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were so active along the Merrimack River, now has changed because • of the fact that the textile industry is not as active as it at one time
Senator MUSKIE. Was this plan of action that is referred to in the letter in written form?
Dr. ANDERSON. No, sir; no.
Senator MUSKIE. Was it presented as one package at any one time as a program of action?
Dr. ANDERSON. I think as we had lunch on the road, I don't remember where we stopped, but we stopped in a restaurant. The four of us went in and we had lunch and during that luncheon period as I recall they did discuss the various steps that they were taking in the State of Massachusetts to abate pollution on the Merrimack River.
Senator MUSKIE. Did this appear to have been prepared in advance as a formal presentation to you to be made at that time?
Dr. ANDERSON. No; I would not say that it was a formal presentation. However, it was apparent from the way that they talked that it had been a well-thought-out plan on their part prior to our arrival. It wasn't something that they had conceived of at the moment.
Senator MUSKIE. For what reason did they present this plan of action to you at that time?
Dr. ANDERSON. Because of their concern and our concern about the condition of the Merrimack River.
Senator MUSKIE. Why did they feel they had to discuss it with you since all you were up there for was to discuss laboratory facilities?
Dr. ANDERSON. They were much interested in developing, if they could, their program for the Merrimack River, and they felt that it would be well for us to know what their plans were.
One of the questions that they asked us, for example, was did we have funds which we could grant to them for the conduct of their studies, which would augment or supplant, I suppose, the State funds.
Our reply was that we did not have moneys for that purpose because our funds were committed. They talked about enforcement, possible enforcement actions, and our replies to that were to the effect that, so far as we knew, there were no steps in action to initiate any enforcement action on the river, and we specifically pointed out that this did not mean that there might not evolve a situation in which section 8 and its provisions might be invoked as they were when the Governor requested us.
Senator MUSKIE. So you did discuss the question of enforcement and your authority for enforcement under section 8?
Dr. ANDERSON. Yes, sir. Senator MUSKIE. Now, earlier this morning when I asked you whether or not you had discussed your responsibility under section 8 with respect to the Merrimack River prior to February 12 you testified that you had not.
Dr. ANDERSON. I am sorry, if I did.
Senator MUSKIE. Your recollection when you answered that question was incorrect then?
Dr. ANDERSON. It is, I was thinking of the formal enforcement actions requested by the Governor.
Senator MUSKIE. Now, the letter from Mr. Taylor goes on to suggest that you made a commitment with respect to enforcement and I read:
It is our understanding following this discussion and in view of the plan above described :
(1) That the Public Health Service will not initiate any enforcement procedures for pollutio cor in connection with the Merrimack River and its tributaries in Massachusetts at this time or until it has been demonstrated that pollution abatement will not be effected within a reasonable time.
Did you make such a commitment at that time on October 27?
Dr. ANDERSON. We did not make that as a commitment, sir, but as a statement of fact. We told them of the provisions of the act which would require our action under certain circumstances.
We did tell them we did not have any plans for any enforcement action on the Merrimack at that time.
Senator MUSKIE. Now, did you reply to Mr. Taylor's letter denying that you had made such a commitment?
Dr. ANDERSON. No; we did not specifically deny that in Mr. Taylor's letter. Our reply was aimed at encouraging them to go ahead with their program as fast as they could under the concept that this would be a cooperative activity between the States and the Federal Government.
Senator MUSKIE. Well now, Mr. Taylor's letter definitely indicates that he considered he had such a definite commitment, does it not?
Dr. ANDERSON. Yes.
Senator MUSKIE. It says the Public Health Service will not initiate any enforcement procedures. Isn't it clear from his letter that one of the reasons why they initiated the discussion with you on October 27 was that he wanted to get a commitment from you that you would not undertake enforcement procedures.
Dr. ANDERSON. We told him we could not make a commitment with regard to future enforcement action on the river.
Senator MUSKIE. So when you were discussing it with him you thought it important to deny any commitment?
Dr. ANDERSON. Yes, sir.
Senator MUSKIE. Why didn't you consider it important to deny the commitment to which he referred in his letter of November 9?
Dr. ANDERSON. I don't know why we did not at that time, except it seemed unnecessary, since an intrastate matter was involved.
Senator MUSKIE. At that point, without objection from the committee Mr. Taylor's letter and Dr. Anderson's reply to that letter will be made a part of the record. (The letters referred to follow:)
THE COMMONWEALTH OF MASSACHUSETTS.
DEPARTMENT OF PUBLIC HEALTH.
State House, Boston, November 9, 1961. ROBERT J. ANDERSON, M.D., Deputy Chief, Bureau of State Services, Department of Health, Education, and 'Welfare, Public Health Service, Washington, D.C.
| DEAR DR. ANDERSON : This is to confirm our understanding of discussions re't tive to the Merrimack River held with you and Mr. Gordon McCallum of Foot Service and Mr. Joseph C. Knox, executive secretary of the New England Interstate Water Pollution Control Commission during our inspection of laboratory facilities in Massachusetts on October 27, 1961. It was explained at that time
that the Merrimack River enters Massachusetts from New Hampshire in a reasonably good condition and thus the responsibility for pollution abatement in Massachusetts rests with the Commonwealth and Merrimack River Valley communities in this State.
At that time the following plan of action by the Commonwealth was outlined:
1. To classify the Merrimack River and its tributaries in Massachusetts in conformity with the classification procedure of the New England Interstate Water Pollution Control Commission during the coming year.
2. To request an appropriation of $80,000 from the 1962 Massachusetts Legislature to bring up to date Senate No. 550 of 1947 which sets forth a plan for sewage treatment in the valley. The administration has indicated its approval of such legislation.
3. Also to introduce legislation established in 1962, a Merrimack River Valley authority to plan, finance, construct and operate pollution abatement facilities. The administration has also approved this form of legislation.
4. To request legislation to provide a small appropriation to become available July 1, 1962, to initiate and conduct a promotional program for pollution abatement in the valley.
5. To hold a conference to acquaint all parties and persons concerned of the above outlined program and to seek the united support of State and local officials, industry and the public. The Public Health Service will be invited to observe and to make such comments as might be appropriate.
It is our understanding, following this discussion and in view of the plan above described :
(1) That the Public Health Service will not initiate any enforcement procedures for pollution control in connection with the Merrimack River and its tributaries in Massachusetts at this time or until it has been demonstrated that pollution abatement will not be effected within a reasonable time.
(2) That the Public Health Service will not finance and/or conduct the necessary comprehensive study proposed by the Commonwealth to abate the pollution of the Merrimack River.
(3) That there is no Federal assistance available for construction of pollution abatement works except as provided under the Federal Water Pollution Control Act Amendments of 1961.
In the enactment of the Federal Water Pollution Control Act, Congress set for the policy that pollution control is the primary responsibility of the State and that the enforcement provisions of the act are only to be resorted to when State or interstate agencies are unable or unwilling to accomplish an effective abatement program.
In the particular case of the Merrimack River it appears that the Commonwealth is undertaking what will prove to be an effective program of pollution abatement. We believe this may be most readily accomplished through the administrative and enforcement resources of the Commonwealth. Very truly yours,
WORTHEN H. TAYLOR, Director, Division of Sanitary Engineering.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
Washington, D.C., December 8, 1961. Mr. WORTHEN H. TAYLOR, Director, Division of Sanitary Engineering, State Department of Public Health, State House, Boston, Ma88.
DEAR MR. TAYLOR: We are particularly pleased to learn from your letter of November 9, 1961, the plan of action which the Commonwealth of Massachusetts proposes to follow in abating the pollution of the Merrimack River. These steps appear sound and, if carried out in an orderly and timely manner, will be a real mark of progress. We are encouraged by the support you are evidently receiving for the plans which you and Mr. Knox recently outlined to Mr. McCallum and me.
With regard to the three points concerning the position of the Public Health Service, our past record will show that we have always scrupulously adhered to the statement of policy of the act which declares that the primary rights and responsibilities for abating water pollution rests with the States.
In the development of comprehensive programs, it is the clear intent of the law that we are not to duplicate programs developed by the States. If a State does develop a satisfactory comprehensive program, such program may well be adopted by this Department as part of any interstate comprehensive program which may be developed.
While the major Federal financial assistance program specifically for water pollution abatement is authorized by the Federal Water Pollution Control det, the Housing and Home Finance Agency administers programs which could provide financial aid for certain aspects of waste disposal systems.
As we told you and Mr. Knox, we share in your concern over the pollution of the Merrimack River and we will naturally be very much interested in the progress you are making. Sincerely yours,
ROBERT J. ANDERSON, Assistant Surgeon General, Deputy Chief, Bureau of State Services. Senator MUSKIE. At that point if you did make a commitment would you think it fair to suggest thăt anyone reading this correspondence would assume that there was such a commitment?
Dr. ANDERSON. Yes, I can see how a reader of that correspondence could come to that conclusion.
Senator MUSKIE. So far as the written record is concerned then you made a commitment on October 27, 1961, not to undertake enforcement proceedings on the Merrimack and you undertook-and you made that commitment, so far as the record shows, on the basis of such informal discussion as you had that day without any—
Dr. ANDERSON. Senator Muskie, I could not make a commitment of this sort. I am well aware of the authorities of the Secretary at that period in time, and
we discussed this, Mr. McCallum and I did, with Mr. Knox and Mr. Taylor on the occasion of that visit. I think their concern was that immediately we might have some plans on hand to enter an enforcement action in that area.
Senator MUSKIE. You had no authority to make such a commitment?
Dr. ANDERSON. No.
Senator MUSKIE. As you testified earlier that authority under seetion 8 resides solely in the Secretary and he had not delegated it to anyone? Dr. ANDERSON. That is my recollection.
Senator MUSKIE. And you knew that at the time. You knew at the time you had no authority to make such commitment.
Dr. ANDERSON. At the time I don't recall the exact dates now, with regard to the delegations of authorities, but the matter was certainly up in the air at that time. Senator MUSKIE. Well
Dr. ANDERSON. I mean it might have been up in the air at that time because I believe somebody mentioned here it was November 16
Senator MUSKIE. The record here shows that Mr. Quigley got his assignment in November?
Dr. ANDERSON. Yes.
Senator MUSKIE. That is when such delegations that were made were made, and this letter is dated November 9 and the discussion took place on October 27?
Dr. ANDERSON. October 27, yes, sir.
Senator MUSKIE. At that point you knew there was no authority in you to make such a commitment?
Dr. ANDERSON. That is correct.
Senator MUSKIE. And yet
Dr. ANDERSON. I didn't know where the authority might end up, but I assumed with the Secretary.
Senator MUSKIE. Mr. Taylor's letter in the first place, October 27, Mr. Taylor tried to get a commitment which you say you refused but in his letter of November 9 he refers to it as a definite commitment and you did not deny it.
Notwithstanding the fact that you knew you did not have the authority, notwithstanding the fact it was clear to you that he thought he had a commitment and you had approved his plan of action for cleanup of the Merrimack; is that not so?
Did not Mr. Taylor have every right to assume, that he had a commitment from you not to enforce, not to bring an enforcement procedure and that he had a commitment from you approving a plan of action on the Merrimack.
Did he not have that right to assume that?
Dr. ANDERSON. I believe he could choose to do so on the written record, yes, as far as the Massachusetts pollution was concerned.
Senator MUSKIE. So that when Governor Peabody requested action on February 12 of this year, the record insofar as he was concerned indicated that the Federal Government had looked into this, had considered the possibility of enforcement action under section 8, had decided not to bring such action, had committed itself not to and had approved a plan of action for the Merrimack.
Did Governor Peabody have a right to draw that conclusion of the status of the relationship between the Federal Government and the State government at that point?
Dr. ANDERSON. More than a year's period of time had elapsed between the two events for one thing. We were not
Senator MUSKIE. The period of time would serve to reenforce that impression on the part of the Governor; would it not? The last correspondence, there was correspondence in November and December of 1961 and that correspondence shows you made a commitment.
It shows that you approved a plan of action, and that you took no other steps subsequently over a whole year. Did not the Governor then have a right to assume that you had made a commitment not to enforce, but you approved a plan of action.
And you had no authority to make any commitment with respect to enforcement; is that not so?
Dr. ANDERSON. I don't know what the Governor of Massachusetts assumed.
Senator MUSKIE. I am asking you whether or not in your judgment he had the right to make that assumption?
Dr. ANDERSON. Yes.
Are there any other observations you would like to make on this incident?
Dr. ANDERSON. With regard to the visit that we had and the condition of the Merrimack River as it was described to us at that time, we stated to the two gentlemen the circumstances under which enforcement action could be instituted.
In other words, if the Governor of either State requested us to come in we would have to come in.