In order to make our legal position clear, I will review briefly, first of all, some of the pertinent provisions of the Federal Water Pollution Control Act, which is the law under which the Secretary of the Department of Health, Education, and Welfare purports to be acting in this case. Any action of the Secre tary in this case must be in conformity with the provisions of this act, and his actions in this case are proper only if they comply with its provisions. We seriously question not only the propriety but also the legal validity of the Secretary's action with respect to the initiation of enforcement proceedings against New Hampshire with reference to the Androscoggin in the face of the clear and explicit provisions of the Federal Water Pollution Control Act. In our judgment, the Secretary's actions in this case constitute an attempt on his part to usurp and preempt the rights, powers, and responsibilities in this instance of both the States of New Hampshire and Maine, and such actions, we maintain, are specifically prohibited by the Federal Water Pollution Control Act.

The Federal Water Pollution Control Act was originally enacted by the Congress in 1948. It was amended in 1956 and then again in 1961. The basic purpose of the act is the prevention and control of water pollution in the waterways of the Nation. On the Federal level, the act is administered by the Secretary of the Department of Health, Education, and Welfare. Within that Department, the Public Health Service is charged by the Secretary with the responsibility of administering the act.

Basically, the Federal Water Pollution Control Act seeks to accomplish its purpose by stressing cooperation between State, interstate, and Federal agencies. The act directs the Secretary, in cooperation with State and interstate water pollution control agencies, and with municipalities and industries involved, to develop comprehensive programs for eliminating or reducing the pollution of interstate waters and tributaries thereof and improving the sanitary condition of surface and underground waters. To this end the act provides for cooperative research, investigation, and training in this field. The act also provides for grants to States and municipalities for purposes of water pollution control programs. The act directs the Secretary to encourage cooperative activities by the States for the prevention and control of water pollution. By way of summary, then, the whole thrust of the act is one of cooperation among State. interstate, and Federal agencies involved in the area of water pollution control.

Let us examine several provisions of the act in more detail which have a direct bearing upon the legal position which the State of New Hampshire is taking in this case. First of all, section 1(a), which appears under the heading "Declaration of Policy," states as follows, and I quote:

"Section 1. (a) In connection with the exercise of jurisdiction over the waterways of the Nation and in consequence of the benefits resulting to the public health and welfare by the prevention and control of water pollution, it is hereby declared to be the policy of Congress to recognize, preserve, and protect the the primary responsibilities and rights of the States in preventing and controlling water pollution, to support and aid technical research relating to the prevention and control of water pollution, and to provide Federal technical services and financial aid to State and interstate agencies and to municipalities in connection with the prevention ad control of water pollution. To this end. the Secretary of Health, Education, and Welfare (hereinafter in this Act called the 'Secretary') shall administer this Act."

This certainly is a clear expression on the part of Congress of its legislative intent in enacting this legislation. The key phrase in this declaration of policy is the part which states as follows, and I quote again :

*** 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*

It is clear that Congress did not intend to take away any of the rights and responsibilities of the individual States in the field of preventing and controlling water pollution. The Federal Water Pollution Control Act was clearly intended to supplement and assist State action in this field, not to usurp or preempt it. To make this even more manifestly clear, the Congress stated in section 1‍(b), under the declaration of policy, as follows:

"(b) Nothing in this Act shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States."

This is the background and the frame of reference within which the remaining provisions of the Federal Water Pollution Control Act must be interpreted.

particularly the provisions of section 8, which is entitled "Enforcement Measures Against Pollution of Interstate or Navigable Waters." This is also the background and the frame of reference within which the Secretary of the Department of Health, Education, and Welfare must administer the provisions of this act, particularly the enforcement provisions to which I will now refer.

Section 8 of the Federal Water Pollution Control Act contains the so-called enforcement provisions of the act. This section of the act gives the Secretary the authority to commence enforcement proceedings against States under certain circumstances, which can end in court action to compel a State to abate pollution in interstate or navigable waters.

Consistent with the declaration of policy contained in section 1 of the act to which I have previously referred, section 8(b) states as follows:

"(b) Consistent with the policy declaration of this Act, State and interstate action to abate pollution of interstate or navigable waters shall be encouraged and shall not, except as otherwise provided by or pursuant to court order under subsection (g), be displaced by Federal enforcement action."

Again Congress clearly sets forth its intent that the primary jurisdiction over controlling and preventing of water pollution is to rest with the individual States, and that Federal enforcement proceedings are to be used only as a last resort in a most serious case.

Sections 1(a) and 1(b) and 8(b) of the Federal Water Pollution Act contain the key to the legal position which the State of New Hampshire is taking here today. I will amplify this position in some detail later in this statement.

Let us examine the remaining provisions of section 8 which refers to enforcement measures by the Secretary under the act. Section 8(a) makes the pollution of interstate or navigable waters in or adjacent to any State which endangers the health or welfare of any persons, subject to abatement. Section 8(c) defines the initial steps to be taken by the Secretary in starting the enforcement proceedings to abate pollution of interstate or navigable waters which can end in court action against the State concerned.

Section 8 (c) (1) provides, first of all, as follows:

“(c) (1) Whenever requested by the Governor of any State or a State water pollution control agency, or (with the concurrence of the Governor and of the State water pollution control agency for the State in which the municipality is situated) the governing body of any municipality, the Secretary shall, if such request refers to pollution of waters which is endangering the health or welfare of persons in a State other than that in which the discharge or discharges (causing or contributing to such pollution) originates, give formal notification thereof to the water pollution control agency and interstate agency, if any, of the State or States where such discharge or discharges originate and shall call promptly a conference of such agency or agencies and of the State water pollution control agency and interstate agency, if any, of the State or States, if any, which may be adversely affected by such pollution. Whenever requested by the Governor of any State, the Secretary shall, of such request refers to pollution of interstate or navigable waters which is endangering the health or welfare of persons only in the requesting State in which the discharge or discharges (causing or contributing to such pollution) originate, give formal notification thereof to the water pollution control agency and interstate agency, if any, of such State and shall promptly call a conference of such agency or agencies, unless, in the judgment of the Secretary, the effect of such pollution on the legitimate uses of the waters is not of sufficient significance to warrant exercise of Federal jurisdiction under this section."

Section 8 (c) (1) then goes on to provide as follows:

*** The Secretary shall also call such a conference whenever, on the basis of reports, surveys, or studies, he has reason to believe that any pollution referred to in subsection (a) and endangering the health or welfare of persons in a State other than that in which the discharge or discharges originate is occurring.'

This last part of section 8(c)(1) is the provision under which the Secretary purports to be acting in this case since it is a fact that neither the Governor of the State of Maine nor the Governor of the State of New Hampshire, nor the water pollution control agencies of either State, nor the governing body of any municipality in either State, has requested these Federal enforcement proceedings.

Sections 8(c) (2) and (3) of the act refer to the "conference" to be called as the initial step in the enforcement proceeding.

Section 8(d) of the act gives the Secretary authority to recommend remedial action to the appropriate State water pollution control agency if he believes, at the conclusion of the conference, that effective progress toward abatement of such pollution is not being made and that the health or welfare of any persons is being endangered. Sections 8(e) and 8(f) outline a formal hearing procedure and court action to be taken if the Secretary's recommendations are not followed. In order that the intent of the Congress in enacting the Federal Water Pollution Control Act be made perfectly clear, I will quote certain excerpts from committee reports of the U.S. House of Representatives. House Report 1446 deals with the Water Pollution Control Act Amendments of 1956. Under the heading of "Purpose" this House report states in part as follows:

"This bill would amend the Water Pollution Control Act by replacing it with new provisions designed to extend and strengthen the act.

"The bill as reported reemphasizes the policy of the Congress to recognize, preserve, and protect the primary rights and responsibilities of the States in controlling water pollution.

"S. 890 as passed by the Senate would provide a legislative base for the cooperative program which the Public Health Service is carrying on with the State and interstate pollution control agencies. The objective of these Federal activities is to support and assist State and interstate agencies.

"The commitee is impressed with the seriousness of the increasing water pollution problem and the need to control pollution as a significant measure for conserving the Nation's water resources. There are extensive public expenditures for construction of large-scale projects to develop national water resources. The abatement and prevention of water pollution is essential to the full realization of these developments. The committee is convinced that primary responsibility for regulatory control of water pollution should remain with duly constituted State and interstate authorities. Regulatory authority at the Federal level should be limited to interstate pollution problems and used on a standby basis only for serious situations which are not resolved through State and interstate collaboration. Considering our industrial and metropolitan expansions, water pollution is an involved and complex problem from both the administrative and technical points of view. The committee believes there is a real need for Federal assistance designed to support, stimulate, and complement State efforts." Under the heading "Changes in Existing Law" and the subheading thereunder entitled "State-Interstate-Federal Collaboration on Interstate Pollution Problems," this House report states as follows:

"With respect to interstate pollution-where pollution from one State affects the health and well-being of the people of another State-the bill authorizes a clear procedure designed to assist in the solution of such problems through cooperative State action. The Federal program would be available to aid in this work. Should a situation develop where a serious interstate pollution problem is not solved through joint State or interstate action, the bill authorizes Federal court action if requested by the affected State or with the consent of the State wherein the pollution originates. The bill modifies the present law by clarifying the procedures short of court action and adds the provision by which Federal court action can be taken if requested by the affected State.

"It is the intent of the committee that the Surgeon General will work with State water-pollution control authorities and, where they exist, with interstate authorities, before proceeding with enforcement provisions of section 7. Further where State or interstate actions are taken which demonstrates reasonable progress toward solution of pollution problems, the Surgeon General shall not initiate interstate Federal enforcement measures.

"The committee believes the procedures authorized in the bill constitute a reasonable balance between the primary rights of the States to control water pollution within their boundaries, and to rights of States seriously affected by pollution from another State to have available to them a practical remedy. "The committee has restored the provision in the existing act that the courts. before entering a judgment, are to give consideration to the practicability and to the physical and economic feasibility of securing abatement of any pollution proved."

House Report 306 deals with the Water Pollution Control Act Amendments of 1961. Under the heading of "Major Provisions of the Bill" and the subheading thereunder entitled "States Rights and Responsibilities," this House report states as follows:

"The bill reaffirms and clarifies congressional policy to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution.

"Nothing in the bill is intended to impair or in any manner affect any right or jurisdiction of the States with respect to the waters of the States, including but not limited to the power, authority, and jurisdiction of the States to enforce State water pollution control laws and regulations.

"The committee has exercised extreme care to assure that the language of the bill will allow continued comprehensive action by the States in the field of water pollution control. There certainly can be no assumption that the Federal interest in the field of water pollution abatement authorized by this bill is so dominant as to preclude State action. The proposition is well established that the protection of the health and welfare of the citizens of a State is a proper subject for the exercise of the State police power. The bill provides specifically for cooperation with the States and its aim is to encourage and assist States and local communities in their efforts to control water pollution, not to usurp or preempt their rights, powers, or responsibilities in this field."

Those are the words of Congress, the words of our duly elected representatives-not my words.

With that review of the provisions of the Federal Water Pollution Control Act and the intent of the Congress in enacting it, I will now discuss the facts of this situation.

On September 4, 1962, the New Hampshire Water Pollution Commission received a notice signed by the Secretary of the Department of Health, Education, and Welfare notifying it that he was calling a conference under the provisions of the latter part of section 8(c) (1) of the Federal Water Pollution Control Act which I have quoted previously. This notice stated that the conference would take place on September 24, 1962, at Portland, Maine. As I have stated previously, the conference is the first step in an enforcement proceeding under section 8 of the Federal Water Pollution Control Act.

Section 8 (c) (2) of the Federal Water Pollution Control Act provides in part as follows:

"(2) *** Not less than three weeks' prior notice of the conference date shall be given to such agencies."

This notice we received was therefore legally defective in that it gave the New Hampshire Water Pollution Commission only 20 days' prior notice of the proposed conference instead of the 21 days specifically set down as a minimum by Congress.

In the words of a recent Federal court decision, in their anxiety they sliced the bacon too thin.

More important, however, was the fact that this written notice was the first knowledge our water pollution commission had that the Public Health Service officials were concerned with pollution in the Androscoggin River affecting the health or welfare of any persons in the State of Maine. In spite of all the provisions in the Federal Water Pollution Control Act directing the Secretary to cooperate with State and interstate agencies, and to develop mutual comprehensive programs for water pollution control, no prior discussion was had with the appropriate State officials in the States of Maine and New Hampshire, nor was any prior indication given that the Public Health Service considered pollution in the Androscoggin River a serious problem warranting Federal intervention. No preliminary discussions of any kind were held with our water pollution commission by any Public Health Service officials prior to calling this conference. In view of all the provisions in the Federal Water Pollution Control Act stressing cooperation among State, interstate, and Federal agencies in this field, this fact alone makes us seriously question the motives of the Public Health Service officials in calling this so-called conference.

The notice calling the "conference" was defective also in that it did not delineate what the purpose of the conference was and what would be discussed at such conference.

When our commission received this notice, they held a meeting as soon as they could, on September 12, 1962, and thereafter wrote to the Public Health Service requesting a postponement of the "conference" in order to give them time to explore the basis of such a "conference" and also in order to properly prepare for it. Under the circumstances such a request was certainly reasonable. In this letter our commission pointed out the vagueness of the notice, its failure to state

the matters which would be discussed at the conference, and the reason for calling it, its failure to delineate the manner in which the conference would be conducted, and also our commission requested that it be given the benefit of whatever reports, surveys, and studies which had been accumulated by the Public Health Service officials on the basis of which they had determined to call a conference.

On September 17, 1962, 1 week before the scheduled "conference," our commission received a copy of a "Report on Androscoggin River," dated August 1962, from the Public Health Service. With the "conference" only a week away, this left them with insufficient time to review the document properly. Subsequent review of this document established to our commission that the factual data contained therein was outdated.

On Thursday, September 20, 1962, our commission received a letter from Mr. Murray Stein, Chief Enforcement Officer of the Public Health Service, indicating that their request for a postponement was denied. On Friday morning, September 21, 1962, our commission requested me, as their legal representative, to telephone Secretary Anthony J. Celebrezze and verbally request a postponement of the "conference" called for the following Monday, September 24, 1962. I tried all day to reach Mr. Celebrezze by telephone but he was unavailable. In the late afternoon of that day, I finally reached Assistant Secretary James M. Quigley. Mr. Quigley assured me as a brother attorney that my request was a reasonable one and indicated to me that he would attempt to call off the conference under the circumstances, but that he wanted to check on it first and call me back. Instead of Mr. Quigley calling me back, Mr. Stein called me back and said that the conference would go on as scheduled and that he had no authority to do anything further in the matter.

Under the circumstances, I advised our commission not to attend or participate in any way in the conference. Assistance Attorney General William J. O'Neil went to the conference as the legal representative of our commission for the sole purpose of renewing our request, and after the request was denied by Mr. Stein, he, along with representatives of Maine and of the New England Interstate Water Pollution Control Commission, left the conference room and did not participate further. Although there were no representatives of the only two States directly interested and concerned, Mr. Stein proceeded to hold an alleged "conference," and I put that word in quotes because by any stretch of the imagination this was not a "conference" either as a practical matter or as a matter of legal contemplation as the term "conference" is used in the Federal Water Pollution Control Act.

Our objections to the indefiniteness of the notice, to the fact that it was not given in time, and to the proceedings held on September 24, 1962, at Portland. Maine, without designated conferees of the States of Maine and New Hampshire being present are neither technical nor merely frivolous. Our objections are serious legal ones because the end result of such proceedings would have serious economic, social, and financial consequences upon the State of New Hampshire as a whole and upon certain communities and industries along the Androscoggin River in the State of New Hampshire in particular. Since this is true, we are entitled to preserve our legal rights in every step of an enforcement proceeding such as the present one.

The Federal Water Pollution Control Act does not define the word "conference." In the ordinary meaning of the word, it may be defined as a meeting of several persons for deliberation, for the interchange of opinion, or for the removal of differences or disputes. As used in the Federal Water Pollution Control Act it obviously means something more. Such a conference provides the Secretary with conclusions, on the basis of which he can recommend remedial action to the State concerned. If the recommended remedial action is not taken. the Secretary may enforce his recommendations by a hearing procedure and then by court action in the Federal district court.

The rights of parties in both civil and criminal proceedings in all of our courts, both State and Federal, are safeguarded by definite procedural rules. In criminal cases the accused is entitled to know what the charges are against him and he is protected by definite procedural and substantive safeguards. In civil cases, both parties are entitled to know the issues raised, and an orderly method is provided for determining these issues. There are definite ground rules set forth which govern these proceedings.

This is not true, however, with respect to the "conference" proceedings provided for in section 8(c) of the Federal Water Pollution Control Act. There evidently are no ground rules in such proceedings except those that the con