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WATER—STATUTES AND LEGISLATIVE HISTORY 1527
KXV1KOX.MKXTAL 1'IiOTKCTIOX AGKXCY 1'K.KMITS
SEC. 102. (a) Except in relation to dredged material, as provided
for in section 103 of this title, and in relation to radiological, chemi-
cal, and biological warfare agents and high-level radioactive waste.
as provided for in section 101 of this title, the Administrator may
issue permits, after notice and opportunity for public hearings, for
the transportation from the United States or, in the case of an
agency or instrumentality of the United States, for the transporta-
tion from a locatioii outside the United States, of material for the
purpose of dumping it into ocean waters, or for the dumping of
material into the waters described in section 101 (b), where the Admin-
istrator determines that such dumping will not unreasonably degrade
or endanger human health, welfare, or amenities, or the marine
environment, ecological systems, or economic potentialities. The
Administrator shall establish and apply criteria for reviewing and
evaluating such permit applications, and, in establishing or revising
such criteria, shall consider, but not be limited in his consideration
to, the following:
(A) The need for the proposed dumping.
(B) The effect of such dumping on human health and welfare,
including economic, esthetic, and recreational values.
(C) The effect of such dumping on fisheries resources, plank-
ton, fish, shellfish, wildlife, shore lines and beaches.
(D) The effect of such dumping on marine ecosystems, par-
ticularly with respect to—
(i) the transfer, concentration, and dispersion of such
material and its byproducts through biological, physical, and
chemical processes,
(ii) potential changes in marine ecosystem diversity, pro-
ductivity, and stability, and
(iii) species and community population dynamics.
(E) The persistence and permanence of the effects of the dump-
ing.
(F) The effect of dumping particular volumes and concentra-
tions of such materials.
(G) Appropriate locations and methods of disposal or recy-
cling, including land-based alternatives and the probable impact
of requiring use of such alternate locations or methods upon con-
siderations affecting the public interest.
(H) The effect on alternate uses of oceans, such as scientific
study, fishing, and other living resource exploitation, and non-
living resource exploitation.
(I) In designating recommended sites, the Administrator shall
utilize wherever feasible locations beyond the edge of the Con-
tinental Shelf.
In establishing or revising such criteria, the Administrator shall con-
sult witli Federal. State, and local officials, and interested members
of the general public, as may appear appropriate to the Administrator.
With respect to such criteria as may affect the civil works program of
(he Department of the Army, the Administrator shall also consult
with the Secretary. In reviewing applications for permits, the Admin-
istrator shall make such provision for consultation with interested
Federal and State agencies as he deems useful or necessary. Xo per-
mit shall be issued for a dumping of material which will violate appli-
cable, water quality standards.
(b) The Administrator may establish and issue various categories
of permits, including: the general permits described in section 104(c).
[p. 3]
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1528 LEGAL COMPILATION—SUPPLEMENT I
(c) The Administrator may, considering the criteria established
pursuant to subsection (a) of this section, designate recommended sites
or times for dumping and, when he finds it necessary to protect critical
areas, shall, after consultation with the Secretary, also designate sites
or times within which certain materials may not be dumped.
(d) Xo permit is required under this title for the transportation
for dumping or the dumping of fish wastes, except when deposited in
harbors or other protected or enclosed coastal waters, or where the
Administrator finds that such deposits could endanger health, the
environment, or ecological systems in a specific location. Where the
Administrator makes such a finding, such material may IK- deposited
only as authorized by a permit issued by the Administrator under this
section.
('OKI'S OF KXGIXKKKS I'KUMITS
SKC. lo;i. (a) Subject to the provisions of subsections (b). (c).
and (d) of this section, the Secretary may issue permits, after notice
and opportunity for public hearings, for the transportation of dredged
material for the purpose of dumping it into ocean waters, where the
Secretary determines that the dumping will not unreasonably degrade
or endanger human health, welfare, or amenities, or the marine
environment, ecological systems, or economic potentialities.
(b) In making the determination required by subsection (a), the
Secretary shall apply those criteria, established pursuant to section
102(a), relating to the effects of the dumping. Based upon an evalua-
tion of the potential effect of a permit denial on navigation, economic
and industrial development, and foreign and domestic commerce of
the United States, the Secretary shall make an independent determi-
nation as to the need for the dumping. The Secretary shall also make
an independent determination as to other possible methods of disposal
and as to appropriate locations for tlie dumping. In considering appro-
priate locations, he shall, to the extent feasible, utilize the, recom-
mended sites designated by the Administrator pursuant to section
102(c).
(c) Prior to issuing any permit under this section, the Secretary
shall first notify the Administrator of his intention to do so. In any
ease in which the Administrator disagrees with the, determination of
the Secretary as to compliance, with the criteria established piu-suant
to section l()2(n) relating to the effects of the dumping or with the
restrictions established pursuant to section 102(c) relating to critical
areas, the determination of the Administrator shall prevail. Unless the
Administrator grants a waiver pursuant to subsection (d), the Secre-
tary shall not issue a permit which does not comply with such criteria
and with such restrictions.
(d) If. in any case, the Secretary finds that, in the disposition of
dredged material, there is no economically feasible method or site
available other than a dumping site the utilization of which would
result in non-compliance with the criteria established pursuant to sec-
tion 102(a) relating to the effects of dumping or with the restrictions
established pursuant to section 102(c) relating to critical areas, he
shall so certify and request a waiver from the Administrator of the,
specific requirements involved. Within thirty days of the receipt of
the waiver request, unless the Administrator finds that the dumping of
the material will result in an unacceptably adverse impact on munici-
pal water supplies, shell-fish beds, wildlife, fisheries (including spawn-
insr and breeding areas), or recreational areas, he shall grant the
waiver. [p ^
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WATER—STATUTES AND LEGISLATIVE HISTORY 1529
(e) In connection with Federal projects involving dredged material,
the Secretary may, in lien of the permit procedure, issue regulations
which will require the application to such projects of the same criteria,
other factors to be evaluated, the same procedures, and the same
requirements which apply to the issuance of permits under subsections
(a), (b), (c),and (d) of this section.
PERMIT CONDITIONS
SEC. lOi. (a) Permits issued under this title shall designate and
include (1) the type of material authorized to be transported for dump-
ing or to be dumped j (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; (5) any special provisions deemed necessary by the
Administrator or the Secretary, as the case may be, after consultation
with the Secretary of the Department in which the Coast Guard is
operating, for the monitoring and surveillance of the transportation or
dumping; and (6) such other matters as the Administrator or the
Secretary, as the case may be, deems appropriate.
(b) The Administrator or the Secretary, as the case may be, may
prescribe such processing fees for permits and such reporting require-
ments for actions taken pursuant to permits issued by him under this
title as he deems appropriate.
(c) Consistent with the requirements of sections 102 and 103, but in
lieu of a requirement for specific permits in such case, the Administra-
tor or the Secretary, as the case may be. may issue general permits for
the transportation for dumping, or dumping, or both, of specified
materials or classes of materials for which he may issue permits, which
he determines will have a minimal adverse environmental impact.
(d) Any permit issued under this title shall be reviewed periodically
and, if appropriate, revised. The Administrator or the Secretary, as
the case may be, may limit or deny the issuance of permits, or he may
alter or revoke partially or entirely the terms of permits issued by
him under this title, for the transportation for dumping, or for the
dumping, or both, of specified materials or classes of materials, where
he finds that such materials cannot be dumped consistently with the
criteria and other factors required to be applied in evaluating the per-
mit application. No action shall be taken under this subsection unless
the affected person or permittee shall have been given notice and oppor-
tunity for a hearing on such action as proposed.
(e) The Administrator or the Secretary, as the case may be, shall
require an applicant for a permit under this title to provide such infor-
mation a*s he may consider necessary to review and evaluate such
application.
(f) Information received by the Administrator or the Secretary, as
the case may be, as a part of any application or in connection with any
permit granted under this title shall be available to the public as a
matter of public record at every stage of the proceeding. The final
determination of the Administrator or the Secretary, as the case may
be, shall be likewise available.
(g) A copy of any permit issued under this title shall be placed in
a conspicuous place m the vessel which will be used for the transporta-
tion or dumping authorized by such permit, and an additional copy
shall be furnished by the issuing official to the Secretary of the depart-
ment in which the Coast Guard is operating, or its deslgnee.
[p. 5]
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1530 LEGAL COMPILATION—SUPPLEMENT I
PENALTIES
SEC. 105. (a) Any person who violates any provision of this title,
or of the regulations promulgated under tins title, or a permit issued
under this title 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 of such violation. In
determining the amount of the penalty, the gravity of the violation,
prior violations, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification
of a violation shall be considered by said Administrator. For good
cause shown, the Administrator may remit or mitigate such penalty.
Upon failure of the offending party to pay the penalty, the Adminis-
trator 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 sub-
section (a) of this section, a person who knowingly violates this
title, regulations promulgated under this title, or a permit issued
under this title 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 as shall the dumping from each of several vessels,
or other sources.
(d) The Attorney Genera! or his delegate may bring actions for
equitable relief to enjoin an imminent or continuing violation of this
title, of regulations promulgated under this title, or of permits issued
under 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.
(e) A vessel, except a public vessel within the meaning of section
13 of the Federal Water Pollution Control Act, as amended (33 U.S.C.
1163). used in a violation, shall be liable in rem for any civil penalty
assessed or criminal tine imposed and may be proceeded against in any
district court of the United States having jurisdiction thereof; but
no vessel shall be liable unless it shall appear that one or more of the
owners, or bareboat charterers, was at the time of the violation a con-
senting party or privy to such violation.
(f) If the. provisions of any permit issued under section 102 or 103
are violated, the Administrator or the. Secretary, as the case may be,
may revoke the permit or may suspend the permit for a specified period
of time. Xo permit shall be revoked or suspended unless the per-
mittee shall have teen given notice and opportunity for a hearing on
such violation and proposed suspension or revocation.
(g) (1) Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf to enjoin any
person, including the United States and any other governmental
instrumentality or agency (to the extent permitted by the eleventh
amendment to the Constitution), who is alleged to be in violation of any
prohibition, limitation, criterion, or permit established or issued by
or under this title. The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the parties, to
enforce such prohibition, limitation, criterion, or permit, as the case
nmy be' [p. 6]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1531
(2) No action may be commenced—
(A) prior to sixty days after notice of die violation has been
given to the Administrator or to the Secretary, and to any alleged
violator of the prohibition, limitation, criterion, or permit; or
(B) if the Attorney General has commenced and is diligently
prosecuting a civil action in a court of the United States to
require compliance with the prohibition, limitation, criterion, or
permit; or
(C) if the Administrator has commenced action to impose a
' penalty pursuant to subsection (a) of this section, or if the
Administrator, or the Secretary, has initiated permit revocation or
suspension proceedings under subsection (f) of this section; or
(D) if the United States has commenced and is diligently
prosecuting a criminal action in a court of the United States or
a State to redress a violation of this title.
(3) (A) Any suit under this subsection may be brought in the judi-
cial district in which the violation occurs.
(B) In any such suit under this subsection in which the United
States is not a party, the Attorney General, at the request of the
Administrator or Secretary, may intervene on behalf of the United
States as a matter of right.
(4) The court, in issuing any final order in any suit brought pur-
suant to paragraph (1) of this subsection may award costs of litigation
(including reasonable attorney and expert witness fees) to any party,
whenever 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, the Secretary, or a State agency).
(h) Xo person shall be subject to a civil penalty or to a criminal
fine or imprisonment for dumping materials from a vessel if such mate-
rials are dumped in an emergency to safeguard life at sea. Any such
emergency dumping shall be reported to the Administrator under
such conditions as he may prescribe.
RELATIONSHIP TO OTHER LAWS
SEC. 106. (a) After the effective date of this title, all licenses, per-
mits, and authorizations other than those issued pursuant to this title
shall be void and of no legal effect, to the extent that they purport
to authorize any activity regulated by this title, and -whether issued
before or after the effective date of this title.
(b) The piovisions of subsection (a) shall not apply to actions
taken before the effective date of this title under the authority of the
Rivers and Harbors Act of 1899 (30 Stat. 1151), as amended (33
U.S.r.401et. seq.).
(c) Prior to issuing any permit under this title, if it appears to the
Administrator that the disposition of material, other than dredged
material, may adversely affect navigation in the territorial sea of the
United States, or in the approaches to any harbor of the United States.
or may create an artificial island on the Outer Continental Shelf, the
Administrator shall consult with the Secretary and no permit shall
[p. 7]
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1532 LEGAL COMPILATION—SUPPLEMENT I
be issued if the Secretary determines that na\ igation will be unreason-
ably impaired.
(d) After the effective date of this title, no State shall adopt or
enforce any rule or regulation relating; to any activity regulated by
this title. Any State may. however, propose to the Administrator cri-
teria relating- to the dumping- of materials into ocean waters within its
jurisdiction, or into other ocean waters to the extent that such dumping
may affect waters within the jurisdiction of such State, and if the
Administrator determines, after notice and opportunity for hearing-,
that the proposed criteria are not inconsistent with the purposes of
this title, may adopt those criteria and may issue regulations to imple-
ment such criteria. Such determination shall be made by the Adminis-
trator within one hundred and twenty days of receipt of the proposed
criteria. For the purposes of this subsection, the term "State" means
any State, interstate or regional authority, Federal territory or Com-
monwealth or the District of Columbia.
(e) Nothing- in this title shall be deemed to affect in any manner or
to any extent any provision of the Fish and Wildlife Coordination
Act as amended (16 F.S.C. 661-666c).
ENFORCEMENT
SKC. 107. (a) The Administrator or the Secretary, as the case may
be, may, whenever appropriate, utilize by agreement, the personnel,
services and facilities of other Federal departments, agencies, and
instrumentalities, or State agencies or instrumentalities, whether on a
reimbursable or a nonreimbursable basis, in carrying out his respon-
sibilities under this title.
(b) The Administrator or the Secretary may delegate responsibility
and authority for reviewing and evaluating permit applications,
including the decision as to whether a permit will be issued, to an
officer of his agency, or he may delegate, by agreement, such respon-
sibility and authority to the heads of other Federal departments or
agencies, whether on a reimbursable or nonreimbursable basis.
(c) The Secretary of the department in which the Coast Guard is
operating shall conduct surveillance and other appropriate enforce-
ment activity to prevent unlawful transportation of material for
dumping, or unlawful dumping. Such enforcement activity shall
include, but not be limited to, enforcement of regulations issued by
him pursuant to section 108, relating to safe transportation, handling,
carriage, storage, and stowage. The Secretary of the Department in
which the Coast Guard is operating shall supply to the Administrator
and to the Attorney General, as appropriate, such information of
enforcement activities and such evidentiary material assembled as they
may require in carrying out their duties relative to penalty assess-
ments, criminal prosecutions, or other actions involving litigation pur-
suant to the provisions of this title.
KEGUI.ATION.s
SEC. 108. In carrying out the responsibilities and authority conferred
by this title, the Administrator, the Secretary, and the Secretary of
the department in which the Coast Guard is operating are authorized
to issue such regulations as tliev may deem appropriate.
" " [P- 8]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1533
INTERNATIONAL COOPERATION*
SEC. 109. The Secretary of State, in consultation with the Adminis-
trator, shall seek effective international action and cooperation to
insure protection of the marine environment, and may, for this pur-
pose, formulate, 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.
EFFECTIVE PATE AND SAVINGS PROVISIONS
SEC. 110. (a) This title shall take effect six months after the date of
the enactment of this Act.
(b) No legal action begun, or right of action accrued, prior to the
effective date of this title shall be affected by any provision of this
title.
SEC. 111. There are hereby authorized to be appropriated not to
exceed $3,600,000 for fiscal year 19T3, and not to exceed $5.500,000
for fiscal year 197-1, for the purposes and administration of this title,
and for succeeding fiscal years only such sums as the Congress may
authorize by law.
SEC. 112. The Administrator shall report annuallj', on or before
June 30 of each year, with the first report to be made on or before
June 30, 1973 to the Congress, on his administration of this title,
including recommendation'! for additional legislation if deemed neces-
sary.
TITLK II—COMPREHENSIVE RESEARCH ON OCEAN
DUMPING
SEC. 201. The Secretary of Commerce, in coordination with the
Secretary of the Department in which the Coast Guard is operating
and with the Administrator shall, within six months of the enactment
of this Act, initiate a comprehensive and continuing program of
monitoring and research regarding the effects of the dumping of
material into ocean waters or other coastal waters where the tide ebbs
and flows or into the Great Lakes or their connecting waters and shall
report from time to time, not less frequently than annually, his
findings (including an evaluation of the short-term ecological effects
and the social and economic factors involved) to the Congress.
SEC. 202. (a) The Secretary of Commerce, in consultation with
other appropriate Federal departments, agencies, and instrumentali-
ties shall, within six monthr, of the enactment of this Act, initiate a
comprehensive and continuing program of research with respect to
the possible long-range effects of pollution, overfishing, and man-
induced changes of ocean ecosystems. In carrying out such research,
the Secretary of Commerce shall take into account such factors as
existing and proposed international policies affecting oceanic prob-
lems, economic considerations involved in both the protection and the
use of the oceans, possible alternatives to existing programs, and ways
in which the health of the oceans may best be preserved for the benefit
of succeeding generations of mankind.
(b) In carrying out his responsibilities under this section, the Sec-
retary of Commerce, under the foreign policy guidance of the Presi-
dent and pursuant to international agreements and treaties made by
[p. 9]
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1534 LEGAL COMPILATION—SUPPLEMENT I
the President with the advice and consent of the Senate, may act
alone or in conjunction with any other 2iatipn or group of nations,
and shall make known the results of his activities by such channels of
communication as may appear appropriate.
(c) In January of each year, the Secretary of Commerce shall report
to the Congress on the results of activities undertaken by him pursuant
to this section during the previous fiscal year.
(d) Each department, agency, and independent instrumentality of
the Federal Government is authorized and directed to cooperate with
the Secretary of Commerce in carrying out the purposes of this sec-
tion and, to the extent permitted by law, to furnish such information
as may be requested.
(e) The Secretary of Commerce, in carrying out his responsibilities
under this section, "shall, to the__extent feasible utilize the personnel,
services, and facilities of other Federal departments, agencies, and
instrumentalities (including those of the Coast Guard for monitoring
purposes), and is authorized to enter into appropriate inter-agency
agreements to accomplish this action.
SEC. 203. The Secretary of Commerce shall conduct and encourage,
cooperate with, and render financial and other assistance to appropri-
ate public (whether Federal, State, interstate, or local) authorities,
agencies, and institutions, private agencies and institutions, and indi-
viduals in the conduct of, and to promote the coordination of. research,
investigations, experiments, training, demonstrations, surveys, and
studies for the purpose of determining means of minimizing or ending
all dumping of materials within five years of the effective data of this
Act.
SKC. 204. There are authorized to be appropriated for the first fiscal
year after this Act is enacted and for the next two fiscal years there-
after such sums as may be necessary to carry out this title, but the
sums appropriated for any such fiscal year may not exceed $0,000,000.
TITLE III—MARINE SANCTUARIES
SEC. 301. Notwithstanding the provisions of subsection (h) of sec-
tion 3 of this Act, the term "Secretary", when used in this title, means
Secretary of Commerce.
SEC. 302. (a) The Secretary, after consultation with the Secretaries
of State, Defense, the Interior, and Transportation, the Administra-
tor, and t!ie heads of other interested Federal agencies, and with the
approval of the President, may designate as marine sanctuaries those
areas of the ocean waters, as far seaward as the outer edge of the
Continental Shelf, as defined in the Convention of the Continental
Shelf (15 U.S.T. 74; TIAS 5578), of other coastal waters where the
tide ebbs and flows, or of the Great Lakes and their connecting waters,
which he determines necessary for the purpose of preserving or restor-
ing such areas for their conservation, recreational, ecological, or
esthetic values. The consultation shall include an opportunity to review
and comment on a specific proposed designation.
(b) Prior to designating a marine sanctuary which includes waters
lying within the territorial limits of any State or superjacent to the
subsoil and seabed within the seaward boundary of a coastal State,
as that boundary is defined in section 2 of title I of the Act of May 22,
1953 (67 Stat. 29), the Secretary shall consult with, and give due con-
sideration to the views of, the responsible officials of the State involved.
As to such waters, a designation under this section shall become effec-
[p. 10]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1535
tivc sixty days after it is published, unless the Governor of any State
involved shall, before the expiration of the sixty-day period, certify
to the Secretary that the designation, or a specified portion thereof,
is unacceptable to his State, in which case the designated sanctuary
shail not include the area certified as unacceptable until such time as
the Governor withdraws his certification of unacceptability.
(c) When a marine sanctuary is designated, pursuant to this sec-
tion, which includes an area of ocean waters outside the territorial
jurisdiction of the United States, the Secretary of State shall take
such actions as may be appropriate to enter into negotiations with
other Governments for the purpose of arriving at necessary agree-
ments with those Governments, in order to protect such sanctuary
and to promote the purposes for which it was established.
(d) The Secretary shall submit an annual report to the Congress,
on or before November 1 of each year, setting forth a comprehensive
review of his actions during the previous fiscal year undertaken pur-
suant to the authority of this section, together with appropriate rec-
ommendation for legislation considered necessary for the designation
and protection of marine sanctuaries.
(e) Before a marine sanctuary is designated under this section, the
Secretary shall hold public hearings in the coastal areas which would
be most directly affected by such designation, for the purpose of
receiving and giving proper consideration to the views of any
interested party. Such hearings shall be held no earlier than thirty
days after the publication of a public notice thereof.
(f) After a marine sanctuary has been designated under this sec-
tion, the Secretary, after consultation with other interested Federal
agencies, shall issue necessary and reasonable regulations to control
any activities permitted within the designated marine sanctuary, and
no permit, license, or other authorization issued pursuant to any other
authority shall be valid unless the Secretary shall certify that the
permitted activity is consistent with the purposes of this title and
can be carried out within the regulations promulgated under this
section.
(g) The regulations issued pursuant to subsection (f) shall be
applied in accordance with recognized principles of international law,
including treaties, conventions, and other agreements to which the
United States is signatory. Unless the application of the regulations
is in accordance with such principles or is otherwise authorized by
an agreement between the United States and the foreign State of
which the affected person is a citizen or, in the case of the crew of a
foreign vessel, between the United States and flag State of the vessel,
no regulation applicable to ocean waters outside the territorial juris-
diction of the United States shall be applied to a person not a citizen
of the United States.
SEC. 30J5. (a) Any person subject to the jurisdiction of the United
States who violates any regulation issued pursuant to this title shall
be liable to a civil penalty of not more than $50,000 for each such vio-
lation, to be assessed by the Secretary. Each day of a continuing viola-
tion shall constitute a separate violation.
(b) Xo penalty shall be assessed under this section until the person
charged has been given notice and an opportunity to be heard. Upon
failure of the offending party to pay an assessed penalty, the Attorney
General, at the request of the Secretary, shall commence action in the
appropriate district court of the United States to collect the penalty
and to seek such other relief as may be appropriate.
[p. 11]
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1536 LEGAL COMPILATION—SUPPLEMENT I
(c) A vessel used in the violation of a regulation issued pursuant to
this title shall be liable in rem for any civil penalty assessed for such
violation and may_ be proceeded against in any district court of the
United States having jurisdiction, thereof.
(d) The district courts of the United States shall have jurisdiction
to restrain a violation of the regulations issued pursuant to this title,
and to grant such other relief as may be appropriate. Actions shall be
brought by the Attorney General in the name of the United States,
either on his own initiative or at the request of the Secretary.
SEC. 304. There are authorized to be appropriated for the fiscal year
in which this Act is enacted and for the next two fiscal years thereafter
such sums as may be necessary to carry out the provisions of this title,
including sums for the costs of acquisition, development, and operation
of marine sanctuaries designated under this title, but the sums appro-
priated for any such fiscal year shall not exceed $10,000,000.
Approved October 23, 1972.
LEGISLATIVE HISTORY!
HOUSE REPORTS: No. 92-361 (Comm. on Merchant Marine and Fisheries) and
No. 92-1546 (Comm. of Conference).
SENATE REPORT No. 92-451 (Comm. on Commerce).
CONGRESSIONAL RECORD:
Vol. 117 (1971): Sept. 8, 9, considered and passed House.
Nov. 24, considered and passed Senate, amended.
Vol. 118 (1972): Dot. 13, Senate and House agreed to conference
report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS:
Vol. 8, No. 44 (1972): Oct. 28, Presidential statement.
[p. 12]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1537
1.32a(l) HOUSE COMMITTEE ON MERCHANT
MARINE AND FISHERIES
H.R. REP. No. 92-361, 92d Cong., 1st Sess. (1971)
MARINE PROTECTION, RESEARCH, AND SANCTUARIES
ACT OF 1971
JULY 17, 1971.—Committed to the Committee of the Whole House on the State of
the Union and ordered to be printed
Mr. GARMATZ, from the Committee on Merchant Marine and Fisheries,
submitted the following
REPORT
[To accompany H.R. 9727]
The Committee on Merchant Marine and Fisheries, to whom was
referred the bill (H.R. 9727) to regulate the dumping of material in
the oceans, coastal, and other waters, and for other purposes, having
considered the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert the following:
That this Act may be cited as the "Marine Protection, Research, and Sanctu-
aries Act of 1971".
FINDING, POLICY, AND PURPOSE
SEC. 2. (a) Unregulated dumping of material into the oceans, coastal, and
other waters endangers human health, welfare and amenities, and the marine
environment, ecological systems, and economic potentialities.
(b) The Congress declares that it is the policy of the United States to regulate
the dumping of all types of material into the oceans, coastal, and other waters
and to prevent or strictly 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 poten-
tialities. To this end, it is the purpose of this Act to regulate the transportation
of material 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.
DEFINITIONS
SEC. 3. For the purposes of this Act the term—
(a) "Administrator" means the Administrator of the Environmental Protec-
tion 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.
the Great Lakes and their connecting waters, and the Saint Lawrence River.
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1538 LEGAL COMPILATION—SUPPLEMENT I
(c> "Material" means matter of any kind or description, including, but not
limited to, dredge spoil, solid waste, garbage, sewage, sludge, munitions, radio-
logical, chemical, and biological warfare agents, radioactive materials, chemicals,
biological and laboratory waste, wrecked or discarded equipment, rock, sand,
excavation debris, and industrial waste; but such term does not mean oil within
the meaning of section 11 of the Federal Water Pollution Control Act, as amended
(33 U.S.C. 1161) and does not mean sewage from vessels within the meaning of
section 13 of such Act (33 U.S.C. 1163).
(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 entity, or any officer, employee,
agent, department, agency, or instrumentality of the Federal Government, of
any State or local unit of government, or of any foreign government.
(f) "Dumping" means a disposition of material: Provided, That it does not
mean a disposition of any effluent from any outfall structure where such disposi-
tion is regulated under the provision of the Federal Water Pollution Control Act,
as amended (33 U.S.C. 1151-1175), or under the provisions of section 13 of the
Rivers and Harbors Act of 1899, as amended (33 U.S.C. 407), nor does it mean
a routine discharge of effluent incidental to the propulsion of, or operation of
motor-driven equipment on, vessels: Provided further, That it does not mean
the construction of any fixed structure or artificial island nor the intentional
placement of any device in the oceans, coastal, and other waters or on or in the
submerged land beneath such waters, for a purpose other than disposal, when
such construction or such placement is otherwise regulated by Federal or State
law or occurs pursuant to an authorized Federal or State program : And provided
further, That it does not include the deposit of oyster shells or other material
when such deposit is made for the purpose of developing, maintaining, or harvest-
ing fisheries resources and is otherwise regulated by Federal or State law or oc-
curs pursuant to an authorized Federal or State program.
(g) "District court of the United States" includes the District Court of Guam.
the District Court of the Virgin Islands, the District Court of Puerto Rico, 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.
(h) "Secretary" means the Secretary of the Army,
(i) "Dredged or fill material" means any material excavated or dredged from
the navigable waters of the United States or any material deposited into such
waters for the purpose of bulkheading, or building up or extending land areas
(j) "High-level radioactive waste" means the aqueous waste resulting from
the operation of the first cycle solvent extraction system, or equivalent, and the
concentrated waste from subsequent extraction cycles, or equivalent, in a facility
for reprocessing irradiated reactor fuels, or irradiated fuel from nuclear power
reactors.
TITLE I—OCEAN DUMPING
PROHIBITED ACTS
SEC. 101. (a) No person shall transport any radiological, chemical, or bio-
logical warfare agent or high-level radioactive waste, or, except as may be
authorized in a permit issued under this title, any other material from the
United States for the purpose of dumping it into the oceans, coastal, and other
waters.
(b) No person shall dump any radiological, chemical, or biological warfare
agent or high-level radioactive waste, or, except as may be authorized in a permit
issued under this title, any other material in (1) that part of the oceans, coastal
and other waters which is within the territorial .-jurisdiction of the United States.
or (2) a zone contiguous to the territorial sea of the United States, extending to
a line twelve nautical miles seaward from the base line from which the breadth
of the territorial sea is measured, to the extent that it may affect the territorial
sea or the territory of the United States.
(c) No officer, employee, agent, department, agency, or instrumentality of the
United States shall transport any radiological, chemical, or biological warfare
agent or high-level radioactive waste, or, except as may be authorized in a per-
mit issued under this title, any other material from any location outside the
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WATER—STATUTES AND LEGISLATIVE HISTORY 1539
territory of the United States for the purpose of dumping it into the oceans,
coastal, and other waters.
ENVIEONMENTAL PROTECTION AGENCY PERMITS
SEC. 102. (a) Except in relation to dredged or fill material, as provided for in
section 103 of this title, and in relation to radiological, chemical, and biological
warfare agents and high-level radioactive waste, as provided for in section 101
of this title, the Administrator may issue permits, after notice and opportunity
for public hearing, for the transportation of material for dumping into the oceans,
coastal, and other waters, or for the dumping of material into the waters de-
scribed in section 101 (b), where the Administrator determines that such trans-
portation, or dumping, or both, will not unreasonably degrade or endanger human
health, welfare, or amenities, or the marine environment, ecological systems, or
economic potentialities. The Administrator shall establish and apply criteria for
reviewing and evaluating such permit applications, and, in establishing or re-
vising such criteria, shall consider, but not be limited in his consideration to, the
following:
(A) The need for the proposed dumping.
(B) The effect of such dumping on human health and welfare, including
economic, esthetic, and recreational values.
(C) The effect of such dumping on fisheries resources.
(D) The effect of such dumping on marine ecosystems, particularly with
respect to—
(i) the transfer, concentration, and dispersion of such material and
its byproducts through biological, physical, and chemical pathways,
(ii) potential changes in marine ecosystem diversity and stability, and
(iii) species and community population dynamics.
(E) The persistence and permanence of the effects of the dumping.
(F) The effect of dumping particular volumes and concentrations of such
materials.
(G) Appropriate locations and methods of disposal, including land-based
alternatives.
Tu establishing or revising such criteria, the Administrator shall consult with
the Secretaries of Commerce, Interior, State, Defense, Agriculture, Health, Edu-
cation, 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 Ad-
ministrator shall also consult with the Secretary. In reviewing applications for
permits, the Administrator shall make such provision for consultation with
interested Federal and State agencies as he deems useful or necessary. No permit
shall be issued for a dumping of material which will violate applicable water
quality standards.
(b) The Administrator may establish and issue various categories of permits,
including the general permits described in section 104(c).
(c) The Administrator may, considering the criteria established pursuant to
subsection (a) of this section, designate recommended sites or times for dumping
and, when he finds it necessary to protect critical areas, shall, after consultation
with the Secretary, also designate sites or times within which certain materials
may not be dumped.
COEPS OP ENGINEERS PEBMITS
SEC. 103. (a) The Secretary may issue permits, after notice and opportunity for
public hearing, for the transportation of dredged or fill material for dumping into
the oceans, coastal, and other waters, or for the dumping of dredged or fill mate-
rials into the waters described in section 101 (b), or both, where the Secretary
determines that such transportation, or dumping, or both, will not unreasonably
degrade or endanger human health, welfare, or amenities, or the marine environ-
ment, ecological systems, or economic potentialities.
(b) In making the determination required by subsection (a) of this section as to
whether a permit may be issued, the Secretary shall apply the criteria established
by the Administrator pursuant to section 102, together with an evaluation by
the Secretary of the effect on navigation, economic and industrial development, and
foreign and domestic commerce of the United States: Provided, That in applying
the criteria established by the Administrator, the Secretary shall consult with the
Adminisrator and shall give due consideration to the views and recommendations
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1540 LEGAL COMPILATION—SUPPLEMENT I
of the Administrator in that regard and also in regard to the designations of the
Administrator of recoineiided sites or times for dumping: Provided further, That
the Secretary may issue no permit for dumping which would violate the designa-
tion of the Administrator, found necessary to protect critical areas, of a site with-
in which certain material may not be dumped: And provided further, That in
regard to the designation of recommended sites or sites where certain material
may not be dumped, the Secretary, after consultation with the Administrator, need
not follow the designation of the Administrator where the Secretary certifies that
there is no economically feasible alternative reasonably available.
(c) In connection with Federal projects involving dredged or fill material,
the Secretary may, in lieu of the permit procedure, issue regulations which shall
require the application to such projects of the same criteria, other factors to be
evaluated, the same procedures, and the same requirement which are made ap-
plicable to the issuance of permits under subsections (a) and (b) of this
section.
PERMIT CONDITIONS
SEC. 104. (a) Permits issued under this title shall 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; (5) any special provisions deemed necessary
by the Administrator or the Secretary, as the case may be, for the monitoring
and surveillance of the transportation or dumping; and (6) such other matters as
the Administrator or the Secretary, as the case may be, deems appropriate.
(b) The Administrator or the Secretary, as the ca.-e may be, may prescribe
such processing fees for permits and such reporting requirements for actions
taken purhuant to permits issued by him under this title as he deems appropriate.
(c) Notwithstanding any other provision of this title, the Administrator or
the Secretary, as the case may be, may issue general permits for the transporta-
tion for dumping, or dumping, or both, of specified material for which he may
Issue permits, which he determines will have a minimal adverse environmental
impact.
(d) The Administrator or the Secretary, as the case may be, may limit or
deny the issuance of permits, or may alter or revoke partially or entirely the
terms of permits issued by him under this title, 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 and other factors
required to be applied in evaluating the permit application. 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.
(e) The Administrator or the Secretary, as the case may be, shall require an
applicant for a permit under this title to provide such information as he may
consider necessary to review and evaluate such application.
(f) Information received by the Administrator or the Secretary, as the case
may be, as a part of any application or in connection with any permit granted
under this title shall be available to the public as a matter of public record,
at every stage of the proceeding. The final determination of the Administrator
or the Secretary, as the case may be, shall be likewise available.
(g) A copy of any permit issued under this title shall be placed in a con-
spicuous place in the vessel which will be used for the transportation or dump-
ing authorized by such permit, and an additional copy shall be furnished by
the issuing official to the Secretary of the department in which the Coast Guard
is operating, or his designee.
PENALTIES
SEC. 105. (a) Any person who violates any provision of this title, or of the
regulations promulgated under this title, or a permit issued under this title 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. In determining the amount of the penalty, the gravity of the violation
and the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation shall be considered by said
Administrator. For good cause shown, the Administrator may remit or mitigate
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WATER—STATUTES AND LEGISLATIVE HISTORY 1541
such penalty. Upon failure of the offending party to pay the penalty, the Ad-
ministrator 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) of
this section, a person who knowingly violates this title, regulations promul-
gated under this title, or a permit issued under this title shall be fined not
more than $50,000 or imprisoned for not more than one year, or both, one-
half of said fine, but not to exceed $2,500, to be paid to the person or persons
giving information which shall lead to conviction.
(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
as shall the dumping from each of several vessels, or other sources.
(d) The Attorney General or his delegate may bring actions for equitable re-
lief to enjoin an imminent or continuing violation of this title, of regulations
promulgated under this title, or of permits issued under 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.
(e) A vessel, except a public vessel within the meaning of section 13 of the
Federal Water Pollution Control Act, as amended (33 U.S.C. 1163), used in a
violation, shall be liable in rem for any civil penalty assessed or criminal fine im-
posed and may be proceeded against in any district court of the United States
having jurisdiction thereof; but no vessel shall be liable unless it shall appear
that one or more of the owners, or bareboat charterers, was at the time of
the violation a consenting party or privy to such violation.
(f) If the provisions of any permit issued under section 102 or 103 are vio-
lated, the Administrator or the Secretary, as the case may be, 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.
(g)(l) Except as provided in paragraph (2) of this subsection, any person
may commence a civil suit on his own behalf to enjoin any person, including
the United States and any other governmental instrumentality or agency (to
the extent permitted by the eleventh amendment to the Constitution), who is
alleged to be in violation of any prohibition, limitation, criterion, or permit,
established or issued by or under this title. The district courts shall have juris-
diction, without regard to the amount in controversy or the citizenship of the
parties, to enforce such prohibition, limitation, criterion, or permit, as the
case may be.
(2) No action may be commenced—
(A) prior to sixty days after notice of the violation has been given to the
Administrator or to the Secretary, and to any alleged violator of the pro-
hibition, limitation, criterion, or permit; or
(B) if the Attorney General has commenced and is diligently prosecuting
a civil action in a court of the United States to require compliance with the
prohibition, limitation, criterion, or permit; or
(C) if the Administrator or the Secretary has commenced action to im-
pose a penalty pursuant to subsection (a) of this section, or has initiated
permit revocation or suspension proceedings under subsection (f) of this
section; or
(D) if the United States has commenced and is diligently prosecuting a
criminal action in a coxirt of the United States or a State to redress a viola-
tion of this title.
(3) (A) Any suit under this subsection may be brought in the judicial district
in which the violation occurs.
(B) In any such suit under this subsection in which the United States is not
a party, the Attorney General, at the request of the Administrator or Secretary,
may intervene on behalf of the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant to
pa rn graph (1) of this subsection may award costs of litigation (including rea-
sonable attorney and expert witness fees) to any party, whenever 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
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1542 LEGAL COMPILATION—SUPPLEMENT I
other relief (including relief against the Administrator, the Secretary, or a
State agency).
(h) No person shall be subject to a civil penalty or to a criminal fine or im-
prisonment for dumping materials from a vessel if necessary in an emergency,
to safeguard life. Any such dumping shall be reported to the Administrator under
such conditions as he may prescribe.
RELATIONSHIP TO OTHER LAWS
SBC. 106. (a) After the effective date of this title, all licenses, permits, and
authorizations other than those issued pursuant to this title shall be void and
of no legal effect, to the extent that they purport to authorize any activity regu-
lated by this title, and whether issued before or other the effective date of this
title.
(b) The provisions of subsection (a) shall not apply to actions taken before
the effective date of this title under the authority of the Rivers and Harbors Act
of 1899 (30 Stat. 1151), as amended (33 U.S.C. 401 etseq.).
(c) Prior to issuing any permit under this title, if it appears to the Adminis-
trator that the disposition of the material, other than dredged or fill material,
to be transported for dumping or to be dumped 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 and
no permit shall be issued if the Secretary determines that navigation will be
unreasonably impaired.
(d) After the effective date of this title, no State shall adopt or enforce any
rule or regulation relating to any activity regulated by this title. Any State may,
however, propose to the Administrator criteria relating to the dumping of
materials into the waters described in subsection 101 (b) which might affect
waters within the jurisdiction of such State and, if the Administrator deter-
mines, after notice and opportunity for hearing, that the proposed criteria are
not inconsistent with the purposes of this title, he may adopt those criteria and
may issue regulations to implement such criteria. Such determination shall be
made by the Administrator within one hundred and twenty days of receipt of
the proposed criteria. For the purposes of this subsection, the term "State"
means any State, interstate, or regional authority, Federal territory or Common-
wealth, or the District of Columbia.
(e) Nothing in this title shall be deemed to affect in any manner or to any
extent any provision of the Fish and Wildlife Coordination Act as amended
(16 U.S.C. 661-666c).
ENFORCEMENT
SEC. 107. (a) The Administrator or the Secretary, as the case may be, may
whenever appropriate, utilize by agreement, the personnel, services, and facilities
of other Federal departments, agencies, and instrumentalities, or State agencies
or instrumentalities, whether on a reimbursable or a nonreimbursable basis, in
carrying out his responsibilities under this title.
(b) The Administrator or the Secretary may delegate responsibility and
authority for reviewing and evaluating permit applications, including the deci-
sion as to whether a permit will be issued, to an officer of his 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 nonreimbursable
basis.
(c) The Secretary of the department in which the Coast Guard is operating
shall conduct surveillance and other appropriate enforcement activity to prevent
unlawful transportation of material for dumping, or unlawful dumping.
REGULATIONS
SEC. 108. In carrying out the responsibilities and authority conferred by this
title, the Administrator and the Secretary are authorized to issue such regulations
as they may deem appropriate.
INTERNATIONAL COOPERATION
SEC. 109. The Secretary of State, in consultation with the Administrator, shnll
seek effective international action and cooperation to insure protection of the
marine environment, and may, for this purpose, formulate, present, or support
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WATER—STATUTES AND LEGISLATIVE HISTORY 1543
specific proposals in the United Nations and other competent international or-
ganizations for the development of appropriate international rules and regulations
in support of the policy of this Act.
REPEAL OF OTHER LAWS
SEC 110 (a) The second proviso to the last paragraph of section 20 of the Act
of March 3, 1899 (30 Stat. 1154), as amended (33 U.S.C. 418), is repealed.
(b) Sections 1, 2, 3, 4, 5, 6, and 7 of the Act of June 29, 1888 (25 Stat. 209),
as amended (33 U.S.C. 441-451b), are repealed.
(c) Section 2 of the Act of August 5, 1886 (24 Stat. 329) (33 U.S.O. 407a), is
repealed.
EFFECTIVE DATE AND SAVINGS PROVISION
SEC. 111. (a) This title shall take effect six months after the date of the en-
actment of this Act.
(b) No legal action begun, or right of action accrued, prior to the effective date
of this title shall be affected by any provision of this title.
AmCHOBIZATION FOE APPROPRIATIONS
SEC. 112. There are 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 title.
TITLE II—COMPREHENSIVE RESEARCH ON OCEAN DUMPING
SEC. 201. (a) The Secretary of Commerce, in coordination with the Secretary
of the Department ia which the Coast Guard is operating and with the Ad-
ministrator shall, within six months of the enactment of this Act, initiate a com-
prehensive and coninuing program of monitoring and research regarding the ef-
fects of the dumping of material pursuant to title I of this Act, and shall from
time to time report his findings (including an evaluation of the short-term eco-
logical effects and economic factors involved) to the Congress.
(b) There are authorized to be appropriated for the fiscal year in which this
Act is enacted and for the next two fiscal years thereafter such sums as may be
necessary to carry out this section, but the sums appropriated for any such
liscal year may not exceed $1,000,000.
SEC. 202. (a) The Director, National Science Foundation, in consultation with
other appropriate Federal departments, agencies, and instrumentalities shall,
within six months of the enactment of this Act, initiate a comprehensive and
continuing program of research with respect to the possible long-range effects of
pollution, overfishing, and man-induced changes of ocean ecosystems. In carrying
out such research, the National Science Foundation shall take into account such
factors as existing and proposed international policies affecting oceanic problems,
economic considerations involved in both the protection and the use of the oceans,
possible alternatives to existing programs, and ways in which the health of the
oceans may best be preserved for the benefits of succeeding generations of man-
kind.
(b) In carrying out its responsibilities under this section, the National Science
Foundation, under the foreign policy guidance of the President and pursuant to
international agreements and treaties made by the President with the advice and
consent of the Senate, may act alone or in conjunction with any other nation or
group of nations, and shall make known the results of its activities by such
channels of communication as may appear appropriate.
(c) In January of each year, the National Science Foundation shall report to
the Congress on the results of activities undertaken by it pursuant to this title
during the previous year.
(d) Each department, agency, and independent instrumentality of the Federal
Government is authorized and directed to cooperate with the National Science
Foundation in carrying out the purposes of this title and, to the extent permitted
by law, to furnish such information as may be requested.
(e) The National Science Foundation, in carrying out its responsibilities under
this title, shall, to the extent feasible, by contract or other agreement, utilize the
personnel, services, and facilities of oth<"- Federal departments, agencies, ati'i
instrumentalities. r~. H-I
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1544 LEGAL COMPILATION—SUPPLEMENT I
(F) There are authorized to be appropriated for the fiscal year in which this
Act is enacted and for the next two fiscal years thereafter such sums as may be
necessary to carry out this section, but the sums appropriated for any such fiscal
year may not exceed $1,000,000.
TITLE III—MARINE SANCTUARIES
SEC. 301. Notwithstanding the provisions of subsection (h) of section 3 of this
Act, the term "Secretary", when used in this title, means Secretary of Commerce.
SEC. 302. (a) The Secretary, after consultation with the Secretaries of State,
Defense, Interior, and Transportation and the Administrator, may designate as
marine sanctuaries those areas of the oceans, coastal, and other waters, as far
seaward as the outer edge of the Continental Shelf, as defined in the Convention
on the Continental Shelf (15 U.S.T. 741; TIAS 5578), which he determines
necessary for the purpose of preserving or restoring such areas for their con-
servation, recreational, ecological, or esthetic values.
(b) Prior to designating a marine sanctuary which includes waters lying
within the territorial limits of any State or superjacent to the subsoil and seabed
within the seaward boundary of a coastal State, as that boundary is defined in
section 2 of title I of the Act of May 22, 1953 (67 Stat. 29), the Secretary shall
consult with, and give due consideration to the views of, the responsible officials
of the State involved. As to such waters, a designation under this section shall
become effective 60 days after it is published, unless the Governor of any State
involved shall, before the expiration of the 60-day period, certify to the Secretary
that the designation, or a specified portion, thereof, is unacceptable to his State, in
which case the designated sanctuary shall not include the area certified as un-
acceptable until such time as the Governor withdraws his certification of
unacceptability.
(c) When a marine sanctuary is designated, pursuant to this section, which
includes an area more than twelve miles from the baseline from which the
breadth of the territorial sea is measured, the Secretary of State shall take ac-
tion, as appropriate, to enter into agreements with other Governments, in order
to protect such sanctuary and promote the purposes for which it was established.
(d) The Secretary shall make his initial designation under this section within
two years following the date of enactment of this title. Thereafter, he shall
periodically designate such additional areas as he deems appropriate. The Sec-
retary shall submit a report annually to the Congress, setting forth a compre-
hensive review of his actions under the authority under this section, together
with appropriate recommendations for legislation considered necessary for the
designation and protection of marine sanctuaries.
(e) Before a marine sanctuary is designated under this section, the Secre-
tary shall hold public hearings in the coastal area which would be most directly
affected by such designation for the purpose of receiving and giving proper
consideration to the views of any interested party. Such hearings shall be held
no earlier than thirty days after the publication of a public notice thereof
(f) After a marine sanctuary has been designated under this section, the
Secretary shall issue necessary and reasonable regulations to control any activi-
ties permitted within the designated marine sanctuary, and no permit, license,
or other authorization issued pursuant to any other authority shall be valid
unless the Secretary shall certify that the permitted activity is consistent with
the purposes of this title :tnd can be carried out without the regulations promul-
gated under this section.
SEC. 303. (a) Whoever violates any regulation issued pursuant to this title
shall be liable to a civil penalty of not more than $50.000 for each such viola-
tion, to be assessed by the Secretary. Each day of a continuing violation shall
constitute a separate violation.
(b) No penalty shall be assessed under this section until the person charged
has been given notice and an opportunity to be heard. Upon failure of the offend-
ing party to pay an assessed penalty, the Attorney General, at the request of the
Secretary, shall commence action in the appropriate district court of the United
States to collect the penalty and to seek such other relief as may be appropriate.
(c) A vessel used in the violation of a regulation issued pursuant to this title
shall be liable in rem for any civil penalty assessed for such violation and may
be proceeded against in any district court of the United States having iui-is-
diction thereof.
(d) The district courts of the United States shall have jurisdiction to restrain
a violation of the regulations issued pursuant to this title, and to grant such
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WATER—STATUTES AND LEGISLATIVE HISTORY 1545
other relief as may be appropriate. Actions shall be brought by the Attorney
General in the name of the United States, either on his own initiative or at the
request of the Secretary.
SEC. 304. There are authorized to be appropriated for the fiscal year in which
this Act is enacted and for the next two fiscal years thereafter such sums as may
be necessary to carry out the provisions of this title, including sums for the costs
of acquisition, development, and operation of marine sanctuaries designated
under this title, but the sums appropriated for any such fiscal year shall not ex-
ceed $10,000,000.
PURPOSE OF THE LEGISLATION
The purpose of the'legislation is to prohibit unregulated dumping
of waste material into the oceans, coastal and other waters.
In accomplishing this purpose, the transportation and dumping of
radiological, chemical or biological warfare agents and high-level
radioactive wastes would be banned. There would also be a ban placed
upon the transportation and dumping of all other waste material, un-
less authorized by a permit to be issued by the Administrator of the
Environmental Protection Agency or the Secretary of the Army, as
the case may be.
LEGISLATIVE BACKGROUND
No one knows the volume of wastes that have been dumped into
the oceans in the past years. In fact, until a short time ago, the ques-
tion was scarcely asked and then only by an obscure breed of scien-
tists, known as ecologists.
The entire question of ocean disposal of waste material has recently
been thrust into prominence by the dumping of nerve gas and oil
wastes off the coast of Florida, by the dumping of sewage and other
municipal wastes off New York Harbor, and by a number of other and
similar instances, all of which were the subject of hearings and investi-
gation by this Committee during the 91st Congress.
In April of 1970, the Council on Environmental Quality, created as
a result of legislation reported by this Committee, was directed by the
President to make a study of ocean disposal of wastes. In October of
1970, the Council published its report to the President, entitled "Ocean
Dumping—A National Policy." The report forms the basis for this
legislation, and points up the immediacy and the severity of the prob-
lems that have been created and the critical need for a national policy
on ocean dumping.
As a part of his announced environmental program, the President
transmitted to Congress on February 10, 1971 legislation to implement
the recommendations of the Council's ocean dumping report. The ex-
ecutive communication was introduced by Congressman Edward A.
Garmatz, Chairman of the Committee, as H.R. 4723. Identical bills
were introduced by Congressmen Pelly, Kemp, Euppe, Chamberlain,
Gerald Ford, and Winn and cosponsored by Congressmen Mailliard,
Mosher, Grover, Keith, Goodling, Bray, McDonald of Michigan,
Forsythe, Bob Wilson, Michel and Broyhill of North Carolina. Thirty-
six other bills were introduced on the subject, some of which are simi-
lar to H.R. 4723 and some of which contain provisions and covers areas
not included in H.R. 4723.
Joint hearings were held on the legislation by the Subcommittee on
Oceanography and the Subcommittee on Fisheries and Wildlife Con-
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1546 LEGAL COMPILATION—SUPPLEMENT I
serration on April 5, 6, and 7, 1971. Subsequent to the hearings and
extensive executive sessions, the Subcommittees unanimously reported
to the full Committee a clean bill, H.R. 9727, which is in essence, H.R.
4723 with amendments. H.R. 9727 was introduced by Congressman
Garmantz and oosponsored by 24 other members of the Committee.
An identical bill to H.R. 9727 was introduced by Mrs. Sullivan, 10
other members of the Committee, and Mr. Frey.
The Committee was impressed by the wide range of witnesses testi-
fying at the hearing^ in support of the legislation. All the witnesses
were in favor of the purposes of the legislation although some con-
cern was expressed during and after the hearings by representatives on
behalf of the merchant shipping industry, the dredging industry, the
port authorities, and the chemical industry. The Committee believes
that the bill, as unanimously reported, satisfies all of the concerns ex-
pressed on behalf of the above mentioned interests.
As introduced, H.R. 4723 would vest in the Administrator of the
Environmental Protection Agency (EPA) authority to bar the trans-
portation of waste material for dumping into the oceans, coastal
waters and Great Lakes, except as might be authorized by permits is-
sued by the Administrator. It would also control the actual dumping
into that part of those waters within the jurisdiction of the United
States. In determining whether to approve a permit application, the
Administrator would be required to consider (1) the impact of dump-
ing on the marine environment and human welfare and (2) other pos-
sible locations and methods of disposal, including land-based alterna-
tives, but in no event would a permit be issued for a dumping in viola-
tion of applicable water quality standards. The Administrator would
be authorized to designate recommended sites for dumping of specified
materials. The Secretary of Army—through the Corps of Engineers—
would continue to exercise its authority regarding dredging, filling,
harbor works and maintenance of navigability, subject to a prior cer-
tification by the Administrator that the activity would conform to the
provisions of the Act and the regulations issued thereunder. The
AEC's authorities with respect to radioactive materials under the
Atomic Energy Act of 1954 would not be affected. However, the AEC
would be required to consult with EPA prior to issuing any permit to
conduct any activity otherwise regulated by this Act, and to comply
with standards set by the Administrator. Violators of the Act would
be subject to both civil and criminal penalties, with a maximum in each
case of $50,000 per offense.
H.R. 9727, as reported by the Committee, is an improved version of
the Administration bill, H.R. 4723. While it follows the scheme of
H.R. 4723. it would eliminate the exception provided to the AEC,
and would require it to comply with the requirements of the Act, just
as all other Federal agencies must do. Also, it would eliminate the
certification requirement imposed upon the activities regulated by the
Corps. In lieu thereof, the Corps would have to apply the criteria es-
tablished by the Administrator. The Corps would also be prohibited
from issuing permits for dumping which would violate the designa-
tion of critical areas by the Administrator, where no dumping of cer-
tain material could take place. However, after consultation with the
Administrator, the Corps could override the Administrator's designa-
tion if the Corps determined that no economically feasible alternative
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WATER—STATUTES AND LEGISLATIVE HISTORY 1547
would reasonably be available. In addition, the bill would impose an
absolute ban upon the dumping of radiological, chemical or biolog-
ical warfare agents and high-level radioactive wastes. The disposition
of any effluent from outfall structures would be excluded by the Act
to the extent that such disposition were otherwise regulated by the
Federal Water Pollution Control Act or the 1899 Refuse Act. Also,
the bill would authorize a part of the criminal fines to be paid to per-
sons giving information leading to conviction under the Act, subject
to an overall limitation of $2500 per offense. The Attorney General
would be given authority to seek injunctions to prevent violations of
the Act, and private citizens would be given similar powers.
Additionally, H.R. 9727 contains two new titles. Title II would pro-
vide authority for short-range research by the Secretary of Commerce
on the environmental effects of ocean dumping within an appropria-
tion limitation of $1 million for each of three years. It would also
authorize the National Science Foundation to develop a comprehen-
sive and continuing research program with respect to the possible
long-range effects of pollution, overfishing, and man-induced changes
of ocean ecosystems, within an appropriation limitation of $1 million
for each of three years. Title III of the bill would authorize the, Sec-
retary of Commerce to establish marine sanctuaries in cooperation
with the affected States and, where necessary, with the governments
of other countries. The authorization under this title—including costs
of acquisition, development, and operation of marine sanctuaries—•
would be limited to $10 million for each of three years.
H.R. 9727, with an amendment, was ordered reported by the Com-
mittee unanimously by voice vote, a quorum being present.
BACKGROUND AND NEED FOR THIS LEGISLATION
The oceans, covering nearly three-quarters of the world's
surface, are critical to maintaining our environment, for they
contribute to the basic oxygen-carbon dioxide balance upon
which human and animal life depends. Yet man does not treat
the oceans well. He has assumed that their capacity to absorb
wastes is infinite, and evidence is now accumulating on the
damage that he has caused. Pollution is now visible even on
the high seas—long believed beyond the reach of man's harm-
ful influence. In recent months, worldwide concern has been
expressed about the dangers of dumping toxic wastes in the
oceans. (Richard M. Nixon, transmitting "Ocean Dumping—
A National Policy" to the Congress, October 1970).
No one knows how long we can continue to pollute the
seas with chlorinated hydrocarbon insecticides, polychlori-
nated biphenyls, and hundreds of thousands of other pollut-
ants without bringing on a world-wide ecological disaster.
Subtle changes may already have started a chain reaction in
that direction. The true costs of our environmental destruc-
tion have never been subjected to proper accounting. The
credits are localized and easily demonstrated by the bene-
ficiaries, but the debits are widely dispersed and are borne
by the entire population through the disintegration of phys-
ical and mental health, and, even more importantly, by the
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1548 LEGAL COMPILATION—SUPPLEMENT I
potentially lethal destruction of ecological systems. Despite
social, economic, and political barriers to proper ecological
accounting, it is urgent and imperative for human society to
get the books in order. (Ehrlich, Paul E. and Anne H., in The
Food-From-the-Sea Myth, Saturday Review, April 4, 1970.).
These parallel quotations from sources which are rarely found in
conjunction indicate the almost complete current unanimity of con-
cern for the protection of the oceans from man's depredations. In the
hearings before this Committee, the witnesses were unanimous in
their support for the purposes of this legislation. No argument was
raised by any witness as to the desirability of creating a system of
protection from unregulated dumping of waste material into the
oceans.
Jacques-Yves Cousteau, famed scientist and oceanographer, pro-
vided a statement underscoring the critical nature of the issues before
the Committee:
Because 96 percent of the water on earth is in the ocean,
we have deluded ourselves into thinking of the seas as enor-
mous and indestructible. We have not considered that earth
is a closed system. Once destroyed, the oceans can never be
replaced. We are obliged now to face the fact that by using it
as a universal sewer, we are severely over-taxing the ocean's
powers of self-purification.
The sea is the source of all life. If the sea did not exist, man
would not exist. The sea is fragile and in danger. We must
love and protect it if we hope to continue to exist ourselves.
(Hearings, Page 162)
The visible pollution on the high seas, referred to in the President's
message, was described vividly by Thor Heyerdahl, who stated just
a year ago that he had found evidence of pollution and dumping of
materials throughout his trip from Africa to the West Indies. These
issues formed the focus and background for the hearings on the Ad-
ministration's ocean dumping legislation.
TITLE I
Title I of H.R. 9727 deals with the problems addressed by the Ad-
ministration's proposal: the dumping of materials into United States
waters, and the transportation for dumping of materials from the
United States by anyone and the transportation for dumping from
any place in the world by Federal agencies. Title I provides a com-
prehensive system for the regulation of these activities.
The major impact of this legislation will be felt in the coastal and
estuarine areas along this nation's shores. This is highly appropriate,
since the quality of these waters will have a major effect on United
States commercial and sport fishing activities, as well as upon that
portion of the oceans which most directly affects the citizens of this
country.
Man has long been accustomed to treat the oceans as an infinite_re-
source, providing food supplies and recreation to whoever requires
them, whenever they require them. This is clearly not the case: these
resources are very far from being infinite. Dr. John Ryther at the
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WATER—STATUTES AND LEGISLATIVE HISTORY 1549
Woods Hole Oceanographic Institution has calculated, in a widely
circulated article, that the total annual sustained yield from the
world's fisheries, assuming that these fisheries do not change substan-
tially in their nature, is roughly 100 million metric tons. In his
calculations, Dr. Eyther did not, because he could not, take account of
the effects of wide scale pollution upon these resources. The Food
and Agriculture Organization of the United Nations, in its most recent
yearbook of fisheries statistics, indicated that for the first time since
World War II, the total world catch of fisheries declined in 1969 by
over one million metric tons, from 64.3 to 63.1 million metric tons.
We do not have enough information to say whether this ominous
decline should be attributed to pollution, to overfishing, or to other
factors, alone or in combination. We can, however, say that so long as
the possibility exists that there is a relationship between pollution
and the declining fish catch (and there clearly is), it seems to the
Committee only a prudent exercise of environmental good manners to
begin to cut back the rate of disposition of waste into the world's
oceans.
Relying heavily upon an extensive report by the Dillingham Cor-
poration for the Department of Health, Education, and Welfare, the
CEQ report "Ocean Dumping—A National Policy" (II. Doc. 91-399)
cited a wealth of facts and figures to support its strong recommenda-
tions that the United States should limit, and in some cases, absolutely
ban the dumping of materials into the oceans. The report indicated,
for example, that over 48 million tons of waste were dumped into the
oceans from the United States in 1968 (the last year for which figures
were available). It pointed out that these figures were incomplete since
there were certainly a number of kinds of dumping that could not be
identified. The major contributors to the materials thus disposed of
were dredge spoils (over 38 million tons), industrial wastes and sew-
age sludge (each over 4 million tons).
These figures, indicating the weight of materials disposed of, do not
take account of materials of relatively low weight but high toxicity,
such as radioactive wastes and chemical and biological warfare agents.
These latter would include materials such as herbicides and nerve gas
(recently considered in detail by this Committee in hearings in August
of 1970), and pose a hazard of unknown but substantial dimensions.
Together with high-level (or "hot") radioactive wastes, these were
considered so hazardous by your Committee that it recommended leg-
islation to provide an absolute ban—not even EPA would be per-
mitted to authorize their disposal at sea. This result was similarly
recommended in the CEQ report on ocean dumping already referred
to.
It might be noted also that in placing an absolute ban upon the
dumping of high-level radioactive waste, the Committee would cer-
tainly not wish to encourage the dumping of any other radioactive ma-
terials. The Committee was impressed with papers submitted to it by
Dr. Jerold Lowenstein of the Oceanic Society on the potential hazards
of radioactive pollution of the oceans (Hearings, Page 373). It should
also be noted that the AEC spokesman who testified on the legislation
indicated that very little radioactive material has been dumped into
the oceans in recent years and that the AEC did not contemplate ex-
panding its program in this regard.
[p. 13]
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1550 LEGAL COMPILATION—SUPPLEMENT I
The entire issue was put into perspective on the opening day of the
hearings in a reference to a question raised by a scientist at the 1970
Conference on the Oceans in Malta (Pacem In Maribus Conference),
who wondered aloud if perhaps the highest and best use of the oceans
might not be to serve as a dump for man's wastes. Considering this end
and the many other issues raised in the course of the hearings, it seems
fair to say that the Committee wished to emphasize its answer to that
question as a very large "No".
A recent study by the Massachusetts Institute of Technology defini-
tively shows that, at least for coastal cities, the "cheapest" place to
dispose of wastes is in the ocean. Many cities have been doing this for
years. Last Fall, this Committee held hearings on New York City's
extensive dumping of wastes off Sandy Hook, as the "least cost" avail-
able alternative. It is apparent, however, that economics do not tell the
entire story. A number of non-economic costs are also associated with
this technique of disposal, which Ave are now beginning to identify
with more clarity: visual blight, destruction or decimation of fisheries
and even the poisoning of human beings.
H.I!. 9727 will enable this country to restore a proper balance be-
tween its economic and environmental values, as these relate to ocean
dumping. It is clear that ports and harbors cannot be allowed to silt
up and that cities cannot be permitted to strangle in their own waste
production, but neither can these problems be resolved at the cost of
threatening a critical resource for life on this planet. In this bill we
give to the agencies of Government tools with which they can balance
these values.
The Committee wishes to emphasize its awareness that the types of
problems with which H.E. 9727 deals are global in nature. We are
not so blind as to assume that in dealing with the problems created by
•our own ocean dumping activities, we are thereby assuring the protec-
tion of the world's oceans for all mankind. Other nations, already
moving to grapple with these troublesome issues, also will and must
play vital roles in this regard.
At the same time, however, your Committee recognizes that the
United States has been heavily involved in ocean dumping activities
and that the kinds of materials that our highly industrialized, com-
mercial nation may be forced to dispose of may be particularly hazar-
dous to the health of the oceans. Even more importantly, we believe
strongly that someone must take the first steps.
This we believe we have done in this legislation.
TITLE II
Closely aligned to the problem of slowing down the rate of ocean
disposal of wastes is the need for a clearer understanding of the con-
sequences of this activity, both as to short and long term effects. For
this reason, the Committee added a new title to the bill to direct Gov-
ernment agencies to encourage the study and discussion of these
broader questions. Title II authorizes and directs the Secretary of
Commerce, acting through the National Oceanic and Atmospheric Ad-
ministration, and in cooperation with other agencies already involved
in this area, to develop a program of research on the effects of ocean
dumping, as authorized by H.R. 9727. It is assumed that the EPA,
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WATER—STATUTES AND LEGISLATIVE HISTORY 1551
which is already studying alternatives to ocean dumping, will work
closely with NOAA on this problem.
Another troublesome issue, even more difficult to define, relates to
the need for some system of monitoring of the world's oceans, with a
view to identifying new problems before they become full-blown crises.
For example, it was not until years after the wide-scale introduction
of DDT that scientists discovered this compound in animals in Antarc-
tica, thousands of miles from places where DDT was actually applied;
scientists are now beginning to discuss the pollution potential of poly-
chlorinated biphenyls (PCB's) as a global pollutant of significant
dimensions, widely dispersed in the biosphere.
Some method must be established to provide an "early warning sys-
tem" for these types of problems and others which might otherwise
have been identified as such before they had acquired so much momen-
tum that they would have become virtually unstoppable. This type of
early warning system cannot and should not be established by any
one nation, or group of nations. All mankind is vitally concerned
with the health of the oceans and this nation can only support such
an effort as a willing participant. Title II provides a mechanism by
which NOAA and the National Science Foundation may participate
in such an effort, providing funds and encouraging and urging the
widest possible dissemination of the information so derived.
It is a step only, but it is a long step in the right direction.
TITLE III
Title III deals with an issue which has been of great concern to the
Committee for many years: the need to create a mechanism for pro-
tecting certain important areas of the coastal zone from intrusive
activities by man. This need may stem from the desire to protect scenic
resources, natural resources or living organisms; but it is not met by
any legislation now on the books. This title will permit the Secretary
of Commerce, acting through NOAA, to designate certain areas up to
the edge of the Continental Shelf as marine sanctuaries, subject only
to the powers of the Governors of the coastal states to approve or dis-
approve such portions of the proposed sanctuaries as may lie within
the boundaries of those states' territorial jurisdiction. It also provides
adequate sanctions to permit the Secretary to regulate these
sanctuaries.
The pressures for development of marine resources are already
great and increasing. It is never easy to resist these pressures and yet
all recognize that there are times when we may risk sacrificing long-
term values for short-term gains. The marine sanctuaries authorized
by this bill would provide a means whereby important areas may be
set aside for protection and may thus be insulated from the various
types of "development" which can destroy them.
SECTIOX-BY-SECTION ANALYSIS
Section 1. The Act may be cited as the "Marine Protection, Re-
search, and Sanctuaries Act of 1971".
Section 2. This section makes findings as to the dangers presented by
the unregulated dumping of materials into the oceans, coastal, and
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1552 LEGAL COMPILATION—SUPPLEMENT I
other waters, and declares congressional policy that the United States
should regulate the dumping into those waters of all types of ma-
terials, and should prevent where possible the dumping of any ma-
terial which could adversely affect the human and marine environment.
The purpose of the Act is, therefore, declared to be the regulation of
the transportation of material for dumping into the oceans, coastal,
and other waters, and as to those waters within the jurisdiction of the
United States, to regulate the dumping whether from a source in the
United States or from outside.
Section 3. This section defines the various terms used in the bill.
(a) The term "Administrator" means the Administrator of the
Environmental Protection Agency.
(6) "Oceans, coastal, and other waters" includes all oceans, gulfs,
and bays, whether or not outside the territory of the United States,
and coastal waters reaching inland to the point where the tide ebbs
and flows. It further includes the Great Lakes, the connecting waters
between those lakes, such as the St. Clair and St. Mary's Rivers. It also
includes the St. Lawrence River.
(c) "Material" means matter of any kind or description, except for
oil, as that term is defined in section 11 of the Federal Water Pollution
Control Act, as amended, and sewage from vessels within the mean-
ing of section 13 of the same Act. These two exceptions are made be-
cause those two materials are considered to be adequately regulated
under the cited Act.
(d) In a geographical sense, the term "United States" extends to
the several States, Puerto Rico, the Canal Zone, the District of Colum-
bia, the territories and possessions of the United States, including
Guam, and the Trust Territory of the Pacific Islands.
(e) The term "person" includes any private person or entity, such
as a corporation or partnership, and any officer, employee, agent, de-
partment, agency or instrumentality of the Federal Government, of a
State or local unit of government, or of a foreign government.
(/) The term "dumping" refers to any disposal of material. It does
not, however, include the disposal of material from outfall structures
where the disposal from those structures is regulated under either the
Federal Water Pollution Control Act or the Refuse Act of 1899. Out-
fall structures are considered to be identifiable, artificial, or artifically
adapted natural discharge of effluents which are transmitted either
from facilities located on shore or from artificial islands or other fixed
structures located offshore. "Outfall structures" do not include the pri-
mary means of dredging. In addition, "dumping" does not include the
routine discharge of effluent which is incidental to the propulsion of
vessels or which results in a discharge of effluent overboard from the
operation of motor-driven equipment of vessels, such as power winches.
Further, "dumping" does not include the placement of construction
materials in the construction of any fixed structure or artificial island,
nor does it include the intentional placement of a device either in the
waters covered by the bill or on or in the submerged land beneath
such water, if the placement of the device is for a purpose other than
mere disposal, and if the placement of the construction material or the
device is otherwise regulated, either by an appropriate Federal or State
statute, or as a part of an authorized Federal or State program. Finally,
"dumping" does not include the deposit of oyster shells or other mate-
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WATER—STATUTES AND LEGISLATIVE HISTORY 1553
rial for the purpose of developing, maintaining or harvesting fisheries
resources, if the deposit of the oyster shells or other materials is either
regulated by appropriate Federal or State statutes, or occurs as a part
of an authorized Federal or State program.
(g) "District Court of the United States" includes the District
Courts of Guam, the Virgin Islands, Puerto Eico, and the Canal Zone
and, in relation to American Samoa and the Trust Territory of the
Pacific Islands, the District Court for the District of Hawaii.
(7;) "Secretary" means, except for Title III of the bill, the Secretary
of the Army.
(i) "Dredged or fill material" means that material which is taken
from navigable waters for purposes of disposal or deposited in those
waters for the purpose of building up land areas.
(j) "High-level radioactive waste," as defined in the statute, is in-
tended to refer to the physically and radioactively "hot" material, often
with a half-life extending into the thousands of years, which is pro-
duced as a result of refining fuel cores for nuclear reactors. In recent
months, the problems associated with the disposal of these materials
has become acute, and the State of Kansas is presently engaged in a
dispute with the Atomic Energy Commission as to the proper place
and method of disposing of high-level radioactive wastes; the AEC
wishes to dispose of these in an abandoned Kansas salt mine, and the
State strongly prefers another location. This definition, coupled with
the prohibitions contained in Section 101, is intended to assure that,
wherever these and similar wastes are ultimately placed, they will not
be disposed of in the oceans.
TITLE I OCEAN" DU3IPIXG
Prohibited Acts
Section 101 (a). This subsection prohibits the transportation from
the United States for the purpose of dumping into the oceans, coastal,
or other waters of any radiological, chemical or biological warfare
agents and, as stated above, high-level radioactive wastes. This would
prohibit the dumping of herbicide compounds intended for use in war-
fare activities, and would further bar the dumping of nerve gases,
as occurred last Fall off the cost of Florida. As to these materials, no
permit could lawfully be issued by the Administrator; as to all other
materials, as defined in the Act, these might be transported for dump-
ing only pursuant to a permit issued under the provisions of section
102,103 or 104 of this title.
(b) This subsection prohibits the dumping, whatever the origin or
source, into the territorial waters of the United States covered by the
bill, or into the contiguous zone, to the extent that the dumping in the
contiguous zone may affect the territorial sea or territory of the United
States, of any radiological, chemical, or biological warfare agent or
high-level radioactive waste. It also prohibits the dumping of any
other material covered by the bill whatever its origin or source, into
the same waters, except as authorized in a permit issued under sec-
tion 102,103 or 104 of this title.
(c) This subsection prohibits the transportation of any radiological,
chemical, or biological warfare agent or high-level radioactive waste
by any Federal employee or agency from a source outside the United
States for dumping into the waters covered by this bill. It also bars a
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1554 LEGAL COMPILATION—SUPPLEMENT I
Federal employee or agency from transporting any other material for
dumping info these waters from a location outride the territory of the
United States, except as may be authorized by a permit,
EPA Permits
Section 102 (a) This section authorizes the Administrator of the En-
vironmental Protection Agency to issue permits (A) for the transpor-
tation of material, other than (1) material banned in section 101 and
(2) dredge or fill material, for dumping into the ocean, coastal, or other
waters, or (B) for the dumping of such material into waters within
the territorial jurisdiction of the United States, or into the contiguous
zone to the extent that the dumping in the contiguous zone may affect
the territorial sea or territory of the United States. Before issuing the
permit, the Administrator must give notice and an opportunity for
public hearings. The Committee intends that this notice shall be made
to the public and shall provide a reasonable period of time within
which interested persons may express their views concerning the per-
mit application. In the event that the Administrator determines that
a new question is presented, that the implications of granting or deny-
ing a permit or significant or that there is substantial public interest
in the application, it is expected that he will hold a public hearing be-
fore reaching a determination as to whether a permit should be issued
and if so, what the terms of the permit should be. In addition, the is-
suance of a permit may come only after the potential permittee has
shown that the proposed activity will not unreasonably degrade or en-
danger human health, welfare, or amenities, or the marine environ-
ment, ecological systems (which includes fish and other resources), or
the economic potentialities which Avould be affected by the permitted
activity.
In order to make the above required determination, the Administra-
tor is required to establish and apply certain criteria for reviewing and
evaluating permit applications, and in the establishment of such cri-
teria or revisions thereof, the Administrator is required to consult with
all interested Federal departments. To the extent that the criteria may
affect the civil works program of the Army, he is specifically required
to consult with the Secretary of the Army. The criteria as established
or revised must take into account, but need not be limited to, the need,
the effect on human health and welfare, the effect on fisheries resources,
and the effect on marine ecosystems of dumping, as well as the persis-
tence and permanence of the effects, the effect of particular volumes
and concentrations of materials, an evaluation of appropriate alterna-
tive locations and methods of disposal, and the possible effects of deny-
ing a requested permit.
In addition to the application of established criteria, and the oppor-
tunity for public hearings, the Administrator is required to consult
with interested Federal and State agencies as he deems useful or
necessary.
Finally, and regardless of the other factors already described, the
Administrator is forbidden by this Act to issue a permit for a dump-
ing of material which will violate applicable water quality standards.
In the event that such a permit were issued, it would terminate upon a
finding that it did in fact violate such standards; similarly, permits
would have to be issued only with the understanding that water qnal-
[p. 18]
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WATER STATUTES AND LEGISLATIVE HISTORY 1555
iry standards can and do change, and that these may later result in the
modification of permits which were perfectly proper when issued but
which have, become improper because the standards in question were
later strengthened. Permit "rights" under this Act are in no sense
''vested rights".
(b) The Administrator may establish and issue various categories of
permits.
(c) Considering the criteria previously established pursuant to sub-
section (a), the Administrator may designate sites or times which he
recommends for dumping, and, when he finds it necessary to protect
critical areas, shall also designate sites and times within which certain
materials may not be dumped. The Committee is of the strong opinion
that certain areas are so critical that it may be necessary for the Ad-
ministrator to prohibit the dumping either of all material, or of cer-
tain kinds of material that may affect that area. The types of areas the
Committee has in mind are shellfish beds, breeding or spawning areas,
highly susceptible resort beaches, and similar areas. The language of
the section makes it clear that this action to create, in effect, "pro-
hibited areas" for dumping certain materials is to be used with cir-
cumspection. The Administrator is not expected to create "prohibited
areas" unless and until he finds that such action is necessary to protect
these areas. It follows that the extent of the areas so designated should
be no greater than necessary and that the specific material banned for
dumping in the designated area must be of a type which would affect
the area to an unacceptable degree were it to be introduced therein.
Prior to designating "prohibited areas," it is intended that the Admin-
istrator consult with the Secretary of the Army if the banned materials
concern a permit program for which the Secretary is responsible under
this Act.
Corps of Engineers 'permits
Section 103. (a) This section authorizes the Secretary of the Army
to issue permits for the transportation of dredged or fill material for
dumping into the oceans, coastal, and other waters, or permits for the
dumping of such material into such waters within the territorial
jurisdiction or contiguous zone of the United States. The contiguous
zone dumping permit requirement is involved only to the extent that
the dumping may affect the territorial sea or territory of the United
States. Before issuing the permit, the Secretary must give notice and
an opportunity for public hearings in the same manner as described
with respect to section 102. In addition, the issuance of the permit may
come only after the Secretary determines that the activity permitted
will not unreasonably degrade or endanger human health, welfare or
amenities, or marine ecological and environmental systems (which in-
cludes fish and other resources) or the economic potentialities which
would be affected by the permitted activity. In order to make that
determination, the Secretary is required to apply the criteria estab-
lished by the Administrator of the Environmental Protection Agency
pursuant to section 102. He is further required to evaluate the effect on
navigation, economic and industrial development, and foreign or do-
mestic commerce of the United States which a denial of a permit re-
quest would have. In applying the criteria of the Administrator, the
Secretary is required to consult with the Administrator and to give due
[p. 19]
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1556 LEGAL COMPILATION—SUPPLEMENT I
consideration to the Administrator's views and recommendations, in
regard both to the application of the criteria and to the designations
of the Administrators as to recommended sites or times for dumping.
Finally, the Secretary is bound to comply with the "prohibited areas"
designations of the Administrator under subsection 102(c), unless
after consultation with the Administrator, the Secretary certifies that
there is no economically feasible alternative reasonably available. The
scheme of the subsection, in effect, provides that as to both the "recom-
mended sites" and the "prohibited areas," the Secretary shall follow
the Administrator's determination. Nevertheless, it is recognized that
in some situations to follow either the recommendation or the ban
would mean the termination of an authorized project.
Therefore, the Administrator and the Secretary are expected to con-
sult together closely at all stages. The Secretary, upon certification that
there is no economically feasible alternative reasonably available, will
not be bound by the determination of the Administrator. Even in the
latter case, of course, the Secretary is expected to conform as closely
as possible to the Administrator's determinations. The determination
by the Administrator and the certification by the Secretary are, of
course, matters of record, to which the public is assured full access
by the terms of this Act.
In establishing criteria for dumping, the Administrator is clearly
required to consider economic factors and these in turn would be
taken into account in the designation of recommended sites for dump-
ing or prohibited sites or times for dumping. It is anticipated that the
number of occasions in which the Secretary's would disregard the
Administrator's designations under this subsection would be rare. If
this should prove not to be the case, necessary corrective action can be
taken by the committee at a later date.
The Committee expects that until such time as economic and feasible
alternative methods for disposal of dredge material are available, no
arbitrary or unreasonable restrictions shall be imposed on dredging
activities essential for the maintenance of interstate and foreign com-
merce, and that, consistent with the intent of this Act, the Committee
expects the disposal activities of private dredgers and the Corps of
Engineers will be treated in a similar manner.
(c) This subsection authorizes the Secretary, in relation to Federal
projects, to establish the procedures required under the bill by regula-
tions, rather than by the permit process. This authority is intended to
permit an internal regulatory scheme for the Corps of Engineers
rather than having the Army issuing permits to itself.
Permit conditions
Section 104. (a) This subsection contains the specific items which
are required to be contained in any permit issued under this title. It
applies to the general permits authorized by subsection (c) of this
section, as well as the specific permits authorized under section 102
and 103. Included within the permit provisions there shall be state-
ments as to (1) the type of material involved, designated with sufficient
particularity to identify it for the purpose of surveillance and en-
forcement, (2) the amount of material authorized, whether for trans-
portation or for dumping, (3) the exact location where the transporta-
tion will be terminated or where the dumping will occur, (4) the
[p. 20]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1557
effective period of the permit, including its specific expiration date,
(5) any specific provision deemed necessary to insure eii'ective mon-
itoring or surveillance, and (6) any other matters which the issuing
officer deems appropriate.
(b) This subsection authorizes the promulgation by the permit
grantor of processing fees and reporting requirements.
(c) This subsection authorizes either the Administrator or the Sec-
retary, in their respective areas of authority, to issue general permits
in connection with specific material which are determined to have
a minimal adverse impact on the areas designed. In other words, where
certain materials are of little significance when dumped in certain
areas, the issuing official may use a general permit system rather
than require a specific permit for each transportation or dumping
operation.
Notice and hearing requirements for the general permit procedures
would be similar to those described with respect to Section 102, and
of course the general permits would be subject to the criteria to be
established by that Section.
(d) This subsection authorizes the issuing official to limit, deny,
alter, or revoke, partially or entire, any permit where he finds that
the permitted or requested activity cannot be carried out consistently
with the criteria and other factors required to be applied by him
when evaluating a permit application. The subsection also requires
that any action subsequent to the original issuance of a permit can be
taken only after the same type of notice and opportunity for hearing
has been afforded the affected person or the permittee.
(e) This subsection makes it clear that the burden of providing
sufficient information lies on the permit applicant; the issuing of-
ficial is required to get from the applicant the information necessary
for the determination required before a permit is issued.
(f) This subsection includes a requirement that all information
received, either by the Administrator or Secretary, as a part of the
permit process shall be made available to the public as a matter of
public record, at every stage of the process leading up to the issuance
of a permit. The requirements of the subsection will be met where
the information is available at a reasonable place for inspection, at
reasonable times, and does not envision that all internal agency memo-
randa shall be open to public inspection. It does require, however,
that once the final determination has been made, that determination
will be made immediately available as a matter of public record to-
gether with the supporting reasons for that determination.
(g) This subsection requires a copy of any Title I permit to be
placed in a conspicuous place in the vessel to be used for transporta-
tion of dumping, and further requires that, in order to keep the en-
forcement agency informed, an additional copy shall be furnished to
the appropriate Coast Guard official having the responsibility for
monitoring and enforcing the particular permit.
Penalties
Section 105. (a) Any person, who violates a provision of the title, or
a regulation promulgated under the title, or a permit issued under the
title, shall be liable to a civil penalty of not more than $50,000, to be
assessed by the Administrator. The Committee considered whether the
[p. 21]
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1558 LEGAL COMPILATION—SUPPLEMENT I
assessment authority should be divided between the Administrator and
the Secretary, each acting in his own sphere of responsibility. It was
concluded that the total assessment authority should be given to the
Administrator and that this provision would insure a simpler and
more uniform procedure for penalty assessments. Xo penalty may be
assessed under this section without notice to the person charged and an
opportunity for a hearing, should that person desire such a hearing. In
determining the amount of penalty to be assessed, whether or not a
hearing is sought by the person charged, the Administrator is required
to evaluate the gravity of the violation and the individual's demon-
st rated good faith in seeking to correct the situation after he has been
notified of a violation.
In addition, this section provides that, for good cause shown, the
Administrator may entirely remit or mitigate an assessed penalty to
a lesser amount. This provides the Administrator with some flexibility
even after a penalty assessment has been determined. However, in
order to provide for a reasonably definite assessment scheme, it is ex-
pected that the remission or mitigation authority will be utilized where
the person against whom the penalty has been assessed presents to the
Adnv .istrator facts which warrant subsequent ameliorative action,
such as newly discovered facts which were not known at the time of.
or prior to, the assessment, and could not have been readily ascertained
by the exercise of due diligence. Upon failure of the offending party to
pay the penalty as finally assessed, collection procedures through ap-
propriate court action are authorized.
(b) In addition to the civil penalty under subsection (a), this sub-
section provides for a criminal penalty of not more than $50,000, or
imprisonment for not more than one year, or both, for any person who
is convicted of knowingly violating this title or regulations, or per-
mits issued thereunder. The term "knowingly violates" is intended to
refer to a conscious act or conscious omission of the offender which
amounts to a violation of the law, regulation or permit. It does not re-
quire that the offender have knowledge that the act which he con-
sciously commits or consciously omits constitutes a violation. Should a
fine be assessed following a conviction resulting from information sup-
plied by any person other than one who has the legal duty to report
such incident, the person or persons furnishing the information are
entitled to receive one-half of the assessed fine, or $2500, whichever is
less.
In H.R. 4723, as submitted, Federal employees and agencies were,
by definition, excluded from the application of penalties. As a result
of its careful consideration of this issue, the Committee has elected to
take a different course: this bill subjects Federal personnel and agen-
cies to the same penalties as private individuals, entities, and local gov-
ernmental personnel and organizations. It seemed to your Committee
unrealistic to expose a state employee or a private individual to penal-
ties from which the corresponding Federal employees would be ex-
empt. The usual explanation of the exemption of Federal employees is
that their misconduct may be handled through administrative proce-
dures. The provisions of this bill do not change that possibility.
(c) This subsection provides that for penalty purposes each day of
a continuing violation shall constitute a separate offense. The same is
[p. 22]
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WATER—STATUTES AND LEGISLATIVE HISTOET 1559
true where a violation is committed by dumping from several units.
such as vessels or aircraft, in one dumping operation.
(d) This subsection provides for equitable relief by the United
States to enjoin violations of the title, of regulations or of permits.
(e) This subsection provides for the in rem liability of a vessel.
used in a violation, for any civil penalty assessed or criminal fine im-
posed. It does exempt the vessel from liability, unless one or more of
the owners or, in the case of a bareboat charier, one or more of the
charterers was either a consenting party or privy to the violation.
(f) This subsection provides authorities and procedures under which
a permit may be revoked or suspended in the event of a permit
violation.
(g) This subsection provides for a civil suit by any person on his
own behalf to enjoin violations of the Act or violations of regulations,
or of an issued permit. It limits the institution of such suits in equity
to those situations where the Administrator has not commenced ap-
propriate action within a certain period of time and it bars such suits
if an appropriate civil action has been initiated, an appropriate crim-
inal action has been initiated, if appropriate administrative action to
impose a penalty has been undertaken, or if revocation or suspension
of a permit has been initiated. When a suit is filed under this subsec-
tion, the United States may intervene as a matter of right. Further-
more, in issuing a final order in any such suit the court may award
certain costs of litigation to the party initiating the suit, when it con-
cludes, in its discretion, that the suit was meritorious, and not filed for
the sake of mere harassment. In the event that the court concludes
that the purpose of the suit was harassment, the court may award
such costs to the defendant. It is not intended that the right of action
provided by this subsection shall in any way restrict or supersede any
other right to legal action which is afforded the potential litigant in
any other statute or the common law.
(h) This subsection exempts from the penalty procedure any action
which otherwise would be subject to penalty, when initiated on a ves-
sel where found necessary, in an emergency, to safeguard life. This
subsection cannot be used to justify the initiation of transportation
for dumping. It is intended to relieve from liability those citizens
already at sea where lives are endangered and where appropriate per-
mit applications would not be possible. When any such emergency
dumping occurs, it shall be reported to the Administrator under such
conditions as he prescribes.
Relationship to other laws
Section 106. (a) In effect, this subsection supersedes any other con-
flicting statutory authority which provides for the issuance of permits
or other authorizations for transporting or for dumping those ma-
terials in those waters covered by this Act.
(b) This subsection preserves from the effect of subsection (a)
those activities undertaken and permits issued under the authority of
the Rivers and Harbors Act of 1899 which are taken before the effec-
tive date of this title. Actions taken subsequent to the effective date of
this title will be covered by its provisions, including sections 103, 104
and subsection (a) of this section, as well as other provisions of this
title. [p. 23]
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1560 LEGAL COMPILATION—SUPPLEMENT I
(c) This subsection insures that, as to the protection of navigation,
the authority of the Secretary of the Army is recognized; therefore,
the Administrator must insure, where appropriate, that the disposi-
tion of material under a permit issued by him shall not unreasonably
impair navigation. The final determination on this point is left with
the Secretary of the Army.
(d) This subsection preempts state regulation of activities regu-
lated by this title. It provides, however, that where any state wishes
to protect its waters in a manner above and beyond that reflected in
the criteria of the Administrator, that state may propose to the Ad-
ministrator additional criteria which it finds desirable for applica-
tion to its territorial waters or to waters affecting its territorial waters.
If the Administrator finds, after the same notice and opportunity for
hearing procedure required under section 102, that the proposed cri-
teria are not inconsistent with the purposes of this title, he may adopt
the proposed state criteria in whole or in part. Thereafter such addi-
tions will become the Federal criteria for those waters and will be
regulated and enforced in the same manner as other criteria under
section 102.
(e) This subsection provides that nothing in this title shall be
deemed to affect in any way any provision of the Fish and Wildlife
Coordination Act, as amended. This provision is not intended to imply
that any other statutes are affected other than as specifically provided
in subsection (a) of this section and in section 110. For instance, there
is no intention that this act shall in any way limit the provisions of
the National Environmental Policy Act of 1969 (P.L. 91-190) nor is
it intended to affect the Memorandum of Understanding relating to
public works projects dated July 13,1967, and pertaining to consulta-
tions between the Department of the Interior and the Department of
the Army, relative to those works and their relationship to the Fish
and Wildlife Coordination Act.
Enforcement
Section 101. (a) This subsection authorizes agency agreements for
the utilization of personnel, services and facilities of other Federal
or State departments, agencies and instrumentalities.
(b) This subsection authorizes the delegation of responsibility and
authority for reviewing and evaluating permit applications both
within the agency involved and to other Federal departments.
(c) This subsection places in the Coast Guard the surveillance and
enforcement responsibility to prevent unlawful transportation of ma-
terial for dumping, or dumping, as specified in this title, the regula-
tions issued thereunder and the permits issued pursuant thereto.
Regulations
Section 108. This subsection authorizes necessary regulations to im-
plement the title.
International Cooperation
Section 109. This subsection directs the Secretary of State to take
appropriate measures to encourage and promote the acceptance and
implementation of the policies of this Act throughout the interna-
tional community.
[p. 24]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1561
Repeal of other law's
Section 110. This section repeals the Act of June 29, 1888, as
amended, covering the transportation for dumping of materials from
New York Harbor and other port areas, as well as a proviso in the
Eefuse Act of 1899, which prevented the supersession by that Act of
the Act of June 29, 1888. It also repeals a section of the Act of
August 5,1886, relating to permits for the dumping of debris of mines
or stamp works. In the case of each repealer, this title provides the
superseding regulatory scheme.
Effective date and savings provision
Section 111. (a) This subsection provides that this title shall take
effect 6 months after the date of enactment of this Act, and protects
the legal effects of any legal action begun, or rights of action accrued,
under any other provision of law prior to the effective date of this
title.
Authorization for appropriations
Section 112. This subsection authorizes to be appropriated such sums
as may be necessary for the purpose and administration of this title.
The estimated costs are included later in this report.
TITLE II COMPREHENSIVE RESEARCH ON OCEAN DUMPING
Section 201. This authorizes the Secretary of Commerce, acting in
most or all cases through the Administrator of NOAA, and in con-
junction with the Coast Guard and EPA, to develop an extensive pro-
gram of monitoring and research as to the effects of the dumping ac-
tivities permitted under Title I of this Act. In so providing, the Com-
mittee stresses its concern that this and the other research activities
authorized by this Act must be carried out in conjunction with other
agencies of government with similar research programs. Duplication
of research effort is the last thing that the Committee wishes to en-
courage—what we hope to accomplish in this section and title is to
provide a means whereby research that is relevant to the objectives of
this legislation may be carried out when no one else is already doing
so. This section, and the next, authorize a three-year program be-
ginning in the fiscal year in which this bill is enacted; the Committee
will watch closely the ways in which it is carried out, and contem-
plates a later review of that program to determine how it may best
be extended, if that proves desirable.
Section 202. This directs the Director of the National Science Foun-
dation to undertake a comprehensive program of research as to the
global effects of various activities presently engaged in by man and
of other natural forces. As indicated earlier in this report, it is quite
possible that subtle changes may be discerned in ocean ecosystems
which foreshadow massive disruptions by people who are looking for
those changes; if these should occur, we will best be served by be-
coming aware of these problems before they have become insoluble
through sheer size or the passage of time. We are told, for example,
that many sea birds are in danger of extinction through concentration
of different types of economic poisons through ascending food chains;
had we known of this danger a number of years ago, we might well
[p. 25]
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1562 LEGAL COMPILATION—SUPPLEMENT I
have developed ways by which to minimize or eliminate it. Today, it
is probably too late.
The range of factors to be considered in developing these research
programs is deliberately broad, so as not to prevent NSF from taking
into account any factors that may seem relevant to the problems with
which it is concerned. In the event that those engaged in such research
programs are prevented from obtaining data that they consider criti-
cal, the Committee invites an early indication to that effect, so that we
may consider what steps may be called for in order to see that such
information is forthco'ming.
(b) This instructs and authorizes the NSF to operate under appro-
priate foreign policy direction, and in conjunction with other nations
or groups of nations, in carrying out its research responsibilities un-
der this Act. It also provides a clear direction that, to the maximum
extent possible, the results of this research will be widely dissemi-
nated and brought to the attention of the public and the appropriate
decision-making bodies, both in this country and elsewhere.
(c) This requires an annual report on the research program, which
need not be extensive, but which should indicate the nature of the re-
search undertaken and the questions explored in sufficient detail to
permit this and other interested Congressional committees to evaluate
flie progress of this program.
(d) This authorizes other government agencies to cooperate with
the NSF to carry out the purposes of this Title. Here again, as in the
case of Section 201, it is anticipated that every effort will be made to
avoid duplication of research programs and effort.
(e) In further exposition of this policy, this subsection directs the
NSF wherever feasible to use the personnel, services and facilities of
other Federal agencies in carrying out the purposes of this legislation.
Certainly the amount of funds authorized in this section are not suf-
ficient in themselves to let NSF do more than scratch the surface of
the ocean problems, and it is not the intention of this Committee to
precipitate such an effort. It is rather our intention to give the NSF
a responsibility to review what is being done today with a viev to
identifying the "holes" in current research, and then to examine those
in enough detail to determine whether more massive applications of
effort and funds may be called for. It is for this reason that we stress
the need for continuing communications and coordination with other
agencies of government.
(f) This provides the same type of authorization as it provided for
NOAA in the preceding section: one million dollars a year, beginning
in the year in which this Act is enacted, and extending for a three-year
period, during which this program will be reevaluated and the Con-
gress may elect to provide longer-term financing.
TITLE III MARINE SANCTUARIES
Section 301. This section provides that the term "Secretary", when
used in this title, refers to the Secretary of Commerce.
Section 302. (a) This subsection authorizes the Secretary of Com-
merce (acting through NOAA), after consultation with other Federal
departments and agencies, to designate as marine sanctuaries those
areas of the "oceans, coastal, and other waters", as defined in this Act,
[p. 26]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1563
which he finds necessary to preserve or restore for their conservation,
recreational, ecological, or esthetic values. The waters susceptible to
such designations are the inland waters of the United States as far
inland as the point where the tide ebbs and flows, the Great Lakes and
their connecting waters and that part of the St. Lawrence River
within the jurisdiction of the United States, the territorial sea of the
United State,-, the contiguous zone of the United States, and those
waters lying above the outer Continental Shelf where the subsoil and
seabed resources appertain to the United States. There is no intention
to assert jurisdiction over the territorial waters of any other nation,
nor is there any intention to assert jurisdiction other than that which
already exists by statutory enactment or international law, outside the
territorial limits of the United States. For instance, as to the contigu-
ous zone of the United States, twelve miles seaward from the base
line from which the breadth of the territorial sea is measured, the
United States presently asserts jurisdiction only as to fisheries and
mineral resources and as to the controls necessary to prevent infringe-
ment of fiscal, customs, immigration or sanitary regulations within its
territory or territorial sea or to punish infringement of such regula-
tions committed within its territory or territorial sea.
The consultation process is designed to coordinate the interests of
various Federal departments and agencies, including the manage-
ment of fisheries resources, the protection of national security and
transportation interests, and the recognition of responsibility for the
exploration and exploitation of mineral resources. It is expected that
all interests will be considered, and that no sanctuary will be desig-
nated without complete coordination in this regard. In any case where
there is no way to reconcile competing uses, it is expected that the ulti-
mo te decision will be made at a higher level in the Executive branch.
The reasons for designating a marine sanctuary may involve con-
servation of resources, protection of recreational interests, the preser-
vation or restoration of ecological values, the protection of esthetic
values, or a combination of any or all of them. It is particularly im-
portant therefore that the designation clearly state the purpose of the
sanctuary and that the regulations in implementation be directed to
the accomplishment of the stated purpose.
(b) This subsection provides for appropriate consultation with
State officials before a marine sanctuary is designated which includes
waters within the territorial limits of a State or any other waters
lying above the subsoil or seabed, the natural resources of which are
recognized by the Submerged Lands Act as belonging to the respec-
tive State or States. In addition to the consultation process. State in-
terests are protected by suspending any sanctuary designation by the
Secretary of Commerce as to any such waters until GO days after pub-
lication of such designation and limiting the scope of any such sanc-
tuary with respect to any part within the territorial jurisdiction of a
State which the respective Governor certifies as so limited. The Gov-
ernor may subsequently withdraw his objection in which case the
designation, if still pending, will become effective immediately. This
subsection is intended to protect State title and ownership in the lands
beneath its navigable waters and seaward boundaries and is expected
to be administered in a way to give full effect to lhat intent. As used
[p. 27]
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1564 LEGAL COMPILATION—SUPPLEMENT I
in this subsection, the term "state" refers to each of the fifty states of
the Union.
(c) This subsection directs the Secretary of State to take appro-
priate action to obtain those international agreements which may be
necessary to protect the purposes of any sanctuary which includes
waters lying outside the contiguous zone.
(d) This subsection directs the Secretary of Commerce to take
action under this title within two years and requires him to submit
annual reports as to his actions.
(e) This subsection establishes a public hearing process designed to
give all interested parties an opportunity to express their views.
Public hearings need not be held on each proposal for a marine sanc-
tuary ; after sufficient facts are available to the Secretary which indi-
cate that designation action appears to be desirable, such hearings
should be held. The Secretary may develop preliminary information
in any manner he sees fit; however, a scheme for processing prelimi-
nary information is considered necessary if the designation process is
to be responsive to the public interest and need, and the Secretary is
expected to develop and publish such a scheme.
(f) This subsection authorizes regulations to protect the purpose of
the sanctuary designation. Any activity permitted within the sanctu-
ary must, therefore, conform to the regulations issued under this sub-
section, and no activity shall be valid which does not do so.
It should be clear that such regulations, particularly as they apply
(o sanctuary waters lying outside the territorial limits, must not in-
fringe rights recognized under international law or agreements, such
as freedom of the high seas for navigation and for fishing, and, as to
the territorial seas, the right of innocent passage and right of free
passage through straits used for international navigation. The doc-
trines of sovereign immunity and of force majeure are not intended
to be adversely affected by this title.
Section 303. (a) This subsection provides for a civil penalty of not
more than $50,000 for each violation of regulations issued pursuant
to subsection (f). The regulations will apply to citizens and entities
of the United States in any sanctuary designated. They will also ap-
ply to any foreign citizen to the extent that they regulate an activity
rccogni zed under international law, or under a specific agreement with
a foreign government whose citizen is involved.
(b) This subsection provides for notice and an opportunity to be
heard before a penalty is assessed. If, after proper notice, the person
charged does not request such a hearing within a reasonable time to be
designated by the Secretary, such a hearing need not be held. The sub-
section further provides the procedure for collecting the penalty,
should it not be paid after assessment.
(c) This subsection provides for a libel in rem against any vessel
used in violation of a regulation.
(d) This subsection provides for equitable relief to restrain viola-
tions of sanctuary regulations.
Section 304. This subsection provides the authorization for those
appropriations necessary to carry out provisions of this title. The
[p. 28]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1565
amounts necessary will depend in large measures on the exact costs of
acquisitions of property interests in designated sanctuaries. In some
cases, this will involve title to submerged lands; in other cases, it may
involve purchase of lease interests. In addition, administrative ex-
penses and development costs will be involved.
There are authorized to be appropriated such sums as may be neces-
sary to carry out this title but not to exceed $10 million per year for
the three-year life of the authorization.
COST OF THE LEGISLATION
In the event the legislation is enacted into law, the Committee esti-
mates the maximum cost to the Federal Government, based on infor-
mation supplied by Government agencies, to be as follows:
The Environmental Protection Agency estimated its six year (1971-
1977) cost of implementing Title I of the legislation would be
$2,000.000 for fiscal year 1972, $4,000,000 for 1973, $4,500,000 for 1974,
$4^000,000 for 1975, $3.900,000 for 1976, and $3,900,000 for 1977.
The Department of Transportation, on behalf of the Coast Guard,
estimated the five-year (1972-1976) cost of carrying out its respon-
sibilities under Title I of the legislation would be $6,500,000. Based
on information supplied to the Committee staff, it is estimated the
sixth (1977) year cost to the Federal Government would be not more
than $800,000.
The Committee staff received information from the Department of
Army, on behalf of the Corps of Engineers, that there would be no
additional cost to the Federal Government in carrying out its respon-
sibilities under Title I of the Act other than ordinary administrative
costs associated with project applications.
In carrying out Title II of the Act for the three-year (1972-1974)
life of the authorization, the maximum cost would be $2,000,000 per
year. In carrying out Title III of the Act for the three-year (1972-
1974) life of the authorization the maximum cost would be $10,000,000
per year.
IN SUMMARY
[In millions of dollars]
1972 1973 1974 1975 1976 1977
Title 1 :
EPA
CG - -
Title II:
NSF
Title III -Com
Total
. 2.0
1.6
0
1 0
1 0
10.0
15.6
4.0
1.5
0
1.0
1.0
10.0
17.5
4.5
1.4
0
1.0
1.0 .
10.0 ..
17.9
4.0
1.0
0
5.0
3.9
1 0
0
4.9
3.9
g
0
4.7
After reviewing the estimate of costs made by the Government
agencies with respect to this legislation, the Committee has concluded
that these estimates are reasonable and that the costs incurred in
carrying out this legislation will be consistent with those estimates.
[p. 29J
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1566 LEGAL COMPILATION—SUPPLEMENT I
D EP ART 31E NT A L RE PORTS
Executive communication No. 284 and the departmental reports
on H.E. 4723, on which the hearings were held, are as follows:
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C'., February 10,1971.
Hon. ("ART, ALBERT,
Speaker of the House of Representatives,
Washington, D.C.
DEAR MR. SPEAKER: Enclosed is a, draft of a proposed bill "to regu-
late 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 com-
mittee for consideration and that it be enacted.
The proposed legislation would implement the recommendations of
the report ''Ocean Dumping—A National Policy.'' That report, re-
quested by the President in his April 15, 1970, message on waste dis-
posal, was prepared by the Council on Environmental 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 concentrated 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 popula-
tions of fish and other economic resources, and damage esthetic values.
In some areas, such as the New York Bight, the environmental condi-
tions 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 disposal sites is becoming exhausted in some coastal cities, com-
munities are looking to the ocean as a dumping ground for their
wastes. Faced with higher water quality standards, industries may
also look to the ocean for disposal. The result could be a massive in-
crease 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, alternatives to ocean dumping can be applied positively for pur-
poses 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 fa-
cilitate navigation, chiefly by dredging navigation channels. As such,
it is in the position of regulating activities over which it also has oper-
tional 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
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WATER—STATUTES AND LEGISLATIVE HISTORY 1567
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 legislation au-
thority is necessary.
Taken together, present responsibilities are dispersed and operation-
al 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.
The proposed legislation would bar the transportation of material
for dumping and the actual dumping itself in the oceans, coastal wa-
ters and Great Lakes, except as authorized by permits issued by the
Administrator of the Environmental Protection Agency. The Admin-
istrator would be empowered to ban ocean dumping of certain mate-
rials and to designate recommended safe sites for disposal. Transpor-
tation 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 fore-
stalling pressures to dispose of a vast new influx of wastes in the
oceans, coastal waters and the Great Lakes. Placing regulatory au-
thority in the Environmental Protection Agency should strengthen the
refinement ancl implementation of a national policy.
A detailed section-by-section analysis of the bill is enclosed.
The bill is part of the President's environmental program as an-
nounced 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 of 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,
WILLIAM D. KUCKELSHAUS,
Administrator.
SECTION-BY-SECTION ANALYSIS or THE PROPOSED MARINE PROTECTION
ACT OF 1971
The title of the proposed act is designated as the "Marine Protec-
tion 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 eco-
nomic potentialities. It declares a federal policy of regulating dump-
ing 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 leaisla-
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1568 LEGAL COMPILATION—SUPPLEMENT I
tion 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 transportation for dumping
and dumping of which are regulated by the proposal, very broadly as
"matter of any kind or description", and then, for illustrative pur-
poses, but without limiting the comprehensive scope of this initial defi-
nition, lists specific materials which are included in the general defi-
nition. Oil 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 prohibi-
tion 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 pen-
alties, is concerned. Thus, Federal organizations, employees, and agents
must comply with the permit and standard-setting provisions of the
Act, i.e., they would be required to obtain approval from the Adminis-
trator 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 dis-
position 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 outfall 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 proopsed permit program
under the Eefuse 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 ex-
cepts international placement of devices in the relevant waters or on
the submerged lands beneath those waters. Several federal departments
and agencies place testing, monitoring, sensing, or surveillance devices
on the ocean floor. Under this proviso, the placement of such items or
their transportation 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.
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WATER—STATUTES AND LEGISLATIVE HISTORY 1569
Special note should also be made of the fact that "dumping" as de-
fined 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 mate-
rial 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 ac-
tivity, subsection 4(a) of the proposal prohibits transportation of ma-
terial 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 dump-
ing 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 pre-
sents information which indicates that the transportation or dumping
or both will riot unreasonably degrade or unreasonably endanger hu-
man health, welfare, or amenities, or the marine environment, ecolog-
ical systems, or economic potentialities. The Administrator is directed
to establish and apply criteria for reviewing and evaluating permit
applications. 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 deems such a step to be desirable,
the Administrator could set different procedures for handling applica-
tions in the various categories. Subsection (b) (2) allows the Adminis-
trator to require applicants for permits to provide necessary informa-
tion. The Administrator could require differing amounts and types of
information according to category.
Subsections 5(c) and 5(d) set out the requirements 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 per-
mits 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
[p. 33]
525-312 0-73-23
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1570 LEGAL COMPILATION—SUPPLEMENT I
the substances cannot be dumped consistently with the provisions of
and criteria established under subsection 5(a). In such cases the Ad-
ministrator may also alter or revoke partially or entirely the terms of
existing permits.
Subsection 5(g) allows the Administrator to designate recom-
mended sites for dumping specified materials. This would give guid-
ance to applicants and facilitate the Administrator's implementation
of the control programs.
Subsection 5(h) establishes a very limited exemption from the pro-
hibition 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. In such
cases reports of the excepted emergency actions must be made to the
Administrator.
Section 6 provides for penalties. Under subsection 6(a) the Ad-
ministrator 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 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 viola-
tions 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 provi-
sions of subsection 6(d), the Attorney General is authorized to seek
equitable relief to redress violations. Subsection 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 subsec-
tion 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 provided in subsections 7(b) and 7(c), it
provides that after the Act's effective date, existing licenses, per-
mits, or authorizations would be terminated to the extent they author-
ize activity covered by this proposal, and that further licenses, per-
mits, or authorizations of a similar nature could not be issued.
Subsection 7(b) maintains present responsibility and authority con-
tained in the Atomic Energy Act of 1954, and provides that the pro-
visions of Sections 4 nd 7(a) of this proposal do not apply to actions
taken under that Act. However, the AEC must consult with the
Administrator before issuing a permit to conduct any activity other-
wise 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 subsec-
tion 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 cov-
ered 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
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WATER—STATUTES AND LEGISLATIVE HISTORY 1571
part by the Secretary of the Army and the Chief of Engineers. Ex-
cept for the limited supersession found in subsection 11 (e), the Eivers
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 dump-
ing of material in connection with a dredge, fill or other permit issued
by the Corps of Engineers, issuance of the permit requires a certifica-
tion by the Administrator of EPA that the activity is in conformity
with this proposal and any regulations issued under it. The Adminis-
trator will not issue separate permits in such cases.
After this Act becomes effective, the Department 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 sub-
section 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-reimburs-
able 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 regula-
tions in carrying out the responsibilities and authority conferred by
the Act.
Section 10 directs the Secretary of State, in consultation with the
Administrator, to seek appropriate international action and coopera-
tion to support the policy of this proposal.
Subsections 11 (a) and 11 (b) repeal the Supervisory Harbors Act
of 1888, as amended (33 U.S.C. §§441-451b), and tlie 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 tran-
sit in and from the_harbors of Xew York, Baltimore, and Hampton
Roads, Virginia. This authority has been used to regulate ocean dump-
ing. The proposed Act would replace that authority. A portion of the
Act of August 5, 1886 (33 U.S.C. 8 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 7'cpealed. 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 Kn
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1572 LEGAL COMPILATION—SUPPLEMENT I
regulated by this proposal. Lastly, section 13 of the .Rivers and Har-
bors Act of 1899 (33 U.S.C. § 407), commonly known as the Eefuse
Act, is superseded, but only insofar 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 pro-
posal legal actions begun or rights of action accrued prior to the pro-
posal's effective date.
Section 13 contains an authorization for appropriations to carry
out the purposes and administration of the proposal.
MARINE PROTECTION ACT OF 1971
A BILL To regulate the dumping of material in the oceans, coastal, and other
waters and for other purposes.
Be it enacted l>y 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 PURPOSE.— (a) Unregulated dump-
ing of material into the oceans, coastal, and other waters endangers
human health, welfare, and amenities, and the marine environment,
ecological systems, and economic potentialities.
(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 ad-
versely affect human health, welfare, or amenities, or the marine en-
vironment, 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 Environ-
mental 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, in-
cluding, but not limited to, dredge spoil, solid waste, garbage,
sewage, sludge, munitions, chemical, biological, and radiological
warfare agents, radioactive materials, wrecked or discarded
equipment, rock, sand, cellar dirt, and industrial waste, provided,
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 Eico, 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 entity, any em-
ployee, agent, department, agency, or instrumentality 01 any
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WATER—STATUTES AND LEGISLATIVE HISTORY 1573
State or local unit of government, or foreign government, and,
except as to the provision of section 6, any employee, agent, de-
partment, 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 pro-
pulsion 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 at-
tributable 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 Dis-
trict 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 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 territorial sea
of the United States, extending to a line 12 nautical miles seaward
from the base line of the territorial sea as provided in Article 24 of
the Convention 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 both, where the applicant presents information respecting
the proposed activity which in the judgment of the Administrator in-
dicates that such transportation, or dumping, or both will not unrea-
sonably degrade or unreasonably endanger human health, welfare, or
amenities, or the marine environment, ecological systems, or economic
potentialities. The Administrator shall establish and apply criteria
for reviewing and evaluating such permit applications, and, in estab-
lishing or revising such criteria, shall consider, but not be limited in his
consderation to, the. following:
(1) the likely impact of the proposed dumping on human health,
welfare, and amenities, and on the marine environment, ecologi-
cal 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.
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1574 LEGAL COMPILATION—SUPPLEMENT I
(2) alternative locations and methods of disposal, including land-
based alternatives; the probable impact of requiring the use
of such locations or methods of disposal on considerations affect-
ing the public interest; and the probable impact of issuing or
denying permits on considerations affecting the public interest.
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 afl'ect the
civil works program of the Department of the Army, the Adminis-
trator shall also consult with the Secretary of the Army. In reviewing
applications for permits, the Administrator shall make such provision
for consultation with interested Federal and State agencies as ho
deems useful 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 cate-
gories of permits, including the general permits described in subsec-
tion (e).
(2) The Administrator may require an applicant for a permit un-
der 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 in-
clude (1) the type of material authorized to be transported for dump-
ing or to be dumped: (2) the amount of material authorized to bo
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 Aclministator may prescribe such processing fees for per-
mits and such reporting requirements for notions taken pursuant to
permits issued under subsection (a) as lie deems appropriate.
(e) Notwithstanding any other provision of this Act, the Admin-
istrator may issue general permits for the transportation for dump-
ing, or dumping, or both, of classes of materials which he determine.1?
will have a minimal impact, considering the factors stated in subsec-
tion (a).
(f) The Administrator may limit or deny the 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
flumping, or both, of specified material, where he finds that such ma-
terial cannot be dumped consistently with the criteria established pur-
suant 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 Rich actions as proposed.
(g) The Administrator may, considering the criteria established
pursuant to subsection (a), designate recommended sites for the dump-
ing of specified materials.
(h) Nothing in this Act shall prohibit any transportation for dump-
ing or dumping of material where such transported ion or dumping
is necessary, in an emergency, to safeguard human life. Such trans-
portation or flumping shall be reported to the Administrator within
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WATER—STATUTES AND LEGISLATIVE HISTORY 1575
such times and under such conditions as he may prescribe by requisi-
tion.
SECTION 6. PENALTIES.—(a) A person who violate^ section 4 of this
Act, or regulations promulgated under this Act, or a permit issued
tinder 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 Ad-
ministrator. Xo 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, (he gravity of the violation and
the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification 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 Gen-
eral 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 subsec-
tion (a), a person who knowingly and willfully violates section 4 of
this Act, regulations 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 violation by any person of this Act, regu-
lations promulgated 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 subsec-
tion 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 consent-
ing 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. RKLATIOXSHIP 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 authorize any activity regulated by this Act.
Thereafter, except as hereafter provided, no license, permit, or au-
thority shall be issued by any officer or employee of the United Stsxtes
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1576 LEGAL COMPILATION—SUPPLEMENT I
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 re-
sponsibility or authority contained 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 En-
ergy Commission shall comply with standards set by the Adminis-
trator respecting limits on radiation exposures or levels, or concentra-
tions 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 sub-
sections 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 Kivers 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 activity proposed to be conducted is in conformity
with the provisions of this Act and with the regulations issued here-
under.
(3) Where a license or permit to conduct 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 con-
duct 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 disposition of the material to be trans-
ported for dumping or to be dumped may affect navigation in the navi-
gable 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 determines that navigation will be unreasonably impaired.
(e) Nothing in this Act shall be construed as preempting any State,
Federal Territory or Commonwealth, or subdivision thereof from im-
posing any requirement or liability.
SECTION 8. ENFORCEMENT.— (a) The Administrator may, whenever
appropriate, utilize by agreement, the personnel, services, and facilities
of other Federal departments, agencies, and instrumentalities, or State
agencies or instrumentalities, whether on a reimbursable or a nonreim-
bursable basis.
(b) The Administrator may delegate responsibility and authority
for reviewing and evaluating permit applications, including the de-
cision as to whether a permit will be issued, to an officer of the En-
[p. 40]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1577
vironmental Protection Agency, or he may delegate, by agreement,
such responsibility and authority to the heads of other Federal depart-
ments or agencies, whether on a reimbursable or nonreimbursable basis.
(c) The Secretary of the department in which the Coast Guard is
operating shall conduct surveillance and other appropriate enforce-
ment activity to prevent unlawful transportation of material for
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.
SECTION 10. INTERNATIONAL COOPERATION.—The Secretary of State,
in consultation with the Administrator, shall seek effective interna-
tional action and cooperation to ensure protection of the marine en-
vironment, and may for this purpose, formulate, present, or support
specific proposals in the United Nations and other competent interna-
tional organizations for the development of appropriate international
rules and regulations in support of the policy of this Act.
SECTION 11. REPEAL AND SUPPRESSION.— (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 Augusts, 1886 (24 Stat. 329),4 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),5 is superseded.
(e) Section 13 of the Rivers and Harbors Act of 1899 (30 Stat.
1152), as amended,6 is superseded insofar as it applies to dumping, as
defined in subsection 3(f) of this Act, of material in the waters cov-
ered 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 APPROPRIATION.-—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.
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.O., April 6, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, "Washington, D.O.
DEAR MR. CHAIRMAN : As requested, we submit herewith the views
of the Environmental Protection Agency on the following legislative
proposals, most of which will be the subject of joint legislative hear-
[p. 41]
2 33 U.S.C. §418.
3 33 U.S.C. §§ 441-451b.
*33 U.S.C. § 407a.
5 33 U.S.C. § 419.
6 33 U.S.C. § 407.
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1578 LEGAL COMPILATION—SUPPLEMENT I
ings to be held by the Subcommittee on Oceanography and the Sub-
committee on Fisheries and Wildlife Conservation during the week
of April 5, 1971: H.E. 285, 336, 337, 548, 549, 805, 807, 808, 983, 1095,
1329, 1381, 1382, 1383, 1661, 1674, 2581, 3662, 4217, 4218, 4247, 4359,
4360, 4361, 4584,4719,4723, 5049, 5050, 5239, 5268, 5477, 5705, and 6862.
H.R. 4723 (ALSO 4247, 5230, 5268, 5477, AND 6S62)
H.R. 4723, which is the Administration's own ocean dumping pro-
posal, provides that, except as authorized in a permit issued by the
Administrator of EPA, no person shall (a) transport ''material" from
the United States for the purpose of dumping it into "oceans, coastal,
and other waters," or (b) dump material in that part of such waters
within the territorial jurisdiction of the United States, or in the con-
tiguous zone to the extent that the dumping may affect the territorial
sea or the territory of the United States. "Material" is defined to in-
clude dredge spoil, solid waste, garbage, sewage sludge, munitions,
chemical, biological, and radiological warfare agents, radioactive ma-
terials, wrecked or discarded equipment, rock, sand, cellar dirt, and
industrial waste, but to exclude oil and vessel sewage, discharges of
which are regulated by the Federal Water Pollution Control Act.
"Oceans, coastal, and other waters" are defined to mean oceans, gulfs,
bays, salt-water lagoons, salt-water harbors, other coastal waters
where the tide ebbs and flows, and the Great Lakes. The "dumping"
to which the bill applies includes any disposition of material other
than dispositions of effluent from outfall structures, or routine dis-
charges of effluent incidental to the propulsion of vessels.
The Administrator would be authorized to issue permits to dump
materials or to transport them for dumping where in his judgment,
based on information supplied by the applicant, such activity will not
unreasonable degrade or endanger human health, welfare or amenities,
or the the marine environment, ecological systems, or economic poten-
tialities. He would be required to establish criteria for evaluating-per-
mit applications, taking into account the likely environmental impact
of the poposed dumping, alternative locations and methods of dis-
posal, and the impact on the public interest of either issuing or deny-
ing a permit or of requiring an alternative disposal method. In estab-
lishing or revising criteria, the Administrator would be required to
consult with the heads of concerned departments and agencies. He
would be precluded from issuing any permit which would result in a
violation of water quality standards. He would be authorized to im-
pose restrictions relating to the type and amount of materials to be
dumped, the place of dumping, and the duration of the permit. He
would be authorized to limit, deny, alter or revoke permits where he
finds that materials cannot be dumped consistently with the criteria
established for the issuance of permits. Dumping of materials in an
emergency to safeguard human life would be exempted from the re-
quirements of the Act, but would be required to be reported to the
Administrator.
The Administrator would be authorized to impose civil penalties of
up to $50,000 per day for violations of the Act or of any regulations
or permit issued thereunder. In addition, knowing or willful viola-
tions would invite criminal fines of up to $50,000 per day, imprison-
[p. 42]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1579
ment for up to one year, or both. The Attorney General would be
authorized to bring actions for equitable relief to redress any such vio-
lations, and the Administrator would be authorized to revoke or sus-
pend a violator's permit. All the Act's prohibitions and requirements
would be applicable to agencies and employees of the Federal Govern-
ment, except the remedial provisions described in this paragraph. The
bill would require the Coast Guard to conduct surveillance and other
appropriate enforcement activity.
The bill has a section which defines its relationship with other laws
and with actions taken pursuant to other laws. Generally speaking,
existing Federal permits would be terminated upon the Act's effective
date to the extent that such permits authorize activity covered by the
Act, and further permits of a similar nature could not be issued. How-
ever, there would be two exceptions to this general supersession of
other laws: (1) the AEC's authorities with respect to radioactive ma-
terials under the Atomic Energy Act of 1954 would not be affected
(although the AEC would be required to consult with EPA prior to
issuing any permit to conduct any activity otherwise regulated by this
Act, and to comply with radioactive-material standards set by the Ad-
ministrator) ; and (2) except as set forth in the next paragraph, the
authorities contained in the Eivers and Harbors Act of 1899, as well
as all actions taken pursuant to that Act either before or after the ef-
fective date of this proposal, would be preserved. In situations in
which this Act and the Act of 1899 both apply to dumping of ma-
terial in connection with a dredge, fill or other permit issued by the
Corps of Engineers, the permit would be issued by the latter only after
receiving certification from EPA that the proposed activity is in con-
formity with this Act.
The bill would supersede the Kef use Act insofar as that Act applies
to dumping of materials in waters covered by the bill, and wTould
repeal the Supervisory Harbors Act of 1888, an act which has been
used to regulate ocean dumping of materials transported from the
harbors of New York, Baltimore, and Hampton Eoads, Virginia.
EPA recommends the enactment of U.K. 4723. The bill contains the
following major elements, al] of which are considered essential to a
rational and comprehensive ocean dumping policy:
1. In addition to its application to ocean waters, the bill would
apply to the Great Lakes as well as to certain internal waters having
characteristics of open ocean waters (salt-water gulfs, bays, lagoons,
harbors, etc.).
2. The bill would require permits for two types of activity which
are not necessarily related: (a) transportation of materials from the
United States for dumping in ocean waters anywhere; and (b) dump-
ing of materials—whether transported from the United States or not—
in waters covered by the Act which are within the territorial juris-
diction of the United States, or in waters of the contiguous zone where
the dumping may affect the territory or territorial sea of the United
States. Under this approach, the regulatory authority of the United
States is utilized to its fullest extent consistent with established prin-
ciples of international law.
3. The bill is coordinated with other laws and with water quality
management programs carried out pursuant to other laws. The bill
would for the most part be inapplicable to internal navigable water-
[p. 43]
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1580 LEGAL COMPILATION—SUPPLEMENT I
ways, which are protected by water quality standards established by
the States or by joint Federal-State action pursuant to the Federal
Water Pollution Control Act, and by the requirements of the Refuse
Act of 1899. In order to rationalize the overlap which does exist be-
tween this proposal and either the Federal Water Pollution Control
Act or the Refuse Act (an overlap which is limited primarily to the
Great Lakes and coastal waters out to the three mile limit), the bill
provides: (a) that it does not apply to effluents from outfall struc-
tures (which are adequately regulated by the Eefuse Act and the
Federal Water Pollution Control Act) ;* (b) that the Refuse Act is
superseded insofar as it applies to dumping of materials in waters
covered by the bill; and (c) that no permit may be issued which would
violate water quality standards.
4. Control over dumping is consolidated in EPA, an agency which
has as its chief purpose the protection of the environment, and which
possesses the research and regulatory capability necessary for develop-
ing and carrying out a comprehensive ocean dumping policy.
H.R. 3662
This bill provides that no person may dump waste material (com-
prehensively denned) into the "ocean waters of the United States,"'
or "transport such material through such waters" (presumably for
dumping) without a permit from the Administrator of EPA. "Ocean
waters" is defined to mean estuarine areas, coastal waters (out to the
three-mile limit), the Great Lakes, and waters above the Outer Con-
tinental Shelf (from the three-mile limit to the 200-meter depth con-
tour). The "dumping" to which the bill applies includes disposal of
material by any means whatsoever. The Administrator would be au-
thorized to issue permits for dumping where he determines that it will
not damage the ecology of the marine environment, taking into account
such factors as land-based alternatives and the effect of the dumping-
on human health and welfare, fisheries resources, and marine ecosys-
tems. Permits would be required to specify restrictions relative to the
type and amount of material authorized to be dumped, the location of
dumping, and the duration of the permit. The Administrator would
not be allowed to issue permits authorizing the dumping of radioactive
wastes, toxic industrial wastes, or chemical or biological warfare ma-
terials. In the case of permits for the dumping of sewage or industrial
Wastes, the Administrator would not be allowed to issue a permit (1)
after January 1, 1972, unless such wastes had received primary treat-
ment; (2) after January 1,1974, unless they had also received tertiary
treatment; and (3) after January 1,1976, unless they had also received
tertiary treatment. The Administrator would have authority to sus-
pend, revoke, revise or condition permits. The Coast Guard would b&
required to conduct surveillance and other appropriate enforcement
activities. Civil and criminal penalties would he the same as in H.R.
4723, except that one-half of any penalty or fine would be payable to-
the informer providing the information resulting in such penalty or
*H.R. 5966, an Administration proposal to amend section 10 of the Federal Water
Pollution Control Act, would, inter alia, authorize the Administrator of EPA to establish
water quality standards (or the high seas applicable to the discharge of material trans-
ported from or originating within the United States. This would enable the Administrator
to regulate discharges from ocean outfalls, a category of discharge not covered by H.R. 4723.
[p. 44]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1581
fine. Equitable relief to redress violation would be available. The Ad-
ministrator would be required to conduct the investigation and re-
search with respect to marine ecology necessary to carry out the pur-
poses of the Act; appropriations of $1 million per year would be au-
thorized for this purpose.
EPA is generally favorable to the provisions of U.K. 3662, which are
similar or identical in many respects to the provisions of the Adminis-
tration's proposal set forth in H.R. 4723. However, EPA has the fol-
lowing major comments or reservations about H. II. 3662:
1. The prohibition against transport through "ocean waters" (wa-
ters out to the 200-meter depth contour) without a permit is not linked
to the place of origin of the transporting vessel. Insofar as this provi-
sion is made applicable to vessels which are not leaving United States
ports, it may violate the rights of innocent passage and freedom of the
seas under international law.
2. The prohibition against dumping between the 12-mile limit and
the 200-meter depth contour, regardless of the place of origin of the
material to be dumped, may also raise problems under international
law.
3. EPA is opposed to the Act's broad definition of "dumping," which
would include continuous discharges from outfall structures which are
already subject to regulation under the Federal Water Pollution Con-
trol Act, and, in the case of industrial wastes, by the Refuse Act as
well. The imposition of further Federal controls over such discharges,
in addition to those already provided under the Federal Water Pollu-
tion Control Act and the Refuse Act, is duplicative and unnecessary.
There is no provision in the bill for supersession of existing, overlap-
ping legal authorities.
4. EPA is opposed to the provisions of the bill which would prohibit
the Administrator from issuing permits to dump specified categories
of wastes. It is agreed that, generally speaking, ocean disposal of radio-
active wastes, toxic industrial wastes, and chemical and biological
warfare agents is undesirable and should not be allowed. However,
there may be the rare exceptional case, e.g., reactor components from
nuclear powered vessels, in which ocean disposal will present a lesser
threat to human health, welfare or the environment than land-based
disposal. We favor the approach taken in H.R. 4723, which would give
the Administrator flexibility in developing an ocean dumping policy
which would take account of such special circumstances.
5. EPA is opposed to the provisions of the bill which would prohibit
the Administrator from issuing permits to dump sewage or industrial
wastes which have received less than a specified level of treatment.
This provision appears to be concerned with effluents from municipal
and industrial waste treatment plants—a category of discharge appar-
ently within the Act's definition of "dumping." EPA believes that
such continuous discharges should continue to be regulated by the Fed-
eral Water Pollution Control Act, rather than by a bill concerned
primarily with ocean dumping. Furthermore, a requirement of a speci-
fied level of treatment for all discharges by a specified date fails to
take into account variations in water use designations, the quality or
characteristics of the receiving waters, or other factors which bear on
the appropriate level of treatment in a given instance. The provisions
of the Federal Water Pollution Control Act governing the establish-
[p- 45]
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1582 LEGAL COMPILATION—SUPPLEMENT I
ment of water quality standards provide a more flexible and responsive
vehicle for the establishment of base levels of treatment.
6. While subsection (e) (2) of the bill provides that "nothing in this
section shall be construed as abrogating or negating any existing re-
sponsibility or authority contained in the Rivers and Harbors Act of
1899," any outstanding permits authorizing dumping issued under
that Act would apparently not survive the enactment of this proposal,
in view of subsection (e) (1) which provides for the termination of
such permits.
H.R. 4359 (ALSO 4360, 436l)
This bill provides that no citizen of the United States or "other per-
son" may dispose of waste materials (comprehensively denned) into
the oceans, coastal waters, or estuarine waters of the United States or
into the Great Lakes without a permit from the Administrator of
EPA. "Other person" is defined to mean resident officers, directors or
managers of foreign partnerships, associations, or corporations doing
business in the United States. The Administrator would be authorized
to issue permits under such terms as he determines necessary to insure
that the dumping will not damage the ecology of the marine environ-
ment. The Administrator would not be authorized to issue permits for
the dumping of radioactive wastes, toxic industrial wastes, or chemi-
cal or biological warfare agents. In the case of permits for the dump-
ing of sewage or industrial wastes, he would not be authorized to issue
a permit (1) after January 1, 1972, unless such wastes had received
primary treatment; (2) after January 1, 1974, unless they had also
received secondary treatment; or (3) after January 1, 1976, unless
they had also received tertiary treatment. The Administrator would be
authorized to prohibit by regulation the disposal of any waste mate-
rail which he determines may damage the ecology of the marine en-
vironment. The Act would authorize the imposition of criminal fines
as follows: fines of $2,000 to $10,000 per day of violation for first of-
fenses, and fines of $10,000 to $20,000 per day of violation for subse-
quent offenses. Vessels involved in violations would be forfeited to the
United States. The permit provision of the Act would be enforced by
EPA, the Secretary of Transportation (Coast Guard), and the Secre-
tary of the Army (Corps of Engineers) under regulations and opera-
tional directives jointly agreed to. The Coast Guard would be empow-
ered to stop, search and detain vessels, and district courts would have
jurisdiction to restrain violations.
The Secretary of Commerce, acting through NOAA, after consul-
tation with the Secretary of the Interior, EPA, and CEQ, would be
directed to designate as marine sanctuaries those areas of the Nation's
tidelands, Outer Continental Shelf, seaward areas, and land and
waters of the Great Lakes, which the Secretary determines should be
preserved or restored for their recreation, conservation, ecologic, or
aesthetic values. The Secretary of the Interior would be precluded from
issuing or renewing any license for the exploration, mining or removal
of any minerals, including oil and gas, from any area designated or
under study for possible designation as a marine sanctuary. EPA
would be precluded from issuing or renewing permits for dumping in
such areas. $5,000,000 would be authorized to be appropriated for
studies in connection with the designation of marine sanctuaries.
[p. 46]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1583
EPA is generally favorable to the provisions of this proposal, with
the following major reservations:
1. The bill applies only to dumping activities carried out by United
States citizens or other persons doing business in the United States. It
would not cover dumping in United States territorial waters, or trans-
portation for dumping from United States ports, carried out by per-
sons lacking these connections with the United States. EPA believes
that this gap in coverage is both unnecessary and undesirable.
2. The bill contains a broad definition of "dumping" which would
include continuous discharges from outfall structures. EPA is op-
posed to Federal permit requirements applicable to such discharges for
reasons discussed above in connection with H.R. 3662.
3. EPA is opposed to the dumping prohibitions affecting sewage, in-
dustrial wastes, radioactive wastes, and chemical and biological war-
fare agents, for reasons discussed above in connection with H.R. 3662.
4. The bill does not define its relationship with other laws dealing
with Federal permits for dumping, notably the Rivers and Harbors
Act of 1899, which includes the Refuse Act. Presumably the overlap-
ping requirements of the Refuse Act would remain in effect in areas in
which both Acts apply. The bill states that "other provisions of law
which are in conflict with this Act are hereby repealed," but this pro-
vision does not solve the problem of duplicative, overlapping
requirements.
5. The bill does not provide for administratively as well as judi-
cially imposed penalties, as both H.R. 4723 and H.R. 3662 do, but only
for judicial fines. EPA favors the approach taken in H.R. 4723 and
H.R. 3662 since it would foster rapid adjudication of violations by
administrative personnel having the necessary expertise to deal with
the problem.
6. The establishment of "marine sanctuaries" is beyond the scope of
the Administration's bill, which deals entirely with the control of ocean
dumping. However, EPA is completely in accord that certain critical
marine areas should be protected from dumping, and would have this
objective in mind in administering H.R. 4723, which provides ample
authority to ban dumping in certain areas. The relationship of the
marine sanctuaries proposal to the land use programs proposed by the
Administration in H.R. 4332 should be examined. Under H.R. 4332,
the Secretary of the Interior would be authorized to make grants to
States to assist them in developing land use programs which would
include State controls over the use and development of "areas of crit-
ical environmental concern," defined in the bill to include coastal zones,
estuaries, and the Great Lakes.
U.K. 10«1 (ALSO .'04!), r>(>.->0>
This bill provides that no owner or master of a vessel mav loud or
permit the loading of any waste (comprehensively defined) while in
any port of the United States, if such waste is to be discharged in
"ocean waters," unless such owner or master first obtains a loading
permit from the Administrator of EPA and notifies the Coast Guard.
"Ocean waters" is defined to mean "any estuarine area, coastal waters,
Great Lakes, territorial waters, and the high seas adjacent to the ter-
ritorial waters." The Administrator would be required to issue loading
[p. 47]
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1584 LEGAL COMPILATION—SUPPLEMENT I
permits if he determines that dumping of the wastes into ocean waters
will not damage the ecology of the marine environment. He would be
precluded from issuing any permit for the discharge of any waste be-
tween the Continental Shelf and the coast of the United States (mean-
ing, it would appear, within the three-mile territorial sea). The Ad-
ministrator would have authority to ban loading, transportation and
dumping of matter deemed damaging to the marine environment or to
human health or welfare. The Coast Guard would be required to con-
duct surveillance and other appropriate enforcement activity. The bill
would authorize administratively imposed civil penalties as follows:
up to $50,000 for the first violation, and up to $100,000 for each sub-
sequent violation. Upon failure of an offending party to pay a pen-
alty, the Administrator would be authorized to request the Attorney
General to commence a district court action for appropriate relief.
Outstanding Federal permits authorizing any activities to which the
bill applies would be terminated as of the bill's effective date.
EPA is generally favorable to H.R. 1661, with the following major
reservations:
1. It would not apply, as H.R. 4723 would, to dumping of ma-
terial in the U.S. territorial sea of contiguous zone which is not
loaded on vessels in United States ports.
2. The definition of "ocean waters" may give some problems.
The meaning of "territorial waters" is not clear, although the
term is probably intended to be limited to offshore territorial
waters, since inclusion of internal territorial waters would con-
flict with the generic "ocean waters." The scope of "high seas ad-
jacent to the territorial waters" is also not clear.
3. EPA has reservations about the provision which would
prohibit the issuance of permits for the disposal of wastes in the
United States territorial sea. The provision is unnecessary since
under H.R. 4723 and similar bills the Administrator would have
authority to prohibit dumping in such waters where appropriate,
and very little dumping is carried out in such waters in any event.
Furthermore, some carefully planned and controlled disposal of
waste materials in these waters may be desirable, e.g., the sinking
of car bodies or other similar material to serve as a shelter for
fish.
H.R. 1383J H.R. 805 (ALSO 807, 808, 1329, 2581, AND 5705)
Under H.R. 1383, the Secretary of the Interior, acting through the
Fish and Wildlife Service, would be required to establish standards
applicable to the deposit or discharge into the "coastal waters" of the
United States of all industrial wastes, sludge, and spoil, and all other
materials that might be harmful to the wildlife or ecology of these
waters. These standards would require any person, before discharging
such materials into such waters, to present sufficient evidence to sustain
a burden of proof that such materials will not endanger the natural
environment and ecology of such waters. These standards would be
required to be adopted and enforced by any agency of Federal or
State government that issues licenses for disposal of materials in
coastal waters. The States would be authorized to establish more
stringent standards provided they contain adequate procedures for
[p. 48]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1585
enforcement. District courts would have jurisdiction to restrain viola-
tions. Violators of standards would be liable to civil penalties of not
more than $10,000 or less than $5,000 per day of violation. Outstanding
Federal permits would be terminated as of the effective date of the
proposal.
H.R. 805 is essentially the same as H.R. 1383, except (1) the stand-
ards would be established jointly by the Secretary of the Interior and
the Administrator of EPA; (2) the standards would be applicable to
"ocean, coastal, and other waters" rather than simply to "coastal
water," and (3) EPA rather than the Interior Department would be
the agency charged with administrative responsibilities. In H.R. 805,
"ocean, coastal, and other waters" are denned in the same way as these
words are denned in H.R. 4723, except that the bill's application to
ocean waters would appear to be limited to the territorial sea and the
contiguous zone. The term "coastal waters" as used in H.R. 1383 is
not denned. The words "deposit or discharge" as used in both bills
would appear to embrace continuous discharges as well as intermit-
tent dumping.
EPA is opposed to the enactment of these bills because they overlap
existing law. Water quality standards have already been established
under the Federal Water Pollution Control Act for al] of the waters
to which these bills relate except the waters of the contiguous zone, a
gap which will be closed if H.R. 5966, an Administration proposal to
amend the Federal Water Pollution Control Act, is enacted. H.R.
5966 would also make these standards enforceable by civil penalty and
injunction. Under H.R. 4723, the Administration's ocean dumping
proposal, the Administrator of EPA would be precluded from issuing
permits which violate water quality standards, and under the Refuse
Act Permit Program, the Corps of Engineers will not issue permits
which violate or permit a violation of these standards. Moreover, H.R.
1383 and 805, by calling for Federal standards which shall govern
unless the States adopt more stringent standards, are inconsistent with
the established policy of the Federal Water Pollution Control Act,
which places the primary responsibility for the establishment of water
quality standards on the States.
H.R. 285 AND H.R. 083
H.R. 285 would require the Secretary of the Interior, acting through
the Fish and Wildlife Service, after a two-year study, to designate
those portions of the navigable waters of the United States and of the
waters above the Outer Continental Shelf into which he determines
that sewage, sludge, spoil and other waste can be safely discharged (in
terms of ecological and environmental values). After making such
designations, the Secretary of the Interior would be required to estab-
lish standards applicable to the discharge of material within such
designated areas. The purpose of the standards would be to insure
that no damage to wildlife, or pollution of United States navigable
waters, results from such discharges. States would be authorized to
establish standards of equal or greater stringency provided they con-
tain adequate procedures for enforcement. Discharges of sewage,
sludge, spoil or other waste into any waters within the jurisdiction of
the United States which are not within a designated discharge area
[p. 49]
525-312 O - T3 - 24
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1586 LEGAL COMPILATION—SUPPLEMENT I
would invite civil penalties of up to $10,000 per offense. Violators of
discharge standards applicable to discharge areas would be subject
to comparable civil penalties. District courts would have jurisdiction
to restrain violations. Outstanding Federal discharge permits would
be nullified on the effective date of the proposal. Thereafter, no Fed-
eral permits could be issued which would authorize any activity pro-
hibited by this bill.
H.R. 983 is the same as H.R. 285 except that (1) designation of dis-
charge areas would be carried out jointly by Interior and EPA; (2)
standard setting and enforcement would be carried out by EPA rather
than by Interior; and (3) the maximum authorized civil penalty per
violation would be $-10,000 rather than $10,000. Both bills define cov-
ered "discharges" to include "any spilling, leaking, pumping, pouring,
emitting, emptying, or dumping."
H.R. 285 and 983 are similar to H.R. 1383 and 805, discussed above,
except that they would be applicable to all United States navigable
waters, and would call for the designation of safe discharge areas as
well as for the establishment of discharge standards. EPA is opposed
to the enactment of these bills for the same reasons it is opposed to
enactment of H.R. 1363 and 805: basically, the fact that they are de-
signed to accomplish, in a somewhat different way, what is already
being accomplished under the Federal Water Pollution Control Act.
The overlap is even greater than in the case of H.R. 1383 and 805, in
view of the broad application to all "navigable" waters. Interstate
navigable waters are already subject to the standard-setting provi-
sions of the Federal Water Pollution Control Act, and intrastate
navigable waters will be brought within the coverage of that Act if
the Administration's H.R. 5966 is enacted.
H.R. 1095
H.R. 1095 would require the Secretary of the Interior, acting
through the Fish and Wildlife Service, after a one-year study, to
designate those portions of the navigable waters of the United States
and those portions of the waters above the Outer Continental Shelf
into which he determines that sewage, sludge, spoil, landfill, heated
effluents, or other wastes or substances cannot be safely discharged,
such areas to be known as "marine sanctuaries." Persons who dis-
charge (defined to include spilling, leaking, pouring, etc.) any wastes
or substances into such designated waters would be subject to fines of
up to $10,000 per offense. All Federal permits would be terminated to
the extent that they authorize any discharge into such areas, and no
new Federal permits authorizing such dumping could be issued.
The Secretary of the Interior would be required to establish stand-
ards applicable to the discharge of all wastes and substances into areas
not so designated as marine sanctuaries. Such standards would be for
the purpose of insuring against damage to marine life or wildlife, or
pollution of United States navigable waters. The standards would be
required to provide that no sewage or industrial waste may be dis-
charged: (1) after January 1. 1973, unless it has received at least
primary treatment or its equivalent; (2) after January 1,1975, unless
it has received at least secondary treatment or its equivalent; and (3)
after January 1,1977, unless it has received at least tertiary treatment
or its equivalent. States would be authorized to establish standards of
[p. 50]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1587
equal or greater stringency provided they contain adequate provisions
for enforcement. Dischargers of any waste or substance in violation
of the established standards would be subject to a civil penalty of not
more than $10,000 per day of violation. All Federal permits would be
terminated to the extent they authorize discharges which violate such
standards. District courts would have authority to restrain violations.
The Secretary of Defense would be required to make a complete
inventory of all existing munitions, chemical, biological, and radio-
logical warfare agents, and other military materials, the disposition
of which may present a danger to man, the environment, or to fish and
wildlife, and to determine the date beyond which each such item can-
not be safely retained. He would also be required to prepare a plan for
the demilitarization, detoxification or decontamination of such mili-
tary materials. After the date of enactment of the bill, he would be
required to determine such disposition dates and to prepare such dis-
position plans for any new military materials prior to acquiring them.
After the date of enactment of the bill, all disposal of such military
materials into any navigable or coastal wasters of the United States.
or into any international waters, would be prohibited.
Epa has the following comments with respect to this bill:
1. The establishment of "marine sanctuaries" has been dis-
cussed above in connection with H.R. 4359.
2. The establishment of discharge standards has been discussed
above in connection with H.R. 1383. 805, 285, and 983.
3. The prohibition against the discharge of sewage or indus-
trial wastes which have received less than a specified level of treat-
ment has been discussed above in connection with H.R. 3662.
4. EPA does not believe that a legislated ban on the dumping
of military materials is necessary. Recent policy declarations by
the Department of Defense indicate that an effective ban is al-
ready in effect or is being implemented. Furthermore, as already
discussed in connection with H.R. 3662, there may be the rare
exceptional case in which ocean disposal will present a lesser
threat to human health, welfare or the environment than land-
based disposal.
H.R. :i;;7 (ALSO .149, iissi) ; H.R. 4nS4; H.R. 4217 (ALSO 4218, 4719)
H.R. 337 would prohibit any person from discharging, into any of
the navigable waters of the United States or into international waters,
any munition, or any chemical, biological, or radiological warfare
agent, or any other military material, except in accordance with a cer-
tificate issued by the Council on Environmental Quality establishing
the terms, conditions and limitations of such disposal. H.R. 4584 is the
same as H.R. 337, except that the certificate would be issued jointly by
EPA and NO A A rather than by CEQ. H.R. 4217 is the same as H.R.
4584, except that the certifying authority would be EPA exclusively,
and the bill's requirements would apply not only to military materials
but also to "any other refuse matter of any kind or description
whatsoever."
EPA has the following comments on these bills:
1. All of them, applying to discharges by any person into inter-
national waters, without regard to citizenship or point of origin
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1588 LEGAL COMPILATION—SUPPLEMENT I
of the discharged material, may raise problems under interna-
tional law.
2. EPA prefers the comprehensive approach taken in H.R.
4723, which would apply a dumping permit requirement to a
broad range of materials, including military materials, to the ad
hoc approach of H.E. 337 and H.R. 4584.
3. CEQ serves an advisory rather than a regulatory function
and should not be the certifying authority as provided in H.E.
337. CEQ supports H.E. 4723, under which such regulatory au-
thority would be vested in EPA.
4. With respect to discharges into navigable waters, H.E.
4217 duplicates the requirements of the Eefuse Act of 1899, which
requires a permit from the Corps of Engineers for the discharge
of any refuse matter into navigable waters other than refuse flow-
ing from streets and sewers in a liquid state. Discharges not cov-
ered by the Eefuse Act are subject to control under the Federal
Water Pollution Control Act, and proposed amendments thereto.
H.R. 336 (ALSO 548, 1382, 1674)
This bill requires the CEQ to make an investigation and study of all
aspects of existing national policy with respect to the discharge of
materials into the Atlantic and Pacific Oceans, the Gulf of Mexico, and
other waters within the territorial sea or contiguous zone of the United
States, and to report to the President and Congress the results thereof,
and its recommendations for a national ocean dumping policy,
including any treaties, agreements or legislation necessary in connec-
tion therewith. EPA is of the opinion that CEQ has already per-
formed this task, as evidenced by its report entitled "Ocean Dump-
ing—A National Policy" submitted to the President in October, 1970.
The Administration's ocean dumping bill, H.E. 4723, is based on the
recommendations contained in that report.
The Office of Management and Budget has advised that there is no
objection to the presentation of this report and that enactment of
H.K. 4723 would be in accord with the program of the President.
Sincerely yours,
WILLIAM D. RUCKELSHATJS,
A dministrator.
DEPARTMENT OF THE ARMY,
Washington, D.C., April 7,1971.
Hon. EDWARD A. GARMATZ,
Chairman, Merchant Marine and Fisheries Committee,
House of Representatives.
DEAR MR. CHAIRMAN: Eeference is made to your request for the
views of the Department of Defense on H.E.'s 285, 336, 337, 548, 549,
805, 983, 1095, 1383, 1661, 3662, 4217, 4584 and 5050, 92nd Congress,
bills concerning the discharge of military or other material into inter-
national waters or waters of the United States, and the transportation
of that material for disposal into international waters. The Depart-
ment of the Army has been assigned responsibility for expressing the
views of the Department of Defense on these bills.
[p. 52]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1589
The purpose of the bills is to prohibit unregulated dumping into the
oceans and other waters. The Department of the Army on behalf of the
Department of Defense is deeply concerned about the adverse eco-
logical and environmental effects associated with the discharge of
wastes and other materials into the navigable, coastal, and ocean
waters of the United States. Each of these bills addresses some facet
of this area of concern. We are concerned, however, that certain of
these bills could unnecessarily prohibit some important activities not
necessarily harmful to the marine environment. We are especially con-
cerned that the prohibitive features of certain of these bills could be
construed as an attempt to preclude operation of U.S. nuclear pow-
ered warships, including the strategic deterrent Fleet Ballistic Mis-
sile Submarine force. Such a result would be untenable to the secu-
rity of the United States.
The Department of the Army on behalf of the Department of De-
fense believes that the Administration's bill, H.E. 4723, introduced
by you on February 22, 1971, to the 92nd Congress, realistically and
comprehensively provides for the intent expressed in the proposed
bills cited in the first paragraph, above, with respect to preventing
unregulated dumping of harmful substances into estuarine areas.
This report has been coordinated within the Department of De-
fense in accordance with procedures prescribed by the Secretary of
Defense.
The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there is no objection to the
presentation of this report for the consideration of the Committee.
Sincerely,
STANLEY E. EESOR,
Secretary of the Army.
U.S. ATOMIC ENERGY COMMISSION,
Washington, D.G. April 7,1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of
Representatives.
DEAR MR. GARMATZ : The Atomic Energy Commission is pleased to
reply to your requests for our views on H.E. 805, H.E. 1383, H.E. 1661,
H.E. 3662, H.E. 4247, H.E. 4359, H.E. 4723, and H.E. 5050, bills relat-
ing to waste discharges in the oceans and coastal or other waters.
H.R. 805 and H.R. 1383: These bills are similar. H.E. 805 would re-
quire the Administrator of EPA and the Secretary of Interior, in con-
sultation with the Secretary of the Army, to establish standards for the
discharge into the oceans, coastal waters, and other waters of the
United States of all materials "that might be harmful to the wildlife
or wildlife resources or to the ecology of these waters." Such standards
would have to be adopted and enforced by, and would be applicable to,
Federal and State agencies. Under H.E. 1383 the Secretary of Interior,
rather than the Administrator of EPA, would establish the standards.
Each state would be permitted to establish standards more stringent
than the Federal standards with respect to activities within its
jurisdiction.
[p. 53]
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1590 LEGAL COMPILATION—SUPPLEMENT I
H.R. 1661 and H.R. 5050: These bills, which are identical, would im-
pose a specific prohibition on an owner or master of a vessel, in regard
to the loading of any waste on a vessel, while it is in a United States
port, if the material is to be dumped in territorial or international wa-
ters. An authorizing permit would first have to be obtained from the
Administrator of the Environment Protection Agency; such authori-
zation would be based on the Administrator's determination that the
discharge would not damage the marine environment or human health
and welfare. The Administrator would be precluded from authorizing
any discharges of wastes between the Continental Shelf and the coast
of the United States. The owner or master of the vessel would also be
required to notify the Coast Guard of the exact location where the au-
thorized dumping would be effected.
H.R. 3662 andl
H.R. 4359: These similar bills would prohibit any
person from dumping waste material into the coastal or ocean waters
of the United States, including the Great Lakes and estuarine areas,
without first obtaining a permit from the Administrator of EPA. The
Administrator could issue the permit if he determined that the dis-
charge would not damage the ecology of the marine environment; the
Administrator would be obliged to take into account a number of fac-
tors specified in the bills, including the effect of the dumping on hu-
man health and welfare. No permit could be issued for the disposal of
certain specified wastes, including "radioactive wastes". Sections 9 (a)
of H.K. 4359 (not contained in H.R. 3662) would require that the Sec-
retary of Commerce designate portions of the waters encompassed by
the bill, as well as adjacent land areas, as marine sanctuaries. The Ad-
ministrator of EPA would be prohibited from issuing or renewing
any permit for the disposal of any wastes "in any area designated or
under study for possible designation as a marine sanctuary."
H.R. 4247 and H.R. 4723: These identical bills, which are favored
by the Administration, would (1) carefully regulate the transporta-
tion of materials from the United States for the purpose of disposal
in the oceans and coastal and other waters of the United States, and
(2) dumping in waters over which the United States has jurisdiction.
The term "dumping" and other key words in these bills are clearly
defined. Both transportation and dumping would be prohibited unless
the Administrator of EPA issues an authorizing permit. The Admin-
istrator may issue such permits "where the applicant presents infor-
mation respecting the proposed activity which in the judgment of the
Administrator indicates that such transportation, or dumping, or both
will not unreasonably degrade or unreasonably endanger human
health, welfare, or amenities, or the marine environment, ecological
systems, or economic potentialities."
In reviewing permit applications the Administrator would be
guided by criteria to be established by him in consultation with cer-
tain named Federal agencies, including the Atomic Energy Commis-
sion, as Avell as "other appropriate Federal, State, and local
officials."
The Administrator would have very broad authority with respect
to types and scopes of permits, but no permit could be issued for dump-
ing that would violate applicable water quality standards. The bills
provide that transportation or dumping without a permit would be
permitted in emergency situations where necessary to safeguard hu-
[p. 54]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1591
man life; in such excepted instances, reports must be furnished to
the Administrator ''within such time and under such conditions as
he may prescribe by regulation."
Under the caption ''Relationship to Other Laws'' the bills provide,
among other tilings, that:
"(b) Nothing in this Act shall abrogate or negate any existing
responsibility or authority contained in the Atomic Energy Act
of 1954, as amended, and section 4 and subsection T(a) of this
Act shall not apply to any activity regulated by that Act: Pro-
vided,, 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 radia-
tion exposures or levels, or concentrations or quantities of radio-
active 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)(l) and 5(a)(2) of this Act."
This provision recognizes that the Atomic Energy Act of 1954, as
amended, vests the Atomic Energy Commission with regulatory au-
thority over the construction and operation of nuclear facilities and
the possession and use of certain defined nuclear materials, including
the disposal of all radioactive materials, except radioactive material
produced in accelerators and naturally occurring radium and its
daughters.
AEC has not permitted ocean disposal of high-level radioactive
wastes from fuel reprocessing operations. Although the disposal of
low-level liquid wastes from such facilities as nuclear power plants and
the dumping of solid, packaged radioactive wastes into the ocean have
been permitted, AEC has strictly controlled and limited the quantities
and types of wastes disposed in this manner. In fact, AEC itself has
made no sea disposals during the past eight years and has not issued
any licenses for this purpose since 1960. The four exiting licenses have
seldom been used.
The discharge of radioactive effluents from AEC licensed facilities
is subject to a comprehensive system of Federal regulations and licens-
ing requirements, which are contained in 10 CFR Parts 20 and 50 of
the Commission's regulations. These regulations are based upon recom-
mendations which have been made by the Federal Radiation Council.
Pursuant to Reorganization Plan No. 3 of 1970 (effective December 2,
1970) the functions of the FRO were transferred to the Environmental
Protection Agency, which now has the responsibility to set standards
for the protection of the general environment from radioactive mate-
rials. As with the disposal of radioactive wastes, the AEC has exer-
cised its authority over the discharge of radioactive effluents by strictly
controlling and limiting such releases. We do not believe that experi-
ence has shown any need for an additional system of control over such
discharges or disposal.
Unlike the other bills mentioned above, H.R. 4247 and H.R. 4723
avoid the problem of dual regulation in the atomic energy field. Under
these bills AEC would be required to consult with the Administrator
[p. 55]
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1592 LEGAL COMPILATION—SUPPLEMENT I
before issuing a permit for any activity which would otherwise be
within the scope of the statute, and would also be required to comply
with the standards set by the Administrator respecting limits on radia-
tion exposures or levels, or concentrations or quantities of radioactive
material.
In our view, the proposed legislation embodied in H.E. 4247 and
H.B. 4723 would provide for more comprehensive and effective regula-
tion of the discharge of materials into the marine environment than
would the other bills. Moreover, we feel that enactment of any of the
other bills could give rise to serious problems which are avoided in the
careful draftsmanship of the proposed legislation of the President.
We recommend that favorable consideration be given to enactment
of the text of H.E. 4247 and H.E. 4723. We believe that the other bills,
which cover many of the same areas as H.E. 4247 and H.E. 4723, are
not as well drawn as those two bills, and should not be enacted into law
in their present form.
The Office of Management and Budget has advised that there is no
objection to the presentation of this report from the standpoint of tb"
Administration's program.
Cordially,
GLENN T. SEABOEG,
Chairman.
DEPARTMENT or THE NAVY,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, D.C., April 81,1971.
Hon. EDWARD A. GARMATZ,
Chairman* Committee on Merchant Marine and 'Fisheries, House of
Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : Your request for comment on H.E. 4359, a
bill "To amend the Act of August 3,1968 (82 Stat. 625), to protect the
ecology of estuarine areas by regulating dumping of waste materials,
to authorize the establishment of a system of marine sanctuaries, and
for other purposes," has been assigned to this Department by the
Secretary of Defense for the preparation of a report expressing the
views of the Department of Defense.
The purpose of the bill is to amend the Act of August 3, 1968 (82
Stat. 625), to provide for the protection of the ecology of estuarine
areas by regulating the dumping of waste materials, the authorization
of the establishment of a system of marine sanctuaries, and the imple-
mentation of these general goals.
The Department of the Navy, on behalf of the Department of De-
fense, is deeply concerned about the adverse ecological and environ-
mental effects associated with the discharge of wastes and other ma-
terials into the oceans, coastal, and other waters. We are also con-
cerned, however, that certain features of H.E. 4359 could unneces-
sarily prohibit some important activities not necessarily harmful to
the marine environment. We are especially concerned that the pro-
posed new section 7(c) (1) to the Act of August 3,1968, as set forth in
section 3 of H.E. 4359, could be construed to preclude operation of
Fleet Ballistic Missile Submarine force. Such a result would be un-
tenable to the security of the United States.
[p. 56]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1593
We are also concerned that the bill could be construed to apply to
areas over which the United States does not have jurisdiction. Under
international law a state has complete jurisdiction over its territorial
seas, subject only to the right of innocent passage. The United States'
territorial waters extend three miles seaward from the mean low-
water line. Beyond this territorial sea the United States has sovereign
rights for the purpose of exploring and exploiting the natural re-
sources of its continental shelf and also has the right to enforce its
customs, fiscal, immigration or sanitary regulations within a zone of
the high seas contiguous to its territorial sea. (Article 2, 1958 Geneva
Convention on the Continental Shelf, TIAS 5578; Article 24, 1958
Geneva Convention on the Territorial Sea and the Contiguous Zone,
TIAS 5639.) Under the 1958 Geneva Convention on the Territorial
Sea and Contiguous Zone the extent of the contiguous zone must be
no more than 12 nautical miles. In addition, customary international
practice presently recognizes the coastal state's right to control fishing
within 12 miles of its coast. In consonance with the recognized inter-
national practice, a 9-mile fisheries zone contiguous to the United
States 3-mile territorial sea was established by the United States in
1966 (Public Law 89-658; 16 U.S.C. 1091-1094).
As presently formulated, H.E. 4359 would provide for unilaterial
United States regulation and control of activities well beyond these
specialized jurisdictional rights recognized under international law.
Such unilateral claims which go beyond the confines of recognized
international law, although couched in terms of domestic legislation,
can and frequently are used as a basis for exaggerated offshore juris-
dictional claims by other nations. Such unwarranted extensions of off-
shore jurisdiction erode the principle of freedom of the high seas
which is essential for naval mobility.
H.K. 4359 would authorize the Secretary of Commerce to designate
as marine sanctuaries those areas which the Secretary determines
should be preserved or restored. The exercise of this authority con-
ceivably could restrict or prohibit research, development, testing, sur-
vey work, or training exercises conducted by, or under the sponsorship
of, the Department of Defense, without prior coordination with the
Department of Defense.
The Department of the Navy, on behalf of the Department of De-
fense, believes that the Administration's well drafted, comprehensive
bill, H.K. 4723, introduced by you on February 22, 1971, to the 92nd
Congress, realistically provides for the intent expressed in H.E. 4359
with respect to preventing harmful, unregulated dumping into the
oceans, coastal, and other waters. The Department of the Navy, on
behalf of the Department of Defense, therefore favors H.R. 4723, in
lieu of H.E. 4359.
This report has been coordinated within the Department of Defense
in accordance with procedures prescribed by the Secretary of Defense.
The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there is no objection to the
presentation of this report for the consideration of the Committee.
For the Secretary of the Navy.
Sincerely yours,
LANDO W. ZECH, Jr.,
Captain, U.S. Navy,
Deputy Chief.
[p. 57]
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1594 LEGAL COMPILATION—SUPPLEMENT I
DEPARTMENT OF STATE,
Washington, D.C., April 7,1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
flou.se of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: The Secretary has asked me to reply to your
letter of February 26, 1971, enclosing for the Department's comments
copies of H.R. 4247 and H.K. 4723, bills cited as the "Marine Pro-
tection Act of 19712'.
The Department's views on this legislation, which we fully support,
are set forth in the prepared statement delivered to your Committee
in advance of the hearings today at which the Department's Legal
Adviser, John R. Stevenson, is testifying on this general subject.
The, Department recommends favorable action on this legislation
which the Office of Management and Budget advises is in accord with
the program of the President.
Sincerely yours,
DAVID M. ABSIIIRE.
Assistant Secretary for Congressional Relations.
DEPARTMENT OF AGRICULTURE.
OFFICE OF THE SECRETARY,
Washington, D.C., April 19,1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries.
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : This is in response to your request for reports
on H.R. 4247 and H.R. 4723, bills "To regulate the dumping of ma-
terial in the oceans, coastal, and other waters and for other purposes."
This Department supports the enactment of H.R. 4247 and H.R.
4723 which carry out the recommendations set forth by the President
in his February 8,1971, message on the environment.
Under these bills, the Administrator of the Environmental Protec-
tion Agency would be authorized to issue permits for dumping ma-
terials into oceans, coastal, and other waters when, in his judgment,
such dumping will not unreasonably endanger human health, welfare,
or amenities, or the marine environment, ecological systems, or eco-
nomic potentialities.
The Administrator, EPA, would be directed to establish criteria
for evaluating permit applications on the basis of their likely environ-
mental impact including (1) possible persistence of the effects of the
proposed dumping, (2) volume and concentration of materials in-
volved, and (3) the location proposed for dumping.
Of especial interest to this Department is the provision (Sec. 5 (a)2)
that the Administrator, EPA, consider "alternate locations and meth-
ods of disposal including land-based alternatives. . . ." Since most
of the land in the United States is rural land, used for farming or
[p. 58]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1595
forestry, this Department is concerned with any land-based alterna-
tives which might be considered. The Department of Agriculture has
information and expertise relevant to the suitability of various land
sites for disposal of solids, either as sanitary landfills or through
methods by which many solids may be beneficially incorporated in the
soil. We wish to point out that the bills very appropriately provide
that, in establishing or revising criteria against which dumping per-
mit applications would be approved or denied, the Administrator,
EPA, will consult with this Department, along with several other
interested Federal agencies.
The Office of Management and Budget advises that there is no ob-
jection to the presentation of this report from the standpoint of the
Administration's program.
Sincerely,
J. PHIL CAMPBELL,
Under Secretary.
GENERAL COUNSEL or THE DEPARTMENT OF DEFENSE,
Washington, D.O., April 9,1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives,
Washington, D.C.
DEAR MR. CHAIRMAN: Reference is made to your request for the
views of the Department of Defense on H.E. 4247 and H.R. 4723, 92d
Congress, similar bills "To regulate the dumping of material in the
oceans, coastal, and other waters and for other purposes".
The purpose of the bills is stated in their titles. If enacted, the
bills would make the Administrator of the Environmental Protec-
tion Agency responsible for establishing appropriate regulations for
the application of the environmental standards contained in the pro-
posals. Any agency or person would have to obtain a permit from
the Administrator before transporting material for dumping or be-
fore dumping materials in the protected areas. There are certain ex-
ceptions to this latter requirement for routine operation of vessels and
for intentional placement of devices in the waters, if such placement is
for a purpose other than disposal.
The bills were introduced as a result of a proposal submitted to
the Congress in connection with the President's environmental mes-
sage of February 8, 1971. The Department of Defense supports the
bills and recommends enactment.
The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there would be no objection to
the presentation of this report for the consideration of the Committee,
.and that the enactment of H.R. 4247 or H.R. 4723 would be in accord
with the program of the President.
Sincerely yours,
J. FKED BUZHARDT.
[p. 59]
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1596 LEGAL COMPILATION—SUPPLEMENT I
COMBINED EEPOET ON H.R. 285, H.R. 805, H.R. 983, AND H.R. 1095,
92o CONGRESS, RELATED BILLS TO AMEND THE FISH AND WILDLIFE
COORDINATION ACT
FEDERAL POWER COMMISSION.
Washington, D.C., April 16, 1971.
Hon. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries, House of
Representatives, Longworth House Office Building, Washing-
ton, D.C.
DEAR MR. CHAIRMAN : In response to your requests of February 9
and February 17, 1971, we enclose 20 copies of the report of the Fed-
eral Power Commission on the subject bills.
The Office of Management and Budget advises there is no objection
to the presentation of this report and, that enactment of H.R. 4723
would be in accord with the program of the President.
Sincerely,
JOHN N. NASSIKAS,
Chairman.
FEDERAL POWER COMMISSION
REPORT ON RELATED BILLS, H.R. 285, H.R. 805, H.R. 983 AND
H.R. 1095—92o CONGRESS
H.R. 285
A BILL To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by re-
quiring the designation of certain water and submerged lands areas
where the depositing of certain waste materials will be permitted,
to authorize the establishment of standards with respect to such
deposits, and for other purposes.
H.R. 805
A BILL To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by pro-
viding for orderly regulation of dumping in the ocean, coastal, and
other waters of the United States.
H.E. 983
A BILL To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by requir-
ing the designation of certain water and submerged lands areas
where the depositing of certain waste materials will be permitted,
to authorize the establishment of standards with respect to such
deposits, and for other purposes.
H.R. 1095
A BILL To amend the Fish and Wildlife Coordination Act to pro-
vide additional protection to marine and wildlife ecology by re-
[p. 60]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1597
quiring the designation of certain water and submerged land areas
where the depositing of certain waste materials is prohibited, to re-
quire the establishment of standards with respect to such deposits
in all other areas, and for other purposes.
H.E. 285 would amend the Fish and Wildlife Coordination Act to
provide additional protection to the ecology of the Nation's marine
and fresh waters by authorizing the Secretary of the Interior acting
through the Fish and Wildlife Service to designate those portions of
the navigable waters of the United States, of the waters above the
Outer Continental Shelf, and of the submerged lands relating to those
waters, on which sewage, sludge, spoil or other waste can be safely
discharged. H.E. 285 would direct the Secretary of the Interior to
establish standards applicable to the discharge of material within
designated discharge areas "for the purpose of insuring that no dam-
age to, or loss of, any wildlife or wildlife resources or pollution of the
navigable waters of the United States will result from such activity."
The bill would also permit the States to establish more stringent dis-
charge standards. Initial designation of discharge areas would be
delayed for two years after enactment of the bill pending completion
of an investigation and study of potential discharge areas by the
Secretary of the Interior in cooperation with the Secretary of the
Army acting through the Chief of Engineers. H.E. 285 contains en-
forcement provisions (subsections (g) and (k) and provides civil
penalties for discharge of waste in undesignated areas and for viola-
tion of applicable discharge standards (subsection (i))- Subsection
(j) provides that:
"(j) Upon the designation of waters or submerged lands under
subsection (a) of this section, all licenses, permits, or authoriza-
tions 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 authorize any
activity prohibited by subsection (i) of this section. Thereafter
no license, permit, or authority shall be issued by any officer or
employee of the United States which would authorize any activ-
ity prohibited by subsection (i) of this section."
H.E. 805 would require the Administrator of the Environmental Pro-
tection Agency and the Secretary of the Interior (acting through the
United States Fish and Wildlife Service) in consultation with the
Secretary of the Army (acting through the Chief of Engineers), to
establish standards for the discharge of waste:
". . . for the purpose of insuring that no damage to the natural
environment and ecology including but not limited to marine
and wildlife ecology of the ocean, coastal, and other waters of the
United States, will result from any such activity. ..."
H.E. 805 would also permit the imposition of more stringent state
standards.
H.E. 805 does not provide for the designation of areas within which
waste may be safely deposited. Instead, the bill would require any
person, before depositing or discharging industrial wastes, sludge,
spoil or other materials into the ocean, coastal, or other wasters of the
United States, to "present sufficient evidence to sustain a burden of
proof that such materials in the location in which they are to be
deposited will not endanger the natural environmental and ecology
[p. 61]
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1598 LEGAL COMPILATION—SUPPLEMENT I
of these waters and to meet such additional requirements as the Ad-
ministrator may deem necessary for the orderly regulation of such
activity." The bill further provides in subsection (d) that the stand-
ards established "shall be applicable to all of the departments, agen-
cies, and instrumentalities or the Federal Government, to the States
and their agencies, including any person having any license, permit,
or other authorization from such State or agency for any such activity
with respect to any such ocean, coastal, and other waters." The civil
penalties set forth under H.R. 805 are less stringent than those con-
tained in H.R. 285 and apply only to violations of discharge stand-
ards. Subsection (i) of H.R. 805 is much more stringent than the
parallel subsection (j) of H.R. 285 supra in that it provides:
"(i) Upon the effective date of this section 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."
Unlike the parallel provisions 1 in H.R. 285, H.R. 983 and H.R. 1095,
subsection (f) of H.R. 805, which relates to recordkeeping and report-
ing, does not provide for confidential treatment of information relating
to trade secrets.
H.R. 983 is substantially the same as H.R. 285, except for the follow-
ing differences. Under H.R. 983, the Secretary of the Interior, acting
through the Fish and Wildlife Service, and the Administrator of the
Environmental Protection Agency would have joint responsibility for
designating discharge areas. However, H.R. 983 would give the Ad-
ministrator of the Environmental Protection Agency, instead of the
Secretary of the Interior, sole responsibility for the determination of
applicable federal discharge standards. The civil penalties which H.R.
983 would establish are the most stringent of those provided in any of
the bills included in this report.
H.R. 1095 is similar to both H.R. 285 and H.R. 805, but is drafted in
a converse form. Under H.R. 1095, the Secretary of the Interior, acting
through the Fish and Wildlife Service, would be authorized to desig-
nate those areas into and onto which he determines certain waste ma-
terials cannot be safely discharged. Such areas then would be known
as "marine sanctuaries." Persons discharging waste in "marine sanc-
tuaries" would be subjected to heavy fines (Sec. 5B (e)). Initial desig-
nation of these areas would be delayed for one year after enactment of
the bill pending completion of an investigation and study of potential
"marine sanctuaries" by the Secretary of the Interior in cooperation
with the Secretary of the Army acting through the Chief of Engineers.
Section 5B (d) of H.R. 1095 would provide that once such areas were
designated as "marine sanctuaries",
"... all licenses, permits, or authorizations which have been
issued by any officer or employee of the United States under au-
thority of any other provision of law shall be terminated and of
no effect to the extent they authorize any activity prohibited by
subsection (e) of this section. Thereafter no license, permit, or au-
thority shall be issued by any officer or employee of the United
States which would authorize any activity prohibited by subsec-
tion (e) of this section."
Section oC(a) of H.R. 1095 would reqiure the Secretary of the In-
terior, within one hundred and eighty days after the designation of
!HR. 285, subsection (h) ; H.R. 983, subsection (h) ; H.R. 1095, section 50(b)
- . [p. 62]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1599
areas as "marine sanctuaries", to establish standards for the discharge
of waste materials2 in all other areas. The standard contained in this
section is again a federal "no damage" standard.8 The standard also
includes requirements for the treatment of wastes and like H.E. 805
would require persons before discharging wastes to "present sufficient
evidence that discharging materials in the location in which they are
to be deposited will not endanger the natural environment and ecol-
ogy" of the navigable and coastal waters of the United States and in-
ternational waters. Subject to certain exceptions which would allow
the States to establish more stringent standards, these stand-
ards would be binding on the States and state agencies as well as the
Federal Government and all federal agencies. Section 5C(b) would
allow the Secretary of the Interior to appoint officers to enter and
inspect property, plants and facilities in order to determine whether
there has been compliance with this section.
Section 5C(f), of H.E. 1095 would provide that:
"(f) Upon the issuance of standards under subsection (a) of
this section applicable to any area, all licenses, permits, or au-
thorizations which have been issued by any officer or employee
of the United States under authority of any other provision of
law with respect to discharges in an area shall be terminated
and of no effect to the extent they authorize any activity pro-
hibited by subsection (g) of this section."4
Unlike H.E. 285, H.B. 805, and H.E. 983, H.E. 1095 contains specific
requirements for disposal of military materials including chemical,
biological, and radiological warfare agents.
It is not entirely clear from the language of the bills, what impact
H.K. 285, H.E. 805, H.E. 983 and H.E, 1095 would have on the Com-
mission's responsibilities for licensing non-federal hydroelectric proj-
ects under Part I of the Federal Power Act (16 U.S.C. 792-823), and
for issuing certificates of public convenience and necessity for the con-
struction and operation of natural gas pipeline facilities under Sec-
tion 7 of the Natural Gas Act (15 U.S.C. 7l7f). It could well be argued
that the definitions of wastes used in the bills are not intended to en-
compass discharges from non-federal hydroelectric power plants or
from natural gas pipeline facilities. H.E. 805 could have a similarly
limited impact by virtue of its narrower definition of "ocean, coastal,
and other waters".
The Commission opposes enactment of H.E. 805 in its present form
because subsection (i) would terminate all FPC licenses, permits and
certificates on the date H.E. 805 becomes effective. We believe that
enactment of H.E. 905 would seriously impair the attainment of an
adequate supply of electric energy throughout the United States. The
proposed bill is contrary to the national policy of comprehensive de-
velopment of the Nation's water resources articulated in Part I of the
Federal Power Act. (First Iowa Hydro-Electric Cooperative v. F.P.C.
328 U.S. 152,180-181 (1946).
2 In describing the wastes affected by the bill, H.R. 1095 unlike H.R 285 H.R 805
and H.R. 988, refers specifically to heated effluents and to' solid, liquid or gas wastes
(§§5B(e), 5C(a)).
8 "Such standards shall be for the purpose of insuring that no damage to or loss of
any marine life or wildlife or other resources necessary for the ecological balance of the
area or pollution of the navigable waters of the United States will result from any such
activity ..." § 5C(a).
* Subsection (g) would subject persons discharging wastes in violation of established
standards to heavy fines. _ _
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1600 LEGAL COMPILATION—SUPPLEMENT I
While the Commission supports their basic intent, we question
whether the provisions in H.E. 285, H.E. 983 and H.E. 1095 repre-
sent the best or most orderly means of achieving the general objectives
of these bills. We believe that the comprehensive approach embodied
in H.E. 4723, the Administration's proposed "Marine Protection
Act of 1971" offers a significantly better solution to the growing prob-
lem of unregulated ocean dumping. Under that proposal the Admin-
istrator of the Environmental Protection Agency would be authorized
to issue permits for the dumping in the oceans, coastal and other waters
of materials which he determines "will not unreasonably degrade or
unreasonably endanger human health, welfare or amenities of the
marine environment, ecological systems or economic potentialities".
In reviewing and evaluating individual permit applications the Ad-
ministrator would apply criteria which extend to both (1) the likely
impact of the proposed dumping on human health and welfare and
the marine environment and (2) alternative disposal locations, the
probable impact of requiring the use of such alternative locations and
the public interest considerations associated with issuing or denying
permits. In establishing or revising such criteria the Administrator
would have the benefit of the comments and suggestions of various
Federal agencies, including those of the Federal Power Commission.
The Commission also questions the practicality of the absolute "no
damage" standard contained in the bills. In practice, this standard
would have the effect of prohibiting any discharge of waste material
into navigable or coastal waters. The federal "no damage" standard
and the more stringent state standards which could be imposed under
H.E. 285, H.E. 805, H.E. 983 and H.E. 1095, could well, if pressed
too far, impair or defeat the attainment of other national objectives,
including the development of adequate utility services and the produc-
tion of needed supplies of industrial goods. The Commission is cog-
nizant of the importance of protecting marine and wildlife resources.
However, the Commission believes the more flexible case-by-case ap-
proach utilized in H.E. 4723, the Administration bill, would be
preferable.
The Commission has no comments to offer on the provisions of H.R.
1095 which relate to the disposal of military wastes.
The Office of Management and Budget advises there is no objection
to the presentation of this report and, that enactment of H.E. 4723
would be in accord with the program of the President.
FEDERAL POWER COMMISSION,
JOHN N. NASSIKAS, Chairman.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
May 10,1971.
Hon. EDWARD A. GARMATZ,
Chairman. Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : This letter is in response to your request of
February 26, 1971, for reports on H.E. 4247 and H.E. 4723, bills "To
regulate the dumping of material in the oceans, coastal, and other
waters and for other purposes.'" ._ -
[p. 64]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1601
These identical bills embody an Administration proposal trans-
mitted to the Congress by the Administrator of the Environmental
Protection Agency on February 10,1971. They would prohibit, except
as authorized by the Administrator of the Environmental Protection
Agency, the transportation of material from the United States for
the purpose of dumping it into the "oceans, coastal, and other waters,1'
and the dumping of material into the "oceans, coastal, and other
waters" of the United States. Nevertheless, the proposal would author-
ize the Administrator of the Environmental Protection Agency to
issue permits for such purposes where, in his judgment, such trans-
portation or dumping will not unreasonably degrade or endanger
human health, welfare, or amenities, or the marine environment, eco-
logical systems, or economic potentialities. It would require the Ad-
ministrator to develop criteria for reviewing and evaluating the issu-
ance of such permits, after consultation with the Secretaries of Com-
merce, Interior, State, Defense, Agriculture, Health, Education, and
Welfare, and Transportation, the Atomic Energy Commission, and
other appropriate Federal, State, and local officials.
In addition, the proposal would authorize the Administrator to
designate recommended sites for the dumping of specified materials.
Provision would be made for penalties for violation of the Act. The
proposal would also direct the Secretary of State, in consultation with
the Administrator of the Environmental Protection Agency, to seek
effective international action and cooperation to ensure protection of
the marine environment and would authorize him to formulate, pre-
sent, or support specific proposals in the United Nations and other
competent international organizations for such purposes.
The need for this new program is made clear in the President's
message of February 8, 1971, "Program for a Better Environment".
We urge its enactment.
We are advised by the Office of Management and Budget that enact-
ment of this proposal would be in accord with the Administration's
program.
Sincerely,
(S) ELLIOT L. RICHARDSON,
Secretary.
U.S. PEPARTMKXT OF THE INTERIOR,
OFFICE OF THE SECRETARY.
Washington, D.O., April 5, 1971.
Hox. EDWARD A. GARMATZ,
Chairman, Committee on Merchant Marine and Fisheries,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : We respond to your request of February 26
for comment on H.R. 4247 and H.R. 4723. identical bills "To regu-
late the dumping of material in the oceans, coastal, and other waters
and for other purposes", the "Marine Protection Act of 1971".
The Department of the Interior strongly recommends enactment
of this Administration proposal to provide long sought regulation of
waste disposal in ocean, coastal, and Great Lakes waters of the United
States.
[p. 65]
^25-312 O - 73 - 25
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1602 LEGAL COMPILATION—SUPPLEMENT I
H.R. 4247 and H.R. 4723 would vest in the Administrator of the
pjiivironmental Protection Agency authority to control ocean dump-
ing of waste materials through issuance of permits and enforcement
of a prohibition against the unauthorized transport or dumping of
such material. In determining whether or not to approve a permit
application, the Administrator would be required to consider (1) the
impact of dumping on the marine environment and human welfare
and (2) other possible locations and methods of disposal, including
land-based alternatives, but in no event would a permit be issued for
a dumping in violation of applicable water quality standards. Section
5 provides authority to designate recommended sites for the dumping
of specified materials, and would allow the Administrator to deny,
alter or revoke a permit for the disposal of any material that could
threaten Iranian health or the marine environment.
Jurisdiction would extend to all persons, including Federal, State,
and foreign governmental organizations, who seek to dispose in terri-
torial waters of the United States or the adjacent contiguous zone, to
the extent that such disposal in the contiguous zone may affect the
territorial sea or territory of the United States. Section 6 provides a
civil penalty of not more than $50,000 for each violation of the prohibi-
tion against unauthorized transport or disposal and criminal sanctions
for knowing and willful violations. Surveillance would be conducted
by the Coast Guard, and legal action taken by the Attorney General
upon request of the Administrator. A thorough analysis of its draft
bill was transmitted to the Congress on February 10 by the Environ-
mental Protection Agency.
As your Committee is aware this Department has frequently ex-
pressed its opposition to the use of ocean waters for waste disposal.
Implicit in our opposition to all ocean dumping, however, has been
the recognition that feasible alternatives are not always available.
Our concern for the environmental effects of uncontrolled dumping
led to recent studies of the New York Bight and participation in the
review of ocean dumping generally which preceded the issuance on
October' 7. 1970 of "Ocean Dumping—A National Policy", a report
prepared by the Council on Environmental Quality.
We participated, too, in the preparation and review of legislation
to implement the Council's recommendations. The bills now pending
before your Committee, H.R. 4247 and H.R. 4723, are the end result
of close cooperation among those several Federal agencies with re-
sponsibility for the protection, conservation and management of our
Nation's natural resources. The Department of the Interior will pro-
vide whatever assistance it can to the Administrator of the Environ-
mental Protection Agency under section 5 (a) of the Marine Protection
Act of 1971.
President Nixon noted in his environmental message of February 8
that ocean disposal has a number of harmful effects, including destruc-
tion of marine life, decreased abundance of fish and other economic
resources, modification of marine ecosystems, and impairment of aes-
thetic values. We urge prompt enactment of H.R. 4247 or H.R. 4723,
as the President suggested, ''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",
[p. 66]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1603
The Office of Management and Budget has advised that this report
is in accord with the program of the President.
Sincerely yours,
HARRISON LOESCH.
Assistant Secretary of the Interior.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of Rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, existing law in which no change is pro-
posed is shown in roman) :
SECTION 20 OF THE ACT OF MARCH 3, 1899
SEC. 20. That under emergency, in the case of any vessel, boat, water
craft, or raft, or other similar obstruction, sinking or grounding, or
being unnecessarily delayed in any Government canal or lock, or in
any navigable waters mentioned in section nineteen, in such manner
as to stop, seriously interfere with, or specially endanger navigation,
in the opinion of the Secretary of War, or any agent of the United
States to whom the Secretary may delegate proper authority, the Sec-
retary of War or any such agent shall have the right to take immediate
possession of such boat, vessel, or other water craft, or raft, so far as
to remove or to destroy it and to clear immediately the canal, lock, or
navigable waters aforesaid of the obstruction thereby caused, using
his best judgment to prevent any unnecessary injury; and no one shall
interfere with or prevent such removal or destruction: Provided, That
the officer or agent charged with the removal or destruction of an
obstruction under this section may in his discretion give notice in writ-
ing to the owners of any such obstruction requiring them to remove it;
And provided further, That the expense of removing any such obstruc-
tion as aforesaid shall be a charge against such craft and cargo; and
if the owners thereof fail or refuse to reimburse the United States for
such expense within thirty days after notification, then the officer or
agent aforesaid may sell the craft or cargo, or any part thereof that
may not have been destroyed in removal, and the proceeds of such sale
shall be covered into the Treasury of the United States.
Such sum of money as may be necessary to execute this section and
the preceding section of this Act is hereby appropriated out of any
money in the Treasury not otherwise appropriated, to be paid out on
the requisition of the Secretary of War.
That all laws or parts of laws inconsistent with the foregoing sec-
tions nine to twenty, inclusive, of this Act are hereby repealed: Pro'
vided. That no action begun or right of action accrued prior to the
passage of this Act shall be affected by this repeal [: Provided further,
That nothing contained in the said foregoing sections_ shall be con-
strued as repealing, modifying, or in any manner affecting the provi-
sions of an Act of Congress approved June twenty-ninth, eighteen
hundred and eighty-eight, entitled "An Act to prevent obstructive and
injurious deposits within the harbor and adjacent waters of New York
[p. 6T]
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1604 LEGAL COMPILATION—SUPPLEMENT I
City, by dumping or otherwise, and to punish and prevent such
offenses," as amended by section three of the river and harbor Act of
August eighteenth, eighteen hundred and ninety-four].
ACT OF JUNE 29, 1888
[SEC. 1. That the placing, discharging, or depositing, by any process
or in any manner, of refuse, dirt, ashes, cinders, mud, sand, dredgings,
sludge, acid, or any other matter of any kind, other than that flowing
from streets, sewers, and passing therefrom in a liquid state, in the
waters of any harbor subject to this Act, within the limits which shall
be prescribed by the supervisor of the harbor, is hereby strictly for-
bidden, and every such act is made a misdemeanor, and every person
engaged in or who shall aid, abet, authorize, or instigate a violation of
this section, shall, upon conviction, be punishable by fine or imprison-
ment, or both, such fine to be not less than two hundred and fifty
dollars nor more than two thousand five hundred dollars, and the
imprisonment to be not less than thirty days nor more than one year,
either or both united, as the judge before whom conviction is obtained
shall decide, one half of said fine to be paid to the person or persons
giving information which shall lead to conviction of this misdemeanor.
[Si:c. 2. That any and every master and engineer, or person or per-
sons acting in such capacity, respectively, on board of any boat or
vessel, who shall knowingly engage in towing any scow, boat, or ves-
sel loaded with any such prohibited matter to any point or place of
deposit, or discharge in the waters of any harbor subject to this Act,
or to any point or place elsewhere than within the limits defined and
permitted by the supervisor of the harbor, shall be deemed guilty of
a violation of this act, and shall, upon conviction, be punishable as
hereinbefore provided for offenses in violation of section one of this
act, and shall also have his license revoked or suspended for a term
to be fixed by the judge before whom tried and convicted.
[SEC. 3. That in all cases of receiving on board of any scows or
boats such forbidden matter or substance as herein described, the
owner or master, or person acting in such capacity on board of such
scows or boats, before proceeding to take or tow the same to the place
of deposit, shall apply for and obtain from the supervisor of the har-
bor appointed hereunder a permit defining the precise limits within
which the discharge of such scows or boats may be made; and it shall
not be lawful for the owner or master, or person acting in such capac-
ity, of any tug or towboat to tow or move any scow or boat so loaded
with such forbidden matter until such permit shall have been ob-
tained; and every person violating the foregoing provisions of this
section shall be deemed guilty of a misdemeanor, and on conviction
thereof shall be punished by a fine of not more than one thousand nor
less than five hundred dollars, and in addition thereto the master of
any tug or towboat so offending shall have his license revoked or sus-
pended for a term to be fixed by the judge before whom tried and
convicted.
[And any deviation from such dumping or discharging place
specified in such permit shall be a misdemeanor, and the owner and
[p. 68]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1605
master, or person acting in the capacity of master, of any scows or
boats dumping or discharging such forbidden matter in any place
other than that specified in such permit shall be liable to punishment
therefor as provided in section one of the said Act of June twenty-
ninth, eighteen hundred and eighty-eight; and the owner and master,
or person acting in the capacity of master, of any tug or towboat tow-
ing such scows or boats shall be liable to equal punishment with the
owner and master, or person acting in the capacity of master, of the
scows or boats; and, further, every scowman or other employee on
board of both scows and towboats shall be deemed to have knowledge
of the place of dumping specified in such permit, and the owners and
masters, or persons acting in the capacity of masters, shall be liable to
punishment, as aforesaid, for any unlawful dumping, within the mean-
ing of this Act or of the said Act of June twenty-ninth, eighteen
hundred and eight-eight, which may be caused by the negligence or
ignorance of such scowman or other employee; and, further, neither
defect in machinery nor avoidable accidents to scows or towboats, nor
unfavorable weather, nor improper handling or moving of scows or
boats of any kind whatsoever shall operate to release the owneis and
master and employees of scows and towboats from the penalties here-
inbefore mentioned.
[Every scow or boat engaged in the transportation of dredgings,
earth, sand, mud, cellar dirt, garbage, or other offensive material of
any description shall have its name or number and owner's name
painted in letters and numbers at least fourteen inches long on both
sides of the scow or boat; these names and numbers shall be kept dis-
tinctly legible at all times, and no scow or boat not so marked shall be
used to transport or dump any such material. Each such scow or
boat shall be equipped at all times with a life line or rope extending
at least the length of and three feet above the deck thereof, such rope
to be attached to the coaming thereof, also with a life-preserver and a
life buoy for each person on board thereof, also with anchor to weigh
not less than two hundred and seventy-five pounds, and at least one
hundred feet of cable attached thereto; a list of the names of all men
employed on any such scow or boat shall be kept by the owner or
master thereof and the said list shall be open to the inspection of all
parties. Failure to comply with any of the foregoing provisions shall
render the owner of such scow or boat liable upon conviction thereof
to a penalty of not more than five hundred dollars.
[Each supervisor of a harbor is authorized and directed to appoint
inspectors and deputy inspectors, and, for the purposes of enforcing
this Act and the Act of August 18, 1894, entitled "An Act making
appropriations for the construction, repair, and preservation of cer-
tain public works on rivers and harbors, and for other purposes"
(28 Stat. 338), and of detecting and bringing to punishment offenders
against the same, the said supervisor of the harbor, and the inspectors
and deputy inspectors so appointed by him, shall have power and
authority:
[First. To arrest and take into custody, with or without process,
any person or persons who may commit any of the acts or offenses
prohibited by this section and by the Act of June twenty-ninth,
eighteen hundred and eighty-eight, aforesaid, or who may violate any
of the provisions of the same: Provided, That no person shall be
[p. 69]
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1606 LEGAL COMPILATION—SUPPLEMENT I
arrested without process for any offense not committed in the presence
of the supervisor or his inspectors or deputy inspectors, or either of
them: And provided further, That whenever any such arrest is made
the person or persons so arrested shall be brought forthwith before a
commissioner, judge, or court of the United States for examination
of the offenses alleged against him; and such commissioner, judge, or
court shall proceed in respect thereto as authorized by law in case of
crimes against the United States.
[Second. To go on board of any scow or towboat engaged in unlaw-
ful dumping of prohibited material, or in moving the same without a
permit, as required in this section of this Act, or otherwise violating
any of the provisions of this section of this Act, and to seize and hold
said boats until they are discharged by action of the commissioner.
judge, or court of the United States before whom the offending per-
sons are brought.
[Third. To arrest and take into custody any witness or witnesses
to such unlawful dumping of prohibited material, the said witnesses
to be released under proper bonds.
[Fourth. To go on board of any towboat having in tow scows or
boats loaded with such prohibited material, and accompany the same
to the place of dumping, whenever such action appears to be necessary
to secure compliance with the requirements of this Act and of the Act
aforesaid.
[Fifth. To enter gas and oil works and all other manufacturing
works for the purpose of discovering the disposition made of sludge.
acid, or other injurious material, whenever there is good reason to
believe that such sludge, acid, or other injurious material is allowed to
run into the tidal waters of the harbor in violation of section one of
the aforesaid Act of June twenty-ninth, eighteen hundred and eighty-
eight.
[Every person who, directly or indirectly, gives any sum of money
or other bribe, present, or reward, or makes any offer of the same to
any inspector, deputy inspector, or other employee of the office of any
supervisor of a harbor with intent to influence such inspector, deputy
inspector, or other employee to permit or overlook any violation of
the provisions of this section or of the said Act of June twenty-ninth,
e;ghteen hundred and eighty-eight, shall, on conviction thereof, be
fined not less than five hundred dollars nor more than one thousand
dollars, and be imprisoned not less than six months nor more than one
year.
[Every permit issued in accordance with the provisions of this
section of this Act, which may not be taken up by an inspector or
deputy inspector, shall be returned within four days after issuance to
the office of the supervisor of the harbor; such permit shall bear an
indorsement by the master of the towboat, or the person acting in such
capacity, stating whether the permit has been used, and, if so, the time
and place of dumping. Any person violating the provisions of this
section shall be liable to a fine of not more than five hundred dollars
nor less than one hundred dollars.]
[p. 70]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1607
[SEC. 4. That all mud, dirt, sand, dredgings, and material of every
kind and description whatever taken, dredged, or excavated from any
slip, basin, or shoal in any harbor subject to this Act, and placed on any
boat, scow, or vessel for the purpose of being taken or towed upon the
waters of that harbor to a place of deposit, shall be deposited and dis-
charged at such place or within such limits as shall be defined and spec-
ified by the supervisor of the harbor, as in the third section of this act
prescribed, and not otherwise. Every person, firm, or corporation being
the owner of any slip, basin, or shoal, from which such mud, dirt, sand,
dredgings, and material shall be taken, dredged, or excavated, and
every person, firm, or corporation in any manner engaged in the work
of dredging or excavating any such slip, basin, or shoal, or of remov-
ing such mud, dirt, sand, or dredgings therefrom, shall severally be
responsible for the deposit and discharge of all such mud, dirt, sand, or
dredgings at such place or within such limits so defined and prescribed
by said supervisor of the harbor; and for every violation of the pro-
visions of this section the person offending shall be guilty of an offense
against this act, and shall be punished by a fine equal to the sum of five
dollars for every cubic yard of mud, dirt, sand, dredgings, or material
not deposited or discharged as required by this section. Any boat or
vessel used or employed in violating any provision of this act, shall be
liable to the pecuniary penalties imposed thereby, and may be pro-
ceeded against, summarily by way of libel in any district court of the
United States, having jurisdiction thereof.
[SEC. 5. That an officer of the Corps of Engineers shall for each
harbor subject to this Act, be designated by the Secretary of the Army
as supervisor of the harbor, to act under the direction of the Chief of
Engineers in enforcing the provisions of this Act, and in detecting
offenders against the same. Each such officer shall have personal
charge and supervision under the Chief of Engineers, and shall direct
the patrol boats and other means to detect and bring to punishment
offenders against the provisions of this Act.
[SEC. 6. That the following harbors shall be subject to this Act :
[ (1) The harbor of New York.
[ (2) The harbor of Hampton Roads.
[(3) The harbor of Baltimore,
[SEC. 7. That for the purposes of this Act—
[(1) The term "harbor of New York" means the tidal waters of
the harbor of New York, its adjacent and tributary waters, and those
of Long Island Sound.
[(2) The term "harbor of Hampton Eoads" means the tidal waters
of the harbors of Norfolk, Portsmouth, Newport News, Hampton
Roads, and their adjacent and tributary waters, so much of the Chesa-
peake Bay and its tributaries as lies within the State of Virginia, and
so much of the Atlantic Ocean and its tributaries as lies within the
jurisdiction of the United States within or to the east of the State of
Virginia.
[(3) The term "harbor of Baltimore" means the tidal waters of the
harbor of Baltimore and its adjacent and tributary waters, and so
much of Chesapeake Bay and its tributaries as lie within the State
of Maryland.]
[p. 71]
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1608 LEGAL COMPILATION—SUPPLEMENT I
SECTION 2 OF THE ACT OF AUGUST 5, 1886
5SEC. 2. That in places where harbor-lines have not been established,
where deposits of debris of mines or stamp works can be made
without injury to navigation, within lines to be established by the
Secretary of War, said officer may, and is hereby authorized to, cause
such lines to be established; and within such lines such deposits may
be made, under regulations to be from time to time prescribed by
' [P'72]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1609
1.32a(2) SENATE COMMITTEE ON COMMERCE
S. REP. No. 92-451, 92d Cong., 1st Sess. (1971)
MARINE PROTECTION AND EESEAECH ACT OF 1971
NOVEMBER 12,1971.—Ordered to be printed
Mr. HOLLINGS, from the Committee on Commerce, with the concurrence
of the Committee on Public Works, submitted the following
REPORT
[To accompany H.R. 9727]
The Committee on Commerce, with the concurrence of the Committee
on Public Works, to which was referred the bill (H.R. 9727) to regulate
the dumping of material in the oceans, coastal and other waters, and
for other purposes, having considered the same, reports favorably
thereon with amendments and recommends that the bill as amended
do pass.
The amendments are as follows:
Strike out all after the enacting clause and insert the following:
That this Act may be cited as the "Marine Protection and Kesearch Act of 1971".
FINDING, POLICY, AND PURPOSE
SEC. 2. (a) Unregulated dumping of material into the oceans, coastal, and
other waters endangers human health, welfare, and amenities, and the marine
environment, ecological systems, and economic potentialities.
(b) The Congress declares that it is the policy of the United States to regulate
the dumping of all types of material into the oceans, coastal, and other waters
and to prevent or strictly 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 potential-
ities. To this end, it is the purpose of this Act to regulate the transportation of
material for dumping into the oceans, coastal, and other waters, and the dumping
of material by any person, subject to the jurisdiction of the United States from
any source if the dumping occurs in waters beyond the territorial jurisdiction of
the United States.
DEFINITIONS
SEC. 3. For the purposes of this Act the term—
(a) "Administrator" means the Administrator of the Environmental Protec-
tion 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,
the Great Lakes and their connecting waters, and the Saint Lawrence River.
[P- 1]
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1610 LEGAL COMPILATION—SUPPLEMENT I
(c) "Material" menus, but is not limited to, dredged material, solid waste,
incinerator residue, garbage, sewage, sludge, munitions, radiological, chemical,
and biological warfare agents, high-level radioactive waste, chemicals, biologi-
cal and laboratory waste, wrecked or discarded equipment, rock, sand, excava-
tion debris, and industrial, municipal, agricultural and other waste; but such
term does not mean oil within the meaning of section 11 of the Federal Water
Pollution Control Act, as amended (33 U.S.C. 1161) and does not mean sewage
from vessels within the meaning of section 13 of such Act (33 U.S.C. 1163).
(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 entity, or any officer, employee,
agent, department, agency, or instrumentality of the Federal Government (ex-
cept as to the provisions of subsections (a) through (f) of section 104), of any
State or local unit of government, or of any foreign government.
(f) "Dumping" means the addition of any material or combination of materials
to that part of the oceans, coastal and other waters beyond the territorial juris-
diction of the United States: Provided, That it does not mean a disposition of
any effluent from any outfall structure where such disposition is regulated under
the provisions of the Federal Water Pollution Control Act, as amended (33
U.S.C. 1151-1175), or under the provisions of section 13 of the Rivers and Har-
bors Act of 1899, as amended (33 U.S.C. 407), nor does it mean a routine discharge
of effluent incidental to the propulsion of, or operation of motor-driven equipment
on, vessels: Provided further, That It does not mean the construction of any
fixed structure or artificial island nor the intentional placement of any device in
the oceans, coastal, and other waters or on or in the submerged land beneath
such waters, for a purpose other than disposal, when such construction or
such placement is otherwise regulated by Federal or State law or occurs
pursuant to an authorized Federal or State program: And provided further,
That it does not include the deposit of oyster shells or other materials when
such deposit is made for the purpose of developing, maintaining, or harvesting
fisheries resources and is otherwise regulated by Federal or State law or occurs
pursuant to an authorized Federal or State program.
(g) "District court of the United States" includes the District Court of Guam,
the District Court of the Virgin Islands, the District Court of Puerto Rico, 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.
(h) "Secretary" means the Secretary of the Army.
(i) "Dredged material" means any material excavated or dredged frem the
navigable waters of the United States.
(j) "High-level radioactive waste" means the aqueous waste resulting from
the operation of the first cycle solvent extraction system, or equivalent, and the
concentrated waste from subsequent extraction cycles, or equivalent, in a facility
for reprocessing irradiated reactor fuels, or irradiated fiiel from nuclear power
reactors.
(k) "Transport or transportation" means the carriage by a vessel, and related
handling, of any material or combination of materials for the purpose of adding
such material or combination of materials to the oceans, coastal, and other
waters.
TITLE I—OCEAN DUMPING
PROHIBITED ACTS
SEC. 101. (a) No person shall transport any radiological, chemical, or biologi-
cal warfare agent or high-level radioactive waste, or, except as may be authorized
in a permit issued under this title, and subject to regulations issued under sec-
tion 106(c) hereof by the Secretary of the department in which the Coast Guard
is operating, any other material from the United States for the purpose of dump-
ing into the waters described in section 101 (b).
(b) No person shall dump any radiological, chemical or biological warfare
agent or high-level radioactive waste, or, except as may be authorized in a per-
mit issued under this title, any other material (1) in a zone contiguous to the
[p. 2]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1611
territorial sea of the United States, extending to a line twelve nautical miles sea-
ward from the base line from which the breadth of the territorial sea is measured,
to the extent that it may affect the territorial sea or the territory of the United
States, or (2) in said contiguous zone or in other high seas areas of the oceans,
coastal, and other waters, when transported by any person subject to the juris-
diction of the United States by the fact of removing material therefrom.
(c) No officer, employee, agent, department, agency, or instrumentality of the
United States shall transport any radiological, chemical, or biological warfare
agent or high-level radioactive waste, or, except as may be authorized in a permit
issued under this title, any other material from any location outside the territory
of the United States for the purpose of dumping it into the oceans, coastal, and
other waters.
ENVIRONMENTAL PROTECTION AGENCY PERMITS
SEC. 102. (a) Except in relation to radiological, chemical, and biological war-
fare agents and high-level radioactive waste, as provided for in section 101 of this
title, the Administrator may issue permits, after notice and opportunity for
public hearing, for the transportation of material for dumping or for the dumping
of material into the waters described in section 101 (b), where the Administrator
determines that such transportation, or dumping, or both, will not degrade or en-
danger human health, welfare, or amenities, or the marine environment, ecologi-
cal systems, or economic potentialities. The Administrator shall establish and
apply criteria for reviewing and evaluating such permit applications, and, in
establishing or revising such criteria, shall consider, but not be limited in his
consideration to, the following:
(A) The need for the proposed dumping.
(B) The effect of such dumping on human health and welfare, including
economic, esthetic, and recreational values.
(C) The effect of such dumping on fisheries resources, plankton, fish, shell-
fish, wildlife, shorelines and beaches.
(D) The effect of such dumping on marine ecosystems, particularly with
respect to—
(i) the transfer, concentration, and dispersion of such material and
its byproducts through biological, physical, and chemical processes,
(ii) potential changes in marine ecosystem diversity, productivity,
and stability, and
(iii) species and community population dynamics.
(E) The persistence and permanence of the effects of the dumping.
(F) The effect of dumping particular volumes and concentrations of such
materials.
(G) Appropriate locations and methods of disposal or recycling, including
land-based alternatives and the probable impact of requiring use of such
alternate locations or methods upon considerations affecting the public
interest.
(II) The effect on alternate uses of the oceans, such as scientific, study,
fishing, and other living resource exploitation, and nonliving resources
exploitation.
In establishing or revising such criteria, the Administrator shall consult with
the Secretaries of Commerce, Interior, State, Defense, Agriculture, Health, Edu-
cation, 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 Ad-
ministrator shall also consult with the Secretary. In reviewing applications for
permits, the Administrator shall make such provision for consultation with in-
terested Federal and State agencies as he deems useful or necessary.
(b) The Administrator may establish and issue various categories of permits,
including the general permits described in section 103(c).
(c) The Administrator may, considering the criteria established pursuant to
subsection (a) of this section, designate recommended sites or times for dump-
ing, and when he finds it necessary to protect critical areas, shall, after consulta-
tion with the Secretary, also designate sites or times within which certain
terials may not be dumped.
(d) Any application for a permit under this section for the transportation for
dumping or dumping of dredged material into the waters described in section
101 (b) shall be accompanied by a certificate from the Secretary that the area
[p. 3]
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1612 LEGAL COMPILATION—SUPPLEMENT I
chosen for dumping is the only reasonably available alternative and, unless the
Administrator finds that the material to be dumped will adversely affect munici-
pal water supplies, shellfish beds, wildlife, fisheries (including spawning and
breeding areas), or recreation areas, such permit shall issue.
PEBMIT CONDITIONS
SEC. 103. (a) Permits issued under this title shall 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; (5) any special provisions deemed necessary by the
Administrator, after consultation with the Secretary of the department in which
the ("oast Guard is operating, for the monitoring, surveillance, and enforce-
ment of the transportation or dumping; and (6) such other matters as the Ad-
ministrator deems appropriate.
(b) The Administrator may prescribe such processing fees for permits and
such reporting requirements for actions taken pursuant to permits issued by him
under this title as he deems appropriate.
(c) Notwithstanding any other provision of this title, the Administrator may
issue general permits tqr the transportation for dumping, or dumping, or both,
of specified material or classes of materials for which he may issue permits, which
he determines will have a minimal adverse environmental impact.
(d) Any permit issued under\this Act shall be reviewed not less frequently
than every three years, and if appropriate, revised. The Administrator may limit
or deny the issuance of permits, or may alter or revoke partially or entirely the
terms of permits issued by him under this title, for the transportation for dump-
ing, or the dumping, or both, of specified material, or classes of material, where
he finds that such material cannot be dumped^ consistently vrith the criteria and
other factors required to be applied in evaluating the permit application. 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.
(e) The Administrator shall require an applicant for a permit under this title
to provide such information as he may consider necessary to review and evaluate
such application.
(f) Information received by the Administrator as a part of any application or
in connection with any permit granted under this title shall be available to the
public as a matter of public record, at every stage of the proceeding subject to the
provisions of section 552 of title 5 of the United States Code. The final determina-
tion of the Administrator shall be likewise available.
(g) A copy of any permit issued under this title shall be placed in a con-
spicuous place in the vessel which will be used for the transportation or dumping
authorized by such permit, and an additional copy shall be furnished by the
issuing official to the Secretary of the department in which the Coast Guard is
operating, or his designee.
PENALTIES
SEC. 104. (a) Any person who violates any provision of this title, or of the
regulations promulgated under this title, or a permit issued under this title shall
be liable to a civil penalty of not more than $50,000 for each violation to be as-
sessed 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.
In determining the amount of the penalty, the gravity of the violation, prior
violations, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation shall be considered
by said Administrator. For good cause shown, the Administrator may remit or
mitigate such penalty. 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) of
this section, a person who knowingly violates this title, regulations promulgated
under this title, or a permit issued under this title shall be fined not more than
$50,000, or imprisoned for not more than one year, or both.
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WATER—STATUTES AND LEGISLATIVE HISTORY 1613
(c) Any person who knowingly makes any false statement, representation, or
certification in any application, record, report, plan, or other document filed or
required to be maintained under this Act or who falsities,' tampers with, or know-
ingly renders inaccurate any monitoring device or method required to be main-
tained under this Act, 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.
(d) For the purpose of imposing civil penalties and criminal fines under this
section, each day of a continuing violation shall constitute a separate offense as
shall the dumping from each of several vessels, or other sources.
(e) The Attorney General or his delegate may bring actions for equitable
relief to enjoin an imminent or continuing violation of this title, of regulations
promulgated under this title, or of permits issued under 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.
(f) A vessel, except a public vessel within the meaning of section 13 of the
Federal Water Pollution Control Act. as amended (33 U.S.C. 11(13), used in a
violation, shall be liable in rein 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; but no vessel shall be liable unless it shall appear
that one or more of the owners, or bareboat charterers, was at the time of the
violation a consenting party or privy to such violation.
(g) If the provisions of any permit issued under section 102 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.
(hid) Except as provided in paragraph (2) of this subsection any person
may commence a civil suit on his own behalf to enjoin any person, including the
United States and any other governmental instrumentality or agency (to the
extent permitted by the eleventh amendment to the Constitution), \\lio is alleged
to be in violation of any prohibition, limitation, criterion, or permit, established
or issued bv or under this title. The district courts shall have jurisdiction, with-
out regard to the amount in controversy or the citizens-hip of the parties, to
enforce such prohibition, limitation, criterion, or permit, as the case may be.
(2) Xo action may be commented—
(A) prior to sixty days after notice of the violation has been given to
the Administrator and to any alleged violator of the prohibition, limitation,
criterion, or permit; or
(U) if the Attorney General has commenced and is diligently prosecuting
a civil action in a court of the United States to require compliance with
the prohibition limitation, criterion, or permit; or
(C) if the Administrator has commenced action to impose a penalty pur-
suant to subsection (a) of this section, or has initiated permit revocation or
suspension proceedings under subsection (f) of this section: or
(D) if the United States has commenced and is diligently prosecuting
a criminal action in a court of the United States or a State to redress a viola-
tion of this title.
(3) (A) Any suit under this subsection may be brought only in the judicial
district in which the violation occurs.
(R) In any such suit under this subsection in which the United States is not
a party, the Attorney General, at the request of the Administrator, may intervene
on behalf of the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant to para-
graph (1) of this subsection may award costs of litigation (including reasonable
attorney and expert witness fees) to any party, whenever the court determines
such award is appropriate. The court may, if a temporary restraining order
or preliminary injunction is sought, require the filing of a bond or equivalent
security in accordance with the Federal Rules of Civil Procedure.
(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).
(i) No person shall be subject to a civil penalty or to a criminal fine or im-
prisonment for dumping materials from a vessel if such materials are dumped in
an emergency to safeguard life at sea. Any such emergency dumping shall be
reported to the Administrator under such conditions as he may prescribe.
[p. 5]
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1614 LEGAL COMPILATION—SUPPLEMENT I
RELATIONSHIP TO OTHER LAWS
SEC. 105. (a) After the effective date of this title, all licenses, permits, and
authorizations other than those issued pursuant to this title shall be void and
of no legal effect, to the extent that they purport to authoriae any activity regu-
lated by this title, and whether issued before or after the effective date of this
title.
(b) Prior to issuing any permit under this title, if it appears to the Admin-
istrator that the disposition of the material, other than dredged or fill material,
to be transported for dumping or to be dumped 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 and
no permit shall be issued if the Secretary determines that navigation will be un-
reasonably impaired.
(c) After the effective date of this title, no State shall adopt or enforce any
rule or regulation relating to any activity regulated by this title. Any State
may, however, propose to the Administrator criteria relating to the dumping of
materials into the waters described in subsection 101 (b) which might affect
waters within the jurisdiction of such State and, if the Administrator deter-
mines, after notice and opportunity for hearing, that the proposed criteria are
not inconsistent with the purposes of this title, he may adopt those criteria and
may issue regulations to implement such criteria. Such determination shall be
made by the Administrator within one hundred and twenty days of receipt of the
proposed criteria. For the purposes of this subsection, the term "State" means
any State, interstate, or regional authority, Federal territory or Commonwealth,
or the District of Columbia.
(d) Nothing in this title shall be deemed to affect in any manner or to any
•extent any provision of the Fish and Wildlife Coordination Act as amended
(16 U.S.C. 661-666c).
ENFORCEMENT
SEC. 106. (a) The Administrator may, whenever appropriate, utilize by agree-
ment, the personnel, services, and facilities of other Federal departments, agen-
cies, and instrumentalities, or State agencies or instrumentalities, whether on
a reimbursable or a nonreimbursable basis, in carrying out his responsibilities
under this title.
(b) The Administrator may delegate responsibility and authority for review-
ing ,-ind evaluating1 permit applications, including the decision as to whether a
permit will be issued, to an officer of his agency, or he may delegate, by agree-
ment, such responsibility and authority to the heads of other Federal depart-
ments or agencies, whether on a reimbursable or nonreimbursable basis.
(c) The Secretary of the department in which the Coast Guard is operating
•shall conduct surveillance, monitoring as requested by the Secretary of Com-
merce, and other appropriate enforcement activity to prevent unlawful trans-
portation of material for dumping, or unlawful dumping'. Such enforcement
activities shall include, but not be limited to. enforcement of regulations issued
l>y the Secretary of the department in which the Coast Guard is operating.
establishing specifications for safe transportation, handling, carriage, storage,
-and stowa.se. Upon request by other departments and agencies having responsi-
bilities under this Act. the Secretary of the department in which the Const
•Guard is operating shall supply such information as they may require on a
reimbursable basis.
KKOULATIOXS
SEC. 107. In carrying out the responsibilities and authority conferred by (his
title, the Administrator and the Secretary of the department in which the Coast
Guard is operating, are authorized to issue such regulations as they may deem
-appropriate.
INTERNATIONAL COOPERATION
SEC. 108. The Secretary of State, in consultation with the Administrator, shall
•seek effective international action and cooperation to insure protection of the
marine environment, and may, for this purpose, formulate, present, or support
specific proposals in the United Nations and other competent international
organizations for the development of appropriate international rules and regula-
tions in support of the policy of this Act. ' -
[p. 6J
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WATER—STATUTES AND LEGISLATIVE HISTORY 1615
EFFECTIVE DATE AND SAVINGS PROVISION
SEC. 109. (a) This title shall take effect six months after the date of the en-
actment of this Act.
(b) Xo legal action begun, or right of action accrued, prior to the effective date
of this title shall be affected by any provision of this title.
AUTHORIZATION FOB APPROPRIATIONS
SEC. 110. There are hereby authorized to be appropriated not to exceed
$3.000,000 for fiscal year 1973 or $5,500,000 for fiscal year 1974 for the purposes
ai;d administration of this title.
ANNUAL REPORT
SEC. 111. The Administrator shall report annually on or before June 30 of
each year beginning June 30, 1972, to the President and to the Congress on his
administration of this title, including recommendations for additional legisla-
tion if deemed necessary.
TITLE II—COMPREHENSIVE RESEARCH ON OCEAN DUMPING
SEC. 201. (a) The Secretary of Commerce, in coordination with the Secretary
of the Department in which the Coast Guard is operating and with the Adminis-
trator shall, within six months of the enactment of this Act, initiate a comprehen-
sive and continuing program of research regarding the effects of the dumping of
material in the oceans, coastal and other waters, and shall from time to time
report his findings (including an evaluation of the short-term ecological effects
and the social and economic factors involved) to the Congress.
(b) There are authorized to be appropriated for the fiscal year in which this
Act is enacted and for the next two fiscal years thereafter such sums as may be
necessary to carry out this section, but the sums appropriated for any such fiscal
year may not exceed $1,000,000.
SEC. 202. (a) The Secretary of Commerce, in consultation with other appropriate
Federal departments, agencies, and instrumentalities shall, within six months of
the enactment of this Act, initiate a comprehensive and continuing program of re-
search with respect to the possible long-range effects of pollution, overfishing, and
man-induced changes of ocean ecosystems. In carrying out such research, the
Secretary of Commerce shall take into account such factors as existing and pro-
posed international policies affecting oceanic problems, economic considerations
involved in both the protection and the use of the oceans, possible alternatives to
existing programs, and ways in which the health of the oceans, coastal, and other
waters may best be preserved for the benefit of succeeding generations of man-
kind.
(b) In carrying out its responsibilities under this section, the Secretary of
Commerce under the foreign policy guidance of the President and pursuant to
international agreements and treaties made by the President with the advice and
consent of the Senate, may act alone or in conjunction with any other nation or
group of nations, and shall make known the results of its activities by such chan-
nels of communication as may appear appropriate.
fc) In January of each year, the Secretary of Commerce shall report to the
President and to the Congress on the results of activities undertaken by it pur-
suant to this title during the previous fiscal year.
(d) Each department, agency, and independent instrumentality of the Fed-
eral Government is authorized and directed to cooperate with the Secretary of
Commerce in carrying out the purposes of this title and, to the extent permitted
by law, to furnish such information as may be requested.
(e) There are authorized to be appropriated for the fiscal year in which this
Act is enacted and for the next two fiscal years thereafter such sums as may be
necessary to carry out this section, but the sums appropriated for any such fiscal
year may not exceed $1,000,000.
Amend the title so as to read : "An Act to regulate the transportation for dump-
ing and dumping of material in the oceans, coastal, and other waters, and for
other purposes." r »-i
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1616 LEGAL COMPILATION—SUPPLEMENT I
PURPOSE OF THE LEGISLATION
As reported, H.E. 9727—The Marine Protection and Research Act
of 1971—is divided into two titles: Title I—Ocean Dumping and Title
II—Comprehensive Research on Ocean Dumping.
The purpose of Title I of the bill is to regulate the dumping and
transportation for dumping of waste material in those parts of the
oceans, coastal and other waters beyond the territorial jurisdiction of
the United States. The bill bans under all circumstances the transpor-
tation for dumping and dumping in waters beyond the territorial juris-
diction of the United States of radiological, chemical, or biological
warfare agents and high level radioactive wastes. The bill also bans the
transportation for dumping and dumping beyond the territorial juris-
diction of the United States of all other waste materials unless author-
ized by a permit issued by the Administrator of the Environmental
Protection Agency (EPA).
The Administrator is authorized to issue permits for the transpor-
tation for dumping and dumping of materials when he deems that such
action will not degrade the marine environment or endanger human
life, in accordance with criteria that he is to establish by regulation.
Civil penalties may be assessed by the Administrator, after notice and
opportunity for hearing, and an action may be brought to impose
criminal penalties for knowingly violating Title I.
The sum of $3.6 million is authorized to be appropriated for fiscal
year 1973, and $5.5 million for fiscal year 1972 to carry out the pur-
poses and administration of Title I.
Title II of the bill authorizes and directs the Secretary of Com-
merce, in coordination with the Secretary of the department in which
the Coast Guard is operating and the Administrator of EPA, to initi-
ate a comprehensive program of research on the effects of ocean dump-
ing. There is authorized to be appropriated not to exceed $1 million
to carry out the provisions of section 201 and not to exceed $1 million
to carry out the provisions of section 202 for each of the three fiscal
years following enactment.
LEGISLATIVE BACKGROUND
Against a background of burgeoning wastes from our society and
a growing concern for their disposal, the Council on Environmental
Quality published a report to the President, entitled "Ocean Dump-
ing—A National Policy", in October 1970. The report summarizes the
dimensions and immediacy of the problems created by disposal of
wastes at sea and the need for clear national policy and legislation to
regulate the pollutants being added to the oceans by the United States.
It also calls for appropriate international action.
Early in the 92d Congress. President Nixon submitted proposed
legislation to implement the recommendations of the Council's ocean
dumping report. The bill was introduced by Senator Caleb Boggs for
himself and 37 Senators as S. 1238. and was referred jointly to the
Committees on Commerce and Public Works. Other bills were also
introduced to regulate or ban the disposal of waste materials in the
oceans. These include S. 192, introduced by Senator Nelson, S. 1082,
introduced by Senator Case, and S. 1286, introduced by Senator Boggs.
[p. 8]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1617
Hearings were held on the pending bills on March 2 and 3, and
April 15, 21, 22, and 28, 1971. On August 4, 1971, the Subcommittee
on Oceans and Atmosphere ordered H.R. 9727, the companion bill to
S. 1238, to be reported to the full Committee on Commerce. After
three executive sessions, the Committee on Commerce ordered H.R.
9727 reported, with amendments in the nature of a substitute text
and an amended title, on November 8,1971.
As reported, H.R. 9727 reflects an agreement between the Chair-
men of the Committees on Commerce and Public Works, ensuring con-
sistency between H.R. 9727 and the proposed Federal Water Pollution
Control Act Amendments of 1971 (S. 2770). By way of background,
the Committee on Commerce has exclusive legislative jurisdiction
over transportation within the internal and territorial waters of the
United States, and beyond in the contiguous zone and other high seas
areas of the oceans. The Committee shares equally with the Commit-
tee on Public Works jurisdiction over legislation affecting the dis-
charge of pollutants into the territorial waters of the United States,
other than from outfalls. Beyond the territorial waters of the United
States, the Committee on Commerce has exclusive legislative jurisdic-
tion over discharge of pollutants into the contiguous zone and other
high seas areas of the oceans, with the exception of outfalls extending
from land into such areas.
Under the agreement between the Committees on Commerce and
Public Works, all dumping of waste materials and pollutants into the
Great Lakes and the territorial seas surrounding the United States,
and all discharges from outfall structures extending from land,
would be governed and regulated under the proposed Federal Water
Pollution Control Act Amendments of 1971 (S. 2770). All dumping
and transportation for dumping of waste materials and pollutants in
those parts of the oceans beyond the territorial jurisdiction of the
United States would be governed and regulated by the Marine Pro-
tection and Research Act of 1971 (H.R. 9727). Both Acts would be
administered by the Administrator of the Environmental Protection
Agency.
II.R. 9727, as reported by the Committee on Commerce insofar as
it relates to ocean dumping under Title I, has been reviewed by and
concurred in by the Committee on Public Works.
NEED FOE THE LEGISLATION
Man's wastes have readied the oceans since time immemorial, for
the oceans are the natural repository of water running off the land,
and of particles settling out of the air. Clearly the problems resulting
from disposal of wastes into the sea are not limited to the period fol-
lowing the industrial revolution. As long ago as 1675 Governor Ed-
mund Andros of New York decreed that all persons were forbidden
uto cast any dung, dirt or refuse of ye city, or anything to fill up ye
harbor or among ye neighbors or neighboring shores, under penalty of
forty shillings."
What is new is the volume and the toxicity of the wastes of which
technological societies must dispose. To deal with these volumes of
[p. 9]
525-312 O - 73 - 26
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1618 LEGAL COMPILATION—SUPPLEMENT I
poisons requires (1) basic changes in our attitudes toward nature, (2)
regulation of the wastes that find their way to the sea, and (3) re-
search to understand the effects of waste disposal on the marine en-
vironment, or human health, and indeed, on life itself.
As Captain Jacques Cousteau noted recently before the first session
of the International Conference on Ocean Pollution convened by the
Committee on Commerce:
. . . Man has probably been on this planet for about one
million years. Until the start of the industrial revolution—
let's say five generations ago—man had at his disposal only
a maximum power of one horse, and his number and his ab-
sence of natural weapons made him an indentured servant of
nature.
So during all these million years man had to fight nature.
He had no fangs, no protection, soft skin. He had to fight
nature just to survive.
Certainly in five generations, because of the industrial de-
velopment, we must completely change our thinking, reverse
it 180 degrees, and understand that the only chance of sur-
vival is not to fight nature but to protect nature.
This change-about in our psychology is almost impossible
to do without a tremendous effort. So I believe that the
remedy is psychological. We must clearly become conscious
of this change, and the things can happen. (Committee on
Commerce, International Conference on Ocean Pollution,
October 18,1971. Stenographic transcript, at p. 15)
Until the onset of the industrial revolution, and still so today in
those less technologically developed countries of the world, the wastes
from man's activities that found their way to the sea were predom-
inantly organic, and readily assimilated by the sea. But the industrial
revolution has brought with it an unnatural distribution and concen-
tration of new and often highly toxic materials and chemicals. Until
recently, little has been asked, much less known about the effects of
dumping these materials and chemicals into the oceans, or of the dis-
placement of dredged materials that have accumulated heavy metals,
chemicals, and a variety of other wastes. There still remains much
which is unknown concerning the impact of man's dumping into the
ocean environment, accounting for the provisions to be found in Title
II of H.E. 9727 dealing with comprehensive research on this subject.
We have treated the oceans as enormous and indestructible—145
million square miles of surface—the universal sewer of mankind.
Previously we thought that the legendary immensity of the ocean was
such that man could do nothing against such a gigantic force. But
the real volume of the ocean is very small when compared to the volume
of the earth and to the volume of toxic wastes that man can produce
with his technological capability. The water reserve on our spaceship
is very small. And again, as Captain Cousteau has said:
The cycle of life is intricately tied with the cj*cle of water.
Anything done against the water is a crime against life. The
water system has to remain alive if we are to remain alive on
[p. 10]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1619
tliis earth. (Committee on Commerce. International Conference
on Ocean Pollution, October 18,1971. Stenographic transcript, at
pp. 10-11.)
In transmitting his message on "Ocean Dumping—A National
Policy'' to the Congress last year, President Nixon stated:
The oceans, covering nearly three-quarters of the world's
surface, are critical to maintaining our environment, for they
contribute to the basic oxygen-carbon dioxide balance upon
which human and animal life depends. Yet man does not treat
the oceans well. He has assumed that their capacity to
absorb wastes is infinite, and evidence is now accumulating
on the damage that lie, has caused. Pollution is now visible
even on the high seas—long believed beyond the reach of man's
harmful influence. In recent months, worldwide concern has
been expressed about the dangers of dumping toxic wastes in
the oceans. (See Congressional Record, October 7, 1970, at
p. S17405; H. Doc. No. 91-399.)
The need for ocean dumping legislation is well stated in the sum-
mary findings and recommendations of the Council on Environmental
Quality:
Ocean-dumped wastes are heavily concentrated and con-
tain materials (hat have a number of adverse effects. Many are
toxic to human and marine life, deplete oxygen necessary to
maintain the marine ecosystem, reduce population of fish
and other economic resources, and damage aesthetic
values ....
The Council's study indicates that the volume of waste ma-
terial dumped in the oceans is growing rapidly because the
capacity of land-based waste disposal sites is becoming ex-
hausted in some coastal cities, communities are looking to the
oceans as a dumping ground for their wastes. Faced with
higher water quality standards, industries may also look to
the oceans 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. . . .
Current regulatory activities and authorities are not ade-
quate to handle the problems of ocean dumping. States do not
exercise control over ocean dumping and generally their au-
thority extends only within the :>-mile territorial sea. The
Army Corps of Engineers authority to regulate ocean dump-
ing is also largely confined to the territorial sea. The Corps
has responsibility to facilitate navigation, chiefly by dredging
navigation chair .-Is. As such, it is in the position of regulat-
ing 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 dump-
ing. The authority of the Federal Water Quality Administra-
[p-
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1620 LEGAL COMPILATION—SUPPLEMENT I
tioii does not provide for issuance of permits to control ocean
dumping. And the Atomic Energy Commission has authority
only for disposal of radioactive materials. . . . ("Ocean
Dumping—A National Policy." A report to the President
prepared by the Council on Environmental Quality, October
1970, at p. v)
The Council's report, which relies heavily upon the work of the
Dillmgham Corporation, under contract to the Department of Health,
Education and Welfare, indicates that over 48 million tons of wastes
were dumped into the oceans from sources within the United States
in 1968. But weight and volume of waste materials disposed by ocean
dumping do not tell the entire story.
Other materialr, of relatively low weight but high toxicity, such
as radioactive waste and chemical and biological warfare agents, can
produce untold harm to natural and human life. The problem was
well stated by Dr. Howard Sanders of Woods Hole Oceanographic
Institution at the hearings before the Subcommittee on Oceanography
on dumping of nerve gas rockets in the ocean:
. . . Dumping of wastes into ihe, depths of the ocean seems
a simple solution to the problems that plague us. However,
the apparent simplicity is rather a reflection of our igno-
rance. . . .
Mv areas of apprehension are broad. Other than dumping
of nerve gases I am most uneasy about the extensive plans for
oil drilling and the discharging of domestic wastes, chemicals,
minerals and other byproducts of our technology by proposed
giant outflows into the deep sea.
The ocean floor at these depths lies below the thermocline.
Therefore, the area of discharge, dumping or drilling will
be in a region of remarkable stability regarding its physical
properties.
Temperature, salinity, oxygen conditions, and other factors
in contract to shallower waters are essentially unvarying and
have changed little over many thousands and even millions
of years.
In this context we must bear in mind that the driving force
of evolution is toward ever finer adaptations of an organism
to its environment. Thus, under conditions of constancy and
predictability over geologically long periods of time there
have evolved in the deep sea a delicately attuned, highly sen-
sitive assemblage of organisms with very narrow range of
tolerances.
Such communities can be expected to be most fragile.
As a consequence, a perturbation or stress that might have
little significance in the variable and less predictable shallow
waters could have severe and perhaps catastrophic implica-
tions in the deep sea.
Deep sea drilling and the diverse and exotic wastes of which
the toxic chemical agents under consideration today are prime
examples that will be discharged into this environment in my
opinion offer the potential for such a catastrophe, (Commit-
[p. 12]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1621
tee on Commerce, Hearings on Dumping of Nerve Gas
Rockets in the Ocean, Serial 91-76, at p. 25)
However, as emphasized by various professional witnesses from
the waste management field, all ocean dumping need not be banned
outright. Ocean dumping of selected types of waste is permissible and
may be quite desirable. Dr. David D. Smith, Director of Program De-
velopment, Dillingham Environmental Company, and author of the
Dillingham report on ocean dumping, stated:
. . . [T]ha marine waste disposal issue boils down to this:
Man produces large volumes of waste which must be disposed
of. The question is: Where are we going to put it? If we can
recognize the ocean's ability to accept enormous volumes of
waste, then the key decision is simplified. It becomes what
types of waste can we put into the sea safely and what must
be disposed of elsewhere.
There is a need to recognize in the bill that will be reported
out by this committee that the wastes assimilative capacity
of the sea is enormous . . .
I can hardly overstate or overemphasize that there has been
a general failure to recognize this.
My second point . . . Sea disposal is highly desirable for
compatible or quasi-natural waste.
The third point, the new law needed to regulate oceanic
disposal should facilitate rather than hinder such types of
marine disposal. I think this is critical. The law must have
specific provisions pointing out that there are desirable as-
pects of marine disposal.
Finally, my fourth point, the law must authorize and fa-
cilitate research on marine disposal of wastes. (Committee
on Commerce, Hearings on Ocean Waste Disposal, Serial
No. 92-11,at pp. 206-207)
RESEARCH GOALS OF WASTE MANAGEMENT
Proposing two basic goals that would (1) set in motion the ma-
chinery that would enable us to find out what is happening to the sea
and what can be done about it and (2) taking what action now that
we can, Dr. Eugene V. Coan, of the Sierra Club, stated that the re-
search goals of waste management must be:
(1) ... to establish natural levels or the existing levels
of contamination for as many substances as possible over as
wide an area as possible; (2) to establish water quality cri-
teria based on extensive testing of wide array of sub-
stances on a wide variety of marine organisms. We need
[p. 13]
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1622 LEGAL COMPILATION—SUPPLEMENT I
to look not only for the immediate toxicity of the substances
but their subtle elt'ects on the health and reproductive ability
of marine organisms for more than one generation. (Com-
mittee on Commerce, Hearings on Ocean Waste Disposal,
Serial No. 92-11, at p. 176)
Thus, the rationale for enforcement of ocean dumping restrictions
can be more readily developed with the advent of technical and sci-
entific information. As pointed out by Mr. John D. Parkhurst. Chief
Engineer and General Manager, County Sanitation District. Los
Angeles County, such scientific knowledge would provide valid argu-
ments to support local, State, and national funding to finance construc-
tion of necessary treatment and disposal facilities. It would also offer
assurance that public monies spent for design and construction of fa-
cilities would be more wisely invested. Only meager information exists
with regard to what concentrations and which of the chemicals or
toxicants have deleterious effects on the marine ecology and what proc-
esses can best be utilized to treat or remove such materials prior to dis-
charge to the marine waters. (See Committee on Commerce Hearings,
Serial Xo. 92-11, at p. 123)
A program of research is required to provide the information and
understanding of the changes in oceans and environmental conditions
which result from man's activities. The research program would in-
clude measurement of chemical and biological contamination of the
ocean and analysis of such information to enable prediction of con-
tamination trends. In order to deal effectively with ocean pollution
problems we must understand the effects of ocean contaminants upon
ocean life and marine ecology. We mtist develop a predictive capa-
bility. We must understand the persistence of pollutants in the ocean,
and we must have information and data available for governments and
ihoso responsible for operating in or managing ocean resources. As
observed by the National Academy of Sciences—National Academy of
Engineering:
Effective rational management of the growing volume and
variety of wastes generated by our accelerating coastal urban-
ization requires immediate initiation of a coordinated, long-
term national program of research and investigation
involving government, industry, and universities. (Wastes
Management Concepts for the Coastal Zone, National Acad-
emy of Sciences—National Academy of Engineering, 1970,
at p. 83.)
It is no longer sufficient that design of waste treatment disposal sys-
tems be concerned primarily with remaining aerobic conditions in the
receiving Avaters. We must now look for scientific, quantitative guide-
lines to assist engineers who have responsibility for designing waste
treatment and disposal systems. Methods are available for assessing a
broad range of marine receiving water values, and must be begun
through a comprehensive program of research.
REJECTION OF MARINE SANCTUARIES
The Committee has carefully studied the rationale for marine sanc-
tuaries as proposed in Title III of H.R. 9727 as it passed the House
[p. H]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1623
of Representatives, and has rejected the proposed sanctuaries. For
numerous reasons set out below, the Committee feels that as proposed,
the principal purposes for which marine sanctuaries should be estab-
lished would not be accomplished by the proposed legislation.
The Committee believes that the establishment of marine sanctuaries
is appropriate where it is desirable to set aside areas of the seabed and
the superjacent waters for scientific study, to preserve unique, rare, or
characteristic features of the oceans, coastal, and other waters, and
their total ecosystems. In this we agree with the members of the House
of Representatives. Particularly with respect to scientific investigation.
marine sanctuaries would permit baseline ecological studies that would
yield greater knowledge of these preserved areas both in their natural
state and in their altered state as natural and manmade phenomena
effected change.
Clearly the United States can unilaterally set aside marine sanc-
tuaries in areas under its exclusive jurisdiction, that is, to the outer
limits of the territorial sea. In order to be effective beyond the terri-
torial sea, it is necessary to enter into international agreements in
order to set aside sanctuaries not only from domestic uses, but also
from foreign uses. The range of domestic authority beyond the outer
limits of the territorial sea is narrow. The customs, fiscal, immigration,
or sanitary purposes for which a coastal State may exercise control
in a nine-mile contiguous zone seaward of the territorial sea under the
terms of the Convention on the Territorial Sea and the Contiguous
Zone do not justify setting aside areas as marine sanctuaries. The
sovereign rights that a coastal State exercises over the resources of
the continental shelf do not extend to the superjacent waters, which
are high seas. An effective marine sanctuary must include control over
the seabed as well as the water column above. And if the purpose of
proponents of marine sanctuaries is to control or prohibit the exploi-
tation of resources of the seabead and subsoil, such authority already
exists under the Outer Continental Shelf Lands Act.
Marine sanctuaries require the forbearance of all people, United
States citizens and foreign citizens, from acts that would destroy or
harm the natural values within the sanctuary. United States juris-
diction does not extend to foreign people or ships in high seas areas;
domestic legislation authorizing designation of marine sanctuaries in
such areas would be ineffective unless international agreements were
executed to establish sanctuaries and to regulate the conduct of sig-
natories in them.
An additional consideration is essential to any such decisions. It is
in the best interests of all maritime nations, the, United States in-
cluded, to assert narrow geographical claims to sovereignty or sover-
eign rights in the world's oceans. Important commercial, scientific,
and naval concerns are at stake whenever a coastal State asserts ex-
clusive jurisdiction over areas that were previously high seas and
open to all nations to use with reasonable regard to the interests of
all other States in their exercise of the freedom of the high seas. To
authorize designation of marine sanctuaries in high seas areas by the
United States is inconsistent with the traditional stance of this coun-
try in such matters, as well as being inconsistent with the position
taken by the Department of State in preparation for the Conference
on the, Law of the Sea under United Nations auspices, scheduled for
1973. [p. 15]
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1624 LEGAL COMPILATION—SUPPLEMENT I
INTERNATIONAL IMPACT OF THIS LEGISLATION
The United States is presently proceeding with the negotiation of
an international convention to deal with ocean dumping on a global
scale. These negotiations are taking place in the forum provided by
sessions of a working group preparing for the 1972 UN Stockholm
Conference on the Human Environment. The present U.S. efforts
would be materially aided by prompt passage of a separate ocean
dumping act along the lines of H.R. 9727, as reported by the
Committee.
Other negotiations on new environmental conventions also are under-
way in three different forums. Besides the ocean dumping topic, work
taking place for the Stockholm Conference also covers proposals for
a World Heritage Trust and protection of endangered species. The
1973 Law of the Sea Conference preparatory committees are examin-
ing the environmental aspects of seafloor mining and drilling activities.
And the 1973 Intergovernmental Maritime Consultative Organization
(IMCO) Conference will consider measures to control pollution from
ships, including replacement of the 1951 Oil Pollution Convention
with a more stringent set of provisions, and ship construction stand-
ards for carriers of oil and other noxious substances, which like Public
Law 89-551 will be considered by the Committee 011 Commerce at such
future date, if such international action is taken. Together, these efforts
should culminate in a new second generation of environmental con-
ventions, following on the first set of agreements relating only to oil
spills negotiated through IMCO in 1969.
Most of the subjects now being discussed are important not only
environmentally but economically as well. Since much of current eco-
nomic concern stems from the relative competitive position of different
nations in world markets, it is important to get as many nations as
possible to impose like environmental restraints upon themselves.
At the moment, each of the subjects of the foregoing conventions
relate to a matter which is traditionally a focus of international con-
cern. Even though the U.S. draft convention did not reach into inter-
national affairs in the ocean dumping negotiations the U.S. has found
that a number of eastern and western European nations are so con-
cerned about this possibility that they have stated that they will resist
any application of such a convention to such matters. Accordingly,
the U.S. domestic legislation can promote international agreement by
treating the subject of ocean dumping in international waters sepa-
rately. By taking this route, the U.S. can tend to equalize our competi-
tive position relative to European industry. A good part of European
industry uses the sea as a dumping ground for wastes. Under the
proposed U.S. draft convention these practices would have to change,
resulting in a considerable economic impact.
COMMITTEE AMENDMENTS AND SECTION-BY-SECTION ANALYSIS
The first Committee amendment, in the form of a substitute text,
may be described as follows:
The Act may be cited as the "Marine Protection and Research Act
of 1971." This short title accurately reflects the provisions of H.R.
9727 resulting from deletion of Title III, Marine Sanctuaries.
[p. 16]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1625
Section 2. Fhid'/inj. Pol'cy. and Purpose. This section nuike-s findings
on the clangers of unregulated dumping of materials into the oceans.
coastal, and other waters, and declares as Congressional policy that
the United States should regulate the dumping into waters beyond
the territorial jurisdiction of the United States of all types of materials
bv any person subject to the jurisdiction of the United States and
which could adversely alt'ect the human and marine environment.
The purpose of the Act is declared to be the regulation of the trans-
portation of material for dumping into the oceans, coastal, and other
waters beyond the territorial jurisdiction of the United States, and
as to any person subject to the jurisdiction of the United States, to
regulate dumping in waters beyond the territorial jurisdiction of the
I'mted States.
Section 3. Definitions. This section defines the various terms used in
(he bill, such as the following :
(a) "Administrator" means the Administrator of the Environ-
mental Protection Agency.
(b) "Oceans, coastal, and other waters" includes all oceans, gulfs,
and bays, both within and without the territorial jurisdiction of the
United States, and its coastal waters. The teim also includes the Great
Lakes, the connecting waters between those lakes, and the St. Lawrence
River.
(c) "Material" means dredged material, solid waste, incinerator
residue, garbage, sewage, sewage sludge, munitions, radiological, chem-
ical, and biological warfare agents, high-level radioactive wastes.
chemicals, biological and laboratory waste, wrecked or discarded
equipment, rock, sand, excavation debris, industrial, municipal, agri-
cultural and other waste. The term does not include oil, as that term
is defined in section 11 of the Federal Water Pollution Control Act,
as amended, and sewage from vessels within the meaning of section 13
of that Act. These two materials—oil and sewage from vessels—are
considered to be adequately regulated under the cited Act.
The Committee has made the definition of "material" equivalent to
the definition of "pollutant'' as used in the proposed Federal Water
Pollution Control Act Amendments of 1971 (S. 2770), with certain
exceptions that are not applicable to the respective bills, in order to
promote consistency between the two pieces of legislation.
(d) The term "United States'' extends to the several States, Puerto
Rico, the Canal Zone, the District of Columbia, the territories and pos-
sessions of the United States, the Virgin Islands, American Samoa,
Guam, and the Trust Territory of the Pacific Islands.
(e) The term "person" includes any private person or entity, such
as a corporation or partnership, and any officer, employee, agent, de-
partment, agency or instrumentality of the Federal Government, ex-
cept as to the penalty provisions of section 104, of a State or local unit
of government, or a foreign government.
(f) The term "dumping" refers to the addition of any material or
combination of materials to that part of the oceans, coastal, and other
waters beyond the territorial jurisdiction of the United States. It does
not, however, include the disposal of material from outfall structures
where the disposal from those structures is regulated under either the
Federal Water Pollution Control Act or the Refuse Act of 1899. Ont-
[p. 17]
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1626 LEGAL COMPILATION—SUPPLEMENT I
fall structures are considered to be identifiable, artificial, or artificially
adapted to natural discharge of effluents (such as those from sewage
treatment plants) which are transmitted either from facilities located
on shore or from artificial islands or other fixed structures located off-
shore. "Outfall structures" do not include the primary means of dredg-
ing. In addition, "dumping" does not include the routine discharge of
effluent which is incidental to the propulsion of vessels or which re-
sults in a discharge of effluent overboard from the operation of motor-
driven equipment of vessels, such as power winches.
Further, "dumping" does not include the placement of construction
materials in the construction of any fixed structure or artificial island,
nor does it include the intentional placement of a device either in the
waters covered by the bill or on or in the submerged land beneath such
water, if the placement of the device is for a purpose other than dis-
posal, and if the placement of the construction material or the device is
otherwise regulated, either by an appropriate Federal or State statute,
or as a part of an authorized Federal or State program. Finally,
"dumping" does not include the deposit of oyster shells or other ma-
terial for the purpose of developing, maintaining or harvesting fish-
eries resources, if the deposit of the oyster shells or other materials is
either regulated by appropriate Federal or State statutes, or occurs
as a part of an authorized Federal or State program.
(g) "District Court of the United States" includes the District
Courts of Guam, the Virgin Islands, Puerto Rico, and the Canal Zone
and, in relation to American Samoa and the Trust Territory of the
Pacific Islands, the District Court for the District of Hawaii.
(h) "Secretary" means the Secretary of the Army.
(i) "Dredged material" means any material excavated or dredged
from the navigable waters of the United States.
(j) "High-level radioactive waste" refers to the physically and
radioactively "hot" material, often with a half-life extending into
thousands of years, which is produced as a result of refining fuel cores
for nuclear reactors. This definition, coupled with the prohibitions con-
tained in section 101. is intended to assure that, wherever these and
similar wastes are ultimately placed, they will not be disposed of in the
oceans.
(k) "Transport or transportation" means the carriage by a vessel,
and related handling, of any material or combination of materials
for the purpose of adding such material or combination of materials
to the oceans, coastal, and other waters.
TITLE I—OCEAN DUMPING
Section 101 (a). Prohibited Acts. This subsection prohibits the trans-
portation from the United States for the purpose of dumping of any
radiological, chemical, or biological warfare agents and high-level
radioactive wastes beyond the territorial jurisdiction of the United
States. This would prohibit the dumping of herbicide compounds in-
tended for use in warfare activities, and would further bar the dump-
ing of nerve gases, as occurred in late 1970 off the coast of Florida. As
to these materials, no permit could lawfully be issued by the Admin-
istrator. All other materials as defined in the Act, might be transported
for dumping only pursuant to a permit issued under the provisions
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WATER—STATUTES AND LEGISLATIVE HISTORY 1627
of section 102 of this title, subject, however, to regulations issued under
section 106 (c) by the Secretary of the department in which the Coast
Guard is operating.
(b) This subsection prohibits dumping, whatever the origin or
source (1) into the contiguous zone, to the extent that the dumping in
the contiguous zone may affect the territorial sea or territory of the
United States, or (2) as to persons subject to the jurisdiction of the
United States by the fact of removing any material therefrom, in other
high seas areas, of any radiological, chemical, or biological warfare
agent or high-level radioactive waste. It also prohibits the dumping of
any other material covered by the bill whatever its origin or source,
into the same waters, except as authorized in a permit issued under
section 102 of this title.
(c) This subsection prohibits the transportation of any radiologi-
cal, chemical, or biological warfare agent or high-level radioactive
waste by any Federal employee or agency from a source outside the
United States for dumping into the oceans, coastal, and other waters.
It also bars a Federal employee or agency from transporting any other
material for dumping into such waters from a location outside the ter-
ritory of the United States unless authorized by a permit.
The prohibition of acts in section 101 on the jurisdictional basis of
regulating transportation is an appropriate assertion of sovereignty
of the, United States without breaching the inherent issues of interna-
tional maritime law. For example. Article 2 of the 1958 Geneva Con-
vention on the High Seas provides in part "The high seas being open
to all nations, no State may validly purport to subject any part of
them to its sovereignty. . . ." Direct assertion of United States juris-
diction over persons other than U.S. nationals on the high seas might
violate this provision of the Convention. Assertion of such jurisdiction
could be taken as precedent in other parts of the world for other uni-
lateral infringements of freedom of the seas. If the United States
claimed jurisdiction over other persons and the vessels of other coun-
tries on the high seas for the purpose of protecting them from ocean
dumping, other countries could assert the right to exercise jurisdiction
for other purposes, some reasonable and some not, but all equally
invalid according to international law. Merchant shipping could be
severely restricted and naval mobility could be seriously jeopardized.
The potential for serious international dispute and conflict is obvious.
On the other hand the right to regulate commerce, including com-
merce carried by foreign vessels, proceeding from ports of a country
is well recognized in international law as well as the power of the
Congress to regulate interstate and foreign commerce under the com-
merce clause of the Constitution of the United States (Article I, Clause
3). Asserting jurisdiction to regulate transportation by persons sub-
ject to the jurisdiction of the United States for the purpose of dumping
in the oceans (whether they be high seas or not) attains the same ob-
jective as a direct prohibition of dumping without doing violence to
principles of international law.
Section l()2(a). Enr'nonmentul Projection Agency 'permits. This
section authorizes the Administrator of the Environmental Protection
Agency to issue permits for the transportation of material for dump-
ing other than the material banned in section 101 in areas beyond the
territorial j urisdiction of the United States. r ,
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1628 LEGAL COMPILATION—SUPPLEMENT I
Before issuing the permit, the Administrator must give notice and
an opportunity for public hearings. Such notice given to the public
shall provide a reasonable period of time within which interested per-
sons may express their views concerning the permit application, as
well as making available to the public information received by him
regarding such permit or application therefor, subject to the pro-
visions of section 552 of Title 5 of the United States Code. If the
Administrator determines that a new question is presented, that the
implications of granting or denying a permit are significant, or that
there is substantial public interest in the application, it is intended that
he will hold a public hearing before determining whether a permit
should be issued and if so, what the terms of the permit should be.
Permit issuance may come only after the applicant has shown that
the proposed activit}r will not degrade or endanger human health,
welfare, amenities, or the marine environment, ecological systems
(which include fish and other living and nonliving resources), or the
economic potentialities which would be affected by the permitted
activity.
In order to make the determination required above, the Administra-
tor is required to establish and apply certain criteria for reviewing and
evaluating permit applications, and in the establishment of such cri-
teria or revisions thereof, the Administrator is required to consult with
several specified interested Federal departments and other appropriate
Federal, State, and local officials. The criteria as established or re-
vised must take into account, but need not be limited, to, the need for
the proposed dumping, the effect of such dumping on human health
and welfare, the effect on fisheries resources, plankton, fish, shellfish,
wildlife, marine mammals, shorelines and beaches, and the effect of
dumping on marine ecosystems (including marine plant life), as well
as the persistence and permanence of the effects, the effect of particu-
lar volumes and concentrations of materials, an evaluation of appro-
priate alternative locations and methods of disposal or recycling, the
effect on other uses of the oceans, and the possible effects of denying a
requested permit.
The Committee has consulted with the Committee on Public AVorks
and amended the bill to make the required criteria consistent with
those required under the Federal Water Pollution Control Act Amend-
ments of 1971 (S. 2770).
(b) The Administrator may establish and issue various categories of
permits, in order to facilitate the administration of this title, includ-
ing general permits provided for in subsection 103 (c).
(c) Considering the criteria previously established pursuant to sub-
section (a), the Administrator may designate sites or times which he
recommends for dumping, and, when he finds it necessary to protect
critical areas, shall also designate sites and times within which certain
materials may not be dumped. Certain areas are so critical or valua-
ble that it may be necessary for the Administrator to prohibit the
clumping either of all material, or of certain kinds of material that
may affect the area. Such areas include shellfish beds, breeding or
spawning areas, resort beaches, and similar areas. The Administrator
is not expected to create "prohibited areas" unless and until he finds
that such action is necessary to protect these areas. It follows that the
[p. 20]
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WATER—STATUTES AND LEGISLATIVE HISTOEY 1629
extent of the areas so designated should be no greater than necessary
and that the specific material banned for dumping in the designated
area must be of a type which would affect the area to an unacceptable
degree were it to be introduced therein.
(d) Any application for a permit under section 102 for transporta-
tion for dumping or dumping of dredged material into the waters
of the contiguous zone or other high seas areas shall be accompanied
by a certificate from the Secretary of the Army that the area chosen
for dumping is the only reasonably available alternative. Such per-
mit shall issue, unless the Administrator finds that the material to be
dumped will adversely affect municipal water supplies, shellfish beds,
wildlife, fisheries, or recreation areas.
Section 103(n) Permit Conditions. This subsection contains the spe-
cific items which are required to be contained in any permit issued
under this title. It applies to the general permits authorized by sub-
section (c) of this section, as well as to the specific permits authorized
under section 102. Permit provisions shall include statements as to (1)
the type of material involved, designated with sufficient particularity
to identify it for the purpose of surveillance and enforcement; (2)
the amount of material authorized for transportation or for dump-
ing; (;>) the location where the transportation will be terminated or
where the dumping will occur; (4) the effective period of the permit,
including its specific expiration date; (5) any special provisions
deemed necessary by the Administrator, after consultation with the
Secretary of Transportation (Coast Guard) to insure effective moni-
toring, surveillance, and enforcement; and (6) any other matters that
the Administrator deems appropriate.
(b) This subsection authorizes the Administrator to prescribe
processing fees and reporting requirements.
(c) This subsection authorizes the Administrator to issue general
permits in connection with specified material or classes of material
which are determined to have a minimal adverse environmental impact
on the areas designated. Thus, for certain types of periodic or con-
tinuing activities where certain materials are of little significance
when dumped in certain areas, the Administrator may iise a general
permit system rather than require a specific permit for each transpor-
tation or dumping operation.
Notice and hearing requirements for the general permit proces-
dures would be similar to those described with respect to section 102,
and the general permits would be subject to the criteria to be estab-
lished by that section.
(d) This subsection requires that permits shall be reviewed and, if
appropriate, revised not less frequently than every three years. It is
not intended to prohibit or discourage review or revisions more fre-
quently than every three years, or to suggest that three years would
be a standard or appropriate period for the duration of a permit.
Bather, the intent is that no ?nore than three years will pass before a
permit will be reviewed, and revised if appropriate. The subsection
also authorizes the Administrator to limit, deny, alter, or revoke, par-
tially or entirely, any permit where he finds that the permitted or re-
quested activity cannot be carried out consistently with the criteria and
other factors required to be applied by him when evaluating a permit
[p- 21]
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1630 LEGAL COMPILATION—SUPPLEMENT I
application. The subsection also requires that any action subsequent to
the original issuance of a permit can be taken only after notice and
opportunity for hearing has been afforded the affected person or the
permittee.
(e) This subsection makes it clear that the burden of providing suffi-
cient information lies on the permit applicant. The Administrator is
required to get from the applicant the information necessary for the
necessary determination before a permit issues.
(f) This subsection includes a requirement that all information re-
ceived by the Administrator, as a part of the permit process shall be
made available to the public as a matter of public record, at every
stage of the proceeding leading up to the issuance of a permit, sub-
ject to the provisions of the Freedom of Information Act (5 U.S.C.
552). The requirements of the subsection will be met where the in-
formation is available at a reasonable place for inspection and at rea-
sonable times. It also requires that once the final determination has
been made, such determination will be made available as a matter of
public record together with the supporting reasons for it.
(g) This subsection requires a copy of any permit to be placed in a
conspicuous place in the vessel to be used for transportation or dump-
ing. It further requires that, in order to keep the enforcement agency
informed, an additional copy shall be furnished, to the appropriate
United States Coast Guard official having the responsibility for moni-
toring and enforcing the particular permit.
Section 104. (a) Penalties. Any person who violates any provision
of the title, or a regulation promulgated under the title, or a permit
issued under this title, shall be liable to a civil penalty of not more
than $50,000 for each violation, to be assessed by the Administrator.
No penalty may be assessed under this section without notice to the
person charged and an opportunity for an administrative hearing on
such violation, should that person desire such a hearing. In determin-
ing the amount of penalty to be assessed, the Administrator is re-
quired to evaluate the gravity of the violation, whether there have
been prior violations, and the individual's demonstrated good faith in
seeking to correct the situation after he has been notified of a violation.
In addition, this subsection provides that, for good cause shown, the
Administrator may remit or mitigate an assessed penalty to a smaller
amount. This provides the Administrator with some flexibility even
after a penalty assessment has been determined, where the person
against whom the penalty has been assessed presents to the Adminis-
trator facts which warrant subsequent mitigation. This might include
newly discovered facts which were not known at the time of, or prior
to, the assessment, and could not have been readily ascertained by the
exercise of due diligence. Upon failure of the offending party to pay
the penalty as finally assessed, the Administrator may request the
Attorney General to bring an action in the appropriate Federal dis-
trict court for payment.
(b) In addition to the civil penalty under subsection (a), this sub-
section provides for a criminal penalty of not more than $50,000, or
imprisonment for not more than one year, or both, for any person who
is convicted of knowingly violating this title, regulations, or permits
issued thereunder. The term "knowingly violates" refers to a con-
[p. 22]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1631
scious act or conscious omission of the offender which amounts to a
violation of the law, regulation, or permit.
Federal employees and agencies are, by the definition of "person"
(see section 3 (e) j, excluded from the application of civil and criminal
penalties provided in subsections (a)-(f) of this section. The Com-
mittee is satisfied that Federal administrative disciplinary procedures
are adequate for the purposes of this Act. The Committee intends to
follow closely the administration of the Act. Moreover, alternative
relief is provided in this regard through the provisions of subsection
(h), dealing with citizen suits to enjoin such agencies from such acts.
(c) The Committee has inserted a new subsection consistent with the
Federal Water Pollution Control Act Amendments of 1971 (S. 2770).
The subsection provides for a fine of not more than $10,000 or im-
prisonment for not more than six months for any person convicted of
knowingly making any false statement, representation, or certification
in connection with the permit program, or who falsifies, tampers with,
or knowingly renders inaccurate any monitoring device or method re-
quired to be maintained under the Act.
(d) This subsection provides that for penalty purposes each day of
a continuing violation shall constitute a separate offense. The same is
true where a violation is committed by dumping from several units,
such as vessels or aircraft, in one dumping operation.
(e) This subsection provides for equitable relief by the United States
to enjoin violations of the title, of regulations or of permits.
(f) This subsection provides for the in rem liability of a vessel, used
in a violation, for any civil penalty assessed or criminal fine imposed.
It exempts from liability a public vessel (as defined in section 13 of
the Federal Water Pollution Control Act, as amended, and any other
vessel unless one or more of the owners or, in the case of a bareboat
charter, one or more of the charterers was either an consenting part or
privy to the violation.
(g) This subsection provides authority and procedures under which
a permit may be revoked or suspended by the Administrator in the
event of a permit violation.
(h) This subsection provides for a civil suit by any person on his
own behalf to enjoin violations of the Act or violations of regulations,
or of an issued permit by any person, including the United States and
any other government agency. It limits the institution of such suits in
equity to those situations where the Administrator has not commenced
appropriate action within a certain period of time and it bars such suits
if (1) an appropriate civil action has been limted, (2) an approprate
criminal action has been initited, (3) if appropriate administrative
action to impose a penalty has been undertaken, or (4) if revocation
or suspension of a permit has been initiated. When a suit is filed under
this subsection, the United States may intervene as a matter of right.
Furthermore, in issuing a final order in any such suit the court may
award certain costs of litigation to any party when it concludes, in its
discretion, that such an award is appropriate (e.g., if the plaintiff
shows that the suit was meritorious, and not filed for the sake of mere
harassment). On the other hand, if the court concludes that the pur-
pose of the suit was harassment, the court may award such costs to the
defendant. It is expressly provided that the right of action provided
[p. 23]
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1632 LEGAL COMPILATION—SUPPLEMENT I
by this subsection shall in any way restrict or supersede any other right
to legal action which is afforded the potential litigant in any other
statute or the common law.
(i) This subsection exempts from the penalty procedure any dump-
ing which otherwise would be subject to penalty, if the materials are
dumped in an emergency, to safeguard life at sea. This subsection can-
not be used to justify the initiation of transportation for dumping. It
is intended to relieve from liability people already at sea where lives
are endangered and where appropriate permit applications would not
be possible. When any such emergency dumping occurs, it shall be
reported to the Administrator under such conditions as he prescribes.
Section 105(a). Relationship to other laws. This subsection super-
sedes any other conflicting statutory authority which provides for
the issuance of permits or other authorizations for transporting or for
dumping those materials in waters covered by this title after its effec-
tive date.
(b) This subsection recognizes the authority of the Secretary of the
Army to protect navigation, and requires the Administrator to consult
with the Secretary of the Army if it appears that the disposition of
material to be dumped or to be transported for dumping may affect
navigation. If the Secretary of the Army determines that navigation
will be unreasonably impaired, the Administrator may not issue a
permit.
(c) This subsection preempts State regulation of activities regu-
lated by this title. Nevertheless, it provides that where a State wishes
to protect its waters through criteria more stringent than the Federal
criteria, that State may propose to the Administrator additional
criteria.
If the Administrator finds, after notice and opportunity for hear-
ing that the proposed additional criteria are not inconsistent with
the purposes of this title, he may adopt the proposed criteria in whole
or part. Thereafter the additional criteria shall become Federal cri-
teria for those state waters and will be regulated and enforced in the
same manner as other criteria under section 10-2. The Administrator
must make this determination within 120 days of receipt of the pro-
posed criteria.
(d) This subsection provides that nothing in this title shall be
deemed to affect in any manner any provision of the Fish and Wild-
life Coordination Act as amended.
Section 106. (a). Enforcement. This subsection authorizes the Ad-
ministrator to enter into agreement for the use of personnel, services
and facilities of other Federal or State departments, agencies, and
instrumentalities to carry out his responsibilities under this title.
(b) The Administrator is authorized under this subsection to dele-
gate responsibility and authority for reviewing and evaluating per-
mit applications both within his agency and to other Federal depart-
ments and agencies.
(c) The Secretary of Transportation (U.S. Coast Guard) is given
the responsibility for surveillance, monitoring as requested by the
Secretary of Commerce, and enforcement under this title to prevent,
unlawful transportation of material for dumping or dumping, as speci-
fied in the title or in the regulations and permits issued thereunder.
This enforcement activity shall include regulations to be issued by the
[p. 24]
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WATER—STATUTES AND LEGISLATIVE HISTOEY 1633
Secretary of the Department in which the Coast Guard is operating-
establishing specifications for safe transportation, handling, carriage,
storage, and stowage. Unlike the authority for permits for dumping
and transportation for dumping, which under the title are limited to
areas beyond the territorial jurisdiction of the United States, the Coast
Guard's regulatory power over the safety aspects of transportation
extend to all navigable waters of the United States, both internal and
territorial, as well as to those portions of the oceans, coastal and other
waters covered by the title. In addition, this subsection requires the
Secretary of the Department in which the Coast Guard is operating to
supply information required by other departments and agencies hav-
ing responsibilities under the Act on a reimbursable basis.
Section 107. Regulations. This subsection authorizes necessary regu-
lations to be issued by the Administrator and the Secretary of the
department in which the Coast Guard is operating to implement the
title.
Section 108. International Cooperation. This subsection directs the
Secretary of State, in consultation with the Administrator, to take ap-
propriate measures to encourage and promote the acceptance and
implementation of the policies of this Act throughout the interna-
tional community.
Section 109. Effective Date and Savings Provision. This subsection
provides (a) that this title shall take effect 6 months after the date of
enactment of the Act, and (b) protects any legal action begun, or
right of action accrued, under any other provision of law prior to the
effective date of this title.
Section 110. Authorizations for appropriations. This subsection au-
thorizes to be appropriated such sums as may be necessary not to ex-
ceed $3,600,000 for fiscal year 1973 or $5,500.000 for fiscal year 1974
for the purposes and administration of this title. The estimated costs
are included in this report.
Section 111. Annual Report. This new section requires the Adminis-
trator to report annually on or before June 30 (beginning June 30,
1972) to the President and to the Congress on his administration of
title I, including recommended additional legislation if deemed
necessary.
TITLE II—COMPKEHENSIVE RESEAKCH ON
OCEAN DUMPING
Section 201. This authorizes the Secretary of Commerce in conjunc-
tion with the Coast Guard and the Environmenal Protection Agency,
to develop a comprehensive program of research as to the effects of the
dumping of material in the oceans, coastal, and other waters. This and
the other research activities authorized by this Act must be carried out
in conjunction with other agencies of government with similar research
programs. Duplication of research effort is not intended by this sec-
tion, or section 202. This section authorizes a three-year program be-
ginning in the fiscal year in which the Act is enacted.
Section 202. This directs the Secretary of Commerce to undertake
a comprehensive program of research as to the global effects of various
activities presently engaged in by man and of other natural forces.
[p. 25]
52r>-312 O - 73 - 27
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1634
LEGAL COMPILATION—SUPPLEMENT I
The range of factors to be considered in developing these research
programs is deliberately broad, so as not to prevent the Secretary of
Commerce from taking into account any factors that are relevant to
the problems with which it is concerned.
(b) This authorizes the Secretary of Commerce to operate under
the foreign policy guidance of the President and pursuant to interna-
tional treaties made by the President with the advice and consent of
the Senate, and in conjunction with other nations or groups of nations,
in carrying out his research responsibilities under this section. It also
provides a clear direction that, to the maximum extent possible, the
results of this research will be widely disseminated and brought to the
attention of the public and the appropriate decision-making bodies,
both in this country and elsewhere.
(c) This requires a report in January of each year on the research
program and the results of such activities undertaken during the
previous fiscal year.
(d) Each Federal department, agency, and independent instrumen-
tality is authorized and directed to cooperate with the Secretary of
Commerce in carrying out the purpose of this title and, to the extent
permitted by law, to furnish such information as may be requested.
(e) This authorizes to be appropriated not to exceed $1 million
in each of three fiscal years beginning in the year in which this Act
is enacted, to carry out the research provided for in this section.
The second Committee amendment is of a technical nature and
amends the title of the bill to reflect the substitute text, as follows:
"AN ACT to regulate the transportation for dumping and dumping
of material in the oceans, coastal, and other waters, and for other
purposes."
ESTIMATED COST OF THE LEGISLATION
In accordance with section 252(a) of the Legislative Reorganiza-
tion Act of 1970 (Public Law 91-510), the Committee estimates that
the cost of H.R. 9727 will be as follows:
(1) To implement Title I the six year cost for the Environmental
Protection Agency will be $22,300,000; $2,000,000 for fiscal year 1973;
$4,000,000 for 1974; $4,500,000 for 1975; $4.000,000 for 1976; $3,900,-
000 for 1977; and $3,900,000 for 1978; and for the Department of
Transportation, on behalf of the Coast Guard, for the five-year period
(1973-1977) $7.300.000; and
(2) To carry out the research provisions of Title II for the three-
year (1973-1975) life of the authorization, the maximum cost would
be $2,000,000 per year, or $6,000,000.
The Committee is not aware of any estimates of costs made by
any Federal agency which are different from those made by the
Committee.
IN SUMMARY
[In millions of dollars)
1973
1974
1975
1976
1977
1978
Title 1:
Environmental Protection Agency
Department of Transportation
Title II Department of Commerce
2.0
1.6
2.0
5.6
4.0
1.5
2.0
7 5
4.5
1.4
2.0
7.9
4.0
1.0
5.0
3 9
1 0
4.9
[P-
3.9
.8
4.7
26]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1635
CHANGES IN EXISTING LAW
There are no changes in existing law resulting from this legislation.
DEPARTMENTAL REPORTS
The following are reports from the various departments and agencies
on the bills similar to H.R. 9727 (S. 1238), (S. 1082), and (S. 1286),
on which the Committee held hearings :
ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF THE ADMINISTRATOR,
Washington, D.C.. February 10. 1971.
Hon. SPIRO T. AGNEW.
President of the Senate.
Washington. D.C.
DEAR MR. PRESIDENT : Enclosed is a draft of a proposed bill "to regu-
late 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 commit-
tee for consideration and that it be enacted.
The proposed legislation would implement the recommendations of
the report "Ocean Dumping—A National Policy." That report, re-
quested by the President in his April 15, 1970, message on waste dis-
posal, Avas prepared by the Council on Environmental Quality and
made public by the President on October 7, 1970.
The report points out that there is a critical need for a national pol-
icy on ocean dumping. Many of the wastes now being dumped are
heavily concentrated and contain materials that have a number of
adverse effects. MamT are toxic to human and marine life, deplete
oxygen necessary to maintain the marine ecosystem, reduce popula-
tions of fish and other economic resources, and damage esthetic values.
In some areas, such as the ISTew York Bight, the environmental condi-
tions 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 to the ocean for disposal. The result could be a massive in-
crease 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, alternatives to ocean dumping can be applied positively for pur-
poses 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
[p- 27]
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1636 LEGAL COMPILATION—SUPPLEMENT I
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 (lumping but, again, this is largely
confined to the territorial sea. The Corps also has responsibility to fa-
cilitate navigation, chiefly by dredging navigation channels. As such,
it is in the position of regulating activities over which it also has opera-
tional 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 legislative
authority is necessary.
Taken together, present responsibilities are dispersed and opera-
tional agencies exercise responsibility to regulate themselves and en-
tities 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.
The proposed legislation would bar the transportation of material
for dumping and the, actual dmnning itself in the oceans, coastal
waters and Great Lakes, except as authorized by permits issued by
the Administrator of the Environmental Protection Agency. The Ad-
ministrator would be empowered to ban ocean dumping of certain ma-
terials and to designate recommended safe sites for disposal. Trans-
portation for dumping or dumping without a permit would be subject
to civil and criminal penalt ies.
This legislation would provide a comprehensive framework for
regulating the transportation and dumping of materials and fore-
stalling pressures to dispose of a vast new- influx of wastes in the
oceans, coastal waters and the Great Lakes. Placing regulatory au-
thority 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 environmental program as an-
nounced in his Environmental Message of February 8,1971. It will be
administered by the Environmental Protection Agency and was de-
veloped 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,
WILLIAM D. RTJCKELSHATJS, Administrator.
SECTIOX-BY-SECTIOX ANALYSIS OF THE PROPOSED MAKIXE
PROTECTIOX ACT OF 1971
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 ameni-
[p. 28]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1637
ties, 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(e) defines material, the transportation for dumping
and dumping of which are regulated by the proposal, very broadly as
"matter of any kind or description", and then, for illustrative pur-
poses, but without limiting the comprehensive scope of this initial
definition, lists specific materials which are included in the general
defiiition. Oil and sewage from vessels, discharges of which are cov-
ered by the Federal Water Pollution Control Act, are excluded from
the scope of this Act.
Subsection o(e) defines "person" in such a way that all Federal,
State, and foreign governmental organisations, employees, and agents,
along with private persons or entities, are included within the prohibi-
tion on transportation for dumping or dumping contained in Sec-
tion 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 organizations, employees,
and agents must comply with the permit and standard-setting pro-
visions of the Act, i.e.. they would be required to obtain approval from
the Administrator of EPA for the transportation for clumping or the
dumping of materials in the relevant waters, but they are not liable
for or subject to the penalty provisions.
Subsection o(f) defines clumping for purposes of the Act as "a dis-
position of material''. Provisos make two important exceptions to this
general rule of applicability. The lirst proviso excepts from the Act's
coverage disposition of effluents from any outfall structure or routine
discharges of effluents incidental to the propulsion of vessels. Munici-
pal 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 TT.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 ex-
cepts 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 transportation 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 lob-
ster traps, off-shore drilling platforms, pipelines, or cables. The latter
portion of the proviso ensures that any excepted placement of devices
[p- 29]
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1638 LEGAL COMPILATION—SUPPLEMENT I
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 "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 ac-
tivity, subsection 4(a) of the proposal 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
TTnited 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 pre-
sents information which indicates that the transportation or dumping
or both will not unreasonably degrade or unreasonably endanger
human health, welfare, or amenities, or the marine environment, eco-
logical systems, or economic potentialities. The Administrator is di-
rected to establish and apply criteria for reviewing and evaluating
permit applications. In establishing or revising the criteria, the Ad-
ministrator 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 considerations 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 deems such a step to be desirable,
the Administrator could set different procedures for handling appli-
cations in the various categories. Subsection (b) (2) allows the Ad-
ministrator 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 requirements 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.
[p. 30]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1639
Subsection 5(e) authorizes the Administrator to grant general per-
mits 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 Ad-
ministrator may also alter or revoke partially or entirely the terms of
existing permits.
Subsection 5(g) allows the Administrator to designate recom-
mended sites for dumping specified materials. This would give guid-
ance to applicants and facilitate the Administrator's implementation
of the control programs.
Subsection 5 (h) establishes a very limited exemption from the pro-
hibition 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. In
such cases reports of the excepted emergency actions must be made to
the Administrator.
Section 6 provides for penalties. Under subsection 6(a) the Ad-
ministrator 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 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 sub-
section 6(d), the Attorney General is authorized to seek equitable
relief to redress violations. Subsection 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 per-
mit's provisions have been violated.
Section 7 deals with the relationship of this legislation to other
laws. Generally, except as provided 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 activ-
ity covered by this proposal, and that further licenses, permits, or au-
thorizations of a similar nature could not be issued.
Subsection 7(b) maintains present responsibility and authority con-
tained in the Atomic Energy Act of 1954, and provides that the pro-
visions of Sections 4 and 7(a) of this proposal do not apply to actions
taken under that Act. However, the AEG must consult with the Ad-
ministrator before issuing a permit to conduct any activity otherwise
regulated by this proposal. Moreover, the AEC must comply with the
[p. 31]
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1640 LEGAL COMPILATION—SUPPLEMENT I
radioactive-material standards set by the Administrator, and the Ad-
ministrator is directed to consider the policy expressed in subsection
L'(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
pan by the Secretary of the Army and the Chief of Engineers. Except
for the limited supersession found in subsection 11 (e), the Rivers and
Harbors Act authorities are not negated or abrogated, nor are exist-
ing 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, till 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 Department 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 mate-
rial 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 Administra-
tor 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-reimburs-
able basis. In subsection 8(b) the Administrator is authorized to dele-
gate 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 ac-
tivity be conducted by the Secretary of the department in which the
Coast Guard is operating.
Section 9 gives the Administrator power to issue appropriate regu-
lations in carrying out the responsibilities and authority conferred by
the Act.
Section 10 directs the Secretary of State, in consultation with the
Administrator, to seek appropriate international action and cooper-
ation to support the policy of this proposal.
Subsections 11 (a) and ll(b) repeal the Supervisory Harbors Act
of 1888. as amended (:>.'> U.S.C. £>; 441—l.llb). and the provision of
the Rivers and Harbors Act of IS!)!) (;}:} U.S.C. S 418) which pre-
served 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 Xew York. Baltimore, and
[p. 32]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1641
Hampton Koacls. 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. § 4-OTa), which per-
tains 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 insofar 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 pro-
posal legal actions begun or rights of action accrued prior to the pro-
posal's effective date.
Section 13 contains an authorization for appropriations to carry out
the purposes and administration of the proposal.
MARINE PROTECTION ACT OF 1971
A BILL 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".
FINDING, POLICY, AND PURPOSE
SEC. 2. (a) Unregulated dumping of material into the oceans,
coastal, and other waters endangers human health, welfare, and
amenities, and the marine environment, ecological systems, and eco-
nomic potentialities.
(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, costal, and other waters of any material which could ad-
versely 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.
DEFINITIONS
SEC. 3. For the purposes of this Act the term—
(a) "Administrator" means the Administrator of the Environmen-
tal 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.
[p. 33]
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1642 LEGAL COMPILATION—SUPPLEMENT I
(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, rock, sand,
cellar dirt, and industrial waste, provided, that it does not mean oil
within the meaning of section 11 of the Federal Water Pollution Con-
trol Act or sewage from vessels within the meaning of Section 13 of
said Act.
(d) ''United States" includes the several States, the District of Co-
lumbia, the Commonwealth of Puerto Rico, the Canal Zone, the terri-
tories and possessions of the United States and the Trust Territory of
the Pacific Islands.
(e) "Person" means any private person or entity, any employee,
agent, department, agency, or instrumentality of any State or local
unit of government, or foreign government, and, except as to the pro-
visions of section 6, any employee, agent, department, agency, or in-
strumentality 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 ves-
sels: 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.
PROHIBITED ACTS
SEC. 4. 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
water?, and
(b) No person shall dump material (1) in that 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 territorial sea
of the United States, extending to a line 12 nautical miles seaward
from the base line of the territorial sea as provided in Article 24 of
the Convention 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.
PERMITS
SEC. 5. (a) The Administrator may issue permits to transport ma-
terial for dumping into the oceans, coastal, and other waters, or to
dump material into the waters described in subsection 4(b), or both,
where the applicant presents information respecting the proposed
[p. 34]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1643
activity which in the judgment of the Administrator indicates that
such transportation, or dumping, or both will not unreasonably de-
grade or unreasonably endanger human health, welfare, or amenities,
or the marine environment, ecological systems, or economic potentiali-
ties. The Administrator shall establish and apply criteria for review-
ing and evaluating such permit applications, and, in establishing or
revising such criteria, shall consider, but not be limited in his con-
sideration 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 assess-
ment 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 probable impact of requiring the use
of such locations or methods of disposal on considerations affect-
ing the public interest; and the probable impact of issuing or
denying permits on considerations affecting the public interest.
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 reviewing ap-
plications for permits, the Administrator shall make such provision
for consultation with intereste_d Federal and State agencies as he deems
useful or necessary. No permit shall be issued for a dumping of ma-
terial which will violate applicable water quality standards.
(b) (1) The Administrator may establish and issue various cate-
gories of permits, including the general permits described in subsection
(e).
(2) The Administrator may require an applicant 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 trans-
ported 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 per-
mits and such reporting I'equirements for actions taken pursuant to
permits issued under subsection (a) as he deems appropriate.
(e) Notwithstanding any other provision of this Act, the Admin-
istrator 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).
[p. 35]
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1644 LEGAL COMPILATION—SUPPLEMENT I
(f) The Administrator may limit or deny the 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 mate-
rial cannot be dumped consistently with the criteria established pur-
suant 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), designate recommended sites for the dump-
ing of specified materials.
(h) Nothing in this Act shall prohibit any transportation for dump-
ing or dumping of material where such transportation or dumping is
necessary, in an emergency, to safeguard human life. Such transpor-
tation or dumping shall be reported to the Administrator within such
times and under such conditions as he may prescribe by regulation.
PENALTIES
SEC. 6. (a) A person who violates section 4 of this Act, or regula-
tions 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. Xo pen-
alty 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 determin-
ing the amount of the penalty, or the amount agreed upon in compro-
mise, the gravity of the violation and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after
notification of a violation shall be considered by said Administrator.
Upon failure of the offending party to pay the penalty, the Adminis-
trator 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 sub-
section (a), a person who knowingly and willfully violates section 4 of
this Act, regulations 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 violation by any person of this Act, regu-
lations promulgated 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 subsec-
tion 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
[p. 36]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1645
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 consent-
ing 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.
RELATIONSHIP TO OTHER LAWS
SEC. 7. (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 authorize any
activity regulated by this Act. Thereafter, except as hereafter pro-
vided, no license, permit, or 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 re-
sponsibility or authority contained 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, That the
Atomic Energy Commission shall consult with the Administrator
prior to issuing a permit to conduct any activity which would other-
wise be regulated by this Act. In issuing any such permit, the Atomic
Energy Commission shall comply with standards set by the Ad-
ministrator respecting limits on radiation exposures or levels, or con-
centrations or quantities of radioactive material. In setting such stand-
ards 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 responsi-
bility or authority contained in the Eivers 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 Eivers and Harbors
Act of 1899 to conduct any activity otherwise regulated by section 4
of this Act and the regulations issued hereunder, unless the Adminis-
trator has certified that the activity proposed to be conducted is in con-
formity with the provisions of this Act and with the regulations
issued hereunder. rp 371
'SSU.S.C. § 401 etseq.
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1646 LEGAL COMPILATION—SUPPLEMENT I
(8) Where a license or permit to conduct an activity has been
granted under the authority of subsections (c) (1) and (c) (2) of this
section and of the Eivers 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 disposition of the material to be trans-
ported for dumping or to be dumped 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 Secre-
tary of the Army determines that navigation will be unreasonably
impaired.
(e) Nothing in this Act shall be construed as preempting any State,
Federal Territory or Commonwealth, or subdivision thereof from im-
posing any requirement or liability.
ENFORCEMENT
SEC. 8. (a) The Administrator may, whenever appropriate, utilize
by agreement, the personnel, services, and facilities of other Federal
departments, agencies, and instrumentalities, or State agencies or in-
strumentalities, whether on a reimbursable or a nonreimbursable basis.
(b) The Administrator may delegate responsibility and authority
for reviewing and evaluating permit applications, including the deci-
sion as to whether a permit will be issued, to an officer of the En-
vironmental Protection Agency, or he may delegate, by agreement,
such responsibility and authority to the heads of other Federal depart-
ments or agencies, whether on a reimbursable or nonreimbursable
basis.
(c) The Secretary of the department in which the Coast Guard is
operating shall conduct surveillance and other appropriate enforce-
ment activity to prevent unlawful transportation of material for
dumping or dumping.
REGULATIONS
SEC. 9. In carrying out the responsibilities and authority conferred
by this Act, the Administrator is authorized to issue such regulations
as he may deem appropriate.
INTERNATIONAL COOPERATION
SEC. 10. The Secretary of State, in consultation with the Adminis-
trator, shall seek effective international action and cooperation to
ensure protection of the marine environment, and may for this pur-
pose, formulate, 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.
REPEAL AND SUPERSESSION
SEC. 11. (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.
[p. 38]
233 U.S.C. §418.
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WATER—STATUTES AND LEGISLATIVE HISTORY 1647
(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),4 is
repealed.
(d) To the extent that it authorizes action regulated by this Act, sec-
tion 4 of the Act of March ?,, 1905 (33 Stat. 1147),5 is superseded.
(e) Section 13 of the Rivers and Harbors Act of 1899 (30 Stat.
1152), as amended,6 is superseded insofar as it applies to dumping, as
defined in subsection 3(f) of this Act, of material in the waters cov-
ered by subsection 4 (b) of this Act.
EFFECTIVE DATE AND SAVINGS PROVISION
SEC. 12. (a) This Act shall take effect six months after its enact-
ment.
(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.
AUTHORIZATION FOR APPROPRIATIONS
SEC. 13. 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.
U.S. DEPARTMENT OF THE INTERIOR.
OFFICE OF THE SECRETARY.
W,/*7ih)(/to». D.C.. April 12. 1071.
Hon. WARREN G. MAGXUSON.
Chairman. Committee on Commerce.
'U.S. Semite. Washington. D.C.
DEAR MR. CHAIRMAN : We respond to your request of March 24 for
comment on S. 1238. a bill to regulate the dumping of material in the
oceans, coastal, and other waters, and for other purposes, the Marine
Protection Act of 1971.
The Department of the Interior strongly recommends enactment
of this Administration proposal to piovide long sought regulation of
waste disposal in ocean, coastal, and Great Lakes waters of the United
States.
S. 1238 would vest in the Administrator of the Knvironmental Pro-
tection Agency authority to control ocean dumping of waste materials
through issuance of permits and enforcement of a prohibition against
the unauthorized transport of dumping of such material. In deter-
mining whether or not to approve a permit application, the Adminis-
trator would be required to consider (1) the impact of dumping on
the marine environment and human welfare and (2) other possible
locations and methods of disposal, including land-based alternatives,
but in no event would a permit be issued for a dumping in violation of
applicable water quality standards. Section 5 provides authority to
designate recommended sites for the dumping of specified materials,
[p. 39]
3 33 U.S.C. §§ 441-451b.
4 33 U.S.C. § 407a.
5 33 U.S.C. § 419.
• 33 U.S.C. § 407.
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1648 LEGAL COMPILATION—SUPPLEMENT I
and would allow the Administrator to deny, alter or revoke a permit
for the disposal of any material that could threaten human health or
the marine environment.
Jurisdiction would extend to all persons, including Federal, State.
and foreign governmental organizations, who seek to dispose in terri-
torial water's of the United States or the adjacent contiguous zone, to
the extent that such disposal in the contiguous zone may affect the
territorial sea or territory of the United States. Section 6 provides a
civil penalty of not more than $50.000 for each violation of the pro-
hibition against unauthorized transport or disposal and criminal sanc-
tions for knowing and willful violations. Surveillance would be con-
ducted by the Coast Guard, and legal action taken by the Attorney
General upon request of the Administrator. A thorough analysis of
its draft bill was transmitted to the Congress on February 10 by the
Environmental Protection Agency.
As your Committee is aware this Department has frequently ex-
pressed its opposition to the use of ocean waters for waste disposal.
Implicit in our opposition of fill ocean dumping, however, has been
the recognition that feasible alternatives are not always available. Our
concern for the environmental effects of uncontrolled dumping led to
recent studies of the Xew York Bight and participation in the review
of ocean dumping generally which preceded the issuance on October 7.
1970 of "Ocean Dumping—A National Policy'', a report prepared by
the Council on Environmental Quality.
We participated, too, in the preparation and review of legislation to
implement the Council's recommendations. The bill now pending be-
fore your Committee, S. 12:58, is the end result of close cooperation
among those several Federal agencies with responsibility for the pro-
tection, conservation and management of our Nation's natural re-
sources. The Department of the Interior will provide whatever assist-
ance it can to the Administrator of the Environmental Protection
Agency under section 5(a) of the Marine Protection Act of 1971.
President Xixon noted in his environmental message of February
8 that ocean disposal has a number of harmful effects, including de-
struction of marine life, decreased abundance of fish and other eco-
nomic resources, modification of marine ecosystems, and impairment
of aesthetic values. We urge prompt enactment of S. 1238, as the
President suggested, uto 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".
The Office of Management and Budget has advised that this report
is in accord with the program of the President.
Sincerely yours,
HAURISOX LOESCH.
Assistant Secretary of the Interior.
[p. 40]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1649
DEPARTMENT OF AGRICULTURE,
OFFICE OF THE SECRETARY,
Washington, D.C., April 28,1971.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : This is in response to your request for a
report on S. 1238, a bill to regulate the dumping of material in the
oceans, coastal, and other waters, and for other purposes.
This Department supports the enactment of S. 1238 which carries
out the recommendations set forth by the President in his February 8,
1971, message on the environment.
Under this bill, the Administrator of the Environmental Protection
Agency would be authorized to issue permits for dumping materials
into oceans, coastal, and other waters when, in his judgment, such
dumping will not unreasonably endanger human health, welfare, or
amenities, or the marine environment, ecological systems, or economic
potentialities.
The Administrator, EPA, would be directed to establish criteria
for evaluating permit applications on the basis of their likely environ-
mental impact includina' (1) possible persistence of the effects of the
proposed dumping, (2) volume and concentration of materials in-
volved, and (3) the location proposed for dumping.
Of especial interest to this Department is the provision (Sec. 5
(a)2) that the Administrator, EPA, consider ''alternate locations and
methods of disposal including land-based alternatives. . ." Since most
of the land in the United States is rural land, used for farming or
forestry, this Department is concerned with any land-based alterna-
tives which might be considered. The Department of Agriculture has
information and expertise relevant to the suitability of various land
sites for disposal of solids, either as sanitary landfills or through
methods by which many solids may be beneficially incorporated in the
soil. Wo wish to point out that the bill very appropriately provides
that, in establishing or revising criteria against which dumping per-
mit applications would bo approved or denied, the Administrator,
EPA. will consult with this Department, along with several other
interested Federal agencies.
The Office of Management and Budget advises that there is no ob-
jection to the presentation of this report from the standpoint of the
Administration's program.
Sincerely,
J. PHIL CAMPBELL,
Under Secretary.
U.S. ATOMIC ENERGY COMMISSION,
Washington, D.C., April £9,1971.
Hon. WARREN A. MAGNUSON,
Chairman, Committee on Commerce.
U.S. Senate.
DEAR SENATOR MAGNUSON : The Atomic Energy Commission is
pleased to reply to your letter of March 24,1971, requesting our views
[p. 41]
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1650 LEGAL COMPILATION—SUPPLEMENT I
on S. 1238, a bill [t]o regulate the dumping of material in the oceans,
coastal, and other waters, and for other purposes. We note that two
bills which are identical to S. 1238 have been introduced in the House,
viz., H.K. 4247 and H.K. 4723.
S. 1238, an Administration bill, would carefully regulate (1) the
transportation of materials from the United States for the purpose of
disposal in the oceans and coastal and other waters of the United
States, and (2) the dumping of such materials in waters over which
the United States has jurisdiction. The term "dumping" and other
key words in these bills are clearly defined. Both transportation and
dumping would be prohibited unless the Administrator of EPA issues
an authorizing permit. The Administrator would be empowered to
issue such permits "where the applicant presents information respect-
ing the proposed activity which in the judgment of the Administrator
indicates that such transportation, or dumping, or both will not un-
reasonably degrade or unreasonably endanger human health, welfare,
or amenities, or the marine environment, ecological systems, or eco-
nomic potentialities."
In reviewing permit applications the Administrator would be guided
by criteria to be established by him in consultation with certain named
Federal agencies, including the Atomic Energy Commission, as well
as "other appropriate Federal, State, and local officials."
The Administrator would have very broad authority with respect
to types and scopes of permits, but no permit could be issued for
dumping that would violate applicable water quality standards. The
bill provides that transportation or dumping without a permit would
be permitted in emergency situations where necessary to safeguard
human life: in such excepted instances, reports would have to be
furnished to the Administrator "within such time and under such
conditions as he may prescribe by regulation."
Under the caption "Relationship to Other Laws" the bill provides,
among other things, that: "(b) Xothing in this Act shall abrogate or
negate any existing responsibility or authority contained 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: Pro-
vided, The Atomic Energy Commission shall consult with the Admin-
istrator 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) and5(a)(2) of this Act."
This provision recognizes that the Atomic Energy Act of 1954, as
amended, vests the Atomic Energy Commission with regulatory au-
thority over the construction and operation of nuclear facilities and
the possession and use of certain defined nuclear materials, including
the disposal of all radioactive materials, except radioactive material
produced in accelerators and naturally occurring radium and its
daughters. , .„,
[p. 42]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1651
In our view, the proposed legislation would provide for comprehen-
sive and effective regulation of the discharge of materials into the
marine environment. Accordingly, we favor the enactment of S. 1238.
The Office of Management and Budget has advised that there is no
objection to the presentation of this report from the standpoint of the
Administration's program.
Cordially,
GLKXX T. SEABORG,
Chairman.
COMPTROLLER GENERAL oi' THE UXITED STATES.
Wnxhinytwi, D.C.. May 7, 1971.
15-118370.
[Ion. WARREX G. MAOXUSOX,
Chninnmi. Committee on Commerce.
r.ft. Senate.
J)KAR MR. CIIAIMAX : Reference is made to your letter of March 24.
1971, requesting our views on S. 1238. which, if enacted, would regu-
late the dumping of material in the oceans, coastal, and other waters.
We have no special information as to the advantages or disadvan-
tages of the proposed measure and therefore have no comments to
make concerning its enactment.
Sincerely yours,
RoisF-RT F. KELLER,
Asxixftint ('ompf roller (j-enercl of the Vnited
THE GENERAL COVXSELOF THE THKASI-RY.
Wif/fon. D.C.. July 21. W71.
Iton. WARREN G. MAOXTSOX.
Cluiirmait. Committee on Co/innerr-e.
f'.tf. Renfite. "Wosshiiir/toii. D.C.
DKAK MR. CHAIRMAN-: Reference is made to your request for the
views of this Department on S. 12:58, to regulate the dumping of mate-
rial in the oceans, coastal, and other waters, and for other purposes.
The bill would regulate the dumping of all types of material in the
oceans, coastal, and other \vateiv within the jurisdiction of the United
Stales and prevent or vigorously limit the dumping into these waters
of any material which could adversely affect human health, welfare,
or amenities, or the marine environment, ecoU^gical systems, or eco-
nomic potentialities by requiring that a permit be obtained from the
Administrator of the Environmental Protection Agency before any
person could transport material from the United States for the pur-
pose of dumping it into the ocean, coastal, and other waters within the
jurisdiction of the United States. The Administrator of the Environ-
mental Protection Agency would be authorized to prescribe regula-
tions to carry out the provisions of the bill, in particular those con-
cerning requirements for the issuance of dumping permits. The bill
would provide a civil penalty of not more than $50,000 to be assessed
by the Administrator for each violation.
[p. 43]
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1652 LEGAL COMPILATION — SUPPLEMENT I
As the policy considerations involved in regulating the dumping of
material in the oceans, coastal, and other waters within the jurisdiction
of the United States do not relate to matters within the Treasury De-
partment's jurisdiction, except for purpose? of administration, we are
expressing no views thereon. If the bill is enacted into law, we antici-
pate no administrative difficulties in carrying out our responsibilities
under it.
The Department has been advised by the Office of Management and
Budget that there is no objection to the submission of this report to
your Committee and that enactment of the proposed legislation would
be in accord with the program of the President.
Sincerely yours.
IvO Y T. ExCiJ UT.
Acting General. C
DEPARTMENT OF STATE.
Washington. D.C.. August 2. 1971.
Hon. WARREN G. MAGNTSON.
Chaiimcm. Committee on Commerce.
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : The Secretary has asked me to respond to
your letter of March 24, 1071, requesting the Department's views
on S. 12-58 and S. 1280, bills to regulate the dumping of material in
the oceans, coastal, and other waters and to establish an immediate
program for the prevention of ocean pollution.
This Department has no objection to S. 1238 from the foreign
policy viewpoint and recommends its enactment .
While S. 1280 regulates the same activities, it is less comprehensive
in scope than S. 1238. S. 1280 does not provide for the licensing of
ocean dumping activities taking place in waters under the jurisdic-
tion of the United States which originates from outside United
States territory. While at the present time, we know of no ocean
dumping activity occurring off the coasts of United Stares territory
which does not originate from United States jurisdiction, the Depart-
ment of State feels that the more comprehensive, approach as provided
in S. 1238 should be included in any ocean dumping legislation passed
by the Congress. The Department therefore, does not recommend
enactment of S. 1280.
The Office of Management and Budget advises that there is no
objection to the submission of this report and that enactment of S.
1238 would be in accord with the program of the President.
Sincerely yours,
DAVID M. Ausmr.E.
Assistant Secretary for Congressional Relations.
" [P- 44]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1653
GENERAL COUNSEL or THE DEPARTMENT or DEFENSE.
Washington, D.C., August %7,1971.
Hon. WARREN G. MAGNUSON,
Chairman. Committee on Commerce.
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : Reference is made to your request for the
views of the Department of Defense on S. 1238, 92d Congress, a bill
to regulate the dumping of material in the oceans, coastal, and other
waters and for other purposes.
The purpose of the bill is stated in the title. If enacted, the bill
would make the Administrator of the Environmental Protection
Agency responsible for establishing appropriate regulations for the
application of the environmental standards contained in the proposals.
Any agency or person would have to obtain a permit from the Ad-
ministrator before transporting materials for dumping or before
dumping materials in the protected areas. There are certain exceptions
to this latter requirement for routine operation of vessels and for
intentional placement of devices in the waters, if such placement is
for a purpose other than disposal.
The bill was introduced as a result of a proposal submitted to the
Congress in connection with the President's environmental message
of February 8, 1971. The Department of Defense supports the bill
and recommends enactment.
The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there would be no objection
to the presentation of this report for the consideration of the Com-
mittee, and that the enactment of S. 1238 would be in accord with
the program of the President.
Sincerely yours,
J. FRED BUZHARDT.
O [p. 45]
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1654 LEGAL COMPILATION—SUPPLEMENT I
1.32a(3) COMMITTEE OF CONFERENCE
H.R. REP. No. 92-1546, 92d Cong., 2d Sess. (1972)
MARINE PROTECTION, RESEARCH, AND SANCTUARIES
ACT OF 1972
OCTOBEB 9,1972.—Ordered to be printed
Mr. GARMATZ, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany H.R. 9727]
The committee of conference on the disagreeing votes of the two
Houses on the amendments of the Senate to the bill (H.R. 9727), to
regulate the dumping of material in the oceans, coastal, and other
waters, and for other purposes, having met, after full and free con-
ference, have agreed to recommend and do recommend to their re-
spective Houses as follows:
That the House recede from its disagreement to the amendment of
the Senate to the text of the bill and agree to the same with an amend-
ment as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment to the text of the bill insert the following; That this Act may
be cited as the "Marine Protection, Research, and Sanctuaries Act of
1972".
FINDING, POLICY, AND PURPOSE
SEC. 2. (a) Unregulated dumping of material into ocean waters en-
dangers human health, welfare, and amenities, and the marine envi-
ronment, ecological systems, and economic potentialities.
(b) The Congress declares that it is the policy of the United States
to regulate the dumping of all types of materials into ocean waters and
to prevent or strictly limit the dumping into ocean waters of any ma-
terial which would adversely affect human health, welfare, or ameni-
ties, or the marine environment, ecological systems, or economic
potentialities.
To this end, it is the purpose of this Act to regulate the transporta-
tion of material from the United States for dumping into ocean
waters, and the dumping of material, transported from outside the
United States, if the dumping occurs in ocean waters over which the
United States has jurisdiction or over which it may exercise control,
under accepted principles of international law, in order to protect its
territory or territorial sea.
[p- 1]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1655
DEFINITIONS
SEC. 3. For the purposes of this Act the term—
(a) "Administrator" means the Administrator of the Environ-
mental Protection Agency.
(b) "''Ocean waters" means those waters of the open seas lying sea-
ward of the base line from which the territorial sea ts measured, as pro-
vided for in the Convention on the Territorial Sea and the Contiguous
Zone (15 UST1606; TIAS 5639).
(c) "Material" means matter of any kind or description, including,
but not limited to, dredged material, solid waste, incinerator residue,
garbage, sewage, sewage sludge, munitions, radiological, chemical, and
biological warfare agents, radioactive materials, chemicals, biological
and laboratory waste, wreck or discarded equipment, rock, sand, exca-
vation debris, and industrial, municipal, agricultural, and other waste;
but such term does not mean oil within the meaning of section 11 of the
Federal Water Pollution Control Act, as amended (33 U.S.C. 1161)
and does not mean sewage from vessels within the meaning of section
13 of such Act (33 U.S.C. 1163).
(d) "United States" includes the several States, the District of Co-
lumbia, the Commonwealth of Puerto Rico, the Canal Zone, the terri-
tories and possessions of the United States, and the Trust Territory
of the Pacific Islands.
(e) "Person" means any private person or entity, or any officer, em-
ployee, agent, department, agency, or instrumentality of the Federal
Government, of any State or local unit of government, or of any for-
eign government.
(/) "Dumping" means a disposition of material: Provided, That it
does not mean a disposition of any effluent from any outfall structure
to the extent that such disposition is regulated under the provisions of
the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151-
1175), under the provisions of section 13 of the Rivers and Harbors Act
of 1899, as amended (33 U.S.C. 407), or under the provisions of the
A tomic Energy Act of 1954, as amended (42 U.S.C. 2011, et seq.), nor
does it mean a routine discharge of^ effluent incidental to the propul-
sion of, or operation of motor-driven equipment on, vessels: Pro-
vided further, That it does not mean the construction of any
fixed structure or artificial island nor the intentional placement of
any device in ocean waters or on or in the submerged land be-
neath such waters, for a purpose other than disposal, when such
construction or such placement is otherwise regulated by Federal
or State law or occurs pursuant to an authorized Federal or
State program: And provided further. That it does not include
the deposit of oyster shells or other materials when such deposit
is made for the purpose of developing, maintaining, or harvesting
fisheries resources and is otherwise regulated by Federal or State law
or occurs pursuant to an authorized Federal or State program.
(g) "District court of the United States" includes the District Court
of Guam, the District Court of the Virgin Islands, the District Court
of Puerto Rico, 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.
[P- 2]
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1656 LEGAL COMPILATION—SUPPLEMENT I
(k) "/Secretary" means the Secretary of the Army.
(i) "Dredged material''' means any material excavated or dredged
from the navigable waters of the United States.
(j) "High-level radioactive waste" means the aqueous waste re-
sulting from the operation of the first cycle solvent extraction sys-
tem, or equivalent, and the concentrated waste from subsequent ex-
traction cycles, or equivalent, in a facility for reprocessing irradiated
reactor fuels, or irradiated fuel from, nuclear power reactors.
(k) "Transport" or "transportation" refers to the carriage and re-
lated handling of any material by a vessel, or by any other vehicle, in-
cluding aircraft.
TITLE I—OCEAN DUMPING
PROHIBITED ACTS
SEC. 101. (a) No person shall transport from the United States any
radiological, chemical, or biological warfare agent or any high-level
radioactive waste, or except as may be authorized in a permit issued
under this title, and subject to regulations issued under section 108
hereof by the Secretary of the Department in which the Coast Guard
is operating, any other material for the purpose of dumping it into
ocean waters.
(b) No person shall dump any radiological, chemical, or biological
warfare agent or any high-level radioactive waste, or, except as may
be authorized in a permit issued under this title, any other material,
transported from any location outside the United States, (1) into the
territorial sea of the United States, or (2) into a zone contiguous to the
territorial sea of the United States, extending to a line twelve nautical
miles seaward from the base line from which the breadth of the terri-
torial sea is measured, to the extent that it may affect the territorial sea,
or the territory of the United States.
(c) No officer, employee, agent, department, agency, or instru-
mentality of the United States shall transport from any location out-
side the United States any radiological, chemical, or biological warfare
agent or any high-level radioactive waste, or, except as may be au-
thorized in a permit issued under this title, any other -material for the
purpose of dumping it into ocean waters.
ENVIRONMENTAL PROTECTION AGENCY PERMITS
SEC. 102. (a) Except in relation to dredged material, as provided
for in section 103 of this title, and in relation to radiological, chem-
ical, and 'biological warfare agents and high-level radioactive waste,
as provided for in section 101 of this title, the Administrator may
issue permits, after notice and opportunity for public hearings, for
the transportation from the United States or, in the case of an
agency or instrumentality of the United States, for the transporta-
tion from a location outside the United States, of material for the
purpose of dumping it into ocean waters, or for the dumping of
material into the waters described in section 10J(b), where the Ad-
ministrator determines that such dumping will not unreasonably
degrade or endanger human health, welfare, or amenities, or the
marine environment, ecological systems, or economic potentialities.
[p. 3]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1657
The Administrator shall establish and apply criteria for reviewing
and evaluating such permit applications, and, in establishing or revis-
ing such criteria, shall consider, but not be limited in Ms consideration
to, the following-'
(A) The need for the proposed dumping.
(B) The effect of such dumping on human health and welfare,
including economic, esthetic, and recreational values.
(C) The effect of such dumping on fisheries resources, plankton,
fish, shellfish, loildlife, shore lines and beaches.
(D) The effect of such dumping on marine ecosystems, par-
ticularly with respect to—
(i)the transfer, concentration, and dispersion of such ma-
terial and its byproducts through biological, physical, and
chemical processes,
(ii) potential changes in marine ecosystem diveristy, pro-
ductivity, and stability, and
(Hi] species nad community population dynamics.
(E) The persistence and permanence of the effects of the dump-
ing.
(F) The effect of dumping particular volumes and concentra-
tions of such materials.
(G) Appropriate locations and methods of disposal or recycl-
ing, including land-based alternatives and the probable impact of
requiring use of such alternate locations or methods upon con-
siderations affecting the public interest.
(H) The effect on alternate uses of oceans, such as scientific
study, fishing, and other living resource exploitation, and non-
living resource exploitation.
(I) In designating recommended sites, the Administrator shall
utilize wherever feasible locations beyond the edge of the Con-
tinental Shelf.
In establishing or revising such criteria, the Administrator shall con-
sult with Federal, State, and local officials, and interested members
of the general public, as may appear appropriate to the Administrator.
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. In reviewing applications for permits, the Admin-
istrator shall make such provision for consultation with interested
Federal and State agencies as he deems useful or necessary. No per-
mit shall be issued for a dumping of material which will violate appli-
cable water quality standards.
(b) The Administrator may establish and issue various categories
of permits, including the general permits described in section 104(c).
(c) The Administrator may, considering the criteria established
pursuant to subsection (a) of this section, designate recommended sites
or times for dumping and, when he finds it necessary to protect critical
areas, shall, after consultation with the Secretary, also designate sites
or times within which certain materials may not be dumped.
(d) No permit is required under this title for the transportation
for dumping or the dumping of fish wastes, except when deposited in
harbors or other protected or enclosed coastal waters, or where the
Administrator finds that such deposits could endanger health, the en-
vironment, or ecological systems in a specific location. Where the
[p- 4]
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1658 LEGAL COMPILATION—SUPPLEMENT I
Administrator makes such a finding, such material may be deposited
only^ as authorized by a permit issued by the Administrator under this
section.
CORPS OF ENGINEERS PERMITS
SEC. 103. (a) Subject to the provisions of subsections (b), (c),
and (d) of this section, the Secretary may issue permits, after notice
and opportunity for public hearings, for the transportation of dredged
material for the purpose of dumping it into ocean waters, where the
Secretary determines that the dumping will not unreasonably degrade
or endanger human health, welfare, or amenities, or the marine en-
vironment, ecological systems, or economic potentialities.
(b) In making the determination required by subsection (a), the
Secretary shall apply those criteria, establislied pursuant to section
102(a), relating to the effects of the dumping. Based upon an evalua-
tion of the potential effect of a permit denial on navigation, economic
and industrial development, and foreign and domestic commerce of
the United States, the Secretary shall make a>n independent determi-
nation as to the need for the dumping. The Secretary shall also make
an independent determination as to other possible methods of disposal
and as to appropriate locations for the dumping. In considering ap-
propriate locations, he shall, to the extent feasible, utilize the recom-
mended sites designated by the Administrator pursuant to section
102 (c).
(c) Prior to issuing any permit under this section, the Secretary
sliall first notify the Administrator of his intention to do so. In any
case in which the Administrator disagrees with the determination of
the Secretary as to compliance with the criteria established pursuant
to section J02(a) relating to the effects of the dumping or with the
restrictions establislied pursuant to section 102(c) relating to critical
areas, the determination of the Administrator shall, prevail. Unless the
Administrator grants a waiver pursuant to subsection (d), the Secre-
tary shall not issue a permit which does not comply with such criteria
and with such restrictions.
(d) If, in any case, the Secretary finds tlmt, in the disposition of
dredged material, there is no economically 'easible method or site
available other than a dumping site the uti',nation of which would
result in non-compliance with the criteria established pursuant to sec-
tion 102(a) relating to the effects of dumping or with the restrictions-
established pursuant to section ]02(c) relating to critical areas, he
shall so certify and request a waiver from, the Administrator of the
specific requirements involved. Within, thirty days of the receipt of
the waiver request, unless the Administrator finds that the dumping of
the material ivill result in an un/icceptably adverse impact on munici-
pal water supplies, shell-fish beds, wildlife, fisheries (including spawn-
ing and breeding areas), or recreational areas, he shall grant the-
waiver.
(e) In connection with Federal projects involving dredged material,
the Secretary may, in lieu of the permit procedure, issue regulations
which will require the application to such projects of the same criteria,
other factors to be evaluated, the saine procedures, and the same re-
quirements which apply to the issuance of permits under subsections
(a), (b), (c),and, (d) of this section.
[p. 5]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1659
PERMIT CONDITIONS
SEC. 104. (a) Permits issued wider this title shall designate and
include (/) the type of material authorized to he transported for flump-
ing or to he dumped; (2) the amount of material authorized to he
transported for dumping or to be dumped; (3) the location where such
transport for dumping will he terminated, or vohere such dumping will
occur; (4-) the length of time for which ihe permits are valid and their
expiration date; (5) any special provisions deemed necessary hy the
Administrator or the Secretary, as the case may he, after consulta-
tion with the Secretary of the Department in which the Coast Guard
is operating, for the monitoring and surveilance of the transportation
or dumping; and (6) such other matters as the Administrator or the
Secretary, as the case may he, deems appropriate.
(h) The Administrator or the Secretary, as the case may he, may
prescribe such processing fees for permits and such reporting require-
ments for actions taken pursuant to permits issued hy him under this
title as he deems appropriate.
(c) Consistent with the requirements of sections 102 and 103. hut in
lieu of a requirement for specific permits in such case, the Administra-
tor or the Secretary, as the case may he, may issue general permits for
the transportation for dumping, or dumping, or hoth, of specified ma-
terials or classes of materials for which he may issue permits, which
he determines will have a minimal adverse environmental impact.
(d) Any permit issued under this title shall be reviewed periodically
and, if appropriate, revised. The Administrator or the Secretary, as
the case may he, may limit or deny the issuance of permits, or he may
alter or revoke partially or entirely the terms of permits issued by
him under this title, for the transportation for dumping, or for the
dumping, or hoth, of specified materials or classes of materials, where
he finds that such materials cannot he dumped consistently with the
criteria and other factors required to he applied in evaluating the per-
mit application. No action shall he taken under this subsection unless
the affected person or permittee shall have heen given notice cind op-
portunity for a hearing on such action as proposed.
(e) The Administrator or the Secretary, as the cose may he, shall re-
quire an applicant for a permit under this title to provide such infor-
mation, as he may consider necessary to review and evaluate such
application.
(f) Information received hy the Administrator or the Secretary, as
the case may he, as a part of any application, or in connection with any
permit granted under this title shall he available to the nuhlic as n
matter of public, record, at every stage of the proceeding. The filial de-
termination of the Administrator or the Secretary, as the case m-ay be,
shall be likewise available.
((?) A copy of any permit issued, under this title shall he pi need in
a conspicuous place in the vessel which trill he used for the transporta-
tion or dumping authorized hy such permit, and an additional copii
shall he furnished, hti the issuinci official to the Secretary of the depart-
in which the Const Guard is operating, or its designee.
PENALTIES
Sfc. 105. (a\ Ami person whn violates nnii provision of this title.
or of the renulfitions promulfwteil n^der this title, or n permit issiierl
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1660 LEGAL COMPILATION—SUPPLEMENT I
under this title 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 of such violation. In
determining the amount of the penalty, the gravity of the violation,
prior violations, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after notification
of a violation shall be cons'idered by said Administrator. For good
cause shown, the Administrator may remit or mitigate such penalty.
Upon failure of the offending party to pay the penalty, the Adminis-
trator 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 sub-
section (a) of this section, a person who knowingly violates this
title, regulations promulgated under this title, or a permit issued
under this title 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 as shall the dumping from each of several vessels,
or other sources.
(d) The Attorney General or his delegate may bring actions for
equitable relief to enjoin an imminent or continuing violation of this
title, of regulations promulgated under this title, or of permits issued
under 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.
(e) A vessel, except a public vessel within the meaning of section
13 of the Federal Water Pollution Control Act, as amended (33 U.S.C.
1163), 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; but
no vessel shall be liable unless it shall appear that one or more of the
owners, or bareboat charterers, was at the time of the violation a con-
senting party or privy to such violation.
(/) // the provisions of any permit issued under section 102 or 103
are violated, the Administrator or the Secretary, as the case may be,
may revoke the permit or may suspend the permit for a specified pe-
riod of time. No permit shall be revoked or suspended unless the per-
mittee shall have been given notice and opportunity for a hearing on
such violation and proposed suspension or revocation.
(g) (1) Except as provided in paragraph (%) of this subsection any
person may commence a civil suit on his own behalf to enjoin any
person, including the United States and any other governmental in-
strumentality or agency (to the extent permitted by the eleventh
amendment to the Constitution), who is alleged to be in violation of any
prohibition, limitation, criterion, or permit established or issued by
or under this title. The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the parties, to
enforce such prohibition, limitation, criterion, or permit, as the case
may be.
(2) No action may be commenced—
(A) prior to sixty days after notice of the violation has been
given to the Administrator or to the Secretary, and to any alleged
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WATER—STATUTES AND LEGISLATIVE HISTORY 1661
violator of the prohibition, limitation, criterion, or permit; or
(B) if the Attorney General has commenced and is diligently
prosecuting a civil action in a court of the United States to re-
quire compliance with the prohibition, limitation, criterion, or
permit; or
(C) if the Administrator has commenced action to impose a
penalty pursuant to subsection (a) of this sectiori, or if the Ad-
ministrator, or the Secretary, has initiated permit revocation or
suspension proceedings under subsection (/) of this sectwn; or
(D) if the United States has commenced and is diligently
prosecuting a criminal action in a court of the United States or
a State to redress a violation of this title.
(3) (A) Any suit under this subsection may "be brought in the judi-
cial district in which the violation occurs.
(B) In any such suit under this subsection in which the United
States is not a party, the Attorney General, at the request of the Ad-
ministrator or Secretary, may intervene on behalf of the United States
a,? a, matter of right.
(^) The court, in issuing any -final order in any suit brought pur-
suant to paragraph (1) of this subsectionmay award costs of litigation
(including reasonable attorney and expert witness fees) to any party.
whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not re-
strict any right which any person (or class of persons') may have under
any statute or common law to seek enforcement of any standard or lim-
itation or to seek any other relief (including relief against the Ad-
ministrator, the Secretary, or a State agency}.
(A) No person shall be subject to a civil penalty or to a criminal
fin* or imprisonment for dumping materials from a vessel if such mate-
rials are dumped in an emergency to safeguard life at sea. Any such
emergency dumping shall be reported to the Administrator under
such conditions as he may prescribe.
RELATIONSHIP TO OTHER LAWS
Sec. 106. (a) After the effective date of this title, all licenses, per-
mits, and authorizations other than those issued pursuant to this title
shall be void- and of no legal effect, to the extent that they purport to
authorize am/ activity remilated by thw title, and whether issued be-
fore or alter the effective date of this title.
(b) The provisions of subsection (a) shall not apply to actions
taken before the effective date of this title under the authority of the
Rivr* and Harbors Act of 1899 (30 Stat. 1151), as amended (33
U.S.d',01 etsea.).
(c} Prior to ixsuma anv permit under this title, if it appears to the
Administrator that the disposition of material, other than dredged
material., may adversely affect navioation in the territorial sea, of the
United States, or in the approaches to any harbor of the United States,'
or may create an artificial, islard on the Outer Continental Shelf, the
Adminit+rator shall consult with the Secretary and no permit shall
be issued if the Secretary determines that navigation will be unreason-
ably impaired.
(d) After the effective date of this title, no -State shall adopt or
enforce any rule or regulation relating to any activity regulated by
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1662 LEGAL COMPILATION—SUPPLEMENT I
this title. Any State may, however, propose to the Administrator cri-
teria relating to the dumping of materials into ocean waters within its
jurisdiction, or into other ocean waters to the extent that such dump-
ing may affect waters within the jurisdiction of such State, and if the
Administrator determines, after notice and opportunity for hearing,
that the proposed criteria are not inconsistent with the purposes of this
title, may adopt those criteria and may issue regulations to implement
such criteria. Such determination shall be made by the Administrator
within one hundred and twenty days of receipt of the proposed cri-
teria. For the purposes of this subsection, the term "State" means any
State, interstate or regional authority, Federal territory or Common-
wealth or the District of Columbia.
(e) Nothing in this title shall be deemed to affect in any manner or
to any extent any provision of the Fish and Wildlife Coordination Act
as amended (16 U.S.C. 661-666c).
ENFORCEMENT
SEC. 107. (a) The Administrator or the Secretary, as the case may
be, may, whenever appropriate, utilize by agreement, the personnel,
services and facilities of other Federal departments, agencies, and in-
strumentalities, or State agencies or instrumentalities, whether on a
reimbursable or a nonreimbursable basis, in carrying out his respon-
sibilities under this title.
(b) The Administrator or the Secretary may delegate responsibility
and authority for reviewing and evaluating permit applications, in-
cluding the decision as to whether a permit will be issued, to an officer
of his 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 nonreimbusable basis.
(c) The Secretary of the department in which the Coast Guard is
is operating shall conduct surveillance and other appropriate enforce-
ment activity to prevent unlawful transportation of material for dump-
ing, or unlawful dumping. Such enforcement activity shall include, but
not be limited to, enforcement of regulations issued by him pursuant
to section 108, relating to safe transportation, handling, carriage, stor-
age, and stowage. The Secretary of the Department in which the Coast
Guard is operating shall supply to the Administrator and to the Attor-
ney General, as appropriate, such information of enforcement activities
and such evidentiary material assembled as they may require in carry-
ing out their duties relative to penalty assessments, criminal prosecu-
tions, or other actions involving litigation pursuant to the provisions of
this title.
REGULATIONS
SEC. 108. In carrying out the responsibilities and authority conferred
by this title, the Administrator, the Secretary, and^ the Secretary^ of
the department in which the Coast Guard is operating are authorized
to issue such regulations as they may deem appropriate.
INTERNATIONAL COOPERATION
SEC. 109. The Secretary of State, in consultation with the Adminis-
trator, shall seek effective international action and cooperation to in-
sure protection of the marine environment, and may, for this purpose,
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WATER—STATUTES AND LEGISLATIVE HISTORY 1663
formulate, per'sent; or support specific proposals in the United Nations
and other competent international organisations for the development of
appropriate international rules and regulations in support of the policy
of this Act.
EFFECTIVE DATE AND SAVINGS PROVISION
SEC. 110. (a) This title shall take effect six months after the date of
the enactment of this Act.
(b) No legal action begun, or right of action accrued, prior to the
effective date of this title shall "be affected by any provision of this title.
SEC. 111. There are hereby authorized to be appropriated not to ex-
ceed $3,600,000 for -fiscal year 1973, and not to exceed $5,500,000 for fis-
cal year 1974, for the purposes and administration of this title, and for
succeeeding fiscal years only such sums as the Congress may authorize
by law.
SEC. 112. The Administrator shall report annually, on or before June
SO of each year, with the first report to "be made on or "before June 30,
1973 to the Congress, on his administration of this title, including rec-
ommendations for additional legislation if deemed necessary.
TITLE II—COMPREHENSIVE RESEARCH ON OCEAN
DUMPING
SEC. 201. The Secretary of Commerce, in coordination with the
Secretary of the Depart?nent in which the Coast Guard is operating
and with the Administrator shall, within six months of the enactment
of this Act, initiate a comprehensive and continuing program of moni-
toring and research regarding the effects of the dumping of material
into ocean waters or other coastal waters where the tide ebbs and
flows or into the Great Lakes or their connecting waters and shall re-
port from time to time, not less frequently than annually, his findings
(including an evaluation of the short-term ecological effects and the
social and economic factors involved] to the Congress.
SEC. 202. (a) The Secretary of Commerce, in consultation with
other appropriate Federal departments, agencies, and, instrumentali-
ties shall, within six months of the enactment of this Act, initiate a
comprehensive and continuing program of research with respect to
the possible long-range effects of pollution, overfishing, and man-in-
duced changes of ocean ecosystems. In carrying out such research, the
Secretary of Commerce shall take into account such factors as existing
and proposed international policies affecting oceanic problems, eco-
nomic considerations involved in both the protection and the use of
the oceans, possible alternatives to existing programs, and ways in
which the health of the oceans may "best "be preserved for the "benefit
of succeeding generations of mankind.
(b) In carrying out his responsibilities under this section, the Sec-
retary of Commerce, under the foreign policy guidance of the Presi-
dent and pursuant to international agreements and treaties made by
the President with the advice and consent of the Sentae, may act
alone or in conjunction with any other nation or group of nations,
and shall make known the results of his activities by such channels of
communication as may appear appropriate.
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1664 LEGAL COMPILATION—SUPPLEMENT I
(c) In January of each year, the Secretary of Commerce shall report
to the Congress on the results of activities undertaken by him pursuant
to this section during the previous fiscal year.
(d) Each department, agency, and independent instrumentality of
the Federal Government ,is authorized and directed to cooperate with
the Secretary of Commerce in- carrying out the purposes of this sec-
tion and, to the extent permitted by law, to furnish such information
as may be requested.
(e) The Secretary of Commerce, in carrying out his responsibilities
under this section, shall, to the extent feasible utilize the personnel,
services, and facilities of other Federal departments, agencies, and in^
strumentalities (including those of the Coast Guard for monitoring
purposes), and is authorized to enter into appropriate inter-agency
agreements to accomplish this action.
SBC. 203. The Secretary of Commerce shall conduct and encourage,
cooperate with, and render financial and other assistance to appropri-
ate public (whether Federal, State, interstate, or local) authorities,
agencies, and institutions, private agencies and institutions, and in-
dividuals in the conduct of, and to promote the coordination of, re-
search, investigations, experiments, training, demonstrations, surveys,
and studies for the purpose of determining means of minimizing or
ending all dumping of materials within five years of the effective date
of this Act.
SEC. 20^. There are authorized to be appropriated for the first fiscal
year after this Act is enacted and for the next two fiscal years there-
after such sums as may be necessary to carry out this title, but the
sums appropriated for any such fiscal year may not exceed $6,000,000.
TITLE III—MARINE SANCTUARIES
SEC. 301. Notwithstanding the provisions of subsection (h) of sec-
tion 3 of this Act, the term "Secretary", when used in this title, means
Secretary of Commerce.
SEC. 302. (a) The Secretary, after consultation with the Secretaries
of State, Defense, the Interior, and Transportation, the Administra-
tor, and the heads of other interested Federal agencies, and with the
approval of the President, may designate as marine sanctuaries those
areas of the ocean waters, as far seaward as the outer edge of the
Continental, Shelf, as defined in the Convention of the Continental
Shelf (15 U.S.T. 74; TIAS 5578), of other coastal waters where the
tide ebbs and -flows, or of the Great Lakes and their connecting waters,
which he determines necessary for the purpose of preserving or re-
storing such areas for their conservation, recreational, ecological, or
esthetic values. The consultation shall include an opportunity to review
and comment on a. specific proposed designation.
(b) Prior to designating a marine sanctuary which includes waters
lying within the territorial limits of any State or superjacent to the
subsoil and seabed within the seaward boundary of a coastal State,
as that boundary is defined in section 2 of title I of the Act of May 20,
1953 (67 Stat. %9), the Secretary shall consult with, and give due
consideration to the views of, the responsible officials of the State
involved. As to such waters, a designation under this section shall be-
come effective sixty days after it is published, unless the Governor of
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WATER—STATUTES AND LEGISLATIVE HISTORY 1665
any State involved shall, before the expiration of the sixty-day period,
certify to the Secretary that the designation, or a specified portion
thereof, is unacceptable to his State, in which case the designated sanc-
tuary shall not include the area certified as unacceptable until such
time as the Governor withdraws his certification of unacceptability.
(c) When a marine sanctuary is designated, pursuant to this sec-
tion, which includes an area of ocean waters outside the territorial
jurisdiction of the United States, the Secretary of State shall take
such actions as may be appropriate to enter into negotiations with.
other Governments for the purpose of arriving at necessary agree-
ments with those Governments, in order to protect such sanctuary
and to promote the purposes for which it was established.
(d) The Secretary shall submit an annual report to the Congress,
on or before November 1 of each year, setting forth a comprehensive
review of his actions during the previous -fiscal year undertaken pur-
suant to the authority of this section, together with appropriate rec-
ommendation for legislation considered necessary for the designation
and protection of marine sanctuaries.
(e) Before a marine sanctuary is designated under this section, the
Secretary shall hold public hearings in the coastal areas which would
be most directly affected by such designation, for the purpose of re-
ceiving and giving proper consideration to the views of any interested
party. Such hearings shall be held no earlier than thirty days after
the publication of a public notice thereof.
(/) After a marine sanctuary has been designated under this sec-
tion, the Secretary, after consultation with other interested Federal
agencies, shall issue necessary and reasonable regulations to control
any activities permitted within the designated marine sanctuary, and
no permit, license, or other authorisation issued pursuant to any other
authority shall be valid unless the Secretary shall certify that the
permitted activity is consistent with the purposes of this title and
can be carried out within the regulations promulgated under this
section.
(g) The regulations issued pursuant to subsection (/) shall be ap-
plied in accordance with recognized principles of international law,
including treaties, conventions, and other agreements to which the
United States is signatory. Unless the application of the regulations
is in accordance with such principles or is otherwise authorized by
an agreement between the United States and the foreign State of
which, the affected person is a citizen or, in the case of the crew of a
foreign vessel, between the United States and flag State of the vessel,
no regulation applicable to ocean waters outside the territorial juris-
diction of the United States shall be applied to a person not a citizen
of the United States.
SEC. 303. (a) Any person subject to the jurisdiction of the United
States who violates any regulation issued pursuant to this title shall
be liable to a civil penalty of not more than $50,000 for each such vio-
lation, to be assessed by the Secretary. Each day of a continuing viola-
tion shall constitute a separate violation.
(b) No penalty shall be assessed under this section until the person
charged has been given notice and an opportunity to be heard. Upon
failure of the offending party to pay an assessed penalty, the Attorney
[p. 12]
525-312 O - 73 - 29
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1666 LEGAL COMPILATION—SUPPLEMENT I
General, at the request of the Secretary, shall commerce action in the
appropriate district court of the United States to collect the penalty
and to seek such other relief as may be appropriate.
(c) A vessel used in the violation of a regulation issued pursuant to
this title shall be liable in rem for any civil penalty assessed for such
violation and may be proceeded against in any district court of the
United States having jurisdiction thereof.
(d) The district courts of the United States shall have jurisdiction
to restrain a violation of the regulations issued pursurant to this title,
and to grant such other relief as may be appropriate. Actions shall be
brought by the Attorney General in the name of the United States,
either on his own initiative or at the request of the Secretary.
SEC. §04. There are authorized to be appropriated for the •fiscal year
in which this Act is enacted and for the next two fiscal years thereafter
such sums as may be necessary to carry out the provisions of this title,
including sums for the costs of acquisition, development, and operation
of marine sanctuaries designated under this title, but the sums appro-
priated for any such fiscal year shall not exceed $10,000,000.
That the House recede from its disagreement to the amendment of
the Senate to the title of the bill, and agree to the same with an amend-
ment as follows:
In lieu of the matter proposed to be inserted by the amendment of
the Senate to the title of the bill, insert the following:
An Act to regulate the transportation for dumping, and the
dumping, of material into ocean waters, and for other
purposes.
And the Senate agree to the same.
EDWARD A. GARMATZ,
JOHN D. DINGELL,
ALTON LENNON,
THOMAS M. PELLT,
CHARLES A. MOSHER,
Managers on the Part of the House,
WARREN G. MAGNTTSON,
ERNEST F. ROLLINGS,
PHILIP A. HART,
TED STEVENS,
Managers on the Part of the Senate.
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WATER—STATUTES AND LEGISLATIVE HISTORY 1667
JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE OF CONFEEENCE
The managers on the part of the House and Senate at.the conference
on the disagreeing votes of the two Houses on the amendments of the
Senate to the bill (H.K. 9727), to regulate the dumping of material
in the oceans, coastal and other waters, and for other purposes, submit
the following joint statement to the House and to the Senate in ex-
planation of the effect of the action agreed upon by the conferees and
recommended in the accompanying conference report:
The Senate struck out all of the House bill after the enacting clause
and inserted a substitute amendment; it also amended the title of the
bill. The committee of conference has agreed to a substitute for both
the House bill and the Senate amendment. Except for technical, clari-
fying, and conforming changes, the following statement explains the
differences between the House bill and the Senate amendments thereto.
PROVISIONS OF THE CONFERENCE SUBSTITUTE
SEC. 3(b). As enacted, the House bill extended the coverage of this
act to oceans, estuarine waters, other coastal waters affected by the
tides, and the Great Lakes. The Senate amendment provided cover-
age only to the oceans, coastal and other waters beyond the territorial
jurisdiction of the United States, insofar as the act regulates dumping
of materials. The conferees resolved the conflict by drawing the line at
the "base line"—the line from which the 3- and 12-mile limits are
computed, as provided for in the Convention on the Territorial Sea
and the Contiguous Zone, signed in Geneva on April 29, 1958. This
action was taken not only in recognition of the fact that the ocean
waters should be treated as a single unit, but also because of the po-
tential administrative and enforcement difficulties attendant upon
making the permit provisions applicable only to ocean waters outside
the territorial sea. Dumping of materials within internal waters, that
is, inside the base line is, according to information provided to the
conference, adequately covered by existing and proposed legislation
regulating water quality, and need not be covered under this act.
SEC. 3(f). The House bill specifically included "radioactive mate-
rials" under the definition in subsection (c) of "material" covered by
the act; the Senate bill did not. The conference resolved to include
such material, but excluded, in subsection (f) the coverage of such
material where it passes through outfalls already regulated under the
terms of the Atomic Energy Act of 1954, as amended. Thus, discharges
from nuclear powerplant outfalls, to the extent that they contain
quantities of radioactive material which are subject to regulation and
control by the Atomic Energy Commission, need not be also covered
by a dumping permit issued under the terms of this act.
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1668 LEGAL COMPILATION—SUPPLEMENT I
SEC. 102. Organic fish wastes (derived from commercial fishing and
cannery operations) while not specifically listed as such, were encom-
passed within the description of "material" in the House bill, but were
specifically excluded from coverage in the Senate version. This con-
flict was resolved by the conferees by allowing such material, includ-
ing fish, shellfish, crustaceans, other marine life or parts thereof, to be
dumped without a permit from either floating or fixed facilities unless
(a) placed in harbors or other protected or enclosed coastal waters, or
(b) where the Administrator made a positive finding that such mate-
rial could endanger health, the environment, or ecological systems,
placed in a specific location. He may make such a finding only after
investigations on the location involved disclosed that such effects
might be anticipated. In this case, the Administrator might require
any person wishing to deposit such materials to obtain a general or
specific permit to do so, although materials placed elsewhere may con-
tinue to be placed without such a permit. The exception relating to
harbor and other enclosed waters is intended to prohibit the dumping
of such materials in areas where tidal flushing action may be inade-
quate to disperse quantities of discarded fish wastes within a reason-
able period of time.
SEC. 103. The House bill assigned the responsibility for issuing
dumping permits to the Administrator of the Environmental Protec-
tion Agency in all cases except those involving dredge and fill opera-
tions; in this instance the U.S. Army Corps of Engineers, which
presently is responsible for such operations, was to continue in its
responsibilities. As to Corps-issued dredge permits, the Administrator
was given power to designate areas which might not be used as dis-
posal sites. Material could be placed in those areas only where the
Secretary of the Army certified that no economically feasible alterna-
tive was reasonably available.
The Senate alternative was to concentrate the disposal permit issu-
ing responsibilities in EPA, but permitted the Secretary of the Army
to request the issuance of such a permit, and indicated that the permit
would issue unless the Administrator made a positive finding that the
material would adverse]}* affect municipal water supplies, shellfish
beds, wildlife, fisheries or recreation areas.
This extremely complex and controversial question was resolved by
the committee on conference by allowing the Secretary to issue permits
for transportation of dredged material for dumping, following the
criteria set down by the Administrator under section 102 (a) of the
act.
Before issuing a permit, the Secretary must notify the Administra-
tor of his intention to do so, and may proceed unless the Administrator
disagrees with the determination of the Secretary as to the proper
application of EPA criteria on dumping effects or as to EPA restric-
tions relative to critical areas. It is expected that the first notice by the
Secretary to the Administrator of his intent to issue a permit shall
be from the date of public notice. In making the determination,
the Secretary is required to evaluate the potential effect of a permit
denial on navigation, economic and industrial development, and for-
eign and domestic commerce of the United States. It is expected that
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WATER—STATUTES AND LEGISLATIVE HISTORY 1669
the Secretary, in selecting a site for the disposal of dredged material,
will select economically feasible sites.
The Secretary is authorized to request a waiver from EPA in any
case in which he finds that there is no economically feasible site which
would not violate the EPA criteria or the EPA restrictions as to criti-
cal areas, and the Administrator must grant such a waiver unless he
finds that the proposed dumping will result in an unacceptably adverse
impact upon the area concerned.
The section also authorized the Secretary to handle Federal dredg-
ing projects through the use of regulatory powers in lieu of the permit
procedures described above, subject to the same general requirements
for issuance of permits.
This svstem, as agreed upon by the conferees, leaves to the Secre-
tary of the Army the permit authority for disposal of dredged mate-
rial, which would be used in connection with his existing authority to
issue permits for dredging. The Secretary is required to utilize this
disposal permit authority consistent (1) with the criteria established
between the Administrator as to the effects of the proposed dumping
and (2) with the restrictions established by the Administrator relat-
ing to critical areas.
It is expected that permit applications will be processed promptly
and that there will be a minimum of delay in agency review of these
applications before a final decision has been made. While the Admin-
istrator is given a 30 day review period over proposed waivers by
the Corps of Engineers, this does not in any way indicate that the
review period should or could be protracted once all of the informa-
tion required has been received and processed. It is also anticipated
that, to the greatest extent practicable, the permit review process will
be consolidated to allow review and decision on all aspects of the pro-
posed permit operations known at the time application is made by the
proposed permittee. The permit review process was not designed, and
is not intended to be used, as a bottleneck to prevent otherwise merito-
rious activities from being carried out.
To facilitate processing of permit applications the Administrator
is exnected to review the requirements for maintenance dredging of
non-Federal dock and berthing facilities contiguous to the authorized
Federal project at the same time as consideration is given to the Fed-
eral proiect requirements. The Secretary is also encouraged to ii=e
general dredging permits to maintain such non-Federal facilities
where the work is in the same general area and the character of the
work is similar.
The conferees fully expect that the Secretary is capable of perform-
ing, and will perform, his duties reasonably and intelligently, and
foresee very few occasions where the Administrator would disagree
with the Secretary in his determinations relative to the two specific
points raised. Nevertheless, to take care of the rare case, subsection
(c) provides that in the case of such a disagreement, the Administra-
tor's determination shall prevail.
As the conferees expect the Secretary to perform his divine ronson-
ablv and intelligently, thev are also confident thnt the \dmv~>istrntor
will perform likewise and not whimsically or capriciously. It is there-
fore, expected that it will be a rare occasion when the subsection (c)
disagreement provision will be invoked. r ^*-,
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1670 LEGAL COMPILATION—SUPPLEMENT I
In any case, where the Secretary finds that there is no economically
feasible alternative to a site which, if used, would violate either the
"effects" criteria or the "critical area" restrictions, whether that viola-
tion determination is made initially by the Secretary or results from
a determination by the Administrator under subsection (c), the Sec-
retary is enjoined to certify that fact and to request a waiver of the
disabling provision. That waiver must be granted by the Administra-
tor, without option on his part, unless he finds that the result of the
dumping would be so unacceptable in its adverse impact on one of the
specifically named considerations as to justify denial of the permit
which could terminate the Federal project.
It is intended that designation of critical areas by the Adminis-
trator shall be exercised with circumspection. Such confined areas are
expected to be limited in size and numbers. For the most part, the
conferees assume that existing sites for the disposal of dredged ma-
terial will continue to be used and available. Where this proves im-
practical, the review and waiver provisions of the bill would be used.
It is expected that until such time as economic and feasible alterna-
tive methods for disposal of dredge material are available, no un-
reasonable restrictions shall be imposed on dredging activities essential
for the maintenance of interstate and foreign commerce, and that,
consistent with the intent of this act, the disposal activities of private
dredgers and the Corps of Engineers will be treated similarly.
SEC. 105. The House bill contained a provision allowing "finders'
fees" to citizens notifying enforcement officials of criminal violations
of the act. This was eliminated by the Senate. The Senate version was
accepted by the conferees.
Both bills contained citizens' action provisions allowing the public
to intervene to enjoin violations of the act; the House allowed such
actions to be brought according to existing requirements under the
Judicial Code, whereas the Senate version permitted actions to be
brought only in the judicial district where the violation occurred. The
House version was accepted bv the conferees.
SEC. 106. As it passed the House, H.B. 9727 contained language per-
mitting any State, territory, or subdivision to impose additional re-
quirements to those imposed by the act. The Senate restricted the right
to cases in which a State proposed additional criteria, which were ac-
cepted by the Administrator and thereafter treated as Federal. The
Senate version of this provision was adopted by the conference.
SEC. 111. The House version of the bill contained an open-ended
authorization, whereas the Senate version authorized not to exceed
$3,600,000 for fiscal year 1973, and $5,500,000 for fiscal year 1974. The
conference adopted the Senate version, and added that later fiscal
years would be provided for by subsequent congressional action.
SEC. 112. The Senate version of the bill provided for annual re-
ports by EPA on the administration of title I of the bill, while the
House was silent on the issue. The conferees adopted the Senate lan-
guage, with the reports to begin in 1973.
TITLE II—COMPREHENSIVE KESEAKCII ox OCEAX DUMPING
The House version of H.R. 9727 provided for research by the Sec-
retary of Commerce, the Department in which the National Oceanic
[p. 17]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1671
and Atmospheric Administration is currently operating, on the effects
of dumping and on global monitoring of ocean problem's. It authorized
$2 million for these, purposes. The Senate bill increased the authori/a-
tion to $12 million, added a reporting requirement and instructed the
Secretary of Commerce to do research to determine, means of ending
all dumping within 5 years. The conferees decreased the authorization
to $6 million, incorporated an annual reporting requirement and in-
structed the Secretary, in cooperation with other interested agencies,
to do research aimed at reducing or eliminating ocean dumping within
5 vears.
TITLE III—MARINE SANCTUARIES
The House bill incorporated a title allowing the establishment of
marine sanctuaries by the Secretary of Commerce, acting through
NOAA. The concurrence of the governors of affected States was re-
quired where the proposed sanctuary fell within State jurisdiction,
either territorially or as to resources. The, Senate bill was silent on
the subject.
The committee on conference adopted the House approach, but
modified the language in some respects to make it clear that the regu-
lations and enforcement activities under the title would apply to non-
citizens of the United States only to the extent that, such persons were
subject to U.S. jurisdiction, either by virtue of accepted principles of
International law, or as a result of specific intergovernmental
agreements.
EmvAnn A. GARMATZ.
JOHX I). DIXGELL,
ALTON LEXXON,
THOMAS M. PKLLY,
CHARLES A. MOSIIKR,
Manager* on the Part of the House,
WARREX G. MAGXXTSOX,
EEXEST F. HOLLIXCS,
PHILIP A. HART,
TED STKVEXS,
Managers on the I'art of the Senate.
[p. 18]
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WATER—STATUTES AND LEGISLATIVE HISTORY 1673
1.32a(4) CONGRESSIONAL RECORD, VOL. 117 (1971)
1.32a(4)(a) Sept. 8, 9: Considered and passed House, pp. H8182-
H8199, H8225-H8255
MARINE PROTECTION, RESEARCH,
AND SANCTUARIES ACT OP 1971
Mr. MADDEN. Mr. Speaker, by direc-
tion of the Committee on Rules, I call up
House Resolution 554 and ask for its im-
mediate consideration.
The Clerk read the resolution as fol-
lows:
H. RES. 554
Resolved, That upon the 'adoption of this
resolution it shall be In order to move that
the House resolve itself Into the Committee
of the Whole House on the State of the Union
for the consideration of the bill (H.R. 9727)
to regulate the dumping of material in the
oceans, coastal, and other waters, and for
other purposes. After general debate, which
shall be confined to the bill and shall con-
tinue not to exceed two hours, to be equally
divided and controlled by the chairman and
ranking minority member of the Committee
on Merchant Marine and Fisheries, the bill
shall be read for amendment under the flve-
mlnute rule. It shall be in order to consider
the amendment in the nature of a substitute
recommended by the Committee on Merchant
Marine and Fisheries now printed in the bill
as an original bill for the purpose of amend-
ment under the five-minute rule. At the con-
clusion of such consideration, the Commit-
tee shall rise and report the bill to the
House with such amendments as may have
been adopted, and any Member may demand
a separate vote in the House on any amend-
ment adapted in the Committee of the Whole
to the bill or to the committee amendment
in the nature of a substitute. The previous
question shall be considered as ordered on
the bill and amendments thereto to final
passage without intervening motion except
one motion to recommit with or without in-
structions.
The SPEAKER. The gentleman from
Indiana is recognized for 1 hour.
Mr. MADDEN. Mr. Speaker, I yield 30
minutes to the gentleman from Califor-
nia (Mr. SMITH) , pending which I yield
myself such time as I may consume.
[p. H8182]
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1674
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