Do you think that the administration bill which proposes $1.5 billion is a figure which is too high, which is unrealistic because of the unavailable of resources, materials, production, capacity, professional, and nonprofessional manpower?

Mr. TAYLOR. Are you speaking of the administration bill?

Senator TYDINGS. The Muskie bill, the subcommittee bill.

Mr. TAYLOR. In our way of thinking on this, Senator, one of the No. 1 problems is water pollution. If you delay on this kind of program it is just going to raise the cost a little bit more each year that you delay.

Senator TYDINGS. Four percent a year? Isn't that how much the cost goes up?

Mr. TAYLOR. Maybe more. Land cost, materials, labor, all these costs have a tendency to escalate. I cannot see, since the subcommittee's bill calls for an initial authorization of the same amount which is already authorized in the last expiring year of the present program, that tooling up for this massive attack as contemplated beginning in 1968 in the bill is really going to have any effect on the inflationary pressures which are said to exist at the present time in the year 1966.

I think we have to get this program started or everybody is going to be paying more for the 10 years from now and it will take more effort in the future by our young people to pay the debt that we have assigned ourselves.

Senator TYDINGS. Thank you very much, Mr. Taylor.

We certainly appreciate the effort which you have obviously put into the preparation of your statement and you have been very helpful to the committee.

Mr. DOHERTY. Thank you, Senator Tydings.

Senator TYDINGS. Mr. David L. Gallagher.

Mr. Gallagher is the chairman of the Facilities Development Subcommittee of the National Association of Manufacturers.

We are delighted to welcome you before the subcommittee. Unfortunately, as you may know, Senator Muskie was called out to an executive session of the Banking and Currency Committee. In his absence in behalf of my fellow members, we appreciate your being with us this morning.

STATEMENT OF DAVID L. GALLAGHER, CHAIRMAN, FACILITIES DEVELOPMENT SUBCOMMITTEE, AREA INDUSTRIAL PROBLEMS COMMITTEE, NATIONAL ASSOCIATION OF MANUFACTURERS; ACCOMPANIED BY DANIEL W. CANNON, POLICY EXECUTIVE OF THE NAM INDUSTRIAL ENVIRONMENT DIVISION

Mr. GALLAGHER. Mr. Chairman, I am accompanied by Mr. Daniel W. Cannon, our policy executive of the NAM Industrial Environment Division.

We appreciate the opportunity of giving our testimony this morning.

My name is David L. Gallagher. I am market manager, Public Works, Worthington Corp., New Jersey. I serve as chairman of the Facilities Development Subcommittee of the Area Industrial Problems Committee of the National Association of Manufacturers.

My testimony is presented on behalf of the National Association of Manufacturers, a voluntary association of companies-large, medium, and small in size-which account for about 75 percent of the Nation's manufacturing employment.

In the interest of brevity, I would like to address my remarks initially and principally to title III of S. 2987, which states that it may be cited as the "1966 Amendments to the Federal Water Pollution Control Act, as amended."

It is our understanding that S. 2987 was drafted in the executive branch and represents the administration's viewpoint as to what changes should be made at this time in the laws of the United States relating to water pollution control.

Keeping in mind that it has been only 7 months since the Congress, after several years of deliberation, passed the Water Quality Act of 1965, intended to "enhance the quality and value of our water resources," some of the proposals in S. 2987 seem reminiscent of the gardener who kept pulling the plant out of the ground to see if the roots were growing.

Senator TYDINGS. You mean because you are planting new seeds or pulling the roots out?

Mr. GALLAGHER. Pulling the roots out.

Senator TYDINGS. Have you ever planted a vegetable garden, Mr. Gallagher?

Mr. GALLAGHER. Yes.

Senator TYDINGS. You know, when you plant spring onions, you plant some the first week in May, you plant another row the second week, another row the third week. You do so if you want to have a garden all summer long.

Excuse the interruption.

Mr. GALLAGHER. The Water Quality Act of 1965, in the short time it has been on the books, has generated a tremendous amount of interest and constructive activity in the water pollution control field. It has made a great contribution toward getting the dialog of water pollution control down out of the clouds of generalization and emotion to the nuts and bolts of what water quality do people actually want in the various reaches of interstate rivers and what yardsticks should be used to measure such quality. This approach will undoubtedly lead to greater cooperative efforts among all segments of our society, carried out in a calm and rational manner and based on a sound scentific foundation.

I would be less than candid if I did not say that some of the proposals of S. 2987 have had an unsettling and moral-disturbing effect on cooperative efforts at the State level.

To amend the Water Quality Act of 1965 at this time in the manner proposed will short circuit the extensive efforts already underway by industry, municipalities, and the States. We believe you should give the act a chance before you begin to change it. Rather than hinder present efforts, the existing act should be permitted to work before revisions are deemed necessary. While 23 States have already declared their intentions to set standards, the proposed amendments presuppose that additional punitive measures are needed before the June 1967 deadline set by the act.

The principal feature of title II of S. 2987 is that it would change the character of the enforcement procedures from a conference type conciliatory approach to a highly legalistic and punitive approach.

For example, section 310 of S. 2987 would add a section 10(1) to the Federal Water Pollution Control Act which would provide that "A final judgment or any findings or recommendations of a hearing board shall be prima facie evidence against such person."

This same section 310 would add a section 10(k) which would authorize the Secretary of the Interior to request the Attorney General to go into court whenever the Secretary believes that actual or threatened pollution deriving from an identifiable source presents an imminent danger to the health or welfare of persons, or to natural resources, or to areas of significant scenic or recreational value, and if he believes that no other effective means of protection are available.

The proposed section 10 (k) would also provide that "the authority to seek such relief shall not be limited by the procedures established in this act." It should be noted that present section 10 (a) predicates present enforcement procedures upon pollution which endangers the health or welfare of any persons.

Is there any substantial difference between pollution which presents an imminent danger to the health or welfare of persons and pollution which endangers the health or welfare of any persons?

If there is, it is difficult to perceive, and the actual effect would appear to be that the Secretary of the Interior could bypass the conference and hearing board procedures in every conceivable way.

Section 313 of S. 2987 would add three new sections to the Federal Water Pollution Control Act. A new section 11 would empower the Secretary of the Interior or any person designated by him to issue a subpena compelling the attendance of witnesses and the production of any books, papers, correspondence, memorandums, contracts, agreements, or other records which the Secretary finds relevant.

This power could be exercised not only for the purpose of any hearing but also for the purpose of any investigation. There do not appear to be any safeguards provided in connection with the exercise of the subpena power, particularly in regard to information relating to production processes or other trade secrets, and it thus appears to be a carte blanche power.

Any person who failed to comply with a subpena of the Secretary could be fined $1,000 and imprisoned for 1 year.

Under section 12, a person who hinders entry and inspection by the Secretary of any facility, equipment, supplies, and other materials, including records, files and other papers, and processes and controls, would likewise be subject to a fine of $1,000 and imprisonment of 1

year.

Under section 13, a person who fails to file a notice stating the name and location of the discharging building, installation, or facility and detailing, in particular, the nature, quantity, and point of discharge, and such other information as the Secretary believes is necessary shall forfeit $200 per day.

Section 306 would amend section 10(e) so as to eliminate the presently required time period of 6 months following the making of

recommendations by the Secretary. Section 307 would similarly eliminate the 6-month period following the service of notice of the findings and recommendations of a hearing board. We submit that solutions to water pollution control problems can be expensive and complicated.

There is no overnight answer for them, for many of them. The drawing up of engineering plans, the carrying out of construction or reconstruction, and operational testing require substantial amounts of time. We believe that the Congress made a wise decision when it incorporated the two 6-month periods in the procedure and that there is no evidence to justify their elimination.

The first sentence of section 10 (h) provides:

The court shall receive in evidence in any such suit a transcript of the proceedings before the Board and a copy of the Board's recommendations and shall receive such further evidence as the court in its discretion deems proper.

Section 309 would delete this sentence and replace it by the following two sentences:

The court shall receive in evidence in any suit brought under this section a transcript of the proceedings before the board, and a copy of the board's findings of facts if supported by substantial evidence considered on the record as a whole. New evidence may be received by the court if discovered subsequent to the board's hearing.

It is impossible to see how any case could be made for this change. Only one case under the enforcement procedures has ever gone to court, and even it never went to trial. Consequently, how could there be any basis for a claim that this provision is in need of change?

Section 308 of S. 2987 would amend section 10(a) of the Federal Water Pollution Control Act so as to eliminate the requirement that the Secretary secure the written consent of the Governor of the State before requesting the Attorney General to bring a suit on behalf of the United States to secure abatement of intrastate pollution.

This is a requirement that the Congress saw fit to incorporate, in an effort to maintain a proper balance between the State and Federal Governments in this field. It is a requirement that is in keeping with the declaration of policy in section 1(b) of the act that "it is hereby declared to be the policy of Congress to recognize, preserve and protect the primary responsibilities and rights of the States in preventing and controlling water pollution."

The removal of such requirement would be contrary to the declaration of policy and we strongly urge that the requirement be retained. Section 305 of S. 2987 would amend section 10(d) (1) of the act then so as to eliminate the phrase "and endangering the health or welfare of persons in a State other than that in which the discharge or discharges originate."

The effect of this is to make it possible for the Secretary to call a conference on intrastate pollution in situations where there is no request from the Governor of the State for him to do so.

The present requirement for a request by the Governor before the Secretary can call a conference on intrastate pollution is another safeguard which the Congress incorporated in the procedures to preserve proper intergovernmental relations, and we believe its removal would be contrary to the declaration of policy of the act.

Section 10 (c) of the act would be amended by section 304 of S. 2987 to substitute for the words "interstate waters" wherever they appear, the words "interstate or navigable waters." This too amounts to changing the rules in the middle of the ball game.

Section 10 (c) deals with the adoption by the States of "water quality criteria applicable to interstate waters or portions thereof within such State." Many States have started work on the formulation of such water quality criteria.

It is reported that at least 23 of them have already filed letters of intent that, after public hearings, they will before June 30, 1967, adopt such criteria and an implementation plan. It will require major efforts by the States to meet the deadline date as to interstate rivers.

It will be highly disconcerting to the States to be told, after some months of the time period has elapsed, that they must also meet the deadline date so far as intrastate navigable waters are concerned.

A highly confusing question is, Must the States which have already filed letters of intent, file new letters of intent if this amendment is adopted? However, the major objectionable feature is that of changing the scope of the waters to which the water quality criteria would be applicable, at a time when work is in progress based on the present definition of scope. Another undesirable feature is that this change will authorize the Secretary of the Interior to promulgate water quality standards for intrastate waters under certain circumstances.

All in all, the proposed amendments to the act contained in title III of S. 2987 and which I have briefly described, add up to a vast enlargement of the Federal role and a transformation of the enforcement proceeding from a conciliatory, cooperative, conference type approach to an antagonistic, punitive, adversary type approach.

The amendments are highly legalistic and by removing various safeguards move toward making the enforcement proceeding highly one sided. The origin of these amendments was revealed in a statement presented before the Public Land Review Commission on March 24, 1966, by the Honorable Edwin L. Weisl, Jr., Assistant. Attorney General in charge of the Land and Natural Resources Division of the Department of Justice, in which he said:

We are particularly proud of our contribution to this year's proposed antipollution legislation where we took the lead in authoring new proposals for the enforcement of antipollution measures.

This reaffirms our opinion that the proposed amendments are highly legalistic and not based on any actual experience demonstrating any need for such a drastic change in approach.

Title IV of S. 2987 is also highly legalistic. Section 401 would amend title 28 judiciary and judicial procedure, so as to grant original jurisdiction to Federal district courts of private injunction suits in cases of both interstate and intrastate pollution, and the jurisdiction would extend "without any requirement or limitation regarding the sum or value of the matter in controversy, or the place of residence or the nature, character, or legal status of any of the proper parties plaintiff or defendant in such action."

Thus it appears that Federal district courts could carry out a policy in regard to local cases which might not coincide with the policy of the State of which the parties were citizens.

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