volume dumping practices, such as
chemical warfare agents and explosives, can be halted, but the large
volume practices such as the New York Bight dumps cannot be halted.
We have lived with and rely on this kind of ocean disposal. How will
the Administrator deal with this problem ?
One means would be to establish procedures such as the air pollution
abatement schedules which generate solutions in a realistic manner.
Given: (1) authority and responsibility over the Continental Shelf
to a depth of 200 meters;
530
(2) public dissemination of information on the condition of the
environment; and
(3) the establishment of grades of environment—sanctuaries, mod-
erately protected areas and interim lower quality sites—the adminis-
trator could effectively protect the ocean system at present.
On the basis of my New York Bight experience, I feel that involved
Government units are devoting almost no effort to solving the problems
of ocean dumping.
The very small studies to define the problem were good. Now that
the problem is defined it is time to start on the more difficult and risky
work of decreasing the degradation caused by this dumping.
I hope this bill will provide an interim mechanism for controlling
existing dumping practices as well as an ultimate means for regulating
future dumping practices.
That is the end of my prepared statement. I will provide my resume
for the record later.
Mr. Dinceiy. Without objection, that will appear at this point in
the record.
We will be happy to hear any other comments you have.
(Information to be furnished follows:)
RESUME OF BIOGRAPHICAL INFORMATION
RICHARD T. BARBER
Dr. Richard T. Barber is Director of the Oceanographic Program at Duke Uni-
versity Marine Laboratory and Associate Professor of Zoology and Botany of
Duke University, Durham, North Carolina. He was born in Bridgeton, New Jer-
sey and received his undergraduate education at Brown University, Utah State
University (B.S., 1962), and did his graduate studies at Stanford University
(Ph.D., 1967).
After completion of the Ph.D. degree at Stanford University, he was a Postdoc-
toral Fellow in Biological Oceanography at the Woods Ho'’e Oceanographic Insti-
tution, Woods Hole, Massachusetts. During tenure of the fellowship he served
as Chief Scientist for three months on a Stanford University Oceanographic
Expedition to the Galapagos Islands. In 1968 he joined the staff of Woods
Hole Oceanographic Institution as Assistant Scientist in the Department of
Biology. In 1970 he assume his present position at Duke University.
He is a member of the National Academy of Sciences Committee on Water
Quality, Panel on Marine Aquatic Life and Wildlife ; the National Science Foun-
dation Panel on Research Needs for the Council on Environmental Qualities
Report on Ocean Dumping; and the National Advisory Board of the R/V
HELIX.
Dr. Barber’s work on the inhibition of plankton growth in the New York
Bight dumping area was selected by the National Science Foundation for
inclusion in the 1970 Annual Report of the President to the Congress on Marine
Resources and Engineering Development. Other research interests inelude
studies on the growth and decay of organic matter in the sea and the effect of
metals on the growth of plankton. Specific work has examined the speed with
which organic matter decays and is recycled in the ocean and the effect of
organic matter on metal uptake by plankton. He is the author of ten publica-
tions on these subjects.
Dr. Barzer. My statement that no effort is made in solving the cur-
rent problems of ocean dumping is based on the fact that when you
are out over the New York Bight dumps you don’t see anyone else
out there doing research.
It is not being done.
The amount of effort and the dollars spent on work in this area is
vanishingly small and some of the work that I am familiar with is
531
supported by the National Science Foundation and supported by the
Army Corps of Engineers, but they are very small projects.
The other Government agencies such as State and city authorities
and other Federal authorities just seem to be missing from the scene.
There is very currently concern among the people that I know
working there this bill has a potential effect of decreasing work
on the problem.
Mr. Dinceiu. You say this bill has the potential effect of decreas-
ing work?
Dr. Barser. The idea that dumping is going to be ended means
that there is no longer a need to study it.
That, of course, is the thrust of my statement.
I know and anyone who looks at the economics of the coastal popu-
lation centers knows that dumping is not going to be ended so that
the question is to work out some way to cope with it.
This different message seems to be going out that it is going to be
ended so that it is no longer necessary to work in the area.
I refer specifically, though my information may be incorrect, that
the Army Corps of Engineers has a 3-year plan for working on the
New York Bight, which in my opinion js an excellent one.
I hear from the Army Corps of Engineers they will only carry out
one year of that. After that year it will presumably be EPA’s respon-
sibility, but EPA has not announced that this is their plan.
The Bureau of Solid Waste Management, again by verbal exchange,
has informed us that it is no longer funding any work on dumping
since dumping will be ended.
Mr. Dineetyt. Your counsel in these matters is useful.
We may find it necessary to communicate with the agency involved
regarding the points you raised.
Your assistance to this committee in framing the appropriate ques-
tions to the agencies to which you have alluded for inquiry by the
committee will be much appreciated.
Dr. Barser. Thank you.
Are there any questions?
Mr. Everett. I have no questions, Mr. Chairman.
Mr. Dineeiu. Doctor, we thank you very much for your presence.
You have come a considerable distance to be of assistance to the
committee.
We thank you for your very generous and kind assistance.
Weare most grateful for your presentation.
Dr. Barser. Thank you.
Mr. Dincett. If there are no further witnesses to be heard, the sub-
committee will stand adjourned pending the call of the Chair.
(The following information was submitted for inclusion in the
printed record :)
DUKE UNIVERSITY MARINE LABORATORY,
Beaufort, N.C., April 19, 1971.
Mr. Nep P. EVERETT,
Counsel, Committee on Merchant Marine and Fisheries, Longworth House Office
Building, Washington, D.C.
Dear Mr. Everett: When I testified on the ocean dumping bills on April 7 I
expressed my concern that the proposed regulatory acts appeared to be having
the unexpected and unintentional effect of placing in jeopardy some of the on-
going research programs on the environmental consequences of ocean dumping
532
in the New York Bight. The basis for my concern is described in the following
letter. This matterial may be included in my statement for the record on H.R.
4723, the Marine Protection Act of 1971, if you desire to use this information.
I support the intent of the Marine Protection Act of 1971 because I think there
is a very real need for regulating the various ocean dumping practices that are
going on at present. The acutely dangerous and small volume dumps of explo-
sives, chemical warfare agents, highly radioactive wastes, and very toxic in-
dustrial wastes can be halted. The relatively small volumes involved in this
kind of dumping make it economically feasible for this waste material to be
disposed of in alternative ways.
The large volume dumps of dredge spoils and sewage sludge will have to be
brought under “control” by a slow and complex process which will require
greatly improved land-based waste treatment facilities. The dredge spoil and
sewage sludge are in themselves not acutely dangerous materials but the
large areas of environmental degradation at the site of the New York dumps
testify to the fact that the present methods of managing this ocean disposal
are no good. Whether the recycling capacity of the system has recently been
exceeded or whether the dredge spoils and sewage sludge have become more
acutely toxic in the last five years is not Known.
What is known is that an area of the sea floor is devoid of animals and the
bottom sediment smells of petrochemicals. I feel that we have defined the
problem clearly and we are ready to start research on an interim solution for
managing this kind of dumping while we work towards the ultimate goal of no
harmful dumping.
I am familiar with the studies supported by the Army Corps of Engineers and
earried out by Dr. Jack Pearce and Dr. Grant Gross. When the Coastal En-
gineering Research Center of the Corps of Engineers was developing its second
phase research program on the New York Bight they contacted Dr. Dirk Franken-
berg of the National Science Foundation to discuss the Army’s proposed research
program.
Dr. Frankenberg is the Biological Oceanography Program Director at the
Natilonal Science Foundation; he contacted me and asked if I had suggestions
for a man to administer the research contract program for the Army. He out-
lined the Army’s program as being a three-year program budgeted at $300,000
the first year, $2,000,000 the second year, and $2,000,000 the third year. After
discussion with Dr Frankenberg I said I would be glad to serve as an advisor to
the Army on this work because I feel that problems associated with the New York
Bight dumping are important and I feel that they can be solved, but I am dissat-
isfied with the amount of effort that government agencies. other than the Corps of
Engineers and National Science Foundation, have devoted to this important
problem. Dr. Frankenberg knew that I was interested in this problem because my
NSF supported research studied some of the biological consequences of the
dumping. Some of the results of my work in the New York Bight were selected
by National Science Foundation for mention in the 1970 Annual Report of the
President to the Congress on Marine Resources and Engineering Development.
This report is entitled “Marine Science Affairs—Selecting Priority Programs” and
was communicated to the Congress in April 1970. The relevant section of page 156
of the Report is given below :
“Tt has been demonstrated that phytoplankton growth is prohibited or pre-
vented in waters over New York City’s sewage dumping area.” The toxicity is
increased by the addition of small amounts of trace metals and is partially
decreased by the addition of metal chelators indicating the toxicity results
from high concentration of toxic metals in the sewage sludge.”
On March 31, 1971 an advisory group met at the Army Corps of Engineers’
Coastal Research Center, 5201 Little Falls Road, Washington, D.C., to review
the specifications of their proposed research program. At that time, Lieutenant
Colonel Edward M. Willis of the Center informed the advisory group that the
Army’s participation in the study had been reduced from the original three-year
program to a one-year program. The staff at the Army’s Coastal Research Center
mentioned that the future of the research program has been discussed with
individuals from EPA but as late as 6 April 1971 EPA had not announced that
it was going to adopt and carry out the Army’s proposed program of research.
I think that the Army’s proposed program is a good first step towards further
understanding of the New York dumping problems. It would take several
13 Barber, Richard T., Unpublished results from progress report on NSF Grant GB—13663
to Woods Hole Oceanographic Institution 1969.
533
months, perhaps even a year, for another agency to develop a similar program
from scratch; therefore I would regret seeing the three-year program discarded
until a better and more comprehensive plan of attack is in hand. Everyone
involved in these studies recognizes that the Army Corps of Engineers may
not be the best agency for administering the research program, because their
responsibility for maintaining the harbor depths is one of the sources of the
problem. However, the Corps has acted in the public interest in supporting
research on the problem up to now and they are well acquainted with the nature
and mechanics of the dumping activities.
In addition to the Army’s familiarity with the problem I feel that other
agencies of the government that are charged with protecting the environment
have not demonstrated a willingness to become involved in work on problems
related to the actual dumping activities. Our present knowledge of the problem
is based on the excellent, but small, Army supported programs of Dr. Jack
Pearce and Dr. Grant Gross. A Smithsonian advisory group has contributed its
skills and the National Science Foundation and Atomic Energy Commission have
supported research work done at sea by Woods Hole Oceanographic Institution
and Duke University groups. If there are other major research efforts the Army’s
advisory group and the major researchers are not aware of them.
It is disappointing that NOAA and what is now EPA have not been active in
this research. In view of the lack of major involvement of these agencies at
present I feel that a clear charge of research responsibility to some agency is
needed in the Marine Protection Act of 1971 to insure that the necessary work
is carried out.
One example of necessary work is high precision depth and seismic mapping of
the dump sites. To ‘“manage’”’ the dumping we need to know whether the material
dumped in the New York Bight has been accumulating over the past forty years
and has produced a series of low hills or hummocks or whether the dredge spoil
and sewage sludge is dispersed by currents and winter storms over a broad area.
The vessels of the Environmental Science Services Administration, under the
direction of NOAA in the Department of Commerce, are specifically equipped
for carrying out a precision depth and seismic survey of the sea floor. The
question of dispersal versus accumulation would perhaps be answered by such a
survey, and in addition a sensitive seismic survey (such as are used in oil
prospecting on the continental shelf) might tell us what kind of material is
accumulating on the bottom in dump sites. Since the New York Bight dumps have
been receiving publicity for over three years I am puzzled as to why ESSA has
not assisted the Corps by making such a survey. This work would be a small
and perhaps even trivial effort for NOAA to undertake but until work of this
sort is started I do not feel that we are making a reasonable effort to solve
the problems caused by ocean dumping.
If the Marine Protection Act of 1971 is going to result in the transfer of
research responsibility out of the Army Corps of Engineers then the responsibility
should be assigned to another agency and that agency should carry on the
ongoing programs until it has a better research program.
The present research effort of my lab is NSF supported; I do not intend to
seek support from the above described Army research program. My concern is
that an environmental crisis resulting from ocean dumping is gradually occurring
with the full knowledge of political and scientific authorities. This low level
crisis deserves aS much attention as the acute hazards of transporting and
dumping of chemical warfare agents.
RICHARD T. BARBER,
Director, Oceanographic Program.
Santa Ana, California, April 7, 1971.
Hon. ALTON LENNON,
Chairman, Subcommittee on Oceanography,
U.S. House of Representatives, Washington, D.C.
Deak Sir: Please place this on the record for the hearings of April 5-7.
I ask that you by-pass H.R. 4723, which only meets some of the recommenda-
poe ae Council on Environmental Quality in banning the dumping of waste
material.
I ask your support for the bill co-sponsored by Dingell and Rogers which
meets all CHQ recommendations.
Sincerely,
FERN ZIMMERMAN.
534
THE Port oF NEw YORK AUTHORITY
New York, N.Y. April 13, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
U.S. House of Representatives, Washington, D.C.
DEAR CHAIRMAN GARMATZ: The Port of New York Authority is vitally inter-
ested in H.R. 4723, titled the “Marine Protection Act of 1971”, which was
considered jointly at public hearings held by the Subcommittee on Fisheries
and Wildlife Conservation and Subcommittee on Oceanography in Washington
on April 5, 6 and 7, 1971. In general, we agree with the statement you made
at the hearing on April 5, with particular regard to provisions for dredge spoils
in the proposed bill.
Under the Port Compact of 1921, the Port Authority is responsible for pro-
moting and protecting the commerce of the Port of New York, as well as for the
development of transportation and terminal facilities in the Port District.
Development of these facilities often entails the creation of land along the
waterfront by fill, the dredging and maintenance of ocean vessel berths, and
the provision of safe, efficient and economic Federal navigation channels to
serve the Port of New York. Such activities involve moving dredged spoils, rock
and sand from one area to another in and around the waters of the Harbor
under permits granted by the U.S. Army Corps of Engineers, since land areas
in the Port of New York have been deemed unsuitable for this purpose in
various Corp navigation improvement reports. It is the sections of the proposed
legislation dealing with spoils disposal on which we wish to comment.
The Port Authority believes that H.R. 4723, sensibly interpreted, would pro-
vide a reasonable approach to balancing development needs with environmental
needs in the matters of spoils disposal in the Port of New York. The proposed
Act obviously recognizes that while disposal in ocean and adjacent waters must
be intelligently regulated, it cannot be capriciously or arbitrarily prohibited.
All uses of the world’s oceans—for transportation as well as for food and as
a source of natural resources—must be accommodated.
We feel, however, that the bill may be negating some of its general spirit of
reasonableness and unbiased regulation by expressing a policy “to prevent or
vigorously limit the dumping into the oceans, coastal and other, which could
adversely affect human health, welfare, or amenities, or the marine environ-
ment, ecological systems, or economic potentialities” as prescribed in Section
(2) (b). It is suggested that the world “could” be changed to “will”, or the
phrase “prevent or vigorously limit” revised to read “control”, thus avoiding
a situation in which a harsh curb might be levied against materials which
have not been proved to be harmful.
Section 3(e) would appear to apply the proposed Act with equality to both
Federal and non-Federal dumping activities. We trust this means that non-
Federal requirements will be made no more restrictive than Federal require-
ments of compliance. We are also assuming that the wording in Section 3(f)
excludes fill operations from application of the term “dumping”, and thus, from
inclusion in the proposed Act.
In Section 5, we commend the inclusion of such criteria as “unreasonable
degrade”, “unreasonable endanger”, “likely impact’ and “probable impact”,
since these terms evidence an intent to attain not only desirable but practical
goals in a field which still lacks considerable scientific knowledge about cause
and effect. The Federal, State and local consultative obligation is likewise
desirable, as is the establishment and issuance of various categories of permits
commensurate with the nature, volume, dumping location and impact period
of the material to be dumped. Particularly commendable is the option of issuing
general permits for materials which will have a minimal adverse impact. The
designation of dumping sites is also reflective of the constructive approach to
the dumping problem displayed throughout much of the proposed Act.
There is another section which gives us some cause for concern, namely,
Section 7(a), which rescinds all outstanding permits “after the effective date
of this Act,’ which is established as “six months after its enactment”. We
recommend an additional six month grace period after enactment, to soften
hardships during the period for conversion to new permits, and to permit proc-
essing of applications with minimum delay to ongoing dumping needs.
Dredged spoils in their natural state, unlike other materials such as sewage
sludge and certain industrial wastes which are obvious pollutants, are no more
535
detrimental to the environment than littoral drift or fluvial deposits. Areas which
are to be dredged sometimes have been polluted by indiscriminate sewage and
sludge outfalls which, for the lack of proper treatment and disposal, deposit pol-
luted material on nearby harbor bottoms. In such cases, dredged spoils are the
victim, rather than cause of pollution. It would be grossly unfair in view of these
facts to place an economic burden on navigation improvements in the form of
excessive transportation costs with what, in effect, is a form of interim pollu-
tion abatement. Just as pollution control facilities are funded specially for this
purpose, any extra costs for disposal of polluted dredged spoils should not be
borne by navigation improvements, but by pollution abatement programs. We
respectfully submit that these factors must be carefully considered in this
legislation.
Sincerely,
HayDEN B. JoHNSON,
Coordinator, Office for Environmental Programs.
STATEMENT OF THE MANUFACTURING CHEMISTS ASSOCIATION
The vital importance of the ocean environment to our total ecological well be-
ing is an undisputed scientific fact. It is important to recognize, however, that
the oceans are the ultimate sink in the hydrologic cycle. An inquisitive child
might ask the question, “Why are the oceans salty?’ The answer is not so
apparent. The oceans receive, concentrate, and to a degree provide natural treat-
ment to water-borne substances. Natural and man-made water-borne substances
eventually find their way ‘to the oceans where the water evaporates. Rains then
fall over the land and fresh water resources are replenished.
We are faced with a dichotomy. On the one hand, oceans are the source of life.
vital to ecological well being, and a significant economic factor in many parts of
the world. On the other hand, oceans are the natural and ultimate depository
for water-borne residues of man and nature.
Decisive action must be taken to regulate and control the practice of dumping
deleterious wastes into oceans and coastal waters. In some instances serious
problems have arisen from irresponsible dumping practices—primarily dredging
spoils and municipal sewage sludges in coastal waters where the contaminating
materials have washed shoreward or affected commercial and sport fishing. Such
practices should be prohibited or strictly controlled. We submit, however, that
there are instances where ocean disposal, if responsibly and conscientiously per-
formed is justified and that this disposal method should not be categorically
prohibited.
We would like to put forth for consideration some basic regulatory concepts
and then comment specifically on the proposed ‘‘“Marine Protection Act of 1971’.
The hydrologic cycle is an element in a complex ecological system which must
be balanced to serve mankind’s needs. How we go about maintaining this balance
is the central issue. It is our view that control of ocean disposal practices should
not be totally divorced from protection of coastal and estuarine waters or inland
fresh water lakes, streams, and ground waters. The interplay between all aspects
of water pollution control dictates that a flexible grant of authority be given to
the regulatory agency. The agency should have latitude to determine within rea-
sonable bounds the control strategy and alternatives most appropriate in a partic-
ular instance. :
It shou'd be recognized that there are technical limitations on what can be
accomplished in wastewater treatment and control. It is not always possible,
with today’s state of the art, to adequately treat and control all wastewaters to a
degree which would allow the safe discharge to surface waters. Some waste-
waters are presently untreatable; others may be treatable, but where treatment
does not result in complete destruction, residuals may have adverse environ-
mental consequences.
The diversity and scope of the chemical industry present a wide range of waste
residuals that must be disposed of. The industry has been forced to seek various
disposal alternatives when such wastes cannot be safely or economically recycled.
These alternatives are deep well injection, land application, incineration, and
ocean dumping. Each has its place if properly selected and conscientiously per-
formed. The central question is which disposal alternative poses the least risk
536
of environmental harm. In certain instances, ocean disposal may be the only
responsible alternative.
We reiterate that indiscriminate ocean dumping should be outlawed, but
maintain that ocean disposal should be allowed under strict regulation. It is
appropriate that a Federal agency, specifically the Environmental Protection
Agency, be given regulatory authority in this matter. HPA is the only agency at
either the Federal or State governmental level with broad authority for waste-
water control. Other Federal agencies, such as NOAA, Corps of Engineers, and
the Coast Guard, along with State agencies, may very well play an active role
in the regulatory process or surveillance, but we recommend that ultimate re-
sponsibility be centered at the Federal level in EPA.
Regulatory control should take into account the quantity as well as type of
material to be disposed of, the disposal site, and method of disposal. The
Environmental risks of various alternative disposal means should be weighed,
taking into consideration technically feasible control methods and the possible
effect of onshore disposal. We envision that certain potentially toxic materials
which ean be practically treated should not be allowed to be discharged into the
ocean, whereas other potentially toxic substances which might create greater
hazards of land, air or surface water pollution be disposed of at sea under
strictly controlled conditions. Disposal areas should be carefully selected and
monitored for any adverse effect. Marine sanctuaries should be maintained, and
fishing and recreational areas protected for present as well as future generations.
The issue is not simply one of ocean disposal, since wastes eventually find
their way to the oceans, if not by direct disposal then by conveyance in surface
streams and subsurface waters. Rather it is a matter of farsighted wastewater
control management, soundly and effectively administered. The controlling
agency must have a broad grant of authority, alternative choices, flexibility of
action, and the resources to fully implement its program.
We have reviewed the various legislative proposals presently pending and
feel that the “Marine Protection Act of 1971” offers the more complete and
appropriate approach to regulatory control. Our recommendations in reference
to it follow.
Recommendation 1—Incorporate regulation of ocean disposal as a separate
Title of the Federal Water Pollution Control Act.
Control of ocean disposal should be regarded as simply one element of water
quality management. Accordingly, we suggest that control of ocean disposal
would most appropriately be provided for as a separate Title of the Federal Water
Pollution Control Act.
Recommendation 2—Subject agencies of the Federal Government to injunctive
proceedings for violations.
As the proposed Act now reads, departments and agencies of the Federal Gov-
ernment are exempt from the penalty provisions of Section 6. Ocean dumping,
significantly the dumping of dredging spoils, has been practiced by a number
of Federal agencies with alleged detriment to the environment. We believe
Federal agencies should be subject to injunctive proceedings brought by the
Administrator, and recommend the exception provided under Section 3(e) be
limited specifically to those penalties provided in Subsections 6(a) and (b),
i.e., fines and imprisonment.
Recommendation 3—Criteria establishment under Section 5 should afford in-
terested persons an opportunity for written comment.
The development of ocean disposal criteria will affect a large number of
interested parties, including other agencies of the Federal Government, State
control officials, conservation and economic interest groups, permit applicants,
ete. On matters as important and complex as this, criteria should be published
as a proposed regulation with reasonable time given for interested persons to
submit written comments thereon.
Valuable assistance and added expertise can be made available when govern-
ment fosters a common spirit of cooperation and coordination in the resolution
of environmental problems.
Recommendation 4—Clearly delineate between responsibility for (a) the na-
ture of the material to be disposed of and (b) the proper deposition of such ma-
terial at the permitted site.
Many barging activties are conducted by independent waste haulers who are
under contract to the waste-generating party. A barge may contain wastes from
a number of different sources and a party turning his wastes over to the inde-
537 ©
pendent hauler may not have control over other types of wastes included with the
load, the exact disposal location, or the actual disposal technique practiced.
We feel that the various responsibilities of the waste generator and the waste
hauler should be specifically delineated. A possible approach would be to issue
permits for various types of waste materials specifying the zone or area in which
the material could lawfully be discharged. The waste generator would certify
the quantity, nature of the waste material, and the permitted disposal area when
the waste material was loaded upon the barge. It would then be the responsibility
of the waste hauler to dispose of the material in the permitted disposal area. This
could be checked by requiring reports of the log of the barge’s activities including
copies of the waste certificates of the barge load. This system is in accordance
with the realities of most ocean disposal activities, and would provide a work-
able and enforceable system of control.
Recommendation 5—Include a provision to allow continued ocean disposal pend-
ing implementation of the permit system.
The reasons for not categorically banning all ocean disposal of waste materials
were stated earlier. Similarly, a precipitous moratorium on ocean disposal pending
the implementation of the permit system would be unwise and could result in
adverse environmental ‘and economic consequences. We suggest two years as an
appropriate and realistic lead time for obtaining the requisite permits. Interim
measures such as prohibiting the discharge of waste materials within a 30-mile
limit could be initiated if thought necessary or desirable.
Recommendation 6—Provide funding to initiate ‘and support fundamental scien-
tific and social research related to ocean disposal practices.
Existing knowledge of effects of ocean disposal on the actual physical, chemical
and biological properties of the oceans is sadly lacking. Active research in this
area should be sponsored by the Federal Government. We recommend that a sys-
tem of Federal grants be established to initiate and support fundamental scientific
and social research related to ocean disposal practices.
In conclusion, the chemical manufacturing industry shares the national and
international concern over indiscriminate ocean dumping practices. We urge
recognition that ocean disposal has its place in a sound and comprehensive water
management program We support strict regulatory control of ocean disposal
of waste materials.
STATEMENT OF RICHARD T. BARBER, DIRECTOR, OCEANOGRAPHIC PROGRAM, DUKE
UNIVERSITY MARINE JLABORATORY, BEAUFORT, NORTH CAROLINA
My experience with ocean dumping is as an oceanographer studying certain
parts of the biological system in the waters over the New York Bight dump sites.
The proposed Bill H.R. 4723 seems to me to be a very good first step in improy-
ing relations between our way of life and the ocean.
The fact that the Bill regulates, the transportation, as well as dumping, (Sec.
4) of materials is wise and necessary in my opinion. I favor passage of the Bill,
but I feel it cou’d be strengthened. This bill will perhaps be adequate in the
future when we have good water treatment facilities, solid waste recycling, and
other environmental amenities, but I question whether this Bill will enable the
Administrator to deal in a reasonable manner with our current ocean dumping
problems. The acutely dangerous, small volume dumping practices, such as
chemical warfare agents and explosives, can be halted, but the large volume
practicer such as the New York Bight dumps, can not be halted. We have lived
with and rely on this kind of ocean disposal. How will the Administrator deal
with this problem ?
One means would be to establish procedures such as the air pollution abatement
schedules which generate solutions in a realistic manner. Given 1) authority
and responsibility over the continental shelf to a depth of 200 meters; 2) public
dissemination of the condition of the environment; and 3) the establishment of
grades of environment (sanctuaries, moderately protected areas, and interim
lower quality sites); the Administrator could effectively protect the ocean
system.
On the basis of my New York Bight experience I feel that involved government
units are devoting almost no effort to solving the problems of ocean dumping.
The very small studies to define the problem were good. Now that the problem
is defined it is time to start on the more difficult and risky work of decreasing
the degradation caused by this dumping.
538
I hope this Bill will provide an interim mechanism for controlling existing
dumping practices as well as an ultimate means for regulating future dumping
practices.
STATEMENT OF HAROLD L. PERRY, WILDLIFE REPRESENTATIVE, THE HUMANE SOCIETY
OF THE UNITED STATES
Mr. Chairman and Members of the Subcommittee : My name is Harold L. Perry.
I am a wildlife representative for The Humane Society of the United States,
with headquarters in Washington, D.C. I am stationed in Phoenix, Arizona, where
I have worked on wildlife problems for the past twenty years.
The Humane Society strongly endorses the provisions of H.R. 5060 to amend
the Fish and Wildlife Act of 1956 to provide a criminal penalty for shooting at
certain birds, fish, and other animals from aircraft. We are totally and vehe-
mently opposed to shooting any species of wildlife from any type of aircraft. Such
activity is the worst form of distortion of the true meaning of the word “sport.”
More than one species is being depleted in this absurd and inhumane method of
hunting. Some of them are threatened with total extinction.
We take exception to one provision of the bill, namely (b) (1), exempting
employees or agents of federal or state governments. My personal observation in
Arizona has proved to me that coyotes and their dens can be spotted and easily
shot from aircraft. I see no need to leave an open door for government represen-
tatives to use this unfair method of killing.
We also urge that this Subcommittee consider extending H.R. 5060 to cover
snowmobiles. This is another cruel and unsportsmanlike method of hunting that
has grown enormously in popularity in recent years. The hunted animal has no
chance as it is run down by the snowmobile and killed. Laws controlling this
activity have been passed by some states but federal legislation is badly needed to
stop snowmobile hunting on public lands and to declare it is against the policy of
the United States Government to hunt animals in this manner.
Snowmobiles can be included in H.R. 5060 with minor changes in wording.
The Humane Society urges that you do so.
STATEMENT OF ANDREWS M. LANG, PRESIDENT, WASTE MANAGEMENT AND COM-
PACTION SYSTEMS, INc., CHESTNUT HILL, Mass.
I would like to draw the Committee’s attention to the experience which Japan
has had with ocean dumping. They have, in fact, been disposing of solid wastes
for some time both in shallow water situations and in deep water—i.e. Tokyo
Bay which is several thousand feet deep.
In all cases, the Japanese have treated their solid wastes prior to disposal in
water. The treatment has been through the process known as Intensive Com-
paction—which is similar to baling but at much higher compression levels and
with special equipment so that the compacted wastes are consistently heavier-
than-water. Also, the compacted wastes are wrapped with wire mesh and dipped
in asphalt in order to maximize stability and minimize sanitation problems.
The equipment used comes from the Tezuka Kosan Company of Tokyo.
There have been no significant negative results from this Japanese exercise
in ocean dumping. I would, therefore, urge that the pending legislation permit
ocean diposal of solid wastes so long as the wastes are given a pre-disposal
treatment sufficient to guard against any adverse effects to the marine ecology.
I would ‘also urge that the Committee, the Congress and the appropriate
government agencies carry out more intensive investigation of the Japanese
activities in the field so as to permit this greater application in the U.S.A.
STATEMENT OF THE AMERICAN PETROLEUM INSTITUTE
The American Petroleum Institute would like to comment on currently pending
federal legislation concerning the disposal of wastes in the oceans. The Institute
is in agreement with the general thrust of the various measures now being con-
sidered—namely, to bring an end to uncontrolled use of the oceans as a dumping
ground for the wastes of our civilization.
539
Without really effective control, the problem of ocean disposal may become
eritical within a few years. The amount of waste to be disposed of is growing
rapidly. Some of the proposed alternatives to ocean disposal—such as recycling—
are still in the developmental stage and are not yet technically or economically
feasible. At the same time, the responsibilities of the various jurisdictions in-
volved—local, state, national, and international—are poorly defined.
Clearly, it is time for an effective federal program to deal with the problem.
For as the Council on Environmental Quality stated in its Report to the President
last October: ‘The Nation has an opportunity unique in history—the opportunity
to prevent an environmental problem which will otherwise grow to a great magni-
tude.” It may be added that an effective legislative response to the challenge
laid down in the Council’s report is of great importance not only nationally, but
also internationally, particulary at this time. Positive action in this area now
would contribute toward U.S. leadership in pollution control in the family of
nations, whose representatives will be meeting at the United Nations Conference
on the Human Environment in Stockholm next year. Ocean pollution is expected
to be a major topic at this conference.
We believe that in order to be effective, federal legislation should embody a
system for issuing permits for ocean disposal. Further, the issuance of such per-
mits should be based upon consideration of such elements as what types of
wastes may be safely disposed of in the oceans, in what quantities, and at what
sites and times. Effective criteria need to be developed, along with adequate en-
forcement procedures and appropriate penalties for violations.
Some of the legislation now pending before Congress proposes absolute dead-
lines and absolute bans against all ocean disposal. Although research may one
day demonstrate that some kinds of waste should not be disposed of at any site,
at any depth, in any ocean, research may also demonstrate that some kinds of
waste can be so disposed of without damage to the marine ecosystem. The In-
stitute therefore would support legislation authorizing the issuance of federal
permits, in accordance with carefully developed criteria.
The logical agency to coordinate such a program would seem to be the Environ-
’ mental Protection Agency (EPA). We believe that EPA’s Administrator should
develop the criteria on which permits are based. In this task he should develop
be required to consult with the National Oceanic and Atmospheric Administration
(NOAA), which has or is developing the relevant expertise. We suggest further
that the job of serveillance, enforcement, and general administration be dele-
gated to the Coast Guard, which already has the necessary experienced man-
power, shore installations, communications network, and ships.
In summary, the American Petroleum Institute believes :
1. That the ocean disposal of wastes should be controlled
2. That the federal level is the only level of government ‘that can achieve
effective control
3. That a system of permits based on carefully developed criteria is far
preferable to absolute bans on all ocean disposal.
4. That in developing such criteria, EPA should be required to consult with
NOAA
5. That the responsibility for enforcement and day-to-day administration
should be delegated to the Coast Guard.
[Telegram ]
WESTERN OIL AND GAS ASSOCIATION,
Los Angeles, Calif., May 11, 1971.
R. J. McEtLroy,
Chief Clerk, House Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.:
Regret inability to participate in recent hearings H.R. 4723. Request following
comments be added to hearing record which understand still open.
We are concerned that definition “material” in section 3(c) will prohibit
present practice of depositing cleaned drill cuttings (rock chips) to ocean from
offshore drilling operations. Also, that present practice approved by California
water quality boards of depositing excess drilling mud which is an oil free and
nontoxic clay and water combination into ocean will be prohibited. ‘Offshore
540
oil drilling its effect upon the marine environment” conducted by California
Department of Fish and Game, January 31, 1962, shows conclusively that de-
positing washed drill cuttings on ocean bottom not deleterious to marine life
in adjacent area.
If such ocean depositing prohibited by strict construction of section 3(c)
decision would add approximately 7-9 percent to cost of offshore drilling opera-
tions. Request opportunity to discuss matter with appropriate committee person-
nel and staff in greater detail. Copy of report cited earlier in mail to you for
attachment to this wire.
Appreciate your consideration of these belated remarks.
HENRY W. WRIGHT,
Manager, Land and Water Department.
[Telegram ]
Port oF NEW ORLEANS,
New Orleans, La., April 5, 1971.
Hon. Epwarp A. GARMATZ,
Chairman, House Merchant Marine and Fisheries Committee
House of Representatives, Washington, D.C.:
Please accept this as the position of board of commissioners of the Port of
New Orleans an agency of the State of Louisiana with respect to H.R. 4723 en-
titled Marine Protection Act of 1971 and on which bill joint hearings are being
currently held. This board administers the second largest port in the United
States and is charged with ‘the legal duty to develop and improve the port and
harbor in the interest of maritime activities and the development of the Foreign
Commerce of the Port and of the United States.
While this Board supports the objectives of H.R. 4728, it is its firm and con-
sidered opinion that the provisions of this bill which wou'd relieve the Army
Corps of Engineers of its authority to issue permits for the disposition of dredge
spoil and p'ace such authority with the Administrator of the new Environmental
Protecction Agency (EPA), will be seriously detrimental to the day-to-day
operations and to the long-range development and improvement of ports and
harbors and navigation channels by reason of the fact that the Corps of Engi-
neers is eminently qualified and experienced by virtue of its vast professional
knowledge and long established familiarity with and understanding of the
engineering requirements in connection with dredging and other related activi-
ties required for the successful development, maintenance. and operation of
ports, harbors, and navigation channels, and the like, and historically is quali-
fied and experienced in the economic and environmental aspects and. therefore,
to transfer such authority to another agency or Federal Government such as
the EPA, is unnecessary, and will, in our said firm opinion, result only in delaying
urgently needed projects, and further in discouraging future developments of
kind in the public interests, particularly since no other Federal ageney is as
qualified as the Corps of Engineers to weigh the balance between economic
and national defense necessities and the environmental quality considerations.
It must be remembered that the Corps of Engineers is controlled not only by
the congressional processes, but itself must seek the comments and approval of
environmental agencies.
EDWARD S. REED,
Executive Director, Board of Commissioners.
SIERRA CLUB, NEW ENGLAND CHAPTER,
Somerville, Mass., April 29, 1971.
Chairman Epwarp A. GARMATZ,
Committee on Merchant Marine and Fisheries,
Longworth Building, Washington, D.C.
DEAR CHAIRMAN GARMATZ: The Sierra Club, New England Chapter, strongly
supports certain environmental policies of H.R, 895 as a significant first step in
protecting the oceans against the reckless and excessive dumping of industrial
wastes. In your consideration of this and other bil!s on ocean dumping, we hope
you will adopt the sound policies that Mr. Harrington’s bill stresses.
541
First, a glaring defect of the present Water Pollution Control Act, as amended,
and other proposed legislation on ocean dumping is the assumption that those
chemicals and wastes that are toxic can be enumerated and thus barred from
the oceans. It is safe to state that experts in the field would not be able to
compose such a list. The reason is that our knowledge is much too primitive;
substances we once thought to be much too inso'ub’e to be harmful turn out
to be solublized by micro-organisms or by reacting with other pollutants and
consequently are capable of being amplified in the food-web to toxic levels.
Further, toxicity is always a function of concentration—low levels of fluoride
are beneficial but higher concentrations are deadly metabolic poisons—and it
is impossible to predict at present, what concentrations of industrial wastes
become toxic to marine life. H.R. 805 does not contain this defect. Instead, the
burden of proof of non-toxicity is on the dumper. This may appear, at first, too
controversial, too unjust to business but remember a dying or dead ocean may
have unfathomable effects on all mankind. In reality, this requirement will
limit dumping and tend to stimulate recycling of wastes. Our knowledge and
technology can make recycling a reality. If ecological considerations are para-
mount then suddenly recycling wastes will become much cheaper than dumping.
Secondly, H.R. 805 includes thermal pollution which the present federal legis-
lation does not. The proliferation of nuclear and fossil power plants using
ocean or estuary water for cooling purposes demands immediate Federal regula-
tion. The rejection of excess heat into estuaries can do profound damage to these
all important ocean nursery grounds.
It is these two substantive aspects of this bill, not covered by present Federal
legislation, that are essential if this nation is to move towards sound ecological
solutions to our very serious waste disposal problems.
Don Comps, and
JEANNETTE HARGROVES,
Ocean Studies Group,
Sierra Club—New England Chapter.
(Committee Norr.—The following information is a follow-up on
material supplied for the record in the committee’s hearing entitled
“Administration of the National Environmental Policy Act—Part 1,”
Serial 91-41, on page 1264:)
DEPARTMENT OF THE NAvy,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, D.C., June 23, 1971.
Hon. JOHN D. DINGELL,
Chairman, Subcommittee on Fisheries and Wildlife Conservation, Committee
on Merchant Marine and Fisheries, House of Representatives, Washington,
D.C.
DEAR Mr. CHAIRMAN: In response to the requests made by the Subcommittee
on Fisheries and Wildlife Conservation, House Committee on Merchant Marine
and Fisheries, during the hearing held on December 11, 1970, I am enclosing a
summary embodying the contents of a final report released by the Secretary of
the Navy, of the results of the investigation of the oil dumping incident which
occurred off Mayport, Florida on November 30, 1970.
Sincerely yours,
LANDO W, ZECH, Jr.,
Captain, U.S. Navy,
Deputy Chief.
Enclosure.
FINAL REPORT OF RESULTS OF NAVY INVESTIGATION TO INQUIRE INTO THE CIRCUM-
STANCES SURROUNDING THE DISCHARGE OF WASTE MATERIAL WHICH OCCURRED OFF
THE COAST OF JACKSONVILLE, F%.A., ON NOVEMBER 30, 1970
1. The review of the investigation has now been completed within the Depart-
ment and the intermediate and fina! reviewing authorities have concurred in the
findings of fact, opinions and recommendations of the investigation as they were
prevously reported.
2. Review of the investigation revealed that the directive of the Chief of Naval
Operations, dated October 30, 1970, regarding the implementation of the National
Environmental Policy Act of 1969 was in the process of being prepared for dissemi-
62-513 O - 71 - 36
542
nation to individual commands on November 30, 1970. By virtue of Secretary
Chafee’s message on this subject to all ships and stations on December 3, 1970,
it became unnecessary for such implementing directives to be published by inter-
mediate commands.
3. In paragraph III.A. of the interim summary, it was stated that the failure
at Naval Station, Mayport, to insure distribution of the Chief of Naval Opera-
tions’ message of September 1970, enjoining a review of procedures to prevent
incidents such as this, was a breakdown in internal communications. A command
inspection was conducted of the Naval Station at Mayport, with particular atten-
tion to the message distribution practices used. It was the conclusion of the
inspecting officer that messages were being handled and routed in accordance
with standardized methods under the supervision of knowledgeable and trained
personnel, and that a recurrence of the unfortunate communications breakdown
that occurred in this instance was extremely unlikely.
4. The method of disposal of oily waste waters outlined in paragraph IV of
the interim summary continues in effect. This procedure has been approved, on
an interim basis, by the Department of Air and Water Pollution Control of the
State of Florida. The Navy is developing a water separation installation as a
pilot project and, upon satisfactory testing, will prepare an emergency Military
Construction item for installation at the Naval Station, Mayport, to replace the
interim system.
5. The Navy has initiated a number of positive steps to reduce to an absolute
minimum any future actions which could have an adverse impact on the environ-
ment. Deep water disposal of munitions has been halted while alternative
methods of disposal are being reassessed. Instructions have been issued to the
Fleet stressing the requirement for maximum use of in-port facilities for the
disposal of shipboard wastes. The Navy is in the process of investigating various
methods of recycling waste products to attain maximum recovery of usable
products. A man at each major command will be designated to act as the focal
point for all matters relating to the environment.
6. The Navy is most concerned with all aspects of environmental pollution and
is determined to continue aggressive and, hopefully, farsighted and imaginative
programs, aimed at not only eliminating degradation of the environment, hut
enhancing it as well.
543
Ecology, Law, and the ‘Marine Revolution’
CARLETON Ray, Ph.D. (Columbia)
Departments of Pathobiology and Biology, The Johns Hopkins University,
615 North Wolfe Street, Baltimore, Maryland 21205, USA
ABSTRACT
The attainment of a world-wide high standard of living
depends upon vastly increased resource exploitation,
including the seas. Man’s exploitive activities heretofore
have simplified environments, reducing their stability and
leading to ecosystem collapse (Fig. 1). Ecosystem ecology
is rarely definitive; however, laws by which Man regulates
his activities should be subject to change according to
ecosystem reality. Many historically-developed modes of
human activity make little sense ecologically. What we may
call the ‘Marine Revolution’ follows the Agricultural and
Industrial Revolutions as a significant change in Man’s
relationship with his environment. Advanced technology for
ocean research and development are becoming available, but
cultural and legal frameworks for regulation haye not
matured. A major problem in the development of a marine
tradition whereby Man will not destroy marine ecosystems
lies in the application of ecological ‘laws’ to our activities at
sea. The uses of the seas are for fisheries, minerals, and
mining, for furthering military interests, and for recreation.
Science and technology are advanced for all of these, while
conservation attempts to integrate them wisely. Legal
régimes for regulation stem mainly from the four Geneva
Conventions which formalize a three-and-a-half-centuries-
old history of marine law. These Conventions themselves
emphasize that marine law needs modification along new
lines. Debate intensifies over régimes of res nullius (belong-
ing to no one) versus res communis (property of thé com-
munity) for ocean exploitation. This paper concludes that
exploitive ‘conquest’ can no longer serve as a guide for Man’s
use of the sea. An emphasis must be given to marine eco-
systems and to the réle of the marine ecologist in the
oceanological debate. In the past, provincialism and
tradition have stood in the way of international control of
ocean-resource use. Should an over-riding consideration be
given to ecology and to internationalism, the Marine
Revolution will affect Man’s future life far more beneficially
than a mere evaluation of resources alone would indicate.
INTRODUCTION
Man has not yet solved the age-old paradox upon
which his civilizations have many times foundered;
namely, that high population numbers with high cultu-
ral levels demand high environmental productivity, yet
exploitation of Nature produces environmental des-
truction and ecological collapse. When the numbers of
humans will come to exceed the total carrying capacity
on Earth, as is already the case in many nations,
no one can say; but if Man does not learn the lessons
of history, there is no doubt that this catastrophic
situation will occur relatively soon. The survival of
Man, or anyway of civilization as we now know it, will
surely depend upon how he handles this challenge.
There are two dominant features of the marine part
of this challenge: first, the development of international
law with enforcement for exploitation of the sea, and,
second, the development of ecosystem-based conserva-
tion practices. The latter includes the cessation of
544
existing destructive practices, the assessment of marine
environments relative to the carrying capacity of
Earth for Man, and the creation of marine parks,
sanctuaries, and control areas for research. These
ecological aspects have to date been attacked in a
piecemeal fashion. Ultimately, the answers will depend
upon value judgements about what sort of a world we
choose to live in. The late Fairfield Osborn (1953)
asked: ‘Is the purpose of our civilization really to see
how much the earth and human spirit can sustain?’
This paper considers biology and law as they reflect
upon what we may call the Marine Revolution. Biology
and law require different approaches. The body of law
by which we exercise control and responsibility is of
Man’s creation. It should reflect common sense and be
capable of rational alteration. Natural phenomena
may make no ‘sense’ at all, and their complexities are
infinite. It has been stated that the ecosystem is not
only more complex than we think it is; it is also more
complex than we can think. The ecologist can rarely be
definitive. He often experiences great difficulty in
explaining, even to some fellow scientists and especially
to engineers and technicians, the real nature of the
ecological crisis. Ehrlich’s (1969) ‘Eco-catastrophe’
sounds to many like alarmist stuff, yet it has a funda-
mental basis of perception.
To a great extent we are slaves of our own history.
The Jaissez faire spirit of exploitation, the goal of
economic growth, Man’s socio-religious beliefs which
separates him from Nature, and the conflict and case-
history methods of law make little sense when applied
to the environment. The emerging “Marine Revolution’
poses to those concepts a challenge which magnifies
the importance of the sea far beyond its resource
value. The wide recognition that this is so is reflected
by the numbers of recent symposia and reports on the
exploration, use, and legal régimes of the sea.
Unfortunately, meetings of the American Bar Associa-
tion and the Marine Technology Society, among others,
have been composed almost entirely of industry
representatives, lawyers, and a scattering of govern-
ment officials, naval personnel, and fisheries biolo-
gists—the last mostly representing mission-oriented
governmental agencies or industry. Marine ecologists
have been virtually absent!
In spite of this, the intensifying debate has produced
the beginnings of workable ideas. The ecosystem
approach may be just over the horizon, the greatest
present need being for marine ecologists to make their
voices heard. If consideration for the ecosystem be
added to the debate, it is possible that non-destructive
and cooperative exploitation on an international basis
will result, and perhaps then marine ecosystems will
not suffer further.
THE MARINE REVOLUTION
Man’s massive entry into ‘inner space’ initiates
what we are calling the Marine Revolution. It is
resulting in increased resource utilization and new
régimes for law, politics, and socio-economics, as Man
investigates, uses, and hopefully will conserve, that
three-quarters of the world’s surface which has been
mostly foreign to him.
Agricultural and Industrial Revolutions. Some
thousands of years ago, Man began to grow his own
food. This change from the hunter-gatherer to the agri-
culturalist comprized the Agricultural Revolution. It
led to the diversity of occupations which marks present
urban culture. The Agricultural Revolution produced
more food in a more accessible form than was available
to the hunter-gatherer. Food, which presumably had
been a limiting factor, was limiting no more. The
carrying capacity of land for humans rose and the
population grew accordingly.
The Industrial Revolution has been going on for the
last two centuries or more. It has been marked by the
growth of science and technology, by increased
resource-use, and by expanded diversity and efficiency
of human skills. It has meant a turning away from the
agricultural way of life to an increasingly urbanized
and ‘artificial’ one. It once again increased the carrying
capacity of the land for human beings and led to a
spectacular decrease in death control without concomi-
tant birth control. Most significantly of all, the Indus-
trial Revolution, in its greed for resources, has
produced environmental destruction at an astounding
and dangerous pace. Forests have been cut, land has
been eroded and stripped, bays have been polluted and
filled, and the result of all of these and other activities
has been to lower the long-term carrying capacity of
land for future human populations, notwithstanding
the temporary increase which technology has made
possible. Such environmental wastage makes our wish
to provide a better life for our children seem to be
sheer hypocracy.
The Marine Revolution. Thus does Man turn to the
seas which become increasingly vital for his resources.
However, the Marine Revolution is not totally a con-
sequence of the exhaustion of the land. Man also turns
to the sea as it lies before him in the form of a challenge
which he is now becoming technologically able to
accept. ‘Products are sold on an open world market
that cares nothing about the origin of the material;
one competes only against price’ (Bascom, 1966).
Thus, we accept the challenge of the sea, being not a
little starry-eyed over our technology. But we must
remind ourselves that Man remains a hunter-gatherer
in the oceans; in only an insignificant few places does
545
he farm the sea. This contrast between developing
technology and the inadequacies of cultural and legal
frameworks for regulation is a characteristic of
‘revolution’.
The Marine Revolution is, to my mind, quite as
important a development as the previous Agricultural
and Industrial Revolutions. It is no more obvious on
a day-to-day basis than the Agricultural and Industrial
Revolutions were in their time. Future Man will clearly
see this Revolution as his inner-space logistics and
utilization increase.
ECOSYSTEMS AND HOMEOSTASIS
The ecosystem is the fundamental functional unit of
the natural world. It is comprised of all the living and
non-living components of an environment and the
totality of their interrelationships. An ecosystem has
properties of self-sustainment. Solar energy must be
added, but nutrients and other materials are recycled.
Examples are a lake, a forest, an estuary, and a coral
reef.
Carrying Capacity, Limiting Factors,and Synergisms.
Carrying capacity may be defined as the number of indi-
viduals of a species within a particular ecosystem
beyond which no major increase in numbers may occur.
It fluctuates about an equilibrium level and may change
seasonally or even daily. It is regulated according to
Liebig’s ‘law’ of the minimum and Shelford’s ‘law’ of
tolerance, which together statethat the presence orabun-
dance of an organism locally is determined by the
amounts of critical materials available or by the local
levels of environmental factors such as salinity or
temperature.
It is typical of ecology that ‘laws’ are easy to state
but difficult to prove. A major reason for this is
Synergism; that is, environmental factors often act
together to produce effects which are different quanti-
tatively or qualitatively from the effects expected
separately or additively. Carrying capacity and limiting
factors apply to all living things. The foolish assump-
tion is that technology may negate them for Man.
Technology cannot alter ecological laws, though it
can redirect utilization in limited ways.
Productivity. Productivity is determined by turnover
rate. The standing crop or biomass is a poor indicator
of this, as it tells little about how often materials are
recycled. Plants absorb about one per cent of solar
energy for photosynthesis. An examination of trophic
levels from these producers to primary, secondary, or
tertiary consumers, reveals that each step involves
about a 90 per cent loss of energy. Thus, food-chains
are usually short and each trophic level shows much
lower productivity than its predecessor.
Nutrients, unlike energy, are recycled. The biogeo-
chemical cycles of gases, salts, and minerals, are most
efficient in complex ecosystems. Man can occasionally
increase productivity through the addition of sub-
stances which once were limiting. More often, his
‘making the desert bloom’ fails in the long run through
failure to recognize the interrelationships of these
cycles.
Primary productivity varies widely. Deserts and the
waters of the deep oceans, which together cover most
of the Earth, produce less than one gram of dry organic
matter per square metre per day. Grasslands, waters
over the continental shelf, and marginal agriculture
produce 0-5 to 3 gm; moist forests and agriculture
produce 3 to 10 gm; estuaries, inshore seas, and inten-
sive agriculture produce 10 to 25 gm (Odum, 1959).
Owing to their large total productive area and
volume, the seas contain more living material than the
land supports. However, Man’s utilization is at a
higher trophic level in the sea: land = sun > grass >
cow; sea = sun > phytoplankton > zooplankton —
primary carnivore (e.g. herring) > secondary carni-
vore (e.g. tunny). The seas contain a much greater total
diversity of life in terms of classes of animals than does
the land, but owing to the lower oxygen content of
water than air, the seas are dominated by animals of
lower metabolic rate, but higher ecological efficiency
than birds and mammals. Lastly, the sea provides a more
stable environment than the land; in it, the ‘weather’
is mild and the productive season is long. For all
these reasons, marine productivity is not equivalent
to that of land.
Homeostasis, Simplification, and Pollution. Homeo-
statis defines the ‘balance of nature’. All ecosystems
depend upon recycling for sustainment and upon
complexity for stability. These involve intricate
mechanisms analogous to (but more complex than)
the heat-producing, dissipating, and conserving mec-
hanisms which regulate human body temperature.
Ecosystems are never perfectly balanced, but homeo-
static mechanisms give them recuperative power which,
when exceeded, leads to breakdown; the eutrophication
of Lake Erie is a classic example of such excess.
A major part of homeostasis lies in complexity
which insures both productivity and stability, and also
has aesthetic value for Man (Elton, 1958; Dasmann,
1968). Man is a simplifier of ecosystems and thus
reduces their recuperative power. The many forms of
pollution are the most serious stresses in this regard.
Historically, Man has depended upon maximum
homeostatic capacities of the environment to endure
pollution; but in simplifying and polluting at the
same time, he attacks with a two-edged sword.
546
Is the ocean too large to disrupt? I think not.
According to the Task Force on Environmental
Health and Related Problems (1967), the American
people and their environment are being exposed to
half-a-million different alien substances with 20,000
new ones being added each year. Some of these go to
sea. For instance, pesticides have been distributed
throughout the world’s oceans through the vectors of
air and precipitation (Frost, 1969). Polikarpov (1966)
suggests that radionuclide pollution of the seas may
already be at a dangerous level for some organisms.
Hedgpeth (in press) remarks than our standards for
waste disposal are anthropocentric and that laboratory
tests on pollutants are ‘interesting, but possibly
academic as far as the real world is concerned’—in
other words, waste-level standards set for Man are
not necessarily those which ecosystems will tolerate.
MAN’S USE OF THE SEA
Only recently has Man begun to explore the sea
throughout its three dimensions. The first extensive
exploration of the deep sea was in 1873-76 by H.M.S.
Challenger. Not quite a century later, Man has
visited the ocean’s deepest place in a research sub-
marine and knows that all marine waters are capable
of supporting life.
The Marine Revolution consists of five major
aspects, which are related to, but by no means coinci-
dental with, its dominating challenges mentioned
in the Introduction. These aspects are: fisheries,
minerals and mining, military interests, science and
technology, and conservation and recreation. Emery
(1966) gives world values of marine resources in 1964
as follows: biological—US $6:4 x 10°; geological—
US $3-6 x 10°; and chemical—US $1-3 x 10°. Biologi-
cal resources will always be the most valuable, even
if surpassed economically, for Man cannot exist with-
out them, and they are largely renewable.
Fisheries. Fisheries remain the most difficult aspect
of international law of the sea. This is due mainly to
the fact that most commercially important marine
animals move and cannot be claimed. It is ludicrous
to discover that certain benthic organisms are, in fact,
classified as ‘minerals’ under the Convention of the
Continental Shelf. In some cases it is of advantage to
the exploiter that they should be so classified, an
instance being the Alaska King.Crab (Oda, 1968); in
other cases the reverse is true, instances including some
shrimps (Neblett, 1966). Fisheries resources include
various Algae, plankton, shellfish, fishes, turtles, and
mammals (Walford, 1958); but, as has been pointed
out above, Man’s utilization represents only a fraction
of total marine productivity.
Over-utilization continues to dominate fisheries,
especially, off-shore ones. Clark (1967) states that
Japanese long-lining accounted for almost a million
billfishes in 1965. Even larger quantities of tunny were
taken. Evidence is accumulating that such utilization
cannot be sustained. Perhaps even more serious than
overfishing is inshore habitat destruction. Over two-
thirds of all commercial and sport fishes of the eastern
United States depend upon inshore environments at
some critical time of their life-cycle. The most effective
way to extirpate a species is by environmental disrup-
tion, and this is being done inshore at a rapid pace.
Consideration of energetics lead many to propose
exploitation at lower trophic levels. Complex size/
metabolic factors and fishing efficiency strongly indi-
cate, however, that higher-order consumers are more
effective fishermen and converters of energy than Man
is. A total ‘plankton’ fishery should be considered as a
last, and none too satisfactory, resort. Those who have
taste-tested swordfish and plankton might agree! The
choice, however, should not be between swordfish and
plankton; given proper management, we could have
both.
The concept of ‘yield’ is vital biologically and
legally. Fisheries biologists have emphasized the
asymptotic attainment of maximum biomass through
controlled utilization. Such a yield may or may not
conform to economic efficiency or to local market
value—hence the preference of ‘optimum’ over
«maximum’ yield (Crutchfield, 1968).
W. M. Chapman (1966) states an exploitive point
of view: ‘When the fishing effort has increased beyond
the point of maximum sustainable yield, the fishing
can ordinarily be permitted to expand without serious
damage to the resource’. He ignores Allee’s principle
(Odum, 1959), which is that density is in itself a
limiting factor for population growth and survival.
Relative abundance of the species in a community is a
contributor to homeostasis. Thus, it is biologically
most sound to change population size as little as
possible in natural systems.
Christy (1966) considers broader aspects of utiliza-
tion: ‘... somehow or other it will be necessary to
limit the number of fishermen that can participate in a
fishery. Such limitations can be achieved only by
further restricting the ‘‘freedom of the seas’’; and this
clearly raises questions about the meaning of this free-
dom and about the distribution of wealth.’ This
approach appears to me more susceptible to ecological
application than Chapman’s more narrowly-stated
views.
547
Aquaculture presents different sorts of problems
from hunter-gathering, and may be the dominant pro-
vider of the future. Aquaculture is a major concern of
the US Sea Grant Program (Abel, 1968). Ryther &
Bardach (1968) and Bardach & Ryther (1968) review
aquaculture and make the point that it will be carried
out largely along coasts—exactly the areas currently
most stressed at the hand of Man. To reconstitute
coastal environments, or to fertilize them artifically,
is difficult or impossible. The key to aquaculture is
clearly the maintenance of natural productivity.
Minerals and Mining. Reading in this field often
leaves one impressed with the viewpoint that somehow
we are slaves to ‘economic growth’. Close (1968)
speaks of ‘the care and feeding of a gigantic industrial
complex’. One hopes that only a segment of industry
would speak so carelessly, but it does appear true that
an awareness of ecology and a willingness to exploit
the non-living resources at little or no expense to the
living are indeed rare. If mineral exploitation continues
by sea as it has by land, the predictable results are
frightening to contemplate. Strip mining is one parallel
example.
Mero (1966, 1968), Luce (1968), and Young (1968),
review the diversity of mineral resources in the sea.
Inshore mineral exploitation is already heavy, but a
consensus exists that only a few minerals, such
as oil and gas, are currently feasible of exploitation.
This is evidently based upon the lack of a favour-
able legal and economic climate, not upon the lack of
technological capability. Further, it is not true that
exploitation will progress from shallower to deeper
water, any such progress being a function of the re-
source sought (Wilkey, 1969).
Off-shore mineral production in 1968 was 6 per cent
of the world total and of it oil and gas accounted for
84 per cent (Economic Associates, 1968). In 1965, 16
per cent of the free world’s oil was produced off-shore,
the result of the work of 325 rigs which have drilled
many thousands of wells (Dozier, 1966); oil has been
produced from wells in as much as 104 m of water
(Wilkey, 1969), and exploratory drilling was carried
out in 1968 in the Gulf of Mexico in over 3600 m. At
any one time, about 30,000,000 tons of oil are at sea
in tankers. From US off-shore wells alone the produc-
tion of oil has so far been 2 x 10° barrels,* and of gas
5-5 x 10? ft,* at an investment of US $6 thousand
million, and with the ultimate potential of 15-35
thousand million barrels of oil and 90-170 x 101? ft?
of gas (Nelson & Burk, 1966). The massive pollution
potential of the oil industry has been previewed by the
tragic Torrey Canyon and Santa Barbara disasters. We
* 1 barrel = ca 200 litres; 1 cubic metre = ca 30 cubic feet.
can be certain that these episodes are not the last of
their kind, and probably there will be far bigger ones.
Military Interests. Military activities in the oceans
are shrouded in secrecy. It would, for instance, be
interesting to know what the degree of radio-nuclide
pollution is from Soviet and US nuclear-powered
submarines. Both Harlow (1966) and Hearn (1968)
give as the US Navy’s viewpoint the contention that
maximum freedom to use all dimensions of the sea
must be maintained in order to exploit naval strength
to the fullest in the best national interest. I think it
fair to state that such a position is shared by the
military of other major powers. The effect is to raise a
serious obstacle to internationalization, to expanded
territorial jurisdiction, and to peaceful use of the sea-
floor.
It is difficult for me to understand why putting the
sea-bed under a ‘peaceful purposes only’ treaty, as has
already been done for outer space and Antarctica, is
not in the ‘best national interest’. Evidently, military
influence was a major factor in preventing that prin-
ciple from being accepted at the 1967 United Nations
debate on the subject (Eichelberger, 1968). As yet the
sea-bed is not much utilized militarily, though the
waters over the floor of the sea certainly are. Thus, it
is particularly disturbing to read that ‘military
strategists ... have been looking for better ways to
put the sea to use for the purposes of national defense’
(New York Times, 1969).
It must be pointed out that military interests are not
necessarily contrary to fishing or mineral exploitation.
In any case, international progress on these last
should not be held up by conflicts with the military
authorities.
Science and Technology. The United States, among
other nations, is heavily committed to marine explora-
tion, science, development, and conservation. Reports
on the highest level are numerous, including: Inter-
agency Committee on Oceanography (1963, 1967);
National Academy of Sciences (1964, 1967, 1969);
Panel on Oceanography, President’s Science Advisory
Committee (1966); National Council on Marine
Resources and Engineering Development (1967, 1968a,
19685); and the Commission on Marine Science,
Engineering and Resources (1969).
The last-mentioned, the so-called Stratton Commis-
sion Report, departs courageously from—while also
building upon—the baseline established by its pre-
decessors and is no doubt the most significant of them
all. It is broadly ecological and international in nature,
and recommends a US National Oceanographic and
Atmospheric Agency for centralization of US research,
exploration, data collection, and education. Further,
it proposes an International Registry Authority for
548
ocean claims—with régimes for ocean bottoms, a
delineated continental shelf, and an intermediate zone.
The Commission also stresses optimal use of coastlines
on a long-term basis in which industry, water quality,
and aquaculture would be regulated under Federal
law to guard against deterioration of the inshore
marine environment. A useful review of this Report,
including both the pros and the cons, is provided by
the Program of Policy Studies in Science and Techno-
logy (1969).
Looking not at reports, but at budgets, produces
some dismay. Ocean Science News (1969) states the
current US Federal commitment to marine matters
to be $528 million per annum, of which only $150-6
million is in basic and applied research, $143 million
being in national security—and this in the very year
of Man’s travel to the moon and continued develop-
ment of supersonic transport! The overall oceanic
budget has grown 22 per cent since 1968, when
Economic Associates, Inc. (1968) remarked: ‘what re-
mains to be pointed out is the very low level of Federal
expenditure on ... resources and their environment,
compared with Federal oceanologic programs in
general and, decidedly so, with the Federal effort in
such a field as outer space’.
The International Biological Programme’s Marine
Productivity section deserves mention. The IBP theme
of ‘The biological basis of productivity and human
welfare’ is ideally suited to the needs of Man during
the initial period of the Marine Revolution. However,
at the current level of funding (only US $7 million for
all US IBP sections in fiscal year 1970), it is certain
that IBP cannot fulfil its goals.
Conservation and Recreation. To many, conservation
and recreation involve inter alia the establishment of
parks, sanctuaries, and control areas for research
(Ray, 1961, 1965, 1966, 1968; V. J. Chapman, 1968;
Randall, 1969). However, conservation and recreation
must not be confined to protected areas. Both must
principally be concerned with the maintenance of eco-
system homeostasis on a world-wide basis, and this is
a large order indeed.
The concepts of conservation have been developed
for terrestrial environments and are only vaguely
applicable to the sea. The oceans together occupy
a vastly larger part of the biosphere than does the land,
and they are more continuous. The sea’s rate of
change, its biotic complexity, and our ignorance of its
three-dimensional hydrosphere, are of a different order
of magnitude from their counterparts on the more
familiar land. For both land and sea, modern conser-
vationists have become less concerned with the placing
of ‘fences’ about sea or landscape, valuable as protec-
tive measures are, than with an ecological concept of
the total ecosystem of which Man forms a part. A
good basis of conservation policy exists for land and,
in part, for inshore seas. For the high seas, this is not
the case.
LEGAL REGIME OF THE SEA
Ultimately, Man’s marine activities of all kinds
must be legally regulated. Griffin (1967) states: ‘To a
large extent, a period of legal conjecture is ending.’
The problem is ‘... to evolve policies and a legal
régime which will maximize all beneficial uses of ocean
space. ... Under no circumstances, we believe, must
we ever allow the prospects of rich harvest and mineral
wealth to create a new form of colonial competition
among the maritime nations.’ A contrary view is that
of Ely (1967a): ‘Above all, we should not now cede to
any international agency whatsoever the power to veto
American exploration of areas of the deep sea which
are presently open to American initiative. We can
give away later what we now keep, but the converse is
sadly false.’ Ely (19676, 1968) later extended these
views.
Basically, the argument concerns whether the sea
and sea-floor are res nullius (belonging to no one but
subject to claim) or res communis (property of the
world community).
Eichelberger (1968) puts the matter another way
when he says: ‘Either [the sea] opens up another threat
of conflict or another area of cooperation.’ Of course,
the argument is not so simple. As Friedham (1966)
and Belman (1968) point out, traditional law of the
sea is imperfect, but there is legitimate hesitancy to-
wards creating new modes when our experience with
the sea and our ignorance of its resources are both still
great.
Historical Background. In 1609, Grotius wrote Mare
Liberum as a challenge to national jurisdiction of
areas of ocean. This brief for the Dutch Government
was directed towards breaking the Portuguese mono-
poly of the East Indies spice trade. Gradually, and in
partial response to struggles for supremacy between
Britain and Spain, the principle of ‘freedom of the high
seas’ was accepted.
The concept of a territorial sea was born when
Bijnkershoek wrote De Domino Maris in 1702. A
territorial width of three nautical miles (ca 6 km) has
been attributed to the distance of a cannon-ball shot,
but the range of cannon at the time was only a single
nautical mile. Probably the three-mile limit began with
a British instruction to her Ambassadors, in 1672, that
control should be exercised one marine league (= 3
nautical miles) from shore (Weber, 1966). Three
549
nautical miles was never adopted as a limit universally;
claims of up to 12 such miles (ca 24 km) have always
been valid.
A Convention of 1884 sustained all states’ rights
to lay cable on the deep sea-floor; but it was not until
the Treaty of Paria, between Britain and Venezuela in
1942, and the Truman Proclamation of 1945, that any
state claimed jurisdiction and control over any part of
the sea-floor. By its important action, the United
States effectively laid claim to an area of shelf larger
than Alaska and Texas combined.
Three-and-a-half centuries of precedent thus led to
recognition of the following zones: (1) internal waters
and bays within the control of the coastal state; (2)
territorial sea under the control of the coastal state:
(3) continental shelf over which the coastal state might
claim control; (4) contiguous zones for special pur-
poses; (5) the high seas, held to be res communis; and
(6) the deep sea-floor, held to be res nullius. New
technology for ocean research and exploitation after
World War II indicated obvious conflict under this
system.
The International Law Commission had been
created in 1947 under the United Nations. It proposed
in 1956 that a Conference on Law of the Sea be held.
This occurred in 1958 at Geneva and adopted four
Conventions as follows:
(1) Territorial Sea and the Contiguous Zone:
ratified 10 September 1964. This Convention confirmed
the control of the coastal state over all resources
within a territorial sea. In addition, the coastal state
might declare control over a contiguous zone for
security, customs, fiscal, immigration, or sanitary
purposes, but not to interfere with the right of innocent
passage. The width of the territorial sea is still un-
decided. Of 91 coastal states, 50 declare 12 nautical
miles, 17 declare more than 12, 10 declare between 3
and 12, and 14 declare 3 such miles (Oda, 1968). A
narrow territorial sea is favoured by military interests
and by states with international fishing fleets; Japan
is the only major fishing nation which adheres to three
miles. A wide territorial sea is favoured by states
wishing to protect a coastal fishery. Obviously, the
US has been in a delicate position and only recently
declared 12 nautical miles to be the width of its
territorial waters. :
(2) High Seas: ratified 30 September 1962. This
includes all waters outside territorial ones and declares
freedoms of navigation, overflight, fishing, and the
laying of submarine cables and pipelines. Also
included are regulations on piracy and pollution.
(3) Continental Shelf: ratified 10 June 1964. This
Convention is mainly concerned with the sea-floor and
does not include the water lying above. It has already
been pointed out that certain living resources are
included. The most serious contention concerns the
extent of the shelf, which is defined in the Convention
as extending: *... to the sea-bed and subsoil of the
submarine area adjacent to the coast, but outside the
area of the territorial sea, to a depth of 200 metres or,
beyond that limit, to where the depth of the super-
jacent waters admit of the exploitation of the natural
resources of the said areas.’ Two schools of thought
prevail here. One contends that as this Convention is
entitled “Contenental Shelf’, the sea bottom beyond
its geographic limits of about 200 m depth is not
included. The other contends that the exploitability
provision defines a ‘juridical shelf’ which could include
the slope or even the whole ocean bottom. It should
be kept in mind that the shelf area is a huge one;
without the slope it comprises 10 x 10° mi? (about
28 x 10° km?), which is equal to 20 per cent of the
total land area on Earth (Mero, 1966, 1968). An
excellent review of the problem is that of Tubman
(1966).
(4) Fishing and Conservation of Living Resources of
the High Seas: ratified 20 March 1966. This remains
the most controversial of the Conventions, being the
only one which did not more or less standardize a
body of existing custom but which contained genuine
innovation. The problem that one non-cooperating
state could vitiate fishery conservation efforts was a
major reason for calling the Geneva Conference. This
Convention ‘virtually forces consideration of the need
for conservation of a fish stock by all participating
nations if only one (or an adjacent coastal state)
insists on it,’ but ‘it says nothing about the principles
to be followed, nor, more fundamentally, about the
objectives sought’ (Crutchfield, 1968). It does not treat
allocations or provide more than case-by-caseconsider-
ation of conservation.
Prognosis. Christy (1968) outlines four approaches
to the developing law of the sea. The ‘wait and see’
approach leaves exploitation to chance. Support for
wait-and-see comes in part from proponents of case
law who heed the dictum of Oliver Wendell Holmes:
‘The life of the law is not logic, but experience.’
Additional support accrues from those who note our
lack of knowledge and experience in the sea.
The second approach is that of the ‘national lake’.
The obstacle here is that the division of the sea would
be highly inequitable. The USSR would get little,
whereas tiny oceanic islands would gain title to huge
territories.
The ‘flag’ approach is the third. It is supported
mainly by mineral and military interests of powerful
nations. Burke (1966a, 19665, 1968, 1969), McDougal
(1968), and Wilkey (1969), all defend this point of
590
view, emphasizing traditional processes of mineral
claim on and under a sea-bed held to be res nullius.
Some are willing to make concessions on an inter-
national registry or towards cooperation in pollution
and security. On the other hand, Young (1968),
Krueger (1968), and Eichelberger (1968), hasten to
point out that the flag approach is but a form of neo-
colonialism which would rapidly lead to a gold-rush.
Nor does the flag approach, with its unavoidable
competitive nature, make much sense ecologically.
The last alternative is ‘international’. Kruger (1968)
and Eichelberger (1968) lucidly point out the obsole-
scence of nationalism and the fact that most small
nations will view internationalism as the only legitimate
approach to the sea. Furthermore, mineral resources
required by the industrial nations arespread throughout
the international market, necessitating international
trade.
The United Nations has shown its resolve by a series
of resolutions. One of 31 December 1968, designated
Resolution 2467A-2467D (XXIII), includes the
following points: (1) promotion of international co-
operation; (2) exploitation for the benefit of mankind;
(3) prevention of pollution; (4) desirability of peaceful
use of the sea-bed; and (5) endorsement of an Inter-
national Decade of Ocean Exploration.
I find it impossible to argue against any of these
goals, and equally impossible to see an alternative to
internationalism in achieving any of them. Precedents
of treaties on Antarctica and outer space exist though
both Young (1968) and Eichelberger (1968) point out
that the ocean floor is not tabula rasa (i.e. a ‘blank
slate’) as were in some senses both Antarctica and outer
space. However, they do not point out that virtually
all of Antarctica was under territorial claim, and that
nuclear testing and exploration had been carried on
in outer space before those treaties were signed. Both
treaties involved a yielding of claims and nullifications
of military interests. It is difficult to see why such
yielding could not also take place for the sea-floor,
the superjacent waters, and even some sections of
shelf. One thing is certain; under no reasonable
circumstances would the exploiter lose by international
control. All that might ensue would be more efficient
utilization and a cleaner sea.
Gargantuan problems exist with regard to inter-
nationalism. Burke (1966a, 19666, 1968, 1969),
Alexander (1966), and Griffin (1967), review the
problems of disarmament, bilateral and multilateral
agreements, the extent of off-shore claims, scientific
freedom in research, and many others. Burke (1969),
particularly, examines difficulties in applying the
Stratton Commission Report. However, one should
not be deterred from a path simply because it is
stony.
CONCLUSION
The sea lies today like a huge plum which Man is
ready to pluck but towards which he gropes in
quandary. This paper emphasizes the application of
ecology to this Marine Revolution. We see that
historically we have grown to treat the sea as the
land—exploitively and as a ‘frontier’ to be conquered.
There is no longer room for doubt that this is a
collision course and that the ‘conquest’ of Nature
threatens Man’s existence as a species with high
‘culture’.
Much as we might wish it so, the sea is not a placebo
for our destruction of the land. The very existence of
Conventions on the sea are cause for optimism and
proof of awareness of the need for change. To the
international lawyers belongs most of the credit.
However, there persist such items as the ‘house’
lawyer’s fear of loss of proprietary rights, the indus-
trialist’s fear of loss of claim, and the fisherman’s fear
of loss of /aissez faire exploitation. Many maintain that
we do not yet know enough about the sea, nor do we
have sufficient experience with it, to change our modus
operandi. Nevertheless, one must agree with Belman
(1968): ‘If law awaits developments, it loses the
ability to shape them.’
The ecosystem principle must serve as the over-
riding guide for shaping our future resource use. We
simply do not dare exceed limits of homeostasis in the
sea. Ripley (1966) states: ‘The basic problem therefore
is to acquire sufficient knowledge about our eco-
systems to provide feedback controls essential to
homeostasis.’ It is true that we do not as yet have all
the knowledge we might desire, but it is also true that
we know enough now to be able intelligently to
monitor our actions. We can assume that every one of
our actions puts some stress on the environment. We
can put aside expediency, tradition, and false economic
idols. We can negate flimsy and obsolescent national
boundaries. We can shift the burden of proof for
ecological damage from the plaintiff-community to
the defendent-exploiter. The problem is not the
ability to change; it is the desire and necessary under-
standing.
A new brand of environmental biologist must
become increasingly involved in the Marine Revolu-
tion; without him, no purely political or legal solution
will suffice. Non-biologists, even lay conservationists,
have too rarely shown comprehension of the com-
plexities of the living world and they are not equipped
to deal with the sophistication of ecosystem ecology.
However, the biologists have been largely unwilling
to commit themselves. Darling (1967) has pinpointed
part of the problem: ‘... public policy has to be
ahead of public consensus. . . ecology and conservation
dol
can move surely into the hurly-burly without losing
scholarly integrity, a course most of us must be
prepared to follow. . .’. Biology must to.a new degree
achieve interaction with politics and the law. Scientific
integrity must be defended and this is not in conflict
with a willingness to ‘stick one’s neck out’.
There is apparently no end in sight either to Man’s
reproductive potential or to his infinite conceit that
he shall inherit the (still productive?) Earth. Yet there
is a limit to the sea as to the land. The uniqueness of
the Marine Revolution lies in part in the fact that
Man is recognizing the limits of the Earth as he is
developing exploitation of its most remote and
unknown region—the oceans and seas. It also lies in
the fact that the oceans’ and seas’ uncertain ownership
forces Man at last to consider alternatives to provin-
cialism and nationalism. Indeed it may be said that
the Marine Revolution, for the first time in Man’s
history, ties survival with international cooperation.
Acknowledgements
To the following I owe thanks for helpful comments
on this paper: Eugenie Clark, University of Maryland;
Raymond F. Dasmann, Conservation Foundation;
Sidney R. Galler, Smithsonian Institution; Roger M.
Herriott, The Johns Hopkins University; A. Starker
Leopold, University of California (Berkeley); Nicholas
Polunin, Biological Conservation; John E. Randall,
Bishop Museum, Honolulu, Hawaii; George W. Ray, jr,
private lawyer; Frank M. Potter, jr., Environmental
Clearinghouse; Charles H. Southwick, The Johns
Hopkins University; Richard Young, private lawyer.
I am indebted to all these persons, for their very
constructive criticism.
References
ABEL, Robert B. (1968). A history of federal involvement
in marine sciences: emergence of the National Sea
Grant Program. Natural Resources Lawyer, 1, 105-14.
ALEXANDER, Lewis M. (1966). Offshore claims of the world.
Mimeo. for Law of the Sea Institute. University of
Rhode Island, June-July, 8 pp.
BarRDACH, John E. & RyTHER, John H. (1968). The Status
and Potential of Aquaculture. Vol. IT: Particularly Fish
Culture. Amer. Inst. Biol. Sci., Clearinghouse for Fed.
Sci. & Tech. Information, Springfield, Virginia,
225 pp., illustr.
Bascom, Willard (1966). Mining in the sea. Mimeo. for
Law of the Sea Institute, University of Rhode Island,
June-July, 1 p.
BELMAN, Murray J. (1968). The role of the State Depart-
ment in formulating federal policy regarding marine
resources. Natural Resources Lawyer, 1, 14-22.
Burke, William T. (1966a). Technological development
and the law of the sea. Mimeo. for Law of the Sea
Institute, University of Rhode Island, June-July,
18 pp.
Burke, William T. (19665). Legal aspects of ocean exploi-
tation—status and outlook. Pp. 1-23 in Exploiting the
Ocean. Trans. Second Annual Mar. Tech. Soc. Conf.
& Exhibit., Mar. Tech. Soc., Washington D.C.
Burke, William T. (1968). A negative view of a proposal
for United Nations ownership of ocean mineral
resources. Natural Resources Lawyer, 1, 42-62.
Burke, William T. (1969). Law, science and the ocean.
Mimeo. for Law of the Sea Institute, University of
Rhode Island, August, 34 pp.
CHAPMAN, Y. J. (1968). Underwater reserves and parks.
Biol. Consery., 1, 53.
CHAPMAN, Wilbert M. (1966). Fishery resources in offshore
waters. Mimeo. for Law of the Sea Institute, Uni-
versity of Rhode Island, June-July, 18 pp.
Curisty, Francis T., Jr. (1966). The distribution of the
seas’ fisheries wealth. Mimeo. for Law of the Sea
Institute, University of Rhode Island, June-July,
14 pp.
Curisty, Francis T., Jr. (1968). Alternative régimes for
the marine resources underlying the high seas.
Natural Resources Lawyer, 1, 63-77.
CiarK, Eugenie (1967). The need for conservation in the
sea. Oryx, 9, 151-3.
Ciose, Frederick, J. (1968). The Sleeping Giant. An
Industrial Viewpoint on the Potential of Oceanography.
Mar. Tech. Soc., Washington, D.C. Reprinted by
Alcoa, Pittsburgh, 12 pp.
COMMISSION ON MARINE SCIENCE, ENGINEERING AND
RESOURCES (1969). Our Nation and the Sea. US
Government Printing Office, Washington D.C.,
xi + 305 pp.
CRUTCHFIELD, James A. (1968). The convention on fishing
and living resources of the high seas. Natural Resources
Lawyer, 1, 114-24.
DaRLING, F. Fraser (1967). A wider environment of
ecology and conservation. Daedalus, 96, 1003-19.
DASMANN, Raymond F. (1968). A Different Kind of
Country. Macmillan, New York, and Collier—
Macmillan, London, viii + 276 pp., illustr.
Dozier, J. R. (1966). Offshore oil and gas operations
present and future. Mimeo. for Law of the Sea
Institute, University of Rhode Island, June-July,
11 pp.
Economic AssociATEs, INc. (1968). The Economic Potential
of the Mineral and Botanical Resources of the US
Continental Shelf and Slope. A Study Prepared for the
National Council on Marine Resources and Engineer-
ing Development, Clearinghouse for Fed. Sci. &
Tech. Information, Springfield, Virginia, 520 pp.
EHRLICH, Paul (1969). Eco-catastrophe. Reprinted from
Ramparts, Int. Planned Parenthood Fed., New York,
September, 5 pp.
EICHELBERGER, Clark M. (1968). A case for the admini-
stration of mineral resources underlying the high seas
by the United Nations. Natural Resources Lawyer, 1,
85-94.
502
ELToNn, Charles S. (1958). The Ecology of Invasions by
Animals and Plants. Methuen, London, and John
Wiley, New York, 181 pp., illustr.
Ey, Northcutt (1967a). American policy options in the
development of undersea mineral resources. Mimeo.
for 90th Ann. Meeting Amer. Bar Assn, Honolulu,
August, 10 pp.
Ey, Northcutt (19675). The administration of mineral
resources underlying the high seas. Mimeo. for Amer.
Bar Assn National Institute on Marine Resources, Long
Beach, California, June, 12 pp.
Ery, Northcutt (1968). A case for the administration of
mineral resources underlying the high seas by national
interests. Natural Resources Lawyer, 1, 78-84.
Emery, K. O. (1966). Geological methods for locating
mineral deposits on the ocean floor. Pp. 24-43 in
Exploiting the Ocean. Trans. Second Ann. Marine
Tech. Soc. Conf. & Exhibit., Mar. Tech. Soc.,
Washington D.C.
FRIEDHAM, Robert L. (1966). Conflict over law: voting
behavior at the United Nations Law of the Sea
Conference. Mimeo. for Law of the Sea Institute,
University of Rhode Island, June-July, 16 pp.
Frost, Justin (1969). Earth, air, water. Environment, 11,
14-33.
GRIFFIN, William L. (1967). The emerging law of ocean
space. Int. Lawyer, 1, 548-87. i
Har.ow, Bruce A. (1966). Territorial sea concept. Mimeo.
for Law of the Sea Institute, University of Rhode
Island, 1 p.
HEARN, Wilfred A. (1968). The role of the United States
Navy in the formulation of, federal policy regarding
the sea. Natural Resources Lawyer, 1, 23-31.
HEDGPETH, Joel (in press). Atomic waste disposal in the
sea: an ecological dilemma. In The Careless Tech-
nology (Ed. M. Taghi Farvar & John Milton).
Natural History Press, Doubleday, New York.
INTERAGENCY (COMMITTEE ON OCEANOGRAPHY (1963).
Oceanography, the Ten Years Ahead. {CO Pamphlet
No. 10, Federal Council for Science and Technology,
Washington D.C., 54 pp.
INTERAGENCY COMMITTEE ON OCEANOGRAPHY (1967).
National Oceanographic Program. {CO Pamphlet No.
24, Federal Council on Science and Technology,
iv + 107 pp.
KRUEGER, Robert B. (1968). The Convention on the
Continental Shelf and the need for its revision and
some comments regarding the régime for the lands
beyond. Natural Resources Lawyer, 1, 1-18.
Luce, Charles F. (1968). The development of ocean
minerals and law of the sea. Natural Resources Lawyer,
1, 29-35.
McDouaaL, Myers S. (1968). Revision on the Geneva
Convention on the law of the sea (Comments).
Natural Resources Lawyer, 1, 19-28.
Mero, John L. (1966). Review of mineral values on and
under the ocean floor. Pp. 61-78 in Exploiting the
Ocean. Trans. Second Ann. Mar. Tech. Soc. Conf. &
Exhibit., Mar. Tech. Soc., Washington D.C.
Mero, John L. (1968). Mineral deposits in the sea. Natural
Resources Lawyer, 1, 130-7.
NATIONAL ACADEMY OF SCIENCES (1964). Economic Benefits
from Oceanographic Research. NAS Publ. 1228,
50 pp.
NATIONAL ACADEMY OF SCIENCES (1967). Oceanography
1966: Achievements and Opportunities. NAS Publ.
1492, 183 pp.
NATIONAL ACADEMY OF SCIENCES (1969). An Oceanic
Quest: The International Decade of Ocean Explora-
tion. NAS Publ. 1709, 115 pp.
NATIONAL COUNCIL ON MARINE RESOURCES AND ENGINEER-
ING DEVELOPMENT (1967). Marine Science Affairs—
A Year of Transition. US Govt. Printing Office,
Washington D.C., v + 157 pp.
NATIONAL COUNCIL ON MARINE RESOURCES AND ENGINEER-
ING DEVELOPMENT (1968a). International Decade of
Ocean Exploration. US Govt. Printing Office,
Washington D.C., i + 7 pp.
NATIONAL COUNCIL ON MARINE RESOURCES AND ENGINEER-
ING DEVELOPMENT (19685). Marine Science Affairs—
A Year of Plans and Progress. US Govt. Printing
Office, Washington D.C., xiii +- 228 pp.
NEBLETT, William R. (1966). A fishery view of recent
law of the sea conferences. Mimeo. for Law of the
Sea Institute, University of Rhode Island, June-July,
15 pp.
NELson, T. W. & Burk, C. A. (1966). Petroleum resources
of the continental margins of the United States.
Pp. 116-33 in Exploiting the Ocean. Trans. Second
Ann. Mar. Tech. Soc. Conf. & Exhibit., Mar. Tech.
Soc., Washington D.C.
New York Times (1969). Seabed potential
studied, 8 Oct.
OCEAN SCIENCE News (1969). 1970 federal ocean market.
Ocean Science News, 11, 2-3.
for arms
Opa, Shigeru (1968). The Geneva Conventions on law of
the sea: some suggestions for their revision. Natural
Resources Lawyer, 1, 103-13.
Opum, Eugene P. (1959). Fundamentals of Ecology, second
edn. W. B. Saunders, Philadelphia & London,
xvii + 546 pp., illustr.
OsBorN, Fairfield (1953). The Limits of the Earth. Little,
Brown, Boston, x + 238 pp.
PANEL ON OCEANOGRAPHY, PRESIDENT’S SCIENCE ADVISORY
ComMITTEE (1966). Effective Use of the Sea. US Govt
Printing Office, Washington D.C., xv + 144 pp.
POLIKARPOV, G. G. (1966). Radioecology of Aquatic
Organisms. Reinhold, New York, xxviii + 314 pp.
PROGRAM OF POLICY STUDIES IN SCIENCE AND TECHNOLOGY
(1969). A critical review of the Marine Science
Commission Report. The George Washington Univ.
and the Mar. Tech. Soc. Law Committee, Washington
D.C., 114 pp.
RANDALL, John E. (1969). Conservation in the sea. Oryx,
10, 31-38.
Ray, Carleton (1961). Marine Preserves for ecological
research. Pp. 323-8 in Trans. 26th No. Amer. Wildlife
& Nat. Res. Conf., Wildlife Man. Inst., Washington
IDM Ce
503
Ray: Ecology, Law, and the ‘Marine Revolution’ i7/
Ray, Carleton (1965). The scientific need for shallow-water
marine sanctuaries. Pp. 83-98 in Symp. on Sci. Use of
Natural Areas, XVI Int. Cong. Zool. Reprinted by
Field Research Projects, Natural Area Studies, No. 2,
Coconut Grove, Fla, x + 103 pp.
Ray, Carleton (1966). Inshore marine conservation.
Pp. 77-87 in First World Conference on National
Parks. US Govt Printing Office, Washington D.C.,
xxxiv + 471 pp.
Ray, Carleton (1968). Marine Parks for Tanzania. Con-
servation Foundation, Washington D.C., 47 pp.,
illustr.
RieLey, S. Dillon (1966). The future of environmental
improvement. Reprinted by The Graduate School
Press, from Environmental Improvement: Air, Water
and Soil, US Dept Agriculture, Washington D.C.,
pp. 85-93.
RyTHER, John H. & BaRDAcH, John E. (1968). The Status
and Potential of Aquaculture. Vol. 1: Particularly
Invertebrates and Algal Culture. Amer. Inst. Biol. Sci.,
Clearinghouse for Fed. Sci. & Tech. Infor., Springfield,
Virginia, 261 pp.
Task FORCE ON ENVIRONMENTAL HEALTH AND RELATED
ProsB_eMs (1967). A Strategy for a Liveable Environ-
ment. Rept to the Sec. of Health, Education &
Welfare, US Govt Printing Office, Washington D.C.,
xxi + 90 pp.
TusMan, William C. (1966). The legal status of minerals
located on or beneath the sea floor beyond the con-
tinental shelf. Pp. 379-404 in Exploiting the Ocean.
Trans. Second Ann. Mar. Tech. Soc. Conf. & Exhibit.,
Mar. Tech. Soc., Washington D.C.
WALFORD, Lionel A. (1958). Living Resources of the Sea.
Ronald Press, New York, xi + 321 pp.
Weber, Alban (1966). Our newest frontier: the sea bottom.
Some legal aspects of the continental shelf status.
Pp. 405-11 in Exploiting the Ocean. Trans. Second
Ann. Mar. Tech. Soc. Conf. & Exhibit., Mar. Tech.
Soc., Washington D.C.
Wixkey, Malcolm R. (1969). The role of private industry
in the deep ocean. Symp. on Private Industry Abroad.
Southwestern Legal Foundation, Dallas, Texas, June.
Reprinted by Matthew Bender, Washington D.C.,
40 pp.
Youna, Richard (1968). The legal régime of the deep sea
floor. Amer. Jour. Int. Law, 62, 641-53.
(Whereupon, at 5 p.m., the subcommittee hearing was adjourned,
subject to call.)
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