ference chairman makes up as he goes along. A review of title 42 of the Code of Federal Regulations indicates that the Secretary of the Department of Health, Education, and Welfare has failed to promulgate any rules or regulations which would apply to conference proceedings, although he has promulgated regulations which apply to the hearings under section 8(e) of the Federal Water Pollution Control Act. This, then, is a serious defect in the manner in which the Federal Water Pollution Control Act is being administered by the Secretary.

Section 10(a) of the Federal Water Pollution Control Act states as follows, and I quote:

"SEC. 10. (a) The Secretary is authorized to prescribe such regulations as are necessary to carry out his functions under this act."

In order to prescribe such regulations, the Secretary is required by law to promulgate them in the Federal Register, a daily publication of all regulations issued by Federal agencies, which are then incorporated into the Code of Federal Regulations. Only when they have been so promulgated do these regulations have the force and effect of law.

As I have stated previously, the Secretary has not seen fit to prescribe any regulations to cover the conference procedure. There are no ground rules which the State of New Hampshire can use as a guide in determining what position to take now that it has been informed that the Secretary has called a conference under the enforcement sections of the Federal Water Pollution Control Act. We have the curious situation then where the Secretary has promulgated extensive regulations to govern the second step of the enforcement proceedings, but has promulgated no regulation governing the first part of the enforcement proceedings wherein the Secretary obtains his conclusions on the basis of which he can recommend remedial action and then start the second part of the enforcement proceedings, the so-called hearing procedure which can end up in court action.

To say that such a situation is unfair to the State of New Hampshire would be to grossly understate the situation. As we see it, it is akin to a situation where a lower court would say to a defendant in a criminal case or a civil case, for that matter, as follows: "There are no rules that govern the proceedings in this court. We will discuss your case, and as we go along we will make up the ground rules. Then we will decide the merits of the case. But you need not have any fear, if you do not agree with our decision because you can appeal our decision to a higher court where there are specific ground rules and where your rights will be protected." In effect, then, to state it another way, the Public Health Service officials have determined that the State of New Hampshire is guilty of polluting the waters of the Androscoggin River, and it remains guilty until it proves itself innocent.

To demonstrate that our concern is neither a fanciful nor an imaginary one, I will quote a portion of Mr. Stein's remarks at the proceedings held on September 24, 1962, here at Portland, Maine. As I indicated previously, Mr. Stein proceeded to hold a so-called conference with his own Federal representatives, although no conferees of the States of Maine and New Hampshire were present and participating. At page 103 of the transcript of those proceedings furnished to us, Mr. Stein states as follows, and I quote:

*** ** Again I might say we would like to hear from the States before we come to any conclusion, but it is pretty obvious from the report that Mr. Sidio gave that pollution in New Hampshire is in the amounts he said it was here, or indicated it was, and that it got into Maine, and that there was endangering of the health and welfare of people in Maine from sources in New Hampshire."

This would be akin to a statement of a judge in a criminal case to a defendant at the conclusion of the prosecution's case to the following effect: "Now that I have heard the prosecution's case I have pretty much made up my mind that you are guilty but you can tell me your side of the case if you wish to do so, even though it probably will not change my mind."

Preceding this statement by Mr. Stein, also on page 103 of the transcript of these proceedings, is the following statement by him, and I quote again:

***The conclusions of the Federal report were that, first, the pollution interfered with the river so as to preclude its development as a public water supply; interfered with general recreation and its development for industrial supplies requiring higher quality than that available; with the propagation of fish and the passage of anadromous fish; with the harvesting of shellfish from the Merrymeeting Bay area; and with the livestock watering situation."

This is indeed a very interesting statement in the background of the way these proceedings have developed thus far. Although I am not here to comment upon the merits of the technical matters involved here, at least one portion of this statement deserves comment at this point. I refer to Mr. Stein's statenent that pollution in the Androscoggin River in the State of New Hampshire in some way interfered with the harvesting of shellfish from the Merrymeeting Bay area. According to the technical people with whom I discussed this statement, I am informed that such a statement is just short of being astounding. Such a statement is technically incompatible with the facts. If that be so. then this clearly illustrates the tenuousness of the position taken here by the Secretary of the Department of Health, Education, and Welfare and by the Public Health Service officials. I will refer to the other conclusions stated by Mr. Stein further along in my statement.

Another fact deserves mention at this point with reference to conference procedures or the lack of them. After the proceedings held here on September 24, 1962, representatives of the New Hampshire Water Pollution Commission. the Maine Water Improvement Commission, and the New England Interstate Water Pollution Control Commission, met with a regional representative of the Public Health Service, Mr. Herbert H. Rogers. One of the questions asked of Mr. Rogers at this informal meeting was what conference procedures were there. or stated otherwise, what are the ground rules that apply to a conference, as to how it is held, what is discussed, and so on. Mr. Rogers could not answer this question, for actually there were no rules then in existence to govern the conference procedure. After this meeting, however. Mr. Rogers did furnish to our water pollution commission a seven-page document entitled "Conference Procedures." Obviously, someone in the Public Health Service drafted this document after the question was raised subsequent to September 24, 1962.

I will not bother to read this document into the record, but I will attach this carbon copy of it to my statement and I will incorporate it here by reference. It is marked "Exhibit 1."

(The document referred to was not submitted to the reporter.)

The significance of tihs is simply this: Under the terms of the Federal Water Pollution Control Act only the Secretary of the Department of Health, Education. and Welfare can call a conference, and only the Secretary can prescribe regulations to govern conference procedures. What we have here is a situation where Public Health Service officials have attempted to promulgate regulations. a function reserved only to the Secretary under section 10(a) of the Federal Water Pollution Control Act. This certainly demonstrates the basic misunderstanding of the Public Health officials of their functions under this act. and it illustrates an unwarranted attempt by Public Health Service officials to arrogate to themselves authority which no statute has conferred upon them.

Another informal meeting was held on December 10, 1962, at Portsmouth, N.H. Mr. Stein and Mr. Peter Kuh, from the Washington office of the Public Health Service, and Mr. Herbert H. Rogers, a regional program director of the Public Health Service, attended this meeting. I was also present at this meeting. along with the same representatives of Maine, New Hampshire, and the New England Interstate Water Pollution Commission who attended the previous meeting.

At this meeting, all parties present requested that the Public Health Service stop any further formal conference procedures and instead discuss the Androscoggin River situation on an informal basis with representatives of the two States concerned. Mr. Stein informed us that only the Secretary could call off the enforcement proceeding.

On January 3, 1963, I wrote to the Secretary of the Department of Health, Education, and Welfare, and after outlining the entire situation in some detail. requested that he call off the conference procedure at this time. In the meantime. the Secretary had called a conference for today, February 5, 1963. On January 25, 1963, I received a letter from Assistant Secretary James M. Quigley informing me merely that the conference would go on as scheduled. None of the legal points I raised in my letter were answered.

This, then, is the entire factual background leading up to the proceedings here today. I have outlined them in some detail in order to highlight and make clear the legal position which we take here today and which I will now discuss.

Our legal position may be stated briefly as follows: The Secretary has no jurisdiction to start enforcement proceedings against the State of New Hampshire under section 8 of the Federal Water Pollution Control Act with reference to the Androscoggin River because of the ***1 chapter 149, entitled "Water Pollution and Disposal of Wastes," the provisions of chapter 79 of the 1954 Revised Statutes of Maine dealing with water pollution, and the provisions of the New England interstate water pollution control compact, enacted by the legislatures of both Maine and New Hampshire and approved by Congress, in the light of the specific provisions of section 1(a), 1(b), and 8(b) of the Federal Water Pollution Control Act, and the legislative intent of Congress expressed in the House reports which I have previously quoted.

Stated more simply perhaps, our legal position is this: The Legislature of the States of Maine and New Hampshire have reserved to themselves by statute the right to classify according to use all surface waters in their respective States and have set forth a definite procedure for determining such classification. There exists a New England interstate water pollution control compact, to which both Maine and New Hampshire belong, and which is dedicated to abate existing pollution. The Federal Water Pollution Control Act specifically states it 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 also specifically states that nothing in the act shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters of such States. By this enforcement proceeding, the Secretary is attempting to determine what classification according to use the Androscoggin River is to be put in. This the States of Maine and New Hampshire have reserved by statute to themselves. The Secretary is, therefore, without jurisdiction to act in this matter, and his actions in calling this conference are without sanction of law.

The issue is not whether or not pollution exists in the Androscoggin River. The Federal Water Pollution Control Act does not even define the term "pollution." Indeed, it is a term that defies exact definition. Its definition depends upon the frame of reference within which it is used. In some ways all water is polluted. It depends on what criteria are being used since there is no universal definition of the word.

The issue here is whether the Secretary, under the guise of an enforcement proceeding under the Federal Water Pollution Control Act, can come in and tell the New Hampshire Legislature how it must classify the Androscoggin River, and to what use such waters may be put by the State of New Hampshire. Such action by the Secretary amounts to a contravention of the clear intent and purpose of the Federal Water Pollution Control Act as specifically expressed therein, and represents an attempt to usurp and preempt rights the New Hampshire Legislature has reserved to itself.

I will not go into the provisions of chapter 149 of the New Hampshire Revised Statutes in great detail, but I will refer briefly to a few of its provisions. Section 3 of our law sets forth the standards for classification of surface waters of the State of New Hampshire. It provides that there shall be four classes or grades of surface waters: Class A, class B, class C, and class D, according to the uses determined for these waters. Section 6 of our law sets forth the procedure to be followed by our water pollution commission in determining the proper classification. After they determine the classification in this way, the law requires them to recommend the classification to the legislature. In the final analysis, it is our State legislature that makes the classification. The Maine Legislature enacted a similar law and Maine has a similar statute.

When finally classified under our law and that of Maine, the classification of the Androscoggin River might not include its use as a public water supply. Yet the conclusions stated by Mr. Stein on September 24, 1962, to which I have previously referred, include one which states that pollution in the Androscoggin River in New Hampshire interferred with the river so as to preclude its development as a public water supply in Maine. Under the present circumstances this cannot be a valid conclusion.

I would again emphasize and make clear our disagreement with the Federal position in this matter; namely, that pollution subject to abatement under the

1 Line of copy missing in the submitted exhibit.

provisions of section 8 of the Federal Water Pollution Control Act, as amended in 1961 (33 U.S.C. 466g), is occurring. Accordingly, it is to be noted in the record that the State of New Hampshire hereby preserves whatever rights and privileges as are available to this State under said statute, and our appearance here today should in no wise be considered as prejudicing our firm intention to retain jurisdiction over the matter of establishing an adequate pollution control program for the Androscoggin River and, for that matter, all other surface waters of the State as defined in R.S.A. 149: 1, V.

Our sole purpose is to place certain pertinent information before you which, in our judgment, adequately demonstrates the soundness of the State of New Hampshire's position in opposing the Federal Government's precipitous action in this matter remarking the Androscoggin River. Furthermore, we are strongly convinced that a complete statement such as I am presenting, incorporated in the record, is essential to and will result in a proper understanding on the part of the public, the press, and other interested individuals as concerns the reasonableness of the State of New Hampshire's attitude relative to this Federal enforcement proceeding.

66 *

At this time I would again call to the attention of the chairman that the declaration of policy contained in the Federal Act (sec. 1(a), Public Law 660, 84th Cong.) specifically provides that it is *the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution * Paragraph (b) of the same section stipulates that, "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 of such States." It is difficult, indeed, in the light of such explicit language, to understand or accept the decision on the part of Federal authorities to insist upon a conference proceeding in the light of the expressed desire by the State and interstate agencies involved, that the subject of pollution control in the Androscoggin River watershed be investigated and resolved at lower levels of government in accordance with appropriately enacted State legislation.

I am sure, Mr. Chairman, you are aware that the laws dealing with pollution control in the States of New Hampshire and Maine to which I have previously referred both require that the respective State legislatures shall adopt appropriate stream classifications before any enforcement activity may be undertaken by the State pollution control agencies. As yet, such classifications have not taken place, although the machinery for so doing has been placed in operation under sponsorship of the New England Interstate Water Pollution Control Commission which, incidentally, provides the proper forum for consideration of interstate water pollution problems in the New England area. It is also apparent from the statutes governing in the two States that decisions with regard to legitimate stream uses flow from whatever systems of stream classifications as are adopted by the respective State legislatures. In addition, article VI of the New England interstate water pollution control compact, to which I have previously referred, and in which all of the New England States are signatory, provides as follows, and I quote:

"Each of the signatory States pledges to provide for the abatement of existing pollution and for the control of future pollution of interstate inland and tidal water as described in article I, and to put and maintain the waters thereof in a satisfactory condition, consistent with the highest classified use of each body of water."

It is evident, therefore, Mr. Chairman, the compact having had congressional approval, that the States in the New England area have been empowered to undertake enforcement proceedings relative to interstate pollution problems on a classification-use basis rather than upon some such arbitrary method as is outlined in your report whereby enforcement action is suggested whenever there is damage to any water use, whether or not that particular use is reasonably necessary or economically feasible.

In view of the legislature's interest and responsibilities in regard to the subject of pollution control, it is not surprising, therefore, that as one of its first actions in the current session the general court adopted a resolution setting forth its position in distinct and direct language whereby the Secretary of Health, Education, and Welfare is respectfully requested to honor the intent of the Federal Water Pollution Control Act by giving the State of New Hampshire a reasonable opportunity to perform its role and function in the control of pollution in the Androscoggin River watershed. At this time I

would like to read the resolution into the record inasmuch as it summarizes the New Hampshire position in very specific terms. I quote the resolution:

"Whereas the Department of Health, Education, and Welfare has announced its intention to proceed with enforcement action under the Federal Water Pollution Control Act in the Androscoggin River watershed, an interstate stream between the States of New Hampshire and Maine, and

"Whereas the paper industry in particular has invested heavily for pollution control measures in this watershed under a serious of court decrees by the Supreme Judicial Court of Equity for Androscoggin County which has resulted in substantial improvement in stream quality and the industry is continuing to expend money for said purposes as rapidly as financial capacity allows, and "Whereas the legislatures of the two adjoining States by statute have reserved the right to adopt systems of stream classifications which provide the legal framework for enforcement action as well as the basis for determining the lawful uses for said waters, and

"Whereas the respective water pollution control agencies of the two affected States are fully competent, prepared, and have a coordinated plan for the conduct of such additional investigations, studies, and surveys as are required in order that both State legislatures may simultaneously adopt appropriate stream classifications for the Androscoggin River watershed, and

"Whereas the States of New Hampshire and Maine, along with the other New England States and the State of New York, are joined in the New England Interstate Water Pollution Control Compact (approved by Congress in 1947), under which all of the States are pledged to abate pollution of interstate waters within the compact area, and

"Whereas the declared policy of the Federal Water Pollution Control Act is to recognize, preserve and protect the primary responsibilities and rights of State and interstate agencies to prevent and control water pollution: Now, therefore, be it

"Resolved by the Senate, the House of Representatives concurring, That the General Court of the State of New Hampshire having due regard for the protection of the present and future economic welfare of the area, is convinced that the objective of an overall comprehensive pollution control program for the Androscoggin River Valley can be best achieved by local, State, and interstate authorities free from Federal intervention; and be it further

"Resolved, That the General Court of the State of New Hampshire strongly urges that the Secretary of Health, Education, and Welfare in the operation of the Federal program, adhere to the express intent of the Federal Water Pollution Control Act; namely, that the primary responsibility for the establishment of adequate water pollution control programs remain with the duly authorized State and interstate agencies; and further, whenever in his judgment satisfactory progress toward pollution control is not being made, to give notice thereof to the State and interstate agencies involved before undertaking any action whatever under the Federal Water Pollution Control Act, and be it further

"Resolved, That the members of the New Hampshire delegation in the Congress of the United States, be requested to assist in every way possible in the State of New Hampshire's effort to retain jurisdiction over the pollution control program for its portion of the Androscoggin River watershed; and be it further "Resolved, That the secretary of state be instructed to transmit a copy of this resolution to the Secretary of Health, Education, and Welfare and to each member of the New Hampshire delegation in the Congress of the United States." Whether intended or not, the calling of a conference by Federal authority without benefit of a request from or consultation with either of the affected States, inevitably results in a loss of confidence on the part of the general public in the integrity of pollution control efforts at the State level. That this is so cannot be disputed, as witness the wake of unfavorable publicity which was generated both prior and subsequent to the September 24, 1962, session scheduled by Secretary Celebrezze for Portland, Maine. The damage thus produced will take months and even years to repair, which it can hardly be held, constitutes progress or cooperation in the common objective of establishing adequate programs for pollution control in interstate waters. In this respect, it is heartening to us in New England to observe that States in other areas of the Nation are also beginning to voice their distress at this problem of Federal intervention which, hopefully, may have the result of bringing about a more discriminating application of Federal enforcement provisions by the Secretary of the Department of Health, Education, and Welfare.

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