Senator MUSKIE. You have a way of stating these things, Mr. Conner, that always prompts a response on my part.

Now, actually what we are talking about is this: Shall there be any Federal authority in interstate streams? You obviously don't believe that there should be any.

Mr. CONNER. This is not so; no, sir.

Senator MUSKIE. You believe that there should be some Federal authority over interstate streams?

Mr. CONNER. Yes.

Senator MUSKIE. Well, now, if that is the case, how meaningful shall that authority be? Shall it be simply that of recommending standards?

Mr. CONNER. This would be our preference.

Senator MUSKIE. Well, this is not authority, so we are right back where I started from. You can't tell me, Mr. Conner, that in a case involving two or more States, as to which the States have been unable to date to agree to water quality standards or have made no effort to agree as to water quality standards, the recommendations of the Secretary are going to have much meaning unless he can back it up in some way with meaningful action if the States then refuse to act. If you disagree with this, why don't you say so?

Mr. CONNER. We are trying to say it as clearly as we can. Let me point out that Secretary Quigley said a few minutes ago that only one of these procedures so far under the existing statute had had to go to court. In all other cases it has been possible for Federal and State authorities to work out, on the basis of the facts and the technical requirements, a suitable way of cleaning up the stream.

Senator MUSKIE. You are arguing my case.

Mr. CONNER. Either in the hearing board or conference, and without any standard-setting authority on the part of the Secretary.

Senator MUSKIE. Oh, no. Under the present law, the Secretary has more authority than I understand you are willing to give him. under S. 4 in the present law. The Secretary can move into these interstate streams under present law whenever he, in his own judgment, believes that there is an endangerment of health and welfare, he can move.

Mr. CONNER. But the safeguard is that the conference and the hearing board have a voice in the enforcement of whatever he decides upon.

Senator MUSKIE. They have exactly the same authority under S. 4 in that connection, but the hearing board has no authority over the standards that the Secretary sets in his mind when he decides to move into a situation because there is an endangerment. There is no review of those standards. He moves when he decides, period.

Mr. CONNER. Yes.

Senator MUSKIE. Well, these standards provided under S. 4 would set the guidelines which would decide when he would move. Thereafter the hearing board and the courts have the same function that they have under present law. Now, this is something different from what you are saying to me

Mr. CONNER. No.

Senator MUSKIE.-because you are saying that the Secretary shouldn't have as much power to decide to move into a situation as he has now.

42-032-65--4

Mr. CONNER. Let me try one brief example and then I am going to stop, because I must not take all of your time.

Senator MUSKIE. I am taking your time, I think.

Mr. CONNER. Today, if the Secretary should decide that the Potomac should be a trout stream, and should call a conference with this objective in mind, and the conference was followed by a hearing board, and they decided that while they wanted to upgrade the Potomac, they did not want to try to make it a trout stream, the conference and the hearing board would be able to change the Secretary's determina

tion.

Under S. 4, as we understand it, if the Secretary set the figures to make the Potomac available as a trout stream, the conference and hearing board would not have the power to change that determination. This is the difference.

Senator MUSKIE. The conference and hearing board and the courts don't change the initial determination. They can prevent its implementation. This procedure is exactly the same under present law and under S. 4. What is initially decided by the Secretary as a proper standard for the utilization of the waters is one decision. Whether or not that should be implemented by effective enforcement action is a second decision.

Now, on that second decision, S. 4 would not change present law one iota, as I understand it.

Mr. CONNER. This is the understanding, sir, that we are so anxious be made clear.

Senator MUSKIE. On that we can agree. We need not belabor it. But on the first decision, as to who should set the standards, who establishes the guidelines, by what means we are informed in advance as to the nature of the performance that is to be required in a given interstate water, this is what most of our colloquy has been about.

Now, the hearing board under S. 4 is given no function with respect to that, and neither is the court, any more than it is under present law. Neither is it, for example, under the classification part of the Maine law. When you get to the enforcement proceeding which tests the applicability of implementation or clean-up of the waters in accordance with these standards, that is a separate function.

You, I am sure, know the distinction between the judicial function, the legislative function, and the executive function in our system of government. That is all we are talking about. But you are saying, if I understand what you are saying, that the courts or the judicial branch should participate in the executive function of establishing the standards in the first instance.

If you are saying that, I am not going to quarrel with your right to believe it. But I want to make sure whether you are saying that. If you are saying it, then I wish you would say so definitely. If you are not, then I would like to know what you are saying.

Mr. CONNER. Without belaboring the point, our point at the bottom of page 4 of Mr. von Frank's statement is that we believe that if the Secretary gets the power under S. 4 to set the standards, then the hearing board and the conference should have the power to review it on the merits and not simply of enforcement mechanically.

Senator MUSKIE. Well, I don't know that it is possible for me to clarify my attitude, but I will just say one thing further with respect

to the last complete sentence on the bottom of page 4, which reads as follows:

A second possible interpretation is that the standards would be subject to modification by the conference or by the hearing board, as well as by the court.

I do not consider that the court is given the function that that sentence suggests is given, either under present law or under S. 4. Now, beyond that, I don't think that either of us can amplify this any further.

I am sorry to have interrupted your statement by this extended colloquy, Mr. von Frank. Why don't you go on with the rest of it? Mr. VON FRANK. I am in the middle of page 5.

Senator MUSKIE. On a different subject.

Mr. VON FRANK. On another phase of the same thing.

PREVENTION OF POLLUTION

Recently there has been special emphasis on prevention of pollution before it occurs, and few would disagree with President Johnson's assertion that there should be legal power for such prevention. Viewed in this light, is section 5 of S. 4 a satisfactory approach, or is it needed?

First, most States already have laws with prevention powers, employing various means of requiring prior approval. Second, the Secretary already has authority under sections 2 and 4 of the Water Pollution Control Act to develop comprehensive pollution control programs, for conducting research and studies relating to the prevention of water pollution, and to conduct investigations to find solutions to specific community problems.

Carried on jointly with State or other local authorities, these activities could lead to particular definitions of water quality requirements as standards. Third, the procedure authorized under the present provisions of section 8 of the act can be used to arrive at standards which not only remedy existing pollution but also prohibit future pollution. Accordingly, we strongly urge elimination of section 5 from S. 4 as being unnecessary and superfluous for accelerated progress in solving the many but highly varied problems of water pollution control, and less likely to achieve the desired objective in a cooperative atmosphere than other available approaches.

FULL PARTNERSHIP APPROACH

We suggest that added Federal influence, in preventing new pollution and also in remedying existing problems, can be made effective most constructively by wider employment of the tool of Federal-State partnership, where both State and Federal viewpoints receive expression. A prototype is already in being; namely, the Delaware River Basin compact. Under this scheme, water resources requirements— including standards of water quality-are assessed and managed in relation to other resources of an entire river basin. This insures orderly planning and coordinated administration, and guards against piecemeal development which might complicate one facet of the basin's problem while solving another. It provides for weighing and

balancing of many interests, all of which only rarely are fully compatible, so that progress will be equitably arranged.

Our association supported the Federal-State partnership approach in water resources planning considered by the 88th Congress, recently reintroduced as S. 21, and at the same time urged that a similar mechanism be encouraged for implementation.

Therefore, we take this opportunity to urge again that such full Federal-State partnership approach be adopted in lieu of that represented by section 5 of S. 4.

SHELLFISH

I turn now to a provision of S. 4 which has received comparatively little attention but which appears to us to be fraught with difficulty. Section 5(c) of the bill would empower the Secretary to call an enforcement conference on his own motion if "he finds that substantial economic injury results from the inability to market shellfish or shellfish products in interstate commerce because of pollution referred to in subsection (a) and action of Federal, State, or local authorities."

We agree that pollution should not damage shellfish if it can be prevented by any reasonable measures. However, under section 8 of the act, the Secretary has authority to call an enforcement conference whenever the health and welfare of persons in the State are endangered by discharges of persons in another State. As Senator Muskie pointed out in the floor debate last October 16, "welfare" includes injury to fish life. With the consent of the State authorities, he can also call such a conference in purely intrastate pollution situations. For this reason, we feel that the "shellfish" amendment to redesignated subsection (d) is not needed. We are particularly concerned that this provision not be adopted because it gets away from the basic conception that the Water Pollution Control Act is founded upon the power of Congress to regulate navigable waters. The proposed provision rests instead upon the concept that whenever products in interstate commerce are damaged by pollution, the Federal authorities may intervene. If this concept were to be extended to products other than shellfish, then we would have to abandon all pretense that the States have a primary role in abating pollution, for pollution of the remotest farmer's pond could be connected with his products moving in interstate commerce.

Senator MUSKIE. May I ask you one or two questions here?

The Federal authorities in the Department of Health, Education, and Welfare have the power now to absolutely prohibit the transportation in interstate commerce of shellfish which in its judgment are harmful to health because of pollution.

Do you think the Federal Government ought to have that authority or should it be repealed?

Mr. VON FRANK. Yes; I think that that authority should be held there. The distinction that we are making here, and trying to highlight

Senator MUSKIE. May I ask my several questions together, and then you can react? So you agree that the Federal power should be used to prohibit the transportation in interstate commerce of contaminated clams and oysters? These are the particular kinds of shellfish which are subject to pollution

Mr. VON FRANK. Yes; I would.

Senator MUSKIE (continuing). And which could be injurious to health because of pollution, and you agree that that power should exist as it does now? But you also agree that the exercise of that power can put people out of business?

Mr. VON FRANK. Yes.

Senator MUSKIE. As it has?

Mr. VON FRANK. Yes, sir.

Senator MUSKIE. You feel that the Federal Government should have the power to take a decision which puts people out of business, but that it should have no power to do anything to help them stay in business? Is this your position?

Mr. VON FRANK. I have to answer that with more than a "yes" or "no" answer. There is no question that if a wrong has been committed, recourse should be available. The point in this section of this testimony is related to introducing into water pollution legislation a concept which does not now exist. If you talk about everything that moves in interstate commerce

Senator MUSKIE. But we are not. We are talking about a situation where the Federal Government now has power over a situation. It has power to put people out of business by enforcing health standards. This only relates to this kind of a situation, and we are not talking about power over all goods moving in interstate commerce. We are talking about a situation where, because of health standarus and health requirements, the Federal Government now has power to put a man out of business. This is a limitation, and I think you ought to recognize this in your reply.

Mr. VON FRANK. I am not a lawyer, but I don't see the distinction between, let us say, shellfish and the movement of beef in interstate

commerce.

Senator MUSKIE. There are inspection powers on the part of the Federal Government in connection with beef, but this is a different kind of controllable situation. Presumably the man who raises beef has under his control all of the elements dealing with the quality and the purity and the health standards of that beef.

Here you are talking about a situation where the man who digs the clams or harvests the oysters does not have all of the elements which affect the purity of that food under his control. It is a very special situation.

The poor fellow who harvests clams at the mouth of a river is subject to everything that happens on that river, hundreds of miles of it, and thousands of miles away from where he is conducting his business.

He doesn't control it. The Federal Government, because he is a victim of this situation, can put him out of business by prohibiting him from selling this product.

All we are saying in S. 4 is that if the Federal Government has this power, which is so punitive and so final, that it ought to have some authority, and it is not very punitive authority, to help him deal with the situation which gives rise to that punitive action. I think this is limited power.