Be SEN OCR Al envionment OrOQIOM Publications of the Council on Environmental Quality:* Environmental Quality: The First Annual Report of the Council on Environmental Quality Ocean Dumping: A National Policy *Available at the U.S. Government Printing Office the | ri oresident’s - 9/] envionmentol OrOQOM US. compiled by the council on environmental quality march 1971 For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 - Price $2.25 Cat Sor Flo CHOSE TR v HCs0 Es P73 Of eWord Du BL For your convenience, we have assembled the President's Message on the Environment and specific information on the President's 1971 proposals. Included are the bills, the letters of transmittal to the Congress, and analyses of the proposed legislation. We have also included a brief description of several items which do not require legislation or for which legislation is being drafted. We hope that these materials will be helpful to you in more fully understanding the problems of our environment and the President's proposals for their solution. It is through more complete understanding and citizen participation that enhancement of our environment can become a reality. Russell E. Train, Chairman Robert Cahn Gordon J. MacDonald S tteeeie 8 = = Sm == Ze e—oeCmam mmm a = SpEeCacmae me contents Foreword iii | The President's Message on the Environment I Il The President's Proposals* 23 Sulfur Oxides Emissions Charges 25 Tax on Lead in Gasoline 29 Waste Treatment Facilities 31 Environmental Financing Authority 53 State Program Grants 63 Water Quality Standards and Enforcement 75 Pesticides 103 Recycling Wastes 139 Toxic Substances 143 Ocean Dumping 163 Noise 183 A National Land Use Policy 207 Legacy of Parks 223 Power Plant Siting 239 Mined Area Protection 271 Historic Areas 289 World Heritage Trust 303 Environmental Institute 305 *|n addition, because of the environmental risks from oil spills, the President again requested Congressional action on previously submitted treaties relating to oil spills and legislation submitted by the Department of Transportation on Coast Guard regulation of waterways and use of bridge-to-bridge radiotelephones on ships. the oresioent’s MEeSsO0e on the environment february 8, 19/1 To the Congress of the United States: Last August I sent to the Congress the first annual report on the state of the nation’s environment. In my message of transmittal, I de- clared that the report “describes the principal problems we face now and can expect to face in the future, and it provides us with perceptive guidelines for meeting them. . . . They point the directions in which we must move as rapidly as circumstances permit.” The comprehensive and wide-ranging action program I propose today builds upon the 37-point program I submitted to the Congress a vear ago. It builds upon the progress made in the past year, and draws upon the experience gained in the past year. It gives us the means to ensure that, as a nation, we maintain the initiative so vigorously begun in our shared campaign to save and enhance our surroundings. This program includes: Measures to strengthen pollution control programs —Charges on sulfur oxides and a tax on lead in gasoline to sup- plement regulatory controls on air pollution —DMore effective control of water pollution through a $12 billion national program and strengthened standard-setting and enforce- ment authorities —Comprehensive improvement in pesticide control authority —A Federal procurement program to encourage recycling of paper Measures to control emerging problems —Regulation of toxic substances —Regulation of noise pollution —Controls on ocean dumping Measures to promote environmental quality in land use decisions —A national land use policy —A new and greatly expanded open space and recreation program, bringing parks to the people in urban areas —Preservation of historic buildings through tax policy and other incentives —Substantial expansion of the wilderness areas preservation system —Advance public agency approval of power plant sites and trans- mission line routes —Regulation of environmental effects of surface and underground mining Further institutional improvement —Establishment of an Environmental Institute to conduct studies and recommend policy alternatives Toward a better world environment —Expanded international cooperation —A World Heritage Trust to preserve parks and areas of unique cultural value throughout the world 1970—A YEAR oF PROGRESS The course of events in 1970 has intensified awareness of and con- cern about environmental problems. The news of more widespread mer- cury pollution, late summer smog alerts over much of the East Coast, repeated episodes of ocean dumping and oil spills, and unresolved con- troversy about important land use questions have dramatized with dis- turbing regularity the reality and extent of these problems. No part of the United States has been free from them, and all levels of govern- ment—~Federal, State and local-—have joined in the search for solutions. Indeed, there is a growing trend in other countries to view the severity and complexity of environmental problems much as we do. There can be no doubt about our growing national commitment to find solutions. Last November voters approved several billion dollars in State and local bond issues for environmental purposes, and Federal funds for these purposes are at an all time high. The program I am proposing today will require some adjustments by governments at all levels, by our industrial and business community, and by the public in order to meet this national commitment. But as we strive to expand our national effort, we must also keep in mind the greater cost of not pressing ahead. The battle for a better environment can be won, and we are winning it. With the program I am outlining in this message we can obtain new victories and prevent problems from reaching the crisis stage. During 1970, two new organizations were established to provide Federal leadership for the Nation’s campaign to improve the environ- ment. The Council on Environmental Quality in the Executive Office of the President has provided essential policy analysis and advice on a broad range of environmental problems, developing many of our environ- mental initiatives and furnishing guidance in carrying out the National Environmental Policy Act, which requires all Federal agencies to devote specific attention to the environmental impact of their actions and pro- posals. Federal pollution control programs have been consolidated in the new Environmental Protection Agency. This new agency is already taking strong action to combat pollution in air and water and on land. —I have requested in my 1972 budget $2.45 billion for the pro- grams of the Environmental Protection Agency—nearly double the funds appropriated for these programs in 1971. These funds will provide for the expansion of air and water pollution, solid waste, radiation and pesticide control programs and for carrying out new programs. In my special message on the Environment last February, I set forth a comprehensive program to improve existing laws on air and water pol- lution, to encourage recycling of materials and to provide greater recrea- tional opportunities for our people. We have been able to institute some of these measures by executive branch action. While unfortunately there was no action on my water quality proposals, we moved ahead to make effective use of existing authorities through the Refuse Act water quality permit program announced in December. New air pollution control legis- lation, which I signed on the last day of 1970, embodies all of my recommendations and reflects strong bipartisan teamwork between the administration and the Congress—teamwork which will be needed again this year to permit action on the urgent environmental problems discussed in this message. We must have action to meet the needs of today if we would have the kind of environment the nation demands for tomorrow. I. STRENGTHENING PoLruTiON CONTROL PROGRAMS The Clean Air Amendments of 1970 have greatly strengthened the Federal-State air quality program. We shall vigorously administer the new program, but propose to supplement it with measures designed to provide a strong economic stimulus to achieve the pollution reduction sought by the program. AIR POLLUTION Sulfur Oxides Emissions Charge Sulfur oxides are among the most damaging air pollutants. High levels of sulfur oxides have been linked to increased incidence of diseases such as bronchitis and lung cancer. In terms of damage to human health, vegetation and property, sulfur oxide emissions cost society billions of dollars annually. Last year in my State of the Union message I urged that the price of goods “should be made to include the cost of producing and disposing of them without damage to the environment.” A charge on sulfur emitted into the atmosphere would be a major step in applying the principle that the costs of pollution should be included in the price of the product. A staff study underway indicates the feasibility of such a charge system. —Accordingly, I have asked the Chairman of the Council on En- vironmental Quality and the Secretary of the Treasury to develop a Clean Air Emissions Charge on emissions of sulfur oxides. Legislation will be submitted to the Congress upon completion of the studies cur- rently underway. The funds generated by this charge would enable the Federal Gov- ernment to expand programs to improve the quality of the environment. Special emphasis would be given to developing and demonstrating tech- nology to reduce sulfur oxides emissions and programs to develop ade- quate clean energy supplies. My 1972 budget provides increased funds for these activities. They will continue to be emphasized in subsequent years. These two measures—the sulfur oxides emissions charge and ex- panded environmental programs—provide both the incentive for improv- ing the quality of our environment and the means of doing so. Leaded Gasoline Leaded gasolines interfere with effective emission control. More- over, the lead particles are, themselves, a source of potentially harmful lead concentrations in the environment. The new air quality legislation provides authority, which I requested, to regulate fuel additives, and I have recently initiated a policy of using unleaded or low-lead gasoline in Federal vehicles whenever possible. But further incentives are needed. In 1970, I recommended a tax on lead used in gasoline to bring about a gradual transition to the use of unleaded gasoline. This transition is essential if the automobile emission control standards scheduled to come into effect for the 1975 model automobiles are to be met at reasonable cost. —1 shall again propose a special tax to make the price of unleaded gasoline lower than the price of leaded gasoline. Legislation will be submitted to the Congress upon completion of studies currently underway. WATER QUALITY We have the technology now to deal with most forms of water pol- lution. We must make sure that it is used. In my February 1970 special message to the Congress on the En- vironment, I discussed our most important needs in the effort to control water pollution: adequate funds to ensure construction of municipal waste treatment facilities needed to meet water quality standards; more explicit standards, applicable to all navigable waters; more effective Federal enforcement authority to back up State efforts; and funds to help States build the necessary capability to participate in this joint endeavor. Municipal Wastes Adequate treatment of the large volume of commercial, industrial and domestic wastes that are discharged through municipal systems requires a great expenditure of funds for construction of necessary facil- ities. A thorough study by the Environmental Protection Agency com- pleted in December 1970 revealed that $12 billion will be required by 1974 to correct the national waste treatment backlog. The urgency of this need, and the severe financial problems that face many communities, require that construction of waste treatment facilities be jointly funded by Federal, State, and local governments. We must also assure that ade- quate Federal funds are available to reimburse States that advanced the Federal share of project costs. —1I propose that $6 billion in Federal funds be authorized and ap pio- priated over the next three years to provide the full Federal share of a $12 billion program of waste treatment facilities. Some municipalities need help in overcoming the difficulties they face in selling bonds on reasonable terms to finance their share of con- struction costs. The availability of funds to finance a community’s pollu- tion control facilities should depend not on its credit rating or the vagaries of the municipal bond market, but on its waste disposal needs. —1I again propose the creation of an Environmental Financing Au- thority so that every municipality has an opportunity to sell its waste treatment plant construction bonds. A number of administrative reforms which I announced last year to ensure that Federal construction grant funds are well invested have been initiated. To further this objective: —1I again propose that the present, rigid allocation formula be re- vised, so that special emphasis can be given to those areas where facilities are most needed and where the greatest improvements in water quality would result. —1I propose that provisions be added to the present law to induce communities to provide for expansion and replacement of treat- ment facilities on a reasonably self-sufficient basis. —1I propose that municipalities receiving Federal assistance in con- structing treatment facilities be required to recover from industrial users the portion of project costs allocable to treatment of their wastes. Standards and Enforcement While no action was taken in the 91st Congress on my proposals to strengthen water pollution standard setting and enforcement, I initi- ated a program under the Refuse Act of 1899 to require permits for all industrial discharges into navigable waters, making maximum use of present authorities to secure compliance with water quality standards. However, the reforms I proposed in our water quality laws last year are still urgently needed. Water quality standards now are often imprecise and unrelated to specific water quality needs. Even more important, they provide a poor basis for enforcement : without a precise effluent standard, it is often dif- ficult to prove violations in court. Also, Federal-State water quality stand- ards presently do not apply to many important waters. —1I again proposed that the Federal-State water quality program be extended to cover all navigable waters and their tributaries, ground waters and waters of the contiguous zone. —1I again propose that Federal-State water quality standards be re- vised to impose precise effluent limitations on both industrial and municipal sources. —1I also propose Federal standards to regulate the discharge of haz- ardous substances similar to those which I proposed and the Con- gress adopted in the Clean Air Amendments of 1970. —I propose that standards require that the best practicable tech- nology be used in new industrial facilities to ensure that water quality is preserved or enhanced. —I propose that the Administrator of the Environmental Protection Agency be empowered to require prompt revision of standards when necessary. We should strengthen and streamline Federal enforcement author- ity, to permit swift action against municipal as well as industrial and other violators of water quality standards. Existing authority under the Refuse Act generally does not apply to municipalities. —I propose that the Administrator of EPA be authorized to issue abatement orders swiftly and to impose administrative fines of up to $25,000 per day for violation of water quality standards. —I propose that violations of standards and abatement orders be made subject to court-imposed fines of up to $25,000 per day and up to $50,000 per day for repeated violations. —I again propose that the Administrator be authorized to seek im- mediate injunctive relief in emergency situations in which severe water pollution constitutes an imminent danger to health, or threatens irreversible damage to water quality. —I propose that the cumbersome and time-consuming enforcement conference and hearing mechanism in the current law be replaced by a provision for swift public hearings as a prelude to issuance of abatement orders or requiring a revision of standards. —1 propose an authorization for legal actions against violations of standards by private citizens, as in the new air quality legislation, in order to bolster State and Federal enforcement efforts. —I propose that the Administrator be empowered to require re- ports by any person responsible for discharging effluents covered by water quality standards. —1 again propose that Federal grants to State pollution control en- forcement agencies be tripled over the next four years—from $10 million to $30 million—to assist these agencies in meeting their expanded pollution control responsibilities. Control of Oil Spills Last May I outlined to the Congress a number of measures that should be taken to reduce the risks of pollution from oil spills. Recent events have underlined the urgency of action on these proposals. At the outset of this present Congress I resubmitted the Ports and Waterways Safety Act and the legislation requiring the use of bridge-to-bridge radio- telephones for safety of navigation. Such legislation would have decreased the chances of the oil spill which occurred as a result of a tanker collision in San Francisco Bay. —1I have provided $25 million in next year’s budget for develop- ment of better techniques to prevent and clean up oil spills and to provide more effective surveillance. I am asking the Council on Environmental Quality in conjunction with the Department of Transportation and the Environmental Protection Agency to re- view what further measures can be developed to deal with the problem. —1I also am renewing my request that the Senate give its advice and consent on the two new international conventions on oil spills and the pending amendments to the 1954 Oil Spills Convention for the Prevention of Pollution of the Sea by Ol. The Intergovernmental Maritime Consultative Organization (IMCO) is presently preparing a convention to establish an Interna- tional Compensation Fund to supplement the 1969 Civil Liability Con- vention. Our ratification of the 1969 convention will be withheld until this supplementary convention can also be brought into force because both conventions are part of a comprehensive plan to provide compensa- tion for damages caused by oil spills. In addition, we have taken the initiative in NATO’s Committee on the Challenges of Modern Society and achieved wide international support for terminating all intentional discharges of oil and oily wastes from ships into the oceans by 1975, if possible, and no later than the end of this decade. We will continue to work on this matter to establish through IMCO an international con- vention on this subject. PESTICIDES Pesticides have provided important benefits by protecting man from disease and increasing his ability to produce food and fiber. However, the use and misuse of pesticides has become one of the major concerns of all who are interested in a better environment. The decline in numbers of several of our bird species is a signal of the potential hazards of pesti- cides to the environment. We are continuing a major research effort to develop nonchemical methods of pest control, but we must continue to rely on pesticides for the foreseeable future. The challenge is to institute the necessary mechanisms to prevent pesticides from harming human health and the environment. Currently, Federal controls over pesticides consist of the registration and labeling requirements in the Federal Insecticide, Fungicide, and Rodenticide Act. The administrative processes contained in the law are inordinately cumbersome and time-consuming, and there is no authority to deal with the actual use of pesticides. The labels approved under the Act specify the uses to which a pesticide may be put, but there is no way to insure that the label will be read or obeyed. A comprehensive strength- ening of our pesticide control laws is needed. —1 propose that the use of pesticides be subject to control in appro- priate circumstances, through a registration procedure which pro- vides for designation of a pesticide for “general use,” “restricted use,” or “use by permit only.” Pesticides designated for restricted use would be applied only by an approved pest control applicator. Pesticides designated for “use by permit only” would be made available only with the approval of an approved pest control con- sultant. This will help to ensure that pesticides which are safe when properly used will not be misused or applied in excessive quantities. —1I propose that the Administrator of the Environmental Protec- tion Agency be authorized to permit the experimental use of pesti- cides under strict controls, when he needs additional information concerning a pesticide before deciding whether it should be registered. —1I propose that the procedures for cancellation of a registration be streamlined to permit more expeditious action. —1I propose that the Administrator be authorized to stop the sale or use of, and to seize, pesticides being distributed or held in viola- tion of Federal law. RECYCLING OF WASTES The Nation's solid waste problem is both costly and damaging to the environment. Paper, which accounts for about one-half of all munici- pal solid waste, can be reprocessed to produce a high quality product. Yet the percentage the Nation recycles has been declining steadily. To reverse this trend, the General Services Administration, working with the Council on Environmental Quality, has reviewed the Federal Government's purchasing policies. It found a substantial number of pro- hibitions against using paper with recycled content. Such prohibitions are no longer reasonable in light of the need to encourage recycling. As a result of this review, the GSA has already changed its specifica- tions to require a minimum of 3 to 50 percent recycled content, depending on the product, in over $35 million per year of paper purchases. GSA is currently revising other specifications to require recycled content in an additional $25 million of annual paper purchases. In total, this will amount to more than one-half of GSA’s total paper products purchases. All remaining specifications will be reviewed to require recycled content in as many other paper products as possible. The regulations will be reviewed continually to increase the percentage of recycled paper required in each. I have directed that the Chairman of the Council on Environmental Quality suggest to the Governors that they review State purchasing pol- icies and where possible revise them to require recycled paper. To assist them, I have directed the Administrator of GSA to set up a technical liaison to provide States with the federally revised specifications as well as other important information on this new Federal program, which represents a significant first step toward a much broader use of Federal procurement policies to encourage recycling. II. CoNTROLLING EMERGING PROBLEMS Environmental control efforts too often have been limited to clean- ing up problems that have accumulated in the past. We must concentrate more on preventing the creation of new environmental problems and on dealing with emerging problems. We must, for example, prevent the harmful dumping of wastes into the ocean and the buildup of toxic materials throughout our environment. We must roll back increasingly annoying and hazardous levels of noise in our environment, particularly in the urban environment. Our goal in dealing with emerging environ- mental problems must be to ward them off before they become acute, not merely to undo the damage after it is done. TOXIC SUBSTANCES As we have become increasingly dependent on many chemicals and metals, we have become acutely aware of the potential toxicity of the materials entering our environment. Each year hundreds of new chem- icals are commercially marketed and some of these chemicals may pose serious potential threats. Many existing chemicals and metals, such as PCB's (polychlorinated biphenyls) and mercury, also represent a hazard. It is essential that we take steps to prevent chemical substances from becoming environmental hazards. Unless we develop better methods to assure adequate testing of chemicals, we will be inviting the environ- mental crises of the future. —I propose that the Administrator of EPA be empowered to restrict the use or distribution of any substance which he finds is a hazard to human health or the environment. —1 propose that the Administrator be authorized to stop the sale or use of any substance that violates the provisions of the legislation and to seek immediate injunctive relief when use or distribution of a substance presents an imminent hazard to health or the environment. —1 propose that the Administrator be authorized to prescribe mini- mum standard tests to be performed on substances. This legislation, coupled with the proposal on pesticides and other existing laws, will provide greater protection to humans and wildlife from introduction of toxic substances into the environment. What I propose is not to ban beneficial uses of chemicals, but rather to control the use of those that may be harmful. 416-694 O - 71 - 2 OCEAN DUMPING Last year, at my direction, the Council on Environmental Quality extensively examined the problem of ocean dumping. Its study indicated that ocean dumping is not a critical problem now, but it predicted that as municipalities and industries increasingly turned to the oceans as a convenient dumping ground, a vast new influx of wastes would occur. Once this happened, it would be difficult and costly to shift to land-based disposal. Wastes dumped in the oceans have a number of harmful effects. Many are toxic to marine life, reduce populations of fish and other eco- nomic resources, jeopardize marine ecosystems, and impair aesthetic values. In most cases, feasible, economic, and more beneficial methods of disposal are available. Our national policy should be to ban unregulated ocean dumping of all wastes and to place strict limits on ocean disposal of harmful materials. Legislation is needed to assure that our oceans do not suffer the fate of so many of our inland waters, and to provide the authority needed to protect our coastal waters, beaches, and estuaries. —I recommend a national policy banning unregulated ocean dum p- ing of all materials and placing strict limits on ocean disposal of any materials harmful to the environment. —1I recommend legislation that will require a permit from the Ad- ministrator of the Environmental Protection Agency for any mate- rials to be dumped into the oceans, estuaries, or Great Lakes and that will authorize the Administrator to ban dumping of wastes which are dangerous to the marine ecosystem. The legislation would permit the Administrator to begin phasing out ocean dumping of harmful materials. It would provide the controls necessary to prevent further degradation of the oceans. This would go far toward remedying this problem off our own shores. However, protection of the total marine environment from such pollu- tion can only be assured if other nations adopt similar measures and enforce them. —1I am instructing the Secretary of State, in coordination with the Council on Environmental Quality, to develop and pursue inter- national initiatives directed toward this objective. NOISE The American people have rightly become increasingly annoyed by the growing level of noise that assails them. Airplanes, trucks, construc- tion equipment, and many other sources of noise interrupt sleep, disturb communication, create stress, and can produce deafness and other adverse health effects. The urban environment in particular is being degraded by steadily rising noise levels. The Federal Government has set and enforces standards for noise from aircraft, but it is now time that our efforts to deal with many other sources of noise be strengthened and expanded. The primary responsibility for dealing with levels of noise in the general environment rests upon local governments. However, the prod- ucts which produce the noise are usually marketed nationally, and it is by regulating the noise-generating characteristics of such products that the Federal Government can best assist the State and local governments in achieving a quieter environment. —1I propose comprehensive noise pollution control legislation that will authorize the Administrator of EPA to set nose standards on transportation, construction and other equipment and require labeling of noise characteristics of certain products. Before establishing standards, the Administrator would be required to publish a report on the effects of noise on man, the major sources. and the control techniques available. The legislation would provide a method for measurably reducing major noise sources, while preserving to State and local governments the authority to deal with their particular noise problems. III. Promoting ENVIRONMENTAL QUALITY IN OUR LAND Usk Decisions The use of our land not only affects the natural environment but shapes the pattern of our daily lives. Unfortunately, the sensible use of our land is often thwarted by the inability of the many competing and overlapping local units of government to control land use decisions which have regional significance. While most land use decisions will continue to be made at the local level, we must draw upon the basic authority of State government to deal with land use issues which spill over local jurisdictional boundaries. The States are uniquely qualified to effect the institutional reform that is so badly needed, for they are closer to the local problems than is the Federal Government and yet removed enough from local tax and other pressures to represent the broader regional interests of the public. Fed- eral programs which influence major land use decisions can thereby fit into a coherent pattern. In addition, we must begin to restructure eco- nomic incentives bearing upon land use to encourage wise and orderly decisions for preservation and development of the land. I am calling upon the Congress to adopt a national land use policy. In addition, I am proposing other major initiatives on land use to bring “parks to the people”, to expand our wilderness system, to restore and preserve historic and older buildings, to provide an orderly system for power plant siting, and to prevent environmental degradation from mining. A NATIONAL LAND USE POLICY We must reform the institutional framework in which land use decisions are made. —1I propose legislation to establish a National Land Use Policy which will encourage the States, in cooperation with local govern- ment, to plan for and regulate major developments affecting growth and the use of critical land areas. This should be done by establishing methods for protecting lands of critical environ- mental concern, methods for controlling large-scale develop- ment, and improving use of lands around key facilities and new communities. One hundred million dollars in new funds would be authorized to assist the States in this effort—$20 million in each of the next five years— with priority given to the States of the coastal zone. Accordingly, this proposal will replace and expand my proposal submitted to the last Congress for coastal zone management, while still giving priority atten- tion to this area of the country which is especially sensitive to develop- ment pressures. Steps will be taken to assure that federally-assisted pro- grams are consistent with the approved State land use programs. Public Lands Management The Federal public lands comprise approximately one-third of the Nations land area. This vast domain contains land with spectacular scenery, mineral and timber resources, major wildlife habitat, ecological significance, and tremendous recreational importance. In a sense, it is the “breathing space” of the Nation. The public lands belong to all Americans. They are part of the heritage and the birthright of every citizen. It is important, therefore, that these lands be managed wisely, that their environmental values be carefully safeguarded, and that we deal with these lands as trustees for the future. They have an important place in national land use considerations. The Public Land Law Review Commission recently completed a study and report on Federal public land policy. This Administration will work closely with the Congress in evaluating the Commission’s recom- mendations and in developing legislative and administrative programs to improve public land management. The largest single block of Federal public land lies in the State of Alaska. Recent major oil discoveries suggest that the State is on the threshold of a major economic development. Such development can bring great benefits both to the State and to the Nation. It could also— if unplanned and unguided—despoil the last and greatest American wilderness. We should act now, in close cooperation with the State of Alaska, to develop a comprehensive land use plan for the Federal lands in Alaska, giving priority to those north of the Yukon River. Such a plan should take account of the needs and aspirations of the native peoples, the importance of balanced economic development, and the special need for maintain- ing and protecting the unique natural heritage of Alaska. This can be accomplished through a system of parks, wilderness, recreation, and wild- life areas and through wise management of the Federal lands generally. I am asking the Secretary of the Interior to take the lead in this task, calling upon other Federal agencies as appropriate. Preserving Our Natural Environment The demand for urban open space, recreation, wilderness and other natural areas continues to accelerate. In the face of rapid urban develop- ment, the acquisition and development of open space, recreation lands and natural areas accessible to urban centers is often thwarted by esca- lating land values and development pressures. I am submitting to the Congress several bills that will be part of a comprehensive effort to pre- serve our natural environment and to provide more open spaces and parks in urban areas where today they are often so scarce. In addition, I will be taking steps within the executive branch to assure that all agencies are using fully their existing legislative authority to these ends. “Legacy of Parks” Merely acquiring land for open space and recreation is not enough. We must bring parks to where the people are so that everyone has access to nearby recreational areas. In my budget for 1972, I have proposed a new “Legacy of Parks” program which will help States and local govern- ments provide parks and recreation areas, not just for today’s Americans but for tomorrow’s as well. Only if we set aside and develop such recrea- tion areas now can we ensure that they will be available for future generations. As part of this legacy, I have requested a $200 million appropria- tion to begin a new program for the acquisition and development of addi- tional park lands in urban areas. To be administered by the Department of Housing and Urban Development, this would include provision for facilities such as swimming pools to add to the use and enjoyment of these parks. Also, I have recommended in my 1972 budget that the appropriation for the Land and Water Conservation Fund be increased to $380 million, permitting the continued acquisition of Federal parks and recreation areas as well as an expanded State grant program. However, because of the way in which these State grant funds were allocated over the past five years, a relatively small percentage has been used for the purchase and development of recreational facilities in and near urban areas. The allocation formula should be changed to ensure that more parks will be developed in and near our urban areas. —1I am submitting legislation to reform the State grant program so that Federal grants for the purchase and development of recrea- tion lands bear a closer relationship to the population distribution. —1I am also proposing amendments to the Internal Revenue Code which should greatly expand the use of charitable land transfers for conservation purposes and thereby enlarge the role of private citizens in preserving the best of America’s landscape. Additional public parks will be created as a result of my program for examining the need for retention of real property owned by the Gov- ernment. The Property Review Board, which I established last year, is continuing its review of individual properties as well as its evaluation of the Government's overall Federal real property program. Properties identified as suitable for park use and determined to be surplus can be conveyed to States and political subdivisions for park purposes without cost. The State or other political subdivision must prepare an acceptable park use plan and must agree to use the property as a park in perpetuity. More than 40 properties with high potential for park use have already been identified. Five such properties are now available for conversion to public park use. One, Border Field, California, will be developed as a recreation area with the assistance of the Department of the Interior. The other four will be conveyed to States or local units of government as soon as ade- quate guarantees can be obtained for their proper maintenance and operation. These four are: (1) part of the former Naval Training De- vices Center on Long Island Sound, New York; (2) land at a Clinical Research Center in Fort Worth, Texas; (3) about ten miles of sand dunes and beach along the Atlantic Coast and Sandy Hook Bay, a part of Fort Hancock, New Jersey; and (4) a portion of Fort Lawton, Wash- ington, a wooded, hilly area near the heart of Seattle. In addition, efforts are underway to open a significant stretch of Pacific Ocean Beach Front and Coastal Bluffs at Camp Pendleton, California. Many parcels of federal real property are currently under-utilized because of the budgetary and procedural difficulties that are involved in transferring a Federal operation from the current site to a more suitable location. —I am again proposing legislation to simplify relocation of federal installations that occupy properties that could better be used for other purposes. This will allow conversion of many additional Federal real prop- erties to a more beneficial public use. Lands now used for Federal opera- tions but more suited to park and recreational uses will be given priority consideration for relocation procedures. The program will be self-financ- ing and will provide new opportunities for improving the utilization of Federal lands. Wilderness Areas While there is clearly a need for greater efforts to provide neigh- borhood parks and other public recreation areas, there must still be places where nature thrives and man enters only as a visitor. These wilder- ness areas arc an important part of a comprehensive open space system. We must continue to expand our wilderness preservation system, in order to save for all time those magnificent areas of America where nature still predominates. Accordingly, in August last year I expressed my intention to improve our performance in the study and presentation of recommen- dations for new wilderness areas. —1I will soon be recommending to the Congress a number of specific proposals for a major enlargement of our wilderness preserva- tion system by the addition of a wide spectrum of natural areas spread across the entire continent. National Parks While placing much greater emphasis on parks in urban areas and the designation of new wilderness areas, we must continue to expand our national park system. We are currently obligating substantial sums to acquire the privately owned lands in units of the National Park System which have already been authorized by the Congress. Last year, joint efforts of the administration and the Congress re- sulted in authorization of ten areas in the National Park System, includ- ing such outstanding sites as Voyageurs National Park in Minnesota, Apostle Islands National Lakeshore in Wisconsin, Sleeping Bear Dunes National Lakeshore in Michigan, Gulf Islands National Seashore in Mis- sissippi and Florida, and the Chesapeake and Ohio Canal National His- torical Park in the District of Columbia, Maryland and West Virginia. However, the job of filling out the National Park System is not com- plete. Other unique areas must still be preserved. Despite all our wealth and scientific knowledge, we cannot recreate these unspoiled areas once they are lost to the onrush of development. I am directing the Secretary of the Interior to review the outstanding opportunities for setting aside nationally significant natural and historic areas, and to develop priorities for their possible addition to the National Park System. Power Plant Siting The power shortage last summer and continuing disputes across the country over the siting of power plants and the routing of transmission lines highlight the need for longer-range planning by the producers of electric power to project their future needs and identify environmental concerns well in advance of construction deadlines. The growing number of confrontations also suggest the need for the establishment of public agencies to assure public discussion of plans, proper resolution of en- vironmental issues, and timely construction of facilities. Last fall, the Office of Science and Technology sponsored a study entitled “Electric Power and the Environment,” which identified many of these issues. Only through involving the environmental protection agencies early in the planning of future power facilities can we avoid disputes which delay construction timetables. I believe that these two goals of adequacy of power supply and environmental protection are compatible if the proper framework is available. —I propose a power plant siting law to provide for establishment within each State or region of a single agency with responsibility for assuring that environmental concerns are properly considered in the certification of specific power plant sites and transmission line routes. Under this law, utilities would be required to identify needed power supply facilities ten years prior to construction of the required facilities. They would be required to identify the power plant sites and general transmission routes under consideration five years before construction and apply for certification for specific sites, facilities, and routes two years in advance of construction. Public hearings at which all interested parties could be heard without delaying construction timetables would be required. Mined Area Protection Surface and underground mining have scarred millions of acres of land and have caused environmental damages such as air and water pol- lution. Burning coal fires, subsidence, acid mine drainage which pollutes our streams and rivers and the destruction of aesthetic and recreational values frequently but unnecessarily accompany mining activities. These problems will worsen as the demand for fossil fuels and other raw ma- terials continues to grow, unless such mining is subject to regulation requiring both preventive and restorative measures. —I propose a Mined Area Protection Act to establish Federal re- quirements and guidelines for State programs to regulate the environmental consequences of surface and underground mining. In any State which does not enact the necessary regulations or enforce them properly, the Federal Government would be author- ized to do so. PRESERVING OUR ARCHITECTURAL AND HISTORIC HERITAGE Too often we think of environment only as our natural surroundings. But for most of us, the urban environment is the one in which we spend our daily lives. America’s cities, from Boston and Washington to Charles- ton, New Orleans, San Antonio, Denver, and San Francisco, reflect in the architecture of their buildings a uniqueness and character that is too rapidly disappearing under the bulldozer. Unfortunately, present Federal income tax policies provide much stronger incentives for demo- lition of older buildings than for their rehabilitation. Particularly acute is the continued loss of many buildings of historic value. Since 1933 an estimated one-quarter of the buildings recorded by the Historic American Building Survey have been destroyed. Most lend- ing institutions are unwilling to loan funds for the restoration and reha- bilitation of historic buildings because of the age and often the location of such buildings. Finally, there are many historic buildings under Fed- eral ownership for which inadequate provision has been made for restora- tion and preservation. —1I shall propose tax measures designed to overcome these present distortions and particularly to encourage the restoration of historic buildings. —1 shall propose new legislation to permit Federal insurance of home improvement loans for historic residential properties to a maximum of $15,000 per dwelling unit. —I am recommending legislation to permit State and local govern- ments more easily to maintain transferred Federal historic sites by allowing their use for revenue purposes and I am taking action to insure that no federally-owned property is demolished until its historic significance has first been reviewed. IV. Towarp A BETTER WORLD ENVIRONMENT Environmental problems have a unique global dimension, for they afflict every nation, irrespective of its political institutions, economic sys- tem, or state of development. The United States stands ready to work and cooperate with all nations, individually or through international institutions, in the great task of building a better environment for man. A number of the proposals which I am submitting to Congress today have important international aspects, as in the case of ocean dumping. I hope that other nations will see the merit of the environmental goals which we have set for ourselves and will choose to share them with us. At the same time, we need to develop more effective environmental efforts through appropriate regional and global organizations. The United States is participating closely in the initiatives of the Organization for Economic Cooperation and Development (OECD), with its emphasis on the complex economic aspects of environmental controls, and of the F.conomic Commission for Europe (ECE), a U.N. regional organization vhich is the major forum for East-West cooperation on environmental problems. Following a United States initiative in 1969, the North Atlantic Treaty Organization has added a new dimension to its cooperative activ- ities through its Committee on the Challenges of Modern Society. CCMS has served to stimulate national and international action on many preb- lems common to a modern technological society. For example, an impor- tant agreement was reached in Brussels recently to eliminate intentional discharges of oil and oily wastes by ships into the oceans by 1975 if possible or, at the latest, by the end of the decade. CCMS is functioning as an effective forum for reaching agreements on the development of pollution- free and safe automobiles. Work on mitigating the effects of floods and earthquakes is in progress. These innovative and specific actions are good examples of how efforts of many nations can be focused and coordi- nated in addressing serious environmental problems facing all nations. The United Nations, whose specialized agencies have long done valuable work on many aspects of the environment, is sponsoring a land- mark Conference on the Human Environment to be held in Stockholm in June 1972. This will, for the first time, bring together all member nations of the world community to discuss those environmental issues of most pressing common concern and to agree on a world-wide strategy and the basis for a cooperative program to reverse the fearful trend toward envi- ronmental degradation. I have pledged full support for this Conference, and the United States is actively participating in the preparatory work. Direct bilateral consultations in this field are also most useful in jointly meeting the challenges of environmental problems. Thus, the United States and Canada have been working closely together preparing plans for action directed to the urgent task of cleaning up the Great Lakes, that priceless resource our two nations share. Over the past few months, ministerial level discussions with Japan have laid the basis for an expanded program of cooperation and technological exchange from which both nations will benefit. It is my intention that we will develop a firm and effective fabric of cooperation among the nations of the world on these environmental issues. WORLD HERITAGE TRUST As the United States approaches the centennial celebration in 1972 of the establishment of Yellowstone National Park, it would be appro- priate to mark this historic event by a new international initiative in the general field of parks. Yellowstone is the first national park to have been created in the modern world, and the national park concept has repre- sented a major contribution to world culture. Similar systems have now been established throughout the world. The United Nations lists over 1,200 parks in 93 nations. The national park concept is based upon the recognition that cer- tain areas of natural, historical, or cultural significance have such unique and outstanding characteristics that they must be treated as belonging to the nation as a whole, as part of the nation’s heritage. It would be fitting by 1972 for the nations of the world to agree to the principle that there are certain areas of such unique worldwide value that they should be treated as part of the heritage of all mankind and ac- corded special recognition as part of a World Heritage Trust. Such an arrangement would impose no limitations on the sovereignty of those na- tions which choose to participate, but would extend special international recognition to the areas which qualify and would make available technical and other assistance where appropriate to assist in their protection and management. I believe that such an initiative can add a new dimension 20 to international cooperation. —1I am directing the Secretary of the Interior, in coordination with the Council on Environmental Quality, and under the foreign policy guidance of the Secretary of State, to develop initiatives for presentation in appropriate international forums to further the objective of a World Heritage Trust. Confronted with the pressures of population and development, and with the world’s tremendously increased capacity for environmental mod- ification, we must act together now to save for future generations the most outstanding natural areas as well as places of unique historical, archeological, architectural, and cultural value to mankind. V. FURTHER INSTITUTIONAL IMPROVEMENT The solutions to environmental and ecological problems are often complex and costly. If we are to develop sound policies and programs in the future and receive early warning on problems, we need to refine our analytical techniques and use the best intellectual talent that is available. After thorough discussions with a number of private foundations, the Federal Government through the National Science Foundation and the Council on Environmental Quality will support the establishment of an Environmental Institute. I hope that this nonprofit institute will be supported not only by the Federal Government but also by private foun- dations. The Institute would conduct policy studies and analyses drawing upon the capabilities of our universities and experts in other sectors. It would provide new and alternative strategies for dealing with the whole spectrum of environmental problems. VI. Towarp A BETTER LIFE Adoption of the proposals in this message will help us to clean up the problems of the past, to reduce the amount of waste which is disposed, and to deal creatively with problems of the future before they become critical. But action by government alone can never achieve the high qual- ity environment we are seeking. We must better understand how economic forces induce some forms of environmental degradation, and how we can create and change eco- nomic incentives to improve rather than degrade environmental quality. F.conomic incentives, such as the sulfur oxides charge and the lead tax, can create a strong impetus to reduce pollution levels. We must experi- ment with other economic incentives as a supplement to our regulatory efforts. Our goal must be to harness the powerful mechanisms of the marketplace, with its automatic incentives and restraints, to encourage improvement in the quality of life. We must also recognize that the technological, regulatory, and eco- nomic measures we adopt to solve our environmental problems cannot succeed unless we enlist the active participation of the American people. 21 Far beyond any legislative or administrative programs that may be sug- gested, the direct involvement of our citizens will be the critical test of whether we can indeed have the kind of environment we want for our- selves and for our children. All across the country, our people are concerned about the environ- ment—the quality of the air, of the water, of the open spaces that their children need. The question I hear everywhere is “What can I do?” Fortunately, there is a great deal that each of us can do. The busi- nessman in his every day decisions can take into account the effects on the environment of his alternatives and act in an environmentally respon- sible way. The housewife can make choices in the marketplace that will help discourage pollution. Young people can undertake projects in their schools and through other organizations to help build a better environ- ment for their communities. Parents can work with the schools to help develop sound environmental teaching throughout our education system. Every community in the nation can encourage and promote concerned and responsible citizen involvement in environmental issues, an involve- ment which should be broadly representative of the life-styles and leader- ship of the community. Each of us can resolve to help keep his own neighborhood clean and attractive and to avoid careless, needless littering and polluting of his surroundings. These are examples of effective citizen participation; there are many others. The building of a better environment will require in the long term a citizenry that is both deeply concerned and fully informed. Thus, I believe that our educational system, at all levels, has a critical role to play. As our nation comes to grips with our environmental problems, we will find that difficult choices have to be made, that substantial costs have to be met, and that sacrifices have to be made. Environmental quality cannot be achieved cheaply or easily. But, I believe the American people are ready to do what is necessary. This nation has met great challenges before. I believe we shall meet this challenge. I call upon all Americans to dedicate themselves during the decade of the seventies to the goal of restoring the environment and reclaiming the earth for ourselves and our posterity. And I invite all peoples everywhere to join us in this great endeavor. Together, we hold this good earth in trust. We must—and together we can—prove ourselves worthy of that trust. RicHARD Nixon The White House February 8, 1971 22 I the oresioents OIOPOSAIS 25 Sulfur Oxides Emissions Charges SULFUR OXIDES EMISSIONS CHARGES Sulfur oxides are one of the most harmful air pollutants discharged into our atmosphere today, accounting for about one-half of the total damages from air pollution. They damage human health, vegetation, materials, and property. Sulfur oxides can permanently damage delicate lung tissue and have been linked to increased incidence of diseases such as bronchitis and lung can- cer. National health costs resulting from sulfur oxides emissions are conservatively estimated at over $3.3 billion annually. The effects of sulfur oxides on materials, property, and vegetation cost the Nation an estimated additional $5 billion annually. These total damages of $8.3 billion amount to about $.20 for each pound of sulfur now emitted into our atmosphere. Sulfur oxides result from the burning and dis- tilling of oil and coal, the smelting of nonferrous ores, and other industrial processes. An estimated 36.6 million tons of sulfur oxides are now emitted annually as follows: Million tons Percent Power plants---------—c-cc—— 20.0 55 Other combustion-----—-————————- 8.2 22 Smelters————-=—=-=——————————— 4.0 11 Refineries———==----——--oo—— 2.4 7 Miscellaneous---—==—=—==—=———mn 2.0 5 Total--—-—=—=—==————————— 36.6 100 If uncontrolled, annual sulfur oxides emissions will nearly quadruple, to an estimated 126 million tons by the year 2000. Power generation accounts for an ever increasing proportion of the emissions. The Clean Air Amendments of 1970 greatly improve the mechanism to control air pollutants, including sul- fur oxides. These amendments require promulgation of national air quality standards for pollutants by the Administrator of the Environmental Protection Agency. Once standards have been promulgated, the States must prepare a plan to implement the standards within 3 years. Exemptions to the 3-year period can only be made by the EPA Administrator if adequate control methods are not commercially available or have not been available 26 for a sufficient period of time. An intensive research, development, and demonstration effort is underway to develop commercial technology for controlling sulfur oxides. With no technology currently available, industry does not have an incentive to invest in control equip- ment until it has been tested for some time. Enforce- ment at all levels of government is likely to be hampered by arguments on technical feasibility. An economic incentive would provide pressure for industry to demonstrate and use technology as soon as possible to avoid the charge. It would also provide an incentive to achieve even higher levels of abatement than required by the standards. As such, it will provide a powerful tool to help achieve the air quality standards called for by the Clean Air Act. THE PRESIDENT'S PROPOSAL Accordingly, the President has directed the Council on Environmental Quality and the Treasury Department to develop a Clean Air Emission Charge on emissions of sulfur oxides. The charge would be levied on sulfur emitted into the atmosphere from combustion or distillation of fossil fuels and from other possible sources. To the extent that sulfur is removed from fuels, no payment of the charge would be required. The funds generated by this charge would enable the Federal Government to increase programs to improve the quality of the environment with special emphasis on development of technology to reduce sulfur oxides emis- sions and programs to develop adequate clean energy sup- plies. These two measures--the sulfur oxides emissions charge and expanded environmental programs--should pro- vide both the incentive for abatement and the means for doing so. 27 416-694 O - 71 - 3 Ea 29 Tax on Lead in Gasoline TAX ON LEAD IN GASOLINE Air pollution from automobiles is clearly one of our major environmental problems. The smog that was originally considered to be a Southern California prob- lem is now becoming a national phenomenon. Lead in gasoline adds to the automotive air pollution problem in two ways. First, lead fouls some of the major emission control systems now being devel- oped to meet the 1975 air quality standards. Second, lead itself is a pollutant. Over 95 percent of the total lead emitted into the atmosphere derives from additives in gasoline. Lead particles can penetrate the lungs and can be retained and absorbed in the bloodstream. In urban areas, the margin of safety between blood levels of lead in humans and levels at which lead poisoning symptoms have been identified are growing smaller. While no clear case has been found of lead poisoning from automobile emissions, there is ample reason for concern. The Clean Air Amendments of 1970 authorize con- trol of lead levels in gasoline. However, a total ban is not feasible because over one-half of the vehicles now on the road require high octane gasoline which, in general, can only be achieved using lead additives. The Federal Government can and will require that unleaded gasoline be available, but it cannot assure that people will buy it. Since the cost of low-lead or nonleaded gasoline is higher, there is little incentive for car owners to purchase it. In fact, current low-lead or nonleaded gasoline is not selling well. THE PRESIDENT'S PROPOSAL The President is again proposing a special tax on lead additives in gasoline. The tax would allow con- sumers to buy the low or unleaded fuels at no price disadvantage over leaded gasolines, and hence creates an economic incentive for refiners to produce more low or unleaded gasoline. This special charge would help to bring about, at reasonable costs, the gradual transition to use of unleaded gasoline, which is essential to reduce lead emissions and to meet the other emission control standards scheduled to come into effect for the 1975 automobiles. 30 31 Waste Treatment Facilities ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker] : Enclosed is a draft of a proposed bill. "To amend section 8 of the Federal Water Pollution Control Act, as amended, and for other purposes." We recommend that the bill be referred to the appropriate committee for consideration, and we recommend that it be enacted. The proposed legislation would amend section 8 of the Act to provide financial assistance for the construction of treatment works, and for the develop- ment of financial and other capability to provide for future waste treatment needs. The overall objective of this bill is to achieve an equitable and fully effective Federal financing program for the con- struction of waste treatment facilities. This can better be accomplished if investments for treatment works are made as part of a comprehensive water quality management process which relates these investments to the environmental quality objectives. The long range effectiveness of these investments in attaining and maintaining environmental quality will depend upon the actions taken now to develop self-sufficient systems at the State and local levels for assuring the future operation, maintenance, expansion and replacement of treatment facilities. The bill would authorize appropriations of $6 billion, $2 billion for each of the three fiscal years beginning with fiscal year 1972. These requested appropriations are based on detailed studies and surveys of waste treatment facility construction needs for fiscal years 1972, 1973 and 1974. A detailed analysis and report of those studies and surveys will be transmitted to the Congress shortly 32 pursuant to the provisions of section 26 (a) of the Federal Water Pollution Control Act. In determining the amounts to be requested for this purpose, full account was taken of the amounts expended by States and municipalities to prefinance the Federal share of needed waste treatment facilities, so as to render such States and municipalities eligible for reimburse- ment. Account was also taken of the unobligated balances of funds previously appropriated for this purpose. In addition, the bill would revise the allocation formula to provide greater flexibility to meet the most severe water pollution problems. The new allocation formula for distributing construction grant funds among the States would employ four factors. First, 45 percent of the funds would be allocated based on relative State popu- lation; second, up to 20 percent would be allocated to States which agree to pay at least 25 percent of the cost of all projects receiving construction grants during a fiscal year; third, up to 25 percent would be allocated to States which have existing "reim- bursables" for which grants have not been made because of lack of Federal funds; and fourth, the remainder would be distributed to meet the most serious water pollution control problems as determined by the Administrator. This new allocation formula would permit the Administrator a degree of flexibility to direct construction grant funds to areas where those funds are most critically needed and where they can be most effectively used. Any sums not obligated by a State at the end of a fiscal year because of a lack of approved projects would be reallotted by the Administrator to meet the most serious water pollution control needs. This bill would authorize Federal payments in reimbursement of State or local funds used to pre- finance the Federal share of qualified projects on which construction was initiated after June 30, 1966, but prior to July 1, 1971. "Reimbursables" for projects proposed to be initiated after June 30, 1971, would be permitted only if they met certain quali- fications. The Administrator would thus be given some 33 control over the accumulation of new "reimbursable" projects to minimize abusive practices. A number of inequities and problems have been identified in connection with the treatment of industrial wastes in municipal waste treatment facilities financed in part with Federal funds. This has resulted in the ineffective and inefficient use of construction grant monies. This bill is designed to overcome these problems by prohibiting the granting of funds for projects treating industrial wastes unless the industrial user is required to pay back that portion of the project costs attributable to the treatment of industrial wastes. The $6 billion share proposed in this bill will stimulate about $12 billion worth of total waste treatment construction. That estimate represents our best estimate of total investment needs. The President's proposal of last year was based on an estimated need of $10 billion, including a Federal contribution of $4 billion. That estimate was based on an estimated need of $10 billion, including a Federal contribution of $4 billion. That estimate was based upon two independent studies of nation-wide waste treatment facility needs. A detailed reassess- ment of the Nation's needs, including contacts with most of the major cities, has revealed a total need of about $12 billion by the end of fiscal year 1974. The increased estimate of $2 billion over last year's proposal is attributed to the identification of new needs by the States and revision of engineering estimates to reflect current price levels. In last year's proposal, the Federal share was 40 percent of the total $10 billion investment required. The present bill proposes a Federal share of $6 billion which represents 47 percent of the total $12 billion investment required. This amount is increased by the amounts needed to reimburse States and municipalities which have prefinanced the Federal share of needed projects, and reduced by the amount of unobligated funds appropriated for this purpose. 34 Our underlying concern is the attainment of water quality standards. It is our best estimate that the funds requested in this bill for the construction of needed waste treatment facilities will permit us to achieve our water quality standard goals shortly after 1974. This proposed bill is part of the President's environmental program as announced in his Environmental Message of February 8, 1971. The Office of Management and Budget has advised that this proposed legislation would be in accord with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 35 [> BILL To amend section 8 of the Federal Water Pollu- tion Control Act, as amended, and for other purposes. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Con- gress assembled, That the Federal Water Pollution Con- trol Act, as amended (33 U.S.C. 1151 et seq.), is further amended as follows: SECTION 1. Section 8 of the Act is hereby amended to read as follows: "FINANCIAL ASSISTANCE FOR CONSTRUCTION OF WASTE TREATMENT FACILITIES" "Sec. 8(a) (1). The Administrator is authorized to make grants to any State, municipality, or inter- municipal or interstate agency for the construction of necessary treatment works to prevent the discharge of untreated or inadequately treated sewage or other waste into any waters, for the purpose of reports, plans and specifications in connection therewith, and for such additional reports and studies necessary for the grantee to develop the institutional arrangements and financial capacity to assume adequate future operation, maintenance, expansion and replacement of such works. "(2) Federal grants under this sub- section shall be subject to the following limitations: (A) No grant shall be made for any project pursuant to this subsection unless such project shall have been approved by the appropriate State water pollution control agency or agencies and by the Administrator; (B) No grant shall be made unless the grantee agrees to pay for all project costs which are not paid for by the grant or by the State financial contribution; (C) No grant shall be made for any project under this subsection until the applicant has made provision satisfactory to the Administrator for assuring (i) that there will be proper and effi- cient operation and maintenance of the treatment works, including adequate provision for trained management and operational personnel, and (ii) that the applicant has or will take measures to establish or acquire adequate legal, institutional, managerial and financial 36 capability for meeting foreseeable future needs with respect to operation, maintenance, expansion and replacement of the treatment works in order to meet water quality standards; (D) No grant shall be made for any project under this subsection unless such proj- ect is in conformity with the State water pollution control plan submitted pursuant to section 7 of this Act, and the Administrator finds that such project is consistent with any planning requirements designated pursuant to regulation, including the economic and engineering feasibility, and the architectural, legal, fiscal and economic investigations, studies, surveys, designs, plans, drawings and specifications, and has been certified by the appropriate State water pollution control agency as entitled to priority over other eligible projects on the basis of criteria submitted as part of the approved State water pollution control plan; (E) No grant shall be made for any project in an amount exceeding 30 per centum of the estimated reasonable cost thereof as determined by the Administrator, except as hereinafter provided; (F) The percentage limitation of 30 per centum imposed by subparagraph (E) of this paragraph shall be increased to a maximum of 40 per centum in the case of grants made under this subsection from funds allocated for a fiscal year to a State under paragraph (4) of this subsection if the State agrees to grant, loan or otherwise finance not less than 25 per centum of the estimated reasonable cost (as determined by the Administrator) of all projects for which Federal grants are to be made under this subsection from such allocation, or if the grantee has a treatment works user charge system and otherwise has legal, institu- tional, managerial and financial capability to assure adequate operation, maintenance, expansion and replace- ment of treatment works throughout the grantee's jurisdiction, as determined by the Administrator; (G) The percentage limitations imposed by clause (E) of this paragraph shall be increased to a maximum of 55 per centum in the case of grants made under this subsection from funds allo- cated for a fiscal year to a State under paragraph (4) 37 of this subsection if (i) the State agrees to grant, loan, or otherwise finance not less than 25 per centum of the estimated reasonable costs (as determined by the Administrator) of all projects for which Federal grants are to be made under this subsection from such alloca- tion or the grantee has a treatment works user charge sys- tem and otherwise has legal, institutional, managerial and financial capability to assure adequate operation, maintenance, expansion and replacement of treatment works throughout the grantee's jurisdiction, as deter- mined by the Administrator, and (ii) enforceable water quality standards have been established for the waters into which the project discharges, in accordance with section 10(c) of this Act; (H) No grant shall be made unless the applicant complies with such regulations as the Administrator may prescribe to assure the effective and efficient use of funds under this section; and (I) No grant shall be made for any project which will treat industrial wastes of a liquid nature unless the grantee makes provisions satisfactory to the Administrator, in accordance with regulations promulgated by him, for the full recovery by the grantee, from the industrial users of the proj- ect, of that portion of the estimated reasonable cost of construction of such project (as determined by the Administrator) which is allocable to the treatment of such industrial wastes. The amount of estimated reasonable project costs recovered from each indus- trial user shall be equitably based on the proportion which the volume and strength of such user's wastes treated by the project bears to the volume and strength of all wastes treated by the project. Revenues derived from such cost recover, to the extent apportionable to the Federal share of eligible project costs allo- cable to the treatment of industrial wastes, shall revert to the Treasury of the United States, unless the grantee has, or, in accordance with regulations to be promulgated by the Administrator, makes satisfactory provision for development, a user charge system and other legal, institutional, managerial and financial capability to assure adequate operation, maintenance, expansion and replacement of treatment works throughout the grantee's jurisdiction, in which case such revenues 38 may be retained by the grantee to assist in providing the financial capability referred to in this subpara- graph. "(3) In approving Federal financial aid for proposed projects for treatment works, the Administrator shall make a determination as to the public benefits to be derived by the construction, the relation of the ultimate cost of constructing and main- taining the works to the public interest and to the public necessity for the works, and the adequacy of the applicant's legal, institutional, managerial and financial capability, or provisions made by the appli- cant to develop such capability, for meeting foresee- able future needs with respect to operation, mainte- nance, expansion and replacement of treatment works in order to comply with applicable water quality standards. The Administrator may from time to time issue regulations or guidelines to assist in the administration of this subsection. "(4) The sums authorized to be obligated pursuant to subsection (c) of this section for each fiscal year beginning on or after July 1, 1971, shall be allotted by the Administrator, from time to time, in accordance with regulations, as follows: (A) 45 per centum of all sums authorized to be obligated in the ratio that the popu- lation of each State bears to the population of all the States: (B) Not to exceed 20 per centum of such sums as determined by the Administrator to those States which agree to grant, loan or otherwise finance not less than 25 per centum of the estimated reasonable cost, as determined by the Administrator, of all projects for which Federal grants or other commit- ments of financial assistance are to be made under this section during any fiscal year, which allotment shall be in the ratio that the population of each such State bears to the population of all such States: (C) Not to exceed 25 per centum of such sums to those States which have projects the construction of which was initiated after June 30, 1966, which were approved by the appropriate State water pollution control agency and which the 39 Administrator found met the requirements of this sub- section but which were constructed without such assist- ance, or with a lesser amount of such assistance than that for which it was eligible, because of the unavail- ability of adequate funds, which allotment shall be in the ratio that the total of such unavailable funds for such projects in a State bears to the total of all such unavailable funds for all such projects in all the States; (D) The remainder of such sums shall be distributed to States, municipalities, and inter-municipal or interstate agencies to meet the most serious water pollution control problems as determined by the Administrator. Any sums allotted to a State which are not obligated at the end of the fiscal year for which they are allotted because of a lack of projects which have been approved by the State water pollution control agency under sub- paragraph (2) (A) of this subsection and certified as entitled to priority under subparagraph (2) (D) of this subsection shall be reallotted by the Administrator, on the basis provided in subparagraph (D) of this para- graph. Any sum made available to a State by reallot- ment under the preceding sentence shall be in addition to any funds otherwise allotted to such State under this Act. Allotment or reallotment of sums under or on the basis provided in subparagraph (D) of this para- graph shall be subject to any special priorities for the use of such sums established by any other provision of law. The total allotments of a State under the first and second sentences of this paragraph (4) shall be available, in accordance with the provisions of this subsection, for payments with respect to projects in such State which have been approved under this sub- section. For purposes of this subsection, population shall be determined on the basis of the last year for which satisfactory population figures are available from the Department of Commerce. "(5) Any project in a State on which construction was initiated after June 30, 1966, but prior to July 1, 1971, which was approved by the appro- priate State water pollution control agency, and which the Administrator finds meets the requirements of section 8 of this Act in effect at the time of 40 initiation of such construction, but which was con- structed (1) without financial assistance authorized by said section 8, or (2) with financial assistance’ authorized by said section 8 but in a lesser percent- age of the cost of construction than authorized by said section 8, shall qualify for payments in reimbursement of State or local funds used for such project prior to July 1, 1974, from sums allocated to such State under subparagraph 4 of this subsection for any fiscal year ending prior to July 1, 1974, to the extent that assistance could have been provided under said section 8 if such project had been approved thereunder and adequate funds had been available. Neither a finding by the Administrator that a project meets the require- ments of this paragraph, nor any other provision of this paragraph, shall be construed to constitute a commitment or obligation of the United States to pro- vide funds to make or pay any grant for such project. "(6) Any project in a State on which construction is proposed to be initiated after June 30, 1971, which is approved by the appropriate State water pollution control agency and which the Administrator finds meets the requirements of this subsection, but for which financial assistance as authorized by this subsection is unavailable in the fiscal year in which the project is approved by the Administrator, or is available in such fiscal year only in a lesser per- centage of the cost of construction than authorized by this subsection, shall qualify for payments in reim- bursement of State or local funds used for such proj- ect prior to July 1, 1974, from sums allocated to such State under subparagraph 4 of this subsection for any fiscal year ending prior to July 1, 1974: Provided, that prior to the initiation of construction of such project, the Administrator finds (1) that the State in which such project is located, in approving projects for Federal financing out of the sums allocated to such State under paragraph (4) of this subsection for the fiscal year in which qualification for payments in reimbursement is sought; has given priority to eligible projects in the more advanced stages of construction, (2) that such project is necessary to achieve compliance with applicable water quality standards, and (3) that the initiation of such project will be 41 commenced within a reasonable period of time. Neither a finding by the Administrator that a project meets the requirements of this paragraph, nor any other pro- vision of this paragraph, shall be construed to con- stitute a commitment or obligation of the United States to provide funds to make or pay any grant for such project. "(7) The Administrator shall make payments under this subsection through the disbursing facilities of the Department of the Treasury. Funds so paid shall be used exclusively to meet the cost of construction of the project for which the amount was paid. "(8) The Administrator shall take such action as may be necessary to insure that all laborers and mechanics employed by contractors or sub- contractors on projects for which grants or other financial assistance are made under this subsection shall be paid wages at rates not less than those pre- vailing for the same type of work on similar construc- tion in the immediate locality, as determined by the Secretary of Labor, in accordance with the Act of March 3, 1931, as amended, known as the Davis-Bacon Act (46 Stat. 1494; 40 U.S.C. secs. 276a through 276a-5). The Secretary of Labor shall have, with respect to the labor standards specified in this para- graph, the authority and functions set forth in Reor- ganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267; 5 U.S.C. 133z-15) and section 2 of that Act of June 13, 1934, as amended (48 Stat. 948; 40 U.S.C. 276c). "(9) For the purposes of this sub- section, the term (A) ‘industrial wastes' means the waste discharges (other than domestic sewage) of industries identified in the Standard Industrial Clas- sification Manual, Bureau of the Budget, 1967, as amended and supplemented under the category "Division D - Manufacturing", and other wastes which in the opinion of the Administrator may appropriately be con- sidered industrial wastes for the purposes of this subsection. (B) ‘construction’ includes preliminary planning to determine the economic and 42 engineering feasibility of treatment works, the engineering, architectural, legal, fiscal and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary to the construction of treatment works; the erection, building, acquisition, alteration, remodeling, improvement, or extension of treatment works; and the inspection and supervision of the con- struction of treatment works. "(b) The Administrator shall administer the provisions of this section and related sections of this Act in a manner to encourage and assist any State, municipality, or inter-municipal or interstate agencies which will receive Federal assistance for the con- struction of treatment works, to achieve adequate legal, institutional, managerial and financial capa-_ bility for meeting foreseeable future needs with respect to operation, maintenance, expansion and replacement of such works in order to achieve compliance with appli- cable water quality standards. The Administrator shall pursue this objective through the determination of eligible costs under subsection (a) (1) of this section and percentage limitations under subparagraphs (a) (2) (F) and (a) (2) (6) of this section, through consider~ ation of the adequacy of provisions for operation and maintenance under subparagraph (a) (2) (C) of this section, through provisions relating to industrial participation in municipal projects under subparagraphs (a) (2) (I) of this section, through the exercise of his authority concerning approval of Federal financial aid under paragraph (a) (3) of this section, through the provision of technical assistance, and through such other provisions for administering this section as he may designate by regulation. "(c) There are hereby authorized to be appropriated for the purpose of making grants under this section, $2,000,000,000 for the fiscal year ending June 30, 1972; $2,000,000,000 for the fiscal year ending June 30, 1973; and $2,000,000,000 for the fiscal year ending June 30, 1974. Sums so appropri- ated shall remain available until expended. SECTION 2. The provisions of this Act shall be effective on July 1, 1971. 43 416-694 O - 71 - 4 SECTION-BY-SECTION ANALYSIS Section 1 of the bill would amend section 8 of the Federal Water Pollution Control Act. Subsection 8 (a) would authorize Federal grants for the construction of treatment works to prevent the discharge of inadequately treated wastes and for other purposes. Paragraph 8 (a) (1) would retain the provisions of the present Act authorizing the Administrator to make grants for treatment works and related reports, plans and specifications. A new provision would be added authorizing grants for reports and studies to develop the grantee's financial and other capability to provide for future waste treatment needs. No change would be made in the existing definition of "treatment works" in section 23 of the Act and no change would be made in those eligible to receive grants, which would include States, municipalities, intermunicipal agencies and inter- state agencies. Grant limitations would be listed in paragraph 8(a) (2). There would be some modifications and additions to the grant limitations in the present Act. Sub- paragraph 8(a) (2) (A) would prohibit a grant unless it were approved by the State water pollution control agency and by the Administrator. Subparagraph 8 (a) (2) (B) would prohibit a grant unless the grantee agreed to pay all costs not paid for by Federal and State funds. Subparagraph 8(a) (2) (C) would permit a grant only if the grantee made provision for satisfactory operation and maintenance of the treatment works. Adequate provision would have to be made for an operating and managerial staff of well qualified personnel. A new provision in this subparagraph would require the grantee to have or develop the financial and other capability necessary to satisfy future waste treatment needs. Subparagraph 8 (a) (2) (D) would retain the pro- visions of the existing Act which prohibit a grant unless the project conforms with a section 7 State plan and is entitled to priority over other eligible projects. A new provision would be added to emphasize the need for water quality management planning. To be eligible for a grant, a project would have to be 44 consistent with any plan for a basin, metropolitan area or region certified by the Administrator under sub- section 8(d) and with any other planning requirements specified by the Administrator in regulations. Subparagraph 8 (a) (2) (E) would retain the pro- vision of the present Act which specifies that the basic Federal grant share is 30 percent of the cost of the project. Modifications would be made in the provisions of the present Act relating to the requirements for an increased Federal share and the requirements for matching payments by States. Subparagraph 8 (a) (2) (F) would provide that the Federal share shall be increased to a maximum of 40 percent if the State agrees to "grant, loan or otherwise finance" 25 percent of the cost. (The required State share is 30 percent in the present Act). The words "to grant, loan or otherwise finance" would replace the words "to pay" in the present Act to make it clear that the State matching funds need not be an outright grant but may be in the form of a loan. This subparagraph would also provide that the Federal share shall be increased to 40 percent, regardless of whether there are State matching funds, if the grantee has a user charge system as well as other capability for satisfying future waste treatment needs. Subparagraph 8(a) (2) (G) would retain the pro- visions of the present Act which provide that the Federal share shall be increased to 50 percent if the State agrees to grant, loan, or otherwise finance 25 percent of the cost and if enforceable water quality standards have been established. A new provision would be added increasing the Federal share to 50 percent, regardless of whether there are State matching funds, if the grantee has a user charge system and other capabilities for satisfying future waste treatment needs and if enforceable water quality standards have been established. Subparagraph 8 (a) (2) (H) would add a new pro- vision to prohibit grants unless the grantee provides assurance that it will comply with regulations to assure the effective and efficient use of funds under the section. Subparagraph 8 (a) (2) (H) would add a new provision designed to make more effective and efficient use of con- 45 struction grant monies and to avoid certain abusive practices and inequities associated with the treat- ment of industrial wastes in municipal waste treatment facilities. Grants would be prohibited for projects treating industrial wastes unless the industrial user were required by the grantee to pay back that portion of the project cost attributable to the treatment of industrial wastes. The Federal share of such recovered costs would be used by the grantee to operate and maintain its works and for meeting future waste treatment needs. Paragraph 8 (a) (3) outlines the factors which would be considered by the Administrator in approving a grant under subsection 8(a). The factors specified in the present Act would be retained including an assessment of public benefits, the propriety of Federal aid, and the relation of project costs to the public interest. Two new additional factors would be provided. First, the Administrator would be required to consider whether the proposed project is consistent with a water quality management plan certified under sub- section 8(d), and second, he would be required to assess the capability of the grantee to satisfy its own future waste treatment needs. Paragraph 8 (a) (4) would provide a new allocation formula to permit the optimum distribution of funds over the next three fiscal years in closer relationship to the construction needs of the respecting States. Four factors would be employed in distributing construction grant funds among the States. First, 45 percent of the amounts authorized to be obligated in each fiscal year would be allocated on the basis of relative State population; second, up to 20 percent would be allocated to States which agree to grant, loan or otherwise finance at least 25 percent of all project costs during a given fiscal year; third, up to 25 percent would be allocated to States which have approved projects for which grants have not been made or which have been made in a reduced amount because of lack of Federal funds; and fourth, the remainder would be distributed to meet the most serious water pollution control problems as determined by the Administrator. The new allocation formula would give the Administrator a degree of flexibility to direct 46 construction grant funds to areas where funds are most critically needed and where they can be most effectively used. This paragraph would also provide for the reallotment of any sums which are not obligated by a State at the end of a fiscal year because of a lack of certified projects. [The Act now calls for reallot- ment after 18 months.] These funds would be realloted by the Administrator to meet the most serious water pollution control needs in accordance with the fourth factor mentioned above. Paragraph 8 (a) (5) would authorize Federal pay- ments in reimbursement of State or local funds used to pre-finance the Federal share of qualified projects on which construction was initiated after June 30, 1966, but prior to July 1, 1971. Paragraph 8 (a) (6) would extend this authorization with respect to projects on which construction is initiated after June 30, 1971, in order to continue to provide some encouragement to localities to initiate projects even though Federal funding is not then available. However, projects commenced after June 30, 1971, would not qualify for reimbursement unless, prior to the initiation of con- struction, the Administrator makes three findings. He would be required to find (1) that the State in which the project is located has given funding priority in the current fiscal year to projects in more advanced stages of construction; (2) that the project is necessary to achieve compliance with water quality standards; and (3) that construction on the project will be initiated within a reasonable period of time. This approach would give the Administrator some control over the accumulation of reimbursables and thus minimize abusive practices. Paragraph 8(a) (7) would direct the Administrator to make grant payments through the disbursing facilities of the Department of the Treasury. Such payments would be required to be used exclusively to meet the costs of construction. Paragraph 8(a) (8) would retain the provisions from the present Act which direct the Administrator to make certain determinations with regard to the adequacy of wages of laborers working on projects funded under subsection 8 (a). Paragraph 8 (a) (9) would define certain terms 47 used in subsection 8 (a). Subparagraph 8 (a) (9) (A) would define "industrial wastes" as waste discharges (other than domestic sewage) from industries identified in the Standard Industrial Classification Manual and other wastes as determined by the Administrator. Sub- paragraph 8 (a) (9) (B) would retain essentially the same definition of "construction" as appears in the present Act which includes a range of activities from preliminary planning to the actual installation of the facility and alterations and improvements of the facility. Subsection 8 (b) would direct the Administrator to administer section 8 and related sections so as to encourage and assist grantees in developing adequate legal, institutional, managerial and financial capability for meeting foreseeable future waste treatment needs to achieve compliance with applicable water quality standards. Future waste treatment needs would include the operation, maintenance, expansion and replacement of treatment works. This would be an important new provision to encourage local self- sufficiency and possibly to reduce the future levels of Federal funding needed for treatment works con- struction. Subsection 8 (c) would authorize the Admin- istrator to incur obligations in the form of grants in an aggregate amount of $6 billion. Of this sum, $2 billion would be available for each of the three fiscal years beginning with fiscal year 1972. A new concept would be involved whereby the Administrator would be authorized to obligate these sums without a prior appropriation, with the understanding that Congress would appropriate funds to liquidate obligations as they came due each year. Such an approach is prefer- able to an annual appropriation because it would pro- vide long-term assurance of Federal funding enabling State and local governments to plan their programs on an orderly basis. This subsection would authorize the appropriation of the sums required to liquidate any obligations incurred. The sums authorized to be obligated would remain available until obligated. Subsection 8(d) would provide for an accelerated water quality management planning program designed to meet short-term and long-term water pollution control 48 objectives and to complement recently issued regulations requiring that construction grant projects be included in a metropolitan, basin, or regional pollution abate- ment plan. Paragraph 8(d) (1) would authorize the Administrator to make grants for water quality management planning for basins, metropolitan areas and regions, in amounts not to exceed 75 percent of the expenses of developing such plans. Those eligible to receive grants would include any State, interstate, municipal or intermunicipal agency as well as any organization of public officials eligible for assistance under section 701 (g) of the Housing Act of 1954. A planning grant application would be required to satisfy the requirements listed in paragraph 8(d) (2). Subparagraph 8(d) (2) (A) would require that a single agency have the exclusive responsibility to carry out the planning project in a given area. Subparagraph 8(d) (2) (B) would require that a proposed planning project be entitled to priority over other eligible projects. The Governor of each State involved in accordance with regulations issued by the Administrator, would be required to approve a project's entitlement for priority over other eligible projects planning on the basis of water quality management needs. In making a determination, the Governor would be required to consider various factors such as the abatement and prevention measures needed in the area, the existence and adequacy of similar plans for the area, the sched- uled construction of various facilities including treatment works, population growth, land planning and other environmental factors. Subparagraph 8(d) (2) (C) would require grant applications to contain plans outlining how the grant funds will be spent. Subparagraph 8(d) (2) (D) would require that appli- cations provide for the submission of progress reports and for the keeping of records. The Administrator would prescribe the content of such reports and have access to such records. Subparagraph 8(d) (2) (E) would require applications to contain provisions for fiscal control and fund-accounting procedures. Paragraph 8(d) (3) would require agencies re- ceiving planning grants to develop water quality management plans meeting certain requirements. Sub- 49 paragraph 8(d) (3) (A) would require a plan to be consistent with water quality standards and to make recommendations with respect to the maintenance and improvement of such standards. Subparagraph 8 (4d) (3) (B) would require recommendations as to the most effective and economical facilities for the handling and control of wastes. Subparagraph 8(d) (3) (C) would require recommendations for developing the grantee's capability to meet future waste treatment needs. Paragraph 8(d) (4) outlines the factors which the Administrator would be required to consider in approving a grant under subsection 8(d). These factors would include an assessment of public benefits, the relation of project costs to the public interest, the capability of the grantee to develop an effective plan for the area concerned, as well as all of the factors required to be con- sidered by a Governor in approving the priority of a planning project. The Administrator would be required to find that a planning project is coordinated with and not duplicative of other related planning activities in the area. Paragraph 8(d) (5) would direct the Admin- istrator to certify that a plan developed under sub- section 8(d) or other authority satisfies all necessary requirements, if such is the case. Paragraph 8(d) (6) would provide for the funding of planning grants. Amounts not in excess of seven percent of the sums allocated annually to the respective States under paragraph 8(a) (4) for the construction of treatment works would be available for water quality management planning grants. Paragraph 8(d) (7) would define certain terms used in subsection 8(d). Subparagraph 8(d) (7) (a) would define "basin" as an area determined by the Administrator to constitute a single hydrologic system. Subparagraph 8(d) (7) (B) would define "metropolitan area" as a standard metropolitan statistical area, with exceptions, or as any urban area determined to be a metropolitan area by the Administrator. Subparagraph 8(d) (7) (C) would define "region" as an area other than urban which forms an economic and socially related region as determined by the Administrator. Subsection 8(e) would direct the Administrator 50 to submit a report to Congress by January 10, 1973, on the financial requirements for the construction of municipal waste treatment works for F.Y. 1975 and subsequent fiscal years. Section 2 of the bill would provide that the provisions of the bill take effect on July 1, 1971. 51 Environmental Financing Authority 53 THE DEPARTMENT OF THE TREASURY WASHINGTON, D.C. 20220 Dear Mr. [President/Speaker] : There is transmitted herewith a proposed bill, "To establish an Environmental Financing Authority to assist in the financing of waste treatment facilities, and for other purposes." In his Budget Message to Congress, the President stated that "Legislation is again proposed to create the Environmental Financing Authority, which will assist communities that have difficulty in borrowing at reasonable rates to meet their share of the cost of water pollution control facilities." The proposed Authority would be authorized to purchase obligations issued by State or local public bodies to finance the non-Federal share of the cost of waste treatment construction projects eligible for Federal financial assistance under the Federal Water Pollution Control Act. No obligation would be purchased by the Authority unless the public body is unable to obtain on reasonable terms sufficient credit elsewhere to finance its needs. The Authority would be authorized to issue its own securities in the capital market to finance its purchases of State and local obligations. To provide initial capital for the Authority, the Secretary of the Treasury would be authorized to advance up to $100 million to the Authority. In addition, the Secretary of the Treasury would be authorized and directed to make annual payments to the Authority in amounts necessary to cover the difference between the interest costs on debt issued by the Authority and the interest receipts from State and local governments on the obligations purchased. 54 With the proposed Authority in operation, no municipality should be prevented from participating in the Federal waste treatment assistance program by its inability to finance on reasonable terms its share of the program cost. The Department has been advised by the Office of Management and Budget that enactment of the pro- posed legislation would be in accord with the program of the President. Sincerely yours, /s/David M. Kennedy Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 55 A BILL To establish an Environmental Financing Author- ity to assist in the financing of waste treatment facilities, and for other purposes. Be it enacted by the Senate and House of Repre- sentatives of the United States of America in Congress assembled, That this Act may be cited as the "Environ- mental Financing Act of 1971". CREATION OF AUTHORITY Section 2. There is hereby created a body cor- porate to be known as the Environmental Financing Authority, which shall have succession until dissolved by Act of Congress. The Authority shall be subject to the general supervision and direction of the Secretary of the Treasury. The Authority shall be an instrumen- tality of the United States Government and shall main- tain such offices as may be necessary or appropriate in the conduct of its business. PURPOSE Section 3. The purpose of this Act is to assure that inability to borrow necessary funds on reasonable terms does not prevent any State or local public body from carrying out any project for construction of waste treatment works determined eligible for assistance pur- suant to section 5 of this Act. BOARD OF DIRECTORS Section 4. (a) The Authority shall have a Board of Directors consisting of five persons, one of whom shall be the Secretary of the Treasury or his designee as Chairman of the Board, and four of whom shall be appointed by the President from among the officers or employees of the Authority or of any de- partment or agency of the United States Government. (b) The Board of Directors shall meet at the call of its Chairman. The Board shall determine the general policies which shall govern the operations of the Authority. The Chairman of the Board shall select and effect the appointment of qualified persons to fill the offices as may be provided for in the bylaws, with such executive func-— tions, powers, and duties as may be prescribed by the bylaws or by the Board of Directors, and such persons shall be the executive officers of the Authority and 56 shall discharge all such executive functions, powers, and duties. The members of the Board, as such, shall not receive compensation for their services. FUNCTIONS Section 5. (a) The Authority is authorized to make commitments to purchase and to purchase on terms and conditions determined by the Authority, any obli- gation or participation therein which is issued by a State or local public body to finance the non-Federal share of the cost of any project for the construction of waste treatment works which the Administrator of the Environmental Protection Agency has determined to be eligible for Federal financial assistance under the Federal Water Pollution Control Act (33 U.S.C. 466). (b) No commitment shall be entered into, and no purchase shall be made, unless the Admin- istrator of the Environmental Protection Agency (1) has certified that the public body is unable to obtain on reasonable terms sufficient credit to finance its actual needs; (2) has approved the project as eligible under the Federal Water Pollution Control Act (33 U.S.C. 466); and (3) has agreed to guarantee timely payment of principal and interest on the obligation. The Administrator is authorized to guarantee such timely payments and to issue regulations as he deems necessary and proper to protect such guarantees. Appropriations are hereby authorized to be made to the Administrator in such sums as are necessary to make payments under such guarantees, and such payments are authorized to be made from such appropriations or from any other available funds. (c) No purchase shall be made of obligations issued to finance projects, the permanent financing of which occurred prior to the enactment of this Act. (d) Any purchase by the Authority shall be upon such terms and conditions as to yield a return at a rate determined by the Secretary of Trea- sury taking into consideration (i) the current average yield on outstanding marketable obligations of the United States of comparable maturity or in its stead whenever the Authority has sufficient of its own long- term obligations outstanding, the current average yield on outstanding obligations of the Authority of 57 comparable maturity; and (ii) the market yields on municipal bonds. (e) The Authority is authorized to charge fees for its commitments and other services adequate to cover all expenses and to provide for the accumulation of reasonable contingency reserves and such fees shall be included in the aggregate project costs, INITIAL CAPITAL Section 6. To provide initial capital to the Authority, the Secretary of the Treasury is authorized to advance the funds necessary for this purpose. Each such advance shall be upon such terms and conditions as to yield a return at a rate not less than a rate deter- mined by the Secretary of the Treasury taking into con- sideration the current average yield on outstanding marketable obligations of the United States of compara- ble maturities. Interest payments on such advances may be deferred, at the discretion of the Secretary, but any such deferred payments shall themselves bear interest at the rate specified in this section. There is authorized to be appropriated not to exceed $100,000,000, which shall be available for the purposes of this section without fiscal year limitation. OBLIGATIONS OF THE AUTHORITY Section 7. (a) The Authority is authorized, with the approval of the Secretary of the Treasury, to issue and have outstanding obligations having such maturities and bearing such rate or rates of interest as may be determined by the Authority. Such obliga- tions may be redeemable at the option of the Authority before maturity in such manner as may be stipulated therein. (b) As authorized in appropriation Acts, and such authorizations may be without fiscal year limitation, the Secretary of Treasury may in his discretion purchase or agree to purchase any obliga- tions issued pursuant to subsection (a) of this section and for such purpose the Secretary of the Treasury is authorized to use as a public debt transaction the proceeds of the sale of any securities hereafter issued under the Second Liberty Bond Act as now or hereafter in force, and the purposes for which securities may be issued under the Second Liberty Bond Act as now or 58 hereafter in force, are extended to include such pur- chases. Each purchase of obligations by the Secretary of the Treasury under this subsection shall be upon such terms and conditions as to yield a return at a rate not less than a rate determined by the Secretary of the Treasury taking into consideration the current average yield on outstanding marketable obligations of the United States of comparable maturities. The Secretary of the Treasury may sell, upon such terms and conditions and at such price or prices as he shall determine, any of the obligations acquired by him under this subsec- tion. All purchases, and sales by the Secretary of the Treasury of such obligations under this subsection shall be treated as public debt transactions of the United States. FEDERAL PAYMENT TO THE AUTHORITY Section 8. The Secretary of the Treasury is authorized and directed to make annual payments to the Authority in such amounts as are necessary to equal the amount by which the dollar amount of interest ex- pense accrued by the Authority on account of its obli- gations exceeds the dollar amount of interest income accrued by the Authority on account of obligations purchased by it pursuant to section 5 of this Act. GENERAL POWERS Section 9. The Authority shall have power-- (a) to sue and be sued, complain and defend, in its corporate name; (b) to adopt, alter, and use a corporate seal, which shall be judicially noticed; (c) to adopt, amend, and repeal bylaws, rules, and regulations as may be necessary for the conduct of its business; (d) to conduct its business, carry on its operations, and have offices and exercise the powers granted by this Act in any State without regard to any qualification or similar statute in any State; (e) to lease, purchase, or other- wise deal in and with any property, real, personal, or mixed, or any interest therein, wherever situated; (f) to accept gifts or donations of services, or of property, real, personal, or mixed, tangible or intangible, in aid of any of the purposes of the Authority. 416-694 O - 71 - 5 59 (g) to sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of its property and assets; (h) to appoint such officers, attorneys, employees, and agents as may be required, to define their duties, to fix and to pay such compensa- tion for their services as may be determined, subject to the civil service and classification laws, to re- quire bonds for them and pay the premium thereof; and (1) to enter into contracts, to execute instruments, to incur liabilities, and to do all things as are necessary or incidental to the proper management of its affairs and the proper conduct of its business. TAX EXEMPTION Section 10. The Authority, its property, its franchise, capital, reserves, surplus, security hold- ings, and other funds, and its income shall be exempt from all taxation now or hereafter imposed by the United States or by any State or local taxing author- ity: except that (1) any real property and any tangi- ble personal property of the Authority shall be sub- ject to Federal, State, and local taxation to the same extent according to its value as other such property is taxed, and (2) any and all obligation issued by the Authority shall be subject both as to principal and interest to Federal, State, and local taxation to the same extent as the obligations of private corporations are taxed. OBLIGATION AS LAWFUL INVESTMENTS, ACCEPTANCE AS SECURITY Section 11. All obligations issued by the Authority shall be lawful investments, and may be accepted as security for all fiduciary, trust, and public funds, the investment or deposit of which shall be under authority or control of the United States or of any officer or officers thereof. All obligations issued by the Authority pursuant to this Act shall be deemed to be exempt securities without the meaning of laws administered by the Securities and Exchange Commission, to the same extent as securities which are issued by the United States. PREPARATION OF OBLIGATIONS Section 12. In order to furnish obligations for delivery by the Authority, the Secretary of Trea- 60 sury is authorized to prepare such obligations in such form as the Authority may approve, such obligations when prepared to be held in the Treasury subject to delivery upon order by the Authority. The engraved plates, dies, bed pieces, and so forth, executed in connection there- with shall remain in the custody of the Secretary of the Treasury. The Authority shall reimburse the Secretary of the Treasury for any expenditures made in the prepa- ration, custody, and delivery of such obligations. ANNUAL REPORT Section 13. The Authority shall, as soon as practicable after the end of each fiscal year, trans- mit to the President and the Congress an annual report of its operations and activities. OBLIGATIONS ELIGIBLE FOR PURCHASE BY NATIONAL BANKS Section 14. The sixth sentence of the seventh paragraph of section 5136 of the Revised Statutes, as amended (12 U.S.C. 24), is amended by inserting "or obligations of the Environmental Financing Authority" immediately after "or obligations, participation or other instruments of or issued by the Federal National Mortgage Association or the Government National Mort- gage Association." GOVERNMENT CORPORATION CONTROL ACT Section 15. The budget and audit provisions of the Government Corporation Control Act (31 U.S.C. 846) shall be applicable to the Environmental Financing Authority in the same manner as they are applied to the wholly owned Government corporations. PERMANENT APPROPRIATION FOR FEDERAL PAYMENT TO AUTHORITY Section 16. Section 3689 of the Revised Stat- utes, as amended (31 U.S.C. 711), is further amended by adding a new paragraph following the last paragraph appropriating moneys for the purposes under the Trea- sury Department to read as follows: "payment to the Environmental Financing Authority: For payment ta the Environmental Financing Authority under section 8 of the Environmental Financ- ing act of 1971." SEPARABILITY Section 17. If any provision of this Act or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act, and the application of such provisions to other persons or circumstances, shall not be affected. 61 63 State Program Grants ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker]: Enclosed is a draft of proposed legislation to amend the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq.). We recommend that this bill be referred to the appropriate committee for consideration, and we recommend that it be enacted. The bill would provide increased authorizations for appropriations for purposes of State and inter- state water pollution prevention and control programs, increase the Administrator's grant-awarding flexi- bility, and add bonus incentives for specific categories of program improvements, and grants for special pollution control projects. Authorizations for appropriations would be increased each year for four years on a sliding- scale basis from $15 million for fiscal year 1972 to $30 million for fiscal year 1975. Increased Federal financial support of State and interstate water pollution control programs is essential if States and interstate agencies are to meet the increased responsibilities and obligations which result from participation in national pollution control programs. Emphasis would be placed on development, performance and substantial improvements to the programs. Grants for the basic programs would continue, but the criteria for disapproval of a State program plan would be simplified, and criteria for the certification of priority of waste treatment works would be required to meet with the Administrator's approval. Flexi- bility would be provided by the addition of three new categories of grants: (1) program development grants, (2) program improvement grants, and (3) special 64 project grants which are intended to encourage and support substantial program developments and improvements. Through the identification of the essential elements of an "improved water pollution control program"--a permit system, a treatment facilities program, a training program, an improved personnel system, and a planning capability--both the States and the Federal government will more accurately direct their efforts and resources to those essential ingredients of an effective program. The new Federal grant money would provide support for specific program achievements. The major emphasis will be focused upon effective performance and substantial improve- ment of State and interstate programs. Through the use of special project grants the Administrator would be provided with flexibility to deal with unusual pollution problems which affect a State or interstate program. Technical amendments to section 5 of the Act, relating to research and development, would extend authorizations for appropriations for research and demonstration authorities through FY '72. Section 6 of the Act relating to development of technology in the areas of advanced waste treatment, combined sewers, and industrial waste treatment, would be amended to authorize the development of such technology within the Environmental Protection Agency as well as through grants and contracts. Section 23 of the Act would be amended to add American Samoa and the Trust Territories of the Pacific Islands to the definition of "State". This would provide for consistency within the Act, and would extend our pollution control efforts to all areas of United States responsibility. 65 This proposed bill is part of the President's environmental program as announced in his Environ- mental message of February 8, 1971. The Office of Management and Budget has advised that this proposed legislation would be in accord with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 66 A BILL To amend the Federal Water Pollution Control Act, as amended. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Congress assembled, That the Federal Water Pollution Control Act, as amended (33 U.S.C.A. 1151 et seq.) is further amended as follows: SEC. 1. Section 7 of the Act is amended to read as follows: "SEC. 7. (a) There are hereby authorized to be appropriated the following sums, to remain available until expended, to carry out the purposes of this section-- $15,000,000 for the fiscal year ending June 30, 1972; $20,000,000 for the fiscal year ending June 30, 1973; $25,000,000 for the fiscal year ending June 30, 1974; and $30,000,000 for the fiscal year ending June 30, 1975 for grants to States and to interstate agencies to assist them in meeting the costs of establishing and maintaining adequate measures for the prevention and control of water pollution Provided, That not less than $10,000,000 shall be available for the allotments authorized by subsections (b) and (d) hereof. "(b) From the sums available therefor for any fiscal year, the Administrator shall make allotments to the several States for their basic State water pollution control program, in accordance with regulations, on the basis of (1) population, (2) ex- tent of water pollution, and (3) financial need. "(c) From each State's allotment under subsection (b) for any fiscal year, the Administrator may pay to such State an amount equal to its Federal share (as determined under subsection (g)) of the cost of carrying out its basic State water pollution control program pursuant to a plan approved under subsection (e), including the cost of training personnel for State and local water pollution control work and including the cost of administering the State plan. 67 Nothing herein shall prevent a State from expending grant funds for State program purposes through partici- pation in interstate agencies. "(d) From the sums available therefor for any fiscal year, the Administrator shall, from time to time, make allotments to interstate agencies for their basic interstate water pollution control program in accordance with regulations on such basis as the Administrator finds reasonable and equitable. The Administrator may, from time to time, pay to each such agency from its allotment, an amount not in excess of such portion of the cost of carrying out its basic interstate water pollution control program pursuant to a plan approved under subsection (e), as may be deter- mined in accordance with regulations, including the cost of training personnel for water pollution control work and including the cost of administering the inter- state agency's basic program. "(e) The Administrator may approve any plan for a program to prevent and control water pollution which is submitted by the State water pollution control agency or an interstate agency, if such plan-- "(1) provides for administration or for the supervision of administration of the plan by the State water pollution control agency, or in the case of a plan submitted by an interstate agency, by such interstate agency; "(2) provides that such agency will make such reports, in such form and containing infor- mation, as the Administrator may, from time to time, reasonably require to carry out his functions under this Act; “(3) sets forth the plans, policies, and methods to be followed in carrying out the State (or interstate) plan and its administration. "(4) provides for extension or im- provement of the State or interstate program for pre- vention and control of water pollution; "(5) provides such accounting, budg- eting, and other fiscal methods and procedures as are necessary for the proper and efficient administration of the plan; and "(6) provides acceptable criteria to 68 be used by the State in determining priority of proj- ects as provided in section 8(a) (2) (D). The Administrator shall not disapprove any plan without first giving reasonable notice and opportunity for a conference with the Administrator to the State water pollution control agency or interstate agency which has submitted such plan. "(f) (1) Whenever the Administrator, after reasonable notice to a State water pollution control agency or interstate agency and an opportunity for a conference of such agency with the Administrator, finds that~~- "(A) the plan submitted by such agency and approved under this section has been so changed that it no longer complies with a requirement of subsection (e) of this section; or "(B) in the Administration of the plan there is a failure to comply substantially with such a requirement, the Administrator shall notify such agency that no further payments will be made to the State or to the interstate agency, as the case may be, under this section (or in his discretion that further payments will not be made to the State, or to the interstate agency, for projects under or parts of the plan affected by such failure) until he is satisfied that there will no longer be any such failure. Until he is so satisfied, the Administrator shall make no further payments to such State, or to such interstate agency, as the case may be, under this section (or shall limit payments to projects under or parts of the plan in which there is no such failure). "(g) (1) As used in this section, the 'Federal share' for any State shall be 100 per centum less that percentage which bears the same ratio to 50 per centum as the per capita income of such State bears to the per capita income of the United States, except that-- "(A) the Federal share shall in no case be more than 66-2/3 per centum, and "(B) the Federal share for Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands shall be 66-2/3 per centum. 69 "(2) The Federal shares shall be promulgated by the Administrator between July 1 and September 30 of each even-numbered year, on the basis of the average of the per capita incomes of the States and of the continental United States for the three most recent consecutive years for which satisfactory data are available from the Department of Commerce. "(3) As used in this subsection, the term 'United States' means the fifty States and the District of Columbia. "(4) The population of the several States shall be determined on the basis of the latest figures furnished by the Department of Commerce. "(5) The regulations relating to the portion of the cost of carrying out the interstate agency plan which shall be borne by the Federal Govern- ment shall be designed to place such agencies, so far as practicable, on a basis similar to that of the States. "(h) (1) If the Governor of any State or the head of an interstate agency files a letter of intent with the Administrator that such State or interstate agency will develop an improved water pol- lution control program which takes into account the provisions of subsection (i) of this section; and if the Administrator, in accordance with regulations, is reasonably assured that such State or interstate agency will develop an improved water pollution control pro- gram, he may make a grant in any fiscal year to such State or interstate agency in an amount not to exceed 25 per centum of such State or interstate agency's Federal share under subsections (c) or (d) of this section during such fiscal year. "(2) No grant shall be made to any State or interstate agency under this subsection in any fiscal year unless during such fiscal year such State or interstate agency is conducting a basic pro- gram to prevent and control water pollution under a plan approved pursuant to subsection (e) of this section. "(i) As used in this section'improved water pollution control program' shall be one which the Administrator determines, in accordance with regu- lation, is developed by a State or interstate agency 70 whereby such State or interstate agency enhances the quality of its waters for required uses and needs. In making his determination, the Administrator shall consider whether such program includes-- "(1) an =2ffective mandatory permit system covering all municipal, industrial, and other significant waste sources, including discharge require- ments, with adequate State implementation and enforce- ment authority: "(2) a sewage treatment facilities program pursuant to which such facilities are planned, constructed, and maintained so as to achieve efficiency, economy, and water quality enhancement, including comprehensive regulation of the operation and maintenance of such facilities; a program of comprehen- sive State review of engineering plans and specifica- tions for all proposed waste collection and treatment facilities; adequate State manpower to implement the program, and mandatory certification of facility operators; "(3) a program of training and development of water pollution control personnel designed to achieve full implementation of the State water pollution control program; "(4) balanced State personnel recruitment program, with an adequate merit system, job classifications, and competitive salary schedules; and "(5) a program of planning, includ- ing the development and maintenance of planning capa- bility in the State agency and the capacity to ade- quately evaluate river basin, regional, and metropoli- tan water quality planning." "(§) (1) If the Administrator determines in accordance with regulations, that a State or inter- state agency has developed one or more of the pro- visions enumerated in subsection (i), he may grant to such State or interstate agency an amount not in excess of 40 per centum of the Federal share for such State or interstate agency for each fiscal year for each such element; except that the amount of such grant may be increased to an amount not exceeding 250 per centum of the Federal share of such State or interstate agency if the Administrator determines that such agency has 71 developed all five of the elements enumerated in sub- section (i). "(2) Whenever the eligible bonuses under this section are greater than the amount appro- priated, bonuses shall be made available to States in order of priority corresponding to the times when such States initially become eligible for such bonuses. "(3) Grants made under this subsec- tion shall be in addition to any grants made under other subsections of this section. “(k) (1) From any sums that may be avail- able therefor in any fiscal year, which are not ex- pended for grants under other subsections of this sec- tion, and which do not exceed ten per centum of the total amount of funds appropriated for grants under this section in such fiscal year, the Administrator may make grants to States and to interstate agencies to support water pollution control projects which are exceptional because of the nature and scope of the water pollution problems toward which they are directed and the impact on State or interstate programs. SEC. 2. Section 5 of the Act is hereby amended by amending subsection (n) thereof to read as follows: “(n) There is authorized to be appro- priated to carry out this section, other than sub- sections (g) (1) and (2), not to exceed $65,000,000 for the fiscal year ending June 30, 1972. There is auth- orized to be appropriated to carry out subsection (g) (1) not to exceed $7,500,000 for the fiscal year ending June 30, 1972; and to carry out subsection (g) (2) not to exceed $2,500,000 for the fiscal year ending June 30, 1972. SEC. 3. Section 6 of the Act is hereby amended as follows: (1) by amending subsection (a) as follows: "(a) The Administrator is author- ized to conduct in the Environmental Protection Agency and to make grants to and enter into contracts with any State, municipality, or intermunicipal or interstate agency for the purpose of-- "(1) developing or assisting in the development of any project which will demon- strate a new or improved method of controlling the 72 discharge into any waters of untreated or inadequately treated sewage or other wastes from sewers which carry storm water or both storm water and sewage or other wastes, or "(2) developing or assisting in the development of any project which will demon-= strate advanced waste treatment and water purification methods (including the temporary use of new or improved chemical additives which provide substantial immediate improvement to existing treatment processes) Or new Or improved methods of joint treatment systems for munici- pal and industrial wastes, and for the purposes of reports, plans, and specifications in connection therewith. (2) by amending subsection (b) thereof to read as follows: "(b) The Administrator is authorized to conduct in the Environmental Protection Agency and to make grants to and enter into contracts with appro- priate public (whether Federal, State, interstate, or local) authorities, agencies, and institutions, private agencies and institutions, and individuals for the con- duct of, research and demonstration projects for pre- vention of pollution of waters by industry including, but not limited to, treatment of industrial waste. (3) by amending subsection (e) thereof to read as follows: "(e) For the purposes of this sec- tion there are authorized to be appropriated-- "(1) for the purposes set forth in subsections (a) and (b) of this section, the sum of $20,000,000 for the fiscal year ending June 30, 1972; "(2) for the purposes set forth in clause (2) of subsection (a), the additional sum of $20,000,000 for the fiscal year ending June 30, 1972; and "(3) for the purposes set forth in subsection (b) the additional sum of $20,000,000 for the fiscal year ending June 30, 1972." SEC. 4. Section 23 of the Act is hereby amended by striking out "the Virgin Islands and Guam" from sub- section (d) thereof, and by inserting in lieu thereof the following: "Guam, American Samoa, the Virgin Is- lands, and the Trust Territory of the Pacific Islands." 73 Tae Water Quality Standards and Enforcement 75 416-694 O - 71 - 6 ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker]: Enclosed is a draft of a proposed bill "To amend the Federal Water Pollution Control Act, as amended." We recommend that the bill be referred to the appropriate committee for consideration, and that it be enacted. The proposed legislation would amend section 10 of the Act to strengthen and clarify the authority of the Administrator in the establishment and enforce- ment of water quality standards, and would add new authorities relating to monitoring, surveillance, citizens' suits, and abatement of pollution from hazardous substances. The Water Quality Improvement Act of 1970 pro- vided important new authorities for the enchancement of water quality. These new authorities will assist in controlling water pollution caused by oil and hazardous substances, in carrying out an important new State-Federal program for the prevention of water pollution from federally licensed or permitted activities, and in other areas. Further strengthening of the Act is now necessary, however, to enable this Agency to play a more active role in working with State and local governments to prevent and abate pollution of our Nation's waters. The changes we are proposing are discussed in detail below. Section 10 (a) of the present Act makes subject to abatement pollution of interstate or navigable waters which endangers the health or welfare of persons. The proposed bill would extend this 76 jurisdiction to include expressly ground waters, tributaries of interstate and navigable waters, pollution of waters of the contiguous zone which adversely affects water quality in the territorial sea, and pollution of the high seas resulting from discharges of matter transported from United States territory. The present Act also contains an in- adequate definition of the term "water quality standards." The proposed bill would define water quality standards to mean water quality standards established under existing law, and in addition, water use designations, water quality criteria, effluent requirements, and plans of implementation and enforcement established pursuant to new requirements contained in the bill. Section 10 (c) of the present Act provides for the establishment of water quality standards by the States and for their submission to the Administrator for determination of their consistency with the requirements of the Act. No provision is made for rendering guidance to the States in carrying out their responsibility to develop standards meeting the Act's requirements. The States have taken many different approaches in developing and submitting water quality standards, and the resulting uncertainty and confusion has delayed the establish- ment of enforceable standards. The proposed bill would require the Administrator, within six months after enactment, to promulgate regulations establishing specifications for water use designations, water quality criteria, and effluent requirements. Based on those regulations, the States would submit revised water quality standards for those waters over which they have jurisdiction. Section 10(e) would authorize the Administrator to promulgate standards where the State fails, within one year after publication of the regulations, to submit acceptable standards. It is expected that the Administrator would exercise this authority only after considering the reasons for the State's failure to establish standards, and that he would ordinarily grant extensions beyond the one year provided by the bill if a State is unavoidably delayed in submission of standards. 77 The regulations would provide for distinguishing between different categories of dischargers, and it is expected that different requirements would be established for municipal and industrial sources. Authority would be provided by section 10 (d) for the Administrator to publish information on recommended pollution control techniques to achieve compliance with water quality standards. This would not be in the form of binding regulations, however, since it is felt that the Environmental Protection Agency should encourage inventive solutions to pollution abatement problems and that to prescribe mandatory control techniques would discourage the development of private enterprise of improved methods. Water quality standards under the proposed legislation would include two elements not previously specified: water use designations and effluent requirements. Water quality standards in all States would be required to be revised to include these new elements. However, where water quality standards have been established under the Water Quality Act of 1965, it is not anticipated that extensive revisions would be required, except to incorporate the new elements. The bill would specify a requirement that the Administrator consult with the States and advise them what specific elements of approved standards require revision. Existing standards would be pre- served to the extent that they are adequate. Authority of the "Refuse Act" of 1899, 33 U.S.C. 407, would not be superseded by the new authorities that would be provided by this proposal. The authorities would be complementary. No provision is made under present law for the Governor of a State to initiate revision of standards. The proposed bill would authorize the Governor of a State to submit revised standards at any time. Upon the Administrator's determination that the revised standards submitted by the State meet the require- ments of the regulations issued under section 10 (4d), they would become effective. 78 The authority of the Administrator to promulgate standards for waters in areas of exclusive Federal legislative jurisdiction, or where the States do not have jurisdiction, is unclear under existing laws. The proposed bill would provide the Administrator with clear authority to establish standards in such areas after public hearings. Two administrative enforcement procedures are authorized under the existing provisions of section 10: the Administrator may convene an enforcement conference, or, in cases of violation of water quality standards, he may issue 180-day notices, followed by court action. These procedures have not proved sufficiently strong and effective. The enforcement conference results in "recommendations" which, in case of non-compliance, may be followed by court action. However, these recommendations are not necessarily the same as the requirements contained in applicable water quality standards, and the resulting two sets of requirements may overlap and cause confusion. We believe that dischargers should be subject to a single set of requirements under the Act--water quality standards. Accordingly, the proposed bill would replace both existing procedures with a new administrative pro- cedure based on violation of water quality standards (or of effluent requirements for hazardous substances established under section 10(1)). This new pro- cedure is set forth in section 10(f). Upon the Administrator's determination, on the basis of any available information, that any person is in violation of water quality standards or the requirements of section 10(1), he is authorized to notify such person of the violation and the required remedial action, and simultaneously to provide notification to the water pollution control agencies of the States involved. If the required remedial action or appropriate State action were not taken within 30 days, the Administrator would be authorized to issue an order requiring compliance within a specified time. Provision is made for a hearing to review the order. Following such hearing, the Administrator would be required to affirm, modify or revoke the order, which would then become his final order. 79 Judicial review of final orders would be available after exhaustion of administrative remedies. The Administrator would be authorized to assess a civil penalty for violation of a final order of up to $25,000 per day of violation. In addition, the Administrator would be authorized to commence a civil action in the appropriate U.S. District Court for injunctive relief in any case of violations of water quality standards or of effluent requirements for hazardous substances established under section 10(1). A civil proceeding in U.S. Circuit Courts of Appeal could also be initiated to recover a civil penalty assessed by the Administrator, in cases in which a final order of the Administrator has been violated. The Court in any such proceeding would be authorized to assess a civil penalty of not more than $25,000 per day of violation. District Courts would also be authorized to impose criminal fines of up to $10,000, and imprisonment of up to six months, for making any false statement in any document or tampering with any monitoring device required by the section. Although the enforcement conference would be eliminated by this proposal, its useful features would be retained in section 10(g), authorizing the Administrator to call fact-finding public hearings for the purpose of obtaining information necessary to carry out the Act, including the investigation of possible water quality standards violations. Notice of any hearing would be required to be published in the Federal Register and in a newspaper of general circulation in the area in which the hearing is to be held. The hearing would be conducted before a hearing panel, consisting of the Administrator's representa- tive and representatives of the States involved. Any interested person would be permitted to make a statement of views. At the conclusion of the hearing, the hearing panel would report its findings to the Administrator. The Administrator would review the findings, and would take such action as he deemed appropriate, 80 which could include the issuance of an adminis- trative order or the initiation of a civil action or the establishment of water quality standards. Even where standards meeting the new require- ments which would be imposed by this bill have been approved by the Administrator, situations can be foreseen in which revision of the standards would become necessary and in which it would be desirable to accomplish the revision more expeditiously than would be possible if the Administrator issued revised regulations under section 10(d) and the States submitted revisions within one year thereafter. For dealing with such cases, the bill would provide a means of revising the standards with minimum delay. If, after a hearing under section 10(g), the Administrator determined that the public health or welfare required expeditious revision of State water quality standards, he would be authorized to request a State or States to adopt revised standards within 60 days. If the State did not adopt acceptable standards within such period, the Administrator would be authorized, after notice and hearing, to publish standards and to promulgate them after 30 days following publication. Sections 10(h) and 10(i) are intended to enable the Administrator to gain access to information required for effective enforcement, and to assist him in carrying out other functions under the Act, including research and planning. Section 10 (h) would provide the Administrator with broad authority to compel the attendance and testimony of witnesses at hearings, and to order the production of records. Section 10(i) would authorize the Administrator to require dischargers to perform effluent monitoring and to report the results to this Agency. In exercising this authority the Administrator would be required to take into consideration the avail- ability of the desired information from State or local monitoring programs. Further provisions of this subsection would authorize the Administrator's representatives to enter and inspect facilities from which discharge is made into sewers or waters 81 specified in section 10(c), and to have access to monitoring or other records. Any information obtained under section 10 (i) would be available to the public except information which is shown to the satisfaction of the Administrator to contain trade secrets. Section 10(j) would provide emergency authority for the Administrator to commence a court action in the appropriate U.S. District Court for an injunction or other appropriate equitable relief whenever a pollution source presents or may present an imminent and substantial danger to the health or welfare of any person or to water quality. This subsection is necessary in case of environmental emergencies, such as the recent discoveries involving mercury pollution, where the discharge causing the pollution may not be covered by water quality standards. Section 10 (k) provides for citizens' suits to enforce standards or limitations established under the Act, or to compel the Administrator to perform non-discretionary acts. The plaintiff would be required to notify the Administrator at least 60 days prior to commencing any suit, and would not be allowed to institute an action to enforce a standard or limitation if the Administrator or a State is taking appropriate action. The Adminis- trator would be authorized to intervene in any suit in which he is not a party. This provision parallels recently enacted amendments to the Clean Air Act. Section 10(1l) would require the Administrator, within 60 days after enactment of the proposed bill, to publish in the Federal Register a list of hazardous substances, and, within six months there- after, to publish proposed effluent requirements or prohibitions for such substances. Within 90 days after the publication of such requirements or pro- hibitions, the Administrator would be required to promulgate them in final form. This authority would supplement the existing section 12 of the Act, which provides for Federal clean-up of discharges of hazardous substances, by establishing prohibitions 82 or limitations of such discharges, enforceable under section 10(f) by administrative order or court action. We urge that the Congress give prompt and favor- able consideration to this bill in order to assist the Environmental Protection Agency in carrying out its mission to enhance the quality of the total environment. This proposed bill is part of the President's environmental program as announced in his Environmental Message of February 8, 1971. The Office of Management and Budget has advised that the proposed legislation is in accordance with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 83 A BILL To amend the Federal Water Pollution Control Act, as amended. Be it enacted by the Senate and House of Repre- sentatives of the United States of America in Congress assembled, That section 10 of the Federal Water Pollution Control Act, as amended, is further amended to read as follows: "WATER QUALITY STANDARDS AND ENFORCEMENT "Sec. 10 (a) As used in this Act: "(1l) The term, 'water quality standards’ shall mean -- "(A) Water use designations, water quality criteria, effluent limitations, and a plan of implementation and enforcement adopted pursuant to subsection (e) of this Section; and "(B) Water quality standards, including water quality criteria and a plan of implementation and enforcement, adopted pursuant to the Water Quality Act of 1965, until superseded by water quality standards adopted pursuant to this section. "(2) The term, 'water use designation' shall mean the legitimate and beneficial uses which are or shall be permitted and protected in waters specified in subsection (c) of this section or portion thereof. "(3) The term 'water quality criteria’ shall mean those physical, chemical, and biological characteristics of water quality which, for a given body of water are required to permit and protect the uses identified in the water use designation. "(4) The term 'effluent limitations' shall mean the permissible quantities of physical, chemical, biological, and other constituents of effluents which are discharged into waters specified in subsection (c) of this section. "(5) The term 'plan of implementation and enforcement' shall mean a plan for the achievement and maintenance of water quality criteria and effluent limitations, including provisions for the enforcement of such criteria and effluent limitations. "(6) The term 'discharge' means any addition 84 of matter to waters specified in subsection (c) of this section, whether such matter enters such waters directly or from runoff or percolation. "(7) The term 'person' means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body, and "(8) The term 'municipality’' means city, town, borough, county, parish, district, or other public body created by or pursuant to State law. "(b) Consistent with the policy declaration of this Act, State and interstate action to abate and control water pollution shall be encouraged. No action shall be initiated by the Administrator under sub- section (f) of this section in any case if he determines that the State or States involved are taking appro- priate and sufficient action in such case to secure compliance with water quality standards. "(c) Water quality standards adopted pursuant to subsection (e) of this section shall apply to: "(1l) All interstate waters of the United States; " (2) All navigable waters of the United States: " (3) Ground waters; "(4) The waters of the Contiguous Zone of the United States, with respect to pollution thereof, which causes or is likely to cause pollution of the territorial sea of the United States; " (5) The waters of the high seas beyond the territorial sea of the United States, with respect to discharges of matter transported from or originating in areas over which the United States has sovereignty; and "(6) Portions or tributaries of any of the waters specified in paragraphs (1) through (5) hereof, whether discharges reach such waters, tributaries, or portions thereof directly or from runoff or percolation. "(d) (1) For the purpose of advising States in adopting or revising water quality standards, the Administrator shall, after consultation with appro- priate Federal and State agencies and other interested persons, publish within the time specified in paragraph (6) of this subsection, and from time to 85 time thereafter, regulations providing specifications and methods to assure that in the establishment of water use designations, the use and value of water for public water supplies, propagation of fish and wildlife, recreational purposes, agricultural, industrial, navigational, and other legitimate uses are adequately taken into account. The Administrator shall not approve water use designations if: (i) such water use designation specifies trans- port or assimilation of waste as a primary use; or (ii) the Administrator determines that the use and value of the waters in question for public water supplies, propagation of fish and wildlife, recreational purposes, agricultural, industrial, navigational, and other legitimate uses have not been adequately taken into account. "(2) For the purpose of advising States in adopting or revising water quality standards, the Administrator shall, after consultation with appro- priate Federal and State agencies and other interested persons, publish, within the time specified in paragraph (6) of this subsection and from time to time thereafter, regulations establishing specifica- tions for water quality criteria. Such regulations shall reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on health and welfare and water quality which may be expected from the presence of a pollutant or combination of pollutants in any body of water in varying quantities. Such regulations shall, on the basis of such scientific knowledge, specify the water quality characteristics required to protect and enhance water quality, including those minimum or maximum characteristics required to permit and protect uses identified in water use designations, as well as analytical and test procedures to be used in determining such characteristics. "(3) In cases where the quality of water on the effective date of this section is higher than water quality criteria applicable to any use desig- nation, such high quality shall be maintained in accordance with regulations. "(4) For the purpose of advising States 86 adopting or revising water quality standards, the Administrator shall also, after consultation with appropriate Federal and State agencies and other interested persons, publish, within the time specified in paragraph (6) of this subsection and from time to time thereafter, regulations providing specifications for effluent limitations. Such regulations shall set forth the minimum acceptable levels of treatment or control, including allowable amounts of constituents of effluents, and permissible physical, chemical, and biological characteristics of effluents, which shall be based on the avail- ability of practicable treatment or control measures and shall be generally applicable to discharges from various categories of: "(i) Industrial facilities on which con- struction was commenced prior to the effective date of this subsection; "(ii) Industrial facilities on which con- struction shall be commenced after the effective date of this subsection (taking into account the best available technology): "(iii) Sanitary sewers and sewage treat- ment plants; and " (iv) Other sources. "(5) For the purpose of providing guidance to the States in adopting and revising water quality standards, the Administrator shall also, after con- sultation with appropriate Federal and State agencies and other interested persons, develop and publish within the time specified in paragraph (6) of this subsection and from time to time thereafter, recommended pollution control techniques necessary to achieve applicable water quality criteria and effluent limitations, including identification of available technology and data on the effectiveness, cost, and economic feasibility of alternative methods of prevention and control of water pollution. "(6) No later than six months after the date of enactment of this subsection, the Adminis- trator shall promulgate concurrently, in accordance with 5 U.S.C. §553, regulations under paragraphs (1), (2), (3), and (4) of this subsection, after allowing a reasonable time of at least 45 days, but not to 87 exceed 60 days from the publication of proposed regulations, for interested persons to submit written comments. Revisions of such regulations shall follow the procedures prescribed in this paragraph. "(7) All water quality standards established pursuant to this section shall be such as to protect the public health and welfare, enhance the quality of water, and serve the purposes of this Act. "(8) (A) Plans of implementation and enforce- ment shall include remedial or other measures required to achieve compliance with effluent limitations and water quality criteria. "(B) No plan of implementation and enforcement shall be approved by the Administrator un- less (i) in the case of industrial and municipal dischargers, it provides a phased schedule for the attainment of compliance with effluent limita- tions established pursuant to this subsection as expeditiously as practicable; and (ii) in the case of sources other than those specified in subparagraph (B) (i) of this paragraph, it provides for the attainment of applicable effluent limitations as expeditiously as practicable; and (iii) it identifies the nature and extent of improvement of water quality that is expected to result from measures in this plan. "(9) Nothing in this section shall require the revision of compliance dates specified in plans of implementation and enforcement included in water quality standards established pursuant to the Water Quality Act of 1965; provided, that such dates may be revised pursuant to subsections (e) (2) (B), (e) (2) (D), and (9) (6) of this section. "(e) (1) If a State, after public hearings, adopts within the time specified in paragraph (2) of this subsection water quality standards applicable to (i) all waters specified in subsection (c) hereof over which the State has jurisdiction, or (ii) portions thereof, and if the Administrator determines that such standards are consistent with the regulations and requirements established pursuant to subsection (d) of this section, such State standards shall be 88 approved by the Administrator as the water quality standards applicable to such waters or portions thereof. " (2) (A) Water quality standards established pursuant to this Act prior to the effective date of this subsection shall continue in effect until super- seded. If a State has not adopted, within one year after the promulgation of initial regulations under subsection (d) of this section, water quality standards applicable to all waters specified in subsection (c) hereof over which such State has jurisdiction; or if such State does not, within one year after the promul- gation of regulations, other than initial regulations, pursuant to subsection (d) of this section, adopt such revisions of water quality standards as are consistent with regulations and requirements established pursuant to subsection (d) of this section, or if the Adminis- trator determines that any water quality standards adopted by a State pursuant to this subsection are not consistent with the requirements of regulations estab- lished pursuant to subsection (d) of this section, the Administrator is authorized, after reasonable notice and a public hearing, to be held in or near the place where the standards will take effect, to publish proposed regulations setting forth water quality standards for those waters specified in sub- section (c) hereof over which the State has juris- diction. If within 60 days from the date the Admin- istrator publishes such proposed regulations, the State has not adopted water quality standards which the Administrator finds to be consistent with sub- section (d) of this section, the Administrator shall promulgate standards which shall be the water quality standards applicable to such waters or portions thereof. "(B) Water quality standards which, prior to the effective date of this paragraph, were adopted by a State and approved by the Administrator under this Act or submitted to him but not yet so approved by him prior to such date, and which do not include all of the elements of water quality standards as defined in subsection (a) (1) (A) of this section, shall be supplemented within the appropriate time specified in subparagraph (A) of this paragraph by 89 those elements which are not included. The Adminis- trator shall consult with the States and shall advise them what elements, if any, of existing approved standards shall be required to be revised pursuant to this subparagraph, giving due consideration to the desirability of preserving existing standards to the extent they are consistent with the purposes of this Act. After the effective date of this section, the Administrator may continue to approve standards or portions thereof submitted to him prior to the effective date of this subsection. "(C) Where the Administrator publishes regulations pursuant to subsection (d) of this section subsequent to the initial publication of regulations thereunder, such publication shall not constitute an extension of the date on which a State is required to submit standards pursuant to any prior publication of regulations, provided that where: "(i) the Administrator has issued regulations pursuant to subsection (d) of this section; and "(ii) less than one year after the issuance of such regulations the Administrator issues subsequent regulations; and "(iii) such subsequent regula- tions affect the same specific criteria or other elements of water quality standards as the prior regulations; a State may, in submitting standards pursuant to the prior regulations, omit the elements for which revision will be required pursuant to the subsequent regulations. "(D) If at any time the Governor of a State or the State water pollution control agency, on his or its own initiative or at the request of the Administrator, revises all or part of the water quality standards established under this section for the waters in subsection (c) hereof over which the State has jurisdiction, and if the Administrator determines that such revised standards are consistent with the regulations and requirements of subsection (d) of this section, such standards shall thereafter be the water quality standards applicable to such waters. "(3) For waters in subsection (c) hereof over which the States do not have jurisdiction, the 90 Administrator shall, after reasonable notice and a public hearing, promulgate regulations setting forth such water quality standards for such waters. Such hearings shall be held in or near the place where such standards will take effect. Affected States, interstate agencies, Federal departments and agencies, municipalities, industries, and other interested per- sons shall be given an opportunity to make a full statement of views. "(£f) (1) Whenever, on the basis of any infor- mation available to him, the Administrator determines that any person is in violation of water quality standards or any element thereof or limitations established under subsection (1) hereof, he shall notify such person and the water pollution control agency of the State or States in which such violation is occurring of his determination and of the remedial action which is required to achieve compliance. If the Administrator determines at any time after 30 days following such notice that required remedial action or appropriate State action has not been taken, he may issue an order for compliance or request that the Attorney General bring a civil action pursuant to paragraph (6) of this subsection. "(2) An order issued pursuant to paragraph (1) of this subsection shall state with reasonable specificity the nature of the violation and shall specify: a time for compliance, taking into account the practicability of compliance; any applicable compliance schedule which is part of either the applicable standards or a permit issued under section 407 of title 33 of the United States Code; the requirements of subsection (1) hereof; the seriousness of the violation; and any good faith efforts to comply with water quality standards, requirements of subsection (1) hereof, or such permit. A copy of any order issued under this subsection shall be sent to the State water pollution control agency of the State in which the violation occurs. In any case in which an order or notice under this subsection is issued to a corporation, a copy of such order or notice shall be issued to such corporate officers as the Administrator may determine to be appropriate. 91 416-694 O - 71 - 7 "(3) If within 15 days following receipt of an order under paragraph (1) of this subsection, the person to whom such order is issued files a request for a hearing, the Administrator shall promptly hold a public hearing to permit such person to present information relating to the order or the violation or both. The person requesting the hearing may be required to file, in such form as the Admin- istrator may specify, a report furnishing such infor- mation concerning the nature and amounts of dis- charges from facilities which he owns, leases, manages, or controls and which are subject to the order, as the Administrator may prescribe. Any hearing held pursuant to this paragraph shall be of record, and shall be subject to the provisions of section 554 of title 5 of the United States Code. Based on the record, the Administrator shall affirm, modify, or revoke the original order by a written decision which shall constitute his final order. If no hearing is duly requested pursuant to this paragraph and the Administrator does not on his own initiative modify or revoke an order issued pursuant to paragraph (1) of this subsection, such order shall constitute his final order. "(4) Any final order under paragraph (3) hereof shall be subject to judicial review in accordance with section 701 of title 5 of the United States Code by the United States Court of Appeals for the circuit in which the violation occurred, upon the filing of a petition in such court within thirty days from the date of such order by any person aggrieved thereby praying that such order be modified to set aside in whole or in part. The petitioner shall send a copy of such petition to the Administrator and the appropriate State water pollution control agency by registered mail. The Administrator shall certify and file in such court the record upon which the final order was issued. The court shall hear the petition on the record made before the Administrator. The court may affirm, modify, or revoke any order of the Administrator, or may remand the proceedings to the Administrator for such further action as it may direct. "(5) Any person who violates or fails or 92 refuses to comply with a final order of the Adminis- trator shall be liable to a civil penalty in an amount, not to exceed $25,000 per day of violation, to be determined by the Administrator and subject to compromise by him, after he has considered the nature, circumstances, and extent of such violation, the practicability of compliance with such standards and any good faith efforts to comply with such order. "(6) Any final order under paragraph (3) not appealed by an aggrieved person and any fine assessed by the Administrator under paragraph (5) shall be enforced by the Attorney General, upon the request of the Administrator, by petition to the United States Court of Appeals for the circuit in which the viola- tion occurred. "(7) The Administrator may request the Attorney General to commence a civil action for a permanent or temporary injunction, an order compelling testimony or the production of records, or such other relief as may be appropriate, whenever any person -- " (i) violates water quality standards; "(ii) fails or refuses to comply with any requirement of subsection (h) of this section; or "(iii) fails or refuses to comply with any requirement of subsection (1) of this section. Any action under this paragraph may be brought in the appropriate United States district court, and such court shall have jurisdiction to restrain viola- tions and to require compliance, after taking into account the factors specified in subsection (£) (2) of this section. Notice of the commencement of any such action shall be given to the appropriate State and interstate water pollution control agencies. "(8) The court, in any action under paragraph (7) of this subsection may assess a civil penalty of not more than $25,000 per day of violation in case of "(i) any violation of water quality standards; " (ii) any discharge in violation of subsection (1) of this section. The amount of such penalty shall be determined by the court after considering the nature, circum- stances, and extent of the violation and any good 93 faith efforts to comply. In any action under paragraph (7) of this subsection which is subsequent to one or more previous such actions resulting in the assessment of a penalty for a violation at the same facility, the court may assess a penalty of not more than $50,000 per day of violation. "(9) Any person who knowingly makes any material false statement or representation in any application, record, report, plan, or other document filed or required to be maintained under this section or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained pursuant to this section shall upon conviction be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both. "(g) (1) Whenever the Administrator, on the basis of any information available to him or at the request of the Governor of a State: "(A) believes or has reason to believe that pollution of any waters specified in subsection (c) of this section is occurring which endangers the health or welfare of any persons, or that water quality standards are being or may be violated, or "(B) wishes to investigate any acts, conditions, practices, or matters in order to determine whether any person has violated or is about to violate any provision of this Act or any standards established pursuant thereto or to aid in the carrying out of any of the provisions of this Act, including the promulgation of water quality standards, rules or regulations thereunder, or in obtaining information to serve as a basis for recommending further legislation concerning the matters to which this Act relates, he may call a public hearing for the purpose of obtaining infor- mation and determining the remedial or other action which may be appropriate. "(2) Notice of such hearing shall be published in the Federal Register and in a newspaper of general circulation in or near the place where the hearing is to be held, and given to the State and interstate water pollution control agencies of the State or States in which any discharge causing or 94 contributing to any pollution which is to be con- sidered at the hearing originates, and of any other State or States adversely affected by any such pollution, to the municipalities concerned, and to any person believed to be causing or contributing to any such pollution. "(3) The Administrator shall give the State or States, any interstate agency, and the municipalities involved, and every person contributing to any pollution referred to in paragraph (1) of this subsection or affected by it, and other interested persons, an opportunity to make a full statement of views at the hearing. Such statements may be made under oath or otherwise, and may be written or oral, as the Administrator may prescribe. " (4) The Administrator shall prescribe by regulation the procedures to be followed in any hearing under this subsection. "(5) In any hearing under this subsection, the Administrator or his representative shall invite representatives of the States in which pollution may be originating, and representatives of States affected by such pollution, to assist him in conducting such hearing. After any such representatives have been impaneled, they shall be entitled to question witnesses, to present evidence, and otherwise fully participate in the hearing. At the conclusion of the hearing, the hearing panel shall make a report which may contain findings concerning the existence of pollution, violations of any provisions of this Act, and recom- mendations for corrective action and any dissenting views of panel members. After such report is pre- pared, the Administrator may take such action pur- suant to this Act as may be appropriate. "(6) Where, after reviewing the report of a hearing panel, the Administrator determines that pollution is occurring which endangers the quality of water or the health and welfare of persons, and that revision of previously established standards is required, he may request that a State adopt within a reasonable time, not less than 60 days, specified by the Administrator, revised standards for those waters specified in subsection (c) hereof over which the State has jurisdiction. The Administrator shall specify 25 the waters for which revision is required, and the specific criteria, effluent limitations, or pro- visions of the plan of implementation and enforcement which require revision. If the State adopts revised standards pursuant to the Administrator's request, and the Administrator determines that such revised standards are consistent with the requirements of subsection (d) of this section, such revised standards shall be the water quality standards for such waters. If the State does not, within the time specified by the Administrator, adopt acceptable revised standards, the Administrator is authorized, after reasonable notice and a public hearing, to publish proposed regulations setting forth such water quality standards. If within 30 days from the date the Administrator publishes such regulations, the State has not adopted water quality standards which are consistent with subsection (d) of this section and with the purposes of this Act, the Administrator shall promulgate such standards. "(7) Notwithstanding any other provisions of this subsection, the authority of the Administrator pursuant to other subsections of this section is not affected. "(h) (1) For the purpose of any hearing held under this section, the Administrator may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for effluent data, upon a showing satisfac- tory to the Administrator that such papers, books, documents, or information or particular part there- of, if made public would divulge trade secrets or secret processes, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18 of the United States Code, except that such paper, book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act. Such attendance of witnesses and the production of any such records may be required from any place in the United States at any reasonable place designated 96 for the hearing. Witnesses summoned by the Adminis- trator to appear before him shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. "(2) The testimony of any witness may be taken, at the instance of a party, in any hearing under this Act, by deposition, at any time after the notice of the proceeding is published. The Administrator may also order testimony to be taken before any person authorized to administer oaths who is not counsel or attorney to the party making the deposition. "(3) If a witness whose testimony may be desired to be taken by deposition is in a foreign country, the deposition may be taken before an officer or person designated by the Administrator, or agreed upon by the parties by stipulation in writing to be filed with the Administrator. All depositions must be promptly filed with the Administrator. " (4) Witnesses whose depositions are taken as authorized in this Act, and the person or officer taking the same, shall be entitled to the same fees and mileage that are paid witnesses in the courts of the United States. "(i) (1) After the effective date of this subsection, any person who owns, leases, manages or controls any public or private property or facility from which discharge is being made into water specified in subsection (c) shall with respect to such discharge install, use, and maintain such monitoring equipment or methods and establish and maintain such records, make such reports, and provide such information as the Administrator may require for the purpose of ascertaining compliance with water quality standards, taking into account the extent to which such information is available to the Admin- istrator from State or locally required monitoring. "(2) The Administrator or his authorized representative, upon presenting appropriate creden- tials, is authorized -- " (A) to enter, at reasonable times, any public or private property from which discharge is being made into waters specified in subsection (c): "(B) to inspect and investigate, at reasonable times, within reasonable limits and in a 97 reasonable manner, the operation of collection systems, waste treatment works or facilities, or conditions relating to pollution or the possible pollution of - such waters; and "(C) to have access to such record in connection therewith, including reports or information required by paragraph (1) of this subsection, as the Administrator may require. "(3) Any records, reports, or information obtained under paragraph (1) of this subsection shall be available to the public, except that upon a showing satisfactory to the Administrator that records, reports, or information, or a particular part thereof (other than effluent data), to which the Administrator has access under this subsection constitute trade secrets or other matter referred to in section 1905 of title 18 of the United States Code, the Administrator shall consider such record, report, or information or particular portion thereof confidential, except that such record, report, or information may be disclosed to other officers, employees, or authorized repre- sentatives of the United States concerned with carrying out this Act, and such information may be disclosed in camera relevant in any proceeding under this Act. "(j) Notwithstanding any other provision of this section, the Administrator, upon his determination that any discharge or combination of discharges into any of the waters specified in subsection (c) presents an imminent and substantial danger to the health or welfare of any person or persons, or to water quality, may request the Attorney General to bring a suit on behalf of the United States in the appropriate United States district court to enjoin immediately any person contributing to the alleged pollution from further discharges causing such danger and to take such other action as may be necessary. "(k) (1) Except as provided in paragraph (2) hereof, any person may commence a civil action on his own behalf -- "(A) against any person, including the United States and any other governmental instrumentality or agency (to the extent permitted 98 by the Eleventh Amendment to the Constitution), who is alleged to be in violation of any standard or limitation under this section or a final order issued by the Administrator or a State with respect to such a standard or limitation, or "(B) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this section which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy Or the citizenship of the parties, to enforce such standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, taking into account the practicability of compliance; any applicable compliance schedule which is part of either the applicable standards or a permit issued under section 407 of title 33 of the United States Code: the requirements of subsection (1) hereof; the seriousness of the violation; and any good faith efforts to comply with water quality standards, re- quirements of subsection (1) hereof, or such permit. " (2) No action may be commenced -- " (A) under subparagraph (1) (A) hereof-- " (i) prior to 60 days after the plaintiff has given notice of the violation to the Administrator, to the State in which the violation occurs, and to any alleged violator of the standard, limitation, or order; or "(ii) if the administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standards, limitation, or order; or "(iii) if the Administrator has issued and is diligently seeking to enforce an order pursuant to subsection (f) of this section. "(B) under subparagraph (1) (B) hereof prior to 60 days after the plaintiff has given notice of such action to the Administrator in such manner as the Administrator shall prescribe by regulation. "(3) (A) Any action respecting a violation of a standard or limitation or an order respecting such standard or limitation may be brought only in the 99 judicial district in which the violation occurs. "(B) In any such action under this subsection in which the United States is not a party, the Attorney General, at the request of the Adminis- trator, may intervene on behalf of the United States as a matter of right. "(4) The Court, in issuing any final order in any action brought pursuant to paragraph (1) hereof, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, when- ever the court determines such award is appropriate. "(5) The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Administrator or a State agency) . "(6) (A) In order to direct notice of the commencement of any action brought pursuant to paragraph (1) of this subsection to persons who may join in the action under subparagraph (B) of this paragraph, the court, upon motion of any party made within sixty days of the commencement of the action, shall order notice published in at least one news-— paper of general circulation in the place where the court sits and shall direct the Administrator to publish notice in the Federal Register. The notice shall advise that the judgment, whether favorable or not, will be binding on all such persons and that any such person may if he desires join the suit, and shall contain such other matters and be in such form as the court may provide. "(B) Any person who might have brought suit on his own behalf on the matters alleged in the complaint may join such suit as a plaintiff, and, in any case where notice was given as provided in sub- paragraph (A) of this paragraph, a failure to join shall bar any subsequent suit under this subsection by such person as if such person has joined in such suit. "(C) In any action under this subsection the court, in its discretion, may make such orders as it deems appropriate to prevent undue repetition or complication in the presentation of evidence or argu-— ment, including orders that one or more parties may 100 adequately and fairly represent other parties. "(1) (1) The Administrator shall, within sixty days after the enactment of this section and from time to time thereafter, publish in the Federal Register a list of those elements and compounds other than oil as defined in section 11 of this Act, or combination of such elements and compounds which in his judgment possess a high potential for presenting an imminent and substantial danger to the health or welfare of persons or to water quality because of their nondegradable or persistent nature or because they can be biologically magnified, or because they can be immediately lethal, or because they otherwise cause or tend to cause detrimental cumulative effects, and which may be subject to an effluent limitation established under this section. He shall simultaneously publish a summary of all evidence available to him concerning the effects of those elements, compounds, and combinations thereof on the health or welfare of persons or on water quality. " (2) Within six months after the publication of such list, or revision thereof, the Administrator, in accordance with section 553 of title 5 of the United States Code, shall publish for comment proposed effluent limitations including, if appropriate, prohibition of discharges, of each such element and compound or combination of elements and compounds together with a summary of the evidence on which such limitations are based. No later than ninety days after such publication the Administrator shall promulgate final limitations. "(3) Prior to publishing any lists or regulations pursuant to this subsection the Adminis- trator shall, to the maximum extent practicable within the time provided, consult with appropriate advisory committees, independent experts, and Federal depart- ments and agencies. "(4) The President may exempt any person from any limitation or limitations estab- lished under this subsection for a period of not more than two years if he finds that such exemption is required for reasons of national security. An exemption under this paragraph may be extended for one or more additional periods, each period not to 101 exceed two years." Sec. 2. Section 23 of the Federal Water Pollution Control Act, as amended, is amended to revise subsection (a) to read as follows: "(a) The term 'State water pollution control agency' means a single State agency designated by that State as the official State water pollution control agency for purposes of this Act." and to add the following subsection (gq): "(g) 'Contiguous zone' means the entire zone defined by article 24 of the Convention on the Territorial Sea and the Contiguous Zone." 102 Pesticides 103 ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker] : Enclosed is a draft of a proposed bill "to protect the public health and welfare and the environment through improved regulation of pesticides, and for other purposes." I recommend that the bill be referred to the appropriate committee for consideration and that it be enacted. The legislative proposal would, among other things: (1) Require the Administrator of the Environ- mental Protection Agency, when registering a pesticide, to consider the environmental effects of the pesticides; (2) Require classification of pesticides, upon registration, as being: (a) for general use; (b) for restricted use; (c) for use by permit only; (3) Permit experimental registration of pesticides. Pesticides designated as being for restricted use could be used only by or under the direct supervision of approved pesticide applicators. Pesticides designated as being for use by permit only would require the approval of an approved pest management consultant for each application of the pesticide. Contracts are authorized to provide for Federal assistance in training applicators and consultants; 104 (4) Simplify the existing procedures relating to cancellation and suspension of pesticide registrations; (5) Allow the Administrator to order a stop to the sale of a pesticide if he believes that the pesticide is in violation of the Act; (6) Provide for registration and inspection of establishments manufacturing or processing pesticides; (7) Require that pesticide exporters file with the Administrator a certification that the article exported is in compliance with the laws and regulations of the foreign country to which it is being sent. The provisions of the proposal would considerably strengthen the Federal Government's efforts in pesti- cides regulation. A section-by-section analysis of the bill is enclosed. A similar letter is being sent to the [President/Speaker] . The bill is part of the President's environmental program as announced in his Environmental Message of February 8, 1971. It will be administered by the Environmental Protection Agency and was developed in coordination with the Council on Environmental Quality. The Office of Management and Budget advises that enactment of this proposed legislation would be in accord with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus Honorable Spiro T. Aghew Honorable Carl B. Albert President of the Senate Speaker of House of Washington, D.C. 20510 Representatives Washington, D.C. 20515 105 A BILL THE FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT OF 1971 A bill to protect the public health and welfare and the environment through improved regulation of pesticides, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, TITLE AND FINDINGS Section 1. (a) This act may be cited as the Federal Environmental Pesticide Control Act of 1971. (b) The Congress hereby finds that pesticides are valuable to our Nation's agricultural production and to the protection of man and the environment from insects, rodents, weeds and other forms of 1ife which may be pests; but it is essential to the public health and welfare that they be regulated closely to prevent adverse effects on human life and the environment, including pollution of interstate and navigable waters; that pesticides are used throughout the Nation and the major portion thereof moves in interstate or foreign commerce; that it is essential in the public interest to protect the public health and welfare from adverse effects of pesticide residues on food which is consumed throughout the Nation and which moves in interstate or foreign commerce; and that regulation by the Adminis- trator and cooperation by the States and other juris- dictions as contemplated by this Act are appropriate to prevent and eliminate burdens upon interstate or foreign commerce, to effectively regulate such commerce and to protect the public health and welfare and the environment. DEFINITIONS Section 2. For the purposes of this Act —- (a) The term 'pesticide' means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, weeds, and other forms of terrestrial or aquatic plant or animal life or viruses, bacteria, or other micro-organisms, except viruses, bac- teria, or other micro-organisms on or in living man or other animals, which the Administrator shall declare to 106 be a pest, and (2) any substance or mixture of substances in- tended for use as a plant regulator, defoliant or desiccant. (b) The term 'device' means any instrument or contrivance intended for trapping, destroying, repelling, or mitigating insects, birds, predators, or rodents or destroying, repelling, or mitigating fungi, nematodes, or such other pests as may be designated by the Admin- istrator, but not including equipment used for the application of pesticides when sold separately therefrom. (c) The term 'plant regulator' means any sub- stance or mixture of substances, intended through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for other- wise altering the behavior of plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments. (d) The term 'defoliant' means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission. (e) The term 'desiccant' means any substance or mixture of substances intended for artificially accel- erating the drying of plant tissue. (f) The term 'environment' includes water, air, land, all plants and animals living therein, and the interrelationships which exist among these. (g) The term 'animal' means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish. (h) The term 'nematode' means invertebrate animals of the phylum nemathelminthes and class nema- toda, that is, unsegmented round worms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants or plant parts; may also be called nemas or eelworms. (i) The term 'weed' means any plant which grows where not wanted. (Jj) The term 'insect' means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, comprising six-legged, usually winged forms, as, for example, beetles, bugs, 107 416-694 O - 71 - 8 bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six legs, as, for example, spiders, mites, ticks, centipedes, and wood lice. (k) The term 'fungi' means all non-chlorophyll- bearing thallophytes (that is, all non-chlorophyll- bearing plants of a lower order than mosses and liver- worts) as, for example, rusts, smuts, mildews, molds, yeasts, and bacteria, except those on or in living man or other animals, and except those in or on processed food, beverages, or pharmaceuticals. (1) The term 'ingredient statement' means either-- (1) a statement of the name and percentage of each active ingredient, together with the total percentage of the inert ingredients, in the pesticide; or (2) a statement of the name of each active ingredient, together with the name of each and total percentage of the inert ingredients, if any there be, in the pesticide (except paragraph 1 of this subsection shall apply if the preparation is classified as for restricted use or for use by permit only under section 4(d)of this Act); and, in addition to (1) or (2) in case the pesticide contains arsenic in any form, a statement of the percentage of total and water soluble arsenic, each calculated as elemental arsenic. (m) The term 'active ingredient' means -- (1) in the case of a pesticide other than a plant regulator, defoliant or desiccant, an ingredient which will prevent, destroy, repel, or mitigate any insects, nematodes, rodents, fungi, weeds, or other pests; (2) in the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of plants or the product thereof; (3) in the case of a defoliant, an ingre- dient which will cause the leaves or foliage to drop from a plant; (4) in the case of a desiccant, an ingre- dient which will artificially accelerate the drying of plant tissue. (n) The term 'inert ingredient' means an ingre- dient which is not an active ingredient. 108 (0) The term 'antidote' means a practical treatment in case of poisoning and includes first-aid treatment. (p) The term 'State' means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa. (gq) The term 'Administrator' means the Admin- istrator of the Environmental Protection Agency. (r) The term 'registrant' means a person who has registered any pesticide pursuant to the provisions of this Act. (s) The term 'label' means the written, printed, or graphic matter on, or attached to, the pesticide or device or the immediate container thereof, and the out- side container or wrapper of the retail package, if any there be, of the pesticide or device. (t) The term 'labeling' means all labels and other written, printed, or graphic matter -- (1) upon the pesticide or device or any of its containers or wrappers: (2) accompanying the pesticide or device at any time; (3) to which reference is made on the label or in literature accompanying the pesticide or device, except to current official publications of the Environ- mental Protection Agency, the United States Departments of Agriculture and Interior, the Department of Health, Education and Welfare, State experiment stations, State agricultural colleges, and other similar Federal or State institutions or agencies authorized by law to conduct research in the field of pesticides. (u) The term 'adulterated' shall apply to any pesticide if its strength or purity falls below the professed standard of quality as expressed on its labeling or under which it is sold, or if any substance has been substituted wholly or in part for the article, or if any valuable constituent of the article has been wholly or in part abstracted. (v) The term 'misbranded' shall apply -- (1) to any pesticide or device if its label- ing bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular or if it is contained in 109 a package, other container or wrapping which does not conform to the standards established by the Adminis- trator pursuant to the provisions of section 6 of this Act, or if it was manufactured, prepared, propagated, compounded, or processed in an establishment for which a registration was not effective under subsection 9(b) of this Act; and to any device if it does not comply with the provisions of subparagraph 2(z) (2) (c), (D), or (G) when such compliance is required under section 6; (2) to any pesticide -- (A) if it is an imitation of or is offered for sale under the name of another pesticide; (B) if its labeling bears any reference to registration under this Act other than the pesticide registration number, the number assigned to the manu- facturing establishment, and the use classification of the pesticide; (C) if the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and if complied with adequate for the protection of health and the environment; (D) if the label does not contain a warning or caution statement which may be necessary and if complied with adequate to protect health and the environment, including living man and other vertebrate animals, vegetation, and invertebrate animals other than those against which the pesticide is intended to be used; (E) if the label does not bear an ingre- dient statement on that part of the immediate container and on the outside container or wrapper, if there be one, through which the ingredient statement on the immediate container cannot be clearly read, of the retail package which is presented or displayed under customary conditions of purchase: Provided, That the Administrator may permit the ingredient statement to appear prominently on some other part of the container, if the size or form of the container makes it imprac- ticable to place it on the part of the retail package which is presented or displayed under customary con- ditions of purchase; (F) if any word, statement, or other information required by or under authority of this Act to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use; (6) if when used as directed or in accordance with common practice it shall be injurious to living man, including the person applying such pesticide, or to the environment, except pests as designated by the Administrator. In determining whether a pesticide is injurious the Administrator shall consider both the short-term and long-term effects on man, and the environment, including its persistence, degradation, and potential for movement and accumulation in the environment. In the case of a plant regulator, defoliant, or desiccant, used in accordance with the label claims and recommendations, physical or physio- logical effects on plants or parts thereof shall not be deemed to be injury, when such effects are the pur- pose for which the plant regulator, defoliant, or desiccant was applied. (w) The terms 'proper court' and 'district court' mean a United States district court, the District Court of Guam, the District Court of the Virgin Islands, and the highest court of American Samoa. (x) The term 'imminent hazard' means a situation which exists when the evidence is sufficient to show that a pesticide creates a hazard to man or the environ- ment (1) that should be corrected immediately to prevent injury, and (2) that should not be permitted to continue while a hearing or other formal proceeding is being held. (y) The phrase 'protect health and the environ- ment' means protection against any injury to man and protection against any substantial adverse effects to environmental values, taking into account the public interest. PROHIBITED ACTS Section 3. (a) It shall be unlawful for any person to distribute, sell, or offer for sale or hold for sale in any State or to ship or deliver for shipment from any State to any other State, or to any foreign country, or to receive in any State, from any other State or foreign country, and having so received, deliver or offer to deliver to any person, any of the following: (1) any pesticide which is not registered pursuant to the provisions of section 4 of this Act, or any pesticide if any of the representations made for it or any of the directions for its use differ in substance from the representations approved in connection with its registration, or if the composition of a pesticide differs from its composition as repre- sented in connection with its registration: Provided, That in the discretion of the Administrator, a change in the labeling or formula of a pesticide may be made within a registration period without requiring reregis- tration of the product, provided that such change will not have an adverse impact on man or the environment. (2) Any pesticide unless there is affixed to its container, and to the outside container or wrapper of the retail package, if there be one, through which the required information on the immediate con- tainer cannot be clearly read, a label bearing -- (A) the name and address of the manu- facturer, registrant, or person for whom manufactured; (B) the name, brand, or trade-mark under which said article is sold: (C) the net weight or measure of the content: Provided, That the Administrator may permit reasonable variations; and (D) when required by regulation of the Administrator to effectuate the purposes of this Act, the registration number assigned to the article under this Act, the use classification, and the number assigned to each establishment under section 9(b) of this Act, in which the article was manufactured, prepared, prop- agated, compounded or processed. (3) Any pesticide which contains any sub- stance or substances in quantities injurious to man or the environment, determined as provided in section 6 of this Act, unless the label shall bear, in addition to any other matter required by this Act -- (A) the skull and crossbones; (B) the word "poison" prominently in red on a background of distinctly contrasting color; and (C) a statement of an antidote for the pesticide. (4) Any pesticide which the Administrator, after investigation of and a public hearing on the necessity for such action for the protection of health" and the environment and the feasibility of such color- ation or discoloration, shall, by regulation, require to be distinctly colored or discolored, unless it has been so colored or discolored. (5) Any pesticide which is adulterated or misbranded or any device which is misbranded. (b) It shall be unlawful -- (1) for any person to detach, alter, deface, or destroy, in whole or in part, any label or labeling provided for in this Act or the rules and regulations promulgated hereunder, or to add any substance to, or take any substance from, a pesticide in a manner that may defeat the purpose of this Act; (2) for any manufacturer, distributor, dealer, carrier, or other person to refuse, upon a request in writing specifying the nature or kind of pesticide or device to which such request relates, to furnish to or permit any person designated by the Administrator to have access to and to copy such records as authorized by section 9 of this Act, or to refuse to permit entry, or inspection, or taking of samples as authorized by section 9 of this Act; (3) for any person to give a guaranty or undertaking provided for in section 10 which is false in any particular, except that a person who receives and relies upon a guaranty authorized under section 10 may give a guaranty to the same effect, which guaranty shall contain, in addition to his own name and address, the name and address of the person residing in the United States from whom he received the guaranty or undertaking; (4) for any person to use for his own advan- tage or to reveal, other than to the Administrator, or officials or employees of the Environmental Protection Agency or other Federal executive agencies, or to the courts, or to physicians, pharmacists and other quali- fied persons, needing such information for the perfor- mance of their duties, in accordance with such directions as the Administrator may prescribe, any information relative to formulas of products acquired by authority 113 of this Act; except that the Administrator may reveal data necessary to comply with provisions of section 4 (e) and (f); (5) for any person to fail to maintain the records prescribed by the Administrator pursuant to section 6 of this Act or for any person to refuse to permit any person designated by the Administrator to have access to and to copy such records; (6) for any person to advertise a product registered under this Act without giving the classi- fication of the product assigned to it under section 4(d); or to advertise a product without indicating that use of the product is authorized by law only if used in accordance with the label on the product; (7) for any person to make available for use or to use a pesticide classified under section 4 (d) of this Act other than in accordance with such classifi- cation or to use a pesticide for experimental use contrary to the provisions of a permit under section 4 (c) of this Act: (8) for any person to fail to obey an order to recall products in accordance with section 5(d) of this Act or to violate an order issued under section 7 (a) of this Act: and (9) for any person to fail to file the report called for in section 5 (a) of this Act or any other reports required by this Act or to provide any false or misleading information in such reports. REGISTRATION Section 4. (a) Every pesticide which is distri- buted, sold, or offered for sale in any State or which is shipped or delivered for shipment from any State to any other State or which is received from any foreign country shall be registered with the Administrator: Provided, That products which have the same formula, are manufactured by the same person, the labeling of which contains the same claims, and the labels of which bear a designation identifying the product as the same pesticide may be registered as a single pesticide; and additional names and labels shall be added by supple- mental statements. The applicant for registration shall file with the Administrator a statement including-- (1) the name and address of the registrant and the name and address of the person whose name will 114 appear on the label, if other than the registrant; (2) the name of the pesticide; (3) a complete copy of the labeling accom- panying the pesticide and a statement of all claims to be made for it, including the directions for use; (4) if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, clearly marking any portions thereof which in the manufacturer's opinion are trade secrets or secret processes and submitting such marked documents separately from other material required to be submitted hereunder; and (5) the complete formula of the pesticide. The Administrator shall publish in the Federal Register a notice of each application for registration, which notice shall provide for a period of at least 30 days in which any Government agency or other interested person may comment. (b) If it appears to the Administrator that the composition of the article is such as to warrant the proposed claims for it and if the article and its labeling and other material required to be submitted comply with the requirements of section 3 of this Act, he shall register it. (c) The Administrator, whenever he considers further information necessary before registering a pesticide, may issue a permit for the experimental use of a pesticide for the purpose of collecting such infor- mation necessary for registration. Such experimental use shall be under such conditions as the Administrator shall prescribe in the permit and under the gtrict supervision of the Administrator and shall be for a period of time specified by the Administrator. Before issuing a permit for experimental use, the Adminis- trator is authorized to establish a temporary tolerance level for the residue of the experimental pesticide permissible in food if the pesticide may reasonably be expected to result in residues in or on food. When a permit for experimental use is issued for a pesticide containing chemicals or combinations of chemicals which have not been included in previously registered pesti- cides, the Administrator may specify that the experi- mental period must include studies designed to detect possible ill effects in persons, and the environment, 115 exposed either directly or indirectly to the pesticide during the experimental period. All results of such studies must be reported to the Administrator and a pesticide shall not be registered until such results are evaluated. The Administrator may revoke a permit at any time if he finds that the conditions contained in the permit are not being complied with or are in- adequate to protect health and the environment or if the data developed under the permit clearly establish that the pesticide does not meet the requirements of this Act. (d) Upon registering a pesticide, the Adminis- trator shall designate it as being for "general use", for "restricted use", or for "use by permit only". A pesticide may be designated as for restricted use when its use without such restriction can result in injury to the applicator or when care is needed in its application to protect the environment. A pesticide may be designated as for permit use only when the pattern of use of the pesticide without such permit would not protect health and the environment. The Administrator may designate a pesticide as being for one use or combination of uses in a particular region or State and for a different use or combination of uses in another State or region if in his opinion such action is necessary to fulfill the purposes of this Act because of the conditions prevailing in the particular State or region. (1) Articles designated as being for general use shall be used and made available for use subject only to the other provisions of this Act and to restric- tions by State and local governments. (2) Articles designated as being for re- stricted use shall be used only by or under the direct supervision of approved pesticide applicators. No approved pesticide applicator shall use any pesticide required to be registered under this Act unless such product is so registered, and no approved pesticide applicator shall use any registered pesticide except in accordance with the labeling accepted in connection with the registration. As used in this subsection, the term 'approved pesticide applicator' means any person who uses any pesticide for any purpose specified in subsection 2 (a) of this Act and (a) who has a license 116 issued by the State in which such operations are conducted upon the basis of a demonstration of his competence in the use and other handling and knowledge of the toxicity and antidotes of the pesticide involved, according to standards approved or prescribed by the Administrator as hereinafter provided, or (b) who is employed by a Federal, State, or local governmental agency in pest control programs or is engaged in research concerning the development, evaluation, or use of pesticides; and who meets such standards as the Administrator shall approve or prescribe to assure that such person has sufficient competence in the handling and knowledge of the toxicity and antidotes of such pesticide to avoid any hazard to the public. The Administrator shall by regulation promulgate such standards prescribed by him and a list identifying any such standards approved by him. The standards prescribed by the Administrator shall include, when appropriate, provision for State surveillance and review of the competence of approved pesticide appli- cators, and provision for the removal of the license when an approved applicator has been shown to lack the necessary competence. (3) Articles designated for use by permit only shall be used or made available for use only with the approval, in writing, for the amount and type of article for each particular application, of an approved pest management consultant. As used in this subsection, the term 'approved pest management consultant' means any person who has a license issued by a State or who is a Federal or State employee engaged in the perfor- mance of his official duties, and who meets such standards as the Administrator shall approve or prescribe to assure that such person has sufficient knowledge of the uses, necessity for application, methods of application, and environmental and health effects of pesticides to avoid any unnecessary hazard to the public or to other parts of the environment. The Administrator shall by regulation promulgate such standards prescribed by him and a list identifying any such standards approved by him. The standards pre- scribed by the Administrator shall include, when appropriate, provisions for State surveillance and review of the competence of approved pest management consultants, and provisions for the removal of a license or certificate when an approved consultant has been shown to lack the necessary competence. (4) The Administrator is authorized to cooperate with and assist State agencies in developing and administering State programs for training and approval of pesticide applicators and pest management consultants. He may establish by regulation, and periodically review compliance with, such guidelines as are necessary to ensure that State programs are adequate for purposes of this section. Such guidelines shall include, but not be limited to: provisions that appli- cants receive appropriate technical and other training before approval; that there is a fair and non-discrimin- atory system of testing of applicants, with provision for periodic retesting; that fees charged for licenses, permits or other approval of applicants are no greater than those reasonably calculated to cover the cost of the licensing or permit program; and that no arbitrary obstacles exist in the training and approval of such persons. (5) The Administrator may change the designation of a pesticide under this subsection at any time if he finds that such action is necessary to or will adequately protect health and the environment, but he shall publish such a proposed change in the Federal Register 30 days prior to making the change. The decisions of the Administrator with respect to designation or a change in designation shall be subject to the same procedures of appeal contained in subsection (E) of this section. The Administrator may designate a pesticide as being both for restricted use and for use by permit only. If a pesticide is designated for general use for some purposes but for restricted or permit use for other purposes, there must be separate labeling and packaging for those items of the pesticide intended for general use. (6) No portion of this subsection, except with regard to registration and designation of pesticides by the Administrator, shall become effective in any State until the Administrator publishes in the Federal Register a notice declaring the date on which it is to become effective and such notice shall be published at least 30 days before the effective date, Provided, That 118 the effective date for notices covering all portions of this subsection and all States shall be within four years after the effective date of this Act. (e) If it does not appear to the Administrator that the article is such as to warrant the proposed claims for it or if the article and its labeling and other material required to be submitted do not comply with the provisions of this Act, he shall notify the applicant for registration of the manner in which the article, labeling or other material required to be sub- mitted fails to comply with the Act so as to afford the applicant for registration an opportunity to make the corrections necessary. If, upon receipt of such notice, the applicant for registration does not make the corrections, the Administrator shall refuse to register the article. Whenever the Administrator refuses registration of a pesticide he shall notify the applicant for registration of his action and the reasons therefor. Whenever an application for regis- tration is refused, the applicant, within thirty days after service of notice of such refusal, may file objections and request a public hearing in accordance with this section. In the event a hearing is requested, the Administrator shall, after due notice, hold such public hearing for the purpose of receiving evidence relevant and material to the issues raised by such objections. As soon as practicable after completion of the hearing, but not later than ninety days, the Administrator shall evaluate the data before him, act upon such objections and issue an order granting or denying the registration or requiring modification of the claims or the labeling. Such order shall be based only on substantial evidence of record of such hearing, and shall set forth detailed findings of fact upon which the order is based. In connection with consideration of any application for registration under this section, the Administrator may consult with any other Federal agency or with any advisory committee appointed by him for this purpose. Notwithstanding the provisions of section 3(b) (4), information relative to formulas of products acquired by authority of this section may be revealed, when necessary under this section, to any Federal agency consulted, or at a public hearing, or in findings of fact issued by the 119 Administrator. Final orders of the Administrator under this section shall be subject to judicial review in accordance with the provisions of subsection (g). In no event shall registration of an article be construed as a defense for the commission of any offense prohibited under section 3 of this Act. The Administrator shall reach a decision as to whether to register a pesticide as expeditiously as possible. (f) within 30 days after the Administrator registers or refuses to register a pesticide under this section he shall make available to the public the data called for in subsections (1)-(5) of subsection (A) of this section together with such other scientific information as he deems relevant to his decision; Provided, That the Administrator shall not make public information which contains or relates to trade secrets or commercial or financial information obtained from a person and privileged or confidential. (g) In a case of actual controversy as to the validity of any order under this section, any person who will be adversely affected by such order may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has his principal place of business within sixty days after the entry of such order, a petition praying that the order be set aside in whole or in part. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Administrator, or any officer designated by him for that purpose, and there- upon the Administrator shall file in the court the record of the proceedings on which he based his order, as provided in section 2112 of title 28, United States Code. Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. The findings of the Administrator with respect to questions of fact shall be sustained if supported by substantial evidence when considered on the record as a whole. If appli- cation is made to the court for leave to adduce additional evidence, the court may order such additional evidence to be taken before the Adminis- trator, and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court seem proper if such evidence is material and 120 there were reasonable grounds for failure to adduce such evidence in the proceedings below. The Adminis- trator may modify his findings as to the facts and order by reason of the additional evidence so taken, and shall file with the court such modified findings and order. The judgment of the court affirming or setting aside, in whole or in part, any order under this section shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28 of the United States Code. The commencement of proceedings under this section shall not operate as a stay of an order. The court shall advance on the docket and expedite the disposition of all causes filed therein pursuant to this section. (h) Notwithstanding any other provision of this Act, registration is not required in the case of a pesticide shipped from one establishment to another establishment operated by the same person and used solely at such establishment as a constituent part to make a pesticide which is registered under this Act. CANCELLATION AND SUSPENSION Section 5. (a) The Administrator shall cancel the registration of any pesticide at the end of a period of five years following the initial registration of such pesticide or at the end of any five-year period thereafter, unless the registrant, prior to the expiration of each such period, requests in accordance with regulations issued by the Administrator that such registration be continued in effect. Three years after the initial registration, the registrant shall submit to the Administrator a report covering any information available to the registrant regarding environmental or health effects of the registered pesti- cide which were not noted in the material submitted by the registrant at the time of initial registration. (b) The Administrator may cancel the registration of a pesticide whenever it appears that the article or its labeling does not comply with the provisions of this Act. (c) Whenever the Administrator determines that registration of a pesticide should be cancelled, he shall notify the registrant of his action and the reasons therefor. A cancellation of registration shall be 121 effective thirty days after service of the foregoing notice unless within such time the registrant (1) makes the necessary corrections; or (2) files objections and requests a public hearing. Requests for a public hearing shall be granted. The procedures for holding a public hearing shall be the same as those outlined in section 4 (e). Final orders of the Administrator under this subsection shall be subject to judicial review in accordance with the provisions of section 4(g). Concurrently with proceedings taken under this sub- section, if the Administrator makes the finding required in subsection (d) of this section, he may also immediately suspend the registration of a pesticide under the provisions of the aforesaid subsection (d). (d) The Administrator may by order, when he finds that such action is necessary to prevent an imminent hazard to health or the environment, suspend the registration of a pesticide immediately. In such case, he shall give the registrant prompt notice of such action and any hearing held under the provisions of section 5(c) and (e) to consider suspension and cancellation shall be held with the utmost possible expedition. The Administrator, when he suspends regis- tration of a pesticide under the provisions of this subsection, may also require that stocks of the sus- pended pesticide be recalled by the manufacturer from wholesalers, retailers, and other distributors. (e) Whenever the Administrator suspends the registration of a pesticide under the provisions of subsection (d) of this section, he shall at the same time initiate proceedings to cancel the registration of the pesticide. The suspension shall automatically be revoked if the Administrator decides not to cancel the registration of the pesticide. If the Administrator cancels the registration of the pesticide, any suspen- sion of the registration shall remain in effect pending the outcome of any appeal under subsection (c) of this section. ENFORCEMENT Section 6. (a) The Administrator (except as other- wise provided in this section) is authorized to make rules and regulations for carrying out the provisions of this Act, including the collection and examination of samples of pesticides and devices subject to this Act and the determination and establishment of suitable names to be used in the ingredient statement. The Administrator is, in addition, authorized after oppor- tunity for hearing -- (1) to declare a pest any form of plant or animal life, bacteria, virus, or other micro-organisms (other than micro-organisms on or in living man or other animals) which is injurious to health or the environment; (2) to determine pesticides, and quantities of substances contained in pesticides, which are injuri- ous to health or the environment; (3) to determine standards of coloring or discoloring for pesticides, and to subject pesticides to the requirements of section 3 (a) (4) of this Act; and (4) to prescribe the records which shall be maintained by all or any class of persons engaged in manufacturing, preparing, compounding, or processing any pesticides subject to this Act, with respect to such operations and the strength, quality, and purity of such pesticides: Provided, however, That the Admin- istrator may exempt any pesticide fram such record requirements when he determines that such records are not necessary for the effective enforcement of this Act; provided further, that no records required by this subsection shall extend to (A) financial data, (B) sales data other than shipment data, (C) pricing data, (D) personnel data (other than data as to the qualifications of technical and professional personnel performing functions subject to this Act), and (E) research data (other than data relating to registered pesticides or to a pesticide for which an application for regis- tration has been filed). (5) to establish standards with respect to the package, other container, or wrapping in which a pesticide or device is enclosed for use or consumption, in order to protect children and adults from serious injury or illness resulting from accidental ingestion or contact with pesticides or devices regulated by this Act as well as to accomplish the other purposes of the Act, Provided that such standards are consistent with those established under the authority of the Poison Pre- vention Packaging Act (P.L. 91-601); and (6) to specify those classes of devices which shall be subject to the provisions set forth in 416-694 O - 71 - 9 123 subparagraphs 2(v) (2) (C), (D), or (G), of this Act, upon his determination that application of such pro- visions is necessary to effectuate the purposes of the Act. (b) The Secretary of the Treasury, in consulta- tion with the Administrator, shall prescribe regula- tions for the enforcement of section 14 of this Act. (c) The examination of pesticides or devices shall be made in the Environmental Protection Agency or elsewhere as the Administrator may designate for the purpose of determining from such examination whether they comply with the requirements of this Act, and if it shall appear from any such examination that they fail to comply with the requirements of this Act, the Administrator shall cause notice to be given to the person against whom criminal or civil proceedings are contemplated. Any person so notified shall be given an opportunity to present his views, either orally or in writing, with regard to such contemplated proceedings, and if in the opinion of the Adminis- trator it appears that the provisions of this Act have been violated by such person, then the Admin- istrator shall certify the facts to the Attorney General, with a copy of the results of the analysis or the examination of such article for the institu- tion of a criminal proceeding pursuant to section 8 of this Act, or for the institution of a civil pro- ceeding under section 8 when the Administrator deter- mines that such action will be sufficient to effec- tuate the purposes of this Act: Provided, That the notice of contemplated proceedings and opportunity to present views set forth in this subsection are not prerequisites to the institution of any proceed- ing by the Attorney General; Provided, further, That nothing in this Act shall be construed as requiring the Administrator to report for prosecution or for the institution of libel proceedings minor violations of this Act whenever he believes that the public interest will be adequately served by a suitable written notice of warning. (d) The District courts are vested with juris- diction specifically to enforce, and to prevent and restrain violations of, this Act. (e) The Administrator shall, by publication in 124 such manner as he may prescribe, give notice of all judgments entered in actions instituted under the authority of this Act. STOP SALE AND SEIZURE Section 7. (a) Whenever any pesticide or device is found by the Administrator upon any premises or in any means of conveyance where it is held for purposes of, or during or after, distribution or sale in any State, or in interstate or foreign commerce, and there is reason to believe on the basis of inspections or tests that such pesticide or device is in violation of any of the provisions of this Act, or that such pesti- cide or device has been or is intended to be distri- buted or sold in violation of any such provisions, or when the registration of the pesticide or device has been cancelled, the Administrator may issue a written or printed "stop sale, use, or removal" order to the registrant, owner, and custodian thereof, and after receipt of such order no person shall sell, use, or remove the pesticide or device described in the order except in accordance with the provisions of the order. (b) Whenever the Administrator, on the basis of inspections or tests not considered in the course of registration proceedings, determines that there is a substantial question as to the existence of an imminent hazard of a product to health or the environ- ment, he is authorized to issue an order to stop the sale, use or removal of such product for a period not to exceed ninety days, in the same manner as set forth in subsection (a) of this section. (c) Any pesticide or device that is being trans- ported or, having been transported, remains unsold or in original unbroken packages, or that is sold or offered for sale in any State, or that is imported from a foreign country, shall be liable to be proceeded against in any district court in the district where it is found and seized for confiscation by a process in rem for condemnation -- (1) in the case of a pesticide -- (A) if it is adulterated or misbranded; (B) if it is not registered pursuant to the provisions of section 4 of this Act; (c) if it fails to bear on its label the information required by this Act; 125 (D) if it is not colored or discolored and if such coloring or discoloring is required under this Act; (E) if any of the claims made for it or any of the directions for its use differ in sub- stance from the representations made in connection with its registration; or (2) in the case of a device if it is misbranded. (d) If the pesticide or device is condemned it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and the proceeds, if sold, less the court costs, shall be paid into the Treasury of the United States, but the article shall not be sold contrary to the provisions of this Act or of the laws of the jurisdiction in which it is sold; Provided, That upon the payments of the costs of the condemnation proceedings and the execution and delivery of a good and sufficient bond conditioned that the article shall not be sold or otherwise dis- posed of contrary to the provisions of the Act or the laws of any State in which sold, the court may direct that such articles be delivered to the owner thereof. The proceedings of such condemnation cases shall con- form, as near as may be, to the proceedings in admiralty, except that either party may demand trial by jury of any issue of fact joined in any case, and all such proceedings shall be at the suit of and in the name of the Uni ted States. (e) When a decree of condemnation is entered against the article, court costs and fees, storage, and other proper expenses shall be awarded against the person, if any, intervening as claimant of the article. PENALTIES Section 8. (a) Any person who knowingly violates any provision of this Act shall be guilty of a mis- demeanor and shall on conviction be fined not more than $25,000, or imprisoned for not more than one year, or both. (b) Any person violating any provision of this Act shall be liable to a civil penalty to the United States of a sum which is not more than $10,000 for each such violation. A request for assessment of such 126 civil penalty shall be referred to the Attorney General for appropriate action if the Administrator believes that action under this subsection in lieu of action under subsection (a) of this section will effectuate the purposes of this Act. Such civil penalty shall be recoverable in a civil suit brought in the name of the United States. (c) When construing and enforcing the provisions of this Act, the act, omission, or failure, of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission, or failure of such person as well as that of the person employed. BOOKS AND RECORDS AND FACTORY INSPECTION AND REGISTRATION Section 9. (a) For the purposes of enforcing the provisions of this Act, any manufacturer, distributor, carrier, dealer, or any other person who sells or offers for sale, delivers, or offers for delivery, or who receives or holds any pesticide or device subject to this Act, shall, upon request of any employee of the Environmental Protection Agency or any employee of any State or political subdivision, duly designated by the Administrator, furnish or permit such person at all reasonable times to have access to, and to copy all records showing the delivery, movement, or holding of such pesticide or device, including the quantity, the date of shipment and receipt, and the name of the con- signor and consignee; and in the event of the inability of any person to produce records containing such infor- mation, all other records and information relating to such delivery, movement, or holding of the pesticide or device. Notwithstanding this provision, however, the specific evidence obtained under this section or any evidence which is directly or indirectly derived from such evidence shall not be used in a criminal prosecu- tion of the person from whom obtained. The records and information referred to in this subsection shall not extend to (A) financial data, (B) sales data other than shipment data, (C) pricing data, (D) personnel data (other than data as to the qualifications of technical and professional personnel performing functions subject to this Act), and (E) research data (other than data 127 relating to registered pesticides or to a pesticide for which an application for registration has been filed). (b) Any person who on the date of enactment of this subsection operates any establishment in any State engaged in the manufacture, preparation, compounding, propagating, or processing of any pesticide or device subject to this Act shall, within one-hundred and eighty days after such date, apply to the Administrator for the registration of each such establishment, giving his name and the address of each such establishment operated by him. Any person who proposes to begin operation of any such establishment after such date shall, at least thirty days prior to beginning such operation, similarly apply for registration with the Administrator. Each establishment will be assigned an establishment number by the Administrator at the time of registration. (c) Any person operating an establishment registered under section 9(b) of this Act shall inform the Administrator within 30 days of his being registered of the types and amounts of such pesticides or devices (1) which he is currently manufacturing, preparing, propagating, or compounding; (2) which he has manufactured during the past year; and (3) which he has sold or dis- tributed during the past year, and, when specifically requested by the Administrator for the purpose of recalling a product, the name of the recipient. The information required in this subsection shall be kept current annually as required under such regulations as the Administrator may prescribe. The data obtained in accordance with the provisions of this subsection shall be considered confidential. (d) For purposes of enforcement of this Act, officers or employees duly designated by the Adminis- trator, upon presenting appropriate credentials to the owner, operator, or agent in charge, are authorized (1) to enter, at reasonable times, any factory, ware- house, or establishment in which pesticides or devices are manufactured, processed, packed, or held; and (2) to inspect, and obtain samples of, any pesticides or devices, whether packaged or unpackaged, and samples of any containers or labeling for such pesticides or devices. Each such inspection shall be commenced 128 and completed with reasonable promptness. If the officer or employee obtains any samples, prior to leaving the premises, he shall give to the owner, operator, or agent in charge a receipt describing the samples obtained. If an analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or agent in charge. (e) For purposes of enforcing the provisions of this Act and upon a showing to an officer or court of competent jurisdiction that there is reason to believe that the provisions of this Act have been vio- lated, officers or employees duly designated by the Administrator are empowered to obtain and to execute warrants authorizing entry into and inspection of facilities, including, but not limited to, facilities of manufacturers, wholesalers, dealers, and distribu- tors of pesticides, and the seizure of any pesticides or devices, or the components thereof, whether packaged or unpackaged, and samples of any containers or labeling for such pesticides or devices. EXEMPTIONS Section 10. (a) The penalties provided for a violation of section 3. (a) of this Act shall not apply to -- (1) any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom he purchased and received in good faith the article in the same unbroken package, to the effect that the article was lawfully registered at the time of sale and delivery to him, and that it complies with the other requirements of this Act. In such case the guarantor shall be subject to the penalties which would otherwise attach to the person holding the guaranty under the provision of this Act; (2) any carrier while lawfully engaged in transporting a pesticide or device, if such carrier upon request by a person duly designated by the Adminis- trator shall permit such person to copy all records showing the transactions in and movement of the articles; (3) public officials while engaged in the performance of their official duties: (4) the manufacturer or shipper of a pesticide 129 for experimental use only by or under the supervision of any Federal or State agency authorized by law to conduct research in the field of pesticides; or by others if a permit has been obtained before shipment in accord- ance with regulations promulgated by the Administrator. (b) The Administrator may, at his discretion, exempt any Federal agency from any provision of this Act if he determines that such exemption would be con- sistent with the purposes of this Act and would be in the public interest. DISPOSAL AND TRANSPORTATION Section 11. (a) The Administrator, after consul- tation with other interested Federal agencies, shall establish procedures and regulations for the disposal or storage of packages and containers of pesticides and for disposal or storage of excess amounts of such pesticides. (b) The Administrator shall provide advice and assistance to the Secretary of Transportation with respect to his functions relating to the transportation of hazardous materials under the Department of Transpor- tation Act (49 U.S.C. 1657), the Transportation of Ex- plosives Act (18 U.S.C. 831-835), the Federal Aviation Act of 1958 (49 U.S.C. 1421-1430, 1472h), and the Hazardous Cargo Act (46 U.S.C. 375, 416, 170). STATE AID AND TRAINING Section 12 The Administrator is authorized to enter into contracts with Federal, State, local or interstate agencies or with non-profit organizations for the purpose of encouraging the training of approved pesticide applicators and approved pest management con- sultants, as defined in subsection 4 (d). This authority shall expire June 30, 1975. RESEARCH AND MONITORING Section 13. (a) The Administrator is authorized to undertake such research, including research by grant or contract, as may be necessary for the implementation of this Act. He shall take care to insure that such research does not duplicate research being undertaken by other Federal departments and agencies. (b) The Administrator shall be responsible for formulating and periodically revising, in cooperation with other Federal, State, or local agencies, a national plan for monitoring pesticides covered by this Act. 130 (c) The Administrator is authorized to undertake such monitoring or surveillance activities, including but not limited to monitoring in air, soil, water, man, plants, and animals, as may be necessary for the imple- mentation of this Act or of the national pesticide monitoring plan. Such activities should be carried out with the cooperation of other Federal, State, and local agencies. IMPORTS AND EXPORTS Section 14. (a) Notwithstanding any other pro- vision of this Act, no article shall be deemed in violation of this Act when intended solely for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser and with respect to which a certification is obtained by the exporter from the importer or consignee and filed with the Administrator by the exporter prior to exportation of the article, stating that the article is in compliance with the laws and regulations of said foreign country. (b) The Administrator shall transmit through the State Department copies of each notice of suspension or proposed cancellation or other restrictions on pesti- cides under Federal law, to the Governments of other countries and to appropriate international agencies. (c) The Secretary of the Treasury shall notify the Administrator of the arrival of pesticides and devices and shall deliver to the Administrator, upon his request, samples of pesticides or devices which are being imported into the United States, giving notice to the owner or consignee, who may appear before the Administrator and have the right to introduce testimony. If it appears from the examination of a sample that it is adulterated, or misbranded or otherwise violates the provisions set forth in this Act, or is otherwise injurious to health or to the environment, the said article may be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within 90 days from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe: Provided, That the Secretary of the Treasury may deliver to the consignee such goods pending examination and decision in the matter or execution of bond for the amount of the full invoice value of such goods, together with the duty thereon, and on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of said bond: and provided further, That all charges for storage, cartage, and labor on goods which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall constitute a lien against any future importation made by such owner or consignee. (c) The Administrator shall, in cooperation with the Department of State and other appropriate Federal agencies, participate and cooperate in any inter- national efforts to develop improved pesticide research and regulations. SOLICITATION OF PUBLIC COMMENTS Section 15. (a) In connection with the suspension or cancellation of a pesticide registration or any other actions authorized under this Act, the Administrator may, at his discretion, solicit the views of all interested persons, either orally or in writing, and seek such advice from scientists and other qualified persons as he deems proper. (b) The authority contained in this section is in addition to the provisions contained elsewhere in this Act relating to public hearings and solicitation of views, and shall not be interpreted to affect such other provisions. DELEGATION AND COOPERATION Section 16. (a) All authority vested in the Administrator by virtue of the provisions of this Act may with like force and effect be executed by such employees of the Environmental Protection Agency as the Administrator may designate for the purpose. (b) The Administrator shall cooperate with the Secretaries of Agriculture, Interior, Commerce, and Health, Education and Welfare, and with any department or agency of the Federal Government and with any official regulatory agency of any State, Territory, District, possession, or any political subdivision thereof, in carrying out the provisions of this Act, 132 and in securing uniformity of regulations. AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES Section 17 There is hereby authorized to be appropriated such sums as may be necessary to carry out the purposes of this Act. SEPARABILITY Section 18 If any provision of this Act is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of this Act and the applicability thereof to other persons and circumstances shall not be affected thereby. OTHER AUTHORITY NOT AFFECTED Section 19. (a) This Act shall not be construed as superseding or limiting the authorities and responsi- bilities, under any other provision of law, of the Administrator or any other Federal officer, department, or agency. (b) Any regulations issued and any actions taken or legal rights of action accrued under the Federal Insecticide, Fungicide, and Rodenticide Act, prior to the effective date of this Act, shall not be abrogated or negated by this Act or by the repeal of the afore- said Act, but shall remain in effect unless modified or rescinded pursuant to the provisions of this Act. (c) Nothing in this Act shall be construed as limiting the authority of a state or a political sub- division thereof to regulate the sale or use of a pesticide within its jurisdiction in so far as such regulation does not permit such sale or use as is prohibited under the authority of this Act. Section 20. The Federal Insecticide, Fungi- cide, and Rodenticide Act (61 Stat. 163; 7 U.S.C. 135-135k), as amended, is hereby repealed, and all references thereto in other statutes, regulations, and public records of the United States shall refer to the Federal Environmental Pesticide Control Act. Section 21. Section 201 (r) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392) is hereby amended by deleting the period after the word "marketing" and adding "and tobacco". 133 SECTION-BY-SECTION ANALYSIS This analysis notes the major provisions of each section and the major departures from existing authority. It does not summarize all the provisions of the bill. Section 1 designates the title of the proposed Act as the Federal Environmental Pesticide Control Act of 1971 and proposed appropriate findings. Section 2 defines certain terms used in the Act. It contains the following major changes from existing authority: (1) The term "pesticide" is substituted for the term "economic poisons." (2) The authorities contained in the bill are given to the Administrator of the Environmental Pro- tection Agency. (3) An article is considered misbranded if compliance with the instructions on the label are not considered adequate for protection of health and the environment. (4) An article is considered misbranded if when used as directed or in accordance with common practice it is injurious to man or the environment. In deter-— mining whether a pesticide is injurious the Administrator is directed to consider both the short-term and long- term effects on man and the rest of the environment and the pesticide's persistence, degradation, and potential for movement and accumulation in the environment. (5) Protection of health and the environment is defined to mean protection against any injury to man and protection against any substantial adverse effects to environmental values, taking into account the public interest. The term "public interest" means a weighing of the probable benefits derived from the use of the pesticide with the risks inherent in its usage. Section 3 denominates prohibited acts. It prohibits the delivery or sale in interstate commerce of any pesticide which is unregistered, not labelled, mislabelled, adulterated, or misbranded. Among other prohibitions, the section prescribes advertising a pesticide without stating whether it is for general use, for restricted use, or for use by prescription only. Section 4 requires that every pesticide which moves in interstate commerce must be registered. It 134 permits the Administrator to issue a registration for experimental use prior to issuing a regular registration. The use of a pesticide which is registered for experi- mental use must be under the supervision of the Admin- istrator. When registering a pesticide, the Administrator is required to designate it as belonging to one of three categories: (1) for "general use"; (2) for "restricted use"; or (3) for "use by permit only". A pesticide designated for restricted use can be used only by or under the direct supervision of an approved pesticide applicator. Such an applicator must have obtained a State license based upon a demonstration of competence, according to standards approved or prescribed by the Administrator. A pesticide designated for use by permit only can be used only with the approval in writing of an approved pest management consultant who has obtained a State license meeting certain standards approved by the Administrator. The approval of a consultant must be obtained for each application of a pesticide classified as for use by permit only. The Administrator may change the designation of a pesticide at any time, subject to due notice and an appeals procedure. The Administrator is given up to four years to fully implement the system of classifying pesticides, because the major burden of licensing approved pesticide applicators and pest management consultants will fall on the States, and some time will be required for the States to train and certify sufficient numbers of applicators and consultants. Section 12 of the bill provides for Federal contracts to assist in such training. The appeals procedure for an applicant whose registration is refused is changed from current authority by deleting the opportunity for the applicant to take the matter to an advisory committee. The applicant may request a public hearing on the matter and may then appeal in the courts. Within 30 days after registering or refusing to register a pesticide, the Administrator must make public the data submitted with the registration and other scientific information he deems relevant to his decision, subject to the usual restrictions concerning proprietary data. Section 5 provides authority for cancellation and 135 suspension of the registration of pesticides. A pesti- cide is registered for an initial five-year period and for five-year periods thereafter. Three years after the initial registration, the registrant must submit to the Administrator a report on any new findings on the environmental or health effects of the registered pesticide. The Administrator may cancel the registration of a pesticide by giving notice to the registrant. The cancellation is effective 30 days after notice is given unless the registrant corrects the relevant deficiencies or objects to the cancellation and requests a public hearing. A cancellation then does not become effective until the appeals process has been exhausted. If it is necessary to prevent an imminent hazard to health or the environment, the Administrator may suspend the registration of a pesticide. Such a suspension is effective immediately, but is subject to the same appeals process as a cancellation. If the Administrator suspends a pesticide, he must at the same time initiate proceedings to cancel the registration. Section 6 provides for enforcement of the pro- visions of the Act. It authorizes the Administrator to prescribe the records which must be kept by manufacturers or processors of pesticides, and to establish standards with respect to the packaging of registered pesticides. The Administrator may certify violations of the Act to the Attorney General who may then institute civil or criminal proceedings as appropriate. Section 7 allows the Administrator to order a stop to the sale of a pesticide if he believes that the pesticide is in violation of the Act. He may also confiscate a pesticide if it is adulterated, misbranded, mislabelled, or unregistered. Under the terms of section 8 knowing violators of the Act are subject to criminal penalties of no more than $25,000 or imprisonment for not more than one year or both. All violators are subject to civil penalties of not more than $10,000. The provision for civil penalties is new, and the fine for criminal violation is increased. Section 9 specifies the records which must be kept by manufacturers, distributors, carriers, and dealers. It requires that each establishment 136 manufacturing or processing pesticides must register with the Administrator, and must provide him with information on the types and amounts of pesticides being produced, the distribution or sale of such pesticides, and, when requested by the Administrator for the purpose of recalling a product, the name of each recipient of the product. The section also contains provisions regarding entry and inspection of factories registered under the Act. Section 10 exempts from the penalties for non- registration, misbranding, or mislabelling, purchasers who received a guaranty from the seller, carriers, public officials engaged in official duties, and those using pesticides in an approved manner for experimental use. Section 11 authorizes the Administrator to establish procedures and regulations for the disposal of pesticides and to provide advice to the Secretary of Transportation on regulation of the transportation of pesticides. Section 12 authorizes the Administrator to con- tract with States, localities, or non-profit organizations to assist them in training approved pest control operators and consultants. Section 13 authorizes the Administrator to carry out research and monitoring necessary to implement the Act. The section also requires the Administrator to formulate and publish a national pesticide monitoring plan. Section 14 deals with imports and exports. It requires that exporters must file with the Adminis- trator a certification that the article exported is in compliance with the laws and regulations of the foreign country to which it is being sent. The section also provides for prohibiting the sale of or confiscating imports which do not meet the require- ments of the Act, and establishes procedures for the Secretary of the Treasury and the Administrator to implement controls over imports. Section 16 authorizes the Administrator to delegate his authority to EPA employees and further states that he shall cooperate with the Secretaries of Agriculture, Interior, Commerce, and Health, Education, and Welfare in carrying out the provisions of the Act. 137 Insofar as such action is feasible, the Administrator will notify appropriate heads of Federal departments and agencies of relevant suspension and cancellation actions taken under this Act. Section 17 authorizes appropriation of such sums as may be necessary to administer the Act. Section 19 provides that the bill shall not be construed as superseding or limiting other Federal authorities. Actions taken under the Federal Insec- ticide, Fungicide, and Rodenticide Act, as amended, remain in effect until modified pursuant to this Act. States are not precluded from imposing stricter standards or added requirements, but they may not per- mit any sale or use of pesticide which is prohibited under the authority of this Act. Section 20 repeals the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, and provides that all references to that Act in other laws, regu- lations, and public records, shall henceforth refer to the Federal Environmental Pesticide Control Act. Section 21 adds tobacco to the definition of "raw agricultural commodity" in the Federal Food, Drug, and Cosmetic Act, as amended. 138 Recycling Wastes 416-694 O - 71 - 10 139 RECYCLING WASTES The mounting increases in solid wastes present a major environmental problem, resulting in unsightly open dumps and air and water pollution. Solid wastes are presently increasing at a much higher rate than is our ability to dispose of them in a satisfactory manner. Much of the growth is due to more and more throwaway, convenience products and decreases in the percentage of material that is reused or recycled. About one-half of municipal solid wastes are paper products. Consumption of paper and paper products in this country reached 58.3 million tons in 1969, up almost 70 percent in less than 10 years, with an expected increase of another 50 percent by 1980. Average annual per capita paper consumption in the United States is 575 pounds, compared with a worldwide average of only 50 pounds. Although only 19 percent of our total paper pro- duction is recycled--down from 27 percent 10 years ago-- the amount reaches 40 percent in some European countries. Using waste paper in new paper products would ease pres- sures on overburdened solid waste disposal facilities and transform a costly detriment into a valuable asset. The Resource Recovery Act of 1970 recognizes the importance of recycling. It provides authority to devel- op and demonstrate recycling technology and provides for studies of secondary markets and economics. But tangible results require that a demand for recycled materials be created, a demand that often does not exist. THE PRESIDENT'S PROPOSAL The President announced that the General Services Administration (GSA) is revising Federal procurement specifications to require the use of recycled paper by the Government as a stimulus for further paper recycling. GSA has changed its procurement specifications to require the use of a minimum of 3 to 50 percent of recycled material. Depending on the product, this would affect paper purchases of over $35 million per year. GSA is revising its other specifications to require recycled material involving an additional $25 million in annual Federal purchases. These two actions cover over one-half of the total paper products purchased by GEA. All remaining specifications will be reviewed to require the use of recycled material in as many other 140 paper products as possible. The regulations will be con- tinually reviewed to increase the required percentage of recycled content. Specifications for other products will also be reviewed to determine where other recycled prod- ucts could be used and to change Federal specifications wherever possible. The Governors of the States have been asked to review their purchasing policies and, where possible, to require the use of recycled paper. To assist them, GSA has established a technical liaison program to provide the States with the revised Federal specifications and with other information on this new program. These measures should provide a much greater demand for recycled paper and hence should stimulate greater production. It should also demonstrate to the private sector that recycling is not only desirable but is feasible and should thereby encourage private actions to procure more products manufactured from waste materi- als. 141 a Ea Toxic Substances 143 ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker] : There is transmitted herewith for the consider- ation of the Congress a draft bill "The Toxic Sub- stances Control Act of 1971." The bill is drafted as a separate title to the Hazardous Substances Act. The legislative proposal would authorize the Administrator of the Environmental Protection Agency to restrict or prohibit the use or distribution of a chemical substance if necessary to protect health and the environment. The Administrator is also authorized to prescribe standards for tests and results of such tests which must be met before a manufacturer can market a new product. The Administrator is required to consult with an independent board of scientists before proposing action to restrict a substance or before proposing standards for tests. The provisions of the proposal would provide needed protection to the American public and would greatly aid our efforts to improve environmental quality. The legislation has been developed in cooper- ation with the Council on Environmental Quality and other interested agencies. A similar letter is being sent to the [President of the Senate/Speaker of the House]. The Office of Management and Budget advises that enactment of this proposed legislation would be in accord with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus 144 Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 145 A BILL THE TOXIC SUBSTANCES CONTROL ACT OF 1971 To amend the Federal Hazardous Substances Act, as amended, and for other purposes. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Congress assembled, That: This Act may be cited as the Toxic Substances Control Act of 1971. SECTION 2. The Federal Hazardous Substances Act is amended by inserting before Section 1 of such Act the following: "Title I - Hazardous Consumer Products." SECTION 3, Such Act is further amended by adding after the aforesaid Title I, i.e., after Section 18 of the Act, the following new Title: "Title II -- Toxic Substances "SECTION 201. POLICY Whereas the American people are being exposed to a large number of chemical substances each year; and Whereas among the many new substances constant- ly being developed are some which may be a danger to human health or the environment; and Whereas the effective regulation of interstate commerce in such chemicals necessitates the regulation of transactions in such chemicals in intrastate commerce as well; Therefore, it is the policy of the United States that new chemical substances should be ade- quately tested with respect to their safety to man and the environment; and That adequate authority should exist to restrict the distribution and use of chemicals found to be toxic; and That such authority over chemicals be exer- cised in such a manner as not to unduly impede technological innovation while fulfilling the primary purpose of this title to assure that such innovation and commerce does not endanger human health or the environment. SECTION 202. DEFINITIONS 146 "(a) ‘'Administrator' means the Administrator of the Environmental Protection Agency. »" (b) 'Chemical substance' means any organic or inorganic substance of a particular molecular identity or any uncombined chemical radical or element. "(c) 'Manufacturer' means any person engaged in the production or manufacture of chemical substances for purposes of sale or distribution in commercial quantities, or an importer thereof. " (d) 'Processor' means any person engaged in the preparation of a chemical substance for distri- bution or use either in the form in which it is received or as part of another product, as defined by regulations of the Administrator. m» (¢) 'Restrict use or distribution' means to prescribe the amount sold to given types of processors, or to limit the type of processor to whom a substance may be sold, or to prescribe the amount which may be utilized by a given type of processor. " (f) ‘'Byproduct' means a chemical substance produced as a direct result of the production, manu- facture, or processing of some other chemical substance which is subject to the provisions of this title. "(g) ‘'Environment' includes water, air, land, all plants and animals living therein, and the inter- relationships which exist among these. "»{h) 'Animal' means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish. "{i) ‘Protect health and the environment’ means protection against any injury to man and pro- tection against any substantial adverse effects on environmental values, taking into account the public interest. "(j) ‘District Court of the United States’ includes the District Court of Guam, the District Court of the Virgin Islands, the District Court of the Canal Zone, and in the case of American Samoa and the Trust Territory of the Pacific Islands, the District Court of the United States for the District of Hawaii, which Court shall have jurisdiction over actions arising under this title. "SECTION 203. RESTRICTIONS ON USE OR DISTRIBUTION 147 Proposal to Adopt Restrictions "(a) For any chemical substance produced in commercial quantities, after evaluating all information developed by or otherwise provided to or made available to him, and after referring the matter to a committee in accordance with section 208, the Administrator may publish proposed regulations to: (1) restrict or prohibit the use or dis- tribution of the chemical substance to the extent necessary to protect health and the environment: and (2) require that any or all persons engaged in the distribution of the substance so regu- lated give notification to purchasers of the substance of such restriction in such form or manner as the Administrator deems advisable; and (3) require such other action as may be necessary to carry out such restrictions including prohibiting or restricting the sale, use, or removal of such substance or product. Objections, Notice, Hearing, Final Order "(b) (1) On or before the thirtieth day after the day on which the proposed regulations under sub- section (a) are made public, any person who will be adversely affected by such regulations if placed in effect may file objections thereto with the Admini- strator specifying with particularity the provisions of the regulations deemed objectionable, stating the grounds therefor, and requesting a public hearing upon such objections. (2) After such request for a public hearing, the Administrator, after due notice, shall upon request by a manufacturer or processor, and may, in his discretion, upon request by any other person adversely affected by such order, hold such a public hearing for the purpose of receiving evidence relevant and material to the issues raised by such objections. At the hearing, any interested person may be heard in person or by representative. (3) As soon as practicable after the date for completion of the filing of objections and comments, and the hearing, if any such hearing has been held, the Administrator shall by order act upon such objections, if any, and make public an order promul-— gating, modifying, or withdrawing the proposed 148 regulations issued under paragraph {(a) (1). Such order shall be based only on the evidence of record and shall set forth, as part of the order, detailed findings of fact on which the order imposing restrictions is based and the relationship of such finding to the restric- tions imposed. Such order must be based on the Admini- strator's finding that such regulations are necessary to protect health and the environment and that the proposed action is necessary to carry out the objec- tives of this title. In making such a finding the Administrator shall consider all relevant factors including: the effects on human health and the environment of the substance or its byproducts; the benefits to be derived from the use of the substance as compared with the risks; the normal circumstances of use; the degree to which release of the substance or byproducts to the general environment is controlled; and the magnitude of exposure of humans and the environment to the substance or its byproducts. The Administrator shall specify in the order the date on which it shall take effect, except that it shall not be made to take effect prior to the ninetieth day after its publication. Modification or Rescission ™ (c) Manufacturers or processors of a chemical substance affected by final regulations issued pur- suant to this section may petition the Administrator for modification or rescission of the regulation. The Administrator may at any time modify or rescind such regulations. Proceedings respecting petitions from manufacturers or processors or respecting modifica- tions or rescissions made by the Administrator shall be held in accordance with the standards and procedures established by this section, except that the Admini- strator may or may not, in his discretion, provide for a hearing regarding such modifications or rescissions. Judicial Review "(d) (1) Any person who will be adversely affected by an order issued under subsection 203 (b) or (c) if placed in effect may at any time prior to the ninetieth day after such order is issued file a petition with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of 149 such order. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Admini- strator or other officer designated by him for that purpose. The Administrator thereupon shall file in the court the record on which he based his order, as provided in section 2112 of Title 28 of the United States Code. "(2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the record before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Admini- strator and to be adduced upon the hearing, in such manner and upon such terms and conditions as to the court may seem proper. The Administrator may modify his findings as to the facts, or make new findings by reason of the additional evidence so taken, and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original order, with the return of such additional evidence. "(3) Upon the filing of the petition referred to in subsection (d) (1), the court shall have jurisdiction to affirm the order, or to set it aside in whole or in part, temporarily or permanently. If the order of the Administrator refuses to issue, amend, or repeal a regulation and such order is not in accordance with law the court shall by its judgment order the Administrator to take action, with respect to such regulation, in accordance with law. The findings of the Administrator as to the facts shall be sustained if based upon substantial evidence on the record considered as a whole. "(4) The judgment of the court affirming or setting aside, in whole or in part, any such order of the Administrator shall be final, subject to review by the Supreme Court of the United States upon certio- rari or certification as provided in section 1254 of Title 28 of the United States Code. "SECTION 204. IMMINENT HAZARD “(a) An imminent hazard shall be considered to 150 exist when the evidence is sufficient to show that a use or distribution of a chemical substance creates a hazard to human health or the environment (1) that should be corrected immediately to prevent injury to health and (2) that should not be permitted to continue while an administrative hearing or other formal pro- ceeding is being held. "(b) If the Administrator has reason to believe that an imminent hazard exists he may request the Attorney General to petition an appropriate dis- trict court of the United States to restrain the uses or distribution of the chemical substance responsible for the hazard. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of proceedings pursuant to section 203 of this Act. Such proceedings shall be initiated contemporaneously with the request of the Administrator to take action under this subsection. Such proceedings shall be deemed to be initiated when he has referred the matter to a committee under section 208(c). "(c) The initiation of any proceedings or actions under section 203 shall not prevent the Admini- strator from initiating action under this section if he has reason to believe that an imminent hazard exists. "SECTION 205. TESTING As soon as practicable after enactment of the title and from time to time thereafter, the Admini- strator shall, after referral to the Toxic Substances Board, for various classes and uses of chemical sub- stances, prescribe by regulation standards for test protocols, and for the results to be achieved there- from, as are necessary to protect health and the environment. He shall afford opportunity for submis- sion of written comments, and upon request of any affected person, a public hearing with respect to any such proposed regulation, and such regulation shall be based upon substantial evidence of record in such pro- ceeding. He may supplement, modify, or withdraw any such regulation in the same manner. Regulations promulgated pursuant to this section shall be appli- cable only to chemical substances which are first pro- duced in commercial quantities after the effective date 151 of such regulations. The promulgation of regulations as to a particular chemical substance under this section shall not preclude action with respect to such substance under section 203. "SECTION 206. REPORTS “(a) The Administrator may by regulation re- quire any or all manufacturers of chemical substances to report to him annually or such more frequent times as the Administrator may reasonably require as to any or all of the following: (1) The names of any or all substances produced by the manufacturer: (2) The chemical identity and molecular structure of such substances; (3) The categories of use of each such substance, insofar as they are known to him; (4) Reasonable estimates of the amounts of each substance produced for each such category of use; and (5) A description of the byproducts, if any, resulting from the production of such substance, and, insofar as they are known to him, from the use thereof. "(b) Whenever the Administrator determines that such action is necessary to accomplish the pur- poses of this title, he may direct manufacturers of a chemical substance to provide, within a specified period of time not to be less than 30 days, the results of any tests of the health or environmental effects of the substance or its byproducts, which have been per- formed by or at the instance of the manufacturer or such results as are otherwise known to him, and any or all of the items of information listed in subsection (a). "(c) Whenever the Administrator determines that such action would be productive and desirable to allow him to carry out his responsibilities and author- ities under this title, he may by publishing a notice in the Federal Register invite and afford all interested persons an opportunity to provide in writing information respecting the health or environmental effects of the substance or its byproducts. "SECTION 207. RELATIONSHIP TO OTHER LAWS "(a) This title shall not apply to -- (1) economic poisons subject to the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, and chemical substances used solely in such poisons, provided that if a chemical substance which constitutes such a poison or such an ingredient is or may be used for any purpose which is not regu- lated by the Federal Insecticide, Fungicide, and Roden- ticide Act, as amended, this title shall apply to such other uses. (2) foods, food additives, drugs, and cosmetics subject to the Federal Food, Drug, and Cos- metic Act, as amended, the Federal Meat Inspection Act, and the Poultry Products Inspection Act, and chemical substances used solely therein, and controlled sub- stances regulated pursuant to the Comprehensive Drug Abuse Prevention and Control Act of 1970, provided, that if such an item or substance is or may be used for any purpose which is not regulated by such acts this title shall apply to such other uses; (3) any source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the Atomic Energy Commission. (4) The authority of the Secretary of the Department of Transportation to establish rules and regulations for the transportation of hazardous materials. "(b) To the extent that such activities are subject to regulation by other Federal laws, including the Occupational Health and Safety Act of 1970 and Title I of this Act, the Administrator shall not regu- late the use or distribution of a new or existing chemical substance on the basis of any possible hazard to employees in their place of employment, or the hazard directly to consumers resulting from household use of marketed products which contain or might con- tain the substance. If it appears to the Administra- tor that any such substance may pose a hazard when transported, or when used on or in food or as a drug or cosmetic, or may be a hazard to employees in their place of employment, or may pose a hazard directly to consumers resulting from household use of marketed 153 products which contain or might contain the substance, he shall transmit any data received from manufacturers Or processors relevant to such hazard to the Federal department or agency with authority to take legal action if a hazard is found to exist. “(c) The Administrator shall coordinate actions taken under this Act with actions taken to enforce the Federal Water Pollution Control Act as amended and the Clean Air Act as amended, and shall, where appropriate, use the authorities contained in those Acts to regulate chemical substances. "(d) The Administrator shall make every effort to maintain close coordination with the Department of Health, Education, and Welfare and other appropriate Federal agencies in administering the provisions of this title. "(e) This title shall not be construed as superseding or impairing the provisions of any other law or treaty of the United States. "SECTION 208. TOXIC SUBSTANCES BOARD "(a) There shall be established in the Environmental Protection Agency a Toxic Substances Board consisting of a reasonable number of scientifi- cally quali fied persons. The Administrator shall appoint as the members of the board the persons nomi- nated to him by the National Academy of Sciences. One of the members may be designated at any time by the Director of the National Academy of Sciences to serve as Chairman of the Board. "(b) The National Academy of Sciences, in con- sultation with the Board, shall establish, maintain, and publish a continuing list of qualified scientists, including experts in the areas likely to be covered by this title. Such scientists shall be consultants to the Toxic Substances Board. "(c) Before proposing any regulations under authority of section 203 or 205 the Administrator shall refer his proposed action and the available evidence to a committee drawn from members of the Board and the list of consultants to the Board. The Administrator shall appoint as the members of the committee the con- sultants nominated to him by the Board. The committee shall report its views, in writing, to the Administra- tor within a reasonable time, not to be less than 45 154 days, specified by the Administrator. If the committee fails to report within the specified time, the Admini- strator may proceed to take action under this title. The report of the committee shall be considered as part of the record in any proceeding taken with respect to the Administrator's action. "(d) The Administrator may, at his discretion, also request the Board to convene a panel to consider other actions proposed to be taken under this Act, including actions proposed to be taken under section 204 (b) . "(e) The Administrator is authorized to reim- purse the National Academy of Sciences for expenses incurred in carrying out this section. "SECTION 209. RESEARCH The Administrator is authorized to conduct such research and monitoring as is necessary to carry out his functions and responsibilities under this title. Such research and monitoring shall not duplicate the efforts of other Federal agencies. To this end, the Administrator is authorized to establish research laboratories, including the acquisition of necessary land, buildings, or facilities, and to make contracts for such research and monitoring. "SECTION 210. ADMINISTRATIVE INSPECTIONS AND WARRANTS "(a) (1) For the purpose of inspecting, copy- ing, and verifying the correctness of records, reports, or other documents required to be kept or made under this title and otherwise facilitating the carrying out of his functions under this title, the Administrator is authorized, in accordance with this section, to enter any factory, warehouse, or premises in which chemical substances are manufactured, processed, or held and to conduct administrative inspections thereof, and of the things specified in this section, relevant to those functions. (2) Such entries and inspections shall be carried out through officers of employees (hereinafter referred to as "inspectors") designated by the Admini- strator. Any such inspector, upon stating his purpose and presenting to the owner, operator, or agent in charge of such premises (A) appropriate credentials and (B) his administrative inspection warrant or a written notice of his other inspection authority, shall have 416-694 O - 71 - 11 155 the right to enter such premises and conduct such inspection at reasonable times. (3) Except when the owner, operator, or agent in charge of such premises so consents in writing, no inspection authorized by this section shall extend to -- (A) financial data: (B) sales data other than shipment data: (C) pricing data; (D) personnel data; or (E) research data (other than data relating to the tests described in subsection 206 (b)). "(b) A warrant under this section shall not be required for entries and administrative inspections (including seizures of property) —-— (1) with the consent of the owner, opera- tor, or agent in charge of such premises; (2) in situations presenting imminent danger to health or safety; (3) in any other exceptional or emergency circumstances where time or opportunity to apply for a warrant is lacking; or (4) in any other situations where a warrant is not constitutionally required. "(c) Issuance and execution of administrative inspection warrants shall be as follows: (1) Any judge of the United States or of a State court of record, or any United States magis- trate, may, within his territorial jurisdiction, and upon proper oath or affirmation showing probable cause, issue warrants for the purpose of conducting admini- strative inspections authorized by this title or regu- lations thereunder, and seizures of property appropri- ate to such inspections. For the purposes of this section, the term "probable cause" means a valid public interest in the effective enforcement of this title or regulations thereunder sufficient to justify admini- strative inspections of the area, premises, building, or contents thereof, in the circumstances specified in the application for the warrant. (2) A warrant shall issue only upon an affidavit of an officer or employee having knowledge of the facts alleged, sworn to before the judge or magistrate and establishing the grounds for issuing the warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, he shall issue a warrant identifying the area, premises, or building, to be inspected, the purpose of such inspection, and, where appropriate, the type of property to be inspected, if any. The warrant shall identify the items or types of property to be seized, if any. The warrant shall be directed to a person authorized under subsection (a) (2) to execute it. The warrant shall state the grounds for its issuance and the name of the person or persons whose affidavit has been taken in support thereof. It shall command the person to whom it is directed to inspect the area, premises, Or building, identified for the purpose specified, and, where appropriate, shall direct the seizure of the property specified. The warrant shall direct that it be served during normal business hours. It shall designate the judge or magistrate to whom it shall be returned. (3) A warrant issued pursuant to this section must be executed and returned within ten days of its date unless, upon a showing by the United States of a need therefor, the judge or magistrate allows additional time in the warrant. If property is seized pursuant to a warrant, the person executing the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return of the warrant shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the person making such inventory, and shall be verified by the person executing the warrant. The judge or magistrate, upon request, shall deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. 157 (4) The judge or magistrate who has issued a warrant under this section shall attach to the warrant a copy of the return and all papers filed. in connection therewith and shall file them with the clerk of the district court of the United States for the judicial district in which the inspection was made. "SECTION 211. EXPORTS AND IMPORTS “(a) Notwithstanding any other provision of this title, no substance shall be deemed in violation of this title when intended solely for export to any foreign country except if the Administrator finds that as exported and used the substance, or particular uses of the substance, will produce a significant direct or indirect hazard to human health or the environment in the United States. "(b) The Secretary of the Treasury shall refuse entry into the United States of any chemical substance or article containing such substance offered for entry if it violates any of the provisions of this title. If a substance or article is refused entry, the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the disposal or storage of any substance or article refused delivery which has not been exported by the consignee within three months from the date of notice of such refusal under such regulations as the Secretary of Treasury may prescribe: Provided, that the Secretary of Treasury may deliver to the consignee such substance or article pending exami- nation and decision in the matter on execution of bond for the amount of the full invoice value of such substance or article, together with the duty thereon, and on refusal to return such substance or article for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of said bond: And provided further, that all charges for storage, cartage, and labor on substances or articles which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall constitute a lien against any future importation made by such owner or consignee. "(c) The Secretary of the Treasury, in 158 consultation with the Administrator, shall issue regu- lations for the enforcement of subsection (b) above. "SECTION 212. CONFIDENTIALITY "(a) The information obtained from any manu- facturer or processor shall be confidential to the extent that it comprises matters referred to in section 552 (b) (4) of Title 5 of the United States Code. "(b) The Administrator may at his own initia- tive or at the request of a manufacturer or processor issue a protection order respecting the confidentiality of information obtained from a manufacturer or proces- sor pursuant to the provisions of this title, as he may deem appropriate to protect the manufacturer or processor from competitive injury. "(c) Information deemed to be confidential in accordance with the provisions of subsections (a) or (b) may be disclosed to other Federal officers or employees when necessary to accomplish the purposes of this title except that the provisions of section 1905 of Title 18 of the United States Code shall continue to apply, and such information may be disclosed in camera when relevant in any administrative or judicial pro- ceeding under this title. In any such proceeding, the administrative body, the Administrator, or the court shall issue such orders as may be appropriate to pro- tect the confidentiality of the materials designated as such by the aforegoing provisions. "SECTION 213. PROHIBITED ACTS The following acts and the causing thereof are prohibited —— "(a) The failure to comply with any final regulation or order issued by the Administrator pur- suant to this title; "(b) The failure or refusal to provide information or results of tests as required by section 206 of this title; “(c) The sale, distribution, or impor- tation into the United States of a chemical substance subject to regulations promulgated under section 205 for which the standards applicable thereto required by such regulations have not been met; "(d) The knowing or willful failure of any person who purchases or receives a substance and who is required to be given notice of restrictions on 159 use or distribution of such substance pursuant to para- graph 203 (a) (2), to comply with such restrictions on use or distribution: “(e) The failure to perform any other action required under this title. "SECTION 214. PENALTIES AND REMEDIES “(a) Any person willfully violating sub- sections 213(a), (b), (c) or (d) shall on conviction be fined not more than $25,000 or imprisoned for not more than one year or both. "(b) (1) Any person violating subsections 213 (a), (®), (c) or (d) shall be liable to a civil penalty to the United States of a sum which is not more than $25,000 for each day of violation, to be assessed by the Administrator after notice and oppor- tunity for hearing and after he has considered the nature, circumstances, and extent of such violation, the practicability of compliance with the provisions violated and any good faith efforts to comply with such provisions. (2) Upon failure of the offending party to pay the penalty, the Administrator may request the Attorney General to commence an action in the appro- priate district court of the United States for such relief as may be appropriate. "(c) The Attorney General or his delegate may bring an action in the appropriate district court of the United States for equitable relief to redress a violation by any person of any provision of section 213 of this title, and the district courts of the United States shall have jurisdiction to grant such relief as the equities of the case may require. "SECTION 215. ENVIRONMENTAL PREDICTION AND ASSESSMENT The Environmental Protection Agency shall, in cooperation with other Federal agencies, develop the necessary personnel and information resources to pre- dict the introduction of new chemical substances into the environment and assess the environmental conse- quences of such introduction. "SECTION 216. USE OF GOVERNMENT FACILITIES The Administrator may use, by agreement, the personnel, services, and facilities of other Federal departments, agencies, or instrumentalities, whether on a reimbursable or non-reimbursable basis. 160 "SECTION 217. HEALTH AND ENVIRONMENTAL DATA The Council on Environmental Quality in consul- tation with the Administrator, the Secretary of Health, Education, and Welfare, the Secretary of Commerce, and the heads of other appropriate departments or agencies, shall coordinate a study of the feasibility of estab- lishing (1) a standard classification system for chemi- cal compounds and related substances, and (2) a stan- dard means for storing and for obtaining rapid access to information respecting such materials. "SECTION 218. STATE REGULATION Nothing in this title shall affect the authori- ty of any State or local government to restrict the distribution or use of a chemical substance or impose requirements of tests and test results for a chemical substance except that (1) if the Administrator has published proposed regulations under section 203 with respect to limiting particular uses of a particular substance a State or local government may not there- after impose restrictions on such uses of such substance other than a total ban on such use or uses; (2) if the Administrator has published proposed regu- lations under section 205 with respect to tests for particular substances or uses, a State or local govern- ment may not impose test protocols or results to be achieved therefrom with respect to such substances and uses for the purposes similar to this title; and (3) if the Administrator has published proposed regulations under section 203 with respect to limiting particular uses of a particular substance or if the Administrator has published proposed regulations under section 205 with respect to tests for particular substances or uses, a State is not preempted from enforcing any restrictions or test protocols and results to be achieved therefrom existing at the time any’ such pro- posed regulation was published; provided that if the Administrator issues an order under section 203 (b) (3) restricting the use of such substance or withdrawing a proposed regulation restricting a use of such sub- stance, or if the Administrator issues an order under section 205 prescribing tests or withdrawing a proposed regulation for such tests, the State may not enforce any such restrictions, test protocols, or results to be achieved therefrom after the effective date of such 161 order, other than a total ban on such use or uses. "SECTION 219. REGULATIONS The Administrator is authorized to issue such regulations as he may deem appropriate to carry out the purposes of this title and to amend them at any time. "SECTION 220. AUTHORIZATION FOR APPROPRIATIONS There is hereby authorized to be appropriated to the Environmental Protection Agency such sums as may be necessary for the purposes and administration of this Act." 162 Ocean Dumping 163 ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker]: Enclosed is a draft of a proposed bill "to regulate the dumping of material in the oceans, coastal, and other waters and for other purposes." We recommend that the bill be referred to the appropriate committee for consideration and that it be enacted. The proposed legislation would implement the recommendations of the report "Ocean Dumping--A National Policy." That report, requested by the President in his April 15, 1970, message on waste disposal, was prepared by the Council on Environ- mental Quality and made public by the President on October 7, 1970. The report points out that there is a critical need for a national policy on ocean dumping. Many of the wastes now being dumped are heavily concen- trated and contain materials that have a number of adverse effects. Many are toxic to human and marine life, deplete oxygen necessary to maintain the marine ecosystem, reduce populations of fish and other economic resources, and damage esthetic values. In some areas, such as the New York Bight, the environmental conditions created by ocean disposal of wastes are serious. The Council study indicates that the volume of waste materials dumped in the ocean is growing rapidly. Because the capacity of land-based waste disposal sites is becoming exhausted in some coastal cities, communities are looking to the ocean as a dumping ground for their wastes. Faced with higher water quality standards, industries may also look 164 to the ocean for disposal. The result could be a massive increase in the already growing level of ocean dumping. If this occurs, environmental deterioration will become widespread. In most cases, feasible and economic land-based disposal methods are available for wastes currently being dumped in the ocean. In many cases, alter- natives to ocean dumping can be applied positively for purposes such as land reclamation and recycling to recover valuable waste components. Current regulatory activities and authorities are not adequate to handle the problem of ocean dumping. States do not exercise extensive control over ocean dumping, and generally their authority extends only within the three-mile territorial sea. The greater part of current dumping occurs outside these waters. The Army Corps of Engineers has regulatory authority over ocean dumping but, again, this is largely confined to the territorial sea. The Corps also has responsibility to facilitate navigation, chiefly by dredging navigation channels. As such, it is in the position of regulating activities over which it also has operational responsibility. The Coast Guard enforces several Federal laws regarding pollution but has no direct authority to regulate ocean dumping. The authority of the Federal Water Pollution Control Act does not provide for issuance of permits to control ocean dumping. And the Atomic Energy Commission has authority only for disposal of radioactive materials. The Council believes that new legis- lative authority is necessary. Taken together, present responsibilities are dispersed and operational agencies exercise responsibility to regulate themselves and entities performing work consistent with their primary mission. It is now necessary that responsibility for ocean dumping be centralized in an agency whose chief role is environmental control. The enclosed bill would give this responsibility to the Environmental Protection Agency. 165 The proposed legislation would bar the trans- portation of material for dumping and the actual dumping itself in the oceans, coastal waters and Great Lakes, except as authorized by permits issued by the Administrator of the Environmental Protection Agency. The Administrator would be empowered to ban ocean dumping of certain materials and to designate recommended safe sites for disposal. Transportation for dumping or dumping without a permit would be subject to civil and criminal penalties. This legislation would provide a comprehensive framework for regulating the transportation and dumping of materials and forestalling pressures to dispose of a vast new influx of wastes in the oceans, coastal waters and the Great Lakes. Placing regu- latory authority in the Environmental Protection Agency should strengthen the refinement and implementation of a national policy. A detailed section-by-section analysis of the bill is enclosed. The bill is part of the President's environ- mental program as announced in his Environmental Message of February 8, 1971. It will be administered by the Environmental Protection Agency and was developed in coordination with the Council on Environmental Quality. The Office of Management and Budget informs me that enactment of this proposal is in accord with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus Honorable Spiro T. Agenw Honorable Carl B. Albert President of the Senate Speaker of the House of Washington, D.C. 20510 Representatives Washington, D.C. 20515 166 A BILL MARINE PROTECTION ACT OF 1971 To regulate the dumping of material in the oceans, coastal, and other waters and for other purposes. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That: This Act may be cited as the "Marine Protection Act of 1971." SECTION 2. FINDING, POLICY, AND PURPOSES. (a) Unregulated dumping of material into the oceans, coastal, and other waters endangers human health, welfare, and amenities, and the marine envi- ronment, ecological systems, and economic potenti- alities. (b) Congress declares that it is the policy of the United States to regulate the dumping of all types of material in the oceans, coastal, and other waters and to prevent or vigorously limit the dumping into the oceans, coastal, and other waters of any material which could adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. To this end, it is the purpose of this Act to regulate the transportation of material from the United States for dumping into the oceans, coastal, and other waters, and the dumping of material by any person from any source if the dumping occurs in waters over which the United States has jurisdiction. SECTION 3. DEFINITIONS. For the purposes of this Act the term-- (a) "Administrator" means the Administrator of the Environmental Protection Agency. (b) "Oceans, coastal, and other waters" means oceans, gulfs, bays, salt-water lagoons, salt-water harbors, other coastal waters where the tide ebbs and flows, and the Great Lakes. (c) "Material" means matter of any kind or description, including, but not limited to, dredge spoil, solid waste, garbage, sewage sludge, munitions, chemical, biological, and radiological warfare agents, radioactive materials, wrecked or discarded equipment, 167 rock, sand, cellar dirt, and industrial waste, pro- vided, that it does not mean oil within the meaning of section 11 of the Federal Water Pollution Control Act or sewage from vessels within the meaning of section 13 of said Act. (d) "United States" includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, the territories and possessions of the United States and the Trust Territory of the Pacific Islands. (e) "Person" means any private person or en- tity, any employee, agent, department, agency, or instrumentality of any State or local unit of govern- ment, or foreign government, and, except as to the provisions of section 6, any employee, agent, depart- ment, agency, or instrumentality of the Federal Government. (f) "Dumping" means a disposition of material, provided, that it does not mean a disposition of any effluent from any outfall structure, or a routine discharge of effluent incidental to the propulsion of vessels, and provided further, that it does not mean the intentional placement of any device in the oceans, coastal, or other waters or on the submerged land beneath such waters, for the purpose of using such device there to produce an effect attributable to other than its mere physical presence. (g) "District Court of the United States" includes the District Court of Guam, the District Court of the Virgin Islands, the District Court of the Canal Zone, and in the case of American Samoa and the Trust Territory of the Pacific Islands, the District Court of the United States for the District of Hawaii, which court shall have jurisdiction over actions arising therein. SECTION 4. PROHIBITED ACTS. Except as such transportation or dumping or both may be authorized in a permit issued by the Administrator, (a) No person shall transport material from the United States for the purpose of dumping it into the oceans, coastal, and other waters, and (b) No person shall dump material (1) in that 168 part of the oceans, coastal, and other waters which is within the territorial jurisdiction of the United States, or, (2) in a zone contiguous to the territo- rial sea of the United States, extending to a line 12 nautical miles seaward from the base line of the ter- ritorial sea as provided in Article 24 of the Conven- tion on the Territorial Sea and the Contiguous Zone, to the extent that it may affect the territorial sea or the territory of the United States. SECTION 5. PERMITS. (a) The Administrator may issue permits to transport material for dumping into the oceans, coastal, and other waters, or to dump material into the waters described in subsection 4(b), or bcth, where the applicant presents information respecting the proposed activity which in the judgment of the Administrator indicates that such transportation, or dumping, or both will not unreasonably degrade or un- reasonably endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. The Adminis- trator shall establish and apply criteria for re- viewing and evaluating such permit applications, and, in establishing or revising such criteria, shall con- sider, butmot be limited in his consideration to, the following: (1) the likely impact of the proposed dumping on human health, welfare, and amenities, and on the marine environment, ecological systems, and economic potentialities, including an assessment of -- (a) the possible persistence or permanence of the effects of the proposed dumping, (B) the volume and concentration of materials involved, and (C) the location proposed for the dumping. (2) alternative locations and methods of disposal, including land-based alternatives; the prob- able impact of requiring the use of such locations or methods of disposal on considerations affecting the public interest; and the probable impact of issuing or denying permits on considetations affecting the public interest. 169 In establishing or revising such criteria, the Administrator shall consult with the Secretaries of Commerce, Interior, State, Defense, Agriculture, Health, Education and Welfare, and Transportation, the Atomic Energy Commission, and other appropriate Federal, State, and local officials. With respect to such criteria as may affect the civil works program of the Department of the Army, the Administrator shall also consult with the Secretary of the Army. In re- viewing applications for permits, the Administrator shall make such provision for consultation with interested Federal and State agencies as he deems use- ful or necessary. No permit shall be issued for a dumping of material which will violate applicable water quality standards. (b) (1) The Administrator may establish and issue various categories of permits, including the general permits described in subsection (e). (2) The Administrator may require an ap- plicant for a permit under subsection (a) to provide such information as the Administrator may consider necessary to review and evaluate such an application. (c) Permits issued under subsection (a) may designate and include (1) the type of material authorized to be transported for dumping or to be dumped; (2) the amount of material authorized to be transported for dumping or to be dumped; (3) the location where such transport for dumping will be terminated or where such dumping will occur; (4) the length of time for which the permits are valid and their expiration date; and (5) such other matters as the Administrator deems appropriate. (d) The Administrator may prescribe such processing fees for permits and such reporting require- ments for actions taken pursuant to permits issued under subsection (a) as he deems appropriate. (e) Notwithstanding any other provision of this Act, the Administrator may issue general permits for the transportation for dumping, or dumping, or both, of classes of materials which he determines will have a minimal impact, considering the factors stated in subsection (a). (f) The Administrator may limit or deny the 170 issuance of permits, or may alter or revoke partially or entirely the terms of permits issued by him under this Act, for the transportation for dumping, or the dumping, or both, of specified material, where he finds that such material cannot be dumped consistently with the criteria established pursuant to subsection (a). No action shall be taken under this subsection unless the affected person or permittee shall have been given notice and opportunity for hearing on such action as proposed. (g) The Administrator may, considering the criteria established pursuant to subsection (a), des- ignate recommended sites for the dumping of specified materials. (h) Nothing in this Act shall prohibit any transportation for dumping or dumping of material where such transportation or dumping is necessary, in an emergency, to safeguard human life. Such trans- portation or dumping shall be reported to the Admin- istrator within such times and under such conditions as he may prescribe by regulation. SECTION 6. PENALTIES. (a) A person who violates section 4 of this Act, or regulations promulgated under this Act, or a permit issued under this Act by the Administrator shall be liable to a civil penalty of not more than $50,000 for each violation to be assessed by the Administrator. No penalty shall be assessed until the person charged shall have been given notice and an opportunity for a hearing on such violation. Any such civil penalty may be compromised by the Administrator. In determining the amount of the penalty, or the amount agreed upon in compromise, the gravity of the violation and the demonstrated good faith of the person charged in attempting to achieve rapid compli- ance after motification of a violation shall be con- sidered by said Administrator. Upon failure of the offending party to pay the penalty, the Administrator may request the Attorney General to commence an action in the appropriate district court of the United States for such relief as may be appropriate. (b) In addition to any action which may be brought under subsection (a), a person who knowingly 416-694 0 - 71-12 * 171 and willfully violates section 4 of this Act, regula- tions promulgated under this Act, or a permit issued under this Act by the Administrator shall be fined not more than $50,000 or imprisoned for not more than one year, or both. (c) For the purpose of imposing civil penalties and criminal fines under this section, each day of a continuing violation shall constitute a separate offense. (d) The Attorney General or his delegate may bring actions for equitable relief to redress a vio- lation by any person of this Act, regulations promul- gated under this Act, and permits issued under this Act by the Administrator, and the district courts of the United States shall have jurisdiction to grant such relief as the equities of the case may require. (e) A vessel, except a public vessel within the meaning of subsection 13(a) (3) of the Federal Water Pollution Control Act or other public property of a similar nature, used in a violation shall be liable in rem for any civil penalty assessed or criminal fine imposed and may be proceeded against in any district court of the United States having jurisdiction thereof, provided, that no vessel shall be liable unless it shall appear that the owner was at the time of the violation a consenting party or privy to such violation. (f) If the provisions of any permit issued under subsection (a) of section 5 are violated, the Administrator may revoke the permit or may suspend the permit for a specified period of time. No permit shall be revoked or suspended unless the permittee shall have been given notice and opportunity for a hearing on such violation and proposed suspension or revocation. SECTION 7. RELATIONSHIP TO OTHER LAWS. (a) After the effective date of this Act, all licenses, permits, or authorizations which have been issued by any officer or employee of the United States under authority of any other provision of law shall be terminated and of no effect to the extent they autho- rize any activity regulated by this Act. Thereafter, except as hereafter provided, no license, permit, or 172 authority shall be issued by any officer or employee of the United States other than the Administrator which would authorize any activity regulated by this Act or the regulations issued hereunder. (b) Nothing in this Act shall abrogate or negate any existing responsibility or authority con- tained in the Atomic Energy Act of 1954, as amended, and section 4 and subsection 7 (a) of this Act shall not apply to any activity regulated by that Act, provided, the Atomic Energy Commission shall consult with the Administrator prior to issuing a permit to conduct any activity which would otherwise be regulated by this Act. In issuing any such permit, the Atomic Energy Commission shall comply with standards set by the Administrator respecting limits on radiation exposures or levels, or concentrations or quantities of radioactive material. In setting such standards for application to the oceans, coastal, and other waters, or for specific portions of such waters, the Administrator shall consider the policy expressed in subsection 2 (b) of this Act and the factors stated in subsections 5(a) (1) and 5(a) (2) of this Act. (c) (1) The provisions of subsection (a) shall not apply to actions taken before or after the effective date of this Act under the authority of the Rivers and Harbors Act of 1899.1/ (2) Except as provided in subsection 11 (e), nothing in this Act shall be construed as abrogating or negating any existing responsibility or authority contained in the Rivers and Harbors Act of 1899, provided, that after the effective date of this Act, no Federal license or permit shall be issued under the authority of the Rivers and Harbors Act of 1899 to conduct any activity otherwise regulated by section 4 of this Act and the regulations issued hereunder, unless the Administrator has certified that the activ- ity proposed to be conducted is in conformity with the provisions of this Act and with the regulations issued hereunder. (3) Where a license or permit to conduct 1/ 33 U.S.C. §401 et seq. 173 an activity has been granted under the authority of subsections (c) (1) and (c) (2) of this section and of the Rivers and Harbors Act of 1899, no separate permit to conduct such activity shall be required under this Act. (d) Prior to issuing any permit under this Act, where it appears to the Administrator that the dis- position of the material to be transported for dumping may affect navigation in the navigable waters of the United States or may create an artificial island on the Outer Continental Shelf, the Administrator shall consult with the Secretary of the Army and no permit shall be issued if the Secretary of the Army deter- mines that navigation will be unreasonably impaired. (e) Nothing in this Act shall be construed as preempting any State, Federal Territory or Common- wealth, or subdivision thereof from imposing any requirement or liability. SECTION 8. ENFORCEMENT. (a) The Administrator may, whenever appropri- ate, utilize by agreement, the personnel, services, and facilities of other Federal departments, agencies, and instrumentalities, or State agencies or instru- mentalities, whether on a reimbursable or nonreinbur- sable basis. (b) The Administrator may delegate responsi- bility and authority for reviewing and evaluating permit applications, including the decision as to whether a permit will be issued, to an officer of the Environmental Protection Agency, or he may delegate, by agreement, such responsibility and authority to the heads of other Federal departments or agencies, whether on a reimbursable or non- reimbursable basis. (c) The Secretary of the department in which the Coast Guard is operating shall conduct surveil- lance and other appropriate enforcement activity to prevent unlawful transportation of material for dumping or dumping. SECTION 9. REGULATIONS. In carrying out the responsibilities and authority conferred by this Act, the Administrator is authorized to issue such regulations as he may deem appropriate. 174 SECTION 10. INTERNATIONAL COOPERATION. The Secretary of State, in consultation with the Administrator, shall seek effective international action and cooperation to ensure protection of the marine environment, and may for this purpose, formu- late, present, or support specific proposals in the United Nations and other competent international organizations for the development of appropriate international rules and regulations in support of the policy of this Act. SECTION 11. REPEAL AND SUPERSESSION. (a) The second proviso to the last paragraph of section 20 of the Act of March 3, 1899 (30 Stat. 1154), as amended, 2/is repealed. (b) Sections 1, 2, 3, 4, 5, 6, and 7 of the Act of June 29, 1888 (25 Stat. 209), as amended, 3 are repealed. (c) Section 2 of the Act of August 5, 1886 (24 stat. 329) ,~ is repealed. (d) To the extent that it authorizes action regulated by this Act, section 4 of the Act of March 3, 1905 (33 stat. 1147), is superseded. (e) Section 13 of the Rivers and Harbors Act of 1899 (30 Stat. 1152), as amended, of is superseded insofar as it applies to dumping, as defined in sub- section 3(f) of this Act, of material in the waters covered by subsection 4(b) of this Act. SECTION 12. EFFECTIVE DATE AND SAVINGS PROVISION. (a) This Act shall take effect six months after its enactment. (b) No legal action begun, or right of action accrued, prior to the effective date of this Act shall be affected by any provision of this Act. SECTION 13. AUTHORIZATION FOR APPROPRIATIONS. There is hereby authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary for the purposes and administration of this Act. 2/ 33 U.S.C. §418. 3/ 33 U.S.C. §§441-451b. 4/ 33 U.S.C. §407a. 5/ 33 U.S.C. §419. 6/ 33 U.S.C. §407. 175 SECTION-BY-SECTION ANALYSIS The title of the proposed act is designated as the "Marine Protection Act of 1971." Section 2, drawing on the report of the Council on Environmental Quality made public by the President October 7, 1970, makes a finding by the Congress that unregulated dumping of material in the oceans, coastal, and other waters endangers human health, welfare, and amenities, and the marine environment, ecological systems, and economic potentialities. It declares a federal policy of regulating dumping of all types of material in the relevant waters and of vigorously limiting the dumping of material which could have an unfavorable effect. Section 3 defines certain terms used in the proposal. Subsection 3 (a) defines the responsible official for implementation of the legislation as the Administrator of the Environmental Protection Agency (EPA). Subsection 3 (b) provides that the proposal applies to the oceans, to gulfs, bays, and other similar salt waters, other coastal areas where the tide ebbs and flows, and to the Great Lakes. Subsection 3(c) defines material, the trans- portation for dumping and dumping of which are regulated by the proposal, very broadly as "matter of any kind or description", and then, for illustrative purposes, but without limiting the comprehensive scope of this initial definition, lists specific materials which are included in the general definition. 0il and sewage from vessels, discharges of which are covered by the Federal Water Pollution Control Act, are excluded from the scope of this Act. Subsection 3(e) defines "person" in such a way that all Federal, State, and foreign governmental organizations, employees, and agents, along with private persons or entities, are included within the pro- hibition on transportation for dumping or dumping contained in Section 4. Federal organizations, employees, and agents, however, are excepted from the definition of "person" insofar as section 6, providing for penalties, is concerned. Thus, Federal organi- zations, employees, and agents must comply with the permit and standard-setting provisions of the Act, i.e., 176 they would be required to obtain approval from the Administrator of EPA for the transportation for dumping or the dumping of materials in the relevant waters, but they are not liable for or subject to the penalty provisions. Subsection 3 (f) defines dumping for purposes of the Act as "a disposition of material". Provisos make two important exceptions to this general rule of applicability. The first proviso excepts from the Act's coverage disposition of effluents from any out- fall structure or routine discharges of effluents incidental to the propulsion of vessels. Municipal sewage outfalls or industrial waste outfalls come within this proviso. Discharges of effluents other than sewage from outfalls come within the purview of standards set pursuant to the Federal Water Pollution control Act and also will be subject to the proposed permit program under the Refuse Act (33 U.S.C. § 407). Municipal sewage outfalls also come under the Federal Water Pollution Control Act's standards and also are affected by that Act's assistance programs. The second proviso could be called the "lobster- pot" proviso. It excepts intentional placement of devices in the relevant waters or on the submerged lands beneath those waters. Several federal depart- ments and agencies place testing, monitoring, sensing, or surveillance devices on the ocean floor. Under this proviso, the placement of such items or their trans- portation for placement is not within the coverage of the proposal. Private activities similarly not within the proposal would include placing into the ocean and other pertinent waters lobster traps, off-shore drilling platforms, pipelines, or cables. The latter portion of the proviso ensures that any excepted placement of devices does not include placement of material to produce an effect attributable only to the physical presence of the material in the ocean or other relevant waters. Thus, if car bodies or other similar material were placed in the ocean to serve as a shelter for fish, the effect from placing the car bodies would be attributable only to the physical presence of the car bodies in the ocean, and the placement would constitute a dumping for which a permit would be required under the Act. Special note should also be made of the fact that 177 "dumping" as defined in subsection 3 (f) would not include an activity which has as its primary purpose a result other than "a disposition of material" but which involves the incidental depositing of some debris or other material in the relevant waters. For example, material from missiles and debris from gun projectiles and bombs ultimately come to rest in the protected waters. Such activities are not covered by this Act. Except where the Administrator has issued a permit for such activity, subsection 4 (a) of the pro- posal prohibits transportation of material from the United States for the purpose of dumping it in the oceans, coastal, and other waters. Similarly, except where a permit has been granted, section 4 (b) prohibits dumping of material in that part of such waters which is within the territorial jurisdiction of the United States, or in the Contiguous Zone of the United States when the dumping affects the territorial sea or territory of the United States. Section 5 places authority to grant transportation and dumping permits in the Administrator of EPA, provides standards for his use in acting on permit applications, and governs the nature of permits which may be issued. Section 5(a) allows issuance of a permit where the applicant presents information which indicates that the transportation or dumping or both will not unreason-— ably degrade or unreasonably endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. The Administrator is directed to establish and apply criteria for reviewing and evaluating permit appli- cations. In establishing or revising the criteria, the Administrator is required to consider the likely impact of the proposed dumping along with alternative locations and methods of disposal, including those based on land, the probable impact of using such alternatives on con- siderations affecting the public interest, and the probable impact of issuing or denying permits on such considerations. In establishing or revising criteria, the Administrator is directed to consult with the heads of concerned departments and agencies. Subsection 5(b) authorizes the Administrator to establish and issue various categories of permits. If he 178 deems such a step to be desirable, the Administrator could set different procedures for handling applications in the various categories. Subsection (b) (2) allows the Administrator to require applicants for permits to provide necessary information. The Administrator could require differing amounts and types of information according to category. Subsections 5(c) and 5(d) set out the require- ments which may be incorporated into permits issued under the authority of subsection 5(a). They also allow the Administrator, as he deems appropriate, to state further requirements and actions, such as charges for permits or reporting on actions taken under a permit. Subsection 5(e) authorizes the Administrator to grant general permits for the transportation for dumping or dumping of quantities and types of materials which he determines will have a minimal effect on the ocean. This provides flexibility to give general permits for certain types of periodic or continuing activities where the amounts dumped are minimal. Subsection 5(f) authorizes the Administrator to limit or deny the issuance of permits involving specified substances where he finds that the substances cannot be dumped consistently with the provisions of and criteria established under subsection 5(a). In such cases the Administrator may also alter or revoke partially or entirely the terms of existing permits. Subsection 5(g) allows the Administrator to designate recommended sites for dumping specified materials. This would give guidance to applicants and facilitate the Administrator's implementation of the control programs. Subsection 5(h) establishes a very limited exemption from the prohibition on transportation for dumping or dumping where no permit has been granted. Such transportation or dumping is not prohibited where it is necessary in an emergency to safeguard human life. Tn such cases reports of the excepted emergency actions must be made to the Administrator. Section 6 provides for penalties. Under sub- section 6 (a) the Administrator could assess a civil penalty recoverable in federal district court, of up to $50,000 for each violation. Subsection 6 (b) establishes, in addition, criminal sanctions for knowing and willful 179 violations. The court could assess a fine of up to $50,000 or order imprisonment for a period of up to one year, or both. For those cases where violations are of a continuing nature, and for the purpose of imposing civil penalties and criminal fines but not imprisonment, subsection 6(c) makes each day of such a violation a separate offense. Under the provisions of subsection 6(d), the Attorney General is authorized to seek equitable relief to redress violations. Sub- section 6 (e) subjects vessels used in violations to in rem liability for any civil penalty assessed or criminal fine imposed. Public vessels within the meaning of subsection 13 (a) (3) of the Federal Water Pollution Control Act and other public property of a similar nature would not be subject to the remedy authorized by this provision. Subsection 6 (f) adds authority for the Administrator to revoke or suspend a permit issued under subsection 6 (a) if the permit's provisions have been violated. Section 7 deals with the relationship of this legislation to other laws. Generally, except as pro- vided in subsections 7(b) and 7(c), it provides that after the Act's effective date, existing licenses, permits, or authorizations would be terminated to the extent they authorize activity covered by this proposal, and that further licenses, permits, or authorizations of a similar nature could not be issued. Subsection 7(b) maintains present responsibility and authority contained in the Atomic Energy Act of 1954, and provides that the provisions of Sections 4 and 7 (a) of this proposal do not apply to actions taken under that Act. However, the AEC must consult with the Admin- istrator before issuing a permit to conduct any activity otherwise regulated by this proposal. Moreover, the AEC must comply with the radioactive-material standards set by the Administrator, and the Administrator is directed to consider the policy expressed in subsection 2(b) of this proposal along with the factors stated in subsections 5(a) (1) and 5(a) (2) in setting such standards for the waters covered by this proposal. Subsection 7(c) relates to authorities contained in the Rivers and Harbors Act of 1899, respecting dredging, filling, harbor works, and maintenance of navigability. The powers are exercised for the most part by the 180 Secretary of the Army and the Chief of Engineers. Except for the limited supersession found in sub- section 11 (e), the Rivers and Harbors Act authorities are not negated or abrogated, nor are existing licenses or permits issued under the Act terminated. Rather, in situations where this Act and the Act of 1899 both apply to dumping of material in connection with a dredge, fill or other permit issued by the Corps of Engineers, issuance of the permit requires a certification by the Administrator of EPA that the activity is in conformity with this proposal and any regulations issued under it. The Administrator will not issue separate permits in such cases. After this Act becomes effective, the Depart- ment of the Army's permit program under the Refuse Act, which is administered in close cooperation with EPA on all water quality matters, will continue to regulate the disposition of any effluent covered by the Refuse Act from any outfall structure regardless of the waters into which this disposition occurs, in addition to regulating all depositing of material into other navigable waters of the United States not covered by subsection 4 (b) of this Act. Subsection 7(d) provides for consultation by the Administrator of EPA with the Secretary of the Army in cases where the Administrator finds that the proposed activity may affect navigation or create an artificial island on the Outer Continental Shelf. Subsection 7 (e) saves State or local laws from being preempted by this proposal. Section 8 allows the Administrator to use, by agreement, resources of other federal agencies, on either a reimbursable or non-reimbursable basis. In subsection 8 (b) the Administrator is authorized to delegate responsibility for acting on permit applications to an officer of EPA or, by agreement, to the head of other federal departments or agencies, such as the Commandant of the Coast Guard. Subsection 8 (c) directs that surveillance, and other appropriate enforcement activity be conducted by the Secretary of the department in which the Coast Guard is operating. Section 9 gives the Administrator power to issue appropriate regulations in carrying out the responsi- bilities and authority conferred by the Act. 181 Section 10 directs the Secretary of State, in consultation with the Administrator, to seek appropriate international action and cooperation to support the policy of this proposal. Subsections 11l(a) and 11(b) repeal the Super- visory Harbors Act of 1888, as amended (33 U.S.C. §S§ 441-451b), and the provision of the Rivers and Harbors Act of 1899 (33 U.S.C. § 418) which preserved the Supervisory Harbors Act from supersession by the 1899 Act. The Supervisory Harbors Act provides a special authority to control transit in and from the harbors of New York, Baltimore, and Hampton Roads, Virginia. This authority has been used to regulate ocean dumping. The proposed Act would replace that authority. A portion of the Act of August 5, 1886 (33 U.S.C. § 407a), which pertains to deposits of debris from mines and stamp works, and which is covered by this bill or the Refuse Act, is also repealed. A provision contained in the Rivers and Harbors Act of 1905 (33 U.S.C. § 419), which has been used to buttress the Corps of Engineers’ authority to regulate ocean dumping, is superseded, insofar as it authorizes action that would be regulated by this proposal. Lastly, section 13 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 407), commonly known as the Refuse Act, is superseded, but only inso- far as it applies to dumping of material in the waters covered by subsection 4 (b) of this proposal. Section 12 provides that this proposal shall take effect six months after its enactment and further saves from being affected by this proposal legal actions begun or rights of action accrued prior to the proposal's effective date. Section 13 contains an authorization for appro- priations to carry out the purposes and administration of the proposal. 183 Noise ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 20460 Dear Mr. [President/Speaker] : Enclosed is a draft of a proposed bill "to control the generation and transmission of noise detrimental to the human environment, and for other purposes." The proposed legislation would expand and coordinate Federal efforts to control noise, which presents a growing threat to the health and welfare of the American people. Particularly in congested urban areas, the noise produced by the products of our advancing technology, and in the manufacture of those products, causes continual annoyance and in some cases serious physical harm. While the States and localities have the responsibility to deal with many aspects of noise, effective Federal action is essential with respect to major noise problems requiring national uniformity of treatment. The proposed bill would achieve three primary functions. First, it would establish, in the Environmental Protection Agency, authority to coordinate existing Federal noise research and control programs, and authority to publish criteria and control-technology documents relating to noise. Second, it would supplement existing Federal authority to regulate the noise characteristics of articles that are major sources of noise, and authorize Federal noise labeling requirements for such articles. Third, it would direct all Federal agencies to administer their programs, consistent with existing authority, in such a manner as to minimize noise. A detailed section-by-section analysis of the bill is enclosed. A similar letter is being sent 184 to the [President of the Senate/Speaker of the House]. The bill is part of the President's environmental program as announced in his Environmental Message of February 8, 1971. It will be administered by the Environmental Protection Agency and was developed in coordination with the Council on Environmental Quality. The Office of Management and Budget advises that enactment of this bill would be in accord with the program of the President. Sincerely yours, /s/ William D. Ruckelshaus Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 185 > A BILL To control the generation and transmission of noise detrimental to the human environment, and for other purposes. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Con- gress assembled, That: This Act may be cited as the "Noise Control Act of 1971". SECTION 2. FINDINGS AND POLICY (a) The Congress finds -- (1) that inadequately controlled noise presents a growing danger to the health and welfare of the Nation's population, particularly in urban areas; (2) that the major sources of noise include transportation vehicles and equipment, machin- ery, appliances, and other manufactured articles that move in commerce; and (3) that, while primary responsibility for control of noise rests in many respects with the States and local governments, Federal action is essen- tial to deal with major noise problems requiring national uniformity of treatment. (b) The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare. To that end, it is the pur- pose of this Act to establish a means for effective coordination of Federal research and activities in noise control, to supplement existing Federal authority for regulation of the noise characteristics of arti- cles moving in commerce, and to authorize Federal noise labeling requirements for such articles. Nothing in this Act is intended to diminish the responsibilities of State and local governments to regulate other as- pects of noise within their jurisdictions. SECTION 3. DEFINITIONS As used in this Act the term -- (a) "Administrator" means the Admini- strator of the Environmental Protection Agency; (b) "person" means any private person or entity, any officer, department, agency, or instru- mentality of any State or local unit of government, and, except with respect to the provisions of section 186 12 (a), any officer, department, agency, Or instrumen- tality of the Federal Government; (c) "product" means any article or good manufactured for sale in, or introduction into, commerce, including but not limited to transportation vehicles and equipment, machinery, and appliances, provided, that it does not include (i) aircraft, air- craft engines, propellers, or appliances that are covered by Title VI of the Federal Aviation Act of 1958 (49 U.S.C. Secs. 1421-32), (ii) those military aircraft, weapons, or equipment that are designed for combat use; or (iii) those aircraft, rockets, or equip- ment that are designed for research or experimental or developmental work to be performed by the National Aeronautics and Space Administration, or other machin- ery or equipment designed for use in experimental work done by or for the Federal Government; (d) "ultimate purchaser" means the first person who in good faith purchases a new product for purposes other than resale; (e) "new product" means a product the equitable of legal title to which has never been trans- ferred to an ultimate purchaser; (£) "manufacturer" means any person en- gaged in the manufacturing or assembling of new prod- ucts or who acts for, and is controlled by, any such person in connection with the distribution of such products; (9) "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or between a place in a State and any place outside thereof, or within the District of Columbia or a possession of the United States, or be- tween points in the same State but through a point out- side thereof. SECTION 4. COORDINATION AND EVALUATION OF FEDERAL PROGRAMS (a) The Administrator shall promote coordi- nation of the programs of all Federal departments and agencies relating to noise research and noise control. Each Federal department or agency shall, upon request, furnish to the Administrator such information as he may reasonably require to determine the nature, scope, and results of the noise-research and noise-control 187 416-694 O - 71 - 13 programs of the department or agency. (b) On the basis of regular consultation with appropriate Federal departments and agencies, the Administrator shall compile and publish, from time to time, a report on the status and progress of Federal activities relating to noise research and noise con- trol. This report shall describe the noise programs of each Federal department or agency and assess the con- tributions of those programs to the Government's over- all efforts to control noise. SECTION 5. NOISE CRITERIA AND CONTROL TECHNOLOGY (a) The Administrator shall, after consulta- tion with appropriate Federal departments and agencies, develop and publish such criteria for noise as in his judgment may be requisite for the protection of the public health and welfare. Such criteria shall reflect the scientific knowledge most useful in indicating the kind and extent of all identifiable effects on the public health or welfare which may be expected from differing quantities and qualities of noise. The Administrator shall confer with the Secretaries of Health, Education, and Welfare, and of Labor to assure consistency between the criteria published under this subsection and the criteria and standards for occupa- tional noise exposure produced under the Occupational Safety and Health Act of 1970. (b) The Administrator shall, after publication of the initial criteria pursuant to subsection (a) of this section and after consultation with appropriate Federal departments and agencies, compile and publish a report or series of reports identifying major sources of noise and giving information on techniques for con- trol of noise from such sources. This information shall include such data as are available on the tech- nology, costs, and alternative methods of noise control. (c) The Administrator shall from time to time review and, as appropriate, revise or supplement any criteria or information on control techniques published pursuant to this section. (d) The publication or revision of any cri- teria or information on control techniques pursuant to this section shall be announced in the Federal Register, and copies shall be made available to the 188 general public. SECTION 6. NOISE-GENERATION STANDARDS (a) If the Administrator, in a report pub- lished pursuant to section 5, identifies as a major source of noise any product or class of products of one or more of the following types: (1) construction equipment, (2) transportation equipment (including recreational vehicles and related equipment), or (3) equipment powered by internal com- bustion engines, he may, after consultation to the extent desirable with appropriate Federal departments and agencies, by regu- lation prescribe and amend standards limiting the noise-generation characteristics (including reasonable durability over the life of the product) of such prod- uct or class of products. The standards so prescribed shall be the standards that the Administrator deter- mines, consistent with criteria published pursuant to section 5, to be requisite to protect the public health and welfare. In prescribing and amending such standards the Administrator shall consider whether any proposed standard is economically reasonable, tech- nologically practicable, and appropriate for the par- ticular products to which it will apply, and whether the particular products can more effectively be con- trolled through Federal regulation of interstate com- merce or through State or local regulations. Pro- vided, that no standards prescribed under this section shall apply to products manufactured on or before the effective date of such standards. (b) The Administrator shall publish any standards proposed under subsection (a) in the Fed- eral Register at least 60 days prior to the time when such standards will take effect. In addition to sub- missions of written views, any person who will be ad- versely affected by such proposed regulation may, within 45 days of the date of publication of the pro- posed regulation, or within such other time period as the Administrator may prescribe, file objections with the Administrator and request a public hearing. Requests for a public hearing made by a manufacturer of a product covered by the proposed standards shall be granted. Requests for a public hearing by other 189 persons may be granted at the discretion of the Admini- strator. If a public hearing is held, final regula- tions will not be promulgated by the Administrator until after the conclusion of such hearing. (c) Section 611 of the Federal Aviation Act of 1958 (49 U.S.C. Sec. 1431) is amended as follows: (1) In subsection (a), after "with the Secretary of Transportation" insert "and subject to the approval of the Administrator of the Environmental Protection Agency". (2) At the end of subsection (a), insert "Standards, rules, and regulations prescribed and amended under this section shall become effective only upon approval by the Administrator of the Environmental Protection Agency; provided, that, all standards, rules, and regulations prescribed pursuant to this section prior to the effective date of the Noise Con- trol Act of 1971 shall remain in effect until amended or revoked by subsequent standards, rules, or regula- tions prescribed and approved pursuant to this section." (3) After subsection (a), insert the following new subsections: "(b) The Administrator of the Federal Aviation Administration shall not issue a type certificate under section 603 of this act for any aircraft, or for any aircraft engine, propeller, or appliance that affects Significantly the noise or sonic boom characteristics of any aircraft, unless he shall have prescribed standards, rules, and regulations under this section that apply to such aircraft, air- craft engine, propeller, or appliance. "(c) If at any time the Admini- strator of the Environmental Protection Agency has reason to believe that an existing standard, rule, or regulation under this section does not protect the public from aircraft noise or sonic boom to the maxi- mum extent that is consistent with the consideration listed in subsection (d) of this section, he may re- quest the Administrator of the Federal Aviation Admini- stration to review and report to him on the advisa- bility of revising such standard, rule, or regulation. Any such request shall be accompanied by a detailed 190 statement of the information on which it is based.” (4) Subsections (b) and (c) are redesig- nated as (d) and (e). (d) No State or subdivision thereof shall adopt or enforce, with respect to any product for which noise-generation standards have been prescribed by the Administrator under subsection (a) of this section, any standard limiting noise-generation characteristics different from the standards prescribed by the Admini- strator. Nothing in this section shall diminish or enhance the rights of any State or subdivision thereof otherwise to control, regulate, or restrict the use, operation, or movement of such products. SECTION 7. LABELING (a) The Administrator may by regulation desig- nate products or classes thereof: (1) that produce noise capable of adversely affecting the public health or welfare; or (2) that are sold wholly or in part on the basis of their effectiveness in reducing noise. (b) For each of such products or classes the Administrator may, after consultation to the extent desirable with appropriate Federal departments and agencies, by regulation require that a notice of the actual level of noise generation, or notice of the actual effectiveness in reducing noise, be affixed to the product and to the outside of its container at the time of its sale to the ultimate purchaser. He shall prescribe the form of the notice and the methods and units of measurement to be used for this purpose. (c) Nothing in this section shall preclude or deny to any State or subdivision thereof the right to regulate product labeling in any way not in conflict with regulations promulgated by the Administrator under this section. SECTION 8. PROHIBITED ACTS (a) The following acts or the causing thereof are prohibited: (1) in the case of a manufacturer of new products, the sale, the offering for sale, or the introduction or delivery for introduction into commerce of any product manufactured after the effective date of regulations promulgated under section 6 (a) (respecting noise-generation characteristics) that are applicable 191 to such product, unless it is in conformity with such regulations (except as provided in subsection (b) of this section); (2) in the case of an owner or operator of a product, the use in commerce of such product after the effective date of regulations promulgated under section 6 (a) that are applicable to such product, un- less it is in conformity with such regulations (ex- cept as provided in subsection (b) of this section); (3) the removal or rendering inoperative by any person, other than for purposes of maintenence, repair, or replacement, of any device or element of design incorporated into any product in compliance with regulations promulgated under section 6 (a), prior to its sale or delivery to the ultimate purchaser or during its term of use. (4) in the case of a manufacturer of new products, the sale, the offering for sale, or the introduction or delivery for introduction into com- merce of any product manufactured after the effective date of regulations promulgated under section 7 (re- specting noise labeling) that are applicable to such product, unless it is in conformity with such regula- tions (except as provided in subsection (b) of this section); (5) the removal by any person of any notice affixed to a product or container pursuant to regulations promulgated under section 7, prior to sale of the product to the ultimate purchaser; (6) the importation into the United States by any person of any product in violation of regulations promulgated under section 13 that are applicable to such product; and (7) the failure or refusal by any person to permit access to, or copying of, records or to make reports or provide information required under section B. (b) (1) The Administrator may exempt any prod- uct, or class thereof, from paragraphs (1), (2), (4), and (6) of subsection (a), upon such terms and con- ditions as he may find necessary to protect the public health or welfare, for the purpose of research, inves- tigations, studies, demonstrations, or training, or for reasons of national security. 192 (2) A product intended solely for export, and so labeled or tagged on the outside of the con- tainer and on the product itself, shall not be subject to paragraph (1), (2), or (4) of subsection (a). SECTION 9. RECORDS, REPORTS, AND INFORMATION (a) Every manufacturer of a product for which applicable regulations have been promulgated under section 6 (a) or section 7 shall establish and maintain such records, make such reports, and provide such information (which may include the availability of products coming off the assembly line for testing by the Administrator) as the Administrator may reasonably require to enable him to determine whether such manu- facturer has acted or is acting in compliance with this Act and shall, upon request of an officer or employee duly designated by the Administrator, permit such officer or employee at reasonable times to have access to such information and to copy such records. (b) All information obtained by the Admini- strator or his representatives pursuant to subsection (a) of this section, which information contains or relates to a trade secret or other matter referred to in section 1905 of title 18 of the United States Code, shall be considered confidential for the purpose of that section, except that such information may be dis- closed to other Federal officers or employees, in whose possession it shall remain confidential, or when relevent in any proceeding under this Act. (c) This section shall apply only to manu- facturers in the United States. SECTION 10. FEDERAL PROGRAMS The Congress authorizes and directs that all agencies of the Federal Government shall, to the fullest extent consistent with existing authority, administer the programs within their control in such a manner as to further the policy declared in section 2(b). SECTION 11. RESEARCH, TECHNICAL ASSISTANCE, AND PUBLIC INFORMATION In furtherance of his responsibilities under this Act and to complement, as necessary, the noise- research programs of other Federal departments and agencies, the Administrator is authorized to: (a) Conduct research, and finance 193 research by contract with other public and private bodies, on the effects, measurement, and control of noise, including but not limited to: (1) Investigation of the psychological and physiological effects of noise on humans and the effects of noise on domestic animals, wildlife, and property, and determination of acceptable levels of noise on the basis of such effects: (2) Development of improved methods and standards for measurement and monitoring of noise, in cooperation with the National Bureau of Standards, Department of Commerce; and (3) Determination of the most effective and practicable means of controlling noise generation, transmission, and reception; (b) Provide technical assistance to State and local governments to facilitate their development and enforcement of ambient noise standards, including but not limited to: (1) Advice on training of noise-control personnel and on selection and operation of noise- abatement equipment; and (2) Preparation of model State or local legislation for noise control; and (c) Disseminate to the public information on the effects of noise, acceptable noise levels, and techniques for noise measurement and control. SECTION 12. ENFORCEMENT (a) (1) Any person who violates section 8(a) of this Act shall be subject to a civil penalty of not more than $25,000 for each violation, which may be assessed by the Administrator or by a court in any action authorized by subsection (b) or (c) of this section. (2) In any proceeding by the Administra- tor to assess a civil penalty under this subsection, no penalty shall be assessed until the person charged shall have been given notice and an opportunity for a hearing on such charge. In determining the amount of the penalty, or the amount agreed upon in compromise, the Administrator shall consider the gravity of the violation and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification by the Administrator of a violation. Upon 194 failure of the offending party to pay any penalty assessed, the Administrator may request the Attorney General to commence an action in the appropriate district court for appropriate relief. (3) For the purpose of this subsection, the commission of any act prohibited by paragraph (1), (2), (3), (4), (5), or (6) of section 8 (a) shall constitute a separate violation for each day or prod- uct involved. (b) The district courts of the United States shall have jurisdiction of actions brought by and in the name of the United States to restrain violations of this Act or to enforce civil penalties authorized by this Act. Any civil action authorized to be brought by the United States under this Act shall be referred to the Attorney General for appropriate action. (c) By agreement with any State, with or with- out reimbursement, the Administrator may authorize law enforcement officers or other personnel of such State to enforce the prohibitions of section 8(a) by bringing actions in the appropriate State courts. When autho- rized by State law, the courts of such State may enter- tain actions brought by such officers or personnel to restrain violations of this Act or to enforce civil penalties authorized by this Act. In any action under this subsection, any civil penalty imposed shall be payable one-half to the State and one-half to the United States Treasury. SECTION 13. IMPORTS (a) Products offered for importation shall be subject to the same general standards and labeling requirements that are applied to like domestic prod- ucts. The Administrator shall by regulation prescribe the procedures by which this will be accomplished with a minimum detrimental effect on domestic and inter- national trade. (b) The Secretary of the Treasury shall, in consultation with the Administrator, issue regulations to carry out the provisions of this Act with respect to products offered for importation. SECTION 14. APPROPRIATIONS There are authorized to be appropriated to carry out this Act for Fiscal Year 1972 and for each fiscal year thereafter such sums as are necessary. 195 SECTION 15. REPORT OF NOISE STUDY Section 402 (a) of the Clean Air Act is amended by deleting everything before "a full and complete investigation" and inserting in lieu thereof "The Administrator shall carry out". 196 SECTION-BY-SECTION ANALYSIS The title of the proposed act is designated as "The Noise Control Act of 1971." Section 2 contains a statement of congressional findings and policy. Subsection 2 (a) states findings that noise, particularly in urban areas, presents a growing danger to the public health and welfare; that the major sources of noise include a variety of manu- factured articles that move in commerce; and that the Federal Government bears a responsibility to deal with major noise problems requiring national uniformity of treatment. Subsection 2(b) declares a Federal policy to promote an environment for all Americans free from noise that jeopardizes their health or welfare. This subsection further states that the purpose of the pro- posed act is to establish a means for effective coordination of Federal noise programs, to supplement existing Federal authority for regulation of the noise characteristics of articles moving in commerce, and to authorize Federal noise labeling requirements for such articles. The Act is not intended to relieve States and localities of their responsibilities to control other aspects of noise within their juris- dictions. Section 3 defines certain terms used in the proposal. Subsection 3 (a) defines the official primarily responsible for implementing the legislation as the Administrator of the Environmental Protection Agency (EPA). Subsection 3(b) defines "person" in such a way that all Federal, State, or local govern- mental organizations, employees, and agents, along with private persons or entities, are included within the enforcement provisions of section 12. However, Federal organizations, employees, and agents are excepted from the definition of "person" insofar as subsection 12(a), providing for civil penalties, is concerned. Thus, Federal organizations, employees, and agents must comply with the prohibitions of section 8, but they are not liable for or subject to the civil penalties authorized in subsection 12 (a). Subsection 3(c) defines "product" to include any article or good manufactured for sale in, or introduction into, commerce with three general 197 exclusions. "Product" does not include aircraft or aircraft components that are covered by Title VI of the Federal Aviation Act of 1958. The noise characteristics of these aircraft and aircraft components are already subject to regulation under that Act, which will continue in effect subject to the amendments made by section 6 of the proposed legislation, discussed below. "Product" also excludes any article that, although otherwise within the broad definition, is designed for military combat use. National security requires that the responsible authorities be free to determine to what extent noise control objectives must be subordinated to military necessities in the use of such articles. Therefore, they are excluded from the definition of "product" to exempt them entirely from the standard-setting and labeling provisions of sections 6 and 7 without regard to the exercise by the Admin- istrator of his power under section 8(b) (1), discussed below, to grant specific exemptions for national security reasons. The policy of the proposed legis- lation will, however, dictate that all feasible steps be taken to improve the noise characteristics of even these articles. "Product" also excludes equipment designed for use in experimental work done by or for the National Aeronautics and Space Administration or other agencies of the Federal Government. Subsection 3(d) defines "ultimate purchaser" to be the first person who purchases a new product for a use other than resale. This excludes both those intermediaries who may handle the product before sale to the first user, and subsequent users who may obtain the product second-hand. Subsection 3(e) defines "new product" to mean a product the title to which has not yet been transferred to an ultimate purchaser. Subsection 3 (f) defines "manufacturer" to include any person who manufactures or assembles new products or who acts on behalf of such a person in the distribution of new products. "Commerce" is defined in subsection 3(g) to include all forms of interchange involving two or more States, or a State and a place outside thereof or the District of Columbia or a possession of the United States. Section 4 entrusts to the Administrator of EPA 198 the primary responsibility for promoting coordination of Federal programs relating to noise. To assist him in exercising this responsibility, subsection 4 (a) directs each other Federal agency to furnish him with any information he may reasonably request about the agency's noise programs. Subsection 4(b) directs the Administrator, on the basis of consultation with appropriate Federal agencies, to publish a periodic report covering the noise-related activities of all Federal agencies. It is intended that this report will provide a means for assessing the overall progress of Federal noise control efforts. Section 5 gives the Administrator of EPA responsibility to develop and publish basic documents on noise and its control. Subsection 5(a) directs him to develop criteria for noise, taking into account up-to-date scientific knowledge on noise effects. These criteria should make clear what quantities and qualities of noise are consistent with protection of the public health and welfare under differing circum- stances. The Administrator is directed to seek con- sistency between these criteria and the criteria and standards for occupational noise exposure produced by the Secretaries of Health, Education, and Welfare and Labor under the Occupational Safety and Health Act of 1970. Subsection 5 (b) directs the Administrator, after initial publication of criteria under subsection 5(a), to publish one or more reports identifying major sources of noise and discussing techniques for con- trolling noise from such sources. It is not intended that any single report published under subsection 5 (b) must cover all or most major noise sources. Rather, as information becomes available, the Administrator may publish individual reports identifying one or more major sources and outlining the noise control technology applicable to each identified source. Subsection 5(c) directs the Administrator to review and, when appropriate, revise both the criteria and the control technology documents published under section 5, to ensure that these reflect changes in available knowledge. Sub- section 5(d) requires announcement of each publication or revision of criteria or control technology documents in the Federal Register and release of copies to the 199 public. This provision is intended to ensure adequate public knowledge of the content of these publications. Subsection 6 (a) authorizes the Administrator of EPA to prescribe noise standards for construction equipment, transportation equipment, and equipment powered by internal combustion engines that he has identified as a major source of noise and for which he has discussed control technology in a report published pursuant to section 5. When the Administrator determines to impose standards, subsection 6(a) requires that they be set at the level required, in light of the published criteria, to protect health and welfare, taking into account the feasibility of such a level of control and the appropriateness of Federal regulation. Standards under subsection 6 (a) shall not apply to products manufactured on or before the effective date of the standards. Subsection 6(b) alters the procedures under the Administrative Procedure Act by granting a manufacturer the right to a public hearing on proposed standards that would cover his products. Subsection 6 (c) amends section 611 of the Federal Aviation Act, which authorizes regulation of the noise characteristics of civil aircraft and aircraft components. Subsection 6 (c) provides that standards, rules, and regulations prescribed by the Federal Aviation Administration under section 611 must be approved by the Administrator of EPA, and that such standards, rules, and regulations become effective only upon such approval. However, subsection 6 (c) contains a saving clause which allows all standards, rules, and regulations prescribed under section 611 prior to the effective date of the proposed legislation to continue in effect until superseded by new standards, rules, or regulations prescribed in accordance with the proposed legislation. Subsection 6 (c) further provides that after the effective date of the proposed act the Federal Aviation Administrator shall not issue a type certificate for any aircraft unless he has already prescribed standards, rules, and regulations governing the noise character- istics of that aircraft. This requirement also applies to any aircraft engine, propeller, or appliance that affects significantly the noise characteristics of any aircraft in which it is to be used. This provision will 200 ensure that in the future the noise characteristics of any new aircraft or aircraft component will be ascertained and controlled prior to its introduction into air commerce or air transportation. Subsection 6 (c) further provides that if the Administrator of EPA has reason to believe that an existing standard, rule, or regulation prescribed under 611 of the Federal Aviation Act inadequately protects the public from noise, he may request the Federal Aviation Administrator to review the standard, rule, or regulation and report to him on the advisability of revising it. Any such request must be accompanied by a detailed statement of the reasons therefor. The Administrator of EPA may invoke this provision with respect to a standard, rule, or regulation prescribed before or after the effective date cf the proposed act. Subsection 6(d) provides that when the Admin- istrator of EPA has prescribed standards for any product under subsection 6 (a), no State or subdivision thereof shall adopt or enforce noise standards for that product different from the standards set by him. Nothing in section 6 preempts any existing powers of the States or localities to set noise standards for products for which the Administrator has not yet set standards under the proposed act, to set State standards identical to standards set by the Administrator for the same product, or to regulate the use, operation, or movement of products. Section 7 authorizes Federal noise labeling requirements for products in commerce. Subsection 7 (a) authorizes the Administrator of EPA to designate classes of products that either produce noise capable of adversely affecting the public health or welfare, or are sold at least in part on the basis of their effec- tiveness in reducing noise. These products need not be limited to those for which noise standards have been set under section 6 or which have been discussed in a control technology document under section 5. Sub- section 7 (b) authorizes the Administrator to prescribe a noise-generation or noise-reduction labeling require- ment for any product designated under subsection 7 (a). To assure that such notices are informative and useful in facilitating choices by buyers in the marketplace, the Administrator is directed to prescribe the form of 201 the notice and the methods and units of measurement used in its preparation. Subsection 7 (c) leaves intact any existing powers of the States to regulate product labeling, except that such regulation may not conflict with regulations promulgated by the Administrator under section 7. Subsection 8 (a) prohibits a number of acts in violation of the proposed legislation. Paragraph 8 (a) (1) forbids any manufacturer to sell a product manu- factured after the effective date of noise-generation standards prescribed under subsection 6 (a) that apply to the product, unless the product conforms with such standards. Paragraph 8(a) (2) forbids any person who owns or operates a product to use it in commerce after the effective date of noise-generation standards prescribed under subsection 6 (a) that apply to it, unless the product conforms with such standards. Paragraph 8 (a) (3) forbids any person to remove or render inoperative, other than for maintenance, repair, or replacement, any device or element of design incorporated into a product to make the product comply with noise-generation standards prescribed under sub- section 6 (a). This prescription applies both prior to sale of the product to the ultimate purchaser and during its term of use. Paragraph 8 (a) (4) forbids any manufacturer to sell a product manufactured after the effective date of labeling regulations promulgated under section 7 that apply to the product, unless the product conforms to such regulations. Paragraph 8 (a) (5) forbids any person, prior to sale of a product to the ultimate purchaser, to remove a notice affixed to the product or its con- tainer pursuant to regulations promulgated under section 7. Paragraph 8 (a) (6) forbids the importation into the United States of any products in violation of regulations under section 13, discussed below, relating to imports. Paragraph 8(a) (7) forbids any person to fail to comply with the provisions of section 9, discussed below, respecting access to required records and reports. Subsection 8(b) creates two exceptions to the prohibitions in paragraphs 8 (a) (1), (2), (4), and (6). First, the Administrator is authorized to exempt any new product from those prohibitions, upon such terms and conditions as he may find necessary to protect the 202 public health or welfare, for the purpose of research, investigations, studies, demonstrations, or training, or for reasons of national security. Second, subsection 8 (b) provides that a product produced solely for export, and visibly labeled or tagged to that effect, is exempted from the prohibitions of paragraphs 8 (a) (1), (2) and (4). Section 9 requires every manufacturer of a product covered by noise regulation or labeling regulations under subsection 6 (a) or section 7 to maintain such records, make such reports, and provide such information as the Administrator may reasonably require to enable him to determine whether the manu- facturer has acted or is acting in compliance with the proposed act. This may include the availability of products coming off the assembly line for testing by the Administrator. The manufacturer shall, on request, permit a representative of the Administrator to view and copy such records. Any information obtained by the Administrator or his representatives pursuant to section 9, if it contains or relates to a matter referred to as confidential in section 1905 of title 18 of the United States Code, shall be protected from disclosure as provided in that section, except that it may be disclosed to other Federal employees or when relevant in any proceeding under the proposed act. Disclosure to other Federal employees or in a pro- ceeding under the proposed act will not terminate the confidential status of the information. Section 10 authorizes and directs all Federal agencies to administer the programs within their control in such a manner as to further the policy of the proposed Act, to the fullest extent consistent with the agencies’ existing authority. Section 11 authorizes the Administrator of EPA, in furtherance of his responsibilities under the proposed act, to conduct and assist noise research, to provide technical assistance to State and local governments, and to disseminate to the public information on noise. The enumeration in section 11 of particular activities within these categories is not intended to exclude other activities but only to stress the importance of those enumerated. However, it is not intended that the activities of the Administrator under section 11 will 203 416-694 O - 71 - 14 duplicate activities carried on in other agencies. Section 12 provides for enforcement of the pro- hibitions in subsection 8 (a) of the proposed act. Sub- section 12 (a) establishes a civil penalty of not more than $25,000 for each violation of subsection 8 (a), and provides for imposition of this fine either by the Administrator or by a court in a proceeding authorized by subsection 12 (b) or (c), discussed below. Sub- section 12 (a) further provides that in any administra- tive proceeding for imposition of such a civil penalty by the Administrator the person charged must be given notice and an opportunity for a hearing, and the Administrator must, in determining the penalty or the amount accepted in compromise, consider the gravity of the violation and the efforts of the person charged to achieve rapid compliance after notice of the violation. If the offending party fails to pay any penalty assessed, the Administrator may request the Attorney General to sue in the appropriate district court for appropriate relief. For the purpose of imposing cumulative penalties, the commission of any act prohibited by paragraph 8 (a) (1), (2), (3), (4), (5), or (6) will be a separate violation for each day or product involved. For example, sale of 10 identical products in violation of noise-generation or labeling regulations would constitute 10 violations, punishable by a maximum cumulative fine of $250,000. Subsection 12 (b) gives jurisdiction to the Federal district courts to entertain actions brought by and in the name of the United States to restrain violations of the proposed act or to enforce civil penalties authorized by it. This provision will allow the Administrator of EPA, by recommending that the Attorney General bring suit, to seek equitable relief or judicial imposition of a civil penalty, or both, as an alternative to the administratively imposed fine also authorized by section 12. Section 12(c) enables the Administrator to enlist the aid of State or local governments in the enforcement of the proposed act. While neither the executive nor the judicial bodies of any State will be required to participate, they may do so where this is authorized by State law and also by the Administrator of EPA in an agreement with the appropriate State authorities. 204 Under this provision the Administrator may authorize State personnel to sue in State court both to restrain violations and to impose civil penalties; he may not authorize State personnel to impose fines admin- istratively. Any civil penalty iaposed under the proposed act by a State court in a suit under sub- section 12 (c) will be payable one-half to the appropriate State authorities and one-half to the United States Treasury. Section 13 directs the Administrator and the Secretary of the Treasury to issue regulations to apply to imports the same general standards and labeling requirements that are applied to like domestic products. Section 14 authorizes the appropriation for Fiscal Year 1972 and for each fiscal year thereafter such sums as are necessary to carry out the proposed act. Section 15 amends the Clean Air Act by deleting the requirement that there by an Office of Noise Abate- ment and Control in the Environmental Protection Agency. 205 —— - alia AEE SS A National Land Use Policy 207 UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 Dear Mr. [President/Speaker] : Enclosed is a draft of a proposed bill "To establish a national land use policy to authorize the Secretary of the Interior to make grants to encourage and assist the States in the preparation and implementa- tion of land use programs for the protection of areas of critical environmental concern and the control and direction of growth and development of more than local significance; and for other purposes." We recommend that the bill be referred to the appropriate committee for consideration and we recommend that it be enacted. This legislative proposal was referred to in President Nixon's message on the environment, which was sub- mitted to the Congress on February 8, 1971. In it President Nixon stated: "The use of our land not only affects the natural environment but shapes the pattern of our daily lives. Unfortunately, the sensible use of our land is often thwarted by the inability of the many competing and overlapping local units of government to control land use decisions which have regional significance. "While most land use decisions will continue to be made at the local level, we must draw upon the basic authority of State government to deal with land use issues which spill over local jurisdictional boundaries. The States are uniquely qualified to effect the 208 institutional reform that is so badly needed, for they are closer to the local problems than is the Federal Government and yet removed enough from local tax and other pressures to represent the broader regional interests of the public. Federal programs which influence major land use decisions can thereby fit into a coherent pattern." The proposed bill encourages the States to exercise their responsibility more fully to deal with certain critical land use problems of more than local impact. Under the proposal Federal grants would be made to assist States in developing and managing land use programs. Grants for up to 50% of cost would be made to develop State land use programs, including plans covering selected areas, and laws or regulations necessary to implement the programs. Grants would also be made for up to 50% of the cost of managing State land use programs which meet certain requirements set forth in the draft bill. For example, the programs should include methods for inventorying, designating and exercising control over the use of land within areas of critical environ- mental concern or areas impacted by key facilities, as well as methods for controlling large-scale development and methods for assuring that local laws and regulations do not restrict development of regional benefit, and for controlling land use around new communities. The proposed bill authorizes the President to designate an agency to issue guidelines to assist Federal agencies in carrying out the requirements of this Act. I understand that the President intends to give this responsibility to the Council on Environmental Quality. While the Department of the Interior is assigned the primary responsibility for the administration of this program, the Department of Housing and Urban Development will share this responsibility with regard to those aspects of the State land use program 209 dealing with large-scale development, key facilities, development and land use of regional benefit and new communities. A section-by-section analysis of the bill is enclosed. The Office of Management and Budget has advised that enactment of this proposed legislation would be in accord with the program of the President. Sincerely yours, /s/ Rogers C.B. Morton Secretary of the Interior Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 210 A BILL To establish a national land use policy; to authorize the Secretary of the Interior to make grants to encourage and assist the States to prepare and implement land use programs for the protection of areas of critical environmental concern and the control and direction of growth and development of more than local significance; and for other purposes. Be it enacted by the Senate and House of Repre- sentatives of the United States in Congress assembled, That this Act may be cited as the "National Land Use Policy Act of 1971." FINDINGS AND DECLARATIONS OF POLICY Section 101. (a) The Congress hereby finds and declares that decisions about the use of land significantly influence the quality of the environ- ment, and that present State and local institutional arrangements for planning and regulating land use of more than local impact are inadequate, with the result: (1) that important ecological, cultural, historic and aesthetic values in areas of critical environmental concern which are essential to the well-being of all citizens are being irretrievably damaged or lost; (2) that coastal zones and estuaries, flood plains, shorelands and other lands near or under major bodies or courses of water which possess special natural and scenic characteristics are being damaged by ill-planned development that threaten these values; (3) that key facilities such as major airports, highway interchanges, and recreational facili- ties are inducing disorderly development and urbani- zation of more than local impact: (4) that the implementation of standards for the control of air, water, noise and other pollu- tion is impeded; (5) that the selection and development of sites for essential private development of regional benefit has been delayed or prevented; (6) that the usefulness of Federal or federally-assisted projects and the administration of Federal programs are being impaired; (7) that large-scale development often creates a significant adverse impact upon the environ- ment. (b) The Congress further finds and declares that there is a national interest in encouraging the States to exercise their full authority over the planning and regulations of non-Federal lands by assisting the States, in cooperation with local govern- ments, in development land use programs including uni- fied authorities, policies, criteria, standards, methods and processes for dealing with land use deci- sions of more than local significance. DEFINITIONS Section 102. For purposes of this Act: (a) "Areas of critical environmental concern" are areas where uncontrolled development could result in irrever- sible damage to important historic, cultural, or aesthetic values, or natural systems or processes, which are of more than local significance; or life and safety as a result of natural hazards of more than local significance. Such areas shall include: (1) Coastal zones and estuaries: "Coast- al zones" means the land, waters, and lands beneath the waters in close proximity to the coastline (in- cluding the Great Lakes) and strongly influenced by each other, and which extend seaward to the outer limit of the United States territorial sea and include areas influenced or affected by water from an estuary such as, but not limited to, salt marshes, coastal and inter- tidal areas, sounds, embayments, harbors, lagoons, in- shore waters, channels, and all other coastal wetlands. "Estuary" means the part of the mouth of a river or Stream or other body of water having unimpaired natural connection with the open sea and within which the sea water is measurably diluted with fresh water derived from land drainage. (2) shorelands and flood plains of rivers, lakes, and streams of State importance: (3) rare or valuable ecosystems; (4) scenic or historic areas; and (5) such additional areas of similar valuable or hazardous characteristics which a State determines to be of critical environmental concern. 212 (b) "Key facilities" are public facilities which tend to induce development and urbanization of more than local impact and include the following: (1) any major airport that is used or is designed to be used for instrument landings; (2) interchanges between the Interstate Highway System and frontage access streets or highways: major interchanges between other limited access high- ways and frontage access streets or highways; and (3) major recreational lands and facilities. (c) "Development and land use of regional ben- efit" includes land use and private development for which there is a demonstrable need affecting the in- terests of constituents of more than one local govern- ment which outweighs the benefits of any applicable restrictive or exclusionary local regulations. (d) "State" includes the 50 States of the United States, the Commonwealth of Puerto Rico, Guam, American Samoa, and the Virgin Islands. PROGRAM DEVELOPMENT GRANTS Section 103. (a) The Secretary of the In- terior (hereinafter referred to as the "Secretary") is authorized to make not more than two annual grants to each State to assist that State in developing a land use program meeting the requirements set forth in section 104 of this Act. Such grants shall not ex- ceed 50 percent of the costs of program development. Prior to making the first grant, the Secretary shall be satisfied that such grant will be used in develop- ment of a land use program meeting the requirements set forth in section 104. Prior to making a second grant, the Secretary shall be satisfied that the State is adequately and expeditiously proceeding with the development of a land use program meeting the re- quirements of section 104. (b) States receiving grants pursuant to this section shall submit to the Secretary not later than 1 year after the date of award of the grant a report on work completed toward the development of a State land use program. A State land use program meeting the re- quirements of section 104 of this Act shall satisfy the requirements for such a report. (c) The authority to make grants under this section expires three years from date of enactment. PROGRAM MANAGEMENT GRANTS Section 104. Following his review of a State's land use program, the Secretary is authorized to make a grant to that State to assist it in managing the State land use program. Successive grants for this purpose may be made annually to any State resubmitting its land use program for review by the Secretary. Grants made pursuant to this section shall not exceed 50 per- cent of the cost of managing the land use program. Grants authorized by this section shall be made by the Secretary only if, in his judgment: (a) the State's land use program includes: (1) a method for inventorying and desig- nating areas of critical environmental concern: (2) a method for inventorying and desig- nating areas impacted by key facilities; (3) a method for exercising State control over the use of land within areas of critical environ- mental concern and areas impacted by key facilities: (4) a method for assuring that local regulations do not restrict or exclude development and land use of regional benefit; (5) a policy for influencing the location of new communities and a method for assuring appropriate controls over the use of land around new communities; (6) a method for controlling proposed large-scale development of more than local significance in its impact upon the environment; (7) a system of controls and regulations pertaining to areas and developmental activities pre- viously listed in this subsection which are designed to assure that any source of air, water, noise or other pollution will not be located where it would result in a violation of any applicable air, water, noise or other pollution standard or implementation plan; (8) a method for periodically revising and updating the State land use program to meet changing conditions; and (9) a detailed schedule for implementing all aspects of the program. For purposes of complying with paragraphs (1)- (7) of this subsection (a), any one or a combination 214 of the following general techniques is acceptable: (i) State establishment of criteria and standards subject to judicial review and judicial enforcement of local implementation and compliance; (ii) direct State land use planning and regulation; (iii) State administrative review of local land use plans, regu- lations and implementation with full powers to approve or disapprove. (b) in designating areas of critical environ- mental concern, the State has not excluded any areas of critical environmental concern to the Nation. (c) in controlling land use in areas of cri- tical environmental concern to the Nation, the State has procedures to prevent action (and, in the case of successive grants, the State has not acted) in sub- stantial disregard for the purposes, policies and re- quirements of its land use program. (d) State laws, regulations and criteria af- fecting areas and developmental activities listed in subsection (a) of this section are in accordance with the policy, purpose and requirements of thie Act; and that State laws, regulations and criteria affecting land use in the coastal zone and estuaries further take into account: (1) the aesthetic and ecological values of wetlands for wildlife habitat, food production sources for aquatic life, recreation; sedimentation control, and shoreland storm protection; and (2) the susceptibility of wetlands to permanent destruction through draining, dredging, and filling, and the need to restrict such activities. (e) the State is organized to implement its State land use program. (f£) the State land use program has been re- viewed and approved by the Governor. (g) the Governor has appropriate arrangements for administering the land use program management grant. (h) the State, in the development, revision, and implementation of its land use program, has pro- vided for adequate dissemination of information and for adequate public notice and public hearings. (i) the State has: (1) coordinated with metro- politanwide plans existing on January 1 of the year in 215 which the State use program is submitted to the Secretary, which plans have been developed by an area- wide agency designated pursuant to regulations es- tablished under Section 204 of the Demonstration Cities and Metropolitan Development Act of 1966; (2) coordinated with appropriate neigh- boring States with respect to lands and waters in interstate areas; (3) taken into account the plans and programs of other State agencies and of Federal and local governments. (J) the State utilizes for the purpose of furnishing advice to the Federal Government as to whether Federal and Federally-assisted projects are consistent with the State land use program, proce- dures established pursuant to Section 204 of the Demonstration Cities and Metropolitan Development Act of 1966 and Title IV of the Intergovernmental Coopera- tion Act of 1968. FEDERAL REVIEW OF GRANT APPLICATIONS AND STATE LAND USE PROGRAMS Section 105. (a) The Secretary before making a program management grant pursuant to section 104, shall consult with the heads of all Federal agencies which conduct or participate in construction, development or assistance programs significantly affecting land use in the State, and shall consider their views and recommen-— dations. The Secretary shall not approve a grant pur- suant to section 104 until he has ascertained that the Secretary of Housing and Urban Development is satisfied with those aspects of the State's land use program dealing with large-scale development, key facilities, development and land use of regional benefit, and new communities meet the requirements of section 104 for funding of a program management grant. (b) The Secretary shall take final action on a State's application for a grant authorized under section 104 not later than six months following receipt for review of the State's land use program. CONSISTENCY OF FEDERAL ACTIONS WITH STATE LAND USE PROGRAMS Section 106. (a) Federal projects and activities significantly affecting land use shall be consistent with State land use programs funded under section 104 of this Act except in cases of overriding national interest. Program coverage and procedures provided for in regulations issued pursuant to section 204 of the Demonstration Cities and Metropolitan Development Act of 1966 and Title IV of the Inter- governmental Cooperation Act of 1968 shall be applied in determining whether Federal projects and activities are consistent with State land use programs funded under section 104 of this Act. (b) After December 31, 1974, or the date the Secretary approves a grant under section 104, which- ever is earlier, Federal agencies submitting state- ments required by Section 102 (2) (C) of the National Environmental Policy Act shall include a detailed statement by the responsible official on the rela- tionship of proposed actions to any applicable State land use program which has been found eligible for a grant pursuant to section 104 of this Act. FEDERAL ACTION IN THE ABSENCE OF STATE LAND USE PROGRAMS Section 107. Where any major Federal action significantly affecting the use of non-Federal lands is proposed after December 31, 1974, in a State which has not been found eligible for a program management grant pursuant to section 104 of this Act, the responsible Federal agency shall hold a public hearing in that State at least 180 days in advance of the proposed action concerning the effects of the action on land use taking into account the relevant consideration set out in section 104 of this Act, and shall make findings which shall be submitted for review and comment by the Secretary, and where appropriate, by the Secretary of Housing and Urban Development. Such findings of the responsible Federal agency and comments of the Secre- tary or the Secretary of Housing and Urban Development shall be part of the detailed statement required by Section 102 (2) (C) of the National Environmental Policy Act (42 U.S.C. 4321 et seq). This section shall be sub- ject to exception where the President determines that the interests of the United States so requires. AVAILABILITY OF FEDERAL EXPERTISE Section 108. (a) The Secretary shall provide advice upon request to States concerning the designation 217 of areas of critical environmental concern to the Nation. (b) Federal agencies with data or expertise relative to land use and conservation shall take appro- priate measures; subject to appropriate arrangements for payment or reimbursement, to make such data or expertise available to States for use in preparation, implementation, and revision of State land use programs, GUIDELINES Section 109. The President is authorized to designate an agency or agencies to issue guidelines to the Federal agencies to assist them in carrying out the requirements of this Act. ALLOCATION OF FUNDS Section 110. (a) Funds for grants authorized by sections 103 and 104 of this Act shall be allocated to the States based on regulations issued by the Secre- tary which shall take into account State population and growth; nature and extent of coastal zones and estua- ries and other areas of critical environmental concern and other relevant factors. (b) No grant funds shall be used to acquire real property. (c) A refusal by the Secretary to provide a program development or program management grant autho- rized by this Act shall be in writing. MISCELLANEOUS Section 111. (a) The Secretary shall develop, after appropriate consultation with other interested parties, both Federal and non-Federal, such rules and regulations covering the submission and review of appli- cations for grants authorized by sections 103 and 104 as may be necessary to carry out the provisions of this Act. (b) A State receiving a grant under the pro- visions of section 103 or 104 of this Act, the agency designated by the Governor to administer such grant, and State agencies allocated a portion of a grant shall make reports and evaluations in such form, at such times, and containing such information concerning the status and application of Federal funds and the operation of the approved management program as the Secretary may require, and shall keep and make avail- able such records as may be required by the Secretary 218 for the verification of such reports and evaluations. (c) The Secretary, and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access, for purposes of audit and examination, to any books, documents, papers, and records of a grant recipient that are pertinent to the grant received under the provisions of section 103 or 104 of this Act. (d) Nothing herein shall be interpreted to extend the territorial jurisdiction of any State. (e) Nothing herein shall be construed to imply Federal consent to or approval of any State or local actions which may be required or prohibited by other Federal statutes or regulations. APPROPRIATION AUTHORIZATION Section 112. (a) There are hereby authorized to be appropriated not to exceed $20,000,000 in each fiscal year, 1972 through 1976, for grants authorized by sections 103 and 104 of this Act, such funds to be available until expended. (b) There are hereby authorized to be appro- priated such sums as may be necessary for the Secre- tary of the Interior and the Secretary of Housing and Urban Development to administer the program estab- lished by this Act. 416-694 O - 71 - 15 219 SECTION-BY-SECTION ANALYSIS The proposed bill would establish a National Land Use Policy to encourage the States to plan and regulate land use in certain critical areas. Section 101 - declares Congressional findings that present State and local institutional arrangements for planning and regulating land use are inadequate and have resulted in haphazard land development and the loss of important environmental values. It is in the national interest to encourage and assist the States in strengthening the institutional framework for planning and controlling the use of non-Federal lands. Section 102 - contains definitions. "Areas of critical environmental concern" are areas where uncon- trolled development could result in irreversible damage to important values. Such areas include coastal zones and estuaries and other similar areas. "Key facilities" are public facilities which tend to induce development of more than local impact, such as airports and highway interchanges. "Development and land use of regional benefit" means private development, the regional need for which outweighs a local conflicting interest. Section 103 - authorizes the Secretary of the Interior to make two successive annual grants of up to 50% of the cost to States of developing a land use pro- gram. Prior to receiving the second grant, the State must submit a report of its progress in developing a program. Section 104 - authorizes the Secretary to make grants of up to 50% of the cost to States of managing their land use program. Such grants will be made only if the State program, in the Secretary's judgment, meets certain specified criteria. Tt must include methods for inventorying, designating and exercising State control over areas of critical environmental concern and areas impacted by key facilities, a method for assuring that local regulations do not restrict land use and private development of regional benefit, a policy for influencing the location of new communities, a method for controlling the use of land around new communities, a method for controlling proposed large-scale development of more than local impact on the environment and a detailed schedule for implementing all aspects of the Program. The program 220 must not exclude areas of critical environmental concern to the Nation and must take into account the unique values and fragile nature of coastal zones and estuaries, particularly coastal wetlands. The program must also meet certain other organizational and pro- cedural requirements. Section 105 - requires the Secretary to con- sult with Federal agencies with activities or programs affecting land use before making a program management grant. The Secretary shall not approve such a grant unless the Secretary of Housing and Urban Development is satisfied that those aspects of the State land use program dealing with large-scale development and key facilities, development and land use of regional benefit, and new communities meet the requirements of section 104. The Secretary shall act on a program management grant application within 6 months after receipt of the State's land use program. Section 106 - establishes a requirement for consistency of Federal projects and activities with State land use programs. It also requires that Federal agencies submitting environmental statements pursuant to the National Environmental Policy Act include a detailed statement of the relationship of the pro- posed Federal action to any applicable State land use program which has been found eligible for a management grant. Section 107 - requires that where a State has not been found eligible for a management grant, any major Federal action significantly affecting the use of non-Federal lands proposed after December 31, 1974, must be preceded by a public hearing at least 180 days before the proposed action, followed by detailed findings upon which the Secretaries of the Interior or Housing and Urban Development will be allowed to comment, unless the President determines that the interests of the United States are to the contrary. Section 108 - authorizes the Secretary to pro- vide advice upon request to States about areas of critical environmental concern to the Nation and directs Federal agencies to share pertinent expertise with the States. Section 109 - authorizes the President to designate an agency to issue guidelines to assist 22) Federal agencies carrying out the responsibilities under the Act. Section 110 - authorizes the Secretary to . allocate grant funds to the States on the basis of State population and growth, extent of coastal areas and areas of critical environmental concern and other relevant factors. No grant funds shall be used by the State to acquire real property. Section 111 - authorizes the Secretary to develop, in consultation with other interested parties, rules and regulations covering the submission and review of grant applications and to require reports concerning the status and operation of the program. It requires that certain records be kept and authorizes the Secretary and the Comptroller General to audit and examine such records. It further provides that nothing in this Act shall extend State territorial jurisdiction or be construed to conflict with other Federal statutes or regulations. Section 112 - authorizes the appropriation of $20 million in each fiscal year 1972 through 1976 for ‘grants to States. It further authorizes the appro- priation of such sums as necessary for the Departments of of Interior and Housing and Urban Development to administer the program. 222 223 Legacy of Parks LEGACY OF PARKS Continued growth of urban areas in the United States has not been accompanied by the acquisition and development of parks, recreation areas, and other open spaces where most of our population lives--in and near cities. Developing metropolitan areas have rapidly con- sumed nearby natural areas as well as other neighborhood open space. Crowded city centers in particular often have too little open space and recreational facilities. There are two existing major Federal funding pro- grams. The Land and Water Conservation Fund, adminis- tered by the Department of the Interior, provides funds for Federal purchases of nationally important natural or historic areas and grant moneys for State and local out- door recreation acquisition and development. Although the fund has provided needed additions to the National Park System, the National Refuge System, and the National Forests, the State grant program was not structured to provide adequate recreation where the great bulk of our population resides--the urban areas. The second major program, the Open Space Lands Program of the Department of Housing and Urban Development (HUD), has been limited in its funding capability over the years. THE PRESIDENT'S PROPOSALS The President is seeking to create a legacy of parks with special emphasis on our urban needs. For the HUD program the President is requesting an appropriation of $200 million for fiscal year 1972-- almost triple the 1971 funding level--taking advantage of new authorities and program options provided by the Hous- ing and Urban Development Act of 1970. Approximately $115 million would be spent for development of publicly owned urban lands into parks and recreation areas regard- less of how the land was acquired originally. Special emphasis would be given to developing vacant or abandoned properties in the inner city. Highest priority would be given to projects in low-income areas. Grant funds will also be used to develop swimming pools in high-density, low- and moderate-income neighborhoods. The President's budget request for the Land and Water Conservation Fund would increase appropriations to $380 million for fiscal year 1972, of which $280 million is requested for grants. Proposed amendments to the Land 224 and Water Conservation Fund would channel a greater share of the funds under the State grant program into populous and high-density States. These amendments would author- ize up to 25 percent of any State's allocated funds for indoor recreation facilities where climate and lack of space make such an approach necessary. Expanded review powers by the Secretary of the Interior would help assure that the States provide more natural areas and parks in greater relationship to the location of population within the State. Additional proposals would complement this "Legacy of Parks." In a special message, the President will soon recommend a major enlargement of our national wilderness preservation system. Amendments to the Feder- al Property and Administrative Services Act of 1949 would permit the movement of Federal Government facilities from land that could be better used for parks and recreational activities. (see attached legislation.) Changes in the Internal Revenue Code will be proposed to encourage charitable donation of land by private citizens for con- servation purposes. Another important initiative the President is taking is to declare surplus for park purposes five key Federal properties. The President intends to continue this effort to make underutilized Federal property, par- ticularly in urban areas, available for transfer to State and local governments for parks and recreation. The Property Review Board, which he established last year, is continuing its review of individual Federal properties and has now identified more than 40 such areas with high potential for park use. 225 UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 Dear Mr. [President/Speaker] : Enclosed is a draft of a proposed bill "To amend the Land and Water Conservation Fund Act of 1965, as amended." We recommend that this bill be referred to the appropriate committee for consideration, and we recommend that it be enacted. This legislative proposal was referred to in that part of President Nixon's environmental message dealing with the Land and Water Conservation Fund which was submitted to the Congress on February 8, 1971. The proposed legislation will accomplish several reforms in the administration of the Land and Water Conservation Fund, designed to increase the effectiveness of the expenditures in providing public recreation opportunities and open spaces where the unmet demands are greatest. The formula for apportionment of assistance among the States would be altered to give increased emphasis to the demands for additional recreation opportunities and open spaces in and near heavily populated urban areas. The Secretary of the Interior will be given added authority to review State implemen- tation plans in order to assure compliance with this goal. The bill will also authorize a State to use up to 25% of its total annual allocation to develop indoor recreation facilities within areas where the unavail- ability of land or climatic conditions provide no other feasible or prudent alternative to serve 226 identified unmet demands for recreation resources. These amendments are recommended as a part of the President's program which he mentioned in his State of the Union Message on January 22, 1971, as follows: "And not only to meet today's needs but to anticipate those of tomorrow, I will put forward the most extensive program ever proposed by a President of the United States to expand the Nation's parks, recreation areas, open spaces, in a way that truly brings parks to the people where the people are. For only if we leave a legacy of parks will the next generation have parks to enjoy." A detailed analysis of this draft bill is enclosed. The Office of Management and Budget has advised that enactment of this proposed legislation would be in accord with the program of the President. Sincerely yours, /s/ Rogers C.B. Morton Secretary of the Interior Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 227 A BILL To amend the Land and Water Conservation Fund Act of 1965, as amended. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Congress assembled, That the Land and Water Conserva- tion Fund Act of 1965 (78 Stat. 897), as amended (16 U.S.C. 4601-4 et seqg.), is further amended as follows: (a) In the title of the Land and Water Conservation Fund Act of 1965 and in subsections 1(b), 5(a), 5(d), and 5(f), after the word "outdoor" wherever it appears insert "and other." (b) In the first sentence of subsection 5(b), delete paragraphs numbered (1) and (2) and sub- stitute the following: "(1) 20 per centum shall be appor- tioned equally among the several States: "(2) 75 per centum shall be appor- tioned on the basis of need to individual States by the Secretary in such amounts as in his judgment will best accomplish the purposes of this Act. The determination of need shall include, among other things, consideration of population density and urban concentration within individual States as well as a consideration of the Federal resources and programs in the particular State; and "(3) 5 per centum shall be made available to individual States to meet special or emergency needs, as determined by the Secretary." (c) In the third sentence of subsection 5(b), delete "7" and substitute "10"; at the end of the fifth sentence of said subsection, change the period to a comma and add "without regard to the 10 centum limitation to an individual State specified in this subsection."; and delete the last sentence of said subsection. (d) In subsection 5(d), delete para- graph numbered (2) and substitute the following: "(2) an evaluation of the present and future demand for and supply of outdoor recrea- tion resources and facilities in the State; " (e) In subsection 5(e) delete the paragraph numbered (2) and substitute the following paragraph: “ (2) DEVELOPMENT.--For development of basic outdoor recreation facilities to serve the general public, including the development of Federal lands under lease to States for terms of twenty-five years or more. Not more than 25 per centum of the total amount allocated to a State in any one year may be approved by the Secretary for the development of indoor recreation facilities within areas where the unavailability of land or climatic conditions provide no other feasible or prudent alternative to serve identified unmet demands for recreation resources." (f) After the third paragraph of subsec- tion 5(f) of the existing law, insert the following new paragraph: "The Secretary shall annually review each State's program to implement the state- wide outdoor recreation plan and shall withhold payments to any State until he is satisfied that the State has taken appropriate action (1) toward ensur- ing that new recreation areas and facilities are being located to satisfy the highest priority unmet demands for recreation, especially in and near cities, particularly with respect to the resources that have been acquired or developed with funds apportioned to the State under section 5(b) (2) of this Act; (2) to consider preservation of small natural areas, especially near cities; (3) to con- sider preservation of scenic areas through the acquisition of development rights, scenic easements, and other less-than-fee interests in lands or waters; and (4) to provide for appropriate multiple use of existing public lands, waters, and facilities, to help satisfy unmet demands for recreation resources." 229 SECTION-BY-SECTION ANALYSIS Subsection (a) would remove the requirement in the Land and Water Conservation Fund Act that financial assistance to the States for recreation planning, acquisition, or development be for outdoor facilities only. Subsection (b) would change the existing formula for apportioning Land and Water Conservation Fund Monies to the States. At present 60 percent of such monies is apportioned on the basis of need, as determined by the Secretary of the Interior in accordance with certain prescribed considerations. One such consideration is the proportion which the population of each State bears to the total population of the United States. The proposed apportionment in subsection (b) is based upon the following formula: 1. 29 percent on an equal basis; 2. 75 percent on the basis of need as determined by the Secretary; and 3. 5 percent on the basis of special or emergency needs as determined by the Secretary. Subsection (c) would change the present annual limitation on the total apportionment of Fund monies to an individual State from 7 to 10 per centum of the total amount allocated under paragraphs (1) and (2) to the several States, and would provide that if such apportionment has not been paid or obligated within a prescribed period it will be reapportioned on the basis of need as determined by the Secretary without regard to the 10 per centum limitation. In addition, the sub- section would delete the provision under which the populations of the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and American Samoa are included in the population computation of the United States since under subsection (b) such a computation would no longer be made. Subsection (d) modified one of the existing requirements of State comprehensive recreation plans which must be approved by the Secretary before financial assis- tance may be given to the States for acquisition or development projects. The subsection requires such plans to contain an evaluation of present and future demands for and supply of outdoor recreation resources 230 and facilities in the States. Subsection (e) would permit a State to use up to 25 percent of its total annual allocation to develop indoor recreation facilities in those areas where the unavailability of land or climatic conditions provide no feasible or prudent alternative to serve identified unmet demands for recreation resources. Subsection (f) would require that the Secre- tary withhold payments to States until he is satisfied that they have taken appropriate action to ensure, consider, or provide for certain items listed in said subsection. 2 UNITED STATES OF AMERICA GENERAL SERVICES ADMINISTRATION WASHINGTON, D.C. 20405 GENERAL SERVICE: fy ADMINISTRATION Dear Mr. [President/Speaker] : There is transmitted herewith, for referral to the appropriate Committee, a draft of legislation "To amend section 204 (b) of the Federal Property and Administrative Services Act of 1949, as amended." Section 204 (b) of the Property Act now provides that proceeds from the disposition of surplus real property shall be set aside in a separate fund in the Treasury. Payments in amounts determined by the Director of the Office of Management and Budget (OMB) may be made from the fund by the Adminis- trator of General Services for direct expenses incurred in the utilization and disposal of excess and surplus property. The draft bill would permit the Administrator of General Services, and heads of other agencies through delegation from the Administrator, with the approval of the Director of the Office of Management and Budget, to obligate amounts from the above-mentioned fund to pay the cost of relocating activities from property which has been determined by the Admin- istrator to be other than optimumly utilized and, where necessary, the cost of acquiring new facilities to house the relocated activities. Federal property of an executive agency would not be optimumly utilized if (1) it is of such a nature or value, or is in such a location, that it could be utilized for a different and significantly higher and better purpose; or (2) the costs of occupying are substantially higher than would be applicable for other suitable properties with total net savings to the Government after consideration of 232 property values as well as costs of moving, occupancy, and efficiency of operations. For example, there are instances which involve Federal activities now located in or adjacent to metropolitan areas whose missions, because of security or opera- tional factors, could be better accomplished if the activities were relocated in more remote areas. New Federal land could be acquired in a rural community and developed to accommodate the Federal mission. If relocation were effected, the property at the original location would be reported to the General Services Administration for disposition as excess or surplus property. The Government would have a better, more efficient facility for its purposes and the original property, because of its location in a metropolitan area, could be disposed of at a com- paratively high price to accommodate a higher and better use. The Government would gain both a monetary benefit and a better, more efficient operation. In addition, the purpose of section 901(b) of the Agricultural Act of 1970 (Public Law 91-524, approved November 30, 1970), i.e., the location of Government offices and other facilities in areas of lower popu- lation density, would be served. President Nixon, in his message on the State of the Union, spoke of the need to make better use of our land and to encourage a balanced national growth. However, since there is now no general authority under which relocation can be funded, Federal agencies are content to retain outmoded, poorly suited facilities rather than to seek advance funding on a case-by-case basis to permit relocation, the acquisition of new facilities, and the subsequent evacuation and dis- posal of the old. Under current law, before surplus real property is offered for public sale, it is made available for donation to State and local governments and institutions for use for park, health, education, and other specified public purposes. The draft bill contemplates no change in this procedure. Thus, 233 although the Government might spend considerable money in relocating and acquiring replacement facilities, the original property would become available for donation. For such cases, the draft bill preserves the principle of public benefit dis- count conveyances but provides that, whenever property is reported excess incident to a re- location, the public benefit discount conveyances will be made at a charge of not less than the amount paid from the fund for relocation and replace- ment costs, but not more than the fair market value of the property. A number of congressional oversight provisions and administrative safeguards have been included in the draft bill to preclude any abuse of the funding authority. The bill permits the use of funds to cover the cost of acquiring replacement facilities only to the extent that acquisition of such facilities may be authorized by law. Unless there is authorizing legislation for acquisition of the new facilities, the funding of such an acquisition under this legislation is not possible. Thus, the Committees of Congress responsible for the particular Federal program involved, and the Congress as a whole, must by general or specific legislation have authorized acquisition of the replacement facilities before payment of replacement costs may be authorized. The bill also provides that an explanatory statement relative to any relocation which is to be financed from the fund shall be transmitted to the Committees on Appropriations of the Congress 30 days before those monies may be obligated for that purpose. This provision assures that the time-honored function of reviewing expenditures is retained in the Appropriations Committees. The bill requires that a reporting of the financial actions accomplished in connection with the fund be made to Congress as well as to OMB on an annual basis. Not less than once a year, any excess monies in the fund are required to be transferred to mis- cellaneous receipts or as may be otherwise provided 234 by law. Advance appropriations are authorized subject to repayment within five years from proceeds avail- able to the fund. Under existing law (16 U.S.C. 4601-5), all proceeds from the disposal of surplus real property (except so much as may be credited or paid under the authority of section 204 (b) of the Property Act or any appropriation act) are covered into the land and water conservation fund in the Treasury, which also receives monies from other sources. While it might appear that payment of relocation and re- placement costs from the proceeds from the disposal of surplus real property would reduce the money covered into the land and water conservation fund from this source, relocations financed by this legis- lation generally will free for disposal valuable property which would otherwise not be reported excess. Accordingly, in the long run, such relocations will result in increased, rather than decreased, pro- ceeds for the land and water conservation fund. This bill will provide an essential and long-needed step towards proper and effective management of Federal real property. We urge its prompt intro- duction and enactment. The Office of Management and Budget has advised that there is no objection to the submission of this legislative proposal to the Congress, and that its enactment would be in accord with the program of the President. Sincerely, /s/ Rod Kreger Acting Administrator Honorable Spiro T. Agnew Honorable Carl B. Albert President of the Senate Speaker of the House of Washington, D.C. 20510 Representatives Washington, D.C. 20515 235 416-694 O - 71 - 16 A BILL To amend section 204 (b) of the Federal Property and Administtative Services Act of 1949, as amended. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Congress assembled. That section 204 (b) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 485 (b)), is amended by deleting the fifth sentence thereof and inserting in lieu thereof the following: "Not more than an amount to be determined quarterly by the Director of the Office of Management and Budget may be obligated from such fund by the Administrator, and by the heads of other agencies in accordance with the Administrator's delegation of authority to them, as he determines necessary to acquire such facilities (as may be authorized by law) to replace those which have been determined by the Administrator to be other than optimumly utilized, and to relocate personnel, equip- ment and other property to the newly acquired facili- ties: Provided, That such obligation shall be first approved by the Director of the Office of Management and Budget. An explanatory statement of the circum— stances surrounding each such obligation shall be transmitted to the Committees on Appropriations of the Congress 30 days in advance of such obligation. Upon occupancy of the replacement facilities, the head of the Federal agency concerned shall, notwith- standing any other provision of law, immediately report the replaced facilities to the Administrator as excess property. Notwithstanding the provisions of any law authorizing or requiring surplus real and related personal property to be made available at less than fair market value, when replaced facili- ties are disposed of pursuant to such law, the Government shall receive therefor not less than the amount expended from the fund for relocation and replacement but not more than the fair market value of the property. Periodically, but not less often than once each year, any excess funds beyond current operating needs and beyond those authorized to be obligated for replacement facilities, and such 236 reserves for pending authorizations as the Director of the Office of Management and Budget may establish, shall be transferred from the fund to miscellaneous receipts or as may be otherwise provided by law: Provided, That a report of receipts, disbursements, and transfers to miscellaneous receipts under this authorization shall be made annually in connection with the budget estimates to the Director of the Office of Management and Budget and to the Congress. Advance appropriations are authorized to be made to this fund from any moneys in the Treasury not other- wise appropriated in such amounts as may be deemed necessary. Such advance appropriations shall be repaid without interest, no later than five years thereafter. The moneys not required for repayment purposes shall continue to be available as otherwise provided by law." 237 Power Plant Siting 239 EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF SCIENCE AND TECHNOLOGY WASHINGTON, D.C. 20506 Dear Mr. [President/Speaker]: I am pleased to transmit herewith legislation proposed by the President on February 8 in his environmental message to facilitate the siting of electric power plants and high voltage trans- mission lines and to assure that environmental protection is made an integral part of the planning, construction and operation of these facilities. This legislation will provide the nation with a coordinated system of state, regional and federal certifying agencies to assure that all substantive environmental protection requirements are met before power plants and transmission lines can be built. It would also assure that if these environ- mental concerns are satisfied construction could proceed in a timely fashion to meet the nation's growing needs for electric power. The legislation will implement the recommendations of an interagency task force sponsored by the Energy Policy Staff in my Office which studied this problem for over a year in cooperation with concerned federal, state and local officials, industry and conservation groups. Our report entitled "Electric Power and the Environment" was released to the public last October. The legislation includes the following provisions to resolve environmental problems in meeting growing power demands: * Requires the nation's electric utilities to engage in long-range planning and to prepare and publish general plans for their system expansions at least ten years in advance of construction. 240 * provides that each state or region may establish a decision-making body that will review alternatives in order to assure that optimum sites for power plants and large transmission lines are selected, and will assure, prior to construction, that adequate environ- mental protection features will be employed. * provides that if a state or region fails to establish such a decision-making body in accordance with federal guidelines, then the federal government would exercise the review and approval responsibility until such time as a decision-making body is established on a state or regional level. * Requires that proposed power plant sites and general locations of transmission line routes be disclosed at least five years prior to construction and that public hearings on the plant sites be held at that time. Detailed applications for construction of power plants and transmission lines must be filed at least two years in advance and a public hearing held in which all interested persons can participate. * provides that the decision of the state or regional power plant siting body shall be conclusive on all matters of state or local law and thus con- solidates the various approvals now required at the state and local level. * Applies the foregoing requirements to all bulk power facilities regardless of ownership except that small plants and lower voltage transmission lines would be exempt. The Administration believes that the open planning process required by the legislation will go far toward resolving many of the conflicts over the selection of power plant sites and transmission line routes. But the best of planning may leave some important issues unresolved. The bill, therefore, establishes a mechanism whereby major electric power plants and transmission lines proposed by any utility--whether owned by private, cooperative, municipal or federal power entities--must be subjected 241 to public hearing and certified by the siting authority before construction begins. In keeping with the approach taken in the Air and Water Quality Acts, the actual certification should generally take place at the state or regional level. The bill provides for the establishment of federal guidelines for these state and regional agencies and for a federal certifying agency to oversee their implementation. The President intends to designate the Department of Natural Resources as the federal certifying agency after it is established. The federal certifying agency would issue certificates in cases where state or regional certifying agencies have not been established or where they fail to act. In addition, it would review and certify all federally- owned facilities. The state and regional certifying bodies will provide for participation by the respective environmental protection agencies and others concerned with siting as well as agencies concerned with adequacy of power supply. The certifying bodies would play a continuing role in the planning process by commenting on the long-range utility plans and reviewing proposed sites after holding early hearings five years before construction timetables. Two years before scheduled construction, the certifying bodies would receive the detailed plans for any proposed power facility. After holding public hearings, the state or regional certifying body would decide whether the site should be approved. This bill would provide the public with an early voice in the planning process and participation in the ultimate selection of sites and routes, but it would also enable facilities to be built at approved locations and with proper safeguards. After obtaining such a certificate and any necessary federal licenses or permits, the utilities would be authorized to begin construction using the federal powers of eminent domain provided for in this bill if necessary to obtain the land. To help resolve siting problems in the longer term, 242 the bill authorizes studies of new and evolving siting concepts such as offshore islands and energy centers. The power shortages experienced in the past year remind us that we live in an age of energy. But no one doubts that power plants and transmission lines present major environmental problems. The institu- tional arrangements proposed in this bill will enable us to minimize delays in the construction of new facilities and to avoid unnecessary degradation of the environment. The Administration, therefore, urges speedy enactment of the legislation herein transmitted. The Office of Management and Budget advises that enactment of this legislation would be in accord with the President's program. Sincerely, /s/ Edward E. David, Jr. Director Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 243 A BILL To assure protection of environmental values while facilitating construction of needed electric power supply facilities, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1 This Act may be cited as the "Power Plant Siting Act of 1971." SECTION 2 The Congress, in furtherance of the national environmental policy as set forth in the National Environmental Policy Act of 1969, 83 Stat. 852, and the national electric energy policy as set forth in section 202 (a) of the Federal Power Act, 16 U.S.C. 824a (a), hereby finds and declares the national public interest in the environment, the interest of interstate commerce, the interest of public and private investors in electric utility facilities, and the interest of consumers of electric energy require: (a) that bulk power supply facilities adequate to the Nation's need for a reliable electric power supply be constructed upon a timely basis, and in a manner consonant with the preservation of impor- tant environmental values and wise comprehensive use of the Nation's air, land and water resources for all beneficial purposes, public and private; (b) that in order to avoid undue delays in the construction of needed bulk power supply facilities and to provide for full and timely con- sideration of environmental consequences well in advance of such construction, all of the Nation's electric entities should be required to engage in adequate long-range planning, and that certifying bodies be established for the preconstruction review of bulk power supply facility sites and all related bulk power supply facilities; (c) that the siting of bulk power plants and high-voltage transmission lines be treated as a significant aspect of land use planning in which all environmental, economic and technical issues with respect to a bulk power supply project at the State 244 or regional level should be resolved in an integrated fashion; (d) that Federal, regional and State govern- mental authorities be authorized and empowered to act expeditiously in coordinating reviews to assure pro- tection of environmental values and certifying the construction, operation or maintenance of bulk power supply facilities, all to the end of assuring for the Nation an adequate and reliable supply of electric power through a balanced and comprehensive use of the Nation's air, land and water resources for all benefi- cial purposes, public and private; (e) that a mechanism be established to provide Federal guidelines for the functioning of these certification procedures by State, regional, or Federal certifying agencies; (f) that long-range planning be carried out through the electric reliability councils voluntarily established on regional and national bases and open to all systems comprising the various component parts of the electric utility industry, investor owned, publicly owned and cooperatively owned, and by participation of these councils in the work of the Federal Power Commission under Section 202 (a) of the Federal Power Act, 16 U.S.C. 824a(a); and (g) that a program be undertaken by the Federal government to assist in the development of new approaches or methods of locating or grouping bulk power supply facilities within particular geographic areas, at surface or sub-surface levels, or in con- juction with the location of physical facilities used in other types of energy, transportation or communi- cations services which may be available to the general public through public or private suppliers. SECTION 3. As used in this Act: (a) "electric entity" means any individual or corporation which owns or operates bulk power supply facilities, or plans to own or operate such facilities, however organized or owned, whether investor owned, publicly owned or cooperatively owned, including a "State" or a "municipality" as defined in Section 3 (6) and 3(7) of the Federal Power Act, 16 U.S.C. 796, but not the United States or an agency, authority or instrumentality thereof, or any corporation which 245 directly or indirectly is wholly owned by the United States, its agencies, authorities or instrumentalities; (b) "Federal electric entity" means the United States, an agency, authority or instrumentality thereof, or any corporation which directly or indirectly is wholly owned by the United States, its agencies, authorities or instrumentalities, which owns or operates bulk power supply facilities or plans to own or operate such facilities; (c) "bulk power supply facilities" means elec- tric generating equipment and associated facilities designed for, or capable of, operation at a capacity of 300,000 kilowatts or more, or any sizeable additions thereto as defined by the appropriate certifying body, or electric transmission lines and associated facilities designed for, or capable of, operation at a nominal voltage of 230 kilovolts or more, between phase con- ductors for alternating current or between poles for direct current, or any sizeable additions thereto as defined by the appropriate certifying body, except that any facilities subject to licensing pursuant to Part I of the Federal Power Act, 16 U.S.C. 792-823, shall not be subject to the provisions of Sections 6 and 8(c) of this Act: (d) "Federal certifying agency" means such Federal agency, agencies or department as may be designated by the President: (e) "State or regional certifying body" means the State or regional agency, authority or other entity authorized and empowered to carry out the responsi- bilities provided for in this Act within the State or States affected. (f) "Regional" means the Governments of two or more States; (g) "Commencement of construction" means any clearing of the land, excavation, or other substantial action that would adversely affect the natural environ- ment of the site or route but does not include changes desirable for the temporary use of the land for public recreational uses, necessary borings to determine foundation conditions or other pre-construction moni- toring to establish background information related to the suitability of the site or to the protection of environmental values. 246 SECTION 4 (a) Each electric entity and Federal electric entity shall prepare annually its long-range plans for bulk power supply facilities pursuant to guidelines established by the Federal Power Commission within 90 days after enactment hereof, upon the advice of interested State and Federal agencies. These plans may be part of a single regional plan and shall (1) describe the general location, size and type of all bulk power supply facilities to be owned or operated by such entity and whose construction is projected to commence during the ensuing 10 years or during such longer period, but not to exceed a total of 15 years, as the Federal certifying agency may determine to be necessary, together with an identifi- cation of all existing facilities to be removed from utility service during such period or upon completion of construction of such bulk power supply facilities; (2) identify the location of tentative sites for the construction of future power plants as defined in Section 3(c), including an inventory of sites for all plants on which construction is to be commenced in the succeeding 5 years, and the general location of the routes of transmission lines as defined in Section 3(c), and indicate the relationship of the planned sites, routes, and facilities thereon to environ- mental values and describe how potential adverse effects on such values will be avoided or minimized; (3) reflect and describe such entity's efforts to coordinate the bulk power supply facility plans identified therein with those of the other entities so as to provide a coordinated regional plan for meeting the electric power needs of the region; (4) reflect and describe such entity's efforts to involve environmental protection and land- use planning agencies in their planning process sO as to identify and minimize environmental problems at the earliest possible stage in the planning process; and (5) supply such additional information as the Federal certifying agency upon the advice of interested State and Federal agencies may from time to time prescribe to carry out the purposes of this Act. (b) Each electric entity and the Federal electric entity, shall give initial public notice of its plans referred to in subsection (a), by filing annually a copy of such plans together with its pro- jections of demand for electricity that the facilities would meet with the appropriate Federal, regional, or State certifying agency, with the Federal Power Commission and the Environmental Protection Agency, and with such other affected Federal, State, regional and local governmental authorities, and citizens’ environmental protection and resource planning groups requesting such plans. SECTION 5 (a) The several states, within 24 months from the date of enactment hereof, may designate or establish a decision-making body at the State or regional level, which may be an existing or newly created body, for the certification of sites and related bulk power supply facilities of any electric entity. These State or regional certifying bodies shall be designated or established and administered in accordance with the requirements of this Act and in accordance with the guidelines to be prepared and published, pursuant to Section 9 hereof, which guidelines may be revised from time to time. Each State or regional certifying body shall provide for participation in its decision-making processes by environmental protection, natural resource, and planning components of the State government or governments involved, and provide for participation also by components of such governments having respon- sibility with respect to provision of electric power service. Such body may also provide for participation by members of the public. (b) The Governor of each State which designates or establishes such a decision-making body and pro- cedures, either as a State or regional entity, shall notify the Federal certifying agency of that fact, and thereupon the Federal certifying agency, if it finds such authorities and procedures to be in accord with the requirements of this Act, including the guidelines published pursuant to Section 9 hereof, shall issue a Certificate of qualification of procedure with respect to each such State, which Certificate shall be revoked by the Federal certifying agency if the State or 248 regional certifying body fails to abide by said requirements and guidelines, but unless revoked, shall constitute conclusive evidence of its authority to exercise the provisions of Section 6 hereof, for such time period as the Certificate remains effective. (c¢) If, within 24 months from the date of enactment, hereof, a decision-making body and pro- cedures are not designated or established for the certification of sites and related bulk power supply facilities within one or more of the several States, and qualified in the manner as set forth in subsection (b), or if such Certification of qualification of pro- cedure is later revoked, the Federal certifying agency shall have exclusive authority to issue a Certificate of site and facility with respect to any bulk power supply facility of any electric entity within any said State or States applying Federal standards only. With respect to each such State the authority of the Federal certifying agency shall continue until such State or States have qualified pursuant to subsection (b) hereof. Any proceedings for the certification of sites and bulk power facilities which are pending before the Federal certifying agency on the date of issuance of any Certificate of qualification of pro- cedure by the Federal certifying agency shall continue to be proceedings subject to the authority of the Federal certifying agency and shall require a Federal certificate before construction shall commence, except that the Federal certifying agency may in its discretion transfer such proceeding to the appropriate State or regional certifying body. (4) The Federal certifying agency, prior to denying or revoking a Certificate of qualification of procedure in respect to matters arising under sub- section (b), shall consult with the Governor or Governors of the State or States involved, informing each of the particular respects in which the State or regional certifying body's authorities or pro- cedures fail to comply with the requirements of this Act, including the guidelines published pursuant to Section 9 hereof, and shall afford each State affected a reasonable time to respond and to make appropriate changes. (e) Any State dissatisfied with the action of 249 the Federal certifying agency denying or revoking a Certificate of qualification of procedure as referred to in subsection (b) may appeal to the United States Court of Appeals for the circuit in which such State is located, with service of the summons and notice of appeal at any place within the United States, and the court shall have jurisdiction to affirm the action of the agency, to set it aside in whole or in part, and for good cause shown, to remand the case to the agency for further deliberation; provided that any findings of fact of the Federal certifying agency supported by substantial evidence shall be conclusive: and provided further, that any judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in Section 1254 of Title 28, United States Code. Upon the filing of an appeal, the Clerk of the Court of Appeals shall forthwith transmit a copy of the notice to the Federal certifying agency, which agency thereupon shall file with the court the record upon which the appealed action was entered, as provided in Section 2112 of Title 28, United States Code. Upon the filing by the agency of the record, the jurisdiction of the court shall be exclusive. SECTION 6 (a) Effective 24 months from the date of the enactment hereof, no electric entity shall commence to construct or begin operation of bulk power supply facilities within a State or States, unless it has obtained from each such State or States a Certificate of site and facility with respect to those facilities, issued by each qualified State or regional certifying body and no Federal electric entity shall commence to construct or begin operation of bulk power supply facilities unless it has obtained from the Federal certifying agency a Certificate of site and facility with respect to those facilities. If after 24 months from the date of enactment hereof, there is no qualified State or regional certifying body in one or more of the several States, no electric entity shall commence to construct or begin operation of bulk power supply facilities within said State or States unless there shall have been obtained from the Federal certifying agency such a Certificate of 250 site and facility with respect to such bulk power supply facilities to be constructed or operated within said State or States by any such electric entity. Such facilities shall be constructed, operated, and maintained in accordance with the terms and conditions of the Certificate. Appli- cations for Certificates for bulk power facilities already under construction on the effective date of this subsection shall be filed promptly with the appropriate certifying body, and Certificates shall be granted for any application showing a sizeable investment applicable only to the site which is the subject of the application on the effective date of this subsection, as defined by the appropriate certifying body, solely on a showing that all permits or licenses required when construction in fact commenced had been obtained. Operation of any bulk power facilities whose construction had commenced on or before the effective date of this subsection may commence prior to certification if a timely decision has not been made, subject to any reason- able actions or conditions that may be later re- quired by the appropriate certifying body. No Certificate is required for bulk power facilities already in operation on said effective date, but such Certificates are required for sizeable additions thereto as defined by the appropriate certifying body. (b) All applications by any electric entity for a Certificate of site and facility from a State or regional certifying body or Federal certifying agency or by a Federal electric entity from a Federal certifying agency shall be filed with the certifying body or agency not less than two years prior to the planned date of commencement of con- struction of the affected bulk power supply facilities and such plans may be subject to reasonable modifi- cation during the period of review. As a prerequisite to such filing, the electric entity or Federal electric entity shall have complied with the provisions of Section 4 hereof; and with respect to power plants and transmission line routes, except for good cause shown, shall have complied with the requirement that the site selected is from among those sites in the electric entity's or Federal electric entity's 5-year 251 416-694 O - 71 - 17 inventory of sites approved by the relevant State, regional, or Federal certifying body pursuant to Section 8(c) hereof and that it will utilize the general transmission line routes identified in the electric entity's or Federal electric entity's long- range plans. (c) It is the intent of Congress that any State or regional certifying body or Federal certifying agency shall complete action on each application filed pursuant to the authority of this Act within the two-year period prior to construction as provided under the procedures of subsection (b). The guide- lines published pursuant to Section 9 hereof shall, to the maximum extent possible, facilitate the accom- plishment of these objectives. For a period of 48 months from the date of enactment hereof, any of the provisions of Section 6 may be waived by the certifying body or agency in respect to filed appli- cations of electric entities and Federal electric entities for good cause shown. Compliance with the procedures of Section 4 hereof in respect to planning and filing requirements shall constitute prima facie evidence of timely disclosure of construction plans in support of petitions for expeditious proceedings involving the bulk power supply facilities in all courts and administrative agencies of the United States and of the several States. (d) The provisions of Section 5 and subsection (a) of this Section notwithstanding, any electric entity may petition the Federal certifying agency for a Certificate of site and facility based upon the entity's showing to that agency of a failure of a State or regional certifying body or bodies to act upon a timely or conclusive basis with respect to any application of such electric entity for a State or regional certification; and that as a result thereof the public interest in an adequate and reliable regional bulk power supply imperatively and unavoid- ably requires a decision with respect to such certi- fication. The Federal Power Commission shall prescribe by regulation the facts necessary to constitute the basis of such showing, giving due consideration to the effect upon adequacy and reliability of electric supply of the lack of timely, or of inconclusive, 252 action by the State or States concerned. Such appli- cations shall be referred to the Federal Power Commission, and if it makes a finding, upon the advice of the interested Federal agencies, that adequate and reliable regional bulk power supply will be materially impaired by reason of the fact that a State or States have failed to act upon a timely or conclusive basis, the Federal certifying agency shall, effective upon the date of such finding, have jurisdiction to act in these circumstances, removing from the State or States concerned any basis upon which to proceed further in respect of State or regional certification of the affected bulk power supply facilities. The Federal certifying agency shall accord priority to all petitions for Certificates of site and facility filed under this subsection and shall resolve them in accordance with the pro- visions of Section 7 but applying Federal standards only. SECTION 7 (a) The State, regional and Federal certifying bodies are hereby empowered and authorized, pursuant to Section 6 hereof, to issue Certificates of site and facility for bulk power supply facilities, if such bodies find, after having considered available alter- natives, that the use of the site or route will not unduly impair important environmental values and will be reasonably necessary to meet electric power needs, or otherwise to deny such Certificates if the appli- cant fails to conform with the requirements of this Act. The judgment of the Federal, State or regional certifying body shall be conclusive on all questions of siting, land-use, State air and water quality standards, public convenience and necessity, aesthetics, and any other State or local requirements but the Certificates shall be granted only after the appro- priate certifying body has ascertained that all appli- cable Federal standards, permits, or licenses have been satisfied or obtained. The Certificates shall show acceptance thereof by the applicant and agree- ment to comply with the requirements of this Act including a showing of the applicant's action to meet the objectives of Section 202 (a) of the Federal Power Act, 16 U.S.C. 824a(a), regarding reliability 253 and adequacy of electric service. (b) In the consideration of applications for Certificates of site and facility, the certifying agency shall assure full public review and adequate consideration of all environmental values, including the impact on adjacent States, and other relevant factors bearing on whether the objectives of this Act would be best served by the issuance of the Certificate. In the issuance of such Certificates the certifying agency may impose such reasonable terms and conditions as it deems necessary. Such Certificates, when issued, shall be final and subject only to judicial review. SECTION 8 Each State, regional and Federal certifying agency is hereby empowered, authorized, and directed-- (a) To review and comment on the long-range plans prepared and filed pursuant to Section 4 hereof and make the information contained therein readily available to the general public and interested govern- mental agencies. (b) To compile and publish each year a descrip- tion of the proposed power plant sites and general locations of transmission line routes within its respective jurisdiction as identified in the long- range plans of the electric entities and Federal electric entities pursuant to Section 4 (a) (2), identifying the location of such sites and the approx- imate year when construction is expected to commence, and to make such information readily available to the general public, to each newspaper of daily or weekly circulation within the area affected by the proposed site, and to other interested Federal, State, and local agencies. (c) To conduct mandatory public hearings with respect to any proposed power plant sites identified five years in advance of construction and to decide whether or not any such sites should be approved for inclusion in the electric entity's five-year inventory of sites. The basis for such decision shall be whether or not construction of any plant at the proposed site would unduly impair important environmental values. It is contemplated that any such hearings on the site itself will be held promptly after the site is 254 identified. (d) Upon the receipt of an application for a Certificate of site and facility pursuant to Section 6 hereof, to publish a notice in each newspaper of daily or weekly circulation serving the affected area which describes the location of the facilities (power plant and transmission lines) and other pertinent details concerning the facilities, and which provides the date of the public hearing thereon which shall be held prior to the issuance of the Certificate of site and facility applied for. (e) To require such information from electric entities and Federal electric entities as it deems necessary to accompany applications for Certificates of site and facility and to assist in the conduct of hearings and any investigations or studies it may undertake. (f) To conduct any studies or investigations which it deems necessary or appropriate to carry out the purposes of this Act. (g) To issue such rules and regulations, after public notice and opportunity for comment, as may be required to carry out the provisions of this Act. SECTION 9 The President upon the advice of interested Federal agencies, and after public notice and oppor- tunity for comment shall publish the guidelines for Federal, regional and State certifying bodies, which guidelines may be revised periadically as needed and shall include -- (a) criteria for evaluating effects of proposed sites and facilities on environmental values; (b) criteria for use in evaluating the relative environmental impacts of alternative sites; (c) criteria for evaluating the projected needs for electric power; (d) procedures to ensure full public partici- pation in the certification procedures through public notice and opportunity for public hearings, consulta- tion with appropriate citizens' groups, rights of intervention and appeal from decisions of the certifying body and other safeguards; (e) procedures with respect to the formation of regional certifying bodies; 255 (f) procedures to assure proper consideration of multi-State impacts in certification proceedings; (g) requirements with respect to staffing and technical and professional competence of State and regional certifying bodies. SECTION 10 An electric entity holding a Certificate of site and facility as referred to in Section 6, and which cannot acquire by contract, or is unable to agree with the individual, corporation, or other owner (other than the United States Government), of property as to compensation to be paid for the necessary rights-of-way or other property to con- struct, operate and maintain the certified bulk power supply facilities, may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. In any proceeding brought in the district court of the United States, the petitioner may file with the petition or at any time before judgment a declaration of taking in the manner and with the consequences provided by Sections 258a, 258b, and 258d of title 40, United States Code, and the petitioner shall be subject to all of the provisions of said Section which are applicable to the United States when it files a declaration of taking hereunder. SECTION 11 (a) The consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts not in conflict with any law or treaty of the United States for cooperative effort and mutual assistance in certificating sites and related bulk power supply facilities of electric entities, for the enforcement of their respective laws thereon, and for the establishment of such authorities or agencies, joint or otherwise, as they may deem desirable for implementing such agreements or compacts. The right to alter, amend, or repeal this section is expressly reserved. (b) It is the intent of Congress to encourage cooperation among the various State and regional certifying agencies in the planning of bulk power 256 facilities and in their review of applications for Certificates of site and facility including the establishment of cooperative procedures and joint actions by the several States, and also to encourage compacts between the States to coordinate and resolve environmental considerations which affect bulk power supply facilities. SECTION 12 Each State or regional certifying body qualified pursuant to a Certificate of qualification of procedure and the Federal certifying agency are hereby authorized to assess and collect fees, including filing fees, in a just and equitable manner from every electric entity and Federal electric entity operating within the jurisdiction of the legal authorities and procedures of said body, such assessment and collec- tion to be in an amount not in excess of the cost of administration of the qualified body's certification program, including the cost of all necessary studies and the cost of personnel. SECTION 13 The Federal certifying agency, in cooperation with other interested Federal agencies and the electric power industry, is authorized to develop a coordinated program of studies of new and evolving siting con- cepts relative to bulk power supply facilities in consultation with interested State, regional and local governmental authorities and the electric entities. The Federal agencies shall make public the results of their studies. SECTION 14 All departments and agencies of the Federal government are authorized to cooperate with the State, regional, and Federal certifying bodies so as to foster and fully effectuate the purposes of this Act. Those departments and agencies are authorized to make available to the various certifying bodies, staff experts, information and technical assistance upon request or as provided for in the guidelines published pursuant to Section 9 hereof. Upon the request of one or more States for a study of the environmental considerations affecting bulk power supply in its or their region, or the regional impact of any specific proposed bulk power supply 257 facility, appropriately directed to a Federal depart- ment or agency, said department or agency are authorized to undertake such study in cooperation with other interested Federal, State and local agencies and make its findings available to all concerned. SECTION 15 The orders or decisions of the Federal certifying agency pursuant to this Act shall be subject to review pursuant to the provisions of 5 U.S.C. 701-706. The orders and decisions of the State or regional certifying agencies pursuant to this Act shall be subject to review pursuant to applicable State law. SECTION 16 (a) The provisions of this Act shall in no way alter or affect the jurisdiction of the Council on Environmental Quality or the requirements of the National Environmental Policy Act of 1969, 83 Stat. 852, except that the detailed statements required by Section 102 (2) (c) thereof, where the certifying agency has followed a substantially comparable pro- cedure, shall not be required for any Federal actions with respect to bulk power supply facilities which require a Certificate of site and facility pursuant to Section 6 of this Act; (b) Nothing herein contained shall be con- strued to relieve any present or future requirement arising from any Federal law, which may be applicable to any natural person, artificial person, or interest of government, Federal or State, or to affect in any way the authority of the Atomic Energy Commission under the Atomic Energy Act of 1954, as amended, or the Federal Power Commission under the Federal Power Act of 1935, as amended. SECTION 17 (a) Whoever: (1) without first obtaining a Certificate of site and facility, commences to construct a bulk power supply facility after 24 months after the date of enactment of this Act; or (2) having first obtained a Certificate of site and facility, constructs, operates, or maintains a bulk power supply facility other than in compliance 258 with the Certificate; or (3) causes any of the aforementioned acts to occur; shall be liable to a civil penalty of not more than $10,000 for each violation or for each day of a continuing violation. The penalty shall be recoverable in a civil suit brought by the Attorney General on behalf of the United States in the United States District Court for the district in which the defendant is located or for the District of Columbia. (b) Whoever knowingly and willfully violates subsection (a) shall be fined not more than $1,000 for each violation or for each day of a continuing viola- tion, or imprisoned for not more than 1 year, or both. (¢) In addition to any penalty provided in subsections (a) or (b), whenever the Federal certifying agency determines that a person is violating or is about to violate any of the provisions of this section, the agency shall refer the matter to the Attorney General who may bring a civil action on behalf of the United States in the United States district court for the district in which the defendant is located or for the District of Columbia to enjoin the violation and to enforce the Act or an order or certificate issued hereunder, and upon a proper showing a perman- ent or preliminary injunction or temporary restrain- ing order shall be granted without bond. SECTION-BY-SECTION ANALYSIS SECTION 1 -- short title SECTION 2 Policy Preamble -- Congressional findings and public policy reasons for this Bill - to further national environmental policy set forth in National Environmental Policy Act of 1969 - to further national electric energy policy of the Federal Power Act - to act in the interests of the environment, interstate commerce, investors and consumers 2 (a) =-- finding that bulk power facilities needed for reliable power supply be constructed in a timely basis in consonance with environmental and natural resource values; 2(b) -- determination that in order to meet objective of 2(a) utilities should engage in long-range planning and bodies should be established to certify bulk power facilities prior to construction; 2(c) -- finding that the siting of bulk power facilities is a significant land use issue which should be resolved on a State or regional level; 2(d) -- finding that Federal, regional and State authorities should act expeditiously in reviewing and certifying bulk power facilities; 2(e) —-- determination that Federal guidelines are needed for the Federal, regional, and State certifying agencies; 2(f) -- determination that the long-range planning should be carried out through the National and regional reliability councils, which are voluntary groups open to all systems in the industry; and that these councils participate in the work of the FPC under Section 202 (a) of the Federal Power Act; 2(g) -- determination that the Federal government assist in the development of new siting approaches for power plants and in the multiple use of rights of way and facilities for other utilities and public services SECTION 3 Definitions -- definition section covering particular terms used in the Bill. 3(a) —-- describes one of two types of regulated parties, "electric entities" which are all non-Federal systems which own or operate "bulk power supply facilities"; "electric entities" include States, municipals, individuals, 260 corporations, cooperatives and any other types of organizations; 3(b) -- describes the other type as "federal electric entity"; e.g., the Tennessee Valley Authority and the Bonneville Power Administration; 3(c) -- identifies "bulk power supply facilities" as electric generating equipment of 300,000 kilowatts or more and transmission lines of 230 kilovolts and higher, together with associated facilities; but any facilities licensed under Part I of the Federal Power Act shall not be subject to the jurisdiction of the certifying bodies established under this Act; 3(d) -- states that the "Federal certifying agency" will be such Federal agency, agencies or department as may be designated by the President (after its establish- ment it is intended that the Department of Natural Resources be designated the Federal certifying agency): 3(e) -- identifies the State or regional agencies who may certificate sites and facilities: 3(f) -- defines "regional" as two or more States; and 3(g) -- defines the "commencement of construction" in terms of site preparation which would adversely affect the natural environment but excludes temporary recrea- tional use, preconstruction testing and monitoring to establish site suitability. SECTION 4 Long-range Planning -- establishes a statutory requirement that all "electric entities and Federal electric entities" prepare coordinated regional long-range plans for bulk power supply facilities and that the plans be made available to government and the public; 4 (a) -- requires each "electric entity and Federal electric entity" prepare annually, long-range plans for bulk power facilities in accordance with FPC guidelines and permits these to be part of a single regional plan; 4 (a) (1) -- requires the plans to identify the general location, size, and type of facilities whose construction is to begin during the following 10 years or longer (not to exceed a total of 15 years) if determined to be necessary by the Federal certifying agency and also to indicate any facilities which may be removed from utility service during the period or as a result of the completion of the new facilities; 4 (a) (2) -- requires that the plans identify 261 tentative alternative sites for power plants over 300,000 kilowatts and the general location of routes for trans- mission lines over 230 kilovolts at least 5 years in advance of construction and that they indicate the environmental effects and how potential adverse effects may be avoided or minimized; 4 (a) (3) == requires that the plans indicate how the bulk power facilities are coordinated on a regional basis to meet the electric power needs of the region; 4 (a) (4) -- requires that the plans indicate how environmental protection and land-use planning agencies have been involved in the planning process to minimize environmental problems; 4 (a) (5) -- requires that the plans provide such additional information as the Federal certifying agency upon the advice of interested State and Federal agencies may prescribe; 4 (b) -- requires that each "electric entity and Federal electric entity" file annually, copies of the long-range plan, including projections of the electric demand they are intended to meet, with appropriate government agencies at the Federal, regional, State and local levels and with interested citizens groups requesting them. SECTION 5 Certifying Agency Jurisdiction and Qualifi- cation Procedures -- establishes a system for the certification of large electric power plants and high voltage transmission facilities prior to their con- struction; 5(a) -- affords the states an initial period of two years in which to establish a decision-making body at the State or regional level to certify the sites and related bulk power facilities of non-Federal utilities. These decision-making bodies would be either an existing agency of state government such as a natural resource agency or the public utility commission, or a newly created power plant siting agency or decision-making body; —-- requires that the State or regional certifying agencies provide for the participation in the decision- making process by environmental protection, natural resource, planning and electric power service agencies of the State government and for participation by the public; 262 -- requires that the State or regional certifying agencies be established and administered in accordance with the requirements of the Act and guidelines and any subsequent revisions thereto to be prepared and published in accordance with Section 9; 5(b) -- provides for notice to the Federal certifying agency by the governor of each State which establishes a certifying agency, review of the authorities and procedures by the Federal certifying agency, and issuance of a Certificate of qualification of procedure if they are in compliance with the Act including the guidelines established in accordance with Section 9; -— requires the Federal certifying agency to revoke the Certificate of qualification if the State or regional certifying agency fails to observe the require- ments of the Act; -- provides that the Certificate of qualification shall constitute conclusive evidence to exercise the provisions of Section 6; 5(c) -- authorizes a Federal certification pro- cedure applying Federal standards only with respect to electric entities in any State which does not establish and qualify its procedures within this two year period or has its qualification of procedure revoked; such Federal certification to continue in any State until the latter has a qualified certification procedure; —— authorizes transitional procedures which the Federal certifying agency may adopt in transferring pending matters to State or regional certifying agencies which so qualify; 5(d) -- requires that the Federal certifying agency consult with the Governor of each affected State before denying or revoking a Certificate of qualification of procedure, affording the State time for responsive action; and 5(e) —-- authorizes judicial review of the Federal certifying agency action denying a Certificate of qualification or revoking an effective certificate; jurisdiction being in the United States Court of Appeals, with venue stated; and provisions for subsequent judicial review by the United States Supreme Court; SECTION 6 Certification Implementation Electric Entities and Federal Electric Entities -- implements the certifi- cation requirements for bulk power supply facilities of 263 all non-Federal and Federal electric systems by State, regional or Federal certifying agencies; 6 (a) -- prohibits the commencement of con- struction or the beginning of operation of non-Federal bulk power supply facilities two years after enactment unless a certificate of site and facility is obtained from the qualified State or regional certifying agency or lacking such a qualified agency from the Federal certifying agency; —-— prohibits the commencement of construction or beginning of operation of Federal bulk power supply facilities two years after enactment unless a certificate of site and facility is obtained from the Federal certifying agency; -- requires that certified facilities be con- structed, operated and maintained in accordance with the Certificate; -—establishes transitional certification require- ments and procedures for facilities under construction two years from enactment providing that if sizeable investments applicable only to the site in question were already made certification would be granted if all necessary permits and licenses had been obtained prior to commencement of construction; and if no such invest- ments were made that operation of these facilities may proceed pending certification subject to any reasonable actions or conditions later required by the certifi- cating body; -- provides that facilities operational two years from enactment need not be certified, but that sizeable additions thereto must be; 6 (b) -- requires that all applications for a certificate of site and facility be filed at least two years prior to the commencement of construction: -- establishes as a prerequisite for such filing that Federal and non-Federal electric entities comply with the long-range planning requirements of Section 4; that, except for good cause, the site chosen be from the list of approved sites in accordance with Section 8 (c) and the transmission line routes follow the general routes identified in the long-range plans; 6 (c) -- expresses the intent of Congress that State, regional, or Federal certification proceedings be completed within the two year period prior to 264 construction; -- requires that the Federal guidelines established in accordance with Section 9 facilitate a decision on applications for certification within 2 years; —— authorizes waiver of the certification require- ments in Section 6 for good cause during the first 4 years after enactment; -- states a statutory presumption that compliance with the long-range planning and filing requirements of Section 4 constitutes prima facie evidence of timely dis- closure of construction plans for administrative and judicial proceeding; 6(d) -- permits any non-Federal electric entity to petition the Federal certifying agency for a Certificate of site and facility if the qualified State or regional certifying agency fails to act in a timely manner on the application for that facility and if the adequacy and reliability of the regional bulk power supply system imperatively and unavoidably requires a decision; -- authorizes the Federal Power Commission to prescribe by regulation the factual bases upon which to determine whether circumstances require the Federal certifying agency to assume jurisdiction; -- requires that for the Federal certifying agency to assume jurisdiction the Federal Power Commission must first find that adequate and reliable regional bulk power supply will be materially impaired by reason of failure of State action upon a timely basis; -— directs the Federal certifying agency to accord priority consideration to such situations and to do so under the provisions of Section 7 applying only Federal standards; SECTION 7 Provisions for Certification -- establishes the provisions and certain procedures to be used by Federal, State and regional certifying agencies when certifying bulk power facilities; 7 (a) -- authorizes certifying agencies to issue Certificates of site and facility if after considering available alternatives they find the site or route will not unduly impair environmental values and will be reasonably necessary to meet electric power needs; or otherwise to deny the certificate; -- provides that the judgment of the agency is conclusive on all questions of siting, land use, state 265 air and water quality standards, public convenience and necessity, aesthetics and any other State or local requirements but requires that Federal standards, permits or licenses must have been satisfied; the intent of this section is to provide a complete one- stop final decision on all approvals necessary at the State or local level of government. The guidelines to be established pursuant to Section 9 will attempt to coordinate and integrate any reviews of these facilities under Federal law with this decision-making process so as to achieve as close to a complete one- stop procedure as is possible; -- requires that the Certificate indicate agree- ment by the applicant to comply with the requirements of this Act and Section 202 (a) of the Federal Power Act regarding reliability and adequacy of electric service; 7(b) -- requires that the certifying agency assure full public review and give adequate consideration to all environmental values including the impact on adjacent States; —-- authorizes the certifying agency to impose terms and conditions when issuing certificates: -- directs that the certificates be final and subject only to judicial review; SECTION 8 Powers and Duties of Certifying Agencies -- delineates the duties and authorities of State, regional and Federal certifying agencies; 8 (a) —-- requires certifying agencies to comment on the long-range plans submitted by Federal and other electric entities in accordance with Section 4 and to make these comments public; 8 (b) -- requires certifying agencies to publish in each local newspaper in the affected area annual lists describing proposed power plant sites and general trans- mission line routes including the approximate year when construction is expected to begin; 8(c) -- requires certifying agencies to conduct mandatory public hearings promptly on any sites proposed 5 years in advance of construction and to decide if they should be included on the inventory of approved sites and establishes as a basis for decision whether or not construction of any plant on that site would unduly impair important environmental values; 8(d) -- requires certifying agencies to publish 266 promptly in each local newspaper in the affected area pertinent details concerning applications for Certificates of site and facility and to hold public hearings prior to issuance of the Certificate; 8 (e) -- authorizes certifying agencies to require Federal and other electric entities to provide necessary information and to assist in the conduct of hearings, investigations and studies; 8 (f) -- authorizes certifying agencies to conduct any necessary studies or investigations; 8(g) -- authorizes certifying agencies to issue rules and regulations necessary to carry out this Act after public notice and comment; SECTION 9 Guidelines for Certifying Agencies -- requires the President upon the advice of interested Federal agencies and after public notice and comment to issue and revise as necessary guidelines for Federal, regional and State certifying agencies which shall include; 9(a) -- criteria for effects on environmental values; 9(b) -- criteria for evaluating relative environ- mental effects of alternative sites; 9(c) -- criteria for evaluating projected electric needs; 9(d) -- procedures for ensuring full public parti- cipation through consultation and hearing; 9(e) -- procedures for forming regional certifying agencies; 9(f) -- procedures for dealing with multi-state impacts; 9(g) -- personnel requirements for State and regional agencies; SECTION 10 Eminent Domain Quick Take -- authorizes non- Federal systems holding certificates of site and facility (electric entities) to utilize eminent domain procedures in Federal or State courts to acquire needed non-Federal property; and where the Federal courts are used, quick take procedures apply: SECTION 11 Compacts and Joint Action -- encourages and facilitates cooperation among the States in carrying out the provisions of this Act; 11 (a) -- gives advance consent of Congress to the negotiation and implementation of agreements or compacts to effectuate the certification procedures of the Bill 267 through authorities or agencies, joint or otherwise, as to non-Federal systems; 11 (b) -- expresses the intent of Congress that State certifying agencies are to be encouraged to cooperate in planning of bulk power supply facilities and that States adopt compacts, cooperative procedures and joint actions to coordinate and resolve environ- mental considerations which affect bulk power supply facilities; SECTION 12 Fee Assessment -- authorizes each qualified Federal, regional or State certifying agency to assess and collect fees from electric entities and federal electric entities operating within its jurisdiction to cover the agency's costs of administration, necessary studies and personnel; SECTION 13 Advanced Siting and Routing Concepts -- authorize the federal certifying agency in cooperation with other interested federal agencies and the electric power industry to develop a coordinated program of studies of new and evolving power plant siting and transmission line routing concepts. SECTION 14 Federal Agency Cooperation -- authorizes all federal departments and agencies to cooperate with the Federal, regional and State certifying authorities in carrying out the purposes of the Act; specifically to provide staff experts, information and technical assis- tance and to undertake studies of the environmental impact of bulk power facilities upon request; SECTION 15 Judicial Review -- subjects the orders and decisions of federal certifying agency pursuant to this Act to review under provisions of 5 USC 701-706; -- subjects the orders and decisions of State or regional certifying agencies pursuant to this Act to review under applicable State laws; SECTION 16 (a) Relation to Other Laws -- states that the Act does not alter the jurisdiction of the CEQ or the requirements of the National Environmental Policy Act except; —-- federal agencies are not required to prepare detailed statements pursuant to Section 102 (2) (C) of the National Environmental Policy Act for bulk power facilities certified under Section 6 of this Act. Federal agencies will re-examine procedures after enact- ment of this Act to utilize the findings of the State, 268 regional and federal certifying agencies and thus achieve as close to a complete one-stop procedure as is possible; 16 (b) -- states that this Act does not relieve persons or governments from the requirements or authority of the Atomic Energy Act of 1954 as amended or the Federal power Act of 1935 as amended or from any other federal law; SECTION 17 Penalties and Enforcement -- provides for civil and criminal penalties for violating the provisions of the Act: 17 (a) -- establishes civil penalties up to $10,000 per day for failure to obtain a required certificate of site and facility prior to construction of a bulk power facility or for failure to comply with such a Certificate once issued or for causing one of the above acts to occur; 17 (b) -- establishes criminal penalties up to $1000 per day or one year imprisonment or both for knowingly and willfully violating subsection (a): 17 (c) -- permits the Attorney General to seek a civil injunction or temporary restraining order in the United States district court when the Federal certifying agency determines that a person is violating or is about to violate the provisions of subsection (a). 269 Mined Area Protection 271 UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 Dear Mr. [President/Speaker] : Enclosed is a draft of a proposed bill "To provide for the cooperation between the Federal Government and the States with respect to environmental regu- lations for mining operations, and for other purposes." We recommend that this bill be referred to the appropriate committee for consideration and we recommend that it be enacted. This legislative proposal was referred to in that part of President Nixon's environmental message dealing with environmental regulations for mining operations which was submitted to the Congress today. The adverse environmental effects that can result from mining operations has been a subject of growing national concern in recent years. The ever- increasing demand for minerals coupled with dramatic developments in our ability to recover them has led to an increase in mining activity, particularly surface mining. These activities are an important part of the American economy and will continue to be. But we are coming to realize that they may contain hidden costs in terms of environmental deterioration that do not appear in the market transaction of the commodity. Recent studies and investigations in the past 5 years documented some of the adverse environmental effects that may result from surface mining. Over 3.2 million acres of land had been disturbed by 272 surface mining, with approximately 150,000 acres being added annually. By 1980, if this trend continues unchecked, 5 million acres will have been affected by mining activity, an area roughly the size of the State of New Jersey. Underground mines also pose a serious threat to the environment. Like surface mines, underground mines can produce unsightly spoil heaps which disfigure the countryside and contribute to water pollution. Mine fires and unintentional subsidence are also major problems associated with underground mines in some areas. In varying degrees State legislatures and mining companies have responded to the problem with the result that much land is being reclaimed by the mining industry as a part of the mining operation. Twenty-two States have laws regulating some aspects of surface or underground mining. This effort, however, suffers from lack of uniformity and lack of unanimity. There are two distinct problems involved in meeting the challenge which mining operations can present to the environment: (1) requiring ongoing and future mining activities to be conducted in a way as to minimize the environ- mental impact, and (2) healing the wounds that have been inflicted by past mining operations. The proposed bill deals only with the first problem, the solution to which is largely a matter of developing regulations which will require environmental con- siderations to be built into the mining operation. An integral part of this effort will be research programs promoted by the Secretary of the Interior with Federal funds. The proposed bill recognizes that the initial 273 responsibility for developing and enforcing regulations should rest with the States. It also recognizes, however, that the effort must be nationwide and based, to the fullest extent possible, on national standards, so that industry will be placed on an equal footing in every State. The proposed bill therefore gives the States the opportunity to develop and submit regulations for approval by the Secretary of the Interior in accordance with certain specific criteria set forth in the bill. If a State fails to develop an acceptable program within two years after enactment, the proposed bill authorizes the Secretary to promulgate regulations for mining operations within the State. The problem of healing damage inflicted in the past is more complicated. Typically, the party respon- sible is not available for legal action to require him to repair the damage he has caused. Consequently the solution is largely a matter of spending tax- payers dollars. In order to justify a massive - Federal grant program to clean up past mined-areas, a detailed cost-benefit analysis must be undertaken to assure that this problem deserves top Priority among the great number of other environmental problems the solution to which requires Federal funds. The tools for such an analysis are in the formative stages. Until they have been further refined, it is felt that a restoration program is premature. A section-by-section analysis of the bill is enclosed. This legislation is long overdue. The longer it is put off, the larger the ultimate cost will be. The Office of Management and Budget has advised that enactment of this proposed legislation would be in accord with the program of the President. 274 Sincerely yours, /s/ Rogers C.B. Morton Secretary of the Interior Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 275 416-694 O - 71 - 18 A BILL To provide for the cooperation between the Federal government and the States with respect to environmental regulations for mining operations, and for other purposes. . Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Mined Area Protection Act of 1971." TITLE I SEC. 101. Definitions. For the purpose of this Act, the terms-- (a) "Secretary" means the Secretary of the Interior; (b) "mining operations" means (1) activities conducted on the surface or underground for the exploration for or extraction of minerals from their natural occurrences, including strip or auger mining, dredging, quarrying, in situ distillation or retorting and leaching; and (2) the cleaning, concentrating, refining, or other processing of preparation (ex- cluding smeltering) and loading for interstate commerce of crude minerals at or near the mine site. It does not include the extraction of minerals in a liquid or gaseous state by means of wells or pipes unless the process includes in situ distillation or retorting; (c) "underground mining operations" means those mining operations carried out beneath the surface by means of shafts, tunnels, or other under- ground mine openings and such use of the adjacent surface as is incidental thereto; (d) "surface mining operations" means those mining operations carried out on the surface, including strip or auger mining, dredging, quarrying, and leaching, and activities related thereto; (e) "mined area" means the surface and sub- surface of an area in which mining operations are being or have been conducted including private ways and roads appurtenant to any such area, land exca- vations, workings, refuse banks, tailings, spoil banks, and areas in which structures, facilities, 276 equipment, machines, tools, or other materials or property which result from, or are used in, mining opera tions are situated; (f) “operator of a mining operation” means an individual, society, joint stock company or a partnership, association, corporation, or other organization controlling or managing a mining operation; (g) "State" means a State of the United States, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, and Guam; (h) "reclamation" means activity which is taken during and following a mining operation to avoid or correct adverse environmental effects of mining operations. SEC. 102. Congressional Findings and Declarations. The Congress finds and declares-- (a) that mining operations are essential activities affecting interstate commerce which con- tribute to the economic well-being, security and general welfare of the Nation; (b) that there are mining operations on public and private lands in the Nation which adversely affect the environment by destroying or diminishing the availability of public and private land for commercial, industrial, recreational, agricultural, and forestry purposes, by causing erosion and land- slides, by contributing to floods and the pollution of waters and air, by destroying fish and wildlife habitat and impairing natural beauty, by frustrating efforts to conserve soil, water and other natural resources, by destroying public and private property, and by creating hazards to life and property: (c) that the initial and principal continuing responsibility for developing and enforcing environ- mental regulations for mining operations should rest with the States: (d) that the cooperative effort established by this Act is necessary to the prevention and elim- ination of the adverse environmental effects of pre- sent and future mining operations; and (e) that it is the purpose of this Act to encourage a nationwide effort to regulate mining 277 operations to prevent or substantially reduce their adverse environmental effects, and to assist the States in carrying out programs for those purposes. TITLE II ENVIRONMENTAL REGULATIONS FOR MINING OPERATIONS SEC. 201. State Environmental Regulations for Mining Operations. (a) Each State, after public hearings and within two years of the date of enactment of this Act, may submit to the Secretary for review and approval or disapproval in accordance with this section State environmental regulations for mining operations on all lands within such State, except Federally-owned land or land held in trust by the United States for Indians. A State may at any time thereafter submit revisions to such regulations to the Secretary for review and approv- al or disapproval in accordance with this section. The Secretary shall approve the regulations or revision of such requlations submitted to him if in his judgment: (1) the regulations require that each operator of a mining operation obtain a permit from a State agency established to administer the regula- tions, and file a mine reclamation plan describing the manner in which his reclamation activity will be con- ducted showing that such activity will be conducted in a manner consistent with the regulations; (2) the regulations contain require- ments designed to insure that the mining operation (i) will not result in a violation of applicable water or air quality standards, (ii) will control or prevent erosion or flooding, release of toxic substances, accidental subsidence of mined areas or land or rock slides, underground, outcrop, or refuse bank fires, damage to fish or wildlife or their habitat, or public or private property, waste of mineral resources, and hazards to public health and safety; (3) the regulations require reclamation of mined areas by revegetation, replacement of soil, or other means; that a reclamation plan be prepared and approved in advance of initiation or continuance of mining operations, and that reclamation work be made an integral part of the mining operation and be completed within reasonably prescribed time limits: 278 (4) the regulations require posting of performance bonds in amounts at all times sufficient to insure the reclamation of mined areas in the event that the regulations are not complied with or that reclamation is not completed in accordance with the reclamation plan; (5) the regulations provide for filing, updating, and permanent retention of engineering maps of all active surface and underground mining operations and of all inactive surface and underground mining operations for which engineering or other maps are available; (6) the regulations provide that regular reports will be made to the Secretary concerning the progress made by the State in carrying out the purposes of this title; (7) the regulations require regular monitoring by the State agency of environmental changes in mined areas to assess the effectiveness of the environmental regulations for mining operations; (8) the regulations designate a single agency, or with the Secretary's approval, an inter- state organization upon which the responsibility for administering and enforcing the regulations is con- ferred by the State which will insure full partic- ipation of those agencies responsible for air quality, water quality and other areas of environmental protection; (9) the State agency or interstate organization responsible for the administration and enforcement of the regulations has vested in it the regulatory and other authorities necessary to carry out the purposes of this Act including, but not limited to, authority to prohibit mining operations where the area affected cannot be adequately re- claimed, to order cessation of mining operations, and to bring or request the bringing of civil and criminal actions for violation of applicable laws and regulations; (10) the regulations were developed with full participation of all interested Federal depart- ments and agencies, State agencies, local governments, and other interested bodies and groups; 279 (11) the regulations provide for regular review and updating, and for public notice and an opportunity for public participation in their revision; (12) funding and manpower are or will be committed to the administration and enforcement of the regulations sufficient to carry out the purposes of this title; (13) the regulations are authorized by law and will become effective no later than sixty days after approval by the Secretary; (14) training programs will be established, as necessary, for persons engaged in mining operations and in enforcement of environmental regulations; and (15) the regulations are compatible to the maximum extent practicable with approved regula- tions of adjacent States. (b) The criteria set forth in subsection (a) of this section shall be further elaborated by the Secretary through guidelines which will be issued within 30 days after enactment of this act and re- vised periodically as the Secretary deems appropriate. Such guidelines shall attempt to assure that State regulations provide the operator of a mining operation sufficient flexibility to choose the most economically efficient means of meeting the requirements of section 201 (a) (2) and shall be based on consideration of: (1) the difference between the various States and regions; (2) the effectiveness and experience gained under present State mining reclamation regula- tions and Federal regulations for Federal lands: (3) the available technology for achiev- ing the requirements of section 201 (a) (2); (4) a comparison of the costs and benefits of achieving alternative levels of the requirements of section 201 (a) (2) (ii). (c) To advise the Secretary in developing guidelines under subsection (b) of this section, there is established an Advisory Committee composed of representatives from the Departments of Agriculture and Commerce, the Environmental Protection Agency, the Tennessee Valley Authority and the Appalachian 280 Regional Commission and such other representatives as the Secretary may designate. (d) The Secretary shall not approve regula- tions submitted by a State pursuant to this section until he has solicited the views of Federal agencies principally interested in such regulations. In case of serious disagreement between any Federal agency and the State in the development of the regula- tions the Secretary shall seek to mediate the differ- ences. The Secretary shall approve or reject the State regulations within 180 days after such regula- tions are filed. If no action is taken by the Secretary within the allotted time it shall be pre- sumed, as a matter of law, that the State regula- tions are approved. (e) If the Secretary approves the regula- tions or revision thereof submitted to him by a State for approval, he shall conduct a continuing review and evaluation of the effectiveness of the regula- tions and the administration and enforcement thereof. As a result of the evaluation and review the Secretary may determine that: (1) the State has failed to enforce the regulations adequately; (2) the State's regulations require re- vision as a result of experience or the guidelines issued by the Secretary pursuant to section 201.(b); (3) the State has otherwise failed to comply with the purposes of this Act. Upon making such determination the Secretary shall notify the State and suggest appropriate action, remedies, or revisions to the regulations affording the State an opportunity for a hearing. If within a reasonable time, as determined by the Secretary, the State has not taken appropriate action as determined by the Secretary, the Secretary may withdraw his approval of the regulations, and issue regulations for such State under section 202 of this title. After withdrawal of his approval and pending the issuance of regulations under section 202 the Secretary may administer and enforce the State regulations. Follow- ing the issuance of regulations under section 202 and while they are in effect the Secretary is authorized to administer and enforce such regulations within such 281 State. SEC. 202 Federal Regulation of Mining Operations. (a) If, as the expiration of two years after the date of enactment of this Act, a State has failed to submit environmental regulations for mining operations, or has submitted regulations which have been disapproved and within such period has failed to submit revised regulations for approval, the Secretary shall promptly issue environmental regulations for mining operations within such State. The Federal regulations issued by the Secretary for a particular State shall meet the requirements of the principles set forth in subsection (a) of section 201 of this Act. (b) Regulations under this section shall be issued pursuant to the Federal Rule making procedures set forth in 5 U.S.C. 553. (c) The Secretary may from time to time re- vise such regulations in accordance with the procedure prescribed in 5 U.S.C. 553. SEC. 203. Where the Secretary administers and enforces the program for the State, or when the Secretary administers and enforces State regulations under section 201 (e) of this title, he shall recover the full cost of administering and enforcing the program through the use of mining permit charges to be levied against mining operations within the State. SEC. 204. Termination of Federal Regulations. If a State submits proposed State regulations to the Secretary after Federal regulations have been issued pursuant to section 202 of this title, and if the Secretary approves such regulations, such Federal regulations shall cease to be applicable to the State at such time as the State regulations become effective. Such Federal regulations, as changed or modified by the Secretary, shall again become effective if the Secretary subsequently withdraws his approval of the State regulations pursuant to subsection (e) of section 201 of this title. SEC. 205. Inspections and Investigations. The Secretary is authorized to make such inspections and investigations of mining operations and mined areas as he considers necessary or appropriate 282 to evaluate the administration and enforcement of any State's regulations, or to develop or enforce Federal regulations, or otherwise to carry out the purposes of this Act, and for such purposes authorized rep- resentatives of the Secretary shall have the right of entry to any mining operation and into any mined areas. In order to enforce the right of entry into a specific mining operation or mined area the Secretary may obtain a warrant from the appropriate district court to authorize such entry. SEC. 206. Injunctions. At the request of the Secretary, the Attorney General may institute a civil action in a district court of the United States or the highest court in a U.S. territory for an injunction or other appropriate order (1) to prevent any operator of a mining operation from engaging in mining operations in violation of Federal regulations issued under section 202 of this title or State regula- tions which the Secretary is authorized to enforce under section 201 (e) of this title; (2) to prevent an operator of a mining operation from placing in commerce the minerals produced by a mining operation in violation of State regulations approved under section 201 of this title; (3) to enforce a warrant issued under section 205 of this title; or (4) to collect a penalty under section 207 (a) of this title. The district court of the United States for the district in which such operator of a mining operation resides or is doing business shall have jurisdiction to issue such injunction or order. SEC. 207. Penalties. (a) If any person fails to comply with any regulation issued under section 202 of this title for a period of fifteen days after notice of such failure, the Secretary may order cessation of such person's mining operations and such person shall be liable for a civil penalty of not more than $1000 for each day of continuance of such failure after said fifteen days. (b) Any person who knowingly violates any regulation issued pursuant to section 202 of this title shall, upon conviction, be punished by a fine not exceeding $10,000, or by imprisonment not ex- ceeding one year, or both. (c) The penalties prescribed in this section 283 shall be in addition to any other remedies afforded by this title or by any other law or regulation. SEC. 208. Research. The Secretary is authorized to conduct or promote research, or training programs to carry out the purposes of this title. In so doing, the Secretary may enter into contracts with institutions, agencies, organizations, or individuals and make grants to non-profit organizations and collect and make available information resultingthere- from. SEC. 209. Grants. (a) The Secretary is authorized to make a grant to any State for the purpose of assisting such State in developing, ad- ministering and enforcing environmental regulations under this title provided that such grants do not exceed 80% of the program development costs incurred during the year preceding approval by the Secretary and do not exceed 60% of the total costs incurred during the first year following approval, 45% during the second year following approval, 30% during the third year following approval and 15% during the fourth year following approval, at which time the Federal grants shall cease. (b) The Secretary is authorized to cooperate with and provide non-financial assistance to any State for the purpose of assisting it in the administration and enforcement of its regulations. Such cooperation and assistance may include: (1) technical assistance and training, including provision of necessary curricular and instructional materials, in the administration and enforcement of the State regulations or program; or (2) assistance in preparing and main- taining a continuing inventory of mining operations and mined areas in such State for the purposes of evaluating the effectiveness of its environmental regulations for mining operations programs and identifying current and future needs of the State's activities under this Act. SEC. 210. In extending technical assistance to States under section 209 and in the enforcment of regulations issued by the Secretary under section 202 concerning matters relating to the reclamation of areas affected by surface mining, the Secretary may 284 utilize the services of the Secretary of Agriculture, and may transfer funds to cover the cost thereof. SEC. 211. Rules and Regulations. The Secretary is authorized to promulgate such rules and regulations as he considers necessary to carry out this title. SEC. 212. Authorization of Appropriations. There is authorized to be appropriated to the Secre- tary such sums as may be necessary to carry out the provisions of this Act. TITLE ITI SEC. 301. (a) The heads of all Federal departments or agencies which have jurisdiction over land on which mining operations are permitted are authorized to promulgate environmental regulations to govern such mining operations. Such department or agency heads shall issue regulations to assure at least the same degreee of environmental protection and reclamation on lands under their jurisdiction as is required by any law and regulation established under an approved State program for the State in which such land is situated. Each Federal department and agency shall cooperate with the Secretary and the States, to the greatest extent practicable, in carry- ing out the provisions of this Act. (pb) Nothing in this Act or in any State regulations approved pursuant to it shall be construed to conflict with any of the following Acts or with any rule or regulation promulgated thereunder : (1) the Federal Metal and Nonmetallic Mine Safety Act (80 Stat. 772; 30 U.S.C. 721-740); (2) the Federal Coal Mine Health and Safety Act of 1969 (83 Stat. 742); (3) the Federal Water Pollution Control Act, as amended (79 Stat. 903, 33 U.S.C. 1151-1175), the State laws enacted pursuant thereto, or other Federal laws relating to preservation of water quality; (4) the Clean Air Act, as amended (79 Stat. 992; 42 U.S.C. 1857); (5) the Solid Waste Disposal Act, as amended (79 Stat. 997; 42 U.S.C. 3251). SEC. 302. Separability. If any provision of this Act or the applicability thereof to any person or circumstance is held invalid the remainder of this 285 Act and the application of such provision to other persons or circumstances shall not be affected there- by. 286 SECTION-BY-SECTION ANALYSIS To provide for the cooperation between the Federal Government and the States with respect to environ- mental regulations for mining operations and for other purposes. TITLE I Section 101 - contains definitions. "Mining operations" includes surface and underground mining but excludes extraction of minerals in a liquid or gaseous state through pipes. "Reclamation" means environmental protection built into mining operations. Section 102 - contains Congressional findings and declarations and states specifically that mining operations affect interstate commerce but that the initial and principal continuing responsibility for regulating them rests with the States. TITLE II Section 201 - permits each State to submit for approval by the Secretary of the Interior environmental regulations for mining operations. Such regulations must cover all land within the State except Federally-owned land or land held in trust for Indians. The section contains criteria for secretarial approval, including pro- vision that the regulations contain requirements designed to insure compliance with air or water quality standards and control or prevention of other specific types of environmental damage. The section sets up an Advisory Committee to establish guidelines further elaborating upon the criteria. The section allows the Secretary to withdraw his approval of State regulations if he finds that the State has failed to enforce the regulations adequately or otherwise failed to comply with the pur- poses of the Act. Section 202 - provides that if, after two years from the date of enactment of this Act, a State has failed to submit regulations to the Secretary for approval, the Secretary shall issue regulations for mining operations within that State. Section 203 - provides that, when the Secretary administers and enforces the program for a State, he shall recover the cost of so doing through permit charges levied on the mining operations within that State. Section 204 - provides that Federal regulations 287 issued under section 202 shall cease to apply whenever the Secretary approves regulations submitted to him by the State. Section 205 - authorizes the Secretary to make inspections of mining operations in carrying out his responsibilities under the Act. Section 206 - authorizes the Attorney General to institute a civil action in the Federal district court to enforce Federal regulations, and to enforce certain other provisions of the Act. Section 207 - prescribes penalties for violation of Federal regulations. Section 208 - authorizes the Secretary to conduct research or training programs to carry out the purposes of title II. Section 209 - authorizes the Secretary to make grants to States to cover 80% of the cost of developing the regulations during the year prior to approval and to recover the following portion of the administering and enforcing costs for the four years following approval; 60% the first year, 45% the second year, 30% the third year and 15% the fourth year. The Section also author- izes the Secretary to provide technical assistance to the States. Section 210 - authorizes the Secretary to utilize the services of the Secretary of Agriculture in extending technical assistance to the States. Section 211 - authorizes the Secretary to pro- mulgate rules and regulations. Section 212 - authorizes appropriations as necessary. TITLE IIT Section 301 - authorizes heads of Federal agencies to issue environmental regulations governing mining operations on lands under their jurisdiction. It directs such agency heads to require at least the same degree of environmental protection and regulation as is required by the State on other lands within the State. The section also provides that the Act shall not conflict with certain other Federal laws. Section 302 - provides for the separation of any provisions of the Act held invalid. 288 Historic Areas 289 HISTORIC AREAS Many older buildings have a grace and quality of architecture which makes rehabilitation preferable to demolition and replacement. Historic buildings in par- ticular possess special characteristics which necessi- tate their rehabilitation and protection from demolition. But older structures are difficult to maintain. Rehabilitation and maintenance expenses tend to be high. Improvement loans are difficult to obtain and, unfortun- ately, the Federal tax laws encourage the construction of short-lived, new buildings and favor demolition instead of restoration. The Federal Government does not have an adequate listing of all of the historic properties it owns, and it does not always maintain them at professional standards of preservation. Nor do present laws adequately protect historic properties from demolition once they are trans- ferred from Federal ownership to State or local ownership. Recently two federally owned historic properties were declared surplus under circumstances which made their later preservation doubtful. Cities to which they might have been transferred free of charge could not afford to preserve them under existing law which forbids the use of these properties for revenue-producing or commercial purposes. THE PRESIDENT'S PROPOSALS The President will propose amendments to the Tax Code to provide a faster writeoff of expenses devoted to rehabilitating historic buildings and to provide strong incentives to discourage their demolition. On older buildings generally, the proposal will bring into better balance the present inequities between demolition and re- habilitation. The President is also proposing that new authority be granted to the Federal Housing Administration to allow it to insure loans of up to $15,000 for a maximum of 15 years to restore and preserve historic residences. (See attached legislation.) By Executive Order the President will propose a careful inventory and evaluation of all Federal build- ings, along with measures to help assure that the Federal agencies maintain their registered historic buildings, and that no federally owned building be demolished until its possible historic significance has first been 290 reviewed. Finally, the President is recommending legisla- tion to allow State and city governments to receive Federal surplus historic properties at no cost and to use them in any way that they see fit so long as their his- toric character is respected. Thus local governments will be able to restore and maintain these surplussed properties by using the revenues produced by their com- mercial use. 291 % % [ *3 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT » | & WASHINGTON, D. C. 20410 Dear Mr. [President/Speaker] : There is transmitted herewith a proposed bill "To authorize insurance in connection with loans for the preservation of residential historic properties." A summary of the proposed bill is also enclosed. In his message on a Program for a Better Environment, the President stated that "Particularly acute is the continued loss of many buildings of historic value. Since 1933 an estimated one-quarter of the buildings recorded by the Historic American Building Survey have been destroyed. Most lending institutions are unwilling to loan funds for the restoration and rehabilitation of historic buildings because of the age and often the location of such buildings." The enclosed bill would encourage lending institutions to make loans to preserve historic structures by author- izing the Secretary of Housing and Urban Development to insure these institutions against losses resulting from such loans, pursuant to the provisions of the existing home improvement loan program contained in title I of the National Housing Act. Appropriate maximum loan amounts and maturities would be provided. The Department has been advised by the Office of Manage- ment and Budget that enactment of the proposed legislation would be in accord with the program of the President. Sincerely, /s/ George Romney 292 Honorable Spiro T. Agnew President of the Senate Washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives Washington, D.C. 20515 293 A BILL To authorize insurance of loans for the improve- ment of residential historic properties. Section 2 of the National Housing Act (12 U.S.C. 1703) is amended -- (1) by inserting "; and for the purpose of (iii) financing the restoration or rehabilitation of historic structures according to standards prescribed by the Secretary of the Interior" before the period at the end of the first sentence of subsection (a); (2) by inserting immediately after the first sentence in subsection (a) the following new sentence: "As used in this section the term 'historic structures’ means residential structures which are registered in the National Register of Historic Places or which con- form to National Register criteria." (3) by inserting ", and except that an obligation financing the restoration or rehabilitation of a historic structure may be in an amount not exceeding $15,000" before the semicolon at the end of clause (1) in the first sentence of subsection (b); and (4) by inserting ": Provided further, That an obligation financing the restoration or rehabilitation of a historic structure may have a maturity not in excess of fifteen years and thirty-two days" before the semicolon at the end of clause (2) in the first sentence of subsection (b). 294 SECTION-BY-SECTION ANALYSIS The proposed bill would add provisions to Section 2(a) and (b) of the National Housing Act of 1934 (12 U.S.C. 1703) which authorizes Federal insurance of finan- cial institutions on loans made for alterations, repairs or improvements to homes. The law currently provides for maximum insurance of $5,000 for a single family residential unit, and up to $15,000 at an average of $2,500 for each dwelling unit in a multi-family struc- ture. The maximum term of such loans is currently fixed at seven years and 32 days. The proposed legislation would raise the maxi- mum loan insurance limitation to $15,000 per historic structure, even where the structure contains only one dwelling unit. The proposed bill would also extend the maximum loan period authorization for historic structures to fifteen years and 32 days. The proposed changes are designed to take into account the typically higher expenses of restoring and rehabilitating older historic structures. They are also designed to focus the attention of lending institutions upon the preservation of historic structures, which in many communities are deteriorating. Rehabilitation financed under the proposed new authority is to be carried out according to standards prescribed by the Secretary of the Interior and available to State and local officials, lending institutions and homeowners. Only structures listed in the National Register of Historic Places, or which conform to National Register criteria, are to be eligible properties for Federal insurance of financial institutions' improve- ment loans under the proposed amendments. 295 UNITED STATES OF AMERICA GENERAL SERVICES ADMINISTRATION WASHINGTON, D.C. 20405 GENERAL SERVICES fy ADMINISTRATION {Y 2d Dear Mr. [President/Speaker] : There is transmitted herewith, for referral to the appropriate Committee, a draft of legislation "To facilitate the preservation of historic monuments, and for other purposes." This draft legislation would transfer the authority to convey surplus land for historic monument purposes without monetary consideration, now found in section 13 (h) of the Surplus Property Act of 1944 (50 U.S.C. App. 1622(h)) to section 203 of the Federal Property and Administrative Services Act of 1949, and repeal section 13(h). Section 203 already contains somewhat similar provisions regarding conveyance of surplus real property for health and education and park and recreation purposes. The draft legislation would also make certain changes in the existing authority appli- cable to conveyances of surplus land for historic monument purposes, as more fully explained below. Section 13 (h) (3) (A) of the Surplus Property Act of 1944, as amended (50 U.S.C. App. 1622 (h) (3) (a)), currently provides that the deed of conveyance of surplus real property disposed of for historic- monument purposes shall provide that "...all such property shall be used and maintained for the purpose for which it was conveyed..." The Surplus Property Act now prohibits the use of any part of the property for purposes other than as a historic monument. As an example, if the exterior of a building conveyed under section 13 (h) of the Act had historical significance, the use of the interior of the building for shops or offices would not be permitted. Expenses of rehabilitation and maintenance 296 tend to be particularly high for older buildings. In certain cases, preservation of the site as a historic monument is feasible only if productive use can be made of the property or some portion of it. The productive use of the property for revenue-producing purposes would permit maintenance and development of the site as a historic monument. The proposed amendment would permit use of property conveyed as a historic monument for revenue-producing activities if the Secretary of the Interior (1) determines that such activities are compatible with use of the property for historic-monument purposes, (2) approves the grantee's plan for repair, rehab- ilitation, restoration and maintenance of the property, and (3) approves the grantee's plan for financing repair, rehabilitation, restoration and maintenance of the property. The draft bill provides that, if the conveyance of property for historic-monument purposes authorizes revenue-producing activities, the income received from the revenue-producing use of the property, after the grantee has recovered all costs of restoration and maintenance, shall be used by the grantee only for park or recreation purposes. The draft legislation provides for approval by the Secretary of the accounting and financial pro- cedures used by the grantee, and for periodic audit of the records of the grantee, directly related to the property conveyed. These provisions of the bill serve the dual purpose of providing a source of revenue for restoration and maintenance of the property conveyed, while at the same time insuring that any income in excess of that necessary to restore and maintain the property will be used by the grantee exclusively for park or recreation purposes. The Surplus Property Act presently provides that no property shall be determined suitable or desir- ‘able for use as a historic monument if its area exceeds that necessary for the preservation and 297 proper observation of "the historic monument situated thereon." This provision is retained in the draft bill, but the phrase "the historic monument situated thereon" has been changed to "its historic features" in order to make clear that a structure is not the only feature that may endow a property with historical significance. Subsurface archeological remains, earthworks, or simply the site or setting of signifi- cant past events, such as a battle, may be as worthy of preservation for historic monument purposes as a historic building. Although buildings will continue to be the usual kind of property conveyed, the law should not imply that the presence of a building on a property is an essential qualification for its conveyance for historic monument purposes. The Surplus Property Act presently provides that no property shall be determined to be suitable and desirable for historic monument purposes if "its historical significance relates to a period of time within fifty years immediately preceding". The draft bill eliminates this restriction. Generally accepted indices of historical significance, such as the National Register of Historic Places, permit inclusion of a property less than fifty years old if it is judged of exceptional importance. The surplus property laws should not set more stringent requirements. Events of great historical signifi- cance may well occur in buildings that become surplus before fifty years have passed. It would be unfortunate, for example, if historic places associated with the development of atomic energy or the space program could not be judged historic monuments because of existing restrictions. The Advisory Board on National Parks, Historic Sites, Buildings and Monuments has an administrative mechanism to insure that the less restrictive standard of the draft bill will not be abused. The Surplus Property Act presently provides that the deed of conveyance of any surplus property disposed of for historic-monument purposes shall provide that all such property shall be used and maintained for the purpose for which it was conveyed for a period 298 of not less than 20 years. In practice, GSA has required this continuance of use in perpetuity. The draft bill changes the statutory requirement from 20 years to perpetuity, conforming to practice. public Law 91-485, approved October 22, 1970, relating to conveyances of surplus property for park and recreational purposes, contains a similar requirement. We urge prompt introduction and enactment of the draft bill. The Office of Management and Budget has advised that there is no objection to the submission of this legislative proposal to the Congress and that its enactment would be in accord with the program of the President. Sincerely, /s/ Rod Kreger Acting Administrator Honorable Spiro T. Agnew President of the Senate washington, D.C. 20510 Honorable Carl B. Albert Speaker of the House of Representatives washington, D.C. 20515 299 A BILL To facilitate the preservation of historic monuments, and for other purposes. Be it enacted by the Senate and House of Rep- resentatives of the United States of America in Congress assembled, That section 203 of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 484), is further amended by redes- ignating section 203 (k) (3) as section 203 (k) (4) and by adding a new section 203 (k) (3) as follows: "(k) (3) Without monetary consideration to the United States, the Administrator may convey to any State, political subdivision, instrumentalities thereof, or municipality, all of the right, title, and interest of the United States in and to any surplus real and related personal property which the Secretary of the Interior has determined is suitable and desira- ble for use as a historic monument, for the benefit of the public. No property shall be determined to be suitable or desirable for use as a historic monument except in conformity with the recommendation of the Advisory Board on National Parks, Historic Sites, Buildings and monuments established by section 3 of the Act entitled 'An Act for the preservation of his- toric American sites, buildings, objects, and antiquities of national significance, and for other purposes, ' approved August 21, 1935 (49 Stat. 666), and only so much of any such property shall be so determined to be suitable or desirable for such use as is necessary for the preservation and proper observation of its historic features. " (A) The Administrator may author- ize use of any property conveyed under this subsection for revenue-producing activities if the Secretary of the Interior (i) determines that such activities are compatible with use of the property for historic monu- ment purposes, (ii) approves the grantee's plan for repair, rehabilitation, restoration and maintenance of the property, and (iii) approves the grantee's plan for financing repair, rehabilitation, restoration and maintenance of the property. The Secretary shall not approve a financial plan unless it provides that income in excess of costs of repair, rehabilitation, 300 restoration and maintenance shall be used by the grantee only for park or recreational purposes. The Administrator may not authorize any uses under this subsection until the Secretary has examined and approved the accounting and financial procedures used by the grantee. The Secretary may periodically audit the records of the grantee, directly related to the property conveyed. "(B) The deed of conveyance of any surplus real property disposed of under the provisions of this subsection-- (1) shall provide that all such property shall be used and maintained for his- toric monument purposes in perpetuity, and that in the event that the property ceases to be used or main- tained for that purpose, all or any portion of the property shall, in its then existing condition, at the option of the United States, revert to the United States; and (ii) may contain such addi- tional terms, reservations, restrictions, and conditions as may be determined by the Administrator to be necessary to safeguard the interests of the United States. "(C) 'States' as used in this sub- section, includes the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.” SECTION 2. Section 13(h) of the Surplus Property Act of 1944 (50 U.S.C. App. 1622 (h)) is repealed. 301 Jre—pem— a ge p= =e, = ep————— Ed - World Heritage Trust 303 WORLD HERITAGE TRUST In 1872, with the establishment of Yellowstone National Park, the United States gave the modern national park concept to the world. That concept is based on the principle that certain areas are of such unique natural, historical, or cultural value that they are a part of a heritage of an entire nation and must be preserved and managed for the benefit of all a nation's people. On a global scale, there are areas of such outstanding natural, historical, or cultural signif- icance that they are part of the heritage of all man- kind. Their protection and wise management is in the The United Nations has established a United Nations World List of National Parks and Equivalent Reserves. Developed and maintained by the International Union for Conservation of Nature and Natural Resources (IUCN), the List contains over 1,200 parks in 102 nations. Protection and wise management of these outstand- ing areas are in the interest of all nations. Unless effective national and international action is taken now, many of these areas may be lost or irrevocably damaged. THE PRESIDENT'S PROPOSAL The President has indicated that it would be fit- ting for all nations of the world to agree to the princi- ple that areas of unique worldwide value be treated as part of the heritage of all mankind and accorded special recognition as part of a World Heritage Trust. Such an arrangement would not impose limits on national sover- eignty but would extend international recognition to areas which qualify. Technical assistance would be available for protecting and managing such areas. The President has directed the Secretary of the Interior, in coordination with the Council on Environmental Quality and under the foreign policy guidance of the Secretary of State, to develop initia- tives for presentation in international forums to further the objective of a World Heritage Trust. With the approaching 1972 U.S. centennial cele- bration of the establishment of the national park system at Yellowstone, the President has stressed that it would be particularly fitting for this country to encourage international extension of the national park principle. 304 Environmental Institute 305 ENVIRONMENTAL INSTITUTE With the growing emphasis on environmental quality, policymakers at all levels of government are required to make increasingly difficult decisions--often involving massive expenditures in the public and private sectors. Too often they lack the information and the analytical resources to evaluate alternative ways of achieving our environmental goals. Also, the need to solve immediate problems often diverts Government agen-— cies' attention from the long-range consequences of, and possible alternatives to, current policies. Although the Federal Government supports university and private research, such support cannot create the same ongoing expertise as a permanent organi- zation with a continuing relationship to the Government. The size and complexity of environmental problems and the need for an interdisciplinary approach, building on a permanent "memory," make the formation of such a body particularly important. THE PRESIDENT'S PROPOSAL The President announced that the National Science Foundat ion and the Council on Environmental Quality will support the establishment of an Environmental Institute. The President expressed the hope that this nonprofit Institute will receive private, as well as public, finan- cial support. The Institute will have a permanent staff of experts to develop and analyze alternative public poli- cies and programs for reaching environmental goals. Through its studies, it will provide information to sup- port the policy functions of the Council on Environmental Quality and the implementation responsibilities of the Environmental Protection Agency. The Institute will not engage in laboratory research. Rather, its focus will be upon the application of various disciplines, including the social sciences, to environmental problems. In addition to meeting requests by Government agencies for policy analysis, the Institute will initiate research directed to solving long-range problems of environmental management. 7 sz 306 U. S. GOVERNMENT PRINTING OFFICE : 1971 O - 416-694 (028527452