FEDERAL WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1972
CECIL C. KUHNE
Table of Contents
Introduction
I. Water Pollution: An Overview
A. Economic Considerations
B. Water Quality Standards and Effluent Standards
C . Biological .Considerations
D. Enforcing Standards
II. Legislative Approaches
A. Prior to 1972 Amendments
B. 1972 Amendments
III. Effluent Standards
A. Technological Availability and Economic Capability
1. Technological Availability
2. Economic Capability
B. Conflict Between Effluent and Water Quality Standards
C. No
D~scharge
Policy
IV. Permit System
A. Defining "Navigability"
B. Navigability and the Commerce Clause
C. Enforcement
D. Federal-State
V. Recommendations
Conclusion
~elations
Federal Water Pollution Control Act
Amendments of 1972
Introduction
Water pollution is one aspect of environmental
degradation which is of particular concern to society
because it has resulted in rivers and lakes that can no
longer support fish and plant life, unsafe drinking water,
and destruction of other natural resources.
Meanwhile, the
demands for water resources from a growing population and
industry have increased at unanticipated levels, and yet
water purification technology has not received adequate
funding from the private and public sectors.
Congress, in the 1972 Amendments of the Federal Water
Pollution Control Act,l has made some sweeping declarations
of policy which indicate that its perception of the water
pollution problem
has broadened considerably from earlier
,
legislative acts.
The Act specifically recognizes the
danger of toxic pollutants 2 and establishes the regulatory
machinery to prevent discharges to the nation's waters.
3
And for the first time, the Act addresses the non-point
source problem.
4
The 1972 legislation reflects both a desire for rapid
improvement in the quality of the nation's waters and
growing concern over the high cost of achieving such
improvement.
Prior federal water pollution laws had not
done much to reduce water pollution;
provided such an overhaul.
~Vhile
the 1972 Amendments
earlier federal legislation
-2-
followed the approach that certain waters could remain severely
degraded to permit industrial and other uses, the 1972
Amendments rejected this concept and adopted instead the
view, well stated in the Senate Report, that "no one has
the right to pollute - that pollution continues because of
technological limits, not because of any inherent right to
use the nation's waterways for the purpose of disposing of
wastes. liS
The new law left behind the idea of relying upon
the assimilative capacity of waterways and made it clear
that streams and lakes are no longer to be considered part
of the waste treatment process.
In implementing these
new principles, however, the Act recognized and dealt with
economic and technological constraints.
The regulatory
program that resulted was strong but practical.
I. water Pollution: An Overview
A. Economic Nature of the
~roblem
As society grows, the volume of wastes to be assimilated
increases, and the quality of water diminishes as a result.
Until recently, these water resources have been regarded as
free goods and have thus been used carelessly.
Water pollution
arises in large part because industry is not charged with
the costs which its wastes impose on society.
Rather, these
costs are passed on to the downstream users of the river in
the form of lower quality water, higher treatment costs, or
beneficial uses foregone.
The ability of an industry to pass
the costs of its actions to others results in an external
-3-
"
6
d lseconomy.
Aside from the pressures of public opinion, industry
has no economic incentive to minimize the costs of pollution,
while it must attempt to minimize its costs of production.
Furthermore, investment in pollution abatement methods does
not generate any corresponding revenue; it only entails costs.
Consequently, in order for pollution control to be accomplished,
"
7
the missing economic, or other incentives, must be provided.
Since industry has, until recently, managed to escape
the costs of pollution abatement, the prices of industrial
products have been lower because these prices did not include
the costs of reducing or modifying the waste products generated.
As a result, our standards of living have improved in terms
of relatively cheap and mass-produced goods but have deteriorated
through an increasingly polluted environment.
Consumers will
ultimately have to pay the costs of improved water quality,
which necessarily requires that industrial output and
community services will become more expensive as they are
held accountable for costs of water pollution. 8
B. water Quality Standards and Effluent Standards
There are basically two administrative approaches to
water quality control -- the water quality standards approach
and the effluent standards approach.
Water quality standards
specify the maximum amounts and concentration of various
pollutants which can be present in a waterbody at any given
time so that the waterbody may remain compatible with its
designated use.
These standard"s are concerned with the
resulting quality of the water and not upon >the - level of
-4-
pollutants being discharged by ' an individual firm.
Effluent
standards, however, limit the absolute quantity of particular
pollutants which may be discharged by individual sources into
the water and are not dependent upon the resulting quality of
the waterway.
Historically, the implicit legal definition of water
pollution has been "any condition which interferes with the
desired use of a waterway."
A body of water was regarded as
polluted if society could not use it for a desired purpose.
In keeping with the "desired use" concept, federal water
pollution control law prior to 1972 was based upon stream-use
classifications and water quality standards.
States were
first urged and later required to classify interstate and then
navigable waters in categories extending from class A
(swimming) down to class D (agricultural and industrial use) .
Once stream-use classifications had been established, a state
was to apply water quality standards to each waterway
according to its'designated use.
In theory at least, states
were then to convert water quality standards into effluent
limitations, utilizing water quality standards, water quality
modeling, and wasteload allocations.
9
The liabilities of the "desired use" concept, along
with stream-use classifications , and water quality standards,
soon became apparent.
State agencies, often influenced by
industry, set classifications and standards at low levels in some cases even lower than current conditions and in
others at levels which would have significantly degraded
relatively pure waters.
If stricter laws were passed,
-5-
industry simply threatened to move to another iocality or
state where laws were more lenient towards the disposal of
industrial wastes.
lO
Furthermore, in most cases water quality standards are
unenforceable, and unless the water quality standards are
directly associated to effluent limitations, these standards
cannot be converted into effluent limitations for specific
dischargers without sophisticated load allocations;
These
load allocations require a consideration of hydrological,
biological, and other factors which determine the assimilative
capacity of a waterway.ll
As a result, prior to 1972 most states did not even
attempt to set effluent limitations, and state enforcement
procedures were only initiated in cases where discharges
,
lowere d t h e qua I lty
of water below the water qua l'lty standar d s. 12
C. Biological Considerations
Some programs of water quality control are also
dependent upon a:knowledge of the biological characteristics
of pollution.
The capacity of a stream to assimilate a
waste is determined by the properties of both :. the stream
and the waste.
The degree of dilution of waste discharge is
generally related to the volume of water in the stream and the
capabilities of the waste to dilute.
This dilution, in turn,
is dependent on the chemistry of both the pollutant and the
stream.
Specifically, the more dissolved oxygen there is in
the stream, the greater will be its assimilative capacities.
13
In order to convert water quality standards into
effluent standards, wasteload allocations must be determined.
-6-
Wasteload allocations must then - be developed from water
quality models which reflect the condition of the waterway,
its assimilative characteristics, and the potential effects
of discharges on it.
But water quality modeling is still
an inexact procedure, especially with regard to discharged
- substances other than biological oxygen demand (BOD) or
un suspended solids.
Furthermore, assimilative capacities
of even individual waterways are variable, depending on factors
- -. h
d
14
suc
as vo ume,I
temperature,
an tur b 1- d lty.
D. Enforcing Standards
Once effluent limitations are set, the enforcement of
those standards is relatively simple.
Monitoring devices
installed by the company measure the amount of pollutants
emitted into the waterbody.
water quality standards, however, are less susceptibie _
to accurate enforcement.
These standards are based upon the
desired use , concept and the reSUlting condition of the water,
not the exact amount of pollutants discharged by any particular
industry.
Thus, the standards, by their nature of measurement,
are inexact.
The discharger then is unable to know at any
specific time whether his level of discharge will violate
water quality standards.
And, in the situation where there
are a number of industries discharging into a body of water,
it may be
impc~sible
to determine which industry reduced the
quality of the water below a specified standard.
Water
quality may also be influenced by a company's location on a
stream, with lower water quality accumulating downstream;
the downstream users are then required to meet stricter standardE
-7-
for their emissions in order to meet the same water quality
standards.
It is clear, then, that water quality standards
without effluent limitations are valueless for enforcement
purposes except in unusual cases of gross violations, such
as Spl'II s. 15
II. Legislative Approaches
A. Prior to the 1972 Amendments
Governmental regulation of environmental conditions
for the public good has been accepted as a proper exercise
of governmental regulatory authority.
The beginning of
governmental efforts to control water pollution commenced
with the formation of the Committee on Public Works of the
House of Representatives under the Reorganization Act of 1946.
16
Prior to 1946, legislation for clean water was included in the
Oil Pollution
Act of 1924,17 the Public Health Service Act
-"
of 1912,18 and the Refuse Act of 1899. 19
The Federal Water Pollution Control Act was initially
20
-21
enacted in 1948
on a temporary basis and extended in 1952.
The 1948 Act recognized the primary rights and responsibilities
of the state to control water pollution, a congressional
policy which is still reflected in the present law.
The
initial act provided for comprehensive water pollution control
programs, research, and financial assistance to states,
municipalities, and interstate agencies for waste treatment
f aCl'1"ltles. 22
Also included was a program for construction
loans and preliminary planning grants that were never
implemented because funds ~~ never appropriated.
23
The
-8-
pollution of interstate waters ·which endangered the health
or welfare of persons in a state other than that in which
the discharge originated was declared to be a public
.
nuisance, subject to abatement.
24
Abatement procedures
provided for federal court suits after two notifications
were given to the discharger and the state in which the
discharge occurred.
25
If no remedial action was taken.by
the discharger or the state, the Act required that a public
hearing be held.
Only after the discharger was given a
"reasonable" opportunity to comply with the recommendations
resulting from the hearing could suit be filed.
In addition,
the Act required that the state in which the discharge
originated consent to the suit.
Amendments passed in 1956 26 auth9rized federal grants
for construction of waste treatment works, as well as for
establishment and maintenance of state water pollution
.
control programs.
27
These firnendments also established a
three-step enforcement procedure applicable to interstate
pollution of interstate waters endangering the health or
welfare of persons.
28
The first step involved a federal-state
enforcement conference, with participation by local officials
and other interested persons; to discuss the pollution
problem.
If the conference was not successful, a public
hearing followed.
The conference would be called either at
state request where interstate or intrastate pollution was
involved, or initiated by the federal government where
interstate pollution was concerned.
The conferees convened
to review the existing situation and any progress made, to
-9-
lay a basis for future action, .and to give states, local
governments, and industries an opportunity to take any
appropriate remedial action pursuant to state or local
law.
In 1961 enforcement authority was extended to navigable
waters, as well as interstate waters, and was applied in cases
of intrastate pollution on request of the governor of a
state.
29
The term "interstate waters" was redefined to
include coastal waters.
These changes greatly expanded the
subject matter jurisdiction of the law.
In addition, the
authorization for grants, both for construction of waste
treatment works and for state water pollution control
programs, was increased and extended.
The 1965 law provided for the establishment, revision,
and enforcement of water quality standards for the nation's
waters.
30
This legislation represented ·a new approach to
water pollution control.
The public nuisance concept of
"'-,
prior legislation was abandoned.
The standards consisting
of water quality . criteria were designed to provide water
of proper quality for a range of designated uses.
A plan
for implementation and enforcement was to be prepared in
conjunction with the standards.
The states were given the
first opportunity to adopt standards subject to federal
approval, and if a state failed to do so, the federal
government set the standards.
Any discharge which reduced
the quality of the receiving water below the criteria or
in violation of any implementation plan was subject to
enforcement action.
Federal enforcement consisted . of bripgirug
-10-
suit for abatement after at least ISO
violation to the discharger.
dax~tice of
During the ISO-day period,
informal hearings were held to attempt to correct the
violation.
,
Because of the inefficient nature of the ISO-day
notice procedure, the 1965 Amendments became deficient as
an enforcement act.
Enforcement proceedings usually consisted
of endless negotiations, which rarely resulted in court
,
31
actlon.
The Act was again amended in 1966 32 and 1970. 33
The
Water Quality . Improvement Act of 1970 provided for the
abatement of pollution by oil in the navigable waters of the
United States, adjoining shorelines, or contiguous zones.
34
' d 'ln severa 1 lnstances.
'
35
Fe d era 1 en f orcement was aut h orlze
B.
1972 Amendments
The Federal Water Pollution Control Act, as amended in
1972, is . divided into five major parts:
related
works,
prog~ams,
(1) research and
(2) grants for construction of treatment
(3) standards and enforcement,
licenses 7 and (5) general provisions.
(4) permits and
Other sections of the
amended legislation include provisions for studies of the
efficiency of water pollution controls,36 the determination
of national policies and goals relating to water purification,37
loans to small business concerns for water pollution control
, 3S an d cltlzen
' ,
,39
SUltS.
f aCl'I'ltles,
The primary objective of the 1972 Amendments is stated
in the Act - "to restore and maintain the chemical, physical,
and biological integrity of the nation's water~."
Report confirms this objective:
The House
-11-
The word "integrity" as used is
intended to convey a concept that
refers to a condition in which the
natural structure and function of
ecosystems is maintained.40
The "natural structure and function of an ecosystem" is, as
the House Report notes, relatively well understood by
ecologists.
The use of this concept gives the Act the
·
1 b aS1S.
. 41
s t ronges t POSSl. b
e l
enVlronmenta
The most constructive interpretation of the Act seems
to regard Congress as adopting legislation which places a heavy
burden of persuasion upon those who desire the use of the
nation's waters for waste assimilation. 42
Essentially, the 1972 Act calls for the elimination of
all pollutant discharges into navigable waters by 1985. 43
By 1983 there is to be achieved a goal of water quality
which will provide for the protection and propogation of
fish, shellfish, wildlife, and recreation in and on navigable
waters.
44
The Act also distinguishes
between discharges
.
~
from industrial establishments and municipal waste treatment
. 45
plants.
For the industrial sector, a two-stage cleanup
program is required.
By July 1, 1977, industrial point
source dischargers must -meet a level of effluent reduction
capable of achievement by "the best practicable control
technology. ,,46
The period from July, 1977, through July 1,
1983,is directed toward the achievement of even higher
levels of effluent reduction.
By July 1, 1983, industrial
users will be obligated to use the "best available control
technology" in reducing wastes discharged. 47
Although the
Act does not define the terms "best practicable" and "best
-12-
available,"
it is clear from the legislative history that
the distinction is intended to reflect the need to achieve
even higher levels of control during the second stage. 48
For municipal waste discharges, the Act requires secondary
treatment by July 1, 1977~9and the application of even
more stringent controls by mid-1983. 50
Although the basic requirements of the Act are involved
with the establishment of specific effluent limitations, the
concep t
0
. .
'
d . 51
stream s t an d ar d
s '1S re ta1ne
f rece1v1ng
These stream standards on all navigable waters constitute a
floor level of quality.
If "best practicable" and "best
available" treatment will not meet in-stream standards,
higher levels of treatment will be required. 52
The major regulatory device for attaining these levels
of control for both industry and municipalities is a national
·of discharge permits patterned after the 1899 Refuse
53
Act permit P!ogram.
Permits defining the limits of
syst~m
discharge are to be issued by the Environmental Protection
Agency (EPA) to all water users: municipal, agricultural,
and industrial.
However, the Administrator of the EPA ist:'.? ~ ~ "
~ :.,'-.:. /
authorized to delegate to the states the operation of this
program if a state requests this delegation and can meet the
54
55
detailed approval conditions of the Act.
Section 1319
is the enforcement provision of the Act; it, unlike prior federal
enforcement statutes, is direct and concise.
Its primary
attention is directed to various effluent limitations
established in Title 111.
56
For a violation of either an effluent limitation or a
-13-
penuit condition, the Administrator is entitled to seek
/
relief.
In order for states to enforce their own pollution
control programs, the Administrator may defer action against
a polluter for 30 days after he notifies the state of the
57
However, if the state does not act promptly,
58
the Administrator is obligated to seek injunctive relief.
violation.
wilful or negligent violation of an effluent limitation or
permit condition may result in a fine up to $25,000 per day
of violation and imprisonment for up to one year.
59
The
·federal enforcement role is intended to be supplementary
to the enforcement efforts of the states.
However, if a state
seeks to administer the permit program, it must have the
same enforcement capabilities as those provided in Section
1319 before the delegation will be allowed.
60
The Act also grants financial assistance to municipalities
to enable them to achieve the required effluent limitations
and other requirements under the statute.
61
Unlike prior
"
federal legislation, which simply provided construction
grant assistance to local governments, the 1972 Act recognizes
the public utility aspects of sewage systems through several
requirements, and as a condition to the receipt of
construction grant funds requires:
(1) a mandatory system
for planning area-wide" waste water management,
62
(2) service
charges with the municipal recovery of federal capital
investments made for the treatment of industrial wastes in
municipal systems,
6ri.7
and (3) pretreatment of industrial
wastes discharged to municipal systems.
64
There are other very important provisions in the Act,
-14-
but the general framework is designed to give the states
.'
JII
the first opportunity for eforcement.
If the state fails to
act promptly, federal intervention is a certainty.
The Act
is written so that a state which fails to adopt a comprehensive
planning program will also lose its "rights" under the
program granting financial assistance in the construction
of municipal waste treatment facilities,66 and will not be
eligible to receive delegation of permit authority.67
III. Effluent Standards
The 1972 Federal Water Pollution Control Act Amendments
are unique in that the water quality standards they establish
are no longer dependent upon the quality of the body of
water into which the municipal or industrial waste water is
being discharged.
Rather, the emphasis is placed on
treatment of discharges at specific point sources by the
"-.
.best available technology. 68
Water quality standards were
referred to as "receiving water standards" because they were
based upon the resulting quality of the river or lake, and
not upon the amount or quality of the waste water being
discharged by the polluter.
The new standards, however,
are known as effluent limitation standards because they are
dependent upon the quality of the waste water being discharged,
irrespective of the quality of the receiving river or lake.
A. Technological Availability and Economic Capability
By 1977 industry must meet effluent limitations which
can be achieved by application of the "best practicable
-15-
control technology currently
availabl~."
By 1983 it
must achieve control levels based on the "best available
technology economically achievable." Each standard contains
two basic elements: a notion of technological availability
("currently available" and "available") and a notion of
economic capability ("practicable" and "economically achievable")
1. Technological Availability
Water quality can be improved by (l)
chang~s
in the
manufacturing process which will allow the recovery of
by-products, along with other waste reduction measures, or
by (2) installing treatment devices at the end of the
manufacturing process.
technology," refers only
If the term in the Act, "control
to ',~.tr.eatrnerit.; f.a6ii.i·-E ies·
at
the end of
the manufacturing process, effluent limitations will not
reflect the maximum possible reductions in waste levels, and
water quality improvement will be more expensive.
The
d~cision
69
by the Administrator concerning treatment
technology will probably depend on whether particular:
process changes can be widely adopted by an
.
indus~ry.
70
If manufacturing processes vary widely in an industry, it
is unlikely that the Administrator can justify effluent
limitations which depend on a particular process change
applicable to only a portion of the firms in the industr¥.
Because most treatment technology consists of "add-on"
devices, it can be applied to a variety of manufacturing
processes.
Thus, effluent limitations based on treatment
technology, as opposed to process changes, will be more
uniform.
Of course, in the situation where firms in an
-16-
industry use the same manufact~ring process, standards based
/
on process changes could produce a comparable degree of
'
71
unl' f ormlty.
"unl
f
'
72
To th e extent th at t h e Act requlres
ormlty,
the EPA may be forced tb sacrifice both efficiency and
potential improvement in water quality.
Another major question concerns the point at which
technblogy qualifies as "available."
Both the 1977 and
1983 standards stress this concept of availability.
Much
will depend upon whether technological availability is
.measured (1) by the current operational capacity of an
industry,
(2) by new scientific and technical knowledge
already available in the laboratories and design rooms,
but not yet generally available in practice,
(3) or by the
potentialities of new research. 73
The availability is further complicated by the constant
development of new water pollution control devices, so
that the time fixed for determining when technology is
available may be critical.
Frequently there is a delay of
a year or more between the time when a discharger adopts a
control program and when he begins construction.
Although
it seems logical to determine technological availability at
the time effluent limitations are adopted, the Act has been
interpreted to require the determination at the time when
construction begins.
two choices:
This would give the Administrator
he can impose effluent limitations based on
his prediction of what technology will be available when
construction commmences, or he can rewrite the requirements
should new technology become available before construction
-17-
starts.
If he chooses the first alternative and his
judgment proves inaccurate, his action could probably be
litigated in court under Section
1369~
If he chooses the
second course, the Administrator may have to revise effluent
limitations just when the discharger is prepared to install
devices designed to meet the original limitations.
74
Despite the importance of technological development,
the technology-based regulatory scheme established by the
Act provides no incentives for such development.
In fact,
industry may have a positive incentive not to develop new
technology, for once a new process is perfected, it becomes
eligible for adoption by the EPA as the "best practicable"
or "best available.,,?5
Even though research may lead to development of a new
control technology capable of attaining even higher levels
of treatment at lower cost, the possibility is not sufficient
to overcome -, t he disincentive.
Such a control technology;
even if developed, would only be applied when bbth the
capital and long-term operating costs of the new process
are expected to be lower than operating costs of existing
control technology.
Thus, regardless of how effective a new
technology may be, voluntary conversion is unlikely since
.
.
.
'
76
it wlll
lncrease
net 1 ong-term costs .
ln most
ln d us trles.
2. Economic Capability
There is the fundamental problem of what is meant by
the term "economically achievable" or "practicable."
Whether applied to a plant or a "class or category" of
industry, a standard expressed in terms of what is
-18-
"economically · achievable"or "practicable" provides no
definite restriction to the expenditures which the EPA
.
f or contro 1 d eVlces.
'
77
can requlre
One can imagine several possible interpretations of
these two phiases;
extending from a standard which allows
a fair return on investment to one which leaves the firm
at a zero profit level.
The question then may be what
percentage of the firms in a class or category must be able
to afford a particular . control technology before it qualifies
as "practicable" or "economically available.,,78
In other
words, how many marginal firms can be driven out of business
before the standard becomes unacceptable?
79
It has been sugggested that the best practicable control
levels be determined on the basis of "an average of the best
existing performance of plants of various sizes, ages, and
unit processes within each individual category."
interpretat_~on
This
seems to assume that since some firms have
been able to afford control equipment, most of the others
will be able to afford the same level of control.
This
assumption is unrealistic, however, since the ability to
afford control equipment depends largely on the economic
condition of the firm.
Less profitable firms and those
which are unable to obtain long-term credit may be ' unable
to finance control expenditures.
Determining economic
capability is especially difficult when the average control
level is substantially above the level achieved by the
best performers in classes which have inefficient technology.80
The Act attempts to solve the economic capability problem
-19-
by requiring
~
cost-benefit analysis in order to determine
what is meant by the term Ubest practicable."
Perhaps an even more important question raised by
th~
economic capability req~irement is what distinguishes
effluent limitations based on the "best practicable control
technology"
from those based on Ubest available technology
economically achievable."
The most significant difference
in the ueconomically achievable" standard is that only
internal costs are considered in the balancing between
costs and benefits.
Since external costs are no longer
considered, the EPA can set an effluent limitation requiring
no discharge of pollutants where the requisite technology is
available at a
r-1~as-dna:hle
::Co-s:t and has been adequately
demonstrated if not routinely applied.
In other words,
the ubest available" technology refers to the best performing
company in a particular industrial category, while the
Ubest pract-\cable" technology refers to the average of the
.
most efficient performers.
82
The absence of specific cost-benefit analysis in the
Section 1314 (b) (2) (B) guidelines for best available
technology suggests that costs should be a restricting factor
only when costs are substantially out of proportion to the
expected benefits.
This interpretation would be consistent
with the requirement that the second stage limitations
provide "reasonable further progress toward the goal of
eliminating the discharge of all pollutants."
83
A number of studies have demonstrated that the cost of
treatment tends to rise rapidly once the 90 to 95 per cent
-20-
treatment level is attained.
In
some cases this may mean
that zero discharge will cost twice as much as treating up
to a 90 per cent treatment level.
84
At this level of
treatment, a cost-benefit analysis tends to become
unreliable.
8S
After 1977 the number of firms threatened with closure
by enforcement of the "best available" standard could be
substantial.
While undoubtedly many firms could afford
additional expenditures of the magnitudenecessary¥ to
eliminate the last five to ten per cent of waste discharge,
there may also be a large number of firms unable to defray
those expenses.
Unless control technology is developed
which is capable of achieving a high degree of treatment at
relatively low costs, the EPA may find it difficult to enforce
the post-1977 standards.
86
A -:change·:in effi.uent ~:; staridards , :.. caused· -PT either
technologic~
or economic conditions, also presents problems
to industry.
An individual company in an industry is
encouraged to delay construction ; of sophisticated treatment
facilities, due to the failure of the Act to provide
sanctions for these industries if the standards are
subsequently upgraded. 87
Since . the best economic arrangement
of any treatment facility is dependent upon many factors,
a change in one of these factors, such as the statutory
water quality standards, could make it necessary to
improve the facility.
This change in standards - would
result in a treatment scheme which would not have been
selected by that particular industry if their original
-21-
plan had been based upon the revised standards.
A
subsequent upgrading of standards would require greater
controls before the cost of the treatment systems could be
88
recovered.
Other potential problems could arise by a later
easing of the 1983 requirements.
A lowering of the 1983
standards would make industrial expansion a risky business
because one company that builds a new plant could become
burdened with the high operating and maintenance costs
associated with zero discharge treatment facilities, while
a competing plant may incur lower operating costs by
postponing construction with the expectation that the
EPA will lower the second phase effluent standards.
B.
89
Conflict Between Effluent and water Quality Standards
The Senate and House Committees rejected the integrated
approach of water quality standards and effluent standards.
Effluent
st~ndards
are related to available control
technology and not water qualit.y
stand~rds.
Existing
water quality standards provide a basis for enforcement only
if they require a higher degree of control than that required
by the new technology-based standard.
There were sever.a l reasons why Congress chose not to
retain water quality standards as the primary enforcement
mechanism.
First, many in Congress believed that the
existing water quality standards were not sufficiently
stringent.
Second, the process of translating ambient
water quality standards into meaningful effluent standards
for individual point sources is both difficult and often
-22-
unreliable.
Finally, it was believed that enforcement
would be aided by a clear, uniform national standard of
90
performance.
Two of the main provisions of the Act - uniform
national effluent limitations based on achievable technology
and enhanced water quality resulting in swimmability
("recreation in and on the water") by 1983 - are in
conflict.
During the first phase (ending in 1977), water
quality standards assuring at least secondary contact
recreation ("recreation on the water") must be converted
into effluent limitations and enforced by the permit program.
For this reason, such effluent limitations are referred
to as "water quality derived effluent limitations." As
a result of this conflict, it is thus possible that industry
may be required to install something more than "best
available technology economically achievable" in order to
meet watezquality standards reflecting secondary contact
uses.
Moreover, these water quality derived effluent
limitations must be achieved by 1977, regardless of economic
91
and social costs.
92
Section 1313
of the Act provides the criteria for
these water
quali~y
derived effluent limitations.
This
section requires completion of standards for interstate
waters,
waters,
93
94
extends water quality standards to intrastate
establishes procedures for the periodic review and
revision of standards,
95
and requires a continuing water
quality planning process in each state. 96
water quality
standards developed pursuant to Section 1313 "shall be such
as to protect the public health or welfare, enhance the
-23-
quality of water, and serve the.
purpos~s
of this Act.
Such
standards shall be established taking into consideration
their use and value for public water supplies, propogation
of fish and wildlife, recreational purposes, and also taking
into consideration their use and value for navigation. ,,97
One of the most confusing aspects of the Act is the
relationship of the water quality standards, which appear
to adopt the "desired use" concept, to the swimmability
goal and the uniform effluent limitations.
98
It is necessary to recognize that economic, social,
and technological factors are irrelevant to the Section
1313 process.
Under Section 1312, however, the imposition
of water quality related effluent limitations must be
preceded by a consideration of economic, social, and
' 1 conSl'd eratlons.
'
99
tec h no 1 oglca
The requirement that water quality derived effluent
limitations must be achieved by 1977 regardless of economic
and social costs could resul·t
in: several undesirable effects:
(1) plant closures or production cutbacks in heavily
industrialized areas,
(2) the relocation of industry from
water quality limited areas to effluent limited areas and
the consequent degradation of relatively clean water,
(3) the incautious use of experimental technology which
may have adverse effects on the environment, and (4) an
adverse public reaction to the Act.
c.
100
No Discharge Policy
The 1985 no discharge policy has been criticized by
many.
It is argued that an oversimplified solution such as
-24-
zero discharge can be expected to have at least two results.
FIrst, it would be inefficient and divert scarce resources
from other needs.
101
Second, the aspect of overpromise will
cause an adverse reaction or "environmental backlash" which
may be detrimental to the environmental cleanup effort when
the 1985 goal is unfulfilled.
l02
The National Water Commission criticizes Congress on
both grounds:
[T]he no discharge policy holds out a
promise of clean water which it cannot
redeem. Water quality regulation which
loses touch with the reasons people value
water is hopelessly adrift and eventually
will flounder. When it does, the attendant
dashing of public expectation will make it
more difficult to marshall public support
to reestablish a program with rational
objectives. l03
A less critical view of the no discharge policy views
Congress as having taken both an innovative and at the same
time a protective step.
first
time ~ ~ongress
It is innovative because for the
has stated that the
n~tion's
waters are
.
104
no 1 onger ava1'I a bl e f or waste d'1sposa 1 purposes.
'
It 1S
protective in that the lack of knowledge of the potentially
permanent effects of pollution over a period of time requires
an adequate margin of safety, which the stringent requirements
of the Act provide.
Over a period of time small amounts of
many .pollutants may attain toxic levels.
Since no one knows
when that limit is reached, the most conservative approach
,
f urt h er 1ntro
'
d uct10n
'
restra1ns
0 f as many wastes as POSS1' bl e. 105
It should be noted that this no discharge policy is not
itself a regulatory requirement of the Act~060ther than
those relating to toxic pollutants, all of the provisions
-25-
establishing effluent restrictions contain provisions
/
which avoid undue economic hardship.
However, the no
discharge policy does have an important purpose in the
Act.
It reflects the 'strong congressional sentiment that
no industry or municipality has a right to use the nation's
waters to discharge its wastes, that pollution continues
only because of technological limitations, and that a
major research and development effort should be undertaken
aimed at bringing no discharge technology within the
,
economlC
capa b"lllty
0
f
' d ustry. 107
every ln
IV. Permit System
The permit system is the most useful regulatory device
in any water pollution control program.
Under such a system,
all those who seek to discharge pollutants must obtain a
permit in advance.
Regular monitoring is required, and a
report of the discharge strength and volume is made to the
permitting agency.
In the area of permit issuance, the Act attempts to
utilize the state experience with water quality control
activi ties ~ by _requi;t:i ng :the :-EPA:-to -- draw upon those-'- experiences .
Most states for many years have had permit systems similar
to the National Pollutant Discharge Elimination System (NPDES)
created by the 1972 Amendments.
The Act, therefore, is
actually instituting a new national permit system and not
necessarily a new method of pollution control.
l08
-26-
A. Defining "Navigability"
The NPDES is nothing more than a discharge permit
system that employs the concept of navigable waters as the
jurisdictional basis of its regulatory scheme.
The 1972
Act defines "navigable waters" to mean "waters of the
United States, including territorial seas" and limits the
applicability of the permit program to the "discharge of
pollutant, or combination of pollutants."
"Discharge of
pollutant" is defined as "the addition of any pollutant to
navigable waters from any point source."
NPDES is thus
applicable only to those who discharge pollutants- from
point sources into waters of the United States.
The
meaning of the term "waters of the United States" must first
be established, however, before it is possible to determine
the e x tent of its jurisdictional limitation.
One term the [House] Committee was reluctant
to define was the terril "navigable waters."
The reluctance was based on the fear that
any interpretation would be read narrowly.
However, this is not the Committee's intent.
The Committee full y intends that the term
"navigable waters" be given the broadest
constitutional interpretation unencumbered
by agency determinations which have been made
or may be made for administrative purposes.10 9
This statement of the House Committee raises several
problems.
The Committee desired the "broadest possible
constitutional interpretation" of the term "navigable waters,"
yet a short review of the relevant cases would have revealed
that the definition selected by the Committee was clearly
restricted to waters that are -navigable in fact, historically
navigable, : or those that can reasonably be made navigable.
-27-
The Committee report clearly indicates that past or
future agency determinations should not "encumber" its
definition.
Yet, if Congress had intended the 1972 Act
to apply to all discharges regardless of the traditional
classification of the receiving water as navigable or
not, they should have realized that the courts had already
limited the definition of "navigable waters.,,110
The EPA interprets "navigable waters" to include not
only interstate waters and the traditional navigable waters
but also intrastate waters which are either used by interstate
travelers for recreational purposes, from which fish are
taken and sold in interstate commerce, or which are utilized
by industries engaged in interstate commerce.
Therefore, one
looks not only to the water, but in the case of intrastate
waters, one must also look to the person -who is discharging
in order to determine whether the receiving water is
. bl e. 111
navJ..ga
B. Navigability and the Commerce Clause
The question then remains whether the term "navigable
waters" may be reasonably construed to be coextensive with
the commerce clause.
If the legislation requir.es control of
pollution by those whose activities "affect interstate
commerce;" a company polluting a non-navigable water could
be required to meet the standards of the statute.
An act
prohibiting pollution which affects commerce would therefore
form a broader basis for controlling discharges than a
statute prohibiting only discharges into navigable waters.
While the power of Congress to regulate navigable waters is
not expressly granted in the Constitution, the ability to
-28-
control navigable waters is derived from the broad powers
granted under the commerce clause.
112
However, even if the broad coverages under the 1972
Amendments are ruled to be an invalid extension of
congressional powers, it has been suggested that by making
the large federal water pollution grants to the states
conditional upon conformity with federal standards,
"
" an 1n d'1rect manner. 113
Congress may ac h 1eve
1tS goals 1n
If federal regulatory authority under the Act is
limited to navigable waters, a major practical problem arises
in the determination of whether a given water- body is
a navigable water.
Application of the traditional tests
is difficult without a prior judicial decision, since the
point at which a non-navigable water becomes navigable
'
'
114
1S
no t easy to d
eterm1ne~
The first case to meet the jurisdictional issue of
navigabilit~~as United States v. Holland,llS which held
that federaljurisdicti~n constit~tionally extends to all
waters of the United States affected by interstate commerce
without regard to their navigability, and therefore, the
defendant's fill activity required a permit under the Act.
Conc~rning
the constitutional question of whether Congress
can extend its control beyond navigable waters, the court
held that the exercise of congressional power over water
resources is constitutional regardless of the navigability
' 1 ve d . 116
o f t h e water 1nvo
'
T h e court f oun d th a t expans1ve
interpretations of the commerce clause require only a
"reasonable relation to, or effect on, interstate commerce" .
-29-
through any activity regulated ' by Congress. 117
water
pollution, the court stated, obviously affects interstate
commerce, and therefore dredging and filling may be
regulated as a polluti~n creating activity.
To hold that
only pollution in navigable waters could affect interstate
commerce, the court declared, "would be contrary to reason." 118
Consideration of the second question, whether Congress
intended to extend federal jurisduction beyond navigable
waters, is complicated by the use of the term "navigable waters"
in the Act.
Finding "verbal acrobatics"necessary to determine
. 119
the clear meaning of the statute,
the court turned to
an ex amination of the legislative history of the Act.
The scope of the Act was originally restricted to navigable
waters, but the definition "waters of the United States" was
substituted with ' the expressed intention of broadening the
Act's jurisdiction.
This indicated to the court that
,
d e d to e 1"lmlnate t h e navlga
'
b 1' I 'lty restrlc
, t, 'lons. 120
Congress lnten
'-
Although the Holland court properly concluded that
Congress had . the power to go beyond the navigability
limitations in its control over water pollution, the fact
remains that Congress did not do this.
The Act is directly
related to the concept of navigability.
authority to base its regulatory scheme
clause, but it failed to do so.
Congress had the
u~on
the commerce
Such e x press legislative
,
'
d e d . 121
actlon
s h ou Id not b e d lsregar
It is doubtful that most courts are willing to alter
the e x press statutory language to bring dischargers into
non-navigable waters within the Act.
Although this was done
-30-
in Holland, the reasoning applied is suspect.
Rather
than attempting to read navigability out of the Act,
courts should, when presented with the issue, determine
the receiving water's navigability in each case.
If the
water is found to be non-navigable under the traditional
tests, the court should not employ "verbal acrobatics" to
bring the case within the Act.
122
C. Enforcement
The 1972 Amendments provide prompt and effective
enforcement procedures to replace enforcement conferences
and ISO-day notices that were required under the Water
Quality Act of 1965.
123
Under the 1972 Act a violation
occurs whenever there has been a discharge of pollutants.
Provisions for federal enforcement are contained in Section
1319 of the Act.
Manufacturers are required to monitor
discharges at point sources and to keep records of the
results
of . ~ollution
abatement.
The EPA or the state is
authorized to inspect these books and records to determine
'
. 1 ate d . 124
· be1ng
wh et h er or not t h e Act 1S
V10
It is possible that the recordkeeping requirements and
inspection provisions under the 1972 Amendments will lead
to results that have occurred under similar sections of
other environmental legislation.
The costs of fulfilling
statutory bookkeeping requirements are often prohibitive.
Furthermore, provisions that limit inspections to a ?earch
for violations also limit the constructive assistance that
might otherwise be available from the regulatory agency,
since wrongdoers then attempt to conceal violations rather
-31-
than correct them.
In order for the enforcement of the
1972 Amendments to be effective in terms of restoring the
integrity of the nation's waters, the EPA and the states
must be certain that the regulatory procedures are used
primarily to prevent and remove water pollution rather than
punish the slightest violation.
125
The self-disclosure and penalty provisions are an
important mechanism in the enforcement of the Act.
Section
1321(b) (5)126 of the Act requires any person in charge of a
vessel, onshore facility, or offshore facility to notify
the appropriate United States'.·'government agency immediately
after acquiring knowledge of any harmful discharge of oil or
other hazardous substances.
Failure to notify may subject
the offender to criminal penalties of imprisonment up to
one year, a fine of up to $lD,OOO, or both.
The Act
further provides that:
NQtification received subject to this
paragraph or information obtained by the
e~plo~tation of such notification shall not
be used against any such person in any criminal
case, except a prosecution for perjury
or for giving a false statement. 127
Section 1321(b) (6)1?8 also provides that any owner or
operator of a vessel or facility from which .a pollutant is
discharged "shall be assesed a civil penalty" of not more
than $5,000 for each offense.
The civil penalty in Section (b) (6) may be compromised.
In determining the amount of the penalty or the compromise,
the Administrator may consider the appropriateness of the
penalty
to the size of the firm charged, the effect on the
-32-
operator's ability to
continu~
gravity of the violation.
provided.
in business, and the
No defenses, however, are
Thus, even though the discharge may have been
caused by an act of God, act of war, negligence on the
part of the government, or an act or omission of a third party,
the operator may still be liable.
This provision is being
contested as contrary to due process and equal protection
' h t s. 129
rlg
It has also been urged that if the penalty specified in
Section (b) (6) may be characterized as criminal, and if
the self-disclosure mandated by Section (b) (5) furnished
the basis for the imposition of the penalty, then the Act
mandates a violation of the constitutional privilege against
self-incrimination.
In that situation, the two sections
could coexist only if the immunity provided in (b) (5) were
extended to the (b) (6) penalty.
Hence, the proper legal
characteriz~tion of that penalty is of primary importance. 130
It is difficult to perceive a :funct'ion ,of J b) :( 6") :6ther
than to punish persons responsible for discharges of pollutants.
There are no regulatory aspects in the section, and the
provision relating the amount of the penalty to the size of
the violator's business and his ability to stay in business
is without logical relationship to the expenses resulting
from the discharge.
Thus, both the legislative history and
the wording of the Act favor a determination that Section
(b) (6) imposes a criminal penalty.
In substance, the cases
132
131
appear to mandate the
application of fifth amendment self-incrimination protection
-33-
to proceedings for the collection of penalties, even
though such proceedings are civil in form and are civil
regarding the application of other constitutional safeguards.
\
However, this self-incrimination protection may not be
available if the penalty assessed has purely remedial
functions.
It is well settled, then, that immunity must be
afforded when requirements, such as statutory self-reporting
provisions, could lead to the imposition of punitive
.
133
sanctlons.
134
Q
One court
further pointed to the compulsary character
of the penalty as inconsistent with a remedial purpose and
indicated that no legitimate governmental purpose other
than the punishment of violators could be attributed to the
penalty.
The connection between the mandatory self-disclosure
provision and
th~
penalty provision was
characte~ized
as a
"backdoor procedure" for avoiding the statutory guarantees
of
135
.
.
lmmunl ty, . ·
The opinion went on to observe that the
government's position, if supported, must lead to a frustration
of the statute's purpose.
Offenders would be encouraged to
disclose a discharge when the chances of detection were very
small, while conscientious operators would incur the
monetary penalty.
Therefore, major spills can be detected more
easily, and offenders will be more likely to report them
through fear of criminal sanctions; however, the $5,000
civil penalty will, in these instances, probably have little
significance by comparison with the considerable cleanup
costs.1 36
-34-
D. Federal-State Relations
The federal government's position in controlling the
nation's water resources has been consistently enlarged and
rarely limited.
Thus, 'when a specific problem has needed a
specific answer, the federal government itself has dealt
with water pollution by legislation as well as by executive
order.
The federal government has been somewhat ambivalent
with regard to intergovernmental relationships.
For example,
in the Water Quality Act of 1965 the federal government,
while apparently determined to relinquish water pollution
control to the states, in reality created a more meaningful
federal role.
137
Ev en though the federal government is authorized to
solve national problems on a region-by-region basis, it is
not designed to do so.
While the government attempts to
meet urgent regional needs on an individual program basis,
it cannot operate as a scheme of concurrent regional
governments fulfilling the continuing needs of citizens in
particular geographic areas.
Thus, the nation is now
undergoing an era of the new federalism, which includes
expanded federal incentives to states to solve state and
.
1 pro bl ems. 138
reglona
The 1972 Act gives clear direction that states with
acceptable programs need not submit to an EPA-administered
program, while the EPA has indicated a desire to have as
many state-approved programs as possible so that routine
decisions and permit issuance will largely be the responsibility
of the states.
139
Since the new permit program applies only
-35-
to surface waters, state programs already in existence will
continue to regulate discharges to land, as well as
" h arges f rom non-polnt
"
d lSC
sources. 140
The Act, furthermore, provides for both public and
141
adjudicatory hearings.
The aspect of public participation
is important in the whole scheme of water pollution . as
expressed in the Act.
142
The states have adopted various methods in attempting
"
"
" f actory water con d""
to a 11 eVlate
preval"1 lng
unsatls
ltlons. 143
However, the results of state efforts have been a great deal
of fragmentation and uncoordinated effort.
For example, in
most states more than one agency (as many as six} : are
involved.
This situation is primarily due to the divergence
of states' administrative and legislative approaches to
water pollution control.
While such division of authority
is not necessarily inefficient, it does indicate ad hoc
development rather than the formation of agencies which are
~
144
desig~ed to fit appropriate problems.
During the past twenty years, states have attempted
to correct those policies which proved ineffective.
Single, special agencies were formulated to deal solely
, 145
with the pollution problem in all its aspects.
More
recent state statutes authorize the appropriate administrative
agency to develop a comprehensive program in order to deal
with water pollution.
Furthermore, recent state acts are
generally designed to give the applicable agency broad discretion
in administration of the program and to make the agency's
jurisdiction complete over all state waters.
146
-36-
V. Recommendations
The 1972 Amendments have brought notable increases
in the quality of water'throughout the country, but
improvements in some of the provisions would add greatly
to the effectiveness of the Act.
adequately with point
While the Act deals
~ources~the
non-point source problem
accounts for substantial c3.IDountsof discharges, so that
immediate attention must focus on the development of
enforcement guidelines for these wastes.
147
The Amendments also create the situation in which
industry may be required to install something more than
"best available technology economica"lly achievable" in order
to meet water quality standards reflecting secondary
contact uses.
The
~better
than best" problem should be
resolved by amending the Act to pursue the objectives of
Section 1312,
, which require standards stricter than "best
"
available technology economically achievable" when c3.
cost-benefit analysis justifies that result.
Thus,
"better than best" technology would be required to meet
water quality derived effluent limitations only after
the preparation of a cost-benefit study.
148
Furthermore, the Act should be amended to allow for
limited three year postponements of the 1977 deadline in
cases where density of population and industrialization or
present water conditions preclude attainment.
Such a
proposal would allow a more realistic approach to severe
problem areas.
149
-37-
Provisions that limit inspections . to a search for
violations negate the constructive assistance that might
otherwise be available from the regulatory agency, since
violators then seem inclined to conceal violations rather
than correct them.
The EPA and the states must be certain
that regulatory procedures are utilized primarily to
prevent and remove water pollution rather than punish the
slightest violation. 150
On a broader basis, the framework used to analyze
water pollution must be expanded.
Generally, there is a
need to institutionalize the relationship between water
pollution and water supply.
The two are undeniabl y related,
especially in those areas interested in waste water
reclamation and reuse.
The water resource, then, must be
· ·1tS ent1rety
.
. tl y. 151
· d1n
stu d 1e
1. f 1. t ·1S t 0 b e manage d e ff·1C1en
There is also a need to concentrate resources where
they can have the most lasting impact.
'"
The first priority
for pollution abatement should be the concentration towards
the most severe problems.
Due to the timetables in the Act,
the administrative process is somewhat restricted in setting
its own priorities.
However, within the confines of the
legislation, the strategy must be directed toward the most
..
·
·
.
152
severe problems w1th1n
areas 0 f maJor
popu1
at10n
concentar1on.
Planning in advance is also increasingly important.
In some areas where there has not been adequate planning,
~on~y
is spent on new treatment facilities to' meet the
legal deadlines at the same time that engineers are planning
where the facilities should be located and how they should
built. 153
-38-
Finally~
no matter what changes are proposed, the
ultimate effectiveness of any regulatory scheme is dependent
upon society's consumption habits a~d how willing a society
, t
1S
0
a d op t
' t er po 1"lCles regard1ng
,
s t r1C
water use. 154
Conclusion
The 1972 Amendments, providing a more thorough enforcement
mechanism than previous water pollution legislation,
make it clear that the nation's waters are no longer to
be used for waste disposal purposes.
The Act adopts a
system of effluent standards as its primary regulatory'
scheme, although a permit system and grants program promote
the effectiveness of that scheme.
are ~
The effluent standards
related, not to water quality standards, but to
restrictions of technological availability and economic
capability.
Eventually, these standards are meant to lead
to a
zero discharge.
goal · ~f
Water quality
~tandards ~--~.-
have not been excluded altogether, however, and may require
a "better than best" technology to meet water quality derived
effluent limitations.
The permit program applies to all point sources on
"navigable waters," defined in the Act as "waters of the
United States."
Despite the holding in Holland, a
navigability restriction is probably present.
will then be
r~quired
The courts
to determine, in each case, whether
a particular waterbody is navigable.
The enforcement of the Act, with its
conflict~ng
self-disclosure and penalty provisions which seem to violate
self-incrimination rights, tends to promote the concealment
-39-
of violations.
If effective enforcement is to be eventually
attained, federal-state relations must be enhanced.
Footnotes
133 U.S.C. §§ 1251 et seq.
(1972).
233 U.S.C. § 1321 (1972).
333 U.S.C.
§
1342 (1972).
433 U.S.C.
§
1288 (1972).
5Senate Comm. on Public Works, A Legislative History of
the Federal Water Pollution Control Acts of 1972,
93d : C6ng~,
1st Sess. 1460 (1973).
6
A. Kneese, The Economics of Regional Water Quality
Management 40-41 (1964).
7See Crutchfield, Water and the National Welfare,
42 Wash. L. Rev. 177, 183 (1966).
8 -
Schultze, Setting National Priorities 119-26 (1970).
9
Goldfarb, Better Than Best: A Crosscurrent in the
Federal Water Pollution Control Act Amendments of 1972,
11 Land & Water L. Rev. 1, 2-3
(1976).
lO. See generally Zwick & Benstock, Water Wasteland (1971).
1111 Land
12
&
33 U.S.C.
Water L. Rev. 1, 4-5 (1976). CVJI".....-:;'"\~, c..U g.~)
§
1158
(1970).
13 Has k'lns, Towar d s Better Ad mlnlstratlon
"
,
Control, 49 Ore. L. Rev. 373, 374 (1970);
0
f Wa t er Qua l 1' t y
One s y stem
classifies pollutants according to their instrearn
assimilative properties as degradable or non-degradable.
See generally A. Kneese & B. Bower, Managing Water Quality:
Economics, Technology, Institutions 13-31 (1968).
Most
commonly used measurements of pollution are applicable
only to degradable waters.
Perhaps the most widespread
measure of the effect of wastes on water quality is that
which measures the biological oxygen demand (BOD) of the
waste load.
Since non-degradable wastes are not affected by
biological processes, however, the BOD measurement is useless
in describing certain types of wasteloads and highly
inaccurate in other instances where non-degradable wastes
account for a high percentage of the discharge.
W. Eckenfelder, Water Quality Engineering for Practicing
Engineers 10-11 (1970).
1411 Land & Water L. Rev. 1, 4-5 (1976).
16 42
u.s.c.
§§
1742 U. S . c.
538 et seq.
(1946).
1 et ~ ,( 19 24) .
§
1 et seq~ (1912).
18 42
u.s.c
19 33
u.s.c.
§
407 et seq.
20 33
u.s.c.
§
1151 et seq.
(1948).
21 33
u.s.c.
§
1151 et seq.
(1952).
2233
u.s.c.
§
1152 (1970).
24 33
u.s.c.
§
1152(d)
26
u.s.c.
§
1151 et seq.
33
§
(1899).
(1970).
(1956).
27
33
u.s.c.
§§ 1160 and 1151 (1970).
I ':.
28 p . L . 84-660, §8, 70 Stat. 504
29 33
u.s.c.
§ 1171,(1970).
30 33
u.s.c.
§ 1158
51.:. - - - -
(1956) . vJ,--'()~ U'?u ?'
L. /..)c _
(1970).
31During the period of administration of the 1965
Amendments by the Department of the Interior, few 180-day
notice actions were initiated for violators of water
quality standards.
A more vigorous enforcement program was
conducted subsequent to the vesting of enforcement
responsibility with the EPA in December of 1970.
EPA
initiated 144 actions prior to the enactment of the 1972
Amendments; however, only four of these cases resulted in
actual court action by the Justice Department.
u.s.
Environmental Protection Agency, The First Two Years:
A Review of EPA's Enforcement Program (1973).
32
. - 33
U.S ~ C.
§§ 1153, 1155-1158, 1160, 1173, 1175, 431-437,
and 466 (1970).
33 33 U.S.C. §§ 1151-1175 (1970).
34
33 U . ~ S.C. § 1161(b) (1)
(1970).
35(1) Failure to notify of an oil spill, 33 U. S.C.
§1161(b) (4)
(1970),
(2) Knowingly discharging oil, 33 U.S.C
§1161 (b) (5)
(1970),
(3) Marine disaster creating a substantial
pollution hazard, 33 U.S.C. § 1161(d)
(1970),
(4) Imminent
and substantial threat to an offshore or onshore facility,
33 U.S.C. § 1161 (e)
(1970),
(5) Recovery of cleanup cost,
33 U.S.C. § 1161(f)
(1970), and (6) Violation of removal and
prevention regulations, 33 U.S,C.
§
1161(j)
(1970).
36 33 U.S.C. § 1254 (1972).
37
33 U.S.C. § 1251 (1972).
38 33 U.S.C.
§
1256 (1972).
39 33 U.S.C.
§
1365 (1972).
40Senate Comm. on Public Works, A Legislative History of
the Federal Water Pollution Control Act Amendments of 1972,
93d Cong., 1st Sess. 1460 (1973).
41
Speth, The 1972 Federal Water Pollution Control Act:
Problems and Prospects After One Year, 7 Nat. Res. L. 249,
250 (1974).
42
.
McThenla, An Examination of the Federal Water Pollution
Control Act Amendments of 1972, 30 Wash. & Lee L. Rev. 195,
210 (1973).
43
. 33 U.S.C. § 1251(a) (1)
(1972).
44"It is the national goal that whenever attainable, an
interim goal of water quality which provides for the protection
and propogation of fish, shellfish, and wildlife and provides
for recreation in and on the water be achieved by July 1, 1983."
33 U.S.C. § 1251(a) (2).
The 1983 goal is significant in its
description of two national standards of measurement.
The
most widely accepted measure for determining whether a stream
will provide for the propogation of fish and wildlife is the
amount of dissolved oxygen in the water.
The recreation or
"swimmable" portion of the standard is usually measured by
bacteria count.
45
33 U.S.C. § 1311(b)
46
33 U.S.C.
47
48
(1972) .
§ 1311 (b) (1) (A)
(1972) .
33 U.S.C. § 1311 (b) (2) (A)
(1972) .
118 Congo Rec. 16870, 16873 (daily ed. Oct. 4, 1972) .
49
33 U.S.C. § 1311 (b) (1) (B)
(1972) .
5°33 U.S.C. § 1311 (b) (2) (B)
(1972) .
51
33 U.S.C. § 1313 (1972) .
5211 Congo Rec. 16873 (daily ed. Oct. 4, 1972).
53 " 33 U.S.C. § 1342
54
(1972).
33 U.S.C. § 1342(b)
(1972).
55 33 U.S.C. § 1319 (1972).
56
.
Sectlons 1311 (general effluent limitations), 1312
(water quality related effluent limitations), 1316 (standards
of performan,ce for new sources), 1317 (toxic substances), and
the permit system of Section 1342.
57
59
33 U.S.C. § 1319 (a) (1)
(1972).
33 U.S.C. § 1319 (a) (3) and § 1319(b)
(1972) .
6°33 U.S.C. § 1319 (c) (1) and § 1342 (b) (7)
61
62
63
64
(1972) .
33 U.S.C. § 1281 (1972) .
33 U.S.C. § 1288(a) and § 1284(a)
33 U.S.C. §1284 (b) (1)
33 U.S.C. §1317 (b)
(1972) .
(1972) .
(1972) .
65
66
67
68
33 U.S.C. § 1319 (a)
(1972) .
33 U.S.C. § 1284 (1972) .
33 U.S.C. § 1342 (b)
(1972) .
The Act also refers to non-point sources.
issue, however, the legislation is incomplete.
On this
However,
because the full nature of the problem is not yet known and
because of the lack of knowledge concerning alternative
measures, a national legislative program seems unwise at the
present time.
30 Wash.
&
Lee 19:;, 212-213 (1973).
69A . Kneese & B. Bower, Managing Water Quality: Economics,
Technology, Institutions 41 (1968).
70Section 1314(b) directs the Administrator to consider
"process" changes in determining what is the "best practicable
control technology currently available" and the "best
available technology economically achievable."
33 U.S.C. §" 1314 (b) (1) (B),
See~'
(2) (B) (1972).
71Note ,10 Harv. J. Legis. 565, 574-75 (1973).
72 The House and Senate conferees both desired uniformity:
The conferees agreed upon this limited
cost-benefit analysis in order to maintain
uniformity within a class and category of
point sources subject to effluent limitations,
and to avoid imposing on the Administrator
any requirement to consider the location of
sources within a category or to ascertain
water quality impact of effluent controls, or
to determine the economic impact of controls
on any individual plant in a single community.
118 Congo Rec. 16873 (daily ed., Oct. 4, 1973)
73
Katz, The Function of Tort Liability in Technology
Assessment, 38 Cin. L. Rev. 587, 634 (1969J.
74 10 Harv. J. Legis. 565, 576-77 (1973)
.\.,J~
C"-'---:t.
J5 Id . at 589.
76 Id . at 590.
77 The EPA's discretion in determining what level of
control is "practicable" or "economically achievable" is
substantial.
Consequently, the amount of reduction actually
achieved and the amount of economic dislocation accepted as
tolerable are likely to be determined more by the political
process and public opinion than by the wording of the
<.::LA::- a:f
statutory standards.
10 Harv. J. Legis. 565, 580 (1973).
78 10 Harv. J. Legis. 565, 578 (1973).
79
The EPA has conceded that although most businesses
will be capable of cost recovery, older plants and those
plants lacking the land required for treatment facilities will
close rather than attempt to meet the standards.
The
EPA's conclusion was that plant closings are expected in
almost all industries.
4 BNA Environ. Rep. Current Dev.
1584-85 (1974).
80· 10 Harv. J. Legis. 565, 579 (1973).
8IsEction 1314(b) (1) (B) lists seven factors relevant to
the determination of "best practicable control technology
currently available."
These factors "shall include
consideration of the total cost of application of technology
in relation to the effluent reduction benefits to be
achieved from such application, and shall also take into
account the age of equipment and facilities involved, the
process employed, the engineering aspects of the application
of various types of control techniques, process changes,
non-water quality environmental impact (including energy
,
requirements), and such other factors as the Administrator
deems appropriate."
33 U.S.C.
§
1314 (b) (1) (B)
(1972).
82 Comment, 10 Gonzaga L. Rev. 165, 169 (1974).
83 10 Harv. J. Legis. 565, 584 (1973).
84 See Hearings on H.R. 11896, H.R. 11895 Before the House
Comm. on Public Works, 92d Cong., 1st Sess. 259 (1971).
85calculating accurately the marginal benefits of moving
from 90 to 95 per cent reduction would require calculation
of the benefits derived from present control levels (assuming
this is possible) followed by a computation of the expected
benefits from applying the best practicable technology (an
even more uncertain task).
must then
b~
The difference in these two figures
compared with the marginal cost of changing from
present control levels to best practicable control technology.
A reasonably empirical calculation of this type is beyond the
scope of current cost-benefit theory.
A. Kneese & B. Bower,
Managing Water Quality: Economics, Technology, Institutions
129 (1968).
8~section1367(e) requires the Administrator to "conduct
continuing evaluations of potential loss or shifts of
employment which may result from the issuance of any effluent
limitation or order under this title, including threatened
plant closures or reductions in employment allegedly resulting
from such limitation or order."
that "nothing in this
subs~~n
Although the section provides
shall be construed to require
or authorize the Administrator to modify or withdraw any
"
effluent limitation or order issued under this title," the
practical effects will be to pressure the Administrator to
minimize economic dislocation whenever possible.
§
1367 (e)
33
u.s.c.
(1972).
87 The Act does provide, however, that point sources
which corne
~nto
existence before 1983 will not be subject to
more stringent standards of performance for a ten year
period beginning on the date of completion of such construction,
or during the period of amortization, whichever is longer.
10 Gonzaga L. Rev. 165, 170
88
(1974).
10 Gonzaga L. Rev. 165, 174-75 (1974)
89
. ~L
rd. at lilO.
: 90 1 IriH arv. J. Legis. 565, 571-72 (1973).W/~
91 11 Land & Water L. Rev. 1, 21 (1976) .UJ~
~233
93
94
95
96
97
98
u. S';c.
§
1313 (1972) .
33
U.S.C~
§
1313 (a) (1)
33
u.s.c.
§
1313 (a) (2) , (3)
33
u.s.c.
§
1313(c)
(1972) .
33
u.s.c.
§:
1313 (e)
(1972) .
33
u.s.c.
§
1313 (e) (2)
(1972) .
(1972) .
(1972) .
11 Land & Water L. Rev. 1, 12
(1976) .
99rd~ at 13, 15.
100 rd . at 21.
101" Ad optlon
.
0
f a no d lse
. h
argeI
po·ley arnoun t s t
0
th e
imputation of an extravagant social value to an abstract
.'
concept of water purity; a value the Commission is convinced
the American people would not endorse if the associated
costs were fully apppreciated and the policy alternatives
clearly understood."
Review Draft - Proposed Report of the
National Water Commission 4-5 (1972).
102 30 Wash. & Lee L. Rev. 195, 208-09 (1973).
103
. Review Draft- Proposed Report of the National Water
Commission 4-6 (1972).
104
. Senator Muskie, the principal draftsman of the Act,
emphasized the strictness of this policy: "The use of any
river, lake, stream, or ocean as a waste treatment system
is unacceptable."
117 Congo Rec. 17397 (daily ed., Nov. 2,
1971) .
105 30 Wash. & Lee L. Rev. 195, 209 (1973).
106 Senator Mus k le,ln
"
d th a t
comp 1 ete can d or, d
ec Iare
"the 1985
"
deadlin~
fo~
is a policy objective.
is not enforceable."
achieving no-discharge of pollutants
It is not locked in concrete.
It
117 Congo Rec. 17397 (dailyed.,
Nov. 2, 1971).
107 7 Nat. Res. L. 249, 250-51 (1974).
108
· ,
The Federal Water Pollution Control Act and the
ROle,
b
States: Love in Bloom or Marriage on the Rocks, 7 Nat. Res. L.
231 (1974).
~P9H.R. Rep. No. 911, 92d Cong., 2d Sess. 131 (1972).
llO. Comment, 1 9 St.
'
LOU1S
L.
J 208
.,
213
(1974) .
1117 Nat. Res. L. 231, 232-33 (1974).
112 19 St. Louis L. J. 208, 213 (1974).
113Neill, The Water P;llution Control Act of ~972:
Federal Jurisdiction, 29 J. Mo. B. 402, 405 (1973).
114 19 St. Louis L. J. 208, 220 (1974).
115 373 F. Supp. 665 (M.D. Fla. 1974).
116 Id . at 673.
119 Id . at 671.
120 Id . at 672.
121 19 St. Louis L.J. 208, 219 (1974).
122 Id . at 221.
123
"House Co'mm. on Public Works, Federal Water Pollution
Control Act Amendments of 1972, H.R. Rep. No. 911, 92d
Cong.,
2~
Sess. 114 (1972).
124 33 U.S.C. §1318 (1972).
125stern & Mazze. Federal Water Pollution Control Act
Amendments of 1972, 12 Am. Bus. L. J. 81, 85 (1974).
12 6 33 U. S . C. § 13 21 (b) (5)
( 19 7 2) .
128 33 U.S.C. § 1321(b) (6)
(1972).
12 9Al. tk lns,
.
.
. t
7 Nat . Re s
L . 241
In d ustry Vlewpoln,
. , 24 3 ( 1974 ) .
130cornment, 49 Tul. L. Rev. " 1124, 1,1 25 (1975).
131 Id . at 1129-30.
132United States v. ,United States Coin & Currency,
401 U.S. 715 (1971); Lees v. United States, 150 U.S.
476 (1893); Boyd v. United States, 116 U.S. 616 (1886).
133 See, e.g. Leary v. United
States~
395 U.S. 6 (1969);
Haynes v. United States, 390 U.S. 85 (1968); But cf.
California v. Byers, 402 U.S. 424 (1971).
134United States v. LeBeouf Brothers Towing Co.,
377 F. Supp. 558 (E.D. La. 1974).
135 Id . at 565.
136 Id . at 564.
137 Kl lne,
"
Intergovernmental Relations in the Control of
water Pollution, 4 Nat. Res.L. 505, 506-507 (1971).
138Hart " ,creative Federalism: Recent Trends in Regional
Water Resources Planning and Development, 39 U. Colo. L. Rev.
29 (1966).
139 7 Nat. Res. L. '231, 232 (1974).
140 Id . at 233.
141See generally Romanek, Federal Viewpoint, 7 Nat. Res. L.
225 (1974).
142 7 Nat. Res. L. 225, 227
(1974).
143 T
h ede f""
"
" state programs wh"lC h genera 11 y
lClenCles
ln
required reversals were:
(1) inadequate statutory authority,
(2) lack of forceful administrative control,
(3) inappropriatenes
of public health dominion over program implementation, and
/
(4) lack of any centralized authority.
Hines, Nor Any Drop
to Drink: Public Regulation of Water Quality - Part I:
State Pollution Control ' Programs, 52 Iowa L. Rev. 186, 204
(1966) .
144
. 4 Nat. Res. L. 505, 510-11 (1971).
145 .
.
Glndler, Water Pollution and Quality Controls §227.4
(Clark ed., Waters and Water Rights, vol. 3, 1967).
l46 4 Nat. Res. L. 505, 510-11 (1971).
147] Nat. Res. L. 225 (11974).
148
11 Land & Water L. Rev. 1, 21 (1976).
149 Id . at 22.
15012 Am. Bus. L.J. 81, 85 (1974).
151 7 Nat. Res. L. 231, 237 (1974).
152
153
154
30 Wash. & Lee L. Rev. 195, 219-20 (1973).
7 Nat. Res.L. 231, 238 (1974).
30 Wash. & Lee L. Rev. 195, 213 (1973).