THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
3EZ
UJ
Supplement I
Volume I
Water
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
Supplement I
Volume I
Water
JANUARY 1973
. RUCKELSHAUS
Administrator
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $16.65 per B vol. set. Sold in sets only
Stock Number 5500-00086
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FOREWORD
No nation in the history of the world has ever developed as fast as
the United States. Starting virtually from scratch, we created in one
century the world's first industrial society on a continental scale. Since
we derived such great benefits from the exploitation of natural re-
sources, it is not surprising that we equated all forms of growth with
progress.
Today, however, there is a new mood in this country. "We are dis-
posed to look more carefully at our past assumptions, including those
which brought us wealth, comfort, and convenience. We have learned
a great deal, especially in the last decade. We have acquired a more
comprehensive perception of the problems of modern society and how
persistent and intractable they can be. But these problems are not be-
yond solution. They give way before ingenuity, perseverance, and
mutual cooperation.
I think this nation is well on its way to a new era of environmental
stewardship. We are beginning to realize that the earth itself, the
whole biosphere, is an environment from which we cannot insulate
ourselves. We are learning that while we may alter that environment,
we must also be prepared to protect it and to foresee the full effects of
our actions on tomorrow's world.
When future historians look back on this period, they should say
it was an age of enlightenment when man first understood that his
limitless capacity to innovate always takes place within nature, not
outside it, and that preserving the life systems of the earth is his most
sacred task.
It will take decades of heavy investment, generations of strenuous
effort, and many hard years of learning to live with new habits and
imperatives. But in the end we shall restore the earth—not perhaps
to what it was in the past, for the past is unrecoverable— but to a new
condition of wholeness, where man may live in peace.
Such a world is ours for the making.
WILLIAM D. RTJCKELSHAUS
Administrator
U.S. Environmental Protection Agency
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PREFACE
Reorganization Plan No. 3 of 1970 transferred 15 governmental
units with their functions and legal authority to create the U.S. En-
vironmental Protection Agency. Since only the major laws were cited
in the Plan, the Administrator, William D. Ruckelshaus, requested
that a compilation of EPA legal authority be researched and pub-
lished.
The publication has the primary function of providing a working
document for the Agency itself. Secondarily, it will serve as a research
tool for the public.
This particular volume, which constitutes the first supplement, is a
product of a permanent office in the Office of Legislation, established
to perform the updating function.
It is the hope of EPA that this set will assist in the awesome task of
developing a better environment.
MART LANE REED WARD GENTRY, J.D.
Assistant Director, Office of Field Operations
Office of Legislation
U.S. Environmental Protection Agency
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2-EPA
INSTRUCTIONS
This new publication is intended to do two things. It is designed
first to update the EPA Legal Compilation, which first appeared in
1973. But it is also intended to stand alone as a collection &nd
presentation in one document of the text and legislative history of
the major environmental legislation enacted during the Second Ses-
sion of the 92d Congress.
In the first instance, for those using this publication in conjunction
with the Compilation, the point system employed there will be con-
tinued here. Although in that work at each solely numerical point
(1.1, 1.2, etc.) the complete then current text of the pertinent statutes
was provided, in this publication ONLY the public law text of the
latest amendment will be used because the new legislation has not yet
been codified. The public law texts appear at the appropriate numeri-
cal-alphabetical point (1.32a, 1.2r, etc.) of the legislative history.
For those using this publication as an independent document, the
Table of Contents has a listing of the materials included by specific
environmental area.
Finally, this work is intended for general legal reference and in-
formation, not as one which may be formally cited in the legal sense,
and the author disclaims responsibility for liability arising from its
use. In this connection, it should be noted that the many quotations
from the Congressional Record for the 92nd Congress were taken
from the "unofficial'' daily version which is subject to subsequent
modification by the Members prior to the publication of the final of-
ficial record, not available at this time.
From the outset, our concern was to make this important material
available to the public as quickly as possible and we recognized that
in order to accomplish this, we would have to diminish its official
character to some extent. We think that it was a fair trade-off.
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CONTENTS
Volume I-III
WATER
1.2 Federal Water Pollution Control Act, as amended, 33
U.S.C. § 1251 etseg 1
1.2p Federal Water Pollution Control Act Amendments of
1972, October 18, 1972, P.L. 92-500, 86 Stat. 816... 1
(1) Senate Committee on Public Works, S. REP. No.
92^114, 92d Cong., 1st Sess. (1971) 90
(2) House Committee on Public Works, H.R. REP.
No. 92-911, 92d Cong., 2d Sess. (1972) 205
(3) Committee of Conference, H.R. REP. No. 92-
1465, 92d Cong., 2d Sess. (1972) 628
(4) Congressional Record:
(a) Vol. 117 (1971), Nov. 2: Considered and
passed Senate, pp. S17396-S17487; 785
(b) Vol. 118 (1972), Mar. 27-29: Considered
and passed House, amended in lieu of H.R.
11896, pp. H2478-H2545, H2584-H2647,
H2718-H2800; 967
(c) Vol. 118 (1972), Oct. 4: House and Senate
agreed to conference report, pp. S16869-
S16895, H9114-H9135; 1395
(d) Vol. 118 (1972), Oct. 17: Senate overrode
veto, pp. S18534-S18535, S18546-S18554;_._ 1489
(e) Vol. 118 (1972), Oct. 18: House overrode
veto, pp. H10266-H10273 1510
1.32 Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. § 1401 et seq 1525
1.32a Marine Protection, Research, and Sanctuaries Act
of 1972, October 23, 1972, P.L. 92-532, 86 Stat.
1052 1525
ix
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CONTENTS
Page
(1) House Committee on Merchant Marine and
Fisheries, H.R. REP. No. 92-361, 92d Cong.,
IstSess. (1971) 1537
(2) Senate Committee on Commerce, S. REP. No.
92-451, 92d Cong., 1st Sess. (1971) 1609
(3) Committee of Conference, H.R. REP. No. 92-
1546, 92d Cong., 2d Sess. (1972) 1654
(4) Congressional Record, Vol. 117 (1971):
(a) Sept. 8, 9: Considered and passed House,
pp. H8182-H8199, H8225-H8255; 1673
(b) Nov. 24: Considered and passed Senate,
amended, pp. S19629-S19655; 1768
(c) Vol. 118 (1972), Oct. 13: Senate and House
agreed to conference report, pp. Si 7962-
S17963, H9904-H9908 1823
Volume IV
PESTICIDES
1.1 Federal Insecticide, Fungicide, and Rodenticide Act, as
amended, 7 U.S.C. §§ 136-136y 1835
l.lk Federal Environmental Pesticide Control Act of 1972,
October 21, 1972, P.L. 92-516, 86 Stat. 973 1835
(1) House Committee on Agriculture, H.R. REP. No.
92-511, 92d Cong., 1st Sess. (1971) 1862
(2) Senate Committee on Agriculture and Forestry,
S. REP. No. 92-838, 92d Cong., 2d Sess (1972) _ _ 1944
(3) Senate Committee on Commerce, S. REP. No.
92-970, 92d Cong., 2d Sess. (1972) 2091
(4) Committee of Conference, S. REP. No. 92-1540,
92dCong.,2d Sess. (1972) 2137
(5) Congressional Record:
(a) Vol. 117 (1971), Nov. 8, 9: Considered and
passed House, pp. H10674-H10680, H10726-
H10774; 2172
(b) Vol. 118 (1972), Sept 26: Considered and
passsed Senate, amended, p. S15885-
S15900; 2281
(c) Vol. 118 (1972), Oct. 5: Senate agreed to con-
ference report, pp. S16977-S16981; 2312
(d) Vol. 118 (1972), Oct. 12: House agreed to
conference report, pp. H9795-H9798 2320
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CONTENTS xi
Volume V
NOISE
Page
1.4 Noise Control Act, 42 U.S.C. § 4901 et seq 2328
1.4a Noise Control Act of 1972, October 27, 1972, P.L. 92-
574, 86 Stat. 1234 2328
(1) House Committee on Interstate and Foreign Com-
merce, H.K. REP. No. 92-842, 92d Cong., 2d
Sess.(1972) 2345
(2) Senate Committee on Public Works, S. REP. No.
92-1160, 92d Cong., 2d Sess. (1972) 2384
(3) Congressional Record, Vol. 118 (1972):
(a) Feb. 29: Considered and passed House, pp.
H1508-H1539 2345
(b) Oct. 12: Considered in Senate, pp. S17743-
S17764, S17774-S17785; 2499
(c) Oct. 13: Considered and passed Senate,
amended, pp. S17988-S18014; 2567
(d) Oct. 18: House concurred in Senate amend-
ment, with an amendment, pp. H10261-
H10262, H10287-H10300; 2621
(e) Oct. 18. Senate concurred in House amend-
ment, pp.S18638-S18646 2651
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1.2 FEDERAL WATER POLLUTION CONTROL
ACT, AS AMENDED
33 U.S.C. § 1251 ct seq.
(Since the latest amendments have not been codified, see 1.2p
for text)
1.2p FEDERAL WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1972
October 18, 1972, P.L. 92-500, 86 Stat. 816
To amend the Federal Water Pollution Control Act.
Be it enacted by the Senate and House of Representatives of the
United States of America, in Congress assembled, That this Act may be
cited as the "Federal Water Pollution Control Act Amendments of
1972".
SEC. 2. The Federal Water Pollution Control Act is amended to read
as follows :
"TITLE I— RESEARCH AND RELATED PROGRAMS
"DECLARATION OF GOALS AND POLICY
•'SEC. 101. (a) The objective of this Act is to restore and maintain
the chemical, physical, and biological integrity of the Nation's waters.
In order to achieve this objective it is hereby declared that, consistent
with the provisions of this Act —
" ( 1 ) it is the national goal that the discharge of pollutants into
the navigable waters be eliminated by 1985 ;
" (2) it is the national goal that wherever attainable, an interim
goal of water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recrea-
tion in and on the water be achieved by July 1, 1983 ;
'' (3) it is the national policy that the discharge of toxic pollut-
ants in toxic amounts be prohibited ;
"(4) it is the national policy that Federal financial assistance
be provided to construct publicly owned waste treatment works ;
"(5) it is the national policy that areawido waste treatment
management planning processes be developed and implemented
to assure adequate control of sources of pollutants in each State;
and
" (6) it is the national policy that a major research and demon-
stration effort be made to develop technology necessary to elimi-
nate the discharge of pollutants into the navigable waters, waters
of the contiguous zone, and the oceans.
"(b) It is the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to prevent.
reduce, and eliminate pollution, to plan the development and use (in-
cluding restoration, preservation, and enhancement) of land and
water resources, and to consult with the Administrator in the exercise
of his authority under this Act. It is further the, poliov of the Congress
to support and aid research relating to the prevention, reduction, and
elimination of pollution, and to provide Federal technical services and
financial aid to State and interstate agencies and municipalities in con-
nection with the prevention, reduction, and elimination of pollution.
•'(c) It is further the policy of Congress that the President, act-
ing through the Secretary of State and such national and international
organizations as he determines appropriate, shall take such action as
may be necessary to insure that to the fullest extent possible all for-
eign countries shall take meaningful action for the prevention, reduc-
tion, and elimination of pollution in their waters and in international
waters and for the achievement of goals regarding the elimination of
discharge of pollutants and the improvement of water quality to at
least the same extent as the United States does under its laws.
"(d) Except as otherwise expressly provided in this Act, the Ad-
ministrator of the Environmental Protection Agency (hereinafter in
this Act called 'Administrator') shall administer this Act.
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LEGAL COMPILATION—SUPPLEMENT I
" (e) Public participation in the development, revision, and enforce-
ment of any regulation, standard, effluent limitation, plan, or program
established by the Administrator or any State under this Act shall be
provided for, encouraged, and assisted by the Administrator and the
States. The Administrator, in cooperation with the States, shall de-
velop and publish regulations specifying minimum guidelines for pub-
lic participation in such processes.
"(f) It is the national policy that to the maximum extent possible
the procedures utilized for implementing this Act shall encourage the
drastic minimization of paperwork and interagency decision proce-
dures, and the best use of available manpower and funds, so as to pre-
vent needless duplication and unnecessary delays at all levels of
government.
. "COMPREHENSIVE PROGRAMS FOR WATER POIXUTION CONTROL
"SEC. 102. (a) The Administrator shall, after careful investigation,
and in cooperation with other Federal agencies, State water pollution
control agencies, interstate agencies, and the municipalities and
industries involved, prepare or develop comprehensive programs for
preventing, reducing, or eliminating the pollution of the navigable
waters and ground waters and improving the sanitary condition of
surface and underground waters. In the development of such compre-
hensive programs due regard shall be given to the improvements which
are necessary to conserve such waters for the protection and propaga-
tion of fish and aquatic life and wildlife, recreational purposes, and
the withdrawal of such water's for public water supply, agricultural,
industrial, and other purposes. For the purpose of this section, the
Administrator is authorized to make joint investigations with any
such agencies of the condition of any waters in any State or States,
and of the discharges of any sewage, industrial wastes, or substance
which may adversely affect such waters.
"(b) (1) In the survey or planning of any reservoir by the Corps of
Engineers, Bureau of Reclamation, or other Federal agency, consid-
eration shall be given to inclusion of storage for regulation of stream-
flow, except that any such storage and water releases shall not be
provided as a substitute for adequate treatment or other methods of
controlling waste at the source.
" (2) The need for and the value of storage for regulation of stream-
flow (other than .for water quality) including but not limited to navi-
gation, salt water intrusion, recreation, esthetics, and fish and wildlife,
shall be determined by the Corps of Engineers, Bureau of Reclama-
tion, or other Federal agencies.
" (3) The need for, the value of, and the impact of, storage for water
duality control shall be determined by the Administrator, and his
views on these matters shall be set forth in any report or presentation
to Congress proposing authorization or construction of any reservoir
including such storage.
"(4) The value of such storage shall be taken into account in deter-
mining the economic value of the entire project of which it is a part,
and costs shall be allocated to the purpose of regulation of streamflow
in a manner which will insure that all project purposes, share equitably
in the benefits of multiple-purpose construction.
"(o) Costs of regulation of streamflow features incorporated in
any Federal reservoir or other impoundment under the provisions of
this Act shall be determined and the beneficiaries identified and if the
benefits are widespread or national in scope, the costs of such features
shall be nonreimbursable.
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WATER—STATUTES AND LEGISLATIVE HISTORY
"(6) Xo license granted by the Federal Power Commission for a
hydroelectric power project shall include storage for regulation of
streamflow for the purpose of water quality control unless the Admin-
istrator shall recommend its inclusion and such reservoir storage ca-
pacity shall not exceed such proportion of the total storage required
for the water quality control plan as the drainage area of such res-
ervoir bears to the drainage area of the river basin or basins involved
in such water quality control plan.
" (c) (1) The Administrator shall, at the request of the Governor of a
State, or a majority of the Governors when more than one State is in-
volved, make a grant to pay not to exceed 50 per centum of the ad-
ministrative expenses of a planning agency for a period not to exceed
three years, which period shall begin after the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, if such
agency provides for adequate representation of appropriate State,
interstate, local, or (when appropriate) international interests in the
basin or portion thereof involved and is capable of developing an effec-
tive, comprehensive water quality control plan for a basin or portion
thereof.
"(2) Each planning agency receiving a grant under this subsection
shall develop a comprehensive pollution control plan for the basin or
portion thereof which—
"(A) is consistent with any applicable water quality standards,
effluent and other limitations, and thermal discharge regulations
established pursuant to current law within the basin;
'' (B) recommends such treatment works as will provide the most
effective and economical means of collection, storage, treatment,
and elimination of pollutants and recommends means to encourage
both municipal and industrial use of such works;
"(C) recommends maintenance and improvement of water
quality within the basin or portion thereof and recommends
methods of adequately financing those facilities as may be neces-
sarv to implement the plan; and
"(D) as appropriate, is developed in cooperation with, and is
consistent with any comprehensive plan prepared by the Water
Resources Council, any areawide waste management plans devel-
oped pursuant to section 208 of this Act, and any State plan
developed pursuant to section 303 (e) of this Act.
•'(3) For the purposes of this subsection the term 'basin' includes,
but is not limited to, rivers and their tributaries, streams, coastal
waters, sounds, estuaries, bays, lakes, and portions thereof, as well as
the lands drained thereby.
"INTERSTATE COOPERATION* AND UNIFORM LAWS
"SEC. 103. (a) The Administrator shall encourage cooperative activ-
ities by the States for the prevention, reduction, and elimination of
pollution, encourage the enactment of improved and, so far as prac-
ticable, uniform State laws relating to the prevention, reduction, and
elimination of pollution; and encourage compacts between States for
the prevention and control of pollution.
"(b) The consent of the Congress is hereby given to two or more
States to negotiate and enter into agreements or compacts, not in
conflict with any law or treaty of the United States, for (1) coopera-
tive effort and mutual assistance, for the prevention and control of
pollution and the enforcement of their respective laws relating thereto,
and (2) the establishment of such agencies, joint or otherwise, as they
may deem desirable for making effective such agreements and com-
pacts. Xo such agreement or compact shall be binding or obligatory
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LEGAL COMPILATION—SUPPLEMENT I
upon any State a party thereto unless and until it has been approved
by the Congress.
''RESEARCH, INVESTIGATIONS, TRAINING, AND INFORMATION
"SEC. 104. (a) The Administrator shall establish national programs
for the prevention, reduction, and elimination of pollution and as part
of such programs shall—
''(1) in cooperation with other Federal, State, and local agen-
cies, conduct and promote the coordination and acceleration of,
research, investigations, experiments, training, demonstrations,
surveys, and studies relating to the causes, effects, extent, preven-
tion, reduction, and elimination of pollution;
"(2) encourage, cooperate with, and render technical services'
to pollution control agencies and other appropriate public or pri-
vate agencies, institutions, and organizations, and individuals,
including the general public, in the conduct of activities referred
to in paragraph (1) of this subsection;
il(3) conduct, in cooperation with State water pollution con-
trol agencies and other interested agencies, organizations and
persons, public investigations concerning the pollution of any
navigable waters, and report on the results of such investigations ;
"(4) establish advisory committees composed of recognized
experts in various aspects of pollution and representatives of the
public to assist in the examination and evaluation of research
progress and proposals and to avoid duplication of research;
" (5) in cooperation with the States, and their political subdivi-
sions, and other Federal agencies establish, equip, and maintain
a water quality surveillance system for the purpose of mon-
itoring the quality of the navigable waters and ground waters
and the contiguous zone and the oceans and the Administrator
shall, to the extent practicable, conduct such surveillance by
utilizing the resources of the National Aeronautics and Space.
Administration, the National Oceanic and Atmospheric Admin-
istration, the Geological Survey, and the Coast Guard, and shall
report on such quality in the report required under subsection
(a) of section 516; and
"(6) initiate and promote the coordination and acceleration of
research designed to develop the most effective practicable tools
and techniques for measuring the social and economic costs and
benefits of activities which are subject to regulation under this
Act; and shall transmit a report on the results of such research
to the Congress not later than January 1, 1974.
"(b) In carrying out the provisions of subsection (a) of this sec-
tion the Administrator is authorized to—
"(1) collect and make available, through publications and
other appropriate means, the results of and other information,
including appropriate recommendations by him in connection
therewith, pertaining to such research and other activities referred
to in paragraph (1) of subsection (a) ;
"(2) cooperate with other Federal departments and agencies,
State water pollution control agencies, interstate agencies, other
public and private agencies, institutions, organizations, indus-
tries involved, and individuals, in the preparation and conduct
of such research and other activities referred to in paragraph
(1) of subsection (a) ;
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WATER—STATUTES AND LEGISLATIVE HISTORY
"(3) make grants to State water pollution control agencies,
interstate agencies, other public or nonprofit private agencies.
institutions, organizations, and individuals, for purposes stated
in paragraph (1) of subsection (a) of this section;
"(-)•) contract with public or private agencies, institutions,
organizations, and individuals, without regard to sections 3648
and 3709 of the Revised Statutes (31 U.S.C. 529; 41 U.S.C. 5),
referred to in paragraph (1) of subsection (a) ;
"(5) establish and maintain research fellowships at public or
nonprofit private educational institutions or research organi-
zations;
"(6) collect and disseminate, in cooperation with other Federal
departments and agencies, and with other public or private agen-
cies, institutions, and organizations having related responsibili-
ties, basic data on chemical, physical, and biological effects of
varying water quality and other information pertaining to pollu-
tion and the prevention, reduction, and elimination thereof; and
"(7) develop effective and practical processes, methods, and
prototype devices for the prevention, reduction, and elimination
of pollution.
"(c) In carrying out the provisions of subsection (a) of this section
the Administrator shall conduct research on, and survey ihe res-nits of
other scientific studies on, the harmful effects on the health or welfare
of persons caused by pollutants. In order to avoid duplication of cffoit,
the Administrator shall, to the extent practicable, conduct such
research in cooperation with and through the facilities of the Secre-
tary of Health, Education, and Welfare.
''(d) In carrying out the provisions of this section the Administrator
shall develop and demonstrate under varied conditions (including
conducting such basic and applied research, studies, and experiments
as may be necessary) :
"(1) Practicable means of treating municipal sewage, and
other waterborne wastes to implement the requirements of sec-
tion -201 of this Act;
"(2) Improved methods and procedures to identify and meas-
ure the effects of pollutants, including those pollutants created
by new technological developments; and
''(3) Methods and procedures for evaluating the effects on
water quality of augmented streamflows to control pollution not
susceptible to other means of prevention, reduction, or
elimination.
'•(e) The Administrator shall establish, equip, and maintain field
laboratory and research facilities, including, but not limited to. one
to be located in the northeastern area of the Unite,;! States, one in the
Middle Atlantic area, one in the southeastern area, one in the mid-
western area, one in the southwestern area, one in the Pacific Xorth-
west, and one in the State of Alaska, for the conduct of research.
investigations, experiments, field demonstrations and studios, and
training relating to the prevention, reduction and elimination of
pollution. Insofar as practicable, each such facihtv shall be located
near institutions of higher learning in which graduate trainino- in
such research might be carried out. .In conjunction with the, develop-
ment of criteria under section 403 of this Act, the Administrator shall
construct the facilities authorized for the National Marine Water
Quality Laboratory established under this subsection.
'•(f) The Administrator shall conduct research and technical devel-
opment work, and make studies, with respect to the quality of the
waters of the Great Lakes, including an analysis of the present and
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6 LEGAL COMPILATION—SUPPLEMENT I
projected future water quality of the Great Lakes under varying
conditions of waste treatment and disposal, an evaluation of the water
quality needs of those to be served by such waters, an evaluation of
municipal, industrial, and vessel waste treatment and disposal prac-
tices with respect to such waters, and a study of alternate means of
solving pollution problems (including additional waste treatment
measures) with respect to such waters.
"(g) (1) For the purpose of providing an adequate supply of trained
personnel to operate and maintain existing and future treatment works
and related activities, and for the purpose of enhancing substantially
the proficiency of those engaged in such activities, the Administrator
shall finance pilot programs, in cooperation with State and interstate
agencies, municipalities, educational institutions, and other organi-
zations and individuals, of manpower development and training and
retraining of persons in, on entering into, the field of operation and
maintenance of treatment works and related activities. Such program
and any funds expended for such a program shall supplement, not
supplant, other manpower and training programs and funds avail-
able for the purposes of this paragraph. The Administrator is author-
ized, under such terms and conditions as he deems appropriate, to
•enter into agreements with one or more States, acting jointly or sever-
ally, or with other public or private agencies or institutions for the
development and implementation of such a program.
" (2) The Administrator is authorized to enter into agreements with
public and private agencies and institutions, and individuals to
develop and maintain an effective system for forecasting the supply of,
and demand for, various professional and other occupational cate-
gories needed for the prevention, reduction, and elimination of pollu-
tion in each region, State, or area of the United States and, from time
to time, to publish the results of such forecasts.
"(3) In furtherance of the purposes of this Act, the Administrator
is authorized to—
"(A) make grants to public or private agencies and institutions
and to individuals for training projects, and provide for the con-
duct of training by contract with public or private agencies and
institutions and with individuals without regard to sections 3648
and 3709 of the Revised Statutes;
"(B) establish and maintain research fellowships in the Envi-
ronmental Protection Agency with such stipends and allowances,
including traveling and subsistence expenses, as he may deem
necessary to procure the assistance of the most promising research
fellows; and
"(C) provide, in addition to the program established under
paragraph (1) of this subsection, training in technical matters
relating to the causes, prevention, reduction, and elimination of
pollution for personnel of public agencies and other persons with
suitable qualifications.
"(4) The Administrator shall submit, through the President, a
report to the Congress not later than December 31,1973, summarizing
the actions taken under this subsection and the effectiveness of such
actions, and setting forth the number of persons trained, the occupa-
tional categories for which training was provided, the effectiveness of
other Federal, State, and local training programs in this field, together
with estimates of future needs, recommendations on improving train-
ing programs,' and such other information and recommendations,
including legislative recommendations, as he deems appropriate.
"(h) The Administrator is authorized to enter into contracts with,
or make grants to, public or private agencies and organizations and
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WATER—STATUTES AND LEGISLATIVE HISTORY
individuals for (A) the purpose of developing and demonstrating new
or improved methods for the prevention, removal, reduction, and elim-
ination of pollution in lakes, including the undesirable effects of
nutrients and vegetation, and (B) the construction of publicly owned
research facilities for such purpose.
"(i) The Administrator, in cooperation with the Secretary of the
department in which the Coast Guard is operating, shall—
''(1) engage in such research, studies, experiments, and demon-
strations as lie deems appropriate, relative to the removal of oil
from any waters and to the prevention, control, and elimination
of oil and hazardous substances pollution;
"(2) publish from time to time the results of such activities;
and
•'(3) from time to time, develop and publish in the Federal
Register specifications and other technical information on the
various chemical compounds used in the control of oil and hazard-
ous substances spills.
In carrying out this subsection, the Administrator may enter into con-
tracts with, or make grants to, public or private agencies and organiza-
tions and individuals.
'•(j) The Secretary of the department in which the Coast Guard
is operating shall engage in such research, studies, experiments, and
demonstrations as he deems appropriate relative to equipment which
is to be installed on board a vessel and is designed to receive, retain,
treat, or discharge human body wastes and the wastes from toilets
and other receptacles intended to receive or retain bodv wastes with
particular emphasis on equipment to be installed on small recreational
vessels. The Secretary of the department in which the Coast Guard
is operating shall report to Congress the results of such research,
studies, experiments, and demonstrations prior to the effective date
of any regulations established under section .312 of this Act. In carry-
ing out this subsection the Secretary of the department in which the
Coast Guard is operating may enter into contracts with, or make
grants to. public or private organizations and individuals.
•'(k) In carrying out the provisions of this section relating to the
conduct by the Administrator of demonstration projects and the
development of field laboratories and research facilities, the Adminis-
trator may acquire land and interests therein by purchase, with appro-
priated or donated funds, by donation, or by exchange for acquired
or public lands under his jurisdiction which he classifies as suitable
for disposition. The values of the properties so exchanged either shall
be approximately equal, or if they are not approximately equal, the
values shall be equali/ed by the payment of cash to the grantor or to
the Administrator ns the circumstances require.
•!(1)(1) The Administrator shall, after consultation with appro-
priate local, State, and Federal agencies, public and private organiza-
tions, and interested individuals, as soon as practicable but not later
than January 1, 1973. develop and issue to the States for the purpose
of carrying out this Act the latest scientific knowledge available in
indicating the kind and extent of effects on health and welfare which
may be expected from the presence of pesticides in the water in vary-
ing quantities. ITe shall revise and add to such information whenever
necessary to reflect de\ eloping scientific knowledge.
•'(2) The President shall, in consultation with appropriate local,
State, and Federal agencies, public and private organizations, and
interested individuals, conduct studies and investigations of methods
to control the release of pesticides into the environment which study
ihall include examination of the persistency of pesticides in the water
[p. 7]
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LEGAL COMPILATION—SUPPLEMENT I
environment and alternatives thereto. The President shall submit
reports, from time to time, on such investigations to Congress together
with his recommendations for any necessary legislation.
"(m) (1) The Administrator shall, in an effort to prevent degrada-
tion of the environment from the disposal of waste oil, conduct a study
of (A) the generation of used engine, machine, cooling, and similar
waste oil, including quantities generated, the nature and quality of
such oil, present collecting methods and disposal practices, and alter-
nate uses of such oil; (B) the long-term, chronic biological effects of
the disposal of such waste oil; and (C) the potential market for such
oils, including the economic and legal factors relating to the sale of
products made from such oils, the level of subsidy, if any, needed to
encourage the purchase by public and private nonprofit agencies of
products from such oil, and the practicability of Federal procurement,
on a priority basis, of products made from such oil. In conducting
such study, the Administrator shall consult with affected industries
and other persons.
'' (2) The Administrator shall report the preliminary results of such
study to Congress within six months after the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, and shall
submit a final report to Congress within 18 months after such date of
enactment.
"(n) (1) The Administrator shall, in cooperation with the Secretary
of the Army, the Secretary of Agriculture, the Water Resources Coun-
cil, and with other appropriate Federal, State, interstate, or local
public bodies and private organizations, institutions, and individuals,
conduct and promote, and encourage contributions to, continuing com-
prehensive studies of the effects of pollution, including sedimentation,
in the estuaries and estuarine zones of the United States on fish and
wildlife, on sport and commercial fishing, on recreation, on water sup-
ply and water power, and on other beneficial purposes. Such studies
shall also consider the effect of demographic trends, the exploitation of
mineral resources and fossil fuels, land and industrial development,
navigation, flood and erosion control, and other uses of estuaries and
estnarine zones upon the pollution of the waters therein.
"(2) In conducting such studies, the Administrator shall assemble,
coordinate, and organize all existing pertinent information on the
Nation's estuaries and estuarine zones; carry out a program of investi-
gations and surveys to supplement existing information in representa-
tive estuaries and estuarine zones; and identify the problems and areas
where further research and study are required.
•'(3) The Administrator shall submit to Congress, from time to time,
reports of the studies authorized by this subsection but at least one
such report during any three year period. Copies of each such report'
shall be made available to all interested parties, public and private.
"(-t) For the purpose of this subsection, the term 'estuarine zones'
means an environmental system consisting of an estuary and those
transitional areas which are consistently influenced or affected by water
from an estuary such as. but not limited to, salt marshes, coastal and
intertidal areas, bays, harbors, lagoons, inshore waters, and channels,
and the term 'estuary' means all or part of the mouth of a river or
stream or other body of water having unimpaired natural connection
with open sea and within which the sea water is measurably diluted
with fresh water derived from land drainage.
"(o)(l) The Administrator shall conduct research and investiga-
tions on devices, systems, incentives, pricing policy, and other meth-
ods of reducing the total flow of sewage, including, but not limited
[p. 8]
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WATER—STATUTES AND LEGISLATIVE HISTOBY
to. unnecessary water consumption in order to reduce the require-
ments for, and the costs of, sewage and waste treatment services.
Such research and investigations shall be directed to develop devices,
systems, policies, and methods capable of achieving the maximum
reduction of unnecessary water consumption.
"(2) The Administrator shall report the preliminary results of
such studies and investigations to the Congress within one year after
the date of enactment of the Federal Water Pollution Control Act
Amendments of 1972, and annually thereafter in the report required
under subsection (a) of section 516. Such report shall include recom-
mendations for any legislation that may be required to provide for
the adoption and use of devices, systems, policies, or other methods
of reducing water consumption and reducing the total flow of sewage.
Such report shall include an estimate of the benefits to be derived
from adoption and use of such devices, systems, policies, or other
methods and also shall reflect estimates of any increase in private,
public, or other cost that would be occasioned thereby.
''(l>) In carrying out the provisions of subsection (a) of this section
the Administrator shall, in cooperation with the Secretary of Agri-
culture, other Federal agencies, and the States, carry out a compre-
hensive study and research program to determine new and improved
methods and the better application of existing methods of preventing,
reducing, and eliminating pollution from agriculture, including the
lesral, economic, and other implications of the use of such methods.
"(q) (1) The Administrator shall conduct a comprehensive program
of research and investigation and pilot project implementation into
new and improved methods of preventing, reducing, storing, collect-
ing, treating, or otherwise eliminating pollution from sewage in rural
and other areas where collection of sewage in conventional, commu-
nity-wide sewage collection systems is impractical, uneconomical, or
otherwise infeasible, or where soil conditions or other factors preclude
the use of septic tank and drainage field systems.
"(2) The Administrator shall conduct a comprehensive program of
research and investigation and pilot project implementation into new
and improved methods for the collection and treatment of sewage and
other liquid wastes combined with the treatment and disposal of solid
wastes.
"(r) The Administrator is authorized to make grants to colleges and
universities to conduct basic research into the structure and function
of fresh water aquatic ecosystems, and to improve understanding of
the ecological characteristics necessary to the maintenance of the
chemical, physical, and biological integrity of freshwater aquatic
ecosystems.
" (s) The Administrator is authorized to make grants to one or more
institutions of higher education (regionally located and to be desig-
nated as 'River Study Centers') for the purpose of conducting and
reporting on interdisciplinary studies on the nature of river systems,
including hydrology, biology, ecology, economics, the relationship
between river uses and land uses, and the effects of development within
river basins on river systems and on the value of water resources and
water related activities. Xo such grant in any fiscal year shall exceed
$1,000,000.
"(t) The Administrator shall, in cooperation with State and Fed-
eral agencies and public and private organizations, conduct con-
tinuing comprehensive studies of the effects and methods of control
of thermal discharges. In evaluating alternative methods of con-
trol the studies shall consider (1) such data as are available on the
hitest available technology, economic feasibility including cost-effec-
[p. 9]
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10 LEGAL COMPILATION—SUPPLEMENT I
tiveiK'Ss analysis, and (2) the total impart on the environment, con-
sidering not only water quality but also air quality, land use, and
effective utilization and conservation of fresh water and other nat-
ural resources. Such studies shall consider methods of minimizing
adverse effects and maximizing beneficial effects of thermal discharges.
The results of these studies shall be reported by the Administrator
as soon as practicable, but not later than 270 days after enactment
of this subsection, and shall be made available to the public and the
States, and considered as they become available by the Administrator
in carrying out section 316 of this Act and by the States in proposing
thermal water quality standards.
"(u) There is authorized to be appropriated (1) $100,000,000 per
fiscal year for the fiscal year ending June 30, 1973, and the fiscal year
ending June 30, 1974, for carrying out the provisions of this section
other than subsections (g) (1) and (2), (p), (r), and (t) ; (2) not to
exceed $7,500,000 for fiscal year 1973 for carrying out the provisions of
subsection (g) (1) ; (3) not to exceed $2.500,000 for fiscal year 1973 for
carrying out the provisions of subsection (g) (2); (4) not to exceed
$10,000,000 for each of the fiscal years ending June 30, 1973, and
June 30, 1974, for carrying out the provisions of subsection (p) ; (5)
not to exceed $15,000,000 per fiscal year for the fiscal years ending
June 30, 1973, and June 30, 1974, for carrying out the provisions of
subsection (r) ; and (0) not to exceed $10,000,000 per fiscal year for
the fiscal years ending June 30, 1973, and June 30, 1974, for carry-
ing out the provisions of subsection (t).
"GRANTS FOR RESEARCH AND DEVELOPMENT
"SEC. 105. (a) The Administrator is authorized to conduct in the
Environmental Protection Agency, and to make grants to any State,
municipality, or intermunicipal or interstate agency for the purpose
of assisting in the development of—
"(1) any project which will demonstrate a new or improved
method of preventing, reducing, and eliminating the discharge
into any waters of pollutants from sewers which carry storm
water or both storm water and pollutants; or
"(2) any project which will demonstrate advanced waste treat-
ment and water purification methods (including the temporary
use of new or improved chemical additives which provide sub-
stantial immediate improvement to existing treatment processes),
or new or improved methods of joint treatment systems for
municipal and industrial wastes;
and to include in such grants such amounts as are necessary for the
purpose of reports, plans, and specifications in connection therewith.
"(b) The Administrator is authorized to make grants to any State
or States or interstate agency to demonstrate, in river basins or por-
tions thereof, advanced treatment and environmental enhancement
techniques to control pollution from all sources, within such basins
or portions thereof, including nonpoint sources, together with
in stream water quality improvement techniques.
•'(c) In order to carry out the purposes of section 301 of this Act,
the Administrator is authorized to (1) conduct in the Environmental
Protection Agency, (2) make grants to persons, and (3) enter into
contracts with persons, for research and demonstration projects for
prevention of pollution of anv waters by industry including, but not
limited to, the prevention, reduction, and elimination of the discharge
of pollutants. No grant shall be made for any project under this sub-
section unless the Administrator determines that such project will
develop or demonstrate a new or improved method of treating
[p. 10]
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WATER—STATUTES AND LEGISLATIVE HISTORY 11
industrial wastes or otherwise prevent pollution by industry, which
method shall have industrywide application.
" (d) In carrying out the provisions of this section, the Administra-
tor shall conduct, on a priority basis, au accelerated effort to develop,
refine, and achieve practical application of:
"(1) waste management methods applicable to point and non-
point sources of pollutants to eliminate the discharge of pollut-
ants, including, but not limited to, elimination of runoff of
pollutants ami the effects of pollutants from inplace or accumu-
lated sources;
"(2) advanced waste treatment methods applicable to point
and nonpoint sources, including inplace or accumulated sources of
pollutants, and methods for reclaiming and recycling water and
confining pollutants so they will not migrate to cause water or
other environmental pollution; and
"(3) improved methods and procedures to identify and meas-
ure the effects of pollutants on the chemical, physical, and bio-
logical integrity of water, including those pollutants created by
new technological developments.
"(e) (1) The Administrator is authorized to (A) make, in consulta-
tion with the Secretary of Agriculture, grants to persons for research
and demonstration projects with respect to new and improved methods
of preventing, reducing, and eliminating pollution from agriculture,
and (B) disseminate, in cooperation with the Secretary of Agriculture,
such information obtained under this subsection, section 104(p), and
section 304 as will encourage and enable the adoption of such methods
in the agricultural industry.
''('2) The Administrator is authorized, (A) in consultation with
other interested Federal agencies, to make grants for demonstration
projects with respect to new and improved methods of preventing,
reducing, storing, collecting, treating, or otherwise eliminating pollu-
tion from sewage in rural and other areas where collection of sewage
in conventional, community-wide sewage collection systems is imprac-
tical, uneconomical, or otherwise infeasible, or where soil conditions or
other factors preclude the use of septic tank and drainage field sys-
tems, and (B) in cooperation with other interested Federal and State
agencies, to disseminate such information obtained under this subsec-
tion as will encourage and enable the adoption of new and improved
methods develojxxl pursuant to this subsection.
"(f) Federal grants under subsection (a) of this section shall be
subject to the following limitations:
"(1) Xo grant shall l>e made for any project unless such project
shall have been approved by the appropriate State water pollu-
tion control agency or agencies and by the Administrator;
"(2) Xo grant shall be made for any project in an amount
exceeding 75 per centum of cost thereof as determined by the
Administrator: and
'' (3) Xo grant shall be made for any project unless the Admin-
istrator determines that such project will serve as a useful
demonstration for the purpose set forth in clause (1) or (2) of
subsection (a).
"(g) Federal grants under subsections (c) and (d) of this section
shall not exceed 75 per centum of the cost of the project.
•' (h) For the purpose of this section there is authorized to be appro-
priated $75,000,000 per fiscal year for the fiscal year ending June 30,
1973. and the fiscal year ending June 30, 1974, and from such appro-
priations at least 10 per centum of the funds actually appropriated
in each fiscal year shall be available only for the purposes of subsec-
tion (e). ,
[p. 11]
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12 LEGAL COMPILATION SUPPLEMENT I
"GRANTS FOR POLLUTION CONTROL PROGRAMS
"SEC. 106. (a) There are hereby authorized to be appropriated the
following sums, to remain available until expended, to carry out the
purposes of this section—
"(1) $60,000,000 for the fiscal year ending June 30, 1973; and
"(2) $75,000,000 for the fiscal year ending June 30,1974;
for grants to States and to interstate agencies to assist them in admin-
istering programs for the prevention, reduction, and elimination of
pollution, including enforcement directly or through appropriate
.State law enforcement officers or agencies.
"(b) From the sums appropriated in any fiscal year, the Adminis-
trator shall make allotments to the several States and interstate agen-
cies in accordance with regulations promulgated by him on the basis
of the extent of the pollution problem in the respective States.
"(c) The Administrator is authorized to pay to each State and
interstate agency each fiscal year either—
"(1) the allotment of such State or agency for such fiscal year
under subsection (b), or
"(2) the reasonable costs as determined by the Administrator
of developing and carrying out a pollution program by such State
or agency during such fiscal year,
which ever amount is the lesser.
"(d) No grant shall be made under this section to any State or
interstate agency for any fiscal vear when the expenditure of non-
Federal funds by such State or interstate agency during such fiscal
year for the recurrent expenses of carrying out its pollution control
program are less than the expenditure by such State or interstate
agency of non-Federal funds for such recurrent program expenses
during the fiscal year ending June 30, 1971.
"(e) Beginning in fiscal year 1974 the Administrator shall not make
any grant under this section to any State which has not provided or is
not carrying out as a part of its program—•
"(1) the establishment and operation of appropriate devices, meth-
ods, systems, and procedures necessary to monitor, and to compile and
analyze data on (including classification according to eutrophic con-
dition), the quality of navigable waters and to the extent practicable,
ground waters including biological monitoring; and provision for
annually updating such data and including it in the report required
under section 305 of this Act;
" (2) authority comparable to that in section 504 of this Act and ade-
quate contingency plans to implement such authority.
"(f) Grants shall be made under this section on condition that—
"(1) Such State (or interstate agency) files with the Administrator
within one hundred and twenty days after the date of enactment of this
section:
"(A) a summary report of the current status of the State pol-
lution control program, including the criteria used by the State
in determining priority of treatment works; and
"(B) such additional information, data, and reports as the
Administrator may require.
"(2) No federally assumed enforcement as defined in section 309
(a)^2) is in effect with respect to such State or interstate agency.
"(3) Such State (or interstate agency) submits within one hundred
and twenty days after the date of enactment of this section and before
July 1 of each year thereafter for the Administrator's approval its
program for the prevention, reduction, and elimination of pollution
in accordance with purposes and provisions of this Act in such form
and content as the Administrator may prescribe.
[p. 12]
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WATER—STATUTES AND LEGISLATIVE HISTORY 13
"(g) Any sums allotted under subnotion (1>) in any tinnil year which
are not paid shall be reallotted by the Administrator in accordance
with regulations promulgated by him.
"MINE WATER POLLUTION CONTROL DEMONSTRATIONS
'•SEC. 107. (a) The Administrator in cooperation with the Appalach-
ian Regional Commission and other Federal agencies is authorized to
conduct, to make grants for, or to contract for. projects to demonstrate
comprehensive approaches to the elimination or control of acid or
other mine water pollution resulting from active or abandoned mining
operations and other environmental pollution affecting water quality
within all or part of a watershed or river basin, including siltation
from surface mining. Such projects shall demonstrate the engineer-
ing and economic feasibility and practicality of various abatement
techniques which will contribute substantially to effective and prac-
tical methods of acid or other mine water pollution elimination or
control, and other pollution affecting water quality, including •tech-
niques that demonstrate the engineering and economic feasibility^
and practicality of using sewage sludge materials and other municipal
wastes to diminish or prevent pollution affecting water quality from
acid, sedimentation, or other pollutants and in such projects to restore
affected lands to usefulness for forestry, agriculture, recreation, or
other beneficial purposes.
"(b) Prior to undertaking any demonstration project under this
section in the Appalachian region (as defined in section 403 of the
Appalachian Regional Development Act of 1965, as amended), the
Appalachian Regional Commission shall determine that such demon-
stration project is consistent with the objectives of the Appalachian
Regional Development Act of 19(i5, as amended.
"(c) The Administrator, in selecting watersheds for the purposes
of this section, shall be satisfied that the project area will not be affected
adversely by the influx of acid or other mine water pollution from
nearby sources.
•'(d) Federal participation in such projects shall be subject to the
conditions—
''(1) that the State shall acquire any land or interests therein
necessary for such project; and
''(2) that the State shall provide legal and practical protection
to the project area to insure against any activities which will cause
future acid or other mine water pollution.
"(e) There is authorized to be appropriated $30.000,000 to carry
out the provisions of this section, which sum shall be available until
expended.
''POLLI'TION CONTROL IN GREAT LAKF.S
"Sioc. 10S. (a) The Administrator, in cooperation with other Federal
departments, agencies, and instrumentalities is authorized to enter
into agreements with any State, political subdivision, interstate agency,
or other public agency, or combination thereof, to cany out one or
more projects to demonstrate new methods and techniques and to
develop preliminary plans for the elimination or control of pollution.
within all or any part of the watersheds of the Great Lakes. Such
projects shall demonstrate the engineering and economic feasibility
and practicality of removal of pollutants and prevention of any pol-
luting matter from entering into the Great Lakes in the future and
other reduction and remedial techniques which will contribute sub-
stantially to effective, and practical methods of pollution prevention,
reduction, or elimination.
[P-
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14 LEGAL COMPILATION—SUPPLEMENT I
"(b) Federal participation in such projects shall be subject to the
condition that the State, political subdivision, interstate agency, or
other public agency, or combination thereof, shall pay not less than
25 per centum of the actual project costs, which payment may be in
any form, including, but not limited to, land or interests therein that
is needed for the project, and personal property or services the value
of which shall be determined by the Administrator.
"(c) There is authorized to be appropriated $20,000,000 to carry
out the provisions of subsections (a) and (b) of this section, which sum
shall be available until expended.
"(d)(l) In recognition of the serious conditions which exist in
Lake Erie, the Secretary of the Army, acting through the Chief of
Engineers, is directed to design and develop a demonstration waste
water management program for the rehabilitation and environmental
repair of Lake Erie. Prior to the initiation of detailed engineering and
design, the program, along with the specific recommendations of the
Chief of Engineers, and recommendations for its financing, shall be
submitted to the Congress for statutory approval. This authority is
in addition to, and not in lieu of, other waste water studies aimed at
eliminating pollution emanating from select sources around Lake Erie.
" (2) This program is to be developed in cooperation with the Envi-
ronmental Protection Agency, other interested departments, agencies,
and instrumentalities of the Federal Government, and the States and
their political subdivisions. This program shall set forth alternative
systems for managing waste water on a regional basis and shall pro-
vide local and State governments with a range of choice as to the type
of system to be used for the treatment of waste water. These alterna-
tive systems shall include both advanced waste treatment technology
and land disposal svstems including aerated treatment-spray irrigation
technology and will also include provisions for the disposal of solid
wastes, including sludge. Such program should include measures to
control point sources of pollution, area sources of pollution, including
acid-mine drainage, urban runoff and rural runoff, and in place sources
of pollution, including bottom loads, sludge banks, and polluted harbor
dredginjjs.
•'(e) There is authorized to be appropriated $5,000,000 to carry out
the provisions of subsection (d) of this section, which sum shall be
available until expended.
"TRAINING GRANTS AXD CONTRACTS
"SKC. 109. (a) The Administrator is authorized to make grants to
or contracts with institutions of higher education, or combinations
of such institutions, to assist them in planning, developing, strength-
ening, improving, or carrying out programs or projects for the prepa-
ration of undergraduate students to enter an occupation which involves
the design, operation, and maintenance of treatment works, and other
facilities whose purpose is water quality control. Such grants or con-
tracts may include payment of all or part of the cost of programs or
projects such as—
"(A) planning for the development or expansion of programs
or projects for training persons in the operation and maintenance
of treatment works;
" (B) training and retraining of faculty members;
"(C) conduct of short-term or regular session institutes for
study by persons engaged in, or preparing to engage in, the
preparation of students preparing to enter an occupation involv-
ing the operation and maintenance of treatment works;
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WATER—STATUTES AND LEGISLATIVE HISTORY 15
"(D) carrying out innovative and experimental programs of
cooperative education involving alternate periods of full-time or
part-time academic study at the institution and periods of full-
time or part-time employment involving the operation and main-
tenance of treatment works; and
"(E) research into, and development of, methods of training
students or faculty, including the preparation of teaching ma-
terials and the planning of curriculum.
"(b) (1) The Administrator may pay 100 per centum of any addi-
tional cost of construction of a treatment works required for a facility
to train and upgrade waste treatment works operation and mainte-
nance personnel.
"(2) The Administrator shall make no more than one grant for
such additional construction in any State (to serve a group of States,
where, in his judgment, efficient training programs require multi-
State programs), and shall make such grant after consultation with
and approval by the State or States on the basis of (A) the suitability
of such facility for training operation and maintenance personnel for
treatment works throughout such State or States; and (13) a commit-
ment by the State agency or agencies to carry out at such facility a
program of training approved by the Administrator.
"(3) The Administrator may make such grant out of the sums
allocated to a State under section 205 of this Act, except that in no
event shall the Federal cost of anv such training facilities exceed
$250,000.
"APPLICATION FOR TRAINING GRANT OR CONTRACT ; ALLOCATION OF GRANTS
OR CONTRACTS
"SEC. 110. (1) A grant or contract authorized by section 109 may be
made only upon application to the Administrator at such time or
times and containing such information as he may prescribe, except
that no such application shall be approved unless it—
"(A) sets forth programs, activities, research, or development
for which a grant is authorized under section 109 and describes
the relation to any program set forth by the applicant in an ap-
plication, if any, submitted pursuant to section 111;
"(B) provides such fiscal control and fund accounting proce-
dures as mav be necessary to assure proper disbursement of and
accounting for Federal funds paid to the applicant under this
section; and
"(C) provides for making such reports, in such form and con-
taining such information, as the Administrator may require to
carry out his functions under this section, and for keeping such
records and for affording such access thereto as the Administrator
may find necessary to assure the correctness and verification of
such reports.
"(2) The Administrator shall allocate grants or contracts under
section 109 in such manner as will most nearly provide an equitable
distribution of the grants or contracts throughout the United States
among institutions of higher education which show promise of being
able to use funds effectively for the purpose of this section.
•'(3) (A) Payment under this section may be used in accordance with
regulations of the Administrator, and subject to the terms and condi-
tions sef forth in an application approved under paragraph (1), to pay
part of the compensation of students employed in connection with the
operation and maintenance of treatment works, other than as an
employee in connection with the operation and maintenance of treat-
[p. 15]
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16 LEGAL COMPILATION—SUPPLEMENT I
ment works or as a,n employee in any branch of the Government of the
United States, as part pi a program for which a grant has been
approved pursuant to this section.
"(B) Departments and agencies of the United States are encour-
aged, to the extent consistent with efficient administration, to enter
into arrangements with institutions of higher education for the full-
time, part-time, or temporary employment, whether in the competi-
tive or excepted service, of students enrolled in programs set forth in
applications approved under paragraph (1).
''AWARD OF SCHOLARSHIPS
"Sue. 111. (1) The Administrator is authorized to award scholar-
ships in accordance with the provisions of this section for undergradu-
ate study by persons who plan to enter an occupation involving the
operation and maintenance of treatment works. Such scholarships shall
be awarded for such periods as the Administrator may determine but
not to exceed four academic years.
"(2) The Administrator shall allocate scholarships under this sec-
tion among institutions of higher education with programs approved
under the provisions of this section for the use of individuals accepted
into such programs, in such manner and according to such plan as will
insofar as practicable—
"(A) provide an equitable distribution of such scholarships
throughout the United States; and
''(B) attract recent graduates of secondary schools to enter
an occupation involving the operation and maintenance of
treatment works.
"•(3) The Administrator shall approve a program of any institu-
tion of higher education for the purposes of this section only upon
application by the institution and only upon his finding—
''(A) that such program has a principal objective the educa-
tion and training of persons in the operation and maintenance
of treatment works;
" (B) that such program is in effect and of high quality, or can
be readily put into effect and may reasonably be expected to be
of high quality;
"(C) that the application describes the relation of such pro-
gram to any program, activity, research, or development set
forth by the applicant in an application, if any, submitted
pursuant to section 110 of this Act; and
l'(D) that the application contains satisfactory assurances that
(i) the institution will recommend to the Administrator for the
award of scholarships under this section, for study in such pro-
gram, only persons who have demonstrated to the satisfaction of
the institution a serious intent, upon completing the program, to
enter an occupation involving the operation and maintenance of
treatment works, and (ii) the institution will make reasonable
continuing efforts to encourage recipients of scholarships under
this section, enrolled in such program, to enter occupations involv-
ing the operation and maintenance of treatment works upon
completing the program.
"(4) (A) The Administrator shall pay to persons awarded scholar-
ships under this section such stipends (including such allowances for
subsistence, and other expenses for such persons and their dependents)
as he may determine to be consistent with prevailing practices under
comparable federally supported programs.
[p. 16]
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WATER—STATUTES AND LEGISLATIVE HISTORY 17
''(B) The Administrator shall (in addition to the stipends paid to
persons under paragraph (1)) pay to the institution of higher educa-
tion at which such person is pursuing his course of study such amount
as he may determine to be consistent with prevailing practices under
comparable federally supported programs.
•'(5) A person awarded a scholarship under the provisions of this
section shall continue to receive the payments provided in this section
only during such periods as the Administrator finds that he is main-
taining satisfactory proficiency and devoting full time to study or
research in the field in which such scholarship was awarded in an
institution of higher education, and is not engaging in gainful
employment other than employment approved by the Administrator
by or pursuant to regulation.
' •'((!) The Administrator shall by regulation provide that any per-
son awarded a scholarship under this section shall agree in writing
to enter and remain in an occupation involving the design, operation,
or maintenance of treatment works for such period after completion
of his course of studies as the Administrator determines appropriate.
"DEFIXITJOXS \XI> AfTIIORIZ \TIOX--
"SEC. 11-2. (a) As used in sections 100 through 112 of this Act—
"(1) The term 'institution of higher education' means an educa-
tional institution described in the first sentence of section 1201 of the
Higher Education Act of 196.") (other than an institution of any agency
of the United States) which is accredited by a nationally recognized
accrediting agency or association approved by the Administrator for
this pin-pose. For purposes of this subsection, the Administrator shall
publish a list of nationally recognized accrediting agencies or associ-
ations which lie determines to be reliable authority as to the quality
o'i training offered.
"(2) The term 'academic year' means an academic year or its equiv-
alent, as determined by the Administrator.
"(b) The Administrator shall annually report his activities under/
sections 109 through 112 of this Act. including recommendations for
needed revisions in the provisions thereof.
"(c) There are authorized to be appropriated $25.000.000 per fiscal
year for the fiscal veal's ending June 30, 1973, and June 30. 1974. to
carry out sections 109 through 112 of this Act.
" U.ASK \ VILLAGE DEMOXSTKATFOX PRO.TKCTS
"Ssr. 11:5. (a) The Administrator is authorized to enter into agree-
ments with the State of Alaska to carry out one or more projects to
demonstrate methods to provide for central community facilities for
safe water and elimination or control of pollution in those native
villages of Alaska without such facilities. Such project shall include
provisions for community safe water supply systems, toilets, bathing
and laundry facilities, sewage disposal facilities, and other similar
facilities, and educational and informational facilities and programs
relating to health and hygiene. Such demonstration projects shall be
t'or the further purpose of developing preliminary plans for provid-
ing such safe water and such elimination or control of pollution for
all native villages in such State.
"(b) In carrying out this section the Administrator shall cooperate
with the Secretary of Health, Education, and Welfare for the purpose
of utilizing such of the personnel and facilities of that Department as
may be appropriate.
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18 LEGAL COMPILATION—SUPPLEMENT I
"(c) The Administrator shall report to Congress not later than
July 1, 1973, the results of the demonstration projects authorized by
this section together with his recommendations, including any neces-
sary legislation, relating to the establishment of a statewide program.
" (d) There is authorized to be appropriated not to exceed $2,000,000
to carry out this section.
"LAKE TAHOE STUDY
"SEC. 114. (a) The Administrator, in consultation with the Tahoe
Regional Planning Agency, the Secretary of Agriculture, other Fed-
eral agencies, representatives of State and local governments, and
members of the public, shall conduct a thorough and complete study
on the adequacy of and need for extending Federal oversight and
control in order to preserve the fragile ecology of Lake Tahoe.
"(b) Such study shall include an examination of the interrelation-
ships and responsibilities of the various agencies of the Federal Gov-
ernment and State and local governments with a view to establishing
the necessity for redefinition of legal and other arrangements between
these various governments, and making specific legislative recommen-
dations to Congress. Such study shall consider the effect of various
actions in terms of their environmental impact on the Tahoe Basin,
treated an an ecosystem.
"(c) The Administrator shall report on such study to Congress not
later than one year after the date of enactment of this subsection.
" (d) There is authorized to be appropriated to carry out this section
not to exceed $500,000.
"Sec. 115. The Administrator is directed to identify the location of
in-place pollutants with emphasis on toxic pollutants in harbors and
navigable waterways and is authorized, acting through the Secretary
of the Army, to make contracts for the removal and appropriate dis-
posal of such materials from critical port and harbor areas. There is
authorized to be appropriated $15,000,000 to carry out the provisions
of this section, which sum shall be available until expended.
"TITLE II—GRANTS FOR CONSTRUCTION OF
TREATMENT WORKS
"PURPOSE
"SEC. 201. (a) It is the purpose of this title to require and to assist
the development and implementation of waste treatment management
plans and practices which will achieve the goals of this Act.
" (b) Waste treatment management plans and practices shall provide
for the application of the best practicable waste treatment technology
before any discharge into receiving waters, including reclaiming and
recycling of water, and confined disposal of pollutants so they will not
migrate to cause water or other environmental pollution and shall pro-
vide for consideration of advanced waste treatment techniques.
" (c) To the extent practicable, waste treatment management shall be
on an area wide basis and provide control or treatment of all point and
nonpoint sources of pollution, including in place or accumulated pol-
lution sources.
"(d) The Administrator shall encourage waste treatment manage-
ment which results in the construction of revenue producing facilities
providing for—
[p. 18]
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WATER—STATUTES AND LEGISLATIVE HISTORY 19
"(1) the recycling of potential sewage pollutants through the
production of agriculture, silviculture, or aquaculture products, or
any combination thereof;
"(2) the confined and contained disposal of pollutants not
recycled;
" (3) the reclamation of wastewater; and
"(4) the ultimate disposal of sludge in a manner that will not
result in environmental hazards.
"(e) The Administrator shall encourage waste treatment manage-
ment which results in integrating facilities for sewage treatment and
recycling with facilities to treat, dispose of, or utilize other industrial
and municipal wastes, including but not limited to solid waste and
waste heat and thermal discharges. Such integrated facilities shall be
designed and operated to produce revenues in excess of capital and
operation and maintenance costs and such revenues shall be used by
the designated regional management agency to aid in financing other
environmental improvement programs.
"(f) The Administrator shall encourage waste treatment manage-
ment which combines 'open space' and recreational considerations with
such management.
"(g)(l) The, Administrator is authorized to make grants to any
State, municipality, or Intel-municipal or interstate agency for the
construction of publicly owned treatment works.
"(2) The Administrator shall not make grants from funds author-
ized for any fiscal year beginning after June 30, 1974, to any State,
municipality, or Intel-municipal or interstate agency for the erection,
building, acquisition, alteration, remodeling, improvement, or exten-
sion of treatment works unless the grant applicant has satisfactorily
demonstrated to the Administrator that—
"(A) alternative waste management techniques have been stud-
ied and evaluated and the works proposed for grant assistance
will provide for the application of the best practicable waste
treatment technology over the life of the works consistent with the
purposes of this title; and
"(B) as appropriate, the works proposed for grant assistance
will take into accoimt and allow to the extent practicable the
application of technology at a later date which will provide for
the reclaiming or recycling of water or otherwise eliminate the
discharge of pollutants.
"(3) The Administrator shall not approve any grant after July 1,
1973, for treatment works under this section unless the applicant shows
to the satisfaction of the Administrator that each sewer collection
system discharging into such treatment works is not subject to excessive,
infiltration.
•'(4) The Administrator is authorized to make grants to applicants
for treatment works grants under this section for such sewer system
evaluation studies as may be necessary to carry out the requirements
of paragraph (3) of this subsection. Such grants shall be made in
accordance with rules and regulations promulgated bv the Adminis-
trator. Initial rules and regulations shall be promulgated under this
paragraph not later than 120 days after the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972.
''Sr.c. 202. (a) The amount of any grant for treatment works made
under this Act from funds authorized for any fiscal vear beginning
after June 30, 1971, shall be 75 per centum of the cost of construction
[p. 19]
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20 LEGAL COMPILATION—SUPPLEMENT I
thereof (as approved by the Administrator). Any grant (other than
for reimbursement) made prior to the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972 from any funds
authorized for any fiscal year beginning after June 30, 1971, shall,
upon the request of the applicant, be increased to the applicable per-
centage under this section.
"(b) The amount of the grant for any project approved by the
Administrator after January 1, 1971, and before July 1,1971, for the
construction of treatment works, the actual erection, building or
acquisition of which was not commenced prior to July 1, 1971, snail,
upon the request of the applicant, be increased to the applicable per-
centage under subsection (a) of this section for grants for treatment
works from funds for fiscal years beginning after June 30, 1971, with
respect to the cost of such actual erection, building, or acquisition. Such
increased amount shall be paid from any funds allocated to (he State
in which the treatment works is located without regard to the fiscal
year for which such funds were authorized. Such increased amount
shall be paid for such project only if—
" (1) a sewage collection system that is a part of the same total
waste treatment system as the treatment works for which such
grant was approved is under construction or is to be constructed
for use in conjunction with such treatment works, and if the cost
of such sewage collection system exceeds the cost of such treatment
works, and
"'(2) the State water pollution control agency or other appro-
priate State authority certifies that the quantity of available
ground water will be insufficient, inadequate, or unsuitable for
public use, including the ecological preservation and recreational
use of surface water bodies, unless effluents from publicly-owned
treatment works after adequate treatment are returned to the
ground water consistent with acceptable technological standards.
•'PI.AXS, SPECIFICATIONS, ESTIMATES, AXD PAYMENTS
"SEC. 203. (a) Each applicant for a grant shall submit to the
Administrator for his approval, plans, specifications, and estimates for
each proposed project for the construction of treatment works for
which a grant is applied for under section 201(g)(l) from funds
allotted to the State under section 205 and which otherwise meets the
requirements of this Act. The Administrator shall act upon such plans,
specifications, and estimates as soon as practicable after the same have
been submitted, and his approval of any such plans, specifications, and
estimates shall be deemed a contractual obligation of the United
States for the payment of its proportional contribution to such project.
"(b) The Administrator shall, from time to time as the work pro-
gresses, make payments to the recipient of a grant for costs of con-
struction incurred on. a project. These payments shall at no time exceed
the Federal share of the cost of construction incurred to the date of the
voucher covering such payment plus the Federal share of the value of
the materials which have been stockpiled in the vicinity of such con-
struction in conformity to plans and specifications for the project.
"(c) After completion of a project and approval of the final voucher
by the Administrator, he shall pay out of the appropriate sums the
unpaid balance of the Federal share payable on account of such
project.
''LIMITATIONS AND CONDITIONS
"SEC. 204. (a) Before approving grants for any project for any
treatment works under section 201(g)(l) the Administrator shall
determine—
[p. 20]
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WATER—STATUTES AND LEGISLATIVE HISTORY 21
"(1) tliat such works are included in any applicable areawide
ivaste treatment management plan developed under section 208 of
this Act;
"(2) that such works are in comformity with any applicable
State plan under section 303 (e) of this Act;
"(3) that such works have been certified by the appropriate
State water pollution control agency as entitled to priority over
such other works in the State in accordance with any applicable
State plan under section 303 (e) of this Act;
" (4) that the applicant proposing to construct such works agrees
to pay the non-Federal costs of such works and has made ade-
quate provisions satisfactory to the Administrator for assuring
proper and efficient operation, including the employment of
trained management and operations personnel, and the mainte-
nance of such works in accordance with a plan of operation
approved by the State water pollution control agency or, as
appropriate, the interstate agency, after construction thereof;
"(5) that the size and capacity of such works relate directly
to the needs to be served by such works, including sufficient reserve
capacity. The amount of reserve capacity provided shall be
approved by the Administrator on the basis of a comparison of the
cost of constructing such reserves as a part of the works to be
funded and the anticipated cost of providing expanded capacity
at a date when such capacity will be required;
" (6) that no specification for bids in connection with such works
shall be written in such a manner as to contain proprietary, exclu-
sionary, or discriminatory requirements other than those based
upon performance, unless such requirements are necessary to test
or demonstrate a specific thing or to provide for necessary inter-
changeability of parts and equipment, or at least two brand names
or trade names of comparable quality or utility are listed and are
followed by the words 'or equal'.
''(b)(l) Xot withstanding any other provision of this title, the
Administrator shall not approve any grant for any treatment works
under section 201 (g) (1) after March 1. 1973, unless he shall first have
determined that the applicant (A) has adopted or will adopt a system
of charges to assure that each recipient of waste treatment services
within the applicant's jurisdiction, as determined bv the Adminis-
trator, will pay its proportionate share of the costs of operation and
maintenance (including replacement) of any waste treatment services
provided by the applicant; (B) has made provision for the payment
to such applicant by the industrial users of the treatment works, of
that portion of the cost of construction of such treatment works (as
determined by the Administrator) which is allocable to the treatment
of such industrial wastes to the extent attributable to the Federal
share of the cost of construction; and (C) has legal, institutional,
managerial, and financial capability to insure adequate construction,
operation, and maintenance of treatment works throughout the appli-
cant's jurisdiction, as determined bv the Administrator.
"(2) The Administrator shall, within one hundred and eighty days
after the date of enactment of the Federal Water Pollution Control
Act Amendments of 1072, and after'consultation with appropriate
State, interstate, municipal, and Intel-municipal agencies, issue guide-
lines applicable to payment of waste treatment costs by industrial
and nonindustrial recipients of waste treatment services which shall
establish (A) classes of users of such services, including categories of
industrial users; (B) criteria against which to determine the adequacy
of charges imposed on classes and categories of users reflecting all
[p. 21]
525-310 O - 73 - 3
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22 LEGAL COMPILATION—SUPPLEMENT I
factors that influence the cost of waste treatment, including strength,
volume, and delivery flow rate characteristics of waste; and (C) model
systems and rates of user charges typical of various treatment works
serving municipal-industrial communities.
"(3) The grantee shall retain an amount of the revenues derived
from the payment of costs by industrial users of waste treatment
services, to the extent costs are attributable to the Federal share of
eligible project costs provided pursuant to this title as determined by
the Administrator, equal to (A) the amount of the non-Federal cost
of such project paid by the grantee plus (B) the amount, determined
in accordance with regulations promulgated by the Administrator,
necessary for future expansion and reconstruction of the project,.
except that such retained amount shall not exceed 50 per centum of
such revenues from such project. All revenues from such project not
retained by the grantee shall be deposited by the Administrator in the
Treasury as miscellaneous receipts. That portion of the revenues
retained by the grantee attributable to clause (B) of the first sentence
of this paragraph, together with any interest thereon shall be used
solely for the purposes of future expansion and reconstruction of
the project.
"(4) Approval by the Administrator of a grant to an interstate
agency established by interstate compact for any treatment works shall
satisfy any other requirement that such works be authorized by Act
of Congress.
•'ALLOTMENT
"SEC. 205. (a) Sums authorized to be appropriated pursuant to sec-
tion 207 for each fiscal year beginning after June 30, 1972, shall be
allotted by the Administrator not later than the January 1st imme-
diately preceding the beginning of the fiscal year for which authorized,
except that the allotment for fiscal year 1973 shall be made not later
than 30 days after the date of enactment of the Federal Water Pollu-
tion Control Act Amendments of 1972. Such sums shall be allotted
among the States by the Administrator in accordance with regulations
promulgated by him, in the ratio that the estimated cost of construct-
ing all needed publicly owned treatment works in each State bears to
the estimated cost of construction of all needed publicly owned treat-
ment works in all of the States. For the fiscal years ending June 30,
1973, and June 30, 1974, such ratio shall be determined on the basis
of table III of House Public Works Committee Print No. 92-50. Allot-
ments for fiscal years which begin after the fiscal year ending June 30,
1974, shall be made only in accordance with a revised cost estimate
made and submitted to Congress in accordance with section 516(b) of
this Act and only after such revised cost estimate shall have been
approved by law specifically enacted hereafter.
"(b)(l) Any sums allotted to a State under subsection (a) shall
be available for obligation under section 203 on and after the date
of such allotment. Such sums shall continue available for obligation
in such State for a period of one year after the close of the fiscal year
for which such sums are authorized. Any amounts so allotted which
are not obligated by the, end of such one-year period shall be imme-
diately reallotted by the Administrator, in accordance with regulations
promulgated by him, generally on the basis of the ratio used in making
the last allotment of sums under this section. Such reallotted sums '
shall be added to the last allotments made to the States. Any sum
made available to a State by reallotment under this subsection shall
be in addition to any funds otherwise allotted to such State for grants
under this title during any fiscal year.
[p. 22]
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WATER—STATUTES AND LEGISLATIVE HISTORY 23
"(2) Any sums which have been obligated under section 203 and
which are released by the payment of the final voucher for the project
shall be immediately credited to the State to which such sums were
last allotted. Such released sums shall be added to the amounts last
allotted to such State and shall be immediately available for obligation
in the same manner and to the same extent as such last allotment.
''REIMBURSEMENT AND ADVANCED CONSTRUCTION
•'SKC. 206. (a) Any publicly owned treatment works in a State on
which construction was initiated after June 30, 1966, but before July
1, 1972, which was approved by the appropriate State, water pollu-
tion control agency and which the Administrator finds meets the
requirements of section 8 of this Act in effect at the time of the initia-
tion of construction shall be reimbursed a total amount equal to the
difference between the amount of Federal financial assistance, if any,
received under such section 8 for such project and 50 per centum of
the cost of such project, or 55 per centum of the project cost where the
Administrator also determines that such treatment works was con-
structed in conformity with a comprehensive metropolitan treatment
plan as described in feet ion 8(f) of the Federal Water Pollution
Control Act as in effect immediately prior to the date of enactment of
the Federal Water Pollution Control Act Amendments of 1972.
Nothing in this subsection shall result in any such works receiving
Federal grants from all sources in excess of 80 per centum of the cost.
of such project.
''(b) Any publicly owned treatment works constructe"! with or
eligible for Federal financial assistance under this Act in a State
between June 30, 1956, and June 30, 1966, which was approved by the
State water pollution control agency and which the Administrator
finds meets the requirements of section 8 of this Act prior to the date
of enactment of the Federal AVater Pollution Control Act Amendments
of 1972 but which was constructed without assistance under such
section 8 or which received such assistance in an amount less than 30
per centum of the cost of such project shall qualify for payments and
reimbursement of State or local funds used for such project from sums
allocated to such State under this section in an amount which shall
not exceed the difference between the amount of such assistance, if
any, received for such project and 30 per centum of the cost of such
project.
"(c) Xo publicly owned treatment works shall receive any payment
or reimbursement under subsection (a) or (b) of this section unless an
application for such assistance is filed with the Administrator within
the one year period which begins on the date of enactment of the Fed-
eral Water Pollution Control Act Amendments of 1972. Any appli-
cation filed within such one year period may be revised from time to
time, as may be necessary.
"(d) The Administrator shall allocate to each qualified project
under subsection (a) of this section each fiscal year for which funds are
appropriated under subsection (e) of this section an amount which
bears the same ratio to the unpaid balance of the reimbursement due
such project as the total of such funds for such year bears to the total
unpaid balance of reimbursement due all such approved projects on
the date of enactment of such appropriation. The Administrator shall
allocate to each qualified project under subsection (b) of this section
each fiscal year for which funds are appropriated under subsection (e)
of this section an amount which bears the same ratio to the unpaid
balance of the reimbursement due such project as the total of such funds
[p. 23]
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24 LEGAL COMPILATION—SUPPLEMENT I
for such year bears to the total unpaid balance of reimbursement
due all such approved projects on the date of enactment of such
appropriation.
''(e) There is authorized to be appropriated to carry out subsection
(a) of this section not to exceed $2,000,000.000 and, to carry out sub-
section (b) of this section, not to exceed $750,000,000. The authoriza-
tions contained in this subsection shall be the sole source of funds for
reimbursements authorized by this section.
"(f) (1) In any case where all funds allotted to a State under this
title have been obligated under section 203 of this Act, and there is
construction of any treatment works project without the aid of Federal
funds and in accordance with all procedures and all requirements
applicable to treatment works projects, except those procedures and
requirements which limit construction of projects to those constructed
with the aid of previously allotted Federal funds, the Administrator,
upon his approval of an application made under this subsection there-
for, is authorized to pay the Federal share of the cost of construction
of such project when additional funds are allotted to the State under
this title if prior to the construction of the project the Administrator
approves plans, specifications, and estimates therefor in the same
manner as other treatment works projects. The Administrator may
not approve an application under this subsection unless an authoriza-
tion is in effect for the future fiscal year for which the apnlication
requests payment, which authorization will insure such paj _.-,.iu with-
out exceeding the State's expected allotment from such authorization.
"(2) In determining the allotment for any fiscal year under this
title, any treatment works project constructed in accordance with this
section and without the aid of Federal funds shall not be considered
completed until an application under the provisions of this subsection
with respect to such project has been approved by the Administrator,
or the availability of funds from which this project is eligible for
reimbursement has expired, whichever first occurs.
•'AUTHORIZATION
"SEC. 207. There is authorized to be appropriated to carry out this
title, other than sections 208 and 209, for the fiscal year ending June 30,
1973, not to exceed $5.000,000,000, for the fiscal year ending June 30,
1974, not to exceed $6,000,000,000, and for the fiscal year ending-
June 30,1975, not to exceed $7,000,000,000.
"AREAWIDE WASTE TREATMENT MANAGEMENT
''SEC. 208. (a) For the purpose of encouraging and facilitating the
development and implementation of areawide waste treatment man-
agement plans—
"(1) The Administrator, within ninety days after the date of
enactment of this Act and after consultation with appropriate
Federal, State, and local authorities, shall by regulation publish
guidelines for the identification of those areas which, as a result
of urban-industrial concentrations or other factors, have sub-
stantial water quality control problems.
"(2) The Governor of each State, within sixty days after
publication of the guidelines issued pursuant to paragraph (1)
of this subsection, shall identify each area within the State which.
as a result of urban-industrial concentrations or other factors, has
substantial water quality control problems. Xot later than one
hundred and twenty days following such identification and after
consultation with appropriate elected and other officials of local
[p. 24]
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WATER—STATUTES AND LEGISLATIVE HISTORY 25
governments having jurisdiction in such ureas, the Governor shall
designate (A) the boundaries of each such area, and (B) a single
representative organization, including elected officials from local
governments or their designees, capable of developing effective
area\vide waste treatment management plans for such area. The
Governor may in the same manner at any later time identify any
additional area (or modify an existing area) for which he deter-
mines area wide waste treatment management to be appropriate.
designate the boundaries of such area, and designate an organiza-
tion capable of developing effective areawide waste treatment
management plans for such area.
''(3) With respect to any area which, pursuant to the guide-
lines published under paragraph (1) of this subsection, is located
in two or more States, the Governors of the respective States shall
consult and cooperate in carrying out the provisions of para-
graph (2), with a view toward designating the boundaries of the
interstate area having common water quality control problems
and for which areawide waste treatment management plans would
be most effective, and toward designating, within one hundred
and eighty days after publication of guidelines issued pursuant
to paragraph (1) of this subsection, of a single representative
organization capable of developing effective areawide waste treat-
ment management plans for such area.
'' (-i) If a Governor does not act, either by designating or deter-
mining not to make a designation under paragraph (2) of this
subsection, within the time required by such paragraph, or if, in
the case of an interstate area, the Governors of the States involved
do not designate a planning organization within the time required
by paragraph (3) of this subsection, the chief elected officials of
local governments within an area may by agreement designate
(A) the boundaries for such an area, and (B) a single representa-
tive organization including elected officials from such local gov-
ernments, or their designees, capable of developing an areawide
waste treatment management plan for such area.
"(5) Existing regional agencies may be designated under para-
graphs (2), (3), and (4) of this subsection.
"(6) The State shall act as a planning agency for all portions
of such State which are not designated under paragraphs (2),
(3), or (-1) of this subsection.
"(T) Designations under this subsection shall be Mibject to the
approval of the Administrator.
-i(b) (1) Xot later than one year after the date of designation of any
organization under subsection (a) of this section such organization
shall have in operation a continuing areawide waste treatment man-
agement planning process consistent with section 201 of this Act. Plans
prepared in accordance with this process shall contain alternatives for
waste treatment management, and be applicable to all wastes gen-
erated within the area involved. The initial plan prepared in accord-
ance with such process shall be certified by the Governor and submitted
to the Administrator not later than two years after the planning proc-
e-s is in operation.
"(2) Any plan prepared under such process shall include, but not be
limited to—
"(A) the identification of treatment works necessary to meet
file anticipated municipal and industrial waste treatment needs of
the area over a twenty-year period, annually updated (includiiiir
an analysis of alternative waste treatment systems), includinir
any requirements for the acquisition of land for treatment pur-
[p. 25]
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26 LEGAL COMPILATION—SUPPLEMENT I
poses; the necessary waste water collection and urban storm water
runoff systems; and a program to provide the necessary financial
arrangements for the development of such treatment works;
"(B) the establishment of construction priorities for such treat-
ment works and time schedules for the initiation and completion
of all treatment works;
-'(C) the establishment of a regulatory program to—
"(i) implement the waste treatment management require-
ments of section 201 (c),
"(ii) regulate the location, modification, and construction
of any facilities within such area which may result in any
discharge in such area, and
"(iii) assure that any industrial or commercial wastes dis-
charged into any treatment works in such area meet applicable
pretreatment requirements;
" (D) the identification of those agencies necessary to construct,
operate, and maintain all facilities required by the plan and
otherwise to carry out the plan;
"(E) the identification of the measures necessary to carry out
the plan (including financing), the period of time necessary to
carry out the plan, the costs of carrying out the plan within such
time, and the economic, social, and environmental impact of
carrying out the plan within such time;
"(F) a process to (i) identify, if appropriate, agriculturally
and silviculturally related nonpoint sources of pollution, includ-
ing runoff from manure disposal areas, and from land used for
livestock and crop production, and (ii) set forth procedures
and methods (including land use requirements) to control to the
extent feasible such sources;
U(G) a process to (i) identify, if appropriate, mine-related
sources of pollution including new, current, and abandoned sur-
face and underground mine runoff, and (ii) set forth procedures
and methods (including land use requirements) to control to the
extent feasible such sources;
"(H) a process to (i) identify construction activity related
sources of pollution, and (ii) set forth procedures and methods
(including land use requirements) to control to the extent feasible
such sources;
"(I) a process to (i) identify, if appropriate, salt water intru-
sion into rivers, lak^s, and estuaries resulting from reduction of
fresh water flow from any cause, including irrigation, obstruction,
ground water extraction, and diversion, and (ii) set forth pro-
cedures and methods to control such intrusion to the extent feasi-
ble where such procedures and methods are otherwise a part of
the waste treatment management plan ;
"(J) a process to control the disposition of all residual waste
generated in such area which could affect water quality; and
"(K) a process to control the disposal of pollutants on land or
in subsurface excavations within such area to protect ground and
surface water quality.
" (3) Areawide waste treatment management plans shall be certified
annually by the Governor or his designee (or Governors or their des-
ignees, where more than one State is involved) as being consistent
with applicable basin plans and such areawide waste treatment man-
agement plans shall be submitted to the Administrator for his
approval.
"(4) Whenever the Governor of any State determines (and notifies
the Administrator) that consistency with a statewide regulatory pro-
gram under section 303 so requires, the requirements of clauses (F)
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WATER—STATUTES AND LEGISLATIVE HISTORY 27
through (K) of paragraph (-2) of this subsection shall be developed
and submitted by the Governor to the Administrator for application
to all regions within such State.
" (c) (1) The Governor of each State, in consultation with the plan-
ning agency designated under subsection (a) of this section, at the
time a plan is submitted to the Administrator, shall designate one or
more waste treatment management agencies (which may be an exist-
ing or newly created local, regional, or State agency or political sub-
division) for each area designated under subsection (a) of this section
and submit such designations to the Administrator.
"(2) The Administrator shall accept any such designation, unless,
within 120 days of such designation, he finds that the designated man-
agement agency (or agencies) does not have adequate authority—
"(A) to carry out appropriate portions of an areawide waste
treatment management plan developed under subsection (b) of
this section;
U(B) to manage effectively waste treatment works and related
facilities serving such area in conformance with any plan re-
quired by subsection (b) of this section;
"(C) directly or by contract, to design and construct new
works, and to operate and maintain new and existing works as
required by any plan developed pursuant to subsection (b) of
this section;
"(D) to accept and utilize grants, or other funds from any
source, for waste treatment management purposes;
"(E) to raise revenues, including the assessment of waste treat-
ment charges;
" (F) to incur short- and long-term indebtedness;
"(G) to assure in implementation of an areawide waste treat-
ment management plan that each participating community pays
its proportionate share of treatment costs;
"(H) to refuse to receive any wastes from any municipality or
subdivision thereof, which does not comply with any provisions
of an approved plan under this section applicable to such area:
and
" (I) to accept for treatment industrial wastes.
"(d) After a waste treatment management agency having the
authority required by subsection (c) has been designated under such
subsection for an area and a plan for such area has been approved
under subsection (b) of this section, the Administrator shall not make
any grant for construction of a publicly owned treatment works under
section 201 (g) (1) within such area except to such designated agency
and for works in conformity with such plan.
"(e) Xo permit under section 402 of this Act shall be issued for any
point source which is in conflict with a plan approved pursuant to sub-
section (b) of this section.
"(f) (1) The, Administrator shall make grants to any agency desig-
nated under subsection (a) of this section for payment of the reason-
able costs of developing and operating a continuing areawide waste-
treatment management planning process under subsection (b) of this
section.
"(2) The amount granted to any agency under paragraph (1)
of this subsection shall be 100 per centum of the costs of developing
and operating a continuing areawide waste treatment management
planning process under subsection (b) of this section for each of the
fiscal years ending on June 30,1973, June 30, 1974, and June 30,1975,
and shall not exceed 75 per centum of such costs in each succeeding
fiscal year.
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28 LEGAL COMPILATION—SUPPLEMENT I
"(3) Each applicant for a grant under this subsection shall submit
to the Administrator for his approval each proposal for which a grant
is applied for under this subsection. The Administrator shall act
upon such proposal as soon as practicable after it has been submitted.
and his approval of that proposal shall be deemed a contractual
obligation of the United States for the payment of its contribu-
tion to such proposal. There is authorizd to be appropriated to carry
out this subsection not to exceed $50,000,000 for the fiscal year ending-
June 30, 1973, not to exceed $100.000,000 for the fiscal year ending
June 30, 1974, and not to exceed $150,000,000 for the fiscal year
ending June 30,1975.
" (g) The Administrator is authorized, upon request of the Governor
or the designated planning agency, and without reimbursement, to con-
sult with, and provide technical assistance to, any agency designated
under subsection (a) of this section in the development of areawide
waste treatment management plans under subsection (b) of this
section.
"(h) (1) The Secretary of the Army, acting through the Chief of
Engineers, in cooperation with the Administrator is authorized and
directed, upon request of the Governor or the designated planning
organization, to consult with, and provide technical assistance to. any
agency designed under subsection (a) of this section in developing
nnd operating a continuing areawide waste treatment management
planning process under subsection (b) of this section.
"(2) There is authorized to be appropriated to the Secretary of the
Army, to carry out this subsection, not to exceed $50.000.000 per fiscal
year for the fiscal years ending June 30, 1973, and June 30, 1974.
"BASIN PLANNING
•'SEC. 209 (a) The President, acting through the Water Resources
Council, shall, as soon as practicable, prepare a Level B plan under the
Water Resources Planning Act for all basins in the United States. All
such plans shall be completed not later than January 1, 1980, except
that priority in the preparation of such plans shall be given to those
basins and portions thereof which are within those areas designated
under paragraphs (2). (3), and (4) of subsection (a) of section 208
of this Act.
"(b) The President, acting through the Water Resources Council.
shall report annually to Congress on progress being made in carrying
out this section. The first such report shall be submitted not later than
January 31,1973.
'' (c) There is authorized to be appropriated to carry out this section
not to exceed $200,000,000.
•'SEC. 210. The Administrator shall annually make a survey to deter-
mine the efficiency of the operation and maintenance of treatment works
constructed with grants made under this Act. as compared to the effi-
ciency planned at the time the grant was made. The results of such
annual survey shall be included in the report required under section
.'ilfi(a) of this Act.
•'SEWAGE COLLECTION SYSTEMS
"Sue. 211. No grant shall be made for a sewage collection system
under this title unless such grant (1) is for replacement or major reha-
bilitation of an existing collection system and is necessary to the total
integrity and performance of the waste treatment works servicing such
[p. 28]
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WATER—STATUTES AND LEGISLATIVE HISTORY 29
community, or (2) is for a new collection system in an existing com-
munity with sufficient existing or planned capacity adequately to treat
such collected sewage and is consistent with section 201 of this Act.
"DEFINITIONS
"SEC. 212. As used in this title—
"(1) The term 'construction' means any one or more of the follow-
ing: preliminary planning to determine the feasibility of treatment
works, engineering, architectural, legal, fiscal, or economic investiga-
tions or studies, surveys, designs, plans, working drawings, specifica-
tions, procedures, or other necessary actions, erection, building,
acquisition, alteration, remodeling, improvement, or extension of
treatment works, or the inspection or supervision of any of the
foregoing items.
''(2) (A) The term 'treatment works' means any devices and systems
used in the storage, treatment, recycling, and reclamation of municipal
sewage or industrial wastes of a liquid nature to implement section
201 of this Act, or necessary to recycle or reuse water at the most eco-
nomical cost over the estimated life of the works, including intercept-
ing sewers, outfall sewers, sewage collection systems, pumping, power,
and other equipment, and their appurtenances; extensions, improve-
ments, remodeling, additions, and alterations thereof; elements essen-
tial to provide a reliable recj'cled supply such as standby treatment
units and clear well facilities; and any works, including site acquisition
of the land that will be an integral part of the treatment process or is
used for ultimate disposal of residues resulting from such treatment.
"(B) In addition to the definition contained in subparagraph (A)
of this paragraph, 'treatment works' means any other method or sys-
tem for preventing, abating, reducing, storing, treating, separating,
or disposing of municipal waste, including storm water runoff, or
industrial waste, including waste in combined storm water and sani-
tary sewer systems. Any application for construction grants which
includes wholly or in part such methods or systems shall, in accordance
with guidelines published by the Administrator pursuant to subpara-
graph (C) of this paragraph, contain adequate data and analysis
demonstrating such proposal to be. over the life of such works, the
most cost efficient alternative to comply with sections 301 or 302 of
this Act, or the requirements of section 201 of this Act.
"(C) For the purposes of subparagraph (B) of this paragraph, the
Administrator shall, within one hundred and eighty days after the
date of enactment of this title, publish and thereafter revise no less
often than annually, guidelines for the evaluation of methods,
including cost-effective analysis, described in subparagraph (B) of
this paragraph.
"(3) The term 'replacement' as used in this title means those
expenditures for obtaining and installing equipment, accessories, or
appurtenances during the useful life of the treatment works necessary
to maintain the capacity and performance for which such works are
designed and constructed.
"TITLE III—STANDARDS AXD ENFORCEMENT
"EFFLUENT LIMITATIONS
"SEC. 301. (a) Except as in compliance with this section and sec-
tions 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any
pollutant by any person shall be unlawful.
"(b) In order to carry out the objective of this Act there shall be
achieved—
[p. 29]
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30 LEGAL COMPILATION—SUPPLEMENT I
"(1)(A) not later than July 1, 1977, effluent limitations for
point sources, other than publicly owned treatment works, (i)
which shall require the application of the best practicable control
technology currently available as defined by the Administrator
pursuant to section 304(b) of this Act, or (ii) in the case of a dis-
charge into a publicly owned treatment works which meets the
requirements of subparagraph (B) of this paragraph, which shall
require compliance with any applicable pretreatment requirements
and any requirements under section 307 of this Act; and
"(B) for publicly owned treatment works in existence on
July 1, 1977, or approved pursuant to section 203 of this Act prior
to June 30,1974 (for which construction must be completed within
four years of approval), effluent limitations based upon secondary
treatment as defined by the Administrator pursuant to section
304(d)(l) of this Act; or,
" (C) not later than July 1,1977, any more stringent limitation,
including those necessary to meet water quality standards, treat-
ment standards, or schedules of compliance, established pursuant
to any State law or regulations (under authority preserved by sec-
tion 510) or any other Federal law or regulation, or required to
implement any applicable water quality standard established pur-
suant to this Act.
"(2) (A) not later than July 1, 1983, .effluent limitations for
categories and classes of point sources, other than publicly owned
treatment works, which (i) shall require application of the best
available technology economically achievable for such category
or class, which will result in reasonable further progress toward
the national goal of eliminating the discharge .of all pollutants,
as determined in accordance with regulations issued by the Admin-
istrator pursuant to section 304(b) (2) of this Act, which such
effluent limitations shall require the elimination of discharges of
all pollutants if the Administrator finds, on the basis of informa-
tion available to him (including information developed pursuant
to section 315), that such elimination is technologically and eco-
nomically achievable for a category or class of point sources as
determined in accordance with regulations issued by the Adminis-
trator pursuant to section 304 (b) (2) of this Act, or (ii) in the case
of the introduction of a pollutant into a publicly owned treatment
works which meets the requirements of subparagraph (B) of this
paragraph, shall require compliance with any applicable pretreat-
ment requirements and any other requirement under section 307
of this Act; and
"(B) not later than Julv 1, 1983, compliance by all publicly
owned treatment works with the requirements set forth in sec-
tion 201 (g) (2) (A) of this Act.
" (c) The Administrator may modify the requirements of subsection
(b) (2) (A) of this section with respect to anv point source for which
a permit application is filed after July 1, 1977, upon a showing by the
owner or operator of such point source satisfactory to the Administra-
tor that such modified requirements (1) will represent the maximum
use of technology within the economic capability of the owner or
operator; and (2) will result in reasonable further progress toward
the elimination of the discharge of pollutants.
"(d) Any effluent limitation required by paragraph (2) of subsec-
tion (b) of this section shall be reviewed at least every five years and,
if appropriate, revised pursuant to the procedure established under
such paragraph.
"(e) Effluent limitations established pursuant to this section or sec-
tion 302 of this Act shall be applied to all point sources of discharge
of pollutants in accordance with the provisions of this Act.
[p. 30]
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WATER—STATUTES AND LEGISLATIVE HISTORY 31
"(f) Notwithstanding any other provisions of this Act it shall be
unlawful to discharge any radiological, chemical, or biological war-
fare agent or high-level radioactive waste into the navigable waters.
"WATER QUALITY RKLATED EFFLUENT LIMITATIONS
"SEC. 3<)sJ. (a) Whenever, in the judgment of the Administrator, dis-
charges of pollutants from a point source or group of point sources,
with the application of effluent limitations required under section 301
(b) (2) of this Act, would interfere with the attainment or mainte-
nance of that water quality in a specific portion of the navigable waters
which shall assure protection of public water supplies, agricultural
and industrial uses, and the protection and propagation of a balanced
population of shellfish, fish and wildlife, and allow recreational activi-
ties in and on the water, effluent limitations (including alternative
effluent control strategies) for such point source or sources shall be
established which can reasonably be expected to contribute to the
attainment or maintenance of such water quality.
"(b) (1) Prior to establishment of any effluent limitation pursuant
to subsection (a) of this section, the Administrator shall issue notice
of intent to establish such limitation and within ninety days of such
notice hold a public hearing to determine the relationship of the eco-
nomic and social costs of achieving any such limitation or limitations,
including any economic or social dislocation in the affected community
or communities, to the social and economic benefits to be obtained
(including the attainment of the objective of this Act) and to deter-
mine whether or not such effluent limitations can be implemented with
available technology or other alternative control strategies.
"(2) If a person affected by such limitation demonstrates at such
hearing that (whether or not such technology or other alternative con-
trol strategies are available) there is no reasonable relationship
between the economic and social costs and the benefits to be obtained
(including attainment of the objective of this Act), such limitation
shall not become effective and the Administrator shall adjust such
limitation as it applies to such person.
"(c) Tho establishment of effluent limitations under this section shall
not oi>erate to delay the application of any effluent limitation estab-
lished under section 301 of this Act.
"WATEU QUALITY STANDARDS AND IMPLEMENTATION PLANS
"Si--,c. .'JO.'}. (a) (1) In order to carry out the purpose of this Act, any
water quality standard applicable to interstate waters which was
adopted by any State and submitted to. and approved by, or is awaiting
approval by, the Administrator pursuant to this Act as in effect imme-
diately prior to the date of enactment of the Federal Water Pollu-
tv>n Control Act Amendments of 1972. shall remain in effect unless the
Administrator determined that such standard is not consistent with
the applicable requirements of this Act as in effect immediately prior
to the date of enactment of the Federal Water Pollution Control Act
Amendments of 1972. If the Administrator makes such a determina-
tion he shall, within three months after the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, notify
the State and specify the changes needed to meet such requirements.
If Mich changes are not adopted by the State within ninety days after
the date of such notification, the Administrator shall promulgate such
changes in accordance with subsection (b) of this section.
[p. 31]
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32 LEGAL COMPILATION—SUPPLEMENT I
"(2) Any State which, before the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972, has adopted, pur-
suant to its own law, water quality standards applicable to mtrastate
waters shall submit such standards to the Administrator within thirty
days after the date of enactment of the Federal Water Pollution Con-
trol Act Amendments of 1972. Each such standard shall remain in
effect, in the ^ame manner and to the same extent as any other water
quality standard established under this Act unless the Administrator
determines that such standard is inconsistent with the applicable
requirements of this Act as in effect immediately prior to the date of
enactment of the Federal Water Pollution Control Act Amendments of
1972. If the Administrator makes such a determination he shall not
later than the one hundred and twentieth day after the date of sub-
mission of such standards, notify the State and specify the changes
needed to meet such requirements. If such changes are not adopted by
the State within ninety days after such notification, the Administrator
shall promulgate such changes in accordance with subsection (b) oi
this section.
"(3) (A) Any State which prior to the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972 has not
adopted pursuant to its own laws water quality standards applicable
to intrastate waters shall, not later than one hundred and eighty days
after the date of enactment of the Federal Water Pollution Control
Act Amendments of 1972, adopt and submit such standards to the
Administrator.
"(B) If the Administrator determines that any such standards are
consistent with the applicable requirements of this Act as in effect
immediately prior to the date of enactment of the Federal Water Pol-
lution Control Act Amendments of 1972, he shall approve such
standards.
"(C) If the Administrator determines that any such standards are
not consistent with the applicable requirements of this Act as in effect
immediately prior to the date of enactment of the, Federal Water Pollu-
tion Control Act Amendments of 1972, he shall, not later than the
ninetieth day after the date of submission of such standards, notify the
State and specify the changes to meet such requirements. If "such
changes are not adopted by the State within ninety days after the date
of notification, the Administrator shall promulgate such standards
pursuant to subsection (b) of this section.
"(b)(l) The Administrator shall promptly prepare and publish
proposed regulations setting forth water quality standards for a State
in accordance with the applicable requirements of this Act as in effect
immediately prior to the date of enactment of the Federal Water
Pollution Control Act Amendments of 1972, if—
"(A) the State fails to submit water quality standards within
the times prescribed in subsection (a) of this section,
"(P>) a water quality standard submitted by such State under
subsection (a) of this section is determined by the Administrator
not to be consistent with the applicable requirements of subsection
(a) of this sect ion.
"(2) The Administrator shall promulgate any water quality stand-
ard published in a proposed regulation not later than one hundred and
ninety days after the date he publishes any such proposed standard,
unless prior to such promulgation, such State has adopted a water
quality standard which the Administrator determines to be in accord-
ance with subsection (a) of this section.
"(c) (1) The Governor of a State or the State water pollution con-
trol agency of such State shall from time to time (but at least once
each three year period beginning with the date of enactment of the
[p. 32]
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WATER—STATUTES AND LEGISLATIVE HISTORY 33
Federal Water Pollution Control Act Amendments of 19T2) hold
public hearings for the purpose of reviewing applicable water quality
standards and, as appropriate, modifying and adopting standards.
Results of such review shall be made available to the Administrator.
"(2) Whenever the State revises or adopts a new standard, such
revised or new standard shall be submitted to the Administrator. Such
revised or new water quality standard shall consist of the designated
uses of the navigable waters involved and the water quality criteria
for such waters based upon such uses. Such standards shall be such as
to protect the public health or welfare, enhance the quality of water
and serve the purposes of this Act. Such standards shall be established
taking into consideration their use and value for public water supplies,
propagation of fish and wildlife, recreational purposes, and agricul-
tural, industrial, and other purposes, and also taking into consid-
eration their use and value for navigation.
"(3) If the Administrator, within sixty days after the date of sub-
mission of the revised or new standard, determines that such standard
meets the requirements of this Act, such standard shall thereafter be
the water quality standard for the applicable waters of that State.
If the Administrator determines that any such revised or new stand-
ard is not consistent with the applicable requirements of this Act, he
shall not later than the ninetieth day after the date of submission of
such standard notify the State and specify the changes to meet such
requirements. If such changes are not adopted by the State within
ninety days after the date of notification, the Administrator shall
promulgate such standard pursuant to paragraph (4) of this sub-
section.
''(4) The Administrator shall promptly prepare and publish pro-
posed regulations setting forth a revised or new water quality stand-
ard for the navigable waters involved—
"(A) if a revised or new water quality standard submitted by
such State under paragraph (3) of this subsection for such waters
is determined by the Administrator not to be consistent with the
applicable requirements of this Act, or
•'(B) in any case where the Administrator determines that a
revised or new standard is necessary to meet the requirements of
this Act.
The Administrator shall promulgate any revised or new standard
under this paragraph not later than ninety days after lie publishes
such proposed standards, unless prior to such promulgation, such State
has adopted a revised or new water quality standard which the Admin-
istrator determines to be in accordance with this Act.
"(d) (1) (A) Each State shall identify those waters within its bound-
aries for which the effluent limitations required by section 301 (b) (1)
(A) and section 301 (b) (1) (B) are not stringent enough to implement
any water quality standard applicable to such waters. The State shall
establish a priority ranking for such waters, taking into account the
severity of the pollution and the uses to be made of such waters.
''(B) Each State shall identify those waters or parts thereof within
its boundaries for which controls on thermal discharges under section
301 are not stringent enough to assure protection and propagation of a
balanced indigenous population of shellfish, fish, and wildlife.
"(C) Each State shall establish for the waters identified in para-
graph (1) (A) of this subsection, and in accordance with the priority
ranking, the total maximum daily load, for those pollutants which the
Administrator identifies under section 304(a) (2) as suitable for such
calculation. Such load shall be established at a level necessary to
implement the applicable water quality standards -with seasonal varia-
tions and a margin of safety which takes into account any lark of
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34 LEGAL COMPILATION—SUPPLEMENT I
knowledge concerning the relationship between effluent limitations and
water quality.
"(D) Each State shall estimate for the waters identified in para-
graph (1)(B) of this subsection the total maximum daily thermal
load required to assure protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife. Such estimates
shall take into account the normal water temperatures, flow rates,
seasonal variations, existing sources of heat input, and the dissipative
capacity of the identified waters or parts thereof. Such estimates shall
include a calculation of the maximum heat input that can be made
into each such part and shall include a margin of safety which takes
into account any lack of knowledge concerning the development of
thermal water quality criteria for such protection and propagation
in the identified waters or parts thereof.
"(2) Each State shall submit to the Administrator from time to
time, with the first such submission not later than one hundred and
eighty days after the date of publication of the first identification of
pollutants under section 304(a) (2) (D). for his approval the waters
identified and the loads established under paragraphs (1)(A). (1)
(B). (1) (C). and (1) (D) of this subsection. The'Administrator shall
either approve or disapprove such identification and load not later
than thirty days after the date of submission. If the Administrator
approves such identification and load, such State shall incorporate
them into its current plan under subsection (e) of this section. If the
Administrator disapproves such identification and load, he shall not
later than thirty days after the date of such disapproval identify such
waters in such State and establish such loads for such waters as he
determines necessary to implement the water quality standards
applicable to such waters and upon such identification and establish-
ment the State shall incorporate them into its current plan under
subsection (e) of this section.
"'(3) For the specific purpose of developing information, each
State shall identify all waters within its boundaries which it has not
identified under paragraph (1) (A) and (1) (B) of this subsection and
estimate for such waters the total maximum daily load with seasonal
variations and margins of safety, for those pollutants which the
Administrator identifies under section 304(a) (2) as suitable for such
calculation and for thermal discharges, at a level that would assure
protection and propagation of a balanced indigenous population of
fish, shellfish and wildlife.
"(e) (1) Each State shall have a continuing planning process
approved under paragraph (2) of this subsection which is consistent
with this Act.
''(2) Each State shall submit not later than 120 days after the date
of the enactment of the Water Pollution Control Amendments of
1972 to the Administrator for his approval a proposed continuing
planning process which is consistent with this Act. Xot later than
thirty clays after the date of submission of such a process the Admin-
istrator shall either approve or disapprove such process. The Adminis-
trator shall from time to time review each State's approved planning
process for the purpose of insuring that such planning process if, at
all times consistent with this Act. The Administrator shall not approve
any State permit program under title IV of this Act for any State
which does not have an approved continuing planning process under
this section.
"(3) The Administrator shall approve any continuing planning
process submitted to him under this section which will result in plans
for all navigable waters within such State, which include, but are not
limited to. the following:
[p. 34]
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WATER—STATUTES AND LEGISLATIVE HISTORY 35
"(A) effluent limitations and schedules of compliance at least
as stringent as those required by section 301(b)(l). section 301
(b)(2). section 306, and section 30T. and at least as stringent
as any requirements contained in any applicable water quality
standard in effect under authority of this section;
''(13) the incorporation of all elements of any applicable area-
wide waste management plans under section 208, and applicable
basin plans under section 209 of this Act;
"(C) total maximum daily load for pollutants in accordance
with subsection (d) of this section;
" (D) procedures for revision;
"(E) adequate authority for intergovernmental cooperation;
"(F) adequate implementation, including schedules of com-
pliance, for revised or new water quality standards, under sub-
section (c) of this section;
"(G) controls over the disposition of all residual waste from
any water treatment processing;
"(H) an inventory and ranking, in order of priority, of needs
for construction of waste treatment works required to meet the
applicable requirements of sections 301 and 302.
" (f) Xothing in this section shall be construed to affect any effluent
limitation, or schedule of compliance required by any State to be
implemented prior to the dates set forth in sections 301 (D) (1) and 301
(b)(2) nor to preclude any State from requiring compliance with
any effluent limitation or schedule of compliance at dates earlier than
such dates.
"(g) Water quality standards relating to heat shall be consistent
with the i-equirements of section 316 of this Act.
" (h) For the purposes of this Act the term 'water quality standards'
includes thermal water quality standards.
"INFORMATION AND GUIDELINES
"SEC. 304. (a) (1) The Administrator, after consultation with appro-
priate Federal and State agencies and other interested persons, shall
develop and publish, within one year after the date of enactment
of this title (and from time to time thereafter revise) criteria for
water quality accurately reflecting the latest scientific knowledge (A)
on the kind and extent of all identifiable effects on health and welfare
including, but not limited to, plankton, fish, shellfish, wildlife, plant
life,shorelines,beaches,esthetics.and recreation which may be expected
from the presence of pollutants in any body of water, including
ground water; (B) on the concentration and dispersal of pollutants,
or their 'byproducts, through biological, physical, and chemical proc-
esses; and (C) on the effects of pollutants on biological community
diversity, productivity, and stability, including information on the
factors affecting rates of eutrophication and rates of organic and inor-
ganic sedimentation for varying types of receiving waters.
"(2) The Administrator, after consultation with appropriate Fed-
eral and State agencies and other interested persons, shall develop and
publish, within one year after the date of enactment of this title (and
from time to time thereafter revise) information (A) on the factors
necessary to restore and maintain the chemical, physical, and bio-
logical integrity of all navigable waters, ground waters, waters of
the contiguous zone, and the oceans; (B) on the factors necessary for
I he protection and propagation of shellfish, fish, and wildlife for classes
and categories of receiving waters and to allow recreational activities
in and on the water: and (C) on the measurement and classification of
water quality; and (D) for the purpose of section 303, on and the
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36 LEGAL COMPILATION—SUPPLEMENT I
identification of pollutants suitable for maximum daily load measure-
ment correlated with the achievement of water quality objectives.
''(3) Such criteria and information and revisions thereof shall be
issued to the States and shall be published in the Federal Register and
otherwise made available to the public.
"(b) For the pin-pose of adopting- or revising effluent limitations
under this Act the Administrator shall, after consultation with appro-
priate Federal and State agencies and other interested persons, publish
within one year of enactment of this title, regulations, providing guide-
lines for effluent limitations, and, at least annually thereafter, revise, if
appropriate, such regulations. Such regu'ations shall—
''(!)(A) identify, in terms of amounts of constituents and
chemical, physical, and biological characteristics of pollutants, the
degree of effluent reduction attainable through the application of
the best practicable control technology currently available for
classes and categories of point sources (other than publicly owned
treatment works) ; and
" (B) specify f actors to be taken into account in determining the
control measures and practices to be applicable to point sources
(other than publicly owned treatment works) within such cate-
gories or classes. Factors relating to the assessment of best
practicable control technology currently available to comply with
subsection (b) (1) of section 301 of this Act shall include consider-
ation of the total cost of application of technology in relation to
the effluent reduction benefits to be achieved from such applica-
tion, 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;
'"(2) (A) identify, in terms of amounts of constituents and
chemical, physical, and biological characteristics of pollutants,
the degree of effluent reduction attainable through the application
of the best control measures and practices achievable including
treatment techniques, process and procedure innovations, operat-
ing methods, and other alternatives for classes and categories of
point sources (other than publicly owned treatment works) ; and
''(B) specify factors to be taken into account in determining
the best measures and practices available to comply with subsec-
tion (b) (2) of section 301 of this Act to be applicable to any
point source (other than publicly owned treatment works) within
such categories or classes. Factors relating to the assessment of
best available technology shall 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, the cost of achieving such effluent
reduction, non-water quality environmental impact (including
energy requirements), and such other factors as the Administrator
deems appropriate; and
"(3) identify control measures and practices available to elimi-
nate the discharge of pollutants from categories and classes of
point sources, taking into account the cost of achieving such elimi-
nation of the discharge of pollutants.
''(c) The Administrator, after consultation, with appropriate Fed-
eral and State agencies and other interested persons, shall issue to the
States and appropriate water pollution control agencies within 270
days after enactment of this title (and from time to time thereafter)
information on the processes, procedures, or operating methods which
[p. 36]
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WATER—STATUTES AND LEGISLATIVE HISTORY 37
result in the elimination or reduction of the discharge of pollutants
to implement standards of performance under section 306 of this Act.
Such information shall include technical and other data, including
costs, as are available on alternative methods of elimination or reduc-
tion of the discharge of pollutants. Such information, and revisions
thereof, shall be published in the Federal Register and otherwise shall
be made available to the public.
"(d)(l) The Administrator, after consultation with appropriate
Federal and State agencies and other- interested persons, shall publish
within sixty days after enactment of this title (and from time to time
thereafter) information, in terms of amounts of constituents and chem-
ical, physical, and biological characteristics of pollutants, on the degree
of effluent reduction attainable through the application of secondary
treatment.
"(•2) The Administrator, after consultation with appropriate Fed-
eral and State agencies and other interested persons, shall publish
within nine months after the date of enactment of this title (and from
time to time thereafter) information on alternative waste, treatment
management techniques and systems available to implement section
•201 of this Act.
"(e) The Administrator, after consultation with appropriate Fed-
eral and State agencies and other interested persons, shall issue to
appropriate Federal agencies, the States, water pollution control
agencies, and agencies designated under section 208 of this Act, within
one year after the effective, date of this subsection (and from time to
time thereafter) information including (1) guidelines for identifying
and evaluating the nature and extent of nonpoint sources of pollutants,
and ('2) processes, procedures, and methods to control pollution result-
ing from—
"(A) agricultural and silvicultural activities, including runoff
from fields and crop and forest lands;
"(B) mining activities, including runoff and siltation from
new, currently operating, and abandoned surface and under-
ground mines;
'' (C) all construction activity, including runoff from the facili-
ties resulting from such construction;
"(D) the disposal of pollutants in wells or in subsurface
excavations:
"(E) salt water intrusion resulting from reductions of fresh
wafer' ilow from any cause, including extraction of ground water,
irrigation, obstruction, and diversion; and
" (F) changes in the movement, flow, or' circulation of any navi-
gable waters or ground waters, including changes caused bv the
construction of dams, levees, channels, causeways, or flow diver-
sion facilities.
Such information and revisions thereof shall be published in the Fed-
eral Register and otherwise made available to the public.
"(f)(l) For the purpose of assisting States in carrying out pro-
grams under section 402 of this Act, the Administrator shall publish,
within one hundred and twenty days after the date of enactment of this
title, and review at leas t annually thereafter and. if appropriate, revise
guidelines for pretreatment of pollutants which he determines are not
susceptible to treatment by publicly owned treatment works. Guide-
lines under this subsection shall be established to control and prevent
rhc discharge into the navigable waters, the contiguous zone, or- the
ocean (either directly or- through publicly owned treatment works) of
any pollutant which interferes with, passes through, or- otherwise is
incompatible with such works.
[p. 37]
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38 LEGAL COMPILATION—SUPPLEMENT I
" (2) When publishing guidelines under this subsection, the Admin-
istrator shall designate the category or categories of treatment works
to which the guidelines shall apply.
"' (g) The Administrator shall, within one hundred and eighty days
from the date of enactment of this title, promulgate guidelines estab-
lishing test procedures for the analysis of pollutants that shall include
the factors which must be provided in any certification pursuant to
section 401 of this Act or permit application pursuant to section 402
of this Act.
"(h) The. Administrator shall (1) within sixty days after the enact-
ment of this title promulgate guidelines for the purpose of establish-
ing uniform application forms and other minimum requirements for
the acquisition of information from owners and operators of point-
sources of discharge subject to any State program under section 402 of
this Act, and (2) within sixty days from the date of enactment of
this title promulgate guidelines establishing the minimum procedural
and other elements of any State program under section 402 of this Act
which shall include:
"(A) monitoring requirements;
"(B) reporting requirements (including procedures to make
information available to the public) ;
''(C) enforcement provisions: and
"(D) funding, pei-sonnel qualifications, and manpower require-
ments (including a requirement that no board or body which
approves permit applications or portions thereof shall include,
as a member, any person who receives, or has during the previous
two years received, a significant portion of his income directly
or indirectly from permit holders or applicants for a permit).
"(i) The Administrator shall, within 270 days after the effective
date of this subsection (and from time to time thereafter), issue such
information on methods, procedures, and processes as may be appro-
priate to restore, and enhance the quality of the Nation's publicly
owned f resli water lakes.
''(])(!) The Administrator shall, within six months from the date
of enactment of this title, enter into agreements with the Secretary of
Agriculture, the Secretary of the Army, and the Secretary of the
Interior to provide for the maximum utilization of the appropriate
programs authorized under other Federal law to be carried out by
such Secretaries for the purpose of achieving and maintaining water
quality through appropriate implementation of plans approved under
section 208 of this Act.
•'(2) The Administrator, pursuant to any agreement under para-
graph (1) of this subsection is authorized to transfer to the Secretary
of Agriculture, the, Secretary of the. Army, or the Secretary of the
Interior any funds appropriated under paragraph (3) of this subsec-
tion to supplement any funds otherwise appropriated to carry out
appropriate programs authorized to be carried out by such Secretaries.
"(3) There is authorized to be appropriated to carry out the pro-
visions of this subsection, $100,000,000 per fiscal year for the fiscal year
ending June 30, 1973, and the fiscal year ending June 30, 1974.
"WATER QUAMTY INVENTORY
"SEC. 305. (a) The Administrator, in cooperation with the States
and with the assistance of appropriate Federal agencies, shall prepare
a report, to be submitted to the Congress on or before January 1, 1974,
which shall—
"(1) describe the, specific quality, during 1973, with appro-
priate supplemental descriptions as shall be required to take into
[p. 38]
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WATER—STATUTES AND LEGISLATIVE HISTORY 39
account seasonal, tidal, and other variations, of all navigable
watere and the waters of the contiguous zone ;
"(2) include an inventory of all point sources of discharge
(based on a qualitative and quantitative analysis of discharges) of
pollutants, into all navigable waters and the watere of the con-
tiguous zone; and
"(3) identify specifically those navigable waters, the quality
of which—
"(A) is adequate to provide for the protection and propa-
gation of a balanced population of shellfish, fish, and wildlife
and allow recreational activities in and on the water;
"(B) can reasonably be expected to attain such level by
1977 or 1983; and
"(C) can reasonably be expected to attain such level by
any later date.
"(b) (1) "Each State shall prepare and submit to the Administrator
by January 1, 1975, and shall bring up to date each year thereafter, a
report which shall include—
" (A) a description of the water quality of all navigable waters
in such State during the preceding year, with appropriate sup-
plemental descriptions as shall be required to take into account
seasonal, tidal, and other variations, correlated with the quality of
water required by the objective of this Act (as identified by the
Administrator pursuant to criteria published under section 304 (a)
of this Act) and the water quality described in subparagraph (B)
of this paragraph;
"(B) an analysis of the extent to which all navigable waters
of such State provide for the protection and propagation of a
balanced population of shellfish, fish, and wildlife, and allow
recreational activities in and on the water;
"(C) an analysis of the extent to which the elimination of the
discharge of pollutants and a level of water quality which pro-
vides for the protection and propagation of a balanced popu-
lation of shellfish, fish, and wildlife and allows recreational
activities in and on the water, have been or will be achieved by the
requirements of this Act, together with recommendations as to
additional action necessary to achieve such objectives and for
what waters such additional action is necessary;
"(D) an estimate of (i) the environmental impact, (ii) the
economic and social costs necessary to achieve the objective of
this Act in such State, (iii) the economic and social benefits of
such achievement, and (iv) an estimate of the date of such
achievement; and
'"(E) a description of the nature and extent of nonpoint sources
of pollutants, and recommendations as to the programs which
must be undertaken to control each category of such sources,
including an estimate of the costs of implementing such programs.
"(2) The Administrator shall transmit such State reports, together
with an analysis thereof, to Congress on or before October 1, 1975,
and annually thereafter.
"NATIONAL STANDARDS OF PERFORMANCE
•'SEC. 306. (a) For purposes of this section :
"(1) The term 'standard of performance' means a standard for tho
control of the discharge of pollutants which reflects the greatest
degree of effluent reduction which the Administrator determines to be
achievable through application of the best available demonstrated
control technology, processes, operating methods, or other alterna-
[p. 39]
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40 LEGAL COMPILATION—SUPPLEMENT I
tires, including, where practicable, a standard permitting no dis-
charge of pollutants.
"(2) The term 'new source' means any source, the construction of
which is commenced after the publication of proposed regulations
prescribing a standard of performance under this section which will
be applicable to such source, if such standard is thereafter promul-
gated in accordance with this section.
"(3) The term 'source' means any building, structure, facility, or
installation from which there is or may be the discharge of pollutants.
"(4) The term 'owner or operator' means any person who owns,
leases, operates, controls, or supervises a source.
"(5) The term 'construction' means any placement, assembly, or
installation of facilities or equipment (including contractual obliga-
tions to purchase such facilities or equipment) at the premises where
such equipment will be used, including preparation work at such
p remises.
''(b) (1) (A) The Administrator shall, within ninety days after the
date of enactment of this title publish (and from time to time there-
after shall revise) a list of categories of sources, which shall, at the
minimum, include:
"pulp and paper mills;
''paper-board, builders paper and board mills;
''meat product and rendering processing;
"dairy product processing;
''grain mills;
"canned and preserved fruits and vegetables processing;
"canned and preserved seafood processing:
"sugar processing;
''textile mills;
"cement manufacturing;
"feedlots;
"electroplating;
"organic chemicals manufacturing;
"inorganic chemicals manufacturing:
"plastic and synthetic materials manufacturing:
"soap and detergent manufacturing;
"fertilizer manufacturing;
''petroleum refining;
"iron and steel manufacturing;
"nonferrous metals manufacturing;
•'phosphate manufacturing;
"steam electric powerplants:
"ferroalloy manufacturing;
"leather tanning and finishing;
"glass and asbestos manufacturing;
"rubber processing; and
"timber products processing.
"(TC) As soon as practicable, but in no case more than one year,
after a category of sources is included in a list under subparagraph
(A) of this paragraph, the Administrator shall propose and publish
regulations establishing Federal standards of performance for new
sources within such category. The Administrator shall afford inter-
ested persons an opportunity for written comment on such proposed
regulations. After considering such comments, he shall promulgate,
within one rmndred and twenty days after publication of such pro-
posed regulations, such standards with such adjustments as he deems
appropriate. The Administrator shall, from time to time, as technol-
[p. 40]
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WATER — STATUTES AND LEGISLATIVE HISTORY 41
ogy and alternatives change, revise such standards following the
procedure required by this subsection for promulgation of such
standards. Standards of performance, or revisions thereof, shall
become effective upon promulgation. In establishing or revising
Federal standards of performance for new sources under this section,
the Administrator shall take into consideration the cost of achieving
such effluent reduction, and any non-water quality environmental
impact and energy requirements.
"(2) The Administrator may distinguish among classes, types, and
sizes within categories of new sources for the purpose of establish-
ing such standards and shall consider the type of process employed
(including whether batch or continuous).
"(3) The provisions of this section shall apply to any new source
owned or operated by the United States.
a(c) Each State may develop and submit to the Administrator a
procedure under State law for applying and enforcing standards of
performance for new sources located in such State. If the Adminis-
trator finds that the procedure and the law of any State require the
application and enforcement of standards of performance to at least
the same extent as required by this section, such State is authorized
to apply and enforce such standards of performance (except with
respect to new sources owned or operated by the United States).
"(d) Notwithstanding any other provision of this Act, any point
source the construction of which is commenced after the date of enact-
ment of the Federal Water Pollution Control Act Amendments
of ]97ii and which is so constructed as to meet all applicable standards
of performance shall not be subject to any more stringent standard
of performance during a ten-year period beginning on the date of
completion of such construction or during the period of depreciation
or amortization of such facility for the purposes of section 167 or 169
(or both) of the Internal Revenue Code of 1954, whichever period
ends first.
"(e) After the effective date of standards of performance promul-
gated under this section, it shall be unlawful for any owner or operator
of any new source to operate such source in violation of any standard
of performance, applicable to such source.
"TOXIC AND I'RETRK \TMENT EFFLUENT STANDARDS
"SEC. 307. (a) (1) The Administrator shall, within ninety days after
the date of enactment of this title, publish (and from time to time
thereafter revise) a list which includes any toxic pollutant or combina-
tion of such pollutants for which an effluent standard (which may
include a prohibition of the discharge of such pollutants or combina-
tion of such pollutants) will be established under this section. The
Administrator in publishing such list shall take into account the toxic-
ity of the pollutant, its persistence, degradability, the usual or potential
presence of the, affected organisms in any waters, the importance of
the affected organisms and the nature and extent of the effect of the
toxic pollutant on such organisms.
''(2) Within one hundred and eighty days after the date of pub-
lication of any list, or revision thereof, containing toxic pollutants or
combination of pollutants under paragraph (1) of this subsection, the,
Administrator, in accordance with section 553 of title 5 of the United
States Code, shall publish a proposed effluent standard (or a prohibi-
tion) for such pollutant or combination of pollutants which shall take
into account the toxicity of the. pollutant, its persistence, degradability,
LP-
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42 LEGAL COMPILATION—SUPPLEMENT I
th(> uniial or potential presence of the affected organisms in any
waters, the importance of the affected organisms and the nature and
extent of the effect of the toxic pollutant on such organisms, and he
shall publish :i notice for a public hearing on such proposed standard
to be held within thirty days. As soon as possible sifter such hearing,
but not later than six months after publication of the proposed eilluent
standard (or prohibition), unless the Administrator finds, on the
record, that a modification of such proposed standard (or prohibition)
is justified billed upon a preponderance of evidence adduced at such
hearings, such standard (or prohibition) shall be promulgated.
"(;!) If after a public hearing the Administrator finds that a modi-
fication of such proposed standard (or prohibition) is justified, a
revised eilluent standard (or prohibition) for such pollutant or com-
bination of pollutants shall be promulgated immediately. Such stand-
ard (or prohibition) shall be reviewed and, if appropriate, revised at
least every three years.
"(4) Any effluent standard promulgated under this section shall be
at that level which the Administrator determines provides an ample
margin of safety.
"(5) When proposing or promulgating any effluent standard (or
prohibition) under this section, the Administrator shall designate the
category or categories of sources to which the effluent standard (or
prohibition) shall apply. Any disposal of dredged material may be
included in such a category of sources after consultation with the
Secretary of the Army.
u(6) Any effluent standard (or prohibition) established pursuant to
this section shall take effect on such date or dates as specified in the
order promulgating such standard, but in no case more than one year
from the date of such promulgation.
"(7) Prior to publishing any regulations pursuant to this section
the, Administrator shall, to the maximum extent practicable within
the time provided, consult with appropriate advisory committees,
States, independent, experts, and Federal departments and agencies.
"(b)(l) The Administrator shall, within one hundred and eighty
days after the date of enactment of this title and from time to time
thereafter, publish proposed regulations establishing pretreatment
standards for introduction of pollutants into treatment works (as
defined in section 212 of this Act) which are publicly owned for those
pollutants which are determined not to be susceptible to treatment by
such treatment works or which would interfere with the operation of
such treatment works. Xot later than ninety days after such publica-
tion, and after opportunity for public hearing, the Administrator shall
promulgate such pretreatment standards. Pretreatment standards
under this subsection shall specify a time for compliance not to exceed
three years from the date of promulgation and shall be established to
prevent the discharge of any pollutant through treatment works (as
defined in section 212 of this Act) which are publicly owned, which
pollutant interferes with, passes through, or otherwise is incompatible
with such works.
"(2) The Administrator shall, from time to time, as control tech-
nology, processes, operating methods, or other alternatives change,
revise such standards following the procedure established by this sub-
section for promulgation of such standards.
"(3) When proposing or promulgating any pretreatment standard
under this section, the. Administrator shall designate the category or
categories of sources to which such standard shall apply.
"(4) Nothing in this subsection shall affect any pretreatment
requirement established by any State or local law not in conflict with
any pretreatment standard established under this subsection.
[p. 42]
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WATER—STATUTES AND LEGISLATIVE HISTORY 43
"(c) In order to insure that any source introducing pollutants into a
publicly owned treatment works, which source would be a new source
subject to section 1506 if it were to discharge pollutants, will not cause a
violation of the effluent limitations established for any such treatment
works, the Administrator shall promulgate pretreatment standards for
the category of such sources simultaneously with the promulgation of
standards of performance under section 306 for the equivalent category
of new sources. Such pretreatment standards shall prevent the dis-
charge of any pollutant into such treatment works, which pollutant
may interfere with, pass through, or otherwise be incompatible with
such works.
"(d) After the effective date of any effluent standard or prohibition
or pretreatment standard promulgated under this section, it shall be
unlawful for any owner or operator of any source to operate any source
in violation of any such effluent standard or prohibition or pretreat-
ment standard.
''INSPECTIONS, MONITORING AND ENTRY
"SEC. 308. (a) Whenever required to carry out the objective of this
Act, including but not limited to (1) developing or assisting in the
development of any effluent limitation, or other limitation, prohi-
bition, or effluent standard, pretreatment standard, or standard of
performance under this Act; (2) determining whether any person is
in violation of any such effluent limitation, or other limitation, pro-
hibition or effluent standard, pretreatment standard, or standard of
performance; (3) any requirement established under this section; or
(4) carrying out sections 305, 311, 402, and 504 of this Act—
''(A) the Administrator shall require the owner or operator
of any point source to (i) establish and maintain such records,
(ii) make such reports, (iii) install, use, and maintain such
monitoring equipment or methods (including where appropriate,
biological monitoring methods), (iv) sample such effluents (in
accordance with such methods, at such locations, at such inter-
vals, and in such manner as the Administrator shall prescribe),
and (v) provide such other information as he may reasonably
require; and
''(Ii) the Administrator or his authorized representative, upon
presentation of his rredentials-^-
"(i) shall have a right of entry to, upon, or through any
premises in which an effluent source is located or in which
any records required to be maintained under clause (A) of
this subsection are located, and
•'(ii) may at reasonable times have access to and copy
any records, inspect any monitoring equipment or method
required under clause (A), and sample any effluents which the
owner or operator of such source is required to sample under
such clause.
"(b) Any records, reports, or information obtained under this sec-
tion (1) shall, in the case of effluent data, be related to any applicable
effluent limitations, toxic, pretreatment, or new source performance
standards, and (2) shall be available to the public, except that upon
a showing satisfactory to the Administrator by any person that rec-
ords, reports, or information, or particular part thereof (other than
effluent data), to which the Administrator has access under this sec-
tion, if made public would divulge methods or processes entitled to
protection as trade secrets of such person, the Administrator shall
consider such record, report, or information, or particular portion
thereof confidential in accordance with the purposes of section 1905
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44 LEGAL COMPILATION—SUPPLEMENT I
of title 18 of the United States Code, except that such record, report.
or information may be disclosed to other officers, employees, or author-
ized representatives of the United States concerned with carrying
out this Act or when relevant in any proceeding; under this Act.
"(c) Each State may develop and submit to the Administrator pro-
cedures under State law for inspection, monitoring, and entry with
respect to point sources located in such State. If the Administrator
finds that the procedures and the law of any State relating to inspec-
tion, monitoring, and entry are applicable to at least the same extent
as those required by this section, such State is authorized to apply
and enforce its procedures for inspection, monitoring, and entry with
respect to point sources located in such State (except with respect to
point sources owned or operated by the United States).
"FEDERAL ENFORCEMENT
•'SEC. 309. (a) (1) Whenever, on the basis of any information avail-
able to him, the Administrator finds that any person is in violation
of any condition or limitation which implements section 301, 302, 306,
307, or 308 of this Act in a permit issued by a State under an approved
permit program under section 402 of this Act, he shall proceed under
his authority in paragraph (3) of this subsection or he shall notify
the person in alleged violation and such State of such finding. If
beyond the thirtieth day after the Administrator's notification the
State has not commenced appropriate enforcement action, the Adminis-
trator shall issue an order requiring such person to comply with such
condition or limitation or shall bring a civil action in accordance with
stibsection (b) of this section.
"(2) Whenever, on the basis of information available to him, the
Administrator finds that violations of permit conditions or limitations
as set forth in paragraph (1) of this subsection are so widespread that
such violations appear to result from a failure of the State to enforce
such permit conditions or limitations effectively, he shall so notify the
State. If the Administrator finds such failure extends beyond the
thirtieth day after such notice, he shall give public notice of such find-
ing. During the period beginning with such public notice and ending
when such State satisfies the Administrator that it will enforce such
conditions and limitations (hereafter referred to in this section as the
period of 'federally assumed enforcement'), the Administrator shall
enforce any permit condition or limitation with respect to any person—
"(A) by issuing an order to comply with such condition or
limitation, or
"(B) by bringing a civil action under subsection (b) of this
section.
"(3) Whenever on the basis of any information available to him
the Administrator finds that any person is in violation of section 301,
302, 306, 307, or 308 of this Act, or is in violation of any permit con-
dition or limitation implementing anv of such sections in a permit,
issued under section 402 of this Act by him or by a State, he shall issue
an order requiring such person to comply with such section or require-
ment, or he shall bring a civil action in accordance with subsection (b)
of this section.
"(4) A copy of any order issued under this subsection shall be, sent
immediately by the Administrator to the State, in which the violation
occurs and other affected States. Any order issued under this subsection
shall be by personal service and shall state with reasonable specificity
the nature of the violation, specify a time for compliance, not to exceed
thirty days, which the Administrator determines is reasonable, taking
into account the seriousness of the violation and anv good faith efforts
[p. 44]
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WATER—STATUTES AND LEGISLATIVE HISTORY 45
to comply with applicable requirements. In any case in which an order
under this subsection (or notice to a violator under paragraph (1) of
this subsection) is issued to a corporation, a copy of such order (or
notice) shall be, served on any appropriate corporate, officers. An order
issued under this subsection relating to a violation of section 308 of this
Act shall not take effect until the person to whom it is issued has had
an opportunity to confer with the Administrator concerning the
alleged violation.
'' (b) The Administrator is authorized to commence a civil action for
appropriate relief, including a permanent or temporary injunction, for
any violation for which he is authorized to issue a compliance order
under subsection (a) of this section. Any action under this subsection
may be brought in the district court of the United States for the dis-
trict in which the defendant is located or resides or is doing business,
and such court shall have jurisdiction to restrain such violation and to
require, compliance. Notice of the commencement of such action shall
be give,)) immediately to the appropriate State.
"(c)(l) Any person who willfully or negligently violates section
301, 302, 306, 307. or 308 of this Act, or any permit condition or limita-
tion implementing any of such sections in a permit issued under section
402 of this Act by the Administrator or by a State, shall be punished by
a fine of not, less than $2.500 nor more than $25,000 per day of violation,
or by imprisonment for not more than one year, or by both. If the con-
viction is for a violation committed after a first conviction of such per-
son under this paragraph, punishment shall be by a fine of not more
than $50,000 per day of violation, or by imprisonment for not more
than two years, or by both.
"(2) Any person who knowingly makes any false statement, rep-
resentation, or certification in any application, record, report, plan, or
other document filed or required to be maintained under this Act or
who falsifies, tampers with, or knowingly renders inaccurate anv moni-
toring devie* or method required to be maintained 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 hy both.
"(3) For the purposes of this subsection, the term 'person' shall
mean, in addition to the definition contained in section 502(5) of this
Act, anv responsible corporate officer.
"(d) Any person who violates section 301, 302, 306, 307. or 308 of
this Act. or any permit condition or limitation implementing any of
such sections in a permit issued under section 402 of this Act by the
Administrator, or by a State, and any person who violates any order
issued by the, Administrator under subsection (a) of this section, shall
be subject to a civil penalty not to exceed $10,000 per day of such
violation.
"(e) Whenever a municipality is a party to a civil action brought
by the United States under this section, the State in which such munic-
ipality is located shall be joined as a party. Such State shall be liable
for payment of any judgment, or any expenses incurred as a result of
complying with any judgment, entered against the municipality in
such action to the extent that the laws of that State prevent the munic-
ipality from raising revenues needed to comply with such judgment.
"INTERNATIONAL POLLUTION ABATEMENT
"SEC. 310. (a) Whenever the Administrator, upon receipts of
reports, surveys, or studies from any duly constituted international
agency, has reason to believe that pollution is occurring which endan-
gers the health or welfare of persons in a foreign country, and the
Secretary of State requests him to abate such pollution, he shall give
[p. 45]
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46 LEGAL COMPILATION—SUPPLEMENT I
formal notification thereof to the State water pollution control agency
of the State or States in which such discharge or discharges originate
and to the appropriate interstate agency, if any. He shall also promptly
call such a hearing, if he believes that such pollution is occurring in
sufficient quantity to warrant such action, and if such foreign country
has given the United States essentially the same rights with respect to
the prevention and control of pollution occurring in that country as is
given that country by this subsection. The Administrator, through the
Secretary of State, shall invite the foreign country which may be
adversely atfected by the pollution to attend and participate in the
hearing, and the representative of such country shall, for the purpose
of the hearing and any further proceeding resulting from such hear-
ing, have all the rights of a State water pollution control agency.
Nothing in this subsection shall be construed to modify, amend, repeal,
or otherwise affect the provisions of the 1909 Boundary Waters Treaty
between Canada and the United States or the Water Utilization
Treaty of 1944- between Mexico and the United States (59 Stat. 1219),
relative to the control and abatement of pollution in waters covered
by those treaties.
''(b) The calling of a hearing under this section shall not be con-
strued by the courts, the Administrator, or any person as limiting,
modifying, or otherwise affecting the functions and responsibilities of
the Administrator under this section to establish and enforce water
quality requirements under this Act.
''(c) The Administrator shall publish in the Federal Register a
notice of a public hearing before a hearing board of five or more
persons appointed by the Administrator. A majority of the mem-
bers of the board and the chairman who shall be designated by the
Administrator shall not be officers or employees of Federal, State,
or local governments. On the basis of the evidence presented at such
hearing, the board shall within sixty days after completion of the
hearing make findings of fact as to whether or not such pollution
is occurring and shall thereupon by decision, incorporating its find-
ings therein, make such recommendations to abate the pollution as
may be appropriate and shall transmit such decision and the record
of the hearings to the Administrator. All such decisions shall be public.
Upon receipt of such decision, the Administrator shall promptly
implement the board's decision in accordance with the provisions of
this Act.
''(d) In connection with any hearing called under this subsection,
the, board is authorized to require any person whose alleged activities
result in discharges causing or contributing to pollution to file with it
in such forms as it may prescribe, a report based on existing data,
furnishing such information as may reasonably be required as to the
character, kind, and quantity of such discharges and the use of facili-
ties or other means to prevent or reduce such discharges by the person
filing such a repoit. Such report shall be, made under oath or other-
wise, as the board may prescribe, and shall be filed with the board
within such reasonable period as it may prescribe, unless additional
time is granted bv it. Upon a showing satisfactory to the board by the
person filing sucli report that such report or portion thereof (other
than effluent data), to which the Administrator has access under this
section, if made public would divulge, trade secrets or secret processes
of such person, the, board shall consider such report or portion thereof
confidential for the purposes of section 1905 of title 18 of the United
States Code. If any person required to file any report under this para-
graph shall fail to do so within the time fixed by the board for filing
the same, and such failure shall continue for thirty days after notice
of such default, such person shall forfeit to the United States the sum
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WATER—STATUTES AND LEGISLATIVE HISTORY 47
of $1,000 for each and every day of the continuance of such failure,
which forfeiture shall be payable into the Treasury of the United
States, and shall be recoverable in a civil suit in the name of the
United States in the district court of the United States where such
person has his principal office or in any district in which he does
business. The Administrator may upon application therefor remit or
mitigate any forfeiture provided for under this subsection.
"(e) Board members, other than officers or employees of Federal,
State, or local governments, shall be for each day (including travel-
time) during which they are performing board business, entitled to
receive compensation at a rate fixed by the Administrator but not in
excess of the maximum rate of pay for grade GS-18, as provided in
the General Schedule under section 5332 of title 5 of the United States
Code, and shall, notwithstanding the limitations of sections 5703 and
5704 of title 5 of the United States Code, be fully reimbursed for
travel, subsistence, and related expenses.
"(f) When any such recommendation adopted by the Administra-
tor' involves the institution of enforcement proceedings against any
person to obtain the abatement of pollution subject to such recom-
mendation, the Administrator shall institute such proceedings if he
believes that the evidence warrants such proceedings. The district
court of the United States shall consider and determine de novo all
relevant issues, but shall receive in evidence the record of the pro-
ceedings before the conference or hearing board. The court shall have
jurisdiction to enter such judgment and orders enforcing such judg-
ment as it deems appropriate or to remand such proceedings to the
Administrator for such further action as it may direct.
"OIL AXD HAZARDOUS SOiSTANCK LIABILITY
''SEC. 311. (a) For the purpose of this section, the term—
''(1) 'oil' means oil of any kind or in any form, including, but
not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed
with wastes other than dredged spoil;
"(2) 'discharge' includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping;
''(3) 'vessel' means every description of watercraft or other
artificial contrivance used, or capable of being used, as a means
of transportation on water other than a public vessel;
"(4) 'public vessel' moans a vessel owned or bareboat-chartered
and operated by the United States, or by a State or political sub-
division thereof, or by a foreign nation, except when such vessel
is engaged in commerce;
'' (5) 'United States' means the States, the District of Columbia,
the Commonwealth of Puerto Rico, the Canal Zone, Guam, Amer-
ican Samoa, the Virgin Islands, and the Trust Territory of the
Pacific Islands;
*'(6) 'owner or operator' means (A) in the case of a vessel, any
pei'son owning, operating, or chartering by demise, such vessel,
and (B) in the case, of an onshore facility, find an offshore facil-
ity, any person owning or operating such onshore facility or
offshore facility, and (C) in the case of any abandoned offshore
facility, the person who owned or operated such facility immedi-
ately prior to such abandonment:
"(7) 'person' includes an individual, firm, corporation, associa-
tion, and a partnership;
"(8) 'remove' or 'removal' refers to removal of the oil or haz-
ardous substances from the water and shorelines or the taking of
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48 LEGAL COMPILATION—SUPPLEMENT I
such other actions as may be necessary to minimize or mitigate
damage to the public health or welfare, including, but not limited
to, fish, shellfish, wildlife, and public and private property, shore-
lines, and beaches;
"(9) 'contiguous zone' means Ihe entire zone established or to
be established by the United States under article 24 of the Con-
vention on the Territorial Sea and the Contiguous Zone;
"(10) 'onshore facility' means any facility (including, but not
limited to, motor vehicles and rolling stock) of any kind located
in, on, or under, any land within the United States other than
submerged land;
"(11) 'offshore facility' means any facility of any kind located
in, on, or under, any of the navigable waters of the United States
other than a vessel or a public vessel;
"(12) 'act of God' means an act occasioned by an unanticipated
grave natural disaster;
"(13) 'barrel' means 42 United States gallons at 60 degrees
Fahrenheit;
"(14) 'hazardous substance' means any substance designated
pursuant to subsection (b) (2) of this section.
"(b)(l) The Congress hereby declares that it is the policy of
the United States that there should be no discharges of oil or hazard-
ous substances into or upon the navigable waters of the United States,
adjoining shorelines, or into or upon the waters of the contiguous
zone.
"(2) (A) The Administrator shall develop, promulgate, and revise
as may be appropriate, regulations designating as hazardous sub-
stances, other than oil as defined in this section, such elements and
compounds which, when discharged in any quantity into or upon the
navigable waters of the United States or adjoining shorelines or the
waters of the contiguous zone, present an imminent and substantial
danger to the public health or welfare, including, but not limited to,
fish, shellfish, wildlife, shorelines, and beaches.
"(B) (i) The Administrator shall include in any designation under
subparagraph (A) of this subsection a determination whether any
such designated hazardous substance can actually be removed.
"(ii) The owner or operator of any vessel, onshore facility, or off-
shore facility from which there is discharged during the two-year
period beginning on the date of enactment of the Federal Water Pol-
lution Control Act Amendments of 1972, any hazardous substance
determined not removable under clause (i) of this subparagraph shall
be liable, subject to the defenses to liability provided under subsection
(f) of this section, as appropriate, to the United States for a civil pen-
alty per discharge established by the Administrator based on toxicity,
degradability, and dispprsal characteristics of such substance, in an
amount not to exceed $50,000, except that where the United States
can show that such discharge was a result of willful negligence or will-
ful misconduct within the privity and knowledge of the owner, such
owner or operator shall be liable to the United States for a civil pen-
alty in such amount as the Administrator shall establish, based upon the
toxicity, degradability, and dispersal characteristics of such substance.
"(iii) After the expiration of the two-year period referred to in
clause (ii) of this subparagraph, the owner or operator of any vessel,
onshore facility, or offshore facility, from which there is discharged
any hazardous substance determined not removable under clause (i)
of this subparagraph shall be liable, subject to the defenses to liability
provided in subsection (f) of this section, to the United States for
either one or the other of the following penalties, the determination of
which shall be in the discretion of the Administrator:
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WATER—STATUTES AND LEGISLATIVE HISTORY 49
"(aa) a penalty in such amount as the Administrator shall
establish, based on the toxieity. degradability. and dispersal char-
acteristics of the substance, but not less than $500 nor more than
$5.000; or
•'(bb) a penalty determined by the number of units discharged
multiplied by the amount established for such unit under clause
(iv) of this subparagraph. but such penalty shall not be more than
$5,000.000 in the case of a discharge from a vessel and $500,000
in the case of a discharge from an onshore or offshore facility.
"(iv) The Administrator shall establish by regulation, for each
hazardous substance designated under subparagraph (A) of this para-
graph, and within 180 days of the date of such designation, a unit of
measurement based upon the usual trade practice and. for the purpose
of determining the penalty under clause (iii) (bb) of this subpara-
srraph, shall establish for each such unit a fixed monetary amount
which shall be not less than $100 nor more than $1.000 per unit. He
shall establish such fixed amount based on the toxieity. degradability.
and dispersal characteristics of the substance.
"(3) The discharge of oil or hazardous substances into or upon the
navigable waters of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone in harmful quantities as
determined by the President under paragraph (4) of this subsection, is
prohibited, except (A) in the ease of such discharges of oil into the
waters of the contiguous zone, where permitted under article IV of the
International Convention for the Prevention of Pollution of the Sea
by Oil. 1954, as amended, and (B) where permitted in quantities and
at times and locations or under such circumstances or conditions as the
President may. by regulation, determine not to be harmful. Any regu-
lations issued under this subsection shall be consistent with maritime,
*afety and with marine and navigation laws and regulations and
applicable water quality standards.
"(4) The President shall by regulation, to be issued as soon as possi-
ble after the date of enactment of this paragraph, determine for the
purposes of this section, those quantities of oil and any hazardous sub-
stance the discharge of which, at such times, locations, circumstances,
and conditions, will be harmful to the public health or welfare of the
I'nited States, including, but not limited to, fish, shellfish, wildlife,
and public and private property, shorelines, and beaches except that in
the case of the discharge of oil into or upon the waters of the contig-
uous zone, only those discharges which threaten the fishery resources of
the contiguous zone or threaten to pollute or contribute to the pollution
of the territory or the territorial sea of the United States may be
determined to be harmful.
"(5) Any person in charge of a vessel or of an onshore facility or
an offshore facility shall, as soon as he has knowledge of any discharge
of oil or a hazardous substance from such vessel or facility in violation
of paragraph (3) of this subsection, immediately notify the appro-
priate agency of the I'nited States Government of such discharge.
Any such person who fails to notify immediately such agency of such
discharge shall, upon conviction, be fined not more than $10,000, or
imprisoned for not more than one year, or both. Notification received
pursuant to this paragraph or information obtained by the exploita-
tion 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.
"(ft) Any owner or operator of any vessel, onshore facility, or off-
s'mre facility from which oil or a hazardous substance is discharged in
violation of paragraph (3) of this subsection shall be assessed a civil
penalty by the Secretary of the department in which the Coast Guard
[p. 49]
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50 LEGAL COMPILATION—SUPPLEMENT I
is operating of not more than $5,000 for each offense. No penalty shall
be assessed unless the owner or operator charged shall have been given
notice and opportunity for a hearing on such charge. Each violation is
a separate offense. Any such civil penalty may be compromised by such
Secretary. In determining the amount of the penalty, or the amount
agreed upon in compromise, the appropriateness of such penalty to the
size of the business of the owner or operator charged, the effect on the
owner or operators ability to continue in business, and the, gravity of
the violation, shall be considered by such Secretary. The Secretary of
the Treasury shall withhold at the request of such Secretary the clear-
ance required by section 4197 of the Revised Statutes of the United
States, as amended (46 IT.S.C. 91), of any vessel the owner or operator
of which is subject to the foregoing penalty. Clearance may be granted
in such cases upon the filing of a bond or other surety satisfactory to
such Secretary.
"(c) (1) Whenever any oil or a hazardous substance is discharged,
into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the contiguous zone, the Presi-
dent is authorized to act to remove or arrange for the removal of such
oil or substance at any time, unless he, determines such removal will be
done properly by the owner or operator of the vessel, onshore facility,
or offshore facility from which the discharge occurs.
"(2) Within sixty days after the effective date of this section, the
President shall prepare and publish a National Contingency Plan for
removal of oil and hazardous substances, pursuant to this subsection.
Such National Contingency Plan shall provide for efficient, coordi-
nated, and effective action to minimize damage from oil and hazardous
substance discharges, including containment, dispersal, and removal of
oil and hazardous substances, and shall include, but not be limited to—
"(A) assignment of duties and responsibilities among Federal
departments and agencies in coordination with State and local
agencies, including, but not limited to, water pollution control.
conservation, and port authorities;
"(B) identification, procurement, maintenance, and storage of
equipment and supplies;
l'(C) establishment or designation of a strike force consisting
of personnel who shall be trained, prepared, and available to pro-
vide necessary services to carry out the Plan, including the estab-
lishment at major ports, to be determined by the President, of
emergency task forces of trained personnel, adequate oil and haz-
ardous substance pollution control equipment and material, and
a detailed oil and hazardous substance pollution prevention and
removal plan;
"(D) a system of surveillance and notice designed to insure
earliest possible notice of discharges of oil and hazardous sub-
stances to the, appropriate Federal agency;
''(E) establishment of a national center to provide coordination
and direction for operations in carrying out the Plan;
''(F) procedures and techniques to be employed in identifying.
containing, dispersing, and removing oil and hazardous
substances;
"(G) a schedule, prepared in cooperation with the States, iden-
tifying (i) dispersants and other chemicals, if any, that may be
used in carrying out the Plan, (ii) the waters in which such dis-
persants and chemicals may be used, and (iii) the quantities of
such dispersant or chemical which can be used safely in such
waters, which schedule shall provide in the case of any dispersant.
chemical, or waters not specifically identified in such schedule that
the President, or his delegate, may. on a cnse-by-case bnsis, iden-
[p. 50]
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WATER—STATUTES AND LEGISLATIVE HISTORY 51
tify the dispersants and other chemicals which may be used, the
waters in which they may be used, and the quantities which can
bo used safely in such waters; and
''(H) a system whereby the State, or States affected by a dis-
charge of oil or hazardous substance may act where necessary to
remove such discharge and such State or States may be reimbursed
from the fund established under subsection (k) of this section
for the reasonable costs incurred in such removal.
The, President may, from time to time, as he deems advisable revise or
otherwise amend the National Contingency Plan. After publication
of the National Contingency Plan, the removal of oil and hazardous
substances and actions to minimize damage from oil and hazardous
substance discharges shall, to the greatest extent possible, be in accord-
ance with the National Contingency Plan.
''(d) Whenever a marine disaster in or upon the navigable waters
of the United States has created a substantial threat of a pollution
hazard to the public health or welfare of the United States, including,
but not limited to, fish, shellfish, and wildlife and the public and pri-
vate shorelines and beaches of the United States, because of a dis-
charge, or an imminent discharge, of large quantities of oil, or of a
hazardous substance from a vessel the United States may (A) coordi-
nate and direct all public and private efforts directed a,t the removal
or elimination of such threat; and (B) summarily remove, and, if
necessary, destroy such vessel by whatever means are available with-
out regard to any provisions of law governing the employment of
personnel or the expenditure of appropriated funds. Any expense
incurred under this subsection shall be a cost incurred by the United
States Government for the purposes of subsection (f) in the removal
of oil or hazardous substance.
"(e) In addition to any other action taken by a State or local gov-
ernment, when the President determines there is an imminent and sub-
stantial threat to the public health or welfare of the United States,
including, but not limited to, fish, shellfish, and wildlife and public and
private property, shorelines, and beaches within the United States,
because of an actual or threatened discharge of oil or hazardous sub-
stance into or upon the navigable waters of the United States from an
onshore or offshore facility, the President may require the United
States attorney of the district in which the threat occurs to secure
such relief as may be necessary to abate such threat, and the district
courts of the United States shall have jurisdiction to grant such relief
as the public interest and the equities of the case may require.
"(f) (1) Except where an owner or operator can prove that a dis-
charge was caused solely by (A) an act of God, (B) an act of war,
(C) negligence on the part of the United States Government, or (D)
an act or omission of a third party without regard to whether any
such act or omission was or was not negligent, or any combination of
the foregoing clauses, such owner or operator of any vessel from which
oil or a hazardous substance is discharged in violation of subsection
(b) (2) of this section shall, not withstanding any other provision of
law, be liable to the United States Government for the actual costs
incurred under subsection (c) for the, removal of such oil or substance
by the United States Government in an amount not to exceed $100
per gross ton of such vessel or $14,000,000, whichever is lesser, except
that where the United States can show that such discharge was the
result of willful negligence or willful misconduct within the privity
and knowledge of the owner, such owner or operator shall be, liable
to the United States Government for the full amount of such costs.
Such costs shall constitute a maritime lien on such vessel which may
be recovered in an action in rem in the district court of the United
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52 LEGAL COMPILATION—SUPPLEMENT I
States for any district \\ithin which any vessel may be found. The
United States may also bring an action against the owner or operator
of such vessel in any court of competent jurisdiction to recover such
costs.
"(2) Except where an o\\ner or operator of an onshore facility can
prove that a discharge was causad solely hy (A) an act of God, (B)
an act of war, ((') negligence on the part of the United States Gov-
ernment, or (D) an act or omission of a third party without regard to
whether any such act or omission was or was not negligent, or any
combination of the foregoing clauses, such owner or operator of any
such facility from which oil or a hazardous substance is discharged in
violation of subsection (b)(2) of this section shall be liable to the
United States Go\ eminent for the actual costs incurred under sub-
section (c) for the removal of such oil or substance by the United
States Government in an amount not to exceed $8,000,000, except that
where the United States can show that such discharge was the result
of willful negligence or willful misconduct within the privity and
knowledge of the owner, such owner or operator shall be liable to the
United States Government for the full amount of such costs. The
United States may bring an action against the owner or operator of
such facility in any court of competent jurisdiction to recover such
costs. The Secretary is authorized, by regulation, after consultation
with the, Secretary of Commerce and the Small Business Administra-
tion, to establish reasonable and equitable classifications of those
onshore facilities having a total fixed storage capacity of 1.000 barrels
or less which he determines because of size. type, and location do not
present a substantial risk of the discharge of oil or a hazardous sub-
stance in violation of subsection (b) (-2) of this section, and apply with
respect to such classifications (littering limits of liability which may
be less than the amount contained in this paragraph.
"(3) Except where an owner or operator of an offshore facility can
prove that a discharge was caused solely by (A) an act of God, (B)
an act of war, ((') negligence on the part of the United States Gov-
ernment, or (D) an act or omission of a third party without regard to
whether any such act or omission was or was not negligent, or any
combination of the foregoing clauses, such owner or operator of any
such facility from which oil or a hazardous substance is discharged in
violation of subsection (b) (-2) of this section shall, notwithstanding
any other provision of law, be liable to the United States Government
for the actual costs incurred under subsection (c) for the removal of
such oil or substance by the United States Government in an amount
not to exceed $8,000.000. except that where the United States can show
that, such discharge, was the result of willful negligence or willful mis-
conduct within the privity and knowledge of the owner, such owner
or operator shall be liable to the United States Government for the
full amount of such costs. The United States may bring an action
against the, owner or operator of such a facility in any court of com-
petent jurisdiction to recover such costs.
"(g) In any case where an owner or operator- of a vessel, of an
onshore facility, or of an offshore facility) fi'om which oil or a hazard-
ous substance is discharged in violation of subsection (b) (2) of
this section, proves that such discharge of oil or hazardous substance
was caused solely by an act or omission of a third party, or was caused
solely by such an act or omission in combination with an act of God,
an act of war. or negligence on the part of the United States Govern-
ment, such third party shall, notwithstanding any other provision of
law, be liable to the United States Government for the actual costs
incurred under subsection (c) for removal of such oil or substance by
1he United States Government, except where such third party can
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WATER—STATUTES AND LEGISLATIVE HISTORY 53
prove that such discharge was caused solely by (A) an act of God,
(B) an act of war. (C) negligence on the part of the United States
Government, or (D) an act or omission of another party without
regard to whether such net or omission was or was not negligent, or
any combination of the foregoing clauses. If such third party was
the owner or operator of a vessel which caused the discharge of oil or
a hazardous substance in violation of subsection (b) (2) of this sec-
tion, the liability of such third party under this subsection shall not
exceed $100 per gross ton of such vessel or $14,000,000, whichever is the
lesser. In any other case the liability of such third party shall not
exceed the limitation which would have been applicable to the owner
or operator of the vessel or the onshore or offshore facility from which
the discharge actually occurred if such owner or operator were liable.
If the United States can show that the discharge of oil or a hazardous
substance in violation of subsection (b) (2) of this section was the
result of willful negligence or willful misconduct within the privity
and knowledge of such third party, such third party shall be liable
to the United States Government for the full amount of such removal
costs. The United States may bring an action against the third party in
any court of competent jurisdiction to recover such removal costs.
"(h) The liabilities established by this section shall in no way affect
any rights which (1) the owner or operator of a vessel or of an onshore
facility or an oll'shore facility may have against any third party whose
acts may in any way have caused or contributed to such discharge, or
(2) The United States Government may have against any third party
whose actions may in any way have caused or contributed to the dis-
charge of oil or hazardous substance.
"(i) (1) In any case where an owner or operator of a vessel or an
onshore facility or an offshore facility from which oil or a hazardous
substance is discharged in violation of subsection (b) (2) of this section
acts to remove such oil or substance in accordance with regulations
promulgated pursuant to this section, such owner or operator shall be
entitled to recover the reasonable costs incurred in such removal upon
establishing, in a suit which may be brought against, the United States
Government in the United States Court of Claims, that such discharge
was caused solely by (A) an act of God, (B) an act of war, (C)
negligence on the part of the United States Government, or (D) an
act or omission of a third party without regard to whether such act
or omission was or was not negligent, or of any combination of the
foregoing causes.
"(2) The provisions of this subsection shall not apply in any case
where liability is established pursuant to the Outer Continental Shelf
Lands Act.
" (3) Any amount paid in accordance with a judgment of the United
States Court of Claims pursuant to this section shall be paid from
the funds established pursuant to subsection (k).
"(j) (1) Consistent with the National Contingency Plan required
by subsection (c) (2) of this section, as soon as practicable after the
effective date of this section, and from time to time thereafter, the
President shall issue regulations consistent with maritime safety and
with marine and navigation lavre (A) establishing methods and pro-
cedures for removal of discharged oil and hazardous substances. (B)
establishing criteria for the development and implementation of local
and regional oil and hazardous substance removal contingency plans.
(C) establishing procedures, methods, and equipment and other
requirements for equipment to prevent discharges of oil and hazard-
ous substances from vessels and from onshore facilities and offshore
facilities, and to contain such discharges, and (D) governing the
inspection of vessels carrying cargoes of oil and hazardous substances
[p. 53]
525-310 O - 73 - 5
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54 LEGAL COMPILATION—SUPPLEMENT I
and the inspection of such cargoes in order to reduce the likelihood
of discharges of oil from vessels in violation of this section.
"(2) Any owner or operator of a vessel or an onshore facility or an
offshore facility and any other person subject to any regulation issued
under paragraph (1) of this subsection who fails or refuses to comply
with the provisions of any such regulations, shall be liable to a civil
penalty of not more than $5,000 for each such violation. Each violation
shall be a separate offense. The President may assess and compromise
such penalty. No penalty shall be assessed until the owner, operator,
or other person charged shall have been given notice and an opportu-
nity for a hearing on such charge. In determining the amount of the
penalty, or the amount agreed upon in compromise, the gravity of
the violation, and the demonstrated good faith of the owner, operator,
or other person charged in attemping to achieve rapid compliance,
after notification of a violation, shall be considered by the President.
"(k) There is hereby authorized to be appropriated to a revolving
fund to be established in the Treasury not to exceed $35,000,000 to
carry out the provisions of subsections (c), (d), (i), and (1) of this
section. Any other funds received by the United States under this
section shall also be deposited in said fund for such purposes. All sums
appropriated to, or deposited in, said fund shall remain available
until expended.
"(1) The President is authorized to delegate the administration of
this section to the heads of those Federal departments, agencies, and
instrumentalities which he determines to be appropriate. Any moneys
in the fund established by subsection (k) of this section shall be avail-
able to such Federal departments, agencies, and instrumentalities to
carry out the provisions of subsections (c) and (i) of this section. Each
such department, agency, and instrumentality, in order to avoid dupli-
cation of effort, shall, whenever appropriate, utilize the personnel,
services, and facilities of other Federal departments, agencies, and
instrumentalities.
''(m) Anyone authorized by the President to enforce the provisions
of this section may, except as to public vessels. (A) board and inspect
any vessel upon the navigable waters of the United States or the
waters of the contiguous zone, (B) with or without a warrant arrest
any person who violates the provisions of this section or any regula-
tion issued thereunder in his presence or view, and (C) execute any
warrant or other process issued by an officer or court of competent
jurisdiction.
"(n) The several district courts of the United States are invested
with jurisdiction for any actions, other than actions pursuant to sub-
section (i) (1), arising under this section. In the case of Guam and
the Trust Territory of the Pacific Islands, such actions may be brought
in the district court of Guam, and in the case of the Virgin Islands
such actions may be brought in the district court of the Virgin Islands.
In the case of American Samoa and the Trust Territory of the Pacific
Islands, such actions may be brought in the District Court of the
United States for the District of Hawaii and such court shall have
jurisdiction of such actions. In the case of the Canal Zone, such actions
may be brought in the United States District Court for the District
of the Canal Zone.
"(o) (1) Nothing in this section shall affect or modify in any way
the obligations of any owner or operator of any vessel, or of any owner
or operator of any onshore facility or offshore facility to any person or
agency under any provision of law for damages to any publicly
owned or privately owned property resulting from a discharge of any
oil or hazardous substance or from the removal of any such oil or
hazardous substance.
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WATER—STATUTES AND LEGISLATIVE HISTORY 55
"(2) Nothing in this section shall be construed a» preempting any
State or political subdivision thereof from imposing any requirement
or liability with respect to the discharge of oil or hazardous substance
into any waters within such State.
"(3) Nothing in this section shall be construed as affecting or modi-
fying any other existing authority of any Federal department, agency.
or instrumentality, relative to onshore or offshore facilities under this
Act or any other provision of law, or to affect any State or local law not
in conflict with this section.
"(p)U) Any vessel over three hundred gross toils, including an}
barge of equivalent size, but not including any barge that is not self-
propelled and that does not carry oil or hazardous substances as cargo
or fuel, using any port or place in the United States or the navigable
waters of the United States for any purpose shall establish and main-
tain under regulations to be prescribed from time to time by the Presi-
dent, evidence of financial responsibility of $100 per gross ton, or
$14,000,000 whichever is the lesser, to meet the liability to the United
States which such vessel could be subjected under this section. In cases
where an owner or operator owns, operates, or charters more than one
such vessel, financial responsibility need only be established to meet
the maximum liability to which the largest of such vessels could be
subjected. Financial responsibility may be established by any one of.
or a combination of. the following methods acceptable to the Presi-
dent: (A) evidence of insurance, (B) surety bonds, (C) qualification
as a self-insurer, or (D) other evidence of financial responsibility. Any
bond filed shall be issued by a bonding company authorized to do busi-
ness in the United States.
•'(•2) The provisions of paragraph (1) of this subsection shall be
effective April 3,1971. with inspect to oil and one year after the date of
enactment of this section with respect to hazardous substances. The
President shall delegate the responsibility to carry out the provisions
of this subsection to the appropriate agency head within sixty days
after the date of enactment of this section. Eegulations necessary to
implement this subsection shall be issued within six months after the
date of enactment of this section.
"(3) Any claim for costs incurred by such vessel may be brought
directly against the insurer or any other person providing evidence of
financial responsibility as required under this subsection. In the case
of any action pursuant to this subsection such insurer or other person
shall be entitled to invoke all rights and defenses which would have
been available to the owner or operator if an action had been brought
against him by the claimant, and which would have been available to
him if an action had been brought against him by the owner or
operator.
•'(4) Any owner or operator of a vessel subject to this subsection,
who fails to comply with the provisions of this subsection or any reg-
n'ation issued thereunder, shall be subject to a fine of not more than
^10,000.
"(5) The Secretary of the Treasury may refuse the clearance
required by section 4197 of the Revised Statutes of the United States, as
amended (4 U.S.C. 91), to any vessel subject to this subsection, which
does not have evidence furnished by the President that the financial
responsibility provisions of paragraph (1) of this subsection have been
complied with.
"(6) The Secretary of the Department in which the Coast Guard
is operated may (A) deny entry to any port or place in the United
States or the navigable waters of the United States, to. and (B) detain
at the port or place in the United States from which it is about to
depart for any other port or place in the United States, any vessel sub-
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56 LEGAL COMPILATION—SUPPLEMENT I
ject to this subsection, which upon request, does not produce evidence
furnished by the President that the financial responsibility provisions
of paragraph (1) of this subsection have been complied with.
"MARINE SANITATION DEVICES
"SEC. 312. (a) For the purpose of this section, the term—
"(1) 'new vessel' includes every description of watercraft or
other artificial contrivance used, or capable of being used, as a
means of transportation on the navigable waters, the construction
of which is initiated after promulgation of standards and regula-
tions under this section;
"(2) 'existing vessel' includes every description of watercraft
or other artificial contrivance used, or capable of being used, as a
means of transportation on the navigable waters, the construction
of which is initiated before promulgation of standards and regu-
lations under this section;
" (3) 'public vessel' means a vessel owned or bareboat chartered
and operated by the United States, by a State or political sub-
division thereof, or by a foreign nation, except when such vessel is
engaged in commerce;
" (4) 'United States' includes the States, the District of Colum-
bia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Canal Zone, and the Trust Territory of
the Pacific Islands;
"(5) 'marine sanitation device' includes any equipment for
installation on board a vessel which is designed to receive, retain,
treat, or discharge sewage, and any process to treat such sswage;
"(6) 'sewage' means human body wastes and the washes from
toilets and other receptacles intended to receive or retain body
wastes;
"(7) 'manufacturer' means any person engaged in the manu-
facturing, assembling, or importation of marine sanitation devices
or of vessels subject to standards and regulations promulgated
under this section;
''(8) 'person' means an individual, partner-ship, firm, corpora-
tion, or association, but does not include an individual on board
a public vessel;
''(9) 'discharge' includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping.
''(b) (1) As soon as possible, after the enactment of this section and
subject to the provisions of section 1()4( j) of this Act, the Administra-
tor, after consultation with the Secretary of the department in which
the Coast Guard is operating, after giving appropriate consideration
to the economic costs involved, and within the limits of available tech-
nology, shall promulgate Federal standards of performance for
marine sanitation devices (hereafter in this section referred to as
'standards') which shall be designed to prevent the discharge of
untreated or inadequately treated sewage into or upon the navigable
waters from new vessels and existing vessels, except vessels not
equipped with installed toilet facilities. Such standards shall be con-
sistent with maritime safety and the marine and navigation laws and
regulations and shall te coordinated with the regulations issued under
this subsection 1 ,- the Secretary of the department in which the Coast
Guard is opera r.g. The Secretary of the department in which the
Coast. Guard is operating shall promulgate regulations, which are con-
sistent with standards promulgated under this subsection and with
maritime safety and the marine and navigation laws and regulations
governing the design, construction, installation, and operation of any
marine sanitation device on board such vessels.
[p. 56]
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WATER—STATUTES AND LEGISLATIVE HISTORY 57
"(2) Any existing vessel equipped with a marine sanitation device
on the date of promulgation of initial standards and regulations under
this section, which device is in compliance with such initial standards
and regulations, shall be deemed in compliance with this section until
such time as the device is replaced or is found not to be in compliance
with such initial standards and regulations.
"(c) (1) Initial standards and regulations under this section shall
become effective'for new vessels two years after promulgation; and
for existing vessels five years after promulgation. Revisions of stand-
ards and regulations shall be effective upon promulgation, unless
another effective date is specified, except that no revision shall take
effect before the effective date of the standard or regulation being
revised.
"(2) The Secretary of the department in which the Coast Guard
is operating with regard to his regulatory authority established by this
section, after consultation with the Administrator, may distinguish
among classes, type, and sizes of vessels as well as between new and
existing vessels, and may waive applicability of standards and regula-
tions as necessary or appropriate for such classes, types, and sizes of
vessels (including existing vessels equipped with marine sanitation
devices on the date of promulgation of the initial standards required
by this section), and, upon application, for individual vessels.
""(d) The provisions of this section and the standards and regula-
tions promulgated hereunder apply to vessels owned and operated by
the United States unless the Secretary of Defense finds that compliance
would not be in the interest of national security. With respect to ves-
sels owned and operated by the Department of Defense, regulations
under the last sentence of subsection (b) (1) of this section and certi-
fications under subsection (g) (2) of this section shall be promulgated
and issued by the Secretary of Defense.
"(e) Before the standards and regulations under this section are
promulgated, the Administrator and the Secretary of the department
in which the Coast Guard is operating shall consult with the Secretary
of State; the Secretary of Health, Education, and Welfare; the Sec-
retary of Defense; the Secretary of the Treasury; the Secretary of
Commerce; other interested Federal agencies; and the States and
industries interested; and otherwise comply with the requirements of
section 553 of title 5 of the United States Code.
"(f) (1) After the effective date of the initial standards and regu-
lations promulgated under this section, no State or political subdivision
thereof shall adopt or enforce any statute or regulation of such State
or political subdivision with respect to the design, manufacture, or
installation or use of any marine sanitation device on any vessel
subject to the provisions of this section.
"(•2) If, after promulgation of the initial standards and regulations
and prior to their effective date, a vessel is equipped with a marine
sanitation device in compliance with such standards and regulations
and the installation and operation of such device is in accordance with
such standards and regulations, such standards and regulations shall.
for the purposes of paragraph (1) of this subsection, become effective
with repect to such vessel on the date of such compliance.
"(3) After the effective date of the initial standards and regulations
promulgated under this section, if any State determines that the
protection and enhancement of the quality of some or all of the
waters within such State require greater environmental protection,
such State may completely prohibit the discharge from all vessels
of any sewage, whether treated or not, into such waters, except that
no such prohibition shall apply until the Administrator determines
that- adequate facilities for the safe and sanitary removal and treatment
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58 LEGAL COMPILATION—SUPPLEMENT I
of sewage from all vessels are reasonably available for sucli water to
which such prohibition would apply. Upon application of the State,
the Administrator shall make such determination within 90 days of
the date of such application.
"(4) If the Administrator determines upon application by a State
that the protection and enhancement of the quality of specified waters
within such State requires such a prohibition, he shall by regulation
completely prohibit the discharge from a vessel of any sewage
(whether treated or not) into such waters.
''(g) (1) No manufacturer of a marine sanitation device shall sell,
offer for sale, or introduce or deliver for introduction in interstate
commerce, or import into the United States for sale or resale any
marine sanitation device manufactured after the effective date of the
standards and regulations promulgated under this section unless such
device is in all material respects substantially the same as a test device
certified under this subsection.
"(2) Upon application of the manufacturer, the Secretary of the
department in which the ("'oast Guard is operating shall so certify a
marine sanitation device if he determines, in accordance with the pro-
visions of this paragraph, that it meets the appropriate standards and
regulations promulgated under this section. The Secretary of the
department in which the Coast Guard is operating shall test or require
such testing of the device in accordance with procedures set forth by
the Administrator as to standards of performance and for such other
purposes as may be appropriate. If the Secretary of the department in
which the Coast Guard is operating determines that the device is
satisfactory from the standpoint of safety and any other require-
ments of maritime law or regulation, and after consideration of the
design, installation, operation, material, or other appropriate factors,
he shall certify the device. Any device manufactured by such manu-
facturer which is in all material respects substantially the same as
the certified test device shall be deemed to be in conformity with the
appropriate standards and regulations established under this section.
''(3) Every manufacturer shall establish and maintain such records.
make such reports, and provide such information as the Administrator
or the Secretary of the department in which the Coast Guard is operat-
ing may reasonably require to enable him to determine whether such
manufacturer has acted or is acting in compliance with this section
and regulations issued thereunder and shall, upon request of an
officer or employee duly designated by the, Administrator or the
Secretary of the department in which the Coa?t Guard is operating.
permit such officer or employee at reasonable times to have access to
and copy such records. All information reported to or otherwise
obtained by the Administrator or the Secretary of the department
in which the Coast Guard is operating or their representatives pur-
suant to this subsection which contains or relates to a trade secret or
other matter referred to in section 1905 of title 18 of the United States
Code shall be considered confidential for the purpose of that section,
excent that such information may be disclosed to other officers or
employees concerned with carrying out this section. This paragraph
shall not apply in the case of the construction of a vessel by an indi-
vidual for his own use.
"(h) After the effective date of standards and regulations promul-
gated under this section, it shall be unlawful—
"(1) for the manufacturer of any vessel subject to such stand-
ards and regulations to manufacture for sale, to pell or offer for
sale, or to distribute for sale or resale any such vessel unless it is
equipped with a marine sanitation device which is in all material
respects substantially the same as the appropriate test device
certified pursuant to this section ;
[p. 58]
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WATER—STATUTES AND LEGISLATIVE HISTORY 59
"('2) for any person, prior to the sale or delivery of a vessel
subject to such standards and regulations to the ultimate pur-
chaser, wrongfully to remove or render inoperative any certified
marine sanitation device or element of design of such device
installed in such vessel;
"(3) for any person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide infor-
mation required under this section; and
''(4) for a vessel subject to such standards and regulations to
operate on the navigable vratei-s of the United States, if such
vessel is not equipped with an operable marine sanitation device
certified pursuant to this section.
''(i) The district courts of the United States shall have jurisdictions
to restrain violations of subsection (g) (1) of this section and subsec-
tions (h) (1) through (3) of this section. Actions to restrain such vio-
lations shall be brought by, and in, the name of the United States. In
case of contumacy or refusal to obey a subpena served upon any person
under this subsection, the district court of the United States for any
district in which such person is found or resides or transacts business,
upon application by the United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person to
appear and give testimony or to appear and produce documents, and
any failure to obey such order of the court may be punished by such
court as a contempt thereof.
"(j) Any person who violates subsection (g)(l) of this section or
clause (1) or (2) of subsection (h) of .this section shall be liable to a
civil penalty of not more than $5,000 for each violation. Any person
who violates clause (4) of subsection (h) of this section or any regu-
lation issued pursuant to this section shall be liable to a civil penalty
of not more than $'2,000 for each violation. Each violation shall be a
separate offense. The Secretary of the department in which the Coast
Guard is operating may assess and compromise any such penalty. No
penalty shall be assessed until the person charged shall have been
given notice and an opportunity for a hearing on such charge. In
determining the amount of the penalty, or the amount agreed upon in
compromise, the 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 Secretary.
"(k) The provisions of this section shall be enforced by the Sec-
retary of the department in which the Coast Guard is operating and
he may utilize by agreement, with or without reimbursement, law
enforcement officers or other personnel and facilities of the Adminis-
trator, other Federal agencies, or the States to carry out the provisions
of this section.
''(I) Anyone authorized by the Secretary of the department in
which the Coast Guard is operating to enforce the provisions of this
section may, except as to public vessels, (1) board and inspect any
vessel upon the navigable waters of the United States and (2) execute
any warrant or other process issued by an officer or court of competent
jurisdiction.
"(m) In the case of Guam and the Trust Territory of the Pacific
Islands, actions arising under this section may be brought in the dis-
trict court of Guam, and in the case of the Virgin Islands such actions
may be brought in the district court of the Virgin Islands. In the case
of American Samoa and the Trust Territory of the Pacific Islands,
such actions may be brought in the District Court of the United States
for the District of Hawaii and such court shall have jurisdiction of
such actions. In the case of the Canal Zone, such actions may be brought
in the District Court for the District of the Canal Zone.
[p. 59]
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60 LEGAL COMPILATION—SUPPLEMENT I
"FEDERAL FACILITIES POLLUTION* CONTROL
"SEC. .'513. Each department, agency, or instrumentality of the execu-
tive, legislative, and judicial branches of the Federal Government (1)
having jurisdiction over any property or facility, or (2) engaged in
any activity resulting, or which may result, in the discharge or run-
oft' of pollutants shall comply with Federal, State, interstate, and
local requirements respecting control and abatement of pollution to
the same extent that any person is subject to such requirements,
including the payment of reasonable service charges. The President
may exempt any effluent source of any department, agency, or instru-
mentality in the executive branch from compliance with any such a
requirement if he, determines it to be in the. paramount interest of the
United States to do so; except that no exemption may be granted from
the requirements of section .'506 or 307 of this Act. No such exemptions
shall be granted due to lack of appropriation unless the President
shall have specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to make avail-
able such requested appropriation. Any exemption shall be for a period
not in excess of one year, but additional exemptions may be granted
for periods of not to exceed one year upon the President's making a
new determination. The, President shall report each January to the
Congress all exemptions from the requirements of this section granted
during the preceding calendar year, together with his reason for
granting such exemption.
"CLEAN LAKES
"SE<-. 314. (a) Each State shall prepare or establish, and submit to
the Administrator for his approval—
"(1) an identification and classification according to eutrophic
condition of all publicly owned fresh water lakes in such State;
"(2) procedures, processes, and methods (including land use
requirements), to control sources of pollution of such lakes; and
"(3) methods and procedures, in conjunction with appropriate
T'Vderal agencies, to restore the quality of such lakes.
''(b) The Administrator shall provide financial assistance to States
in order to carry out methods and procedures approved by him under
this section.
"(c) (1) The, amount granted to any State for any fiscal year under
tills section shall not exceed 70 per centum of the funds expended by
such State in such year for carrying out approved methods and pro-
cedures under this section.
"(•2) There is authorized to be, appropriated $50,000,000 for the
fiscal year ending June :50, 1973; $100,000,000 for the, fiscal year 1974;
and $150,000,000 for the fiscal year 1975 for grants to States under this
section which such sums shall remain available until expended. The
Administrator shall provide for an equitable distribution of such
sums to the States with approved methods and procedures under this
section.
"NATIONAL STUDY COMMISSION
''SEC. 315. (a) There is established a National Study Commission,
which shall make a full and complete investigation and study of all
of the technological aspects of achieving, and all aspects of the total
economic, social, and environmental effects of achieving or not achiev-
ing, the effluent limitations and goals set forth for 1983 in section
301 (b) (-2) of this Act.
"(b) Such Commission shall be composed of fifteen members,
including five, members of the Senate, who are members of the Public
Works committee, appointed by the President of the Senate, five mem-
[p. 60]
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WATER-—STATUTES AND LEGISLATIVE HISTORY 61
bers of the House, who are members of the Public Works committee,
appointed by the Speaker of the House, and fire members of the public
appointed by the President. The Chairman of such Commission shall
be elected from among its members.
''(c) In the conduct of such study, the Commission is authorized to
contract with the National Academy of Sciences and the National
Academy of Engineering (acting through the National Research
Council), the National Institute of Ecology, Brookings Institution, and
other nongovernmental entities, for the investigation of matters within
their competence.
"(d) The heads of the departments, agencies and instrumentalities
of the executive branch of the Federal Government shall cooperate
with the Commission in carrying out the requirements of this section,
and shall furnish to the Commission such information as the Commis-
sion deems necessary to carry out this section.
''(e) A report shall be submitted to the Congress of the results of
such investigation and study, together with recommendations, not later
than three years after the date of enactment of this title.
"(f) The members of the Commission who are not officers or
employees of the United States, while attending conferences or meet-
ings of the Commission or while otherwise serving at the request of the
Chairman shall be entitled to receive compensation at a rate not in
excess of the maximum rate of pay for grade GS-18, as provided in
the General Schedule under section 5332 of title, V of the United States
Code, including traveltime and while away from their homes or regular
places of business they may be allowed travel expenses, including per
diem in lieu of subsistence as authorized by law (5 U.S.C. 73b-2) for
persons in the Government service employed intermittently.
''(g) There is authorized to be appropriated, for use in carrying
out this section, not to exceed $15,000.000.
"THERMAL DISCHARGES
"Sue. 316. (a) With respect to any point source otherwise subject
to the provisions of section 301 or section 306 of this Act, whenever
the owner' or operator of any such source, after opportunity for public
hearing, can demonstrate to the satisfaction of the Administrator (or,
if appropriate, the State) that any effluent limitation proposed for
the control of the thermal component of any discharge from such
source will require effluent limitations more stringent than necessary
to assure the projection and propagation of a balanced, indigenous
population of shellfish, fish, and wildlife in and on the body of water
into which the discharge is to be made, the Administrator (or, if
appropriate, the State) may impose an effluent limitation under such
sections for such plant, with respect to the thermal component of
such discharge, (taking into account the interaction of such thermal
component with other pollutants), that will assure the protection
and propagation of a balanced, indigenous population of shellfish,
lish. and wildlife in and on that body of water.
"(b) Any standard established pursuant to section 301 or section
306 of this Act and applicable to a point source shall require that the
location, design, construction, and capacity of cooling water intake
structures reflect the best technology available for minimizing adverse
environmental impact.
"(c) Notwithstanding any other provision of this Act, any point
source of a discharge having a thermal component, the modification
of which point, source is commenced after the date of enactment of
the Federal Water Pollution Control Act Amendments of 1972 and
which, as modified, meets effluent limitations established under sec-
tion 301 or, if more stringent, effluent limitations established under
[p. 61]
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62 LEGAL COMPILATION—SUPPLEMENT I
section 303 and which effluent limitations will assure protection and
propagation of a balanced, indigenous population of shellfish, fish,
and wildlife in or on the water into which the discharge is made, shall
not be subject to any more stringent effluent limitation with respect
to the thermal component of its discharge during a ten year period
beginning on the date of completion of such modification or during
the period of depreciation or amortization of such facility for the
purpose of section 167 or 169 (or both) of the Internal Revenue Code
of 1954, whichever1 period ends first.
"FIX* vxcixo STUDY
"SKC. 317. (a) The Administrator shall continue to investigate and
study the feasibility of alternate methods of financing the cost of
preventing, controlling and abating pollution as directed in the Water
Quality Improvement Act of 1970 (Public Law 91-224). including.
but not limited to, the feasibility of establishing a pollution abatement
trust fund. The results of such investigation and study shall be
reported to the Congress not later than two years after enactment of
this title, together with recommendations of the Administrator for
financing the programs for preventing, controlling and abating pollu-
tion for the fiscal years beginning after fiscal year 1976, including any
necessarv legislation.
"(b) There is authorized to be appropriated for use in carrying out
this section, not to exceed $1.000.000.
"AQUACCLTL'RE
"Ssc. 318. (a) The Administrator is authorized, after public hear-
ings, to permit the discharge of a specific pollutant or pollutants under
controlled conditions associated with an approved aquaculture proj-
ect under Federal or State supervision.
''(b) The Administrator shall by regulation, not later than Janu-
ary 1, 1974, establish any procedures and guidelines ho deems neces-
sary to carry out this section.
"TITLE IV—PERMITS AND LICENSES
"CERTIFICATIOX"
"Ssc. 401. (a) (1) Any applicant for a Federal license or permit to
conduct any activity including, but not limited to, the construction or
operation of facilities, which may result in any discharge into the
navigable waters, shall provide the licensing or permitting agency a
certification from the State in which the discharge originates or will
originate, or. if appropriate, from the interstate water pollution con-
trol agency having jurisdiction over the navigable waters at the point
where the discharge originates or will originate, that any such dis-
charge will comply with the, applicable provisions of sections 301, 302,
306, and 307 of this Act. In the case of any such activity for which
there is not an applicable effluent limitation or other limitation under
sections 301 (b) and 302, and there is not an applicable standard under
sections 306 and 307. the State shall so certify, except that any such
certification shall not be deemed to satisfy section 511 (c) of this
Act. Such State or interstate agency shall establish procedures for
public notice in the case of all applications for certification by it and,
to the extent it deems appropriate, procedures for public hearings in
connection with specific applications. In any case where a State or
interstate agency has no authority to give such a certification, such
certification shall be from the Administrator. If the State, interstate
[p. 62]
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WATER—STATUTES AND LEGISLATIVE HISTORY 63
agency, or Administrator, as the case may be, fails or refuses to act
on a request for certification, within a reasonable period of time
(which shall not exceed one year) after receipt of such request, the
certification requirements of this subsection shall be waived with
respect to such Federal application. Xo license or permit shall be
granted until the certification required by this section has been
obtained or has been waived as provided in the preceding sentence.
Xo license or permit shall be granted if certification has been denied
by the State, interstate agency, or the Administrator, as the case
may be.
"(~2) Upon receipt of such application and certification the licens-
ing or permitting agency shall immediately notify the Administrator
of such application and certification. Whenever such a discharge may
;>fleet, as determined by the Administrator, the quality of the waters
of any other State, the Administrator within thirty days of the, date.
of notice of application for such Federal license, or permit shall so
notify such other State, the licensing or permitting agency, and the
applicant. If, within sixty days after receipt of such notification, such
other State determines that such discharge will affect the quality of
its waters so as to violate any water quality requirement in such State,
and within such sixty-day period notifies the Administrator and the
licensing or permitting agency in writing of its objection to the issu-
ance of such license or permit and requests a public hearing on such
objection, the, licensing or permitting agency shall hold such a hear-
ing. The Administrator shall at such hearing submit his evaluation
and recommendations with respect to any such objection to the licens-
ing or permitting agency. Such agency, based upon the recommenda-
tions of such State, the Administrator, and upon any additional
evidence, if any, presented to the agency at the hearing, shall condition
such license or permit in such manner as may be necessary to insure
compliance with applicable water quality requirements. If the imposi-
tion of conditions cannot insure such compliance such agency shall not
issue such license or permit.
"(3) The certification obtained pursuant to paragraph (1) of this
subsection with respect to the construction of any facility shall fulfill
the requirements of this subsection with respect to certification in con-
nection with any other Federal license or permit required for the op-
eration of such facility unless, after notice to the certifying State,
agency, or Administrator, as the case may be, which shall be given
by the Federal agency to whom application is made, for such operating
license or permit, the State, or if appropriate, the, interstate agency or
the Administrator, notifies such agency within sixty days after receipt
of such notice that there is no longer reasonable, assurance that
there will be compliance with the applicable provisions of sections
301, 302, 306, and 307 of this Act because of changes since the con-
struction license or permit certification was issued in (A) the con-
struction or operation of the facility, (B) the characteristics of the
waters into which such discharge is made, (C) the water quality
criteria applicable to such waters or (D) applicable effluent limita-
tions or other requirements. This paragraph shall be inapplicable in
any case, where the applicant for such operating license or permit has
failed to provide the certifying State, or, if appropriate, the inter-
state agency or the Administrator, with notice of any proposed
changes in the construction or operation of the facility with respect to
which a construction license or permit has been grante,d, which
changes may result in violation of section -301, 302, 306, or 307 of this
Act,
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64 LEGAL COMPILATION—SUPPLEMENT I
"(4) Prior to the initial operation of any federally licensed or
permitted facility or activity which may result in any discharge
into the navigable waters and with respect to which a, certification
lias heeii obtained pursuant to paragraph (1) of this subsection,
which facility or activity is not subject to a Federal operating li-
cense or permit, the licensee or permittee shall provide an oppor-
tunity for such certifying State, or, if appropriate, the interstate
agency or the Administrator to review the manner in which the
facility or activity shall be operated or conducted for the purposes of
assuring that applicable effluent limitations or other limitations or
other applicable water quality requirements will not be violated. Upon
notification by the certifying State, or if appropriate, the interstate
agency or the Administrator that the operation of any such federally
licensed or permitted facility or activity will violate applicable elllu-
ent limitations or other limitations or other water quality require-
ments such Federal agency may. after public hearing, suspend such
license or permit. If such license or permit is suspended, it shall
remain suspended until notification is received from the certifying
State, agency, or Administrator, as the case may be, that there is
reasonable assurance that such facility or activity will not violate
the applicable provisions of section 301, 302, 306, or 307 of this Act.
"(5) Any Federal license or permit with respect to which a cer-
tification has been obtained under paragraph (1) of this subsection
may he suspended or revoked by the Federal agency issuing such
license or permit upon the entering of a judgment under this Act
that such facility or activity has been operated in violation of the
applicable provisions of section 301, 302, 306, or 307 of this Act.
"((i) No Federal agency shall be deemed to be an applicant for
the purposes of this subsection.
"(7) Except with respect to a permit issued under section 402 of
tliis Act. in any case whore actual construction of a facility has been
lawfully commenced prior to April 3, 1970, no certification shall be
required under this subsection for a license or permit issued after
April 3. 1970, to operate such facility, except that any such license
or permit issued without certification shall terminate April 3, 1973,
unless prior to such termination date the person having such license
or permit submits to the Federal agency which issued such license
or permit a certification and otherwise meets the requirements of this
section.
"(b) Nothing in this section shall be construed to limit the author-
ity of any department or agency pursuant to any other provision of
law to require compliance with any applicable water quality require-
ments. The Administrator shall, upon the request of any Federal
department or agency, or State or interstate agency, or applicant, pro-
vide, for the purpose of this section, any relevant information on
applicable effluent limitations, or other limitations, standards, regula-
tions, or requirements, or water quality criteria, and shall, when
requested by any such department or agency or State or interstate
agency, or applicant, comment on any methods to comply with such
limitations, standards, regulations, requirements, or criteria.
"(c) In order to implement the provisions of this section, the Secre-
tary of the Army, acting through the Chief of Engineers, is authorized,
if he deems it to be in the public interest, to permit the use of spoil
disposal areas under his jurisdiction by Federal licensees or per-
mittees, and to make an appropriate charge for such use. Moneys
received from such licensees or permittees shall be deposited in the
Treasury as miscellaneous receipts.
"(d) Any certification provided under this section shall set forth
any effluent limitations and other limitations, and monitoring require-
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WATER—STATUTES AND LEGISLATIVE HISTORY 65
meats necessary to assure that any applicant for a Federal license or
permit will comply with any applicable effluent limitations and other
limitations, under section 301 or 302 of this Act, standard of per-
formance under section 306 of this Act, or prohibition, effluent stand-
ard, or pretreatment standard under section 307 of this Act, and with
any other appropriate requirement of State law set forth in such
certification, and shall become a condition on any Federal license or
permit subject to the provisions of this section.
"NATIONAL I'OIJ.L'TANT B1SCHAKUE ELIMINATION SYSTEM
"SEC. 402. (a) (1) Except as provided in sections 318 and 404 of this
Act, the Administrator may, after opportunity for public hearing,
issue a permit for the discharge of any pollutant, or combination of
pollutants, notwithstanding section 301 (a), upon condition that such
discharge will meet either all applicable requirements under sections
301, 302. 306, 307, 308, and 403 of this Act, or prior to the taking of
necessary implementing actions relating to all such requirements, such
conditions as the Administrator determines are necessary to cany out
the provisions of this Act.
" (2) The Administrator shall prescribe conditions for such permits
to assure compliance with the requirements of paragraph (1) of this
subsection, including conditions on data and information collection,
reporting, and such other requirements as he deems appropriate.
''(3) The permit program of the Administrator under paragraph
(1) of this subsection, and permits issued thereunder, shall be subject
to the same terms, conditions, and requirements as apply to a State
permit program and permits issued thereunder under subsection (b)
of this section.
"(4) All permits for discharges into the navigable waters issued
pursuant to section 13 of the Act of March 3, 1899, shall be deemed to
be permits issued under this title, and permits issued under this title
shall be deemed to be permits issued under section 13 of the Act of
March 3, 1899, and shall continue in force and effect for their term
unless revoked, modified, or suspended in accordance with the pro-
visions of this Act.
"(5) No permit for a discharge into the navigable waters shall be
issued under section 13 of the Act of March 3, 1899, after the date of
enactment of this title. Each application for a permit under section
13 of the Act of March 3, 1899, pending on the date of enactment of
this Act shall be deemed to be an application for a permit under this
section. The Administrator shall authorize a State, which he deter-
mines has the, capability of administering a permit program which
will carry out the, objective of this Act, to issue permits for discharges
into the navigable waters within the jurisdiction of such State. The
Administrator may exercise the authority granted him bv the pre-
ceding sentence only during the period which begins on the date of
enactment of this Act and ends either on the ninetieth day after the
date of the first promulgation of guidelines required by section 304
(h) (2) of this Act, or the date of approval by the Administrator of
a permit program for such State under subsection (b) of this sec-
tion, whichever date first occurs, and no such authoriza^on to a State
shall extend beyond the last day of such period. Each such permit
shall be, subject to such conditions as the Administrator determines
are necessary to carry out the provisions of this Act. No such permit
shall issue if the Administrator objects to such issuance.
"(b) At any time after the promulgation of the guidelines required
by subsection (h) (2) of section 304 of this Act, the Governor of each
State desiring to administer its own permit program for discharges
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66 LEGAL COMPILATION—SUPPLEMENT I
into navigable waters within its jurisdiction may submit to the Admin-
istrator a full and complete description of the program it proposes
to establish and administer under State law or under an interstate
compact. In addition, such State shall submit a statement from the
attorney general (or the attorney for those State water pollution con-
trol agencies which have independent legal counsel), or from the
chief legal officer in the case of an interstate agency, that the laws
of such State, or the interstate compact, as the case may be, provide
adequate authority to carry out the described program. The Admin-
istrator shall approve each such submitted program unless he deter-
mines that adequate authority does not exist:
'' (1) To issue permits which—
" (A) apply, and insure compliance with, any applicable require-
ments of sections 301,302, 306, 307, and 403;
" (B) are for fixed terms not exceeding five years; and
"(C) can be terminated or modified for cause including, but
not limited to, the following:
"(i) violation of any condition of the permit;
"(ii) obtaining a permit by misrepresentation, or failure
to disclose fully all relevant facts;
" (iii) change in any condition that requires either a tempo-
rary or permanent reduction or elimination of the permitted
discharge;
"(D) control the disposal of pollutants into wells;
" (2) (A) To issue permits which apply, and insure compliance with,
all applicable requirements of section 308 of this Act, or
"(B) To inspect, monitor, enter, and require reports to at least the
same extent as required in section 308 of this Act;
"(3) To insure that the public, and any other State the waters of
which may be affected, receive notice of each application for a permit
and to provide an opportunity for public hearing before a ruling on
each such application;
" (4) To insure that the Administrator receives notice of each appli-
cation (including a copy thereof) for a permit;
"(5) To insure that any State (other than the permitting State),
whose waters may be atfected by the issuance of a permit may submit
written recommendations to the permitting State (and the Adminis-
trator) with respect to any permit application and, if any part of
such written recommendations are not, accepted by the permitting
State, that the permitting State will notify such aft'ected State (and the
Administrator) in writing of its failure to so accept such recommenda-
tions together with its reasons for so doing;
''(6) To insure that no permit will be issued if, in the judgment
of the Secretary of the Army acting through the Chief of Engineers,
after consultation with the Secretary of the department in which the
Coast Guard is operating, anchorage and navigation of any of the
navigable waters would be substantially impaired thereby;
"(7) To abate violations of the permit or the permit program,
including civil and criminal penalties and other ways and means of
enforcement;
"(8) To insure that any permit for a discharge from a publicly
owned treatment works includes conditions to require adequate notice
to the permitting agency of (A) new introductions into such works
of pollutants from any source which would be a new source as defined
in section 306 if such source were discharging pollutants, (B) new
introductions of pollutants into such works from a source which would
be subject to section 301 if it were discharging such pollutants, or
(C) a substantial change in volume or character of pollutants being
introduced into such works by a source introducing pollutants into
[p. 66]
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WATER—STATUTES AND LEGISLATIVE HISTORY 67
such works at the time of issuance of the permit. Such notice shall
include information on the quality and quantity of effluent to be
introduced into such treatment works and any anticipated impact of
such change in the quantity or quality of effluent to be discharged from
such publicly owned treatment works; and
"(9) To insure that any industrial user of any publicly owned
treatment works will comply with sections 204(b), 307, and 308.
"(c) (1) Not later than ninety days after the date on which a State
has submitted a program (or revision thereof) pursuant to subsec-
tion (b) of this section, the Administrator shall suspend the issuance
of permits under subsection (a) of this section as to those navigable
waters subject to such program unless he determines that the State
permit program does not meet the requirements of subsection (b) of
this section or does not conform to the guidelines issued under section
304(li) (2) of this Act. If the Administrator so determines, he shall
notify the State of any revisions or modifications necessary to con-
form to such requirements or guidelines.
"(2) Any State permit program under this section shall at all
times be in accordance with this section and guidelines promulgated
pursuant to section 304(h) (2) of this Act.
"(3) Whenever the Administrator determines after public hearing
that a State is not administering a program approved under this sec-
tion in accordance with requirements pi this section, he shall so notify
the State and, if appropriate corrective action is not taken within a
reasonable time, not to exceed ninety days, the Administrator shall
withdraw approval of such program. The Administrator shall not
withdraw approval of any such program unless he shall first have
notified the State, and made public, in writing, the reasons for such
withdrawal.
u(d) (1) Each State shall transmit to the Administrator a copy of
each permit application received by suc'h State and provide notice to
the Administrator of every action related to the consideration of such
permit application, including each permit proposed to be issued by
such State.
''(2) Xo permit shall issue (A) if the Administrator within ninety
days of the date of his notification under subsection (b) (5) of this
section objects in writing to the issuance of such permit, or (B) if
the Administrator within ninety days of the date of transmittal of the
proposed permit by the State objects in writing to the issuance of
such permit as being outside the guidelines and requirements of this
Act.
"(3) The Administrator may, as to any permit application, waive
paragraph (2) of this subsection.
"(e) In accordance with guidelines promulgated pursuant to sub-
section (h) (2) of section 304 of this Act, the Administrator is author-
ized to waive the requirements of subsection (d) of this section at
the time he approves a program pursuant to subsection (b) of this
section for any category (including any class, type, or size within such
category) of point sources within the State submitting such program.
"(f) The Administrator shall promulgate regulations establishing
categories of point sources which he determines shall not be subject to
the requirements of subsection (d) of this section in any State with a
program approved pursuant to subsection (b) of this section. The
Administrator may distinguish among classes, types, and sizes within
any category of point sources.
" (g) Any permit issued under this section for the discharge of pol-
lutants into the navigable waters from a vessel or other floating craft
shall be subject to any applicable regulations promulgated by the
Secretary of the department in which the Coast Guard is operating,
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68 LEGAL COMPILATION—SUPPLEMENT I
establishing specifications for safe transportation, handling, carriage,
storage, and stowage of pollutants.
"(h) In the event any condition of a permit for discharges from a
treatment works (as defined in section 212 of this Act) which is
publicly owned is violated, a State with a program approved under
subsection (b) of this section or the Administrator, where no State
program is approved, may proceed in a court of competent jurisdiction
to restrict or prohibit the introduction of any pollutant into such
treatment works by a source not utilizing such treatment works prior
to the finding that such condition was violated.
"(i) Nothing in this section shall be construed to limit the author-
ity of the Administrator to take action pursuant to section 309 of this
Act.
"(j) A copy of each permit application and each permit issued
under this section shall be available to the public. Such permit appli-
cation or permit, or portion thereof, shall further be available on
request for the purpose of reproduction.
"(k) Compliance with a permit issued pursuant to this section shall
be deemed compliance, for purposes of sections 309 and 505, with sec-
tions 301, 302, 306, 307, and 403, except any standard imposed under
section 307 for a toxic pollutant injurious to human health. Until
December 31, 1974, in any case where a permit for discharge has been
applied for pursuant to this section, but final administrative disposition
of such application has not been made, such discharge shall not be a
violation of (1) section 301, 306, or 402 of this Act, or (2) section 13
of the Act of March 3, 1899, unless the Administrator or other plain-
tiff proves that final administrative disposition of such application has
not been made, because of the failure of the applicant to furnish infor-
mation reasonably required or requested in order to process the applica-
tion. For the 180-day period beginning on the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, in t'lie case
of any point source discharging any pollutant or combination of pol-
lutants immediately prior to such date of enactment which source is
not subject to section 13 of the Act of March 3, 1899, the discharge by
such source shall not be a violation of this Act if such a source applies
for a permit for discharge pursuant to this section within such 180-day
period.
"OCEAN DISCHARGE CRITERIA
•'SEC. 403. (a) No permit under section 402 of tiiis Act for a discharge!
into the territorial sea, the waters of the contiguous zone, or the oceans
shall be issued, after promulgation of guidelines established under sub-
section (c) of this section, except in compliance with such guidelines.
Prior to the promulgation of such guidelines, a permit may be issued
under such section 402 if the Administrator determines it to be in the
public interest.
''(b) The requirements of subsection (d) of section 402 of this Act
may not be waived in the case of permits for discharges into the
territorial sea.
''(c) (1) The Administrator shall, within one hundred and eighty
days after enactment of this Act (and from time to time thereafter),
promulgate guidelines for determining the degradation of the waters
of the territorial seas, the contiguous zone, and the oceans, which shall
include:
"(A) the effect of disposal of pollutants on human health or
welfare, including but not limited to plankton, fish, shellfish, wild-
life, shorelines, and beaches ;
V'(B) the effect of disposal of pollutants on marine life includ-
ing the transfer, concentration, and dispersal of pollutants or their
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WATER—STATUTES AND LEGISLATIVE HISTORY 69
byproducts through biological, physical, and chemical processes;
changes in marine ecosystem diversity, productivity, and stability;
and species and community population changes;
" (C) the effect of disposal, of pollutants on esthetic, recreation,
and economic values;
"(D) the persistence and permanence of the effects of disposal
of pollutants;
"(E) the effect of the disposal at varying rates, of particular
volumes and concentrations of pollutants;
"(F) other possible locations and methods of disposal or recy-
cling of pollutants including land-based alternatives; and
" (G) the effect on alternate uses of the oceans, such as mineral
exploitation and scientific study.
" (2) In any event where insufficient information exists on any pro-
posed discharge to make a reasonable judgment on any of the guide-
lines established pursuant to this subsection no permit shall be issued
under section 402 of this Act.
"PERMITS FOR DREDGED OR FILL MATERIAL
"SEC. 404. (a) The Secretary of the Army, acting through the Chief
of Engineers, may issue permits, after notice and opportunity for
public hearings for the discharge of dredged or fill material into the
navigable waters at specified disposal sites.
"(b) Subject to subsection (c) of this section, each such disposal
site shall be specified for each such permit by the Secretary of the Army
(1) through the application of guidelines developed by the Adminis-
trator, in conjunction with the Secretary of the Army, which guide-
lines shall be based upon criteria comparable to the criteria applicable
to the territorial seas, the contiguous zone, and the ocean under section
403(c), and (2) in any case where such guidelines under clause (1)
alone would prohibit the specification of a site, through the applica-
tion additionally of the economic impact of die site on navigation and
anchorage.
"(c) The Administrator is authorized to prohibit the specification
(including the withdrawal of specification) of any defined area as a
disposal site, and he is authorized to deny or restrict the use of any
defined area for specification (including the withdrawal of specifica-
tion) ;is a disposal site, whenever he determines, after notice and oppor-
tunity for public hearings, that the discharge of such materials into
such area will have an unacceptable adverse effect on municipal water
supplies, shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas. Before making such
determination, the Administrator shall consult with the Secretary of
the Army. The Administrator shall set forth in writing and make
public his findings and his reasons for making any determination
under this subsection.
"SEC. 405. (a) Notwithstanding any other provision of this Act or
of any other law, in any case where the disposal of sewage sludge
resulting from the operation of a treatment works as defined in section
212 of this Act (including the removal of in-place sewage sludge from
one location and its deposit at another location) would result in any
pollutant from such sewage sludge entering the navigable waters,
such disposal is prohibited except in accordance with a permit issued
by the Administrator under this section.
[p. 69]
525-310 O - 73 - 6
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70 LEGAL COMPILATION—SUPPLEMENT I
"(b) The Administrator shall issue regulations governing the
issuance of permits for the disposal of sewage sludge subject to this sec-
tion. Such regulations shall require the application to such disposal
of each criterion, factor, procedure, and requirement applicable to a
permit issued under section 402 of this title, as the Administrator
determines necessary to carry out the objective of this Act.
"(c) Each State desiring to administer its own permit program
for disposal of sewage sludge within its jurisdiction may do so if upon
submission of such program the Administrator determines such pro-
gram is adequate to carry out the objective of this Act.
"TITLE V—GENERAL PROVISIONS
"ADMINISTRATION"
•'SEC. 501. (a) The Administrator is authorized to prescribe such
regulations as are necessary to carry out his functions under this Act.
"(b) The Administrator, with the consent of the head of any other
agency of the United States, may utilize such officers and employees
of such agency as may be found necessary to assist in carrying out the
purposes of this Act.
"(c) Each recipient of financial assistance under this Act shall
keep such records as the Administrator shall prescribe, including rec-
ords which fully disclose the amount and disposition by such recipi-
ent of the proceeds of such assistance, the, total cost of the project or
undertaking in connection with which such assistance is given or used,
and the amount of that portion of the cost of the project or under-
taking supplied by other sources, and such other records as will facili-
tate an effective audit.
''(d) The Administrator and the Comptroller General of the
I'nited States, or any of their duly authorized representatives, shall
have access, for the purpose of audit and examination, to any books,
documents, papers, and records of the recipients that are pertinent
to the grants received under this Act.
"(e) (1) It is the purpose of this subsection to authorize a program
which will provide official recognition by the United States Govern-
ment to those industrial organizations and political subdivisions of
States which during the preceding year demonstrated an outstanding
technological achievement or an innovative process, method, or device
iu their waste treatment and pollution abatement programs. The
Administrator shall, in consultation with the appropriate State water
pollution control agencies, establish regulations under which such
recognition may l>e applied for and granted, except that no applicant
shall be eligible for an award under this subsection if such applicant
is not in total compliance with all applicable water quality require-
ments under this Act, or otherwise does not have a satisfactory record
with respect to environmental quality.
"(2) The Administrator shall award a certificate or plaque of suit-
able design to each industrial organization or political subdivision
which qualifies for .such recognition under regulations established
under this subsection.
"(.'5) The President of the United States, the Governor of the
appropriate State, the Speaker of the House of Representatives, and
the President pro tempore of the Senate shall be notified of the award
by the Administrator and the awarding of such recognition shall be
published in the Federal Register.
"'(f) Upon the request of a State water pollution control agency,
personnel of the Environmental Protection Agency may be detailed to
such agency for the purpose of carrying out the provisions of this Act.
[p. 70]
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WATER—STATUTES AND LEGISLATIVE HISTORY 71
''GENERAL DEFINITIONS
. 502. Except as otherwise specifically provided, when used in
this Act:
"(1) The term 'State water pollution control agency' means the
State agency designated by the Governor having responsibility for
enforcing State laws relating to the abatement of pollution.
"(2) The term 'interstate agency' means an agency of two or more
States established by or pursuant to an agreement or compact approved
by the Congress, or any other agency of two or more States, having
substantial powers or duties pertaining to the control of pollution as
determined and approved by the Administrator.
"(3) The term'State' means a State, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Trust Territory of the Pacific Islands.
"(4) The term 'municipality' means a city, town, borough, county,
parish, district, association, or other public body created by or pur-
suant to State law and having jurisdiction over disposal of sewage,
industrial wastes, or other wastes, or an Indian tribe or an authorized
Indian tribal organization, or a designated and approved management.
agency under section 208 of this Act.
"(5) The term 'person' means an individual, corporation, partner-
ship, association, State, municipality, commission, or political subdi-
vision of a State, or any interstate body.
" (6) The term 'pollutant' means dredged spoil, solid waste, incinera-
tor residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water. This term does not
mean (A) 'sewage from vessels' within the meaning of section 312 of
this Act; or (B) water, gas, or other material which is injected into a
well to facilitate production of oil or gas, or water derived in asso-
ciation with oil or gas production and disposed of in a well, if the
well used either to facilitate production or for disposal purposes is
approved by authority of the State in which the well is located, and if
such State determines that such injection or disposal will not result in
the degradation of ground or surface water resources.
"(7) The term 'navigable waters' means the waters of the United
States, including the territorial seas.
"(8) The term 'territorial seas' means the belt of the seas measured
from the line of ordinary low water along that portion of the coast
which is in direct contact with the open sea and the line marking the
seaward limit of inland waters, and extending seaward s\ distance of
three miles.
"(&) The term 'contiguous zone' means the entire zone established
or to be established by the United States under article 24 of the Con-
vention of the Territorial Sea and the Contiguous Zone.
"(10) The term 'ocean' means any portion of the high sp-as beyond
the contiguous zone.
''(11) The term 'effluent limitation' means any restriction established
by a State or the Administrator on quantities, rates, and concentrations
of chemical, physical, biological, and other constituents which are dis-
charged from point sources into navigable waters, the waters of the.
contiguous zone, or the ocean, including schedules of compliance.
"(12) The term 'discharge of a pollutant' and the term 'discharge of
pollutants' each means (A) any addition of any pollutant to navigable
waters from any point source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any point source other
than a vessel or other floating craft.
[p. 71]
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72 LEGAL COMPILATION—SUPPLEMENT I
"(13) The term 'toxic pollutant' means those pollutants, or com-
binations of pollutants, including disease-causing agents, which after
discharge and upon exposure, ingestion, inhalation or assimilation into
any organism, either directly from the environment or indirectly by
ingestion through food chains, will, on the basis of information avail-
able to the Administrator, cause death, disease, behavioral abnormali-
ties, cancer, genetic mutations, physiological malfunctions (including
malfunctions in reproduction) or physical deformations, in such
organisms or their offspring.
"(14) The term 'point source' means any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or other floating
craft, from which pollutants are or may be discharged.
"(15) The term 'biological monitoring' shall mean the determina-
tion of the effects on aquatic life, including accumulation of pollut-
ants in tissue, in receiving waters due to the discharge of pollutants
(A) by techniques and procedures, including sampling of organisms
representative of appropriate levels of the food chain appropriate to
the volume and the physical, chemical, and biological characteristics
of the effluent, and (B) at appropriate frequencies and locations.
"(16) The term 'discharge' when used without qualification includes
a discharge of a pollutant, and a discharge of pollutants.
"(17) The term 'schedule of compliance' means a schedule of reme-
dial measures including an enforceable sequence of actions or opera-
tions leading to compliance with an effluent limitation, other limitation,
prohibition, or standard.
"(18) The term 'industrial user' means those industries identified
in the Standard Industrial Classification Manual, Bureau of the
Budget, 1967, as amended and supplemented, under the category 'Divi-
sion D—Manufacturing' and such other classes of significant waste
producers as, by regulation, the Administrator deems appropriate.
"(19) The term 'pollution' means the man-made or man-induced
alteration of the chemical, physical, biological, and radiological
integrity of water.
"WATER POLLUTION CONTROL ADVISORY BOARD
"Sue. 503. (a) (1) There is hereby established in the Environmental
Protection Agency a Water Pollution Control Advisory Board, com-
posed of the Administrator or his designee, who shall be Chairman, and
nine members appointed by the President, none of whom shall be
Federal officers or employees. The appointed members, having due
regard for the purposes of this Act, shall be selected from among rep-
resentatives of various State, interstate, and local governmental agen-
cies, of public or private interests contributing to, affected by, or
concerned with pollution, and of other public and private agencies,
organizations, or groups demonstrating an active interest in the field of
pollution prevention and control, as well as other individuals who are
expert in this field.
(2) (A) Each member appointed by the President shall hold office
for a term of three years, except that (i) any member appointed to fill
a vacancy occurring prior to the expiration of the term for which his
predecessor was appointed shall be appointed for the remainder of
such term, and (ii) the terms of office of the members first taking office
after June 30,1956, shall expire as follows: three at the end of one year
after such date, three at the end of two years after such date, and three
at the end of three years after such date, as designated by the President
at the time of appointment, and (iii) the term of any member under
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WATER—STATUTES AND LEGISLATIVE HISTORY 73
the preceding provisions shall be extended until the date on which his
successor's appointment is effective. Xone of the members appointed by
the President shall be eligible for reappointment within one year after
the end of his preceding term.
" (B) The members of the Board who are not officers or employees of
the United States, while attending conferences or meetings of the
Board or while otherwise serving at the request of the Administrator,
shall be entitled to receive compensation at a rate to be fixed by the
Administrator, but not exceeding $100 per diem, including travel-
time, and while away from their homes or regular places of business
they may be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by law (5 U.S.C. 73b-2) for persons in the
Government service employed intermittently.
"(b) The Board shall advise, consult with, and make recommenda-
tions to the Administrator on matters of policy relating to the activ-
ities and functions of the Administrator under this Act.
"(c) Such clerical and technical assistance as may be necessary to
discharge the duties of the Board shall be provided from the per-
sonnel of the Environmental Protection Agency.
"EMERGENCY POWERS
"SEC. 504. Xotwithstanding any other provision of this Act, the
Administrator upon receipt of evidence that a pollution source or com-
bination of sources is presenting an imminent and substantial
endangerment to the health of persons or to the welfare of persons
where such endangerment is to the livelihood of such persons, such
as inability to market shellfish, may bring suit on behalf of the United
States in the appropriate district court to immediately restrain any
person causing or contributing to the alleged pollution to stop the dis-
charge of pollutants causing or contributing to such pollution or to
take such other action as may be necessary.
"CITIZEN SUITS
"SEC. 505. (a) Except as provided in subsection (b) of this section,
any citizen may commence a civil action on his own behalf—
"(1) against any person (including (i) the United States, and
(ii) 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 (A) an effluent standard or
limitation under this Act or (B) an order issued by the Admin-
istrator or a State with respect to such a standard or limitation, or
"(2) against the Administrator where there is alleged a fail-
ure of the Administrator to perform any act or duty under this
Act which is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce such
an effluent standard or limitation, or such an order, or to order the.
Administrator to perform such act or duty, as the case may be, and to
apply any appropriate civil penalties under section 309 (d) of this Act.
"(b) Xo action may be commenced—
"(1) under subsection (a) (1) of this section—
"(A) prior to sixty days after the plaintiff has given notice
of the alleged violation i(i) to the Administrator, (ii) to the
State in which the alleged violation occurs, and (iii) to any
alleged violator of the standard, limitation, or order, or
''(B) if the Administrator or State has commenced and is
diligently prosecuting a civil or criminal action in a court
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74 LEGAL COMPILATION—SUPPLEMENT I
of the United States, or a State to require compliance with the
standard, limitation, or order, but in any such action in a
court of the United States any citizen may intervene as a
matter of right.
"(2) under subsection (a) (2) of this section prior to sixty days
after the plaintiff has given notice of such action to the
Administrator,
except that such action may be brought immediately after such noti-
fication in the case of an action under this section respecting a violation
of sections 306 and 307(a) of this Act. Notice ilnder this subsection
shall be given in such manner as the Administrator shall prescribe by
regulation.
"(c) (1) Any action respecting a violation by a discharge source of
an effluent standard or limitation or an order respecting such standard
or limitation may be brought under this section only in the judicial
district in which such source is located.
"(2) In such action under this section, the Administrator, if not a
party, may intervene as a matter of right.
" (d) The court, in issuing any final order in any action brought pur-
suant to this section, may award costs of litigation (including reason-
able attorney and expert witness fees) to any party, whenever the
court determines such award is appropriate. The court may. if a tem-
porary restraining order or preliminary injunction is sought, require
the filing of a bond or equivalent security in accordance with the Fed-
eral Rules of Civil Procedure.
"(e) Nothing in this section shall restrict any right which any per-
son (or class of persons) may have under any statute or common law
to seek enforcement of any effluent standard or limitation or to seek
any other relief (including relief against the Administrator or a State
agency).
"(f') For purposes of this section, the term 'effluent standard or limi-
tation under this Act' means (1) effective July 1,1973, an unlawful act
under subsection (a) of section 301 of this Act; (2) an effluent limita-
tion or other limitation under section 301 or 302 of this Act; (3) stand-
ard of performance under section 306 of this Act; (4) prohibition,
effluent standard or pretreatment standards under section 307 of this
Act: (5) certification under section 401 of this Act: or (6) a permit or
condition thereof issued under section 402 of this Act, which is in effect
under this Act (including a requirement applicable by reason of sec-
tion 313 of this Act).
''(g) For the purposes of this section the term 'citizen' means a per-
son or persons having an interest which is or may be, adversely affected.
"(h) A Governor of a State may commence a civil action under sub-
section (a), without regard to the limitations of subsection (b) of this
section, against the Administrator where there is alleged a failure of
the Administrator to enforce, an effluent standard or limitation under
this Act the violation of which is occurring in another State and is
causing an adverse effect on the public health or welfare in his State, or
is causing a violation of any water quality requirement in his State.
"APPEARAXCE
"Sue. 506. The Administrator shall request the Attorney General to
appear and represent the United States in any civil or criminal action
instituted under this Act to which the Administrator is a party. Unless
the Attorney General notifies the Administrator within a reasonable
time, that he will appear in a civil action, attorneys who are officers or
employees of the Environmental Protection Agency shall appear and
represent the United States in such action.
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WATER—STATUTES AND LEGISLATIVE HISTORY 75
"EMPLOYKE PROTECTION
"SEC. 507. (a) No person shall fire, or in any other way discriminate
against, or cause to be fired or discriminated against, any employee or
any authorized representative of employees by reason of the fact that
such employee or representative has filed, instituted, or caused to be
filed or instituted any proceeding under this Act, or has testified or is
about to testify in any proceeding resulting from the administration
or enforcement of the provisions of this Act.
"(b) Any employee or a representative of employees who believes
that he has been fired or otherwise discriminated against by any per-
son in violation of subsection (a) of this section may, within thirty
days after such alleged violation occurs, apply to the Secretary of
Labor for a review of such firing or alleged discrimination. A copy of
the application shall be sent to such person who shall be the respond-
ent. Upon receipt of such application, the Secretary of Labor shall
cause such investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing at the
request of any party to such review to enable the parties to present
information relating to such alleged violation. The parties shall be
given written notice of the time and place of the hearing at least five
days prior to the hearing. Any such hearing shall be of record and
shall be subject to section 554 of title 5 of the United States Code.
Upon receiving the report of such investigation, the Secretary of
Labor shall make findings of fact. If he finds that such violation did
occur, he shall issue a decision, incorporating an order therein and his
findings, requiring the party committing such violation to take such
affirmative action to abate the violation as the Secretary of Labor
deems appropriate, including, but not limited to, the rehinng or rein-
statement of the employee or representative of employees to his former
position with compensation. If he finds that there was no such viola-
tion, he shall issue an order denying the application. Such order issued
by the Secretary of Labor under this subparagraph shall be subject
to judicial review in the same manner as orders and decisions of the
Administrator are subject to judicial review under this Act.
"(c) Whenever an order is issued under this section to abate such
violation, at the request of the applicant, a sum equal to the aggre-
gate amount of all costs and expenses (including the attorney's fees),
as determined by the Secretary of Labor, to have been reasonably
incurred by the applicant for, or in connection with, the institution
and prosecution of such proceedings, shall be assessed against the per-
son committing such violation.
"(d) This section shall have no application to any employee who,
acting without direction from his employer (or his agent) deliberately
violates any prohibition of effluent limitation or other limitaton under
section 301 or 302 of this Act, standards of performance under sec-
tion 306 of this Act, effluent standard, prohibition or pretreatment
standard under section 307 of this Act, or any other prohibition or
limitation established under this Act.
"(e) The Administrator shall conduct continuing evaluations of
potential loss or shifts of employment which may result from the
issuance of any effluent limitation or order under this Act, including,
where appropriate, investigating threatened plant closures or reduc-
tions in employment allegedly resulting from such limitation or order.
Any employee who is discharged or laid-off, threatened with discharge
or lay-off, or otherwise discriminated against by any person because of
the alleged results of any effluent limitation or order issued under this
Act, or any representative of such employee, may request the Admin-
istrator to conduct a full investigation of the matter. The Administra-
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76 LEGAL COMPILATION—SUPPLEMENT I
tor shall thereupon investigate the matter and. at the request of any
party, shall hold public hearings on not less than five days notice, and
shall at such hearings require the parties, including the employer
involved, to present information relating to the actual or potential
effect of such limitation or order on employment and on any alleged
discharge, lay-off, or other discrimination and the detailed reasons or
justification therefor. Any such hearing shall be of record and shall
be subject to section 554 of title 5 of the United States Code. Upon
receiving the report of such investigation, the Administrator shall
make findings of fact as to the effect of such effluent limitation or
order on employment and on the alleged discharge, lay-off, or discrim-
ination and shall make such recommendations as he deems appro-
priate. Such report, findings, and recommendations shall be available
to the public. Nothing in this subsection shall be construed to require
or authorize the Administrator to modify or withdraw any effluent
limitation or order issued under this Act.
"FEDERAL PROCUREMENT
''SEC. 508. (a) No Federal agency may enter into any contract with
any person, who has been convicted of any offense under section 309
(c) of this Act. for the procurement of goods, materials, and services
if such contract is to be performed at any facility at which the viola-
tion which gave rise to such conviction occurred, and if such facility is
owned, leased, or supervised by such person. The prohibition in the
preceding sentence shall continue until the Administrator certifies
that the condition giving rise to such conviction has been corrected.
''(b) The Administrator shall establish procedures to provide all
Federal agencies with the notification necessary for the purposes of
subsection (a) of this section.
•'(c) In order to implement the purposes and policy of this Act to
protect and enhance the quality of the Nation's water, the President
shall, not more than one hundred and eighty days after enactment of
this Act, cause to be issued an order (1) requiring each Federal agency
authorized to enter into contracts and each Federal agency which is
empowered to extend Federal assistance by way of grant, loan, or con-
tract to effectuate the purpose and policy of this Act in such contract-
ing or assistance activities, and (2) setting forth procedures, sanctions,
penalties, and such other provisions, as the President determines
necessary to carry out such requirement.
''(d) The President may exempt any contract, loan, or grant from
all or part of the provisions of this section where he determines such
exemption is necessary in the paramount interest of the United States
and he shall notify the Congress of such exemption.
"(e) The President shall annually report to the Congress on meas-
ures taken in compliance with the purpose and intent of this section,
including, but not limited to, the progress and problems associated
with such compliance.
•'ADMINISTRATIVE PROCEDURE AXD JUDICIAL RKVIKW
•'SEC. 509. (a) (1) For purposes of obtaining information under sec-
tion 305 of this Act, or carrying out section 507(e) of this Act, the
Administrator may issue subpenas for the attendance and testimony
of witnesses and the production of relevant papers, books, and docu-
ments, and he may administer oaths. Except for effluent data, upon
a showing satisfactory to the Administrator that such papers, books,
documents, or information or particular part thereof, if made public,
would divulge trade secrets or secret processes, the Administrator
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WATER—STATUTES AND LEGISLATIVE HISTORY 77
shall consider such record, report, or information or particular por-
tion thereof confidential in accordance with the purposes of section
1905 of title 18 of the United States Code, except that such paper,
book, document, or information may be disclosed to other officers,
employees, or authorized representatives of the United States con-
cerned with carrying out this Act, or when relevant in any proceeding
under this Act. Witnesses summoned shall be paid the same fees and
mileage that are paid witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpena served upon any per-
son under this subsection, the district court of the United States for
any district in which such person is found or resides or transacts busi-
ness, upon application by the United States and after notice to such
person, shall have jurisdiction to issue an order requiring such person
to appear and give testimony before the Administrator, to appear
and produce papers, books, and documents before the Administrator,
or both, and any failure to obey such order of the court may be pun-
ished by such court as a contempt thereof.
"(2) The district courts of the United States are authorized, upon
application by the Administrator, to issue subpenas for attendance
and testimony of witnesses and the production of relevant papers,
books, and documents, for purposes of obtaining information under
sections 304- (b) and (c) of this Act. Any papers, books, documents,
or other information or part thereof, obtained by reason of such a
subpena shall be subject to the same requirements as are provided in
paragraph (1) of this subsection.
" (b) (1) Review of the Administrator's action (A) in promulgating
any standard of performance under section 306, (B) in making any
determination pursuant to section 306(b) (1) (C), (C) in promulgat-
ing any effluent standard, prohibition, or treatment standard under
section 307, (D) in making any determination as to a State permit
program submitted under section 402(b), (E) in approving or pro-
mulgating any effluent limitation or other limitation under section
301, 302, or 306, and (F) in issuing or denying any permit under sec-
tion 402, may be had by any interested person in the Circuit Court of
Appeals of the United States for the Federal judicial district in which
such person resides or transacts such business upon application by
such person. Any such application shall be made within ninety days
from the date of such determination, approval, promulgation, issuance
or denial, or after such date only if such application is based solely on
grounds which arose after such ninetieth day.
"(2) Action of the Administrator with respect to which review
could have been obtained under paragraph (1) of this subsection shall
not be subject to judicial review in any civil or criminal proceeding for
enforcement.
"(c) In any judicial proceeding brought under subsection (b) of
this section in which review is sought of a determination under this
Act required to be made on the record after notice and opportunity
for hearing, if any party applies to the court for leave to adduce addi-
tional evidence, and shows to the satisfaction of the court that such
additional evidence is material and that there were reasonable grounds
for the failure to adduce such evidence in the proceeding before the
Administrator, the court may order such additional evidence (and
evidence in rebuttal thereof) to be taken before the Administrator, in
such manner and upon such terms and conditions as the court may
deem proper. The Administrator may modify his findings as to the
facts, or make new findings, by reason of the additional evidence so
taken and he shall file such modified or new findings, and his recom-
mendation, if any, for the modification or setting aside of his original
determination, with the return of such additional evidence.
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78 LEGAL COMPILATION—SUPPLEMENT I
"STATE AUTHORITY
"SEC. 510. Except as expressly provided in this Act, nothing in this
Act shall (1) preclude or deny the right of any State or political sub-
division thereof or interstate agency to adopt or enforce (A) any
standard or limitation respecting discharges of pollutants, or (B) any
requirement respecting control or abatement of pollution; except that
if an effluent limitation, or other limitation, effluent standard, prohibi-
tion, pretreatment standard, or standard of performance is in effect
under this Act, such State or political subdivision or interstate agency
may not adopt or enforce any effluent limitation, or other limitation,
effluent standard, prohibition, pretreatment standard, or standard of
performance which is less stringent than the effluent limitation, or other
limitation, effluent standard, prohibition, pretreatment standard, or
standard of performance under this Act; or (2) be construed as impair-
ing or in any manner affecting any right or jurisdiction of the States
with respect to the waters (including boundary waters) of svich States.
"OTHER AFFECTED AUTHOKITY
''SEC. 511. (a) This Act shall not be construed as (1) limiting the
authority or functions of any officer or agency of the United States
under any other law or regulation not inconsistent with this Act; (2)
affecting or impairing the authority of the Secretary of the Army
(A) to maintain navigation or (B) under the Act of March 3, 1899
(30 Stat. 1112) ; except that any permit issued under section 404 of
this Act shall be conclusive as to the effect on water quality of any
discharge resulting from any activity subject to section 10 of the Act
of March 3, 1899, or (3) affecting or impairing the provisions of any
treaty of the United States.
"(b) Discharges of pollutants into the navigable waters subject to
the Rivers and Harbors Act of 1910 (36 Stat. 593; 33 U.S.C. 421)
and the Supervisory Harbors Act of 1888 (25 Stat. 209: 33 U.S.C.
441—451b) shall be regulated pursuant to this Act. and not subject
to such Act of 1910 and the Act of 1888 except as to effect on naviga-
tion and anchorage.
"(c)(l) Except for the provision of Federal financial assistance
for the purpose of assisting the construction of publicly owned treat-
ment works as authorized by section 201 of this Act, and the issuance
of a permit under section 402 of this Act for the discharge of any
pollutant by a new source as denned in section 306 of this Act, no
action of the Administrator taken pursuant to this Act shall be deemed
a major Federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental
Policy Act of 1969 (83 Stat. 852) ; and
"(2) Nothing in the National Environmental Policy Act of 1969
(83 Stat. 852) shall be deemed to—
"(A) authorize any Federal agency authorized to license or
permit the conduct of any activity which may result in the dis-
charge of a pollutant into the navigable waters to review any
effluent limitation or other requirement established pursuant to
this Act or the adequacy of any certification under section 401 of
this Act; or
" (B) authorize any such agency to impose, as a condition prece-
dent to the issuance of any license or permit, any effluent limita-
tion other than any such limitation established pursuant to this
Act.
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WATER—STATUTES AND LEGISLATIVE HISTORY 79
'SEPARABILITY
'•SEC. 512. If any provision of this Act, or the application of any pro-
vision of this Act to any person or circumstance, is held invalid, the
application of such provision to other persons or circumstances, and
the remainder of this Act, shall not be affected thereby.
"SEC. 513. The Administrator shall take such action as may be
necessary to insure that all laborers and mechanics employed by con-
tractors or subcontractors on treatment works for which grants are
made under this Act shall be paid wages at rates not less than those
prevailing for the same type of work on similar construction in the
immediate locality, as determined by the Secretary of Labor, in
accordance with the Act of March 3, 1931, as amended, known as the
Davis-Bacon Act (46 Stat. 1494; 40 U.S.C., sec. 276a through 276a-5).
The Secretary of Labor shall have, with respect to the labor standards
specified in this subsection, the authority and functions set forth in
Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176) and section
2 of the Act of June 13, 1934, as amended (48 Stat. 948; 40 U.S.C.
276c).
"PUBLIC HEALTH AGENCY COORDINATION
"SEC. 514. The permitting agency under section 402 shall assist the
applicant for a permit under such section in coordinating the require-
ments of this Act with those of the appropriate public health agencies.
COMMITTEE
"SEC. 515. (a) (1) There is established on Effluent Standards and
Water Quality Information Advisory Committee, which shall be com-
posed of a Chairman and eight members who shall be appointed by
the Administrator within sixty days after the date of enactment of
this Act.
"(2) All members of the Committee shall be selected from the scien-
tific community, qualified by education, training, and experience to
provide, assess, and evaluate scientific and technical information on
effluent standards and limitations.
"(3) Members of the Committee shall serve for a term of four years,
and may be reappointed.
"(b) (1) No later than one hundred and eighty days prior to the
date on which the Administrator is required to publish any proposed
regulations required by section 304(b) of this Act, any proposed
standard of performance for new sources required by section 306 of
this Act, or any proposed toxic effluent standard required by section
307 of this Act, he shall transmit to the Committee a notice of intent
to propose such regulations. The Chairman of the Committee within
ten days after receipt of such notice may publish a notice of a public
hearing by the Committee, to be held within thirty clays.
"(2) No later than one hundred and twenty days after receipt of
such notice, the Committee shall transmit to the Administrator such
scientific and technical information as is in its possession, including
that presented at any public hearing, related to the subject matter
contained in such notice.
"(3) Information so transmitted to the Administrator shall con-
stitute a part of the administrative record and comments on any pro-
posed regulations or standards as information to be considered with
other comments and information in making any final determinations.
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80 LEGAL COMPILATION—SUPPLEMENT I
'•(4) In preparing information for transmittal, the Committee shall
avail itself of the technical and scientific services of any Federal
agency, including the United States Geological Survey and any
national environmental laboratories which may be established.
''(c) (1) The Committee shall appoint and prescribe the duties of a
Secretary, and such legal counsel as it deems necessary. The Commit-
tee shall appoint such other employees as it deems necessary to exercise
and fulfill its powers and responsibilities. The compensation of all
employees appointed by the Committee shall be fixed in accordance
with chapter 51 and subchapter III of chapter 53 of title V of the
United States Code.
''("2) Members of the Committee shall be entitled to receive com-
pensation at a rate to be fixed by the President but not in excess of the
maximum rate of pay for grade GS—18, as provided in the General
Schedule Tinder section 5332 of title V of the United States Code.
''(d) Five members of the Committee shall constitute a quorum, and
official actions of the Committee shall be taken only on the affirmative
vote of at least five members. A special panel composed of one or more
members upon order of the Committee shall conduct any hearing
authorized by this section and submit the transcript of such hearing
to the entire Committee for its action thereon.
"(e) The Committee is authorized to make such rules as are neces-
sary for the orderly transaction of its business.
"RETORTS TO CONGRESS
"SEC. 510. (a) Within ninety days following the convening of each
session of Congress, the Administrator shall submit to the Congress
a report, in addition to any other report required by this Act, on
measures taken toward implementing the objective of this Act, includ-
ing, but not limited to, (1) the progress and problems associated with
developing comprehensive plans under section 102 of this Act. area-
wide, plans under section 208 of this Act, basin plans under section
20!) of this Act, and plans under section 303(e) of this Act; (2) a
summary of actions taken and results achieved in the field of water
pollution control research, experiments, studies, and related matters by
the Administrator and other Federal agencies and by other j>ersons
and agencies under Federal grants or contracts; (3) the progress
and problems associated with the development of effluent limitations
and recommended control techniques; (4) the status of State pro-
grams, including a detailed summary of the progress obtained as
compared to that planned under State program plans for development
and enforcement of water quality requirements; (5) the identification
and status of enforcement actions pending or completed under such
Act during the preceding year; ((>) the status of State, interstate, and
local pollution control programs established pursuant to, and assisted
by. this Act; (7) a summary of the results of the survey required to be
taken under section 210 of this Act; (8) his activities including recom-
mendations under sections 109 through 111 of this Act; and (9) all
reports and recommendations made by the Water Pollution Control
Advisory Board.
"(b) The Administrator, in cooperation with the States, including
water pollution control agencies and other water pollution control
planning agencies, shall make (1) a detailed estimate of the cost of
carrying out the provisions of this Act; (2) a detailed estimate, bien-
nially revised, of the cost of construction of all needed publicly owned
treatment works in all of the States and of the cost of construction of
all needed publicly owned treatment works in each of the States; (3)
a comprehensive study of the economic impact on affected units of gov-
[p. 80]
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WATER—STATUTES AND LEGISLATIVE HISTORY 81
ernment of the cost of installation of treatment facilities; and (4) a
comprehensive analysis of the national requirements for and the cost
of treating municipal, industrial, and other effluent to attain the water
quality objectives as established by this Act or applicable State law.
The Administrator shall submit such detailed estimate and such com-
prehensive study of -such cost to the Congress no later than February
10 of each odd-numbered year. Whenever the Administrator, pursuant
to this subsection, requests and receives an estimate of cost from a
State, he shall furnisn copies of such estimate together with such
detailed estimate to Congress.
''GENERAL AUTHORIZATION
"SEC. 517. There are authorized to be appropriated to carry out this
Act, other than sections 104, 105, 106(a), 107, 108, 112, 113, 114, 115,
206,207,208 (f) and (h), 209, 304, 311 (c), (d), (i), (l),and (k),314,
315, and 317, $250,000,000 for the fiscal year ending June 30, 1973,
$300,000,000 for the fiscal year ending June 30,1974, and $350,000,000
for the fiscal year ending June 30,1975.
"SHORT TITLE
"SEC. 518. This Act may be cited as the 'Federal Water Pollution
Control Act'."
AUTHORIZATIONS FOR FISCAL TEAR 1072
SEC. 3. (a) There is authorized to be appropriated for the fiscal
year ending June 30, 1972, and to exceed $11,000,000 for the purpose
of carrying out section 5(n) (other than for salaries and related
expenses) of the Federal Water Pollution Control Act as it existed
immediately prior to the date of the enactment of the Federal Water
Pollution Control Act Amendments of 1972.
(b) There is hereby authorized to be appropriated for the fiscal
year ending June 30, 1972, and to exceed $350,000,000 for the purpose
of making grants under section 8 of the Federal Water Pollution Con-
trol Act as it existed immediately prior to the date of the enactment
of the Federal Water Pollution Control Act Amendments of 1972.
(c) The Federal share of all grants made under section 8 of the
Federal Water Pollution Control Act as it existed immediately prior
to the date of enactment of the Federal Water Pollution Control Act
Amendments of 1972 from sums herein and heretofore authorized for
the fiscal year ending June 30, 1972, shall be that authorized by
section 202 of such Act as established by the Federal Water Pollution
Control Act Amendments of 1972.
(d) Sums authorized by this section shall be in addition to any
amounts heretofore authorized for such fiscal year for sections 5(n)
and 8 of the Federal Water Pollution Control Act as it existed imme-
diately prior to the date of enactment of the Federal Water Pollution
Control Act Amendments of 1972.
SAVINGS PROVISION
SEC. 4. (a) No suit, action, or other proceeding lawfully commenced
by or against the Administrator or any other officer or employee of the
United States in his official capacity or in relation to the discharge of
his official duties under the Federal Water Pollution Control Act as
in effect immediately prior to the date of enactment of this Act shall
abate by reason of the taking effect of the amendment made by section
2 of this Act. The court may, on its own motion or that of any party
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82 LEGAL COMPILATION—SUPPLEMENT I
made at any time within twelve months after such taking effect, allow
the same to be maintained by or against the Administrator or svich
officer or employee,
(b) All rules, regulations, orders, determinations, contracts, certifi-
cations, authorizations, delegations, or other actions duly issued, made,
or taken by or pursuant to the Federal Water Pollution Control Act
as in effect immediately prior to the date of enactment of this Act,
and pertaining to any functions, powers, requirements, and duties
under the Federal Water Pollution Control Act as in effect immedi-
ately prior to the date of enactment of this Act, shall continue in full
force and effect after the date of enactment of this Act until modified
or rescinded in accordance with the Federal Water Pollution Con-
trol Act as amended by this Act.
(c) The Federal Water Pollution Control Act as in effect immedi-
ately prior to the date of enactment of this Act shall remain applica-
ble to all grants made from funds authorized for the fiscal year ending
June 30, 1972, and prior fiscal years, including any increases in the
monetary amount of any such grant which may be paid from author-
izations for fiscal years beginning after June 30. 1972, except as spe-
cifically otherwise provided in section 202 of the Federal Water
Pollution Control Act as amended by this Act and in subsection (c)
of section 3 of this Act.
OVERSIGHT STUDY
SEC. 5. In order to assist the Congress in the conduct of oversight
responsibilities the Comptroller General of the United States shall
conduct a study and review of the research, pilot, and demonstration
programs related to prevention and control of water pollution, includ-
ing waste treatment and disposal techniques, which are conducted,
supported, or assisted by any agency of the Federal Government pur-
suant to any Federal law or regulation and assess conflicts between,
and the coordination and efficacy of, sue'h programs, and make a report
to the Congress thereon by October 1, 1973.
INTERNATIONAL TRADE STUDY
SKC. ti. (a) The Secretary of Commerce, in cooperation with other
interested Federal agencies and with representatives of industry and
the public, shall undertake immediately an investigation and study to
determine—
(1) the extent to which pollution abatement and control pro-
grams will be imposed on, or voluntarily undertaken by. United
States manufacturers in the near future and the probable short-
and long-range effects of the costs of such programs (computed
to the greatest extent practicable on an industry-by-industry
basis) on (A) the production costs of such domestic manufactur-
ers, and (B) the market pi-ices of the goods produced by them;
(2) the probable extent to which pollution abatement and con-
trol programs will be implemented in foreign industrial nations
in the near future and the extent to which the production costs
(computed to the greatest extent practicable on an industry-by-
industry basis) of foreign" manufacturers will be affected by the
costs of such programs:
(3) the probable competitive advantage which any article
manufactured in a foreign nation will likely have in relation to
a comparable article made in the United States if that foreign
nation—
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WATER—STATUTES AND LEGISLATIVE HISTORY 83
(A) does not require its manufacturers to implement pol-
lution abatement and control programs.
(B) requires a lesser degree of pollution abatement and
control in its programs, or
(C) in any way reimburses or otherwise subsidizes its
manufacturers for the costs of such program;
(4) alternative means by which any competitive advantage
accruing to the products of any foreign nation as a result of any
factor described in paragraph (3) may be (A) accurately and
quickly determined, and (B) equalized, for example, by the
imposition of a surcharge or duty, on a foreign product in an
amount necessary to compensate for such advantage; and
(5) the impact, if any, w'Jiich the imposition of a compensating
tariff of other equalizing measure may have in encouraging
foreign nations to implement pollution and abatement control
programs.
(b) The Secretary shall make an initial report to the President and
Congress within six months after the date of enactment of this section
of the results of the study and investigation carried out pursuant to
this section and shall make additional reports thereafter at such times
as he deems appropriate taking into account the development of rele-
vant data, but not less than once every twelve months.
INTERNATIONAL AGREEMENTS
SEC. 7. The President shall undertake to enter into international
agreements to apply uniform standards of performance for the con-
trol of the discharge and emission of pollutants from new sources,
uniform controls over the discharge and emission of toxic pollutants,
and uniform controls over the discharge of pollutants into the ocean.
For this purpose the President shall negotiate multilateral treaties,
conventions, resohitioiis, or other agreements, and formulate, present,
or support proposals at the United Nations and other appropriate
international forums.
LOANS TO SMALL BUSINESS CONCERNS FOR WATER POLLUTION CONTROL
FACILITY
SEC. 8. (a) Section 7 of the Small Business Act is amended by
inserting at the end thereof a new subsection as follows:
"(g)(l) The Administration also is empowered to make loans
(eitlier directly or in cooperation with banks or other lenders through
agreements to participate on an immediate or deferred basis) to assist
any small business concern in affecting additions to or alterations in
the equipment, facilities (including the construction of pretreatment
facilities and interceptor sewers), or methods of operation of such
concern to meet water pollution control requirements established
under the Federal Water Pollution Control Act, if the Administra-
tion determines that such concern is likely to suffer substantial eco-
nomic injury without assistance under this subsection.
"(2) Any such loan—
"(A) shall be made in accordance with provisions applicable
to loans made pursuant to subsection (b) (5) of this section,
except as otherwise provided in this subsection;
"(B) shall be made only if the applicant furnishes the Admin-
istration with a statement in writing from the Environmental
Protection Agency or, if appropriate, the State, that such addi-
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84 LEGAL COMPILATION—SUPPLEMENT I
tions or alterations are necessary and adequate to comply with
requirements established under the Federal Water Pollution Con-
trol Act.
"(3) The Administrator of the Environmental Protection Agency
shall, as soon as practicable after the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972 and not later than
one hundred and eighty days thereafter, promulgate regulations estab-
lishing uniform rules for the issuance of statements for the purpose
of paragraph (2) (B) of this subsection.
"(4) There is authorized to be appropriated to the disaster loan
fund established pursuant to section 4(c) of this Act not to exceed
$800,000,000 solely for the purpose of carrying out this subsection."
(b) Section 4(c)(l)(A) of the Small Business Act is amended
by striking out "and 7(c) (2)" and inserting in lieu thereof "7(c) (2),
and7(g)".
ENVIRONMENTAL COURT
SEC. 9. The President, acting through the Attorney General, shall
make a full and complete investigation and study of the feasibility
of establishing a separate court, or court system, having jurisdiction
over environmental matters and shall report the results of such investi-
gation and study together with his recommendations to Congress not
later than one year after the date of enactment of this Act.
NATIONAL POLICIES AND GOALS STUDY
SEC. 10. The President shall make a full and complete investigation
and study of all of the national policies and goals established by law
for the purpose of determining what the relationship should be
between these policies and goals, taking into account the resovirces of
the Nation. He shall report the results of such investigation and study
together with his recommendations to Congress not later than two
years after the date of enactment of this Act. There is authorized
to be appropriated not to exceed $5,000,000 to carry out the purposes
of this section.
EFFICIENCY STUDY
SEC. 11. The President shall conduct a full and complete investi-
gation and study of ways and means of utilizing in the most effective
manner all of the various resources, facilities, and personnel of the
Federal Government in order most efficiently to carry out the objective
of the Federal Water Pollution Control Act. He shall utilize in con-
ducting such investigation and study, the General Accounting Office.
He shall report the results of such investigation and study together
with his recommendations to Congress not later than two hundred
and seventy days after the date of enactment of this Act.
ENVIRONMENTAL FINANCING
SEC. 12. (a) This section may be cited as the "Environmental
Financing Act of 1972".
(b) There is hereby created a body corporate to be known as the
Environmental Financing Authority, which shall have succession
until dissolved by Act of Congress. The Authority shall be subject to
the general supervision and direction of the Secretary of the Treasury.
The Authority shall be an instrumentality of the United States Gov-
ernment and shall maintain such offices as may be necessary or appro-
priate in the conduct of its business.
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WATER—STATUTES AND LEGISLATIVE HISTORY 85
(c) The purpose of this section is to assure that inability to borrow
necessary funds on reasonable terms does not prevent any State or
local public body from carrying out any project for construction of
waste treatment works determined eligible for assistance pursuant to
subsection (e) of this section.
(d) (1) The Authority shall have a Board of Directors consisting of
five persons, one of whom shall be the Secretary of the Treasury or
his designee as Chairman of the Board, and four of whom shall be
appointed by the Presidejit from among the officers or employees of
the Authority or of any department or agency of the United States
Government.
(2) The Board of Directors shall meet at the call of its Chairman.
The Board shall determine the general policies which shall govern
the operations of the Authority. The Chairman of the Board shall
select and effect the appointment of qualified persons to fill the offices
as may be provided for in the bylaws, with such executive functions,
powers, and duties as may be prescribed by the bylaws or by the
Board of Directors, and such persons shall be the executive officers
of the Authority and shall discharge all such executive functions,
powers, and duties. The members of the Board, as such, shall not
receive compensation for their services.
(e) (1) Until July 1,1975, the Authority is authorized to make com-
mitments to purchase, and to purchase on terms and conditions deter-
mined by the Authority, any obligation or participation therein which
is issued by a State or local public body to finance the non-Federal
share of the cost of any project for the construction of waste treat-
ment works which the Administrator of the Environmental Protec-
tion Agency has determined to be eligible for Federal financial
assistance under the Federal Water Pollution Control Act.
(•2) Xo commitment shall be entered into, and no purchase shall be
made, unless the Administrator of the Environmental Protection
Agency (A) lias certified that the public body is unable to obtain on
reasonable terms sufficient credit to finance its actual needs; (B) has
approved the project as eligible under the Federal Water Pollution
Control Act; and (C) has agreed to guarantee timely payment of
principal and interest on the obligation. The Administrator is author-
ized to guarantee such timely payments and to issue regulations as he
deems necessary and proper to protect such guarantees. Appropria-
tions are hereby authorized to be made to the Administrator in such
sums as are necessary to make payments under such guarantees, and
such payments are authorized to be made from such appropriations.
(3) Xo purchase shall be made of obligations issued to finance proj-
ects, the permanent financing of which occurred prior to the enact-
ment of this section.
(4) Any purchase by the Authority shall be upon such terms and
conditions as to yield a return at a rate determined by the Secretary of
the Treasury taking into consideration (A) the current average yield
on outstanding marketable obligations of the United States of com-
parable maturity or in its stead whenever the Authority has sufficient
of its own long-term obligations outstanding, the current average yield
on outstanding obligations of the Authority of comparable maturity;
and (B) the market yields on municipal bonds.
(5) The Authority is authorized to charge fees for its commitments
and other services adequate to cover all expenses and to provide for
the accumulation of reasonable contingency reserves and such fees
shall be included in the aggregate project costs.
(f) To provide initial capital to the Authority the Secretary of
the Treasury is authorized to advance the funds necessary for this
purpose. Each such advance shall be upon such terms and conditions
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525-310 O - 73 - 7
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86 LEGAL COMPILATION—SUPPLEMENT I
as to yield a return at a rate not less than a rate determined by the
Secretary of the Treasury taking into consideration the current aver-
age yield on outstanding marketable obligations of the United States
of comparable maturities. Interest payments on such advances may be
deferred, at the discretion of the Secretary, but any such deferred
payments shall themselves bear interest at the rate specified in this sec-
tion. There is authorized to be appropriated not to exceed $100,000.000.
which shall be available for the purposes of this subsection.
(g) (1) The Authority is authorized, with the approval of the Sec-
retary of the Treasury, to issue and have, outstanding obligations
having such maturities and bearing such rate or rates of interest-as
uviy be determined by the Authority. Such obligations may be redeem-
able at the option of the Authority before maturity in such manner
as may be stipulated therein.
(•2) As authorized in appropriation Acts, and such authorizations
may be without fiscal year limitation, the Secretary of the Treasury
may in his discretion purchase or agree to purchase any obligations
issued pursuant to paragraph (1) of this subsection, and for such
purpose the Secretary of the Treasury is authorized to use as a public
debt transaction the proceeds of the sale, of any securities hereafter
issued under the Second Liberty Bond Act. as now or hereafter in
force, and the purposes for which securities may be issued under the
Second Liberty Bond Act as now or hereafter in force, are extended
to include such purchases. Each purchase of obligations by the Sec-
retary of the Treasury under this subsection shall be upon such terms
and conditions as to yield a return at a rate not less than a rate deter-
mined by the Secretary of the Treasury, taking into consideration the
current average yield on outstanding marketable obligations of the
United States of compaiable maturities. The Secretary of the Treas-
ury may sell, upon such terms and conditions and at such price or
prices as he shall determine, any of the obligations acquired by him
under this paragraph. All purchases and sales by the Secretary of the
Treasury of such obligations under this paragraph shall IK- treated as
public debt transactions of the United States.
(h) The Secretary of the Treasury is authorized and directed to
make animal payments to the Authority in such amounts as are nec-
essary to equal the amount by which the dollar amount of interest
expense accrued by the Authority on account of its obligations exceeds
the dollar amount of interest income accrued by the Authority on
account of obligations purchased by it pursuant to subsection (e) of
this section.
(i) The Authority shall have power—
(1) to sue and be sued, complain and defend, in its corporate •
name;
(2) to adopt, alter, and use a corporate seal, which shall be
judicially noticed;
(3) to adopt, amend, and repeal bylaws, rules, and regulations
as may l>e necessary for the conduct of its business;
(4) to conduct its business, carry on its operations, and have
offices and exercise the powers granted by this section in any
State without regard to any qualification or similar statute in any
State;
(5) to lease, purchase, or otherwise acquire, own. hold, improve.
use, or otherwise deal in and with any property, real, personal, or
mixed, or any interest therein, wherever situated;
(6) to accept gifts or donations of services, or of property, real.
personal, or mixed, tangible or intangible, in aid of any of the
purposes of the Authority:
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WATER—STATUTES AND LEGISLATIVE HISTORY 87
(7) to sell, convey, mortgage, pledge, lease, exchange, and
otherwise dispose of its property and assets ;
(8) to appoint such officers, attorneys, employees, and agents as
may be required, to define their duties, to fix and to pay such
compensation for their services as may be determined, subject to
the civil service and classification laws, to require bonds for them
and pay the premium thereof; and
(9) to enter into contracts, to execute instruments, to incur
liabilities, and to do all things as are necessary or incidental to
the proper management of its affairs and the proper conduct .of
its business.
(j) The Authority, its property, its franchise, capital, reserves,
surplus, security holdings, and other funds, and its income shall be
exempt from all taxation now or hereafter imposed by the United
States or by any State or local taxing authority; except that (A) any
real property and any tangible personal property of the Authority
shall be subject to Federal, State, and local taxation to the same extent
according to its value as other such property is taxed, and (B) any
and all obligations issued by the Authority shall be subject both
as to principal and interest to Federal, State, and local taxation to
the same extent as the obligations of private corporations are taxed.
(k) All obligations issued by the Authority shall be lawful invest-
ments, and may be accepted as security for all fiduciary, trust, and
public funds, the investment or deposit of which shall be under author-
ity or control of the United States or of any officer or officers thereof.
All obligations issued by the Authority pursuant to this section shall
be deemed to be exempt securities within the meaning of laws admin-
istered by the Securities and Exchange Commission, to the same
extent as securities which are issued by the United States.
(1) In order to furnish obligations for delivery by the Authority,
the Secretary of the Treasury is authorized to prepare such obligations
in such form as the Authority may approve, such obligations when
prepared to be held in the Treasury subject to delivery upon order by
the Authority. The engraved plates, dies, bed pieces, and so forth,
executed in connection therewith, shall remain in the custody of the
Secretary of the Treasury. The Authority shall reimburse the Sec-
retary, of the Treasury for any expenditures made in the preparation,
custody, and delivery of such obligations.
(m) The, Authority shall, as soon as practicable after the end of
each fiscal year, transmit to the. President and the Congrees an annual
report of its operations and activities.
(n) The sixth sentence of the seventh paragraph of section 5136 of
the Revised Statutes, as amended (12 U.S.C. 24). is amended by insert-
ing "or obligations of the Environmental Financing Authority" imme-
diately after "or obligations, participations, or other instruments of or
issued by the Federal National Mortgage Association or the Govern-
ment National Mortgage Association'".
(o) The budget and audit provisions of the Government Corpora-
tion Control Act (31 U.S.C. 846) shall be applicable to the Environ-
mental Financing Authority in the same manner as they are applied to
the who'ly owned Government corporations.
(p) Section 3680 of the Revised Statutes, as amended (31 U.S.C.
711), is further amended by adding a new paragraph following the
last paragraph appropriating moneys for the purposes under the
Treasury Department to read as follows:
"Payment to the Environmental Financing Authority: For pay-
ment to the Environmental Financing Authority under subsection (h)
of the Environmental Financing Act of 1972."
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88 LEGAL COMPILATION—SUPPLEMENT I
SEX DISCRIMINATION"
SEC. 13. No person in the United States shall on the ground of sex
be excluded from participation in. be denied the benefits of, or be sub-
jected to discrimination under any program or activity receiving
Federal assistance under this Act. the Federal Water Pollution Con-
trol Act, or the Environmental Financing Act. This section shall be
enforced through agency provisions and rules similar to those already
established, with respect to racial and other discrimination, under tide
VI of the Civil Rights Act of 1964. However, this remedy is not exclu-
sive and will not prejudice or cut off any other legal remedies a\ ail-
able to a discriminatee.
CARL ALBERT
Speaker of the House of Representatives.
FRANK E. Moss
acting President of the Senate pro tempore.
IN THE SENATE OF THE UNITED STATES,
October 18 (legislative day, October 17), 1972.
The Senate having proceeded to reconsider the bill (S. 2770) entitled "An
Act to amend the Federal Water Pollution Control Act," returned by the
President of the United States with his objections, to the Senate, in which it
originated, it was
Resolved, That the said bill pass, two-thirds of the Senators present having
voted in the affirmative.
Attest:
FRANCIS R. VALEO
Secretary.
By: Darrell St. Claire
Assistant Secretary.
I certify that this Act originated in the Senate.
FRANCIS R. VALEO
Secretary.
By: Darrell St. Claire
Assistant Secretary.
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WATER—STATUTES AND LEGISLATIVE HISTORY 89
IN THE HOUSE OF REPRESENTATIVES, U.S.,
October 18, 1972.
The House of Representatives having proceeded to reconsider the bill (S.
2770) entitled "An Act to amend the Federal Water Pollution Control Act,"
returned by the President of the United States with his objections to the
Senate, in which it originated, it was
Resolved, That the said bill pass, two-thirds of the House of Representatives
agreeing to pass the same.
Attest:
W.PAT JENNINGS
Clerk.
By: W. Raymond Colley.
LEGISLATIVE HISTORY;
HOUSE REPORTS: No. 92-911 accompanying H.R. 11896 (Comm. on Public
Works) and No. 92-1465 (Comm. of Conferenoe).
SENATE REPORTS: No. 92-414 (Comm. on Public Works) and No. 92-1236
(Comm. of Conference).
CONGRESSIONAL RECORD:
Vol. 117 (1971): Nov. 2, considered and passed Senate.
Vol. 118 (1972): Mar. 27-29, considered and passed House,
amended, in lieu of H.R. 11896.
Oct. 4, House and Senate agreed to conference
report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS:
Vol. 8, No. 43 (1972): Oct. 17, vetoed; Presidential message.
CONGRESSIONAL RECORD:
Vol. 118 (1972): Dot. 18, Senate and House overrode veto.
o
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1.2p(l) SENATE COMMITTEE ON PUBLIC WORKS
S. REP. No. 92-414, 92d Cong., 1st Sess. (1971)
FEDEKAL WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1971
OCTOBER 28, 1971.—Ordered to be printed
Mr. RANDOLPH, from the Committee on Public Works, submitted
the following
REPORT
together with
SUPPLEMENTAL VIEWS
[To accompany S. 2770]
The Committee on Public Works, to which was referred the bill
(S. 2770) Federal Water Pollution Control Act Amendments of 1971,
having considered the same, reports favorably thereon without amend-
ment and recommends that the bill do pass. An original bill (S. 2770)
is reported in lieu of S. 523, S. 1012, S. 1013, S. 1014, S. 1017 and
S. 1238 which were considered by the committee.
GENEBAL STATEMENT
HISTORY
For more than two decades, Federal legislation in the field of
water pollution control has been keyed primarily to an important
principle of public policy: The States shall lead the national effort to
prevent, control and abate water pollution. As a corollary, the Federal
role has been limited to support of, and assistance to, the States.
[P- 1]
(90)
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WATER—STATUTES AND LEGISLATIVE HISTORY 91
The 1948 legislation, for example, assigned powers for enforcement
in water pollution control to Governors of the States. The Federal
agencies were authorized only to support research in water pollution,
projects in new 'technology, and limited loans to assist the financing of
treatment plants.
'Given these 'basic provisions, State and Federal efforts in "water pol-
lution control went forward with little legislative change for nearly 10
years. It was a period of transition. To most Americans, the problems
of water pollution control appeared to be localized and moderate.
In 1956, the Congress approved the first major legislative changes
in the water pollution control program. Federal grants were author-
ized to assist States in preparing plans for pollution control and to
help localities in building treatment plants. The authority for research
and technical assistance was increased and broadened. Measures for
controlling pollution of interstate waters were tightened.
The 1956 legislation called for increased cooperation between the
Federal government and the States to develop a broader national
effort against water pollution. The Federal funding authorized, how-
ever, fell short of needs. Pressures of population and economic growth
upon the natural resources, as evidenced by reports of previously un-
observed forms and kinds of water pollution, continued to increase.
In 1965, the Congress approved a second set of major legislative
decisions for the water pollution control program. For the purpose of
this report, perhaps the most important among these decisions were the
assignment of a new responsibility to the States, the continued use
of a 1948 enforcement procedure, and the establishment of a new
agency to administer the Federal portion of the program.
Each State was required by the 1965 Act to develop standards for
water quality within its 'boundaries. These standards were to be ap-
plied to all interstate navigable waters flowing through the State;
intrastate waters were not included. The State standards were to be
submitted to the new Federal agency by July 1, 1967, for approval.
The 1948 enforcement procedure provided for conferences and ne-
gotiations between dischargers of pollutants and officials of the gov-
ernments involved. The procedure also permitted judicial review of
the abatement conference recommendations. Further, a court could
order 'abatement only after a finding that compliance with the order
was feasible.
The new agency established to administer the Federal portion of
the program was originally known as the Federal Water Pollution
Control Administration and was located in the Department of Health,
Education, and Welfare. During the past five years, its authority has
been transferred twice to other officials in the Executive branch: In
May, 1966, to the Secretary of the Interior, and in December, 1970,
to the Administrator of the Environmental Protection Agency.
The Congress moved again in 1966 to broaden and intensify the
Federal support of State efforts in water pollution control. A five-
year authorization totaling $3.4 billion for grants to assist the con-
struction of waste treatment plants was provided. The authorization
scheduled $150 million for fiscal year 1967 and increased steeply
during the 5 years to $1.25 billion for fiscal year 1971.
Last year, the Congress confronted several specific problems in wa-
ter pollution control. The 1970 amendments added to the basic law
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92 LEGAL COMPILATION—SUPPLEMENT I
new sections on liability for cleaning up of oil discharges, discharge
of hazardous substances, discharge of sewage from vessels, demonstra-
tion projects for cleaning up pollution in the Great Lakes, acid mine
drainage, regulation of Federal activities affecting water quality, and
manpower training for water pollution control.
1970 HEARINGS
During April, May, and June of 1970, the Subcommittee on Air
and Water Pollution devoted 14 days of public hearings to 18 Senate
bills concerning water pollution abatement and control. Among the
bills were four introduced for the Administration to amend the law
concerning construction grants, standard setting, and enforcement.
(The Committee is separately reporting the fourth Administration
bill, establishing an Environmental Financing Authority.) The Sub-
committee's extremely busy schedule with the Clean Air Act of 1970
and the Resource Recovery Act of 1970 did not permit it to develop
a water pollution control bill for action by the Committee on Public
Works.
The 1970 water pollution hearings and the Committee's work with
the Clean Air and Resource Recovery Acts contributed greatly, how-
ever, to the Committee's approach to the pending legislation in this
first session of the 92nd Congress. As the Committee observed in its
summary of 1969 and 1970 legislative activities:
The Committee's experience with the early legislation, and
the experience of other branches of government, suggested
the need for environmental planning on a broader scale. Dur-
ing the 91st Congress, the Committee continued to press for
control of existing sources of pollution, and it began to work
toward an environmental policy in which the rights to, and
responsibility for, use of the air, water, and land resources
would be more precisely denned.
The Committee's goal is a policy for adequate management
of all forms of environmental pollution and for effective pro-
tection of the environment. A policy for air pollution only, a
policy for water pollution only, a policy for solid waste dis-
posal, only, will not suffice. A broad policy and a coordinated
effort are imperative.
In particular, the Committee became increasingly concerned during
1970 with the effects of pollution upon public (health. In its report on
the Clean Air Amendments of 1970, the Committee said in part:
The legislation reported by the Committee is the result of
deep concern for protection of the health of the American
people. Air pollution is not only an aesthetic nuisance. The
Committee's concern with direct adverse effects upon public
'health has increased since the publication of air quality docu-
ments for five major pollutants (oxides of sulfur, particulates,
carbon monoxide, hydrocarbons, and oxidants). These docu-
ments indicate that the air pollution problem is more severe,
more pervasive, and growing at a more rapid rate than was
generally believed.
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WATER—STATUTES AND LEGISLATIVE HISTORY 93
The final sentence of the quotation could be applied with equal ac-
curacy to the information developed by the 1971 hearings on the
pending water pollution control legislation.
1971 HEARINGS
The oversight portion of the 1971 hearings was conducted by the Sub-
committee on Air and Water Pollution on February 4,8, and 9. Among
the witnesses were the Administrator of the Environmental Protec-
tion Agency and members of his staff; the Mayors of Detroit, Michigan,
and Atlanta, Georgia, and representatives of the National League of
Cities and United States Conference of Mayors.
The Subcommittee's Washington hearings on 15 Senate bills were
held March 15-19 and March 22-24. Among these bills were four in-
troduced for the Administration which were similar to those consid-
ered during the 1970 water pollution control hearings.
In addition, the Subcommittee held field hearings March 26 at Eeho-
both Beach, Delaware, on the problems of ocean dumping; April 2 at
Kansas City, Missouri, on the problems associated with agricultural
runoff; and April 5 at New Orleans, Louisiana, on the problems asso-
ciated with petrochemical wastes and deep well disposal of such wastes.
Further, the Subcommittee's Panel on Science and Technology held
hearings May 13 and 14 on the technology of waste water treatment
and related issues.
ADEQUACY or STANDARDS
The setting of water quality standards for interstate navigable
waters, as indicated above, is the keystone of the present program for
control of water pollution. The standards are intended to function in
two ways:
1. As a measure of performance, the standards are expected to
establish the maximum level of pollution allowable in interstate
waters.
2. The standards also are intended to provide an avenue of legul
action against polluters. If the wastes discharged by polluters
reduce water quality below the standards, actions may be begun
against the polluters.
The task of setting water quality standards, assigned to the States
by the 1965 legislation, is lagging. More than 4 years after the
deadline for submission of standards, only a little more than half of
the States have fully approved standards. Of the 54 jurisdictions cov-
ered by the water pollution control program—the figure includes the
50 States, the District of Columbia, Guam, Puerto Kico, and the
Virgin Islands—only 27 have fully approved standards. However,
on their own motion, 44 States have also adopted intrastate water
quality standards, in most cases quite similar to their standards for
interstate waters.
The States have first responsibility for enforcement of their stand-
ards. When approved by the Environmental Protection Agency, how-
ever, the standards for interstate navigable waters become Federal-
State standards.
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94 LEGAL COMPILATION—SUPPLEMENT I
A critical delay of enforcement for interstate water quality results
from the water quality standards structure just described. The EPA
Administrator may begin action to abate pollution only when:
1. Water quality of interstate waters is reduced below the estab-
lished standards;
2. Pollution originating in one State is endangering the health
or welfare of persons in another State downstream; or
3. The Governor of the State in which the pollution is origi-
nating consents to the proposed action.
ADEQUACY OF ENFORCEMENT
The continued use of the 1948 abatement procedure also contributes
to delay. The record shows an almost total lack of enforcement. Under
this procedure, only one case has reached the courts in more than two
decades.
In that case, involving a Midwestern city, more than four years
elapsed between initial conference and consent decree. The city later
constructed a sewage treatment plant. Within 2 years, the plant
was treating only half of the city's sewage. Five million tons of raw
sewage were being dumped into the river each day.
Continued use of the 1948 abatement procedure, and the almost
total lack of enforcement, encourage governing bodies and officials to
search for other, more direct avenues of action against water polluters
and water pollution.
One such approach which has been focused on is the use of section 13
of the 1899 Refuse Act, which declares a prohibition over the dis-
charge of any matter into the navigable waters.
While the permit program created in late 1970 under the Refuse Act
by the Administrator seeks to establish this direct approach, it is
weak in two important respects: It is being applied only to industrial
polluters, and authority is divided between two Federal agencies.
Experience with the permit system during the past 10 months sug-
gests that the machinery used to date may be as cumbersome as the
1948 abatement procedure. Estimates of the number of permit, appli-
cations to be received run as high as 300,000; estimates of the time
required to process the applications run as long as four years.
ADEQUACY OF FUNDING
The lack of adequate funding of grants to assist States and locali-
ties in constructing sewage treatment plants is causing critical prob-
lems.
Of the $3.4 billion authorized for this purpose by the 1966 legisla-
tion, only $2.2 billion was appropriated. The backlog of projects eli-
gible for Federal payments has reached a total of nearly $2 billion.
As more States and localities move to take part in the construction
program, the need for increased Federal spending is rising rapidly.
Five years ago, the Committee estimated that more than $20 billion
worth of sewage treatment plants would have to be built before 1972
in order to serve the population expected in 1980.
Estimates received by the Commission from the National League of
Cities—United States Conference of Mayors during its hearings last
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WATER—STATUTES AND LEGISLATIVE HISTORY 95
year place the total national need for the next five years at more than
$30 billion. The figure covers only needs already identified by local
officials.
In addition to these demands for increased Federal funding, there
is another problem connected with the construction grant program.
A 1969 report of the General Accounting Office raises a critical ques-
tion concerning the use of Federal funds.
Based on a study of eight States, the GAO report discloses that
more than $80 million of $1 billion in Federal grants awarded to those
States through 1968 was used to help build about 400 municipal treat-
ment plants. The report states, however, that the plants were designed
to treat primarily the wastes of industries located within or near the
municipal boundaries.
As the size of the Federal grant program and the costs of construc-
tion increase, this kind of indirect payment to industrial users of joint
treatment plants also will increase.
ADEQUACY OF INFORMATION
The Federal water pollution control program suffers from a lack
of information concerning dischargers, amounts and kinds of pollu-
tion, abatement measures taken, and compliance.
The present water pollution control law allows the EPA Adminis-
trator, after an enforcement conference, to require the filing of reports
by polluting industries and municipalities. The reports are to include
data on discharges and actions taken to abate pollution. However, two
provisions of law prevent the Administrator from obtaining adequate
information. Polluters are allowed to omit from their reports any in-
formation they believe to involve trade secrets or secret processes. And
the Administrator has no legal right of entry so that he may check
the polluters' operations.
The situation is not so damaging as it might be, since many State
programs give their officials the right to enter and inspect plants for
compliance with State discharge permits.
The 1969 report of the General Accounting Office, referred to
earlier, suggests how much vital information is not available to Fed-
eral enforcement officials. The GAO investigated files of State per-
mits on 80 industrial plants discharging wastes into a 170-mile reach
of the Mississippi Eiver. The files included information on the amount
of wastes being discharged by only 52 of the 80 plants.
It should be noted that one of the most important aspects of the.
Administration's 1899 Refuse Act permit program has been the ac-
cumulation for the first time of detailed information on the character
of industrial pollution discharges.
ADEQUACY OF RESEARCH
The Federal water pollution control program also suffers from a
lack of adequate research and demonstration beyond the traditional
methods used in municipal treatment plants.
In primary treatment of sewage, between 30 to 50 percent of organic
pollution is removed. With secondary treatment, between 50 and 90
percent is removed.
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96 LEGAL COMPILATION—SUPPLEMENT I
Neither of the traditional methods, then, can be completely satisfac-
tory, and both have significant disadvantages. Primary and secondary
treatment, for example, requires large capital expenditures and the
use of extensive land areas.
The sludge remaining from secondary treatment can create special
problems. Some localities burn sludge, thus contributing to air pollu-
tion. Other localities use sludge for landfill. Still others dump sludge
into the oceans where it is hazardous to sea life.
The reliance of the Federal program upon primary and secondary
treatment continues, although the program's efforts in research and
demonstration is now more than 10 years old. The annual budget for
research by the water quality office of the Environmental Protection
Agency amounts to less than $50 million.
COMMITTEE FINDINGS
From its two-year study of the Federal water pollution control pro-
gram, the Committee concludes that the national effort to abate and
control water ;pollution has been inadequate in every vital aspect:
—Many of the Nation's navigable waters are severely polluted, and
major waterways near the industrial and urban areas are unfit for
most purposes;
—Rivers are the primary sources of pollution of coastal waters and
the oceans, and many lakes and confined waterways are aging rapidly
under the impact of increased pollution;
—Rivers, lakes, and streams are being used to dispose of man's
wastes rather than to support man's life and health; and
—The use of any river, lake, stream or ocean as a waste treatment
system is unacceptable.
The Committee believes the restoration of the natural chemical,
physical, and biological integrity of the Nation's waters is essential.
To achieve this objective, the Committee recommends that the follow-
ing be adopted as national policy:
—The discharge of pollutants into the navigable waters be elimi-
nated by 1985;
—An interim goal of water quality be achieved by 1981 to provide
for the protection and propagation of fish, shellfish, and wildlife, and
for recreation in and on the water;
—The discharge of toxic pollutants in toxic amounts be prohibited;
—Federal grant assistance be provided to any community which
constructs a waste treatment facility which is consistent with the pro-
gram set forth by the Congress;
—Regional waste management treatment programs be developed
and implemented to assure adequate control of all sources of pollu-
tion in each State; and
—A major research and demonstration effort be initiated to find
the technological methods necessary to eliminate waste discharges.
THE LEGISLATION
The legislation recommended by the Committee proposes a major
change in the enforcement mechanism of the Federal water pollution
control program from water quality standards to effluent limits.
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WATER—STATUTES AND LEGISLATIVE HISTORY 97
Under the 1965 Act, water quality standards were to be set as the
control mechanism. States were to decide the uses of water to be pro-
tected, the kinds and amounts of pollutants to be permitted, the degree
of pollution abatement to be required, the time to be allowed a polluter
for abatement.
The water quality standards program is limited in its success. After
five years, many States do not have approved standards. Officials are
still working to establish relationships between pollutants and water
uses. Time schedules for abatement are slipping away because of fail-
ure to enforce, lack of effluent controls, and disputes over Federal-
State standards.
The Committee adopted this substantial change because of the great
difficulty associated with establishing reliable and enforceable precise
effluent limitations on the basis of a given stream quality. Water quality
standards, in addition to their deficiencies in relying on the assimila-
tive capacity of receiving waters, often cannot be translated into efflu-
ent limitations—defendable in court tests, because of the imprecision
of models for water quality and the effects of effluents in most waters.
Under this Act the basis of pollution prevention and elimination
will be the application of effluent limitations. Water quality will be a
measure of program effectiveness and performance, not a means of
elimination and enforcement.
The Committee recommends'the change to effluent limits as the best
available mechanism to control water pollution. With effluent limits,
the Administrator can require the best control technology; he need
not search for a precise link between pollution and water quality.
It is the Committee's intent to restore the balance of Federal-State
effort in the program as contemplated by the 1965 and 1966 Acts. The
Committee is particularly concerned that there should be a balanced
effort in the discharge permit system initiated under section 13 of the
1899 Refuse Act.
The permit system establishes a direct link between the Federal gov-
ernment and each industrial source of discharge into the navigable
waters. This permit system is independent of the Federal-State pro-
gram set up by the 1965 Act which contributes to uncertainty among
all concerned.
The permit system, as restated by this legislation, prohibits the dis-
charge of pollutants into the navigable waters.
The legislation will restore Federal-State balance to the permit
system. Talents and capacities of those States whose own programs
are superior are to be called upon to administer the permit system
within their boundaries. The Administrator is to suspend his activity,
insofar as the permit system is concerned, in these States.
In order to carry out the objective of this legislation, a two-phase
program for applying effluent limits is created; the first based on best
practicable technology, the second based on best available technology.
In Phase I, to be implemented by 1976, all industrial pollution
sources must apply the best practicable technology. Communities will
be required to have secondary treatment construction programs by
June 30,1974.
In Phase II, to be implemented by 1981, communities and industries
will be required to apply, where the goal of no-discharge cannot be
attained, the best available technology.
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98 LEGAL COMPILATION—SUPPLEMENT I
Until State programs are approved, the Administrator of the En-
vironmental Protection Agency is authorized to regulate discharges
of pollutants through the use of an expanded permit program. He
also may ban the discharge of any toxic pollutant.
Progress toward the national goal is to be assisted through the
following steps:
The legal base for use of Federal permits to regulate the dis-
charge of pollutants is reinforced and improved.
The scope of the 1899 Refuse Act is broadened; the administra-
tive capability is strengthened.
Where the Administrator can identify a direct link between a
discharge source and water quality, the Administrator is author-
ized to tighten controls on the polluter.
Wherever attainable, an interim goal of water quality is to be
achieved by 1981 providing for the protection and propagation of
fish, shellfish, and wildlife, and for recreation in and on the water.
To assist States and localities, the bill proposes a 4-year program
of Federal grants for construction of sewage treatment plants. The
Federal matching funds total $14 billion through fiscal year 1975.
The minimum Federal grant is set at 60 percent of project cost. If
a State contributes as much as 10 percent of project cost, the Federal
grant is increased by a matching 10 percent. A locality's share thus
becomes 20 percent of project cost.
The bill requires grantees to use the best practicable methods for
waste treatment. After fiscal year 1974, all grantees must evaluate
available methods for recycling and reclaiming wastes, including the
use of confined and contained disposal of pollutants.
The bill requires Governors and local officials, in cooperation with
the Administrator, to develop plans for areawide waste treatment
management in areas with critical water pollution control problems.
The plans are to be completed by July 1,1974.
In addition to municipal and industrial wastes, the areawide plans
are to include procedures to control agricultural runoff, surface and
underground mine runoff, construction runoff, and disposal of pol-
lutants on land or in excavations.
The bill also provides reimbursement for sewage treatment plants
built without Federal assistance during earlier stages of the Federal
program. Plants begun between fiscal year 1956 and fiscal year 1966
are eligible for grants equal to 30 percent of project cost. Plants begun
after June, 30,1966 are eligible for grants equal to 50 percent of project
cost. A total of $2.4 billion is authorized for this purpose.
A discretionary fund of $200 million is set aside for the Adminis-
trator's use where costs of regional sewage treatment plans may exceed
State and local entitlement to the Federal grants. The fund is intended
to assist such projects as the District of Columbia's Blue Plains plant,
a major polluter of the Potomac River.
Grantees must adopt a system of user chargers to assure that each
class of users will help to pay the costs of operation and maintenance,
including replacement, of sewage treatment plants financed with
Federal grants.
In this context, each industrial user of such facilities must agree
by contract to pay back the portion of Federal share of construction
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WATER—STATUTES AND LEGISLATIVE HISTORY 99
cost allocable to the industrial user's wastes. These payments are to be
received by the Administrator and deposited in the Federal Treasury.
The bill makes unlawful the dumping or disposal of any radio-
logical, chemical or biological warfare agent, or high-level radio-
active waste into the navigable waters.
Discharges into the territorial seas or discharges from ocean outfalls
are subject to the regulations applicable to discharges into the domestic,
navigable waters.
For new, point sources of discharge, the bill requires the Adminis-
trator to set uniform standards of performance. These standards must
reflect the maximum reduction of pollutants possible through use of
the best available control technology. Twenty-eight types of industry
listed by the bill are to be covered by the performance standards. Each
State may develop and submit to the Administrator a procedure for
enforcing the performance standards for new. point sources located
within the State.
The bill also requires the Administrator to conduct research into
better methods of controlling pollutants from non-point sources such
as agricultural runoff. A total of $10 million is set aside for the agri-
cultural research.
Further, each State is required to adopt methods for control of pol-
lution in fresh water lakes within the State. Restoration of water qual-
ity in these lakes is to be assisted by Federal funds.
The task of enforcing provisions of the bill is assigned to the Admin-
istrator. He is authorized to enforce permit violations immediately,
or if a State fails to act within 30 days after receipt of a notice of
violation, the Administrator may issue an order to comply or go to
court against the violator.
Civil and criminal penalties are provided. A second conviction shall
be punished by a fine of not more than $50,000 per day of violation,
two years in prison, or both.
Under the bill, citizens themselves may go to United States District
Courts against those who violate effluent standards or compliance
orders. Citizens may also go to court against the Administrator for
failure to carry out non-discretionary duties under the law.
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100 LEGAL COMPILATION—SUPPLEMENT I
DISCUSSION OF INTENT
TITLE I—KESEAECH AND EELATED PEOGEAMS
SECTION 101—DECLARATION OF POLICY
This section establishes a policy that the discharge of pollutants
should be eliminated by 1985, that the natural chemical, physical,
and biological integrity of the Nation's waters be restored, and
that an interim goal of a water quality allowing fish propagation
and suitable for swimming should be reached by 1981. The States
are declared to have the primary responsibility and right to imple-
ment such a goal.
The policy declaration of the Federal Water Pollution Act has been
revised substantially in order to represent the departure in Federal
water pollution control policy from a water quality standards control
mechanism to a discharge control mechanism.
The objective of the Act is to restore and maintain the natural
chemical, physical, and biological integrity of the Nation's waters.
The policy is set forth that, consistent with the provisions of the Act,
the discharge of pollutants into the navigable waters be eliminated by
1985.
This policy, supplemented by other provisions of the Act relative to
the control of toxic pollutants, construction of waste treatment facili-
ties, research and demonstration, and regional waste treatment man-
agement, provides an overall identification of program goals and
methods of program implementation.
It is important to recognize that the interim goal of "water quality—
to be achieved by 1981, and providing for the protection and propaga-
tion of fish, shellfish and wildlife and also providing for recreation in
and on the water—continues the essence of the water quality standards
program. The interim goal also recognizes (as set forth in Section 302)
the difficulty of establishing effluent limitations which precisely relate
to the maintenance or achievement of a specific water quality criteria.
The Committee recognizes the difficulty of implementing a no-dis-
charge policy. The development of the midcourse correction informa-
tion, required by Section 305, should provide the Congress and the
public with the definitive data needed to evaluate fully the implica-
tions of a no-discharge policy. That information will assist the Nation
in any decision on the proper enforcement mechanism to be established
to support the goal, if appropriate, or a decision to refine the date for
the attainment of the goal with greater precision, if required, or the
extent of the exceptions to that goal, if any, or whether the costs
associated with reaching this ultimate standard, in some instances, may
far outweigh the benefits derived. In the interim, the goal set forth
in Section 101 should provide the Administrator and the States with
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WATER—STATUTES AND LEGISLATIVE HISTORY 101
the direction and the mandate to direct research efforts toward devel-
oping the technology to apply a no-discharge standard. Without a
clearly set goal of natural water quality achieved through application
of a no-discharge policy, it is not likely that resources will be applied
to develop the means necessary to achieve an environmentally and
ecologically sound water quality goal.
A high degree of informed public participation in the control
process is essential to the accomplishment of the objectives we seek—
a restored and protected natural environment.
Section 101 (d) is included because the Committee recognizes that
the manner in which these measures are implemented will depend,
to a great extent, upon the pressures and persistence which an inter-
ested public can exert upon the governmental process.
The Environmental Protection Agency and the State should actively
seek, encourage and assist the involvement and participation of the
public in the process of setting water quality requirements and in their
subsequent implementation and enforcement.
Information and education programs should be devised which will
acquaint the public with the complexity of the water quality control
process and provide them with the technical information. To accom-
plish this, the Environmental Protection Agency should look to the
utilization and support of such devices as community workshops
and other assistance activities which were developed and utilized so
effectively in the implementation of the Clean Air Act.
SECTION 102—COMPREHENSIVE PROGRAMS FOR WATER POLLUTION
CONTROL
The Administrator retains authority to develop programs for
eliminating water pollution as he shall determine the need and
value of any water quality storage that may be incorporated in
any reservoir project.«Fifty percent matching grants for river-
basin planning are combined.
Section 102 of the bill parallels Section % of existing law. Sub-
section (b) is modified to make it clear that regulation of streamflow,
while a legitimate project purpose, cannot substitute for adequate waste
treatment or other methods of eliminating waste at the source. Under
the amended language, the Administrator is given the responsibility
for determining when low flow augmentation is an appropriate tech-
nique for supplementing primary pollution control programs.
Pursuant to section 3(c) of the existing- Federal Water Pollution
Control Act, the States—or, with the approval of the Governor, sub-
divisions of States—are eligible for Federal grants to assist the
development of comprehensive river basin plans.
The concept of river basin planning is important to the develop-
ment of programs which will achieve and maintain water quality
objectives. Only a limited number of grants have been made under the
existing law because of inadequate funding. The need for river basin
planning continues and, therefore, the Committee bill continues the
authority for river basin planning grants to States and their subdivi-
sions in subsection (c) of section 102. A separate, expanded authoriza-
tion is provided to carry out the program.
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102 LEGAL COMPILATION—SUPPLEMENT I
SECTION 103—INTERSTATE COOPERATION AND UNIFORM LAWS
This section restates section 4 of existing law, with minor con-
forming language changes.
SECTION 104—RESEARCH, INVESTIGATIONS, TRAINING, AND INFORMATION
The authority of the Administrator in support of research pro-
grams to prevent and eliminate water pollution is continued and
expanded.
The Administrator is authorized to establish field research lab-
oratories in six sections of the Nation and to study the nature of
river systems and sewage in rural areas. Authorization for a one-
year study of problems associated with the disposal of waste oils,
such as lubricating oils, is included in this section.
New authorizations in this section also provide for research
into means to reduce unnecessary water consumption, as well as
research, in cooperation with the Secretary of Agriculture, on
problems associated with the control of agricultural pollution.
Ten million dollars is authorized in fiscal year 1972, and annually
thereafter, for this agricultural pollution research.
Another $7,500,000 is authorized in fiscal year 1972 to continue
a pilot training program for personnel to operate and maintain
treatment works. In fiscal year 1972 $2,500,000 is authorized to
continue work on the forecasting of employment needs in water
pollution control. In addition to such special authorizations, there
is a general authorization for this section of $65,000,000 in fiscal
year 1972, $70,000,000 in fiscal year 1973, $75,000,000 in fiscal year
1974, and $80,000,000 in fiscal year 1975.
Section 10-1 of the bill incorporates many elements of the research
authority of existing law and expands and redirects such authority to
reflect the policy set forth in section 101 and the requirements which
would be established in the operative sections of the Act. In order to
restore the natural chemical, physical, and biological integrity of the
nation's waters, a great deal more must be learned about the nature
and functioning of aquatic ecosystems and the impact of improper land
use development.
The burden on the Administrator to develop information to imple-
ment Titles III and IV of this Act will require broad and intensive
research efforts. The Committee expects the Administrator to carry out
research on how water quality is affected by the discharge of pollut-
ants from point sources, the uncontrolled runoff of pollutants from
land, from accumulated in-place deposits and from other sources.
The rigid controls on toxic substances to be established under sec-
tion 307 require analysis of toxic pollutants and their effects on
human health.
In addition to the general research authority, section 104 provides
specific authority to support training and academic programs.
The Committee believes that the training programs in this section
offer many opportunities to increase the efficiency in the operation of
existing waste treatment plants. The Committee, however, notes that
current Federal programs have concentrated on the training of new
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WATER—STATUTES AND LEGISLATIVE HISTORY 103
employees to meet the backlog of unfilled jobs in the field. This is
important and necessary.
But the Committee also believes that there, are many opportunities
to improve the operation of existing facilities through occasional
training sessions for present employees. Much of this training could
be accomplished on-the-job, allowing an instructor to work in the
plant with the operator-trainee. The language of Section 104(b) (5)
clearly permits such training, and the Committee expects that the
Environmental Protection Agency will initiate efforts to assist the
States that wish to create and operate effective on-the-job training
programs.
One new provision added to this section directs the development of
a national water quality monitoring and surveillance system through
which to accurately inventory and determine the actual quality status
of all water of the Nation. The Committee has been deeply disturbed
by the inadequacy of information that exists on the quality of the
nation's waters. Proper implementation of this new authority should
remedy that deficiency. It will be particularly important in supplying
the techniques by which the requirements of section 305 for an ac-
curate assessment of the quality of the Nation's waters as they exist
and as they compare to the water quality objectives to be met.
The Committee received disturbing testimony from nongovernment
sources concerning the quality of the Environmental Protection
Agency's existing water quality monitoring program. The Administra-
tor must give close attention to this program to insure high perform-
ance.
In addition to the provisions which direct the Administrator to
make full distribution of the information generated from the re-
search under this section to interested parties, the section continues
specific research programs on the problems of fresh water lakes, the
Great Lakes, water use and waste water generation, estuarine pollution,
and sewage from vessels.
Subsection (1) of Section 104 of the bill authorizes a study of
methods to deal with the disposal of various types of waste oils. The
accumulation of used engine, machine, cooling, and similar oils pre-
sents a difficult pollution problem. Evidence presented to the Committee
indicates that between one billion and two billion gallons of waste
oil are generated yearly in the United States. Some of this oil is
presently re-refined into oil for reuse as a lubricant. Some of this
waste oil can be used as fuel. But too often, this waste oil is surrepti-
tiously dumped into streams or onto the land, causing considerable
pollution.
The American people were greatly concerned at the damage created
when a well discharged 60,000 barrels of oil into the ocean off Santa
Barbara, California, in early 1969. According to calculations made
earlier this year by EPA, that as much used engine, machine, and
similar oil is presently dumped into our environment every 36 hours.
Various Federal decisions concerning the labeling of waste oil and
tax provisions affecting waste oil appear to have been a significant
factor in the decline in recent years in the reuse of this waste oil.
This subsection directs EPA to undertake a full study of the legal
and psychological impediments to the utilization of waste oil and to
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104 LEGAL COMPILATION—SUPPLEMENT I
determine whether the Federal Government can and should develop
methods for encouraging its reuse. One possible method would be the
purchase, on a preference basis, by the government of products made
from waste oil. Another possible field of study could be what regu-
lations, if any, might be imposed on the processors of crude oil to
encourage or require the collection of waste oil at the points of sale of
new oil.
The Administrator is directed to make its report to the Congress
within one year.
In view of the objective of the Act to restore the natural integrity
of the nation's waters, the Committee has included a new subsection
104(m) authorizing the designation of River Study Centers, to be
regionally located and provided with Federal financial support.
Through interdisciplinary studies, such centers could apply existing
and developing knowledge to the problems, often complex and always
interrelated, of growth and development within river basins and the
impact of that development on the best use of water resources and
on the value of water-dependent activities.
Long tradition and practice support the use of rivers for transpor-
tation, for water- supply, for energy, for recreation and beauty—and,
unfortunately, for waste disposal as well. It is now clear, however,
that in many cases man's use has brought the natural drainage systems
to a point of diminishing value, and often to a critical point neither
anticipated nor well-understood.
Man's activities have had, and will continue to have, a profound
effect upon our natural drainage systems. But on the whole, \ve have
taken our river systems for granted and have given too little attention
to the scope and character of these changes. It is time they were
examined with more precision, so they may be taken more fully into
account.
This proposal for the establishment of one or more River Study
Centers at the suggestion of the University of Louisville, and the
Committee, believes the establishment of such Centers can make a
contribution in the application of knowledge and experience to better
planning and practice.
Subsection (o) adds authority for the Administrator to conduct
research and investigations on devices and methods which reduce un-
necessary water consumption for domestic and other purposes in order
to reduce the costs of sewage and waste treatment services. Such re-
search should produce devices and methods which achieve the maxi-
mum reduction of unnecessary water for domestic and other purposes.
Water pollution resulting from agricultural production is clearly
a growing problem of great magnitude and complexity. Agriculture
is now one of the major contributors to the degregation of the quality
of our navigable water. The basic problem is one of managing the
inputs and outputs of agricultural production to maintain the quality
of the water, air, and soil environment while economically producing
food and fiber.
Progress has been made in agricultural research but we must go
beyond it to meet the present challenge. Until we compile adequate
identification, analysis, and evaluation of existing programs and meth-
ods; vigorously study ^alternative production decisions available to
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WATER—STATUTES AND LEGISLATIVE HISTORY 105
agricultural producers at various steps of the production process; and
develop information of about the social, legal, and economic impacts
of these methods, we will have little impact on the enormous problem
of agricultural water pollution.
Subsection (p) provides that the Administrator shall carry out a
comprehensive study and research program to determine new and im-
proved methods of preventing and controlling water pollution from
agriculture, including legal, economic, and other implications of the
use of such methods.
Subsection (g) authorizes the Administrator to conduct research and
make grants for demonstration programs for new and improved
methods of preventing, abating, reducing, storing, collecting, treating
or otherwise eliminating water pollution from sewage in rural and
other areas where collection of sewage in conventional, community-
wide sewage collection systems is impractical, uneconomical, or
otherwise infeasible, or where soil conditions or other factors preclude
the use of septic tank and drainage field systems.
There are large areas of the country in which the population is
widely dispersed and separated by topographical barriers. While some
of these areas have relatively heavy populations, they are so located
that conventional sewage collection and treatment systems are not
feasible.
The usual method for collection and disposal of sewage under such
circumstances is by the use of septic tanks and drainage fields. There
are, however, large areas in which soil conditions preclude the use of
septic tanks and drainage fields. These situations provide particular
problems in mountainous areas such as the Appalachian Region.
The Committee recommends that specific attention be given to the
sewage disposal needs of such areas, and that research and demonstra-
tion efforts be initiated which would test the engineering and economic
feasibility of alternative methods of meeting this problem. For in-
stance, perhaps collection lines would be used, but the treatment unit
could be comprised of a spray irrigation facility on an uninhabited
mountainside (including appropriate bacteriological and viral con-
trols) instead of a traditional primary and secondary treatment plant.
In addition, attention should be given to the social and institutional
practicalities of such alternatives.
In addition, in many rural areas and small towns and villages it is
not economically feasible to build conventional sewage treatment sys-
tems due to the restricted incomes of persons and families in these
areas. Even with substantial increases in the percentage of Federal
funding, conventional sewage systems most likely will not be
constructed.
According to the Farmers Home Administration, these circum-
stances pose obstacles to the financing and constructing of new homes
in areas of this description, but more importantly, also serve to pre-
vent people already living in areas of this kind from upgrading the
quality of their housing.
SECTION 105—RESEARCH AND DEMONSTRATION PROGRAMS
The Administrator of EPA is authorized to conduct in-house
demonstration projects or contract for such projects designed to
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106 LEGAL COMPILATION—SUPPLEMENT I
eliminate pollution reaching the navigable waters through storm
water runoff or industrial activity.
EPA is authorized to undertake a model river demonstration
project of advanced pollution control and in-stream enhancement
techniques. Demonstration projects on control of agricultural
pollution are authorized.
Any Federal grant under this section is limited to 75 percent
of the cost. In fiscal 1972, $70,000,000 is authorized for this section,
with the total increased by $5,000,000 annually each year there-
after through fiscal 1975. At least 10 percent of the sums actually
appropriated in any fiscal year must be spent on programs dealing
with agriculture.
This section continues and expands the demonstration program
authority provided by section 6 of existing law.
Throughout the bill there is great emphasis on control technology,
process change, and other alternatives to ultimately eliminate the dis-
charge of pollutants into the Nation's waters. To achieve compliance
with such objectives it will be necessary to undertake on an extensive
program of demonstration projects in order to rapidly expand tech-
nological responses available to meet the national objective. Necessarily
such demonstration projects will have to be comprehensive and inte-
grated rather than piecemeal.
Subsection (b) of section 105 authorizes the Environmental Pro-
tection Agency to undertake demonstration projects on new or im-
proved methods for the enhancement of water quality.
The Council on Environmental Quality, in its first annual report to
the President and the oCngress in 1970, proposed such a model river
program. The Council stated:
The Council recommends that efforts be made to provide a
demonstration in one river basin of the most advanced con-
cepts of water quality management. Such a demonstration
might use regional treatment facilities; nontreatment alter-
natives such as in-stream aeration and low flow augmenta-
tion; and new financial incentives, such as effluent charges.
The proposal would demonstrate the techniques to meet water
quality management needs in the future, when the problems
from increasing population and industrialization grow even
more acute.
While the Committee believes that this approach has great merit
and should be initiated in one or more selected river basins or portions
of river basins.
While the Committee believes that this approach has great merit and
would be useful in the heavily polluted industrial rivers. While the
improvement in water quality of such a river is desirable and man-
dated in Title III of this bill, this demonstration project is directed
at a variety of pollution problems.
An appropriate location for such a model river study may be the
Brandywine Eiver. The Brandywine, which rises in Pennsylvania and
flows into the Christmas River in Delaware, and then into the Delaware
River, offers the necessary wide variety of municipal, industrial, and
agricultural pollution problems that could be met effectively to demon-
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WATER—STATUTES AND LEGISLATIVE HISTORY 107
Ktrate new techniques for water quality enhancement. The Administra-
tor to develop a model river program as soon as practicable.
The Committee has included specific authority for the conduct of
demonstration projects on agricultural pollution problems. Grants
under section 105 (d) will be made by the Administrator, in consulta-
tion with the Secretary of Agriculture, and the information derived
from demonstration projects will be disseminated in cooperation with
the Secretary of Agriculture. The Administrator should work closely
with the Secretary to the maximum practicable extent to utilize the re-
sources, channels of communication to the agricultural community, and
the experience of the Department of Agriculture in carrying out his re-
sponsibilities under this section.
It should be noted that the limitation in existing law that no demon-
stration grant should exceed $1 million has been removed in recogni-
tion that many demonstration projects for municipal and industrial
pollutant discharge control will require expenditures greatly in excess
of that figure.
In addition the authorization is increased to reflect the urgency of
the demonstration program, yet held to the lowest levels the Commit-
tee feels, can be authorized without jeopardizing the program.
It is essential that the Administrator, in carrying out the functions
under section 105 as well as section 104, establish priorities which match
the priorities of the objectives of the Act and regulatory program
established thereunder. The Committee recognizes that many of the
specific programs authorized in sections 104 and 105 may be under-
funded or even postponed while the research, development, and dem-
onstration is undertaken to support compliance with rigorous require-
ments established under this Act.
SECTION 106—STATE PROGRAMS
Grants to States are authorized in an effort to assist the States
in carrying out an effective water pollution control program. Allo-
cation of funds is to be based on population and the extent of
water pollution problems.
To qualify for a grant, a State must certify that it shall main-
tain its water quality program each year at the level of its recur-
rent expenses during fiscal 1971. If the State reduces its spending,
the Administrator shall reduce the EPA grant proportionately.
Beginning in fiscal 1973, a State, in order to qualify for a pro-
gram grant, must begin to develop Section 209 plans, indicate that
it has begun work on its section 305 study, and impose monitoring
requirements on point source owners. This section authorizes
$30,000,000 each for fiscal 1972 and for fiscal 1973, with $35,000,000
authorized for fiscal 1974 and $40,000,000 for fiscal 1975.
Section 106 provides for Federal financial support for State and
interstate programs of water pollution control. "
The State and interstate programs would continue to include the
elements previously supported under the prior Section 7 of the Fed-
eral Water Pollution Control Act, and would embrace new elements
necessary to implement requirements under the 1971 amendments,
including: development of regional waste treatment management
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108 LEGAL COMPILATION—SUPPLEMENT I
plans, advanced monitoring systems, controls for locating new dis-
charge sources, intergovernmental cooperation, data collection, anal-
ysis and reporting.
The objective of this Act will be met only if the States have vigorous
and adequate pollution control programs. In fact, in those States
where such programs have already been established the quality of the
control program is high. However, there are many States with serious
deficiencies in the quality of their program, often caused by a serious
inadequacy in the level of funding and manpower. It is the purpose
of Section 106 of the Committee bill to increase the level of Federal
financial assistance to the States so that they are capable of fully imple-
menting the 1971 amendments.
A new mechanism for funding State and interstate programs is pro-
vided whereby State matching requirements increase from year to
year, calculated on a base year of fiscal year 1971. This is intended to
encourage the necessary expansion of such programs and of State
financial participation in such programs. This sharing of increased
State financial participation.
Authorizations for appropriations of Federal grants will increase
from $30 million for fiscal year 1972 (as compared with $10 million
under present authorization) to $35 million for fiscal year 1974, and
$40 million for fiscal year 1975.
Flexibility is provided the Administrator to determine the adequacy
of State programs in the light of changing regulatory requirements,
new technology and other circumstances and to adjust State and inter-
state support accordingly.
A regulatory program premised on a Federal-State relationship is
necessarily dependent upon the quality of the respective administra-
tive programs. At the Federal level there has been underfunding and
understaffing. The increased authorization of appropriations under
section 516, is, in part, aimed at remedying this deficiency.
The Committee was disturbed by the reports from many States
about the paperwork and the associated administrative burden in
preparing an application for a Federal program assistance grant. Any
time procedural aspects begin to erode and interfere with the sub-
stance of a program the law is not being properly implemented. The
Committee, therefore, expects the Administrator to review the appli-
cation procedures so they may be expedited.
Formal review and analysis of the quality of State programs for
the purpose of reviewing applications for program grants should bo
held to the minimum necessary to assure compliance with the require-
ments of the bill.
The Committee, through its hearings and staff investigations, noted
substantial hostility in many States toward the Federal program. An
attitude of competition rather than cooperation seemed to prevail. The
Committee expects the Administrator as a first priority to take steps to
provide the leadership to create a meaningful working relationship
with the States.
In addition to fiscal and other basic program requirements, the bill
requires as a condition to Federal assistance compliance with elements
essential to a high level of performance in State water pollution
control programs. These elements include monitoring water qual-
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WATER—STATUTES AND LEGISLATIVE HISTORY 109
ity,reviewing and regulating the location of new sources of discharge,
setting priorities for waste treatment works construction, and pro-
cedures to assure non-degradation of water quality and, to assure no
alteration of the quality of any waters which meet the objectives of
this Act.
SEC. 107—MINE WATER POLLUTION CONTROL DEMONSTRATIONS
In cooperation with the Appalachian Regional Commission,
EPA is authorized to conduct demonstration projects for control
of mine water runoff and related water pollution problems, in-
cluding a study on the feasibility of using sewage sludge to pre-
vent mine water pollution and to restore mined areas.
Section 107 of this bill contains revisions of the mining area pollu-
tion control demonstration program to permit its more effective im-
plementation.
In developing amendments to the Federal Water Pollution Control
Act in 1969 and 1970 the Committee gave major attention to the prob-
lems caused by acid discharges into watercourses as the result of min-
ing activities.
In areas of the country where mining is a major activity, streams
have been seriously affected by acid drainage from active and inopera-
tive or abandoned mines. Such drainage impairs water quality in these
areas and makes affected streams unable to support fish or animal life
and unsuitable for industrial, recreational and public water supply
uses.
Acid mine drainage is a particularly severe problem in States of the
Appalachian region where much of the Nation's coal mining is con-
centrated, forming a major portion of the economic base. In these
areas acid drainage and other mine-related pollution are a serious
deterrent to the improvement of the quality of life and to economic
expansion and diversification.
In Appalachia alone there are more than 5,700 miles of streams
polluted by acid mine drainage with the heaviest concentrations in
Pennsylvania, West Virginia, Ohio and Maryland.
In the Water Quality Improvement Act of 1970 (PL 91-224) grants
were authorized to support projects demonstrating on an area-wide
basis technological and economic feasibility of methods for controlling
acid pollution caused by mining. Subsequent evaluation of this pro-
gram by the Committee has shown the need for changes in the law.
Studies by the Appalachian Regional Commission and other agen-
cies have shown the Monongahela River Basin in West Virginia and
Pennsylvania may be suited for a large-scale demonstration program
in the control of mine-related pollution.
These amednments increase authorizations for the demonstration
program from $15 million to $30 million. Should the Administrator
and the Commission find that a large scale demonstration project with-
in the Monongahela River Basin would be useful, the additional au-
thority available may be used to fund such a project.
The serious problems caused by siltation resulting from surface
mining are recognized and demonstration programs to alleviate this
situation are essential. The additional funding will permit greater ac-
tivity in this field.
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110 LEGAL COMPILATION—SUPPLEMENT I
Advanced waste treatment techniques produce large amounts of
sludges and other solid materials that pose difficult disposal problems.
There is some evidence that sludges, alone or in conjunction with other
municipal wastes, can be used in a positive way to reduce water pollu-
tion from abandoned, mined-out areas and make them suitable for
beneficial uses. Section 107 explicitly calls for demonstration projects
using sewage sludge materials and other municipal wastes for mine-
water pollution control and restoration of the lands for beneficial uses.
The Committee believes that programs to clean up acid mine drain-
age should be coordinated in a comprehensive attack on all pollutants
affecting water quality and water use in the Basin. The correction of
the single problem of mine drainage will not result in the increased
water and resource use expected if other significant pollutants affect-
ing water quality and water use continue to exist. Degradation of the
land from past mining, the casual dumping of solid wastes, and other
activities also impair the area's ability to increase the use of its re-
sources and to grow\
Section 107 also requires the active involvement of the Appalachian
Regional Commission in the identification and planning of projects
within its area of jurisdiction and the timing and phasing of these
activities. This is needed to insure consistency of these projects with the
overall aims and objectives of the total Appalachian development pro-
gram, and with the Commission's own mandate to work for the resolu-
tion of mine-related pollution problems.
The Committee found that certain restrictive requirements in admin-
istrative interpretation and regulations under existing law have
hampered full implementation of this program. Section 107 eliminates
the requirement that states pay 25 percent of project costs (although
retaining the requirement that states acquire lands utilized in proj-
ects), and makes other changes to expedite the implementation of this
program. But the full 'benefits of this program can be realized only if
the Environmental Protection Administration and the Appalachian
Regional Commission cooperate in seeking the early commitment of
these funds.
SECTION 108—POLLUTION CONTROL IN GREAT LAKES
This section of the bill restates section 15 of existing law, with
minor conforming language changes.
SECTION 109—TRAINING GRANTS AND CONTRACTS
The Committee has made only one change in existing law pro-
viding for training grants. The change would enable the Adminis-
trator to utilize his authority to make grants for construction of
waste treatment works under Title II to provide for the construc-
tion of necessary education and training facilities for treatment
work operation and maintenance personnel. Such facilities would
be additions to treatment works.
As was pointed out in the GAO Study on the operation and mainte-
nance of waste treatment works, one of the most disappointing aspects
of the overall water pollution control program, and specifically of
waste treatment management, has been the poor performance of treat-
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WATER—STATUTES AND LEGISLATIVE HISTORY 111
ment works attributable to inadequately trained operation and main-
tenance personnel. Because of such inadequate performance, treatment
works operation is often so poor their value is effectively negated at
times and waste is discharged which is inadequately treated or not
treated at all.
SECTION 110—TRAINING PROGRAM ALLOCATIONS
This section of the bill restates section 17 of existing law, with
conforming language changes.
SECTION 111—SCHOLARSHIPS
This section of the bill restates section 18 of existing law, with
conforming language changes.
SECTION 112—TRAINING PROGRAM AUTHORIZATION
$25,000,000 is authorized in fiscal 1972 to carry out the provisions
of Sections 109,110, 111, and 112.
This is section 19 of existing law, eliminating the authorizations for
past fiscal years.
SECTION 113—ALASKA VILLAGE DEMONSTRATION PROJECTS
This section of the bill restates section 20 of existing law, with
conforming language changes.
SECTION 114—POLLUTION CONTROL IN LAKE TAHOE
A demonstration project is authorized for control of non-point
sources of pollution in the Lake Tahoe Basin. No Federal project
that may result in a discharge into Lake Tahoe may go forward
until after the Administrator has had the opportunity to bring
his views on the project to public attention. $6,000,000 is authorized
for this Section.
The Lake Tahoe Basin is a unique National resource urgently re-
quiring effective Federal action to preserve its environmental quality.
Section 114 authorizes the Administrator, in consultation with the
Tahoe Eegional Planning Agency and other interested Federal and
State agencies, to design and carry out projects to develop and demon-
strate comprehensive water pollution control programs in areas sub-
ject to the jurisdiction of the Tahoe Regional Planning Agency.
Nonpoint sources of pollution are a major continuing threat to the
Lake Tahoe Basin. Controls over such sources are required to maintain
and enhance the quality of water in the Tahoe Basin and should pro-
vide data and solutions for water pollution control problems experi-
• enced elsewhere in the Nation. Section 114 makes funds available for
planning and other described activities, subject to the requirements set
forth in Subsection (a).
Section 114 (b) authorizes the Administrator to review, in consulta-
tion with the Tahoe Regional Planning Agency, any Federal or Feder-
ally assisted public works project, any expenditures of Federal funds,
any Federal licenses or permits, any Federal insurance and any Fed-
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112 LEGAL COMPILATION—SUPPLEMENT I
eral guarantees of loans in all cases where, in the judgment of the
Administrator, such Federal activities may result directly or indirectly
in discharges into the navigable waters of the Basin.
Before the Federal actions described in Section 114 (b) may be
taken, the Administrator must complete his review and comply with
the requirements of Section 309 of the Clean Air Act. No permits pur-
suant to Section 402 shall be granted which are not consistent with any
determination made under Section 114 and Section 309 of the Clean
Air Act.
Under Section 114(c), the Administrator shall report to the Con-
gress, within 180 days of the enactment of the Federal Water Pollu-
tion Control Act Amendments of 1971 and annually thereafter, on
(1) the environmental impact of all development in the Tahoe Basin
area; (2) the adequacy of plans developed by the Tahoe Regional
Planning Agency to maintain and enhance environmental quality
within the Basin; and (3) demonstration projects authorized by this
Section, including an analysis of results. It is intended that this process
shall authorize and direct a continuing Federal review by the Environ-
mental Protection Agency of development activities, environmental
quality and regional planning in the Tahoe Basin area.
Section 114(d) provides an authorization of $6,000,000 which shall
be available until expended. It is intended that such funds supplement,
not supplant, any funds available under other provisions of the Fed-
eral Water Pollution Control Act Amendments of 1971.
TITLE II—GRANTS FOE CONSTRUCTION OF TREATMENT
WORKS
SECTION 201—PURPOSE
This title has the objective of assisting in the development of
waste treatment management plans and practices to eliminate the
discharge of pollutants. Toward that goal, the best practicable
technology is to be used, which shall include recycling of water,
where practical. Waste management is to be developed on a re-
gional basis.
Beginning in fiscal 1975, the Administrator shall reject any Sec-
tion 207 construction grant application which would result in any
discharge of pollutants, unless the applicant demonstrates to the
Administrator that alternative waste treatment techniques have
been considered, and that the proposal will result in the best
practicable treatment.
Section 8 of the existing Federal Water Pollution Control Act pro-
vides very little guidance as to the purposes of the waste treatment
facility construction grant assistance program. The tremendously in-
creased level of funding for construction proposed by the 1971 amend-
ments requires that Congress give some policy direction to the Admin-
istrator in carrying out this program and to maximize the return on
the public tax dollar. The Committee has, therefore, included a re-
quirement that Federal assistance for the construction of waste treat-
ment facilities must require, where appropriate, practices which will
recycle and reclaim water and provide for the contained or confined
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WATER—STATUTES AND LEGISLATIVE HISTORY 113
disposal of pollutants. This bill would establish a policy in concert
with the fundamental ecological principle that, to the extent possible,
all materials should be returned to the cycles from which they were
generated. Properly managed, this means 'pollutants do not escape or
migrate to cause degradation of the water, air or land environment.
The Committee has undertaken to establish a procedure which re-
quires that each applicant make an analysis of alterantive waste treat-
ment management schemes, with the burden upon the applicant to
examine all available alternative waste management techniques, and, if
a method is recommended which will not comply with the statement of
policy, to show why. The statement of purpose, coupled with the bur-
den of proof should, in the context of vigorous public participation
and expanded research and development programs cause a re-orienta-
tion of waste treatment technology toward more sustained and pro-
ductive results.
Conventional treatment methods currently being funded under sec-
tion 8 of existing law, for many reasons, are not adequate.
First, the nutrient content of effluent after secondary treatment
may be so great that stimulation of rapid eutrophication continues.
Second, in many areas where major problems exist because of storm
water runoff, no amount of additional secondary treatment will avoid
the fact that for a significant percentage of each year, such systems are
rendered totally ineffective unless storm waters can be retained for
subsequent treatment. No amount of advanced treatment, without stor-
age of the storm water runoff will achieve water quality objectives.
Third, conventional treatment is at best an interim solution; such
facilities are easily over-taxed, their life expectancy is relatively short,
and by themselves do not solve the problem of residual waste; i.e..
sludge and other pollutants removed from the effluent.
Alternative waste treatment methods, which requires the return
of pollutants to natural cycles, are only new in the sense that they have
re-emerged for application. This method is most commonly associated
with the Muskegon project although other recent examples include
work at Penn State University and Michigan State University and
elsewhere.
The Environmental Protection Agency, in Volume II of the 1971
report on "The Cost of Clean Water", states:
They (ground disposal procedures) have the great virtue
of recycling the materials so disposed, both by replenishing
water tables and by converting and utilizing organic and in-
organic waste matter in natural life processes of decay and
growth. Their secondary merit is more germane to this dis-
cussion. Water reaching watercourses after passage through
the filtering and decomposition processes afforded by soil is
far purer—provided that soil loading rates are not ex-
ceeded—than any waste treatment process short of distilla-
tion could make them.
The Committee emphasizes that the policy in Section 201, read with
the policy stated in Section 101, requires the Administrator to direct
his research and development authority under sections 104 and 105
to carry out those policies. This statement of policy, coupled with a
requirement to consider alternatives as a condition to Federal assist-
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114 LEGAL COMPILATION—SUPPLEMENT I
ance is intended to overcome the resistance and lethargy present in
many planners in the Federal agency, State agencies and in private
consulting firms. Planning must move beyond its present orientation
to truly integrated and ecologically sound systems. It is expected that
the Administrator will give close supervision to this effort in order
to develop integrated and comprehensive waste management systems
and technology. The Administrator must press the development of
technology, and do it within the framework of ecological principles
so that sound systems are developed.
Land disposal systems to be effective must be designed and managed
so that sewage is applied to the land at control rates, concentrations
and proportions of pollutants, so that the character of the land and
the plant life are not overtaxed or otherwise degraded. Properly de-
signed land disposal of pollutants must include pretreatment to re-
move industrial and tox materials.
The Committee notes that the Secretary of the Army, pursuant to
a Resolution of the Committee, has been studying the application of
alternative waste treatment mechanisms for five major regions
throughout the United States. These include the Merrimac River
Basin, the Cleveland-Akron Metropolitan area and the San Francisco
Metropolitan Region. Preliminary reports of these studies analyze
treatment alternatives from complete land disposal methods, to com-
binations of land treatment and conventional technology, to conven-
tional technology.
The preliminary reports suggest the possibility of applying land
treatment in many areas of the country. The Committee expects the
type of planning represented in these preliminary reports will be in-
tegrated into the planning activities required under Section 209.
As stated in the recent report of the Institute of Ecology: "The cure
for this eutrophication is to recycle the organic matter and nutrients
within the ecological system: man must find economic ways of return-
ing sewage to the land or of using it productively in aquatic systems."
SECTION 202—FEDERAL SHARE
The basic Federal share for the construction of sewage treat-
ment facilities increasedto 60 percent. A 10 percent Federal bonus
is provided when the State agrees to contribute 10 percent toward
the cost of each such facility.
The bill would increase the Federal share of waste treatment proj-
ects from a maximum of 55 percent to a maximum of 70 percent. This
decision was reached after a careful review of the overall costs of com-
munity waste treatment, the need to stimulate an accelerated invest-
ment in waste treatment works, and the recognition that the Nation's
communities cannot generate the funds required under this Act within
the period of time set forth without an additional stimulus from the
Federal Government.
The Committee believes that the State grant participation in the
water pollution control program is essential and should be encouraged.
If a State agrees to provide an additional 10 percent grant for each
project assisted in that State during the applicable fiscal year, the
Federal share for that State increases to 70 percent.
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WATER—STATUTES AND LEGISLATIVE HISTORY 115
This legislation will terminate the policy of increased Federal grant
assistance to projects in those States which participate by making
loans to communities. Only a nonrepayable grant will be an accept-
able form of matching. This grant cannot be recovered from the
specific users of the systems involved, but rather should be derived
from general revenue, collected on the broadest possible State-wide
tax base. The Committee takes strong exception to the policy of al-
lowing State loans to communities as a basis for eligibility for the
incentives provided in the 1966 Act. This policy is wholly contrary to
the purpose and the intent of the Act. Because of this policy decision
the Committee considers that fairness requires that all communities
assisted with Federal grants during the period 1966-1971 should be
treated as if full State matching grants were available. This pro-
vision is discussed later in this report. The fact that this policy de-
cision is a specific reversal of Federal policy, and the fact that this
policy decision was not brought to the attention of the Committee by
the agency, but rather by affected States, suggests the need for greater
coordination and consultation in the development and implementation
of regulations to carry out this program. The Committee expects con-
sultation with the Committee to take place prior to final action.
SEC. 203—PLANS, SPECIFICATIONS AND ESTIMATES
The Administrator shall review preliminary plans for any con-
struction project, and is authorized to advance up to 5 percent of
the project's cost to assist the community in completing its de-
tailed plans and specifications. Approval of the final plans con-
stitute a contractual obligation of the Federal Government.
An important aspect of this program for the construction
of new waste treatment facilities is the maintenance of close coordina-
tion between the Administrator, the States, and the communities.
This is particularly important during the development of the pre-
liminary plans for any sewage treatment facility. The provisions of
this section are intended to foster such cooperation and thus to acceler-
ate approval, construction, and use of new facilities.
Coordination is particularly important at the time that preliminary
plans are developed and considered. This section provides that the
Administrator shall act on any preliminary plan as soon as possible,
and if he approves them, advance to the applicant up to 5 per-
cent of the reasonable estimated cost of construction to assist the
applicant in completing the detailed plans and specifications.
The Committee emphasizes that acceptance and financial assistance
for any preliminary plan in no way should serve as a Federal commit-
ment that the final design will be approved and financed. The Com-
mittee, however, believes that this early consultation, and the prelimi-
nary design consideration should hold the number of final rejections
to a minimum. If such a rejection should be made, the Administrator
is not authorized to recover the 5 percent advance.
SECTION 204—GRANT CONDITIONS
An applicant for any grant must receive from each industrial
user a commitment that the user will repay to the Federal Gov-
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116 LEGAL COMPILATION—SUPPLEMENT I
ernment that portion of the Federal grant allocable to the user's
wastes. Each grant applicant must adopt, by July 1, 1973, user
charges to assure that each category of recipients of waste treat-
ment services will pay its share of the cost of operating and
maintaining the treatment services provided.
In order that Federal grants for the construction of waste treatment
works fully implement Federal policy, section 204 sets forth a number
of grant conditions to assure that such works are constructed and finally
operated and maintained in a manner which will produce the best prac-
ticable application of treatment technology.
Section 204 requires that any applicant for a grant must demonstrate
that such works conform to all applicable river basin plans, and other
applicable waste treatment management plans. In addition such works
must be certified by the State as entitled to priority. The proposed
treatment works must also qualify for the required permit under section
402 of the Act.
This section also requires that the applicant provide assurance of
efficient operation and maintenance throughout the life of the project,
and that the applicant further assure the Administrator that each
category of user will bear that portion of the project operation and
maintenance cost allocable to such category of user.
In order to review the capacity of the proposed treatment works the
bill requires the applicant to describe the relationship of the reserve
capacity proposed, the current demand and an estimate of any cost for
expected expansion of such works in the alternative to including reserve
capacity.
The contractual obligation which is authorized under Section 203
is of course, subject to all applicable conditions and limitations under
Title II. Accordingly, the failure to comply with conditions either-
precedent or subsequent, can be viewed as breaches of the contractual
obligation and provide the Administrator with a right to rescind such
obligation.
Further, the contractual obligation authorized under Section 203
must be understood in the context of Section 205. Considering these
two Sections together, it should be clear that a contractual obligation
in a fiscal year based upon funds to be available in a future fiscal year
(under the scheme of Section 205), limits in the initial obligation to
making funds available in the fiscal year in which the obligation would
have been made.
Sufficient reserve capacity for municipal waste treatment plants is
necessary to provide for (1) overloads that are expected to occur for
short periods of time due to daily or seasonal fluctuating demands on
the system (other than major storm water overflow), and (2) planned
increases in load due to additional population, industrial growth, and
other similar factors. Reserves for accommodation of short-term
fluctuation must be provided for in the basic plant design. Reserves for
long-term increases in load are to be determined on the basis of com-
parison of the cost of immediately providing such reserves as a part
of the works to be funded versus the anticipated cost of providing
expanded capacity in the future and immediately prior to when such
capacity will be required. It will often be more economical to design
the plant from the every beginning to accommodate planned future
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WATER—STATUTES AND LEGISLATIVE HISTORY H7
loads rather than enlarging the plant or building additional works in
the future. Such economy could be due to the constantly increasing
cost of construction, quantity savings available for one large project
rather than two or more additional projects and the higher cumulative
cost for equipment and labor when separate projects are undertaken.
There are situations, however, when such other factors as financing un-
used capacity, deterioration, and giving up of anticipated techno-
logical improvements will exceed the benefits to be derived from
having long-term reserve capacity constructed in the original plant.
Therefore, the Administrator is given the authority in the Act to
weigh the comparable costs in providing reserve capacity either im-
mediately or at some future point in time.
Among the significant changes that the Committee recommends
in the treatment works construction program is a requirement that
each grant applicant shall, as a precondition to grant approval, have
in place or agree to impose a system of user charges on the various
classes and categories of users who will utilize the treatment works.
The committee believes that the user charges will have several im-
portant and beneficial results toward the success of the program.
Each system of user charges imposed pursuant to the requirements
of the bill must be designed in such a way as to generate sufficient
revenues to operate and maintain the treatment works to which it
applies. The committee intends that the concept of "maintenance'' will
be interpreted to include the costs of replacing components of the
treatment works at the end of their useful life, so that the useful life
of each facility itself will be protected. The committee bill
anticipates that the agencies responsible for constructing and operat-
ing treatment works will, through the imposition of user charges,
become financially self-sufficient with respect to the operation and
maintenance (including replacement as defined) of treatment works
constructed with assistance pursuant to the Act.
Although the committee is aware of the many different legal and
financial circumstances that characterize state and local governments
and agencies throughout the country, the bill directs the Admin-
istrator to promulgate guidelines for the establishment and imposi-
tion of user charge systems as a guide to grant applicants for
waste treatment works grants. These guidelines should take into ac-
count the diversity of legal and financial factors that exist from juris-
diction to jurisdiction, and each applicant should be permitted rea-
sonable flexibility in the design of a system of user charges that meets
the unique requirements of his own jurisdiction. As a general rule,
the volume and character of each discharge into a publicly owned
system should form the basis of determining the rate at which each
user should be required to pay.
The committee devoted a great deal of attention to the difficult
issue posed by the discharge of industrial pollutants into publicly
owned treatment systems. There is much to be said for encouraging in-
dustrial use of public facilities. Each industrial discharge into a pub-
lic system is one less outfall that must be monitored, and in many
cases the economies of scale that characterize public treatment works
would permit a net capital saving to the economy as a whole, assuming
that the alternative to industrial use of public facilities is the on-site
treatment by industry of its own wastes.
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118 LEGAL COMPILATION—SUPPLEMENT I
The bill would deal with industrial pollutants in this way: each
industrial user of a public system would pay a charge that would
include not only that share of operating and maintenance costs al-
locable to such user but which would also be sufficient to recover that
portion of the Federal share of the capital cost of the facility allocable
to such user. That portion of the Federal share of the capital cost
allocable to each industrial user would be returned to the federal
treasury.
The committee believes that this approach to the issue of industrial
use of public facilities appeared to the committee to be the most reas-
onable and equitable one that can be devised. Any scheme that did not
provide for full recovery of the Federal share of capital costs allo-
cable to industrial users would clearly constitute a Federal subsidy
of private industry and, more particularly, of those industries that
were so situated as to make use of public facilities and industries
producing wastes that are compatible with public treatment systems.
Any other approach would discriminate unfairly against those in-
dustries which, for whatever reason, were unable to utilize public
systems.
It may be that the Congress will, at some future time, determine
that some form of Federal financial assistance to industry in meeting
pollution control costs—whether through tax relief, loans, or grants—
is appropriate. The committee does not prejudge the propriety or need
for such assistance. But the committee does conclude that subsidy of
private industry through the waste treatment works grant program
would be haphazard and inappropriate.
Discretion is left to the Administrator and to state and local authori-
ties as to the structure of each individual system of user charges. A dif-
ficult problem associated with industrial discharges is the calculation
of the rate of assessing such charges. Industrial wastes vary consider-
ably in their volume and character. The bill authorizes the Adminis-
trator to establish guidelines in the development of industrial user
charge rates, which will at the minimum, consider factors such as
strength, volume, and delivery flow characteristics of such waste.
The recovery of the Federal share of capital costs allocable to in-
dustry will presumably occur over a rather protracted period of time.
Factors that might be taken into account in determining the rate
of "pay-back" by industrial users should include the term during
which any debt incurred for the non-Federal share of the capital cost
will be retired and the term during which each industrial user is
expected to make use of the facility. Also, a particular industry should
repay that portion of the Federal grant that reflects its percentage use
of the plant's total capacity, which should include any firm commit-
ment of increased use of the facility by that industry. The committee
does not believe it would be wise to require that existing industry's
capital share be computed on that industry's share of the wastes actu-
ally treated when the facility initiates operation. The committee affirm-
atively concluded that capital costs recovered from industry should
not include an interest component.
It may prove to be the case in certain instances that individual indus-
trial operations will conclude that it will be more economical to treat
their own wastes than to discharge into a public system. If and where
such instances arise, it is logical to conclude that a net saving to
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WATER—STATUTES AND LEGISLATIVE HISTORY 119
the taxpayer and to the consumer will result. It is certainly not the
intent of the committee to discourage industrial use of public systems.
It is the judgment of the committee that the industrial "pay-back"
requirement will not discourage such use in most cases. It is clear that
the environmental costs should be borne by those who place demands
on the environment. User charges carry out this principle.
SECTION 205-—ALLOCATION
All allocations to the States under section 205 are to be made
on the basis of population. Reallocation of any sums not obli-
gated shall go on a priority basis to States qualifying for 70 per-
cent Federal grants. In fiscal 1972 and 1973 up to $200,000,000 each
year may be allotted to projects using advanced waste treatment
on a regional scale.
This section provides that sums appropriated or authorized to be
obligated for the construction of treatment works under Title II, will
be allocated among the States on the basis of population alone. Funds
allocated to a State and not utilized by the end of fiscal year for which
authorized because of a lack of projects certified by the State as en-
titled to priority, would be reallocated with preference going to States
which contribute, by grant, not less than 10 percent of the costs of
treatment works in such State.
In addition to the general allocation and reallocation mechanisms,
the Committee believes that special provisions should be included to
assure full and timely funding for advance regional metropolitan
treatment projects. Accordingly, subsection (d) authorizes the Ad-
ministrator to provide up to $200 million in each of the first two
fiscal years (1972 and 1973) to projects utilizing advanced waste
treatment methods for the treatment of wastes on a regional
scale for areas with especially severe water pollution control problems.
This subsection provides that these funds are to be available unless the
amount available for reallocation from the previous fiscal year exceeds
$200 million.
One project which requires such additional assistance is the $360
million improvement project for the District of Columbia's waste treat-
ment plant at Blue Plains, which serves the Nation's Capital and large
portions of nearby Maryland and Virginia. This project, which in-
cludes advanced waste treatment, is now proceeding under an enforce-
ment conference deadline of the end of 1974. All jurisdictions involved
are fully committed to contribute full local and State shares as needed.
The Committee strongly believes that the Blue Plains project should
not be delayed. While it will not provide a total, long-range solution
to the water pollution problems of the Washington area, it is the
essential first step in cleaning up the Potomac River. At the 70 per cent
Federal-aid level authorized in this bill, the Blue Plains project will
require almost $97 million in Federal aid in fiscal 1972 and over $77
million in fiscal 1973, the years of its greatest obligation needs. These
funding requirements far exceed the amounts from a population-based
allocation formula which would be available to the participating
States. The Administrator has assured the Committee that if suitable
discretionary authority is provided, the full Federal share of the Blue
Plains project will be made available to keep this project on schedule.
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120 LEGAL COMPILATION—SUPPLEMENT I
The Committee expects this and other similar advance waste treat-
ment projects to be funded on a priority basis. The Administration
should report on funding deficiencies within one year after enactment.
The bill, as reported, contains language in Section 205 to permit
those States which want to proceed more rapidly to construct facilities
in advance of allocations from funds available for subsequent fiscal
years. Experience with the Federal-aid Highway Program clearly
shows that there are always States which are ready and willing to move
faster than the annual program will allow. If those States and their
local subdivisions are willing to "borrow" against future allocations,
this legislation will permit them to seek approval by the Administrator
of projects for which the Federal share will not be made available
until a later date. Projects approved for construction can only be ap-
proved if the Administrator is satisfied that the plans and specifica-
tions are such that the project would be approved if Federal funds
were available. The provision for advance construction together with
the provision of contract authority will add greatly to the flexibility
of States in moving their programs forward and in meeting the prior-
ity for elimination of pollution. Because of the magnitude of
the construction task and the limited funds which will be available
to States under the authorizations provided for in this Title, some
States will have to mobilize the allocation of Federal support funds for
two or more years in order to meet their most pressing and most ex-
pensive treatment works. The advance construction authority and
the obligational authority will enable them to do so.
SEC. 206—REIMBURSEMENT
All projects initiated after June 30, 1966, shall be eligible for a
retroactive grant raising the Federal share on those projects to
at least 50 percent. The money must be spent to retire a project's
indebtedness or to finance the local share of a new project. $2,000,-
000,000 is authorized to meet the post-1966 reimbursement. $400,-
000,000 is also authorized to reimburse 1956-66 projects to a 30 per-
cent Federal grant level.
Section 206 provides for reimbursement to states, municipalities,
intermunicipal agencies, or interstate agencies for projects constructed
by them for which the full Federal contribution to which they were
entitled was not received.
The Committee determined that it is equitable, reasonable, and con-
sistent with congressional intent that the Federal Government provide
sufficient and timely reimbursement of funds to States and localities
which have prefinanced a portion of the Federal share of the eligible
cost of construction of waste treatment facilities.
Section 8(c) of the Federal Water Pollution Control Act, as
amended (by the Clean Water Restoration Act of 1966), served as an
incentive to 29 States to accelerate the initiation of municipal water
pollution control projects ahead of the availability of Federal appro-
priations. States and local municipalities proceeded to commit their
own fiscal resources to pay a portion of the Federal share of the cost
of construction on the premise that "allotments for any fiscal year end-
ing prior to July 1,1971, shall also be available for payments in reim-
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WATER—STATUTES AND LEGISLATIVE HISTORY 121
bursement of State or local funds vised for such project prior to July 1,
1971, to the extent that assistance could have been provided under
this section if such project had been approved pursuant to this section
and adequate funds had been available."
However, because adequate funds were not available prior to the
end of fiscal year 1971, the reimbursable balance outstanding as of
July 1, 1971 totaled $1.63 billion, representing 1,305 projects in 29
States. Many of these projects would not have been undertaken had
not the States proceeded with the clear understanding that Federal
reimbursement would eventually be forthcoming.
Section 8(c) of the Act specifically states that a finding by the Ad-
ministrator that a project meets the requirements of the Act shall not
be construed to constitute a commitment or obligation by the Federal
government to reimburse such a project. However, the Committee be-
lieves that the Congress has a moral commitment to reimburse States
and municipalities for funds they applied to the Federal share of eli-
gible sewage treatment projects.
The Committee further recognizes that funds committed to advance
the Federal share are now urgently needed by the States and munici-
palities to finance their share of new projects which are essential to
implementing the purposes of this Act. For these reasons it is the pol-
icy of this Committee to provide full reimbursement for all projects
constructed without full assistance.
The Committee was anxious to establish a formula by which it
would be possible to "make whole" those who responded to the na-
tional need and to congressional urging to accelerate their local effort
to clean up the Xatioirs waterways, but had not received as much
money under the Federal grant program as they could have utilized
to build facilities that qualified for a Federal grant. In particular,
many large cities failed to receive full Federal contributions of 30
percent because of individual project limitations ($250,000 per project
during the period 1956 through 1961 and $600,000 through 1966) and
because of inadequate appropriations for the construction grant pro-
gram. The Committee was informed, for example, that a group of
the Xations largest cities serving approximately 47% million people
received Federal contributions totaling about $92.5 million for the
period 1956 through 1969, whereas 30 percent of the investment made
by those cities totals almost $475 million. Thus, instead of receiving
the full 30 percent, the group of cities received less than 6 percent.
Many of these cities have exhausted or very nearly exhausted their
own capacity to raise funds for water treatment facilities as a result
of their early efforts. Thus, the reimbursement provision would enable
them either to redeem outstanding indebtedness incurred for water
treatment facilities or to use the funds to which they are entitled under
section 206 to finance the local share of projects to be constructed in
the future under the program.
A project initiated between 1956 and 1966 will not be eligible for
reimbursement under this subsection unless it was approved by the
State water pollution control agency at or before the time construc-
tion was initiated. Furthermore, it will not be eligible unless it was also
approved at or before such time by the Secretary of Health, Educa-
tion and Welfare, if the project was submitted to him for approval.
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122 LEGAL COMPILATION SUPPLEMENT I
If the project was not submitted for approval, it will not be eligible
unless the Administrator determines that it was designed and con-
structed in accordance with the requirements of the Act, and regula-
tions thereunder, in effect at the time that construction was initiated.
The burden of establishing such compliance is on the applicant. Pay-
ments on account of any project which meets the requirements of
this subsection may not exceed the difference between the amount of
any Federal assistance already received for such project, and 30%
of the reasonable costs of construction.
Under the 1966 Act, applicants were eligible for Federal contribu-
tions greater than 30 percent depending upon actions taken by the indi-
vidual states in accordance with the provisions spelled out in the Act.
In part because of the failure of Congress to appropriate adequate
funds, many states did not create complementary financial assistance
programs to qualify for the increased Federal share authorized by the
1966 Act.
The Committee concluded that the municipalities in such states
should not be penalized by state inaction.
Thus, the bill authorizes projects constructed between July 1, 1966,
and the enactment of this bill to receive a retroactive contribution that
will provide Federal financing on all such projects up to the sum that
the community would have received if it had received an initial 50
percent grant. Although the Federal share could have been-as high as
55% under the 1966 Act, the Committee believes that the 50% figure
was more appropriate.
Any project initiated after June 30,1966, and eligible for any level
of Federal assistance under the existing Act, shall, apart from any
other consideration, be eligible for retroactive Federal assistance equal
to not less than 50% of the project cost.
The 50 percent retroactive payment does not alter the right of
some communities to receive a retroactive payment of 55 percent if that
project fully qualified for a 55 percent grant prior to enactment of
this Act.
Under the recommended language, each applying agency will be
required to demonstrate to the Administrator that the projects for
which reimbursement funds are being sought would have been eligible
for Federal contributions and were approved by the appropriate
State water pollution control agency.
The bill authorizes $2.0 billion for projects to be reimbursed under
subsection (a), which applies to the period between 1966 and enact-
ment of the bill, and $400 million for projects reimbursed under sub-
section (b), which applies to the period 1956-66. There was conflicting
data on the estimated total entitlement for subsection (b) projects
and, therefore, the Committee decided to call for a study by the
Administrator to determine whether more than $400 million would
be required and to report on other aspects of the reimbursement
program.
The Committee also recommends that, to the extent that the funds
made available for subsection (b) are inadequate to cover the total
entitlement, funds shall be allocated to each eligible agency on the
basis of a ratio determined by the relationship of the available funds
to the total of all entitlements under the subsection. It should be
noted, however, that it is the Committee's view and intention that
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WATER—STATUTES AND LEGISLATIVE HISTORY 123
the full amount found to be required for both subsection (a) and
subsection (b) entitlement should be authorized and appropriated.
The principle underlying the Committee's recommendation on reim-
bursement is that the bill should remove any past discrimination
against those States, municipalities, or intermunicipal and interstate
agencies that did not receive full Federal contributions. Tt is the view
of the Committee that reimbursement funds made available imder this
provision should be disbursed under a pattern whereby the funds
continue to be held by the Federal Government until a reasonable
time before they are required for the two purposes for which they may
be used under the language of the bill.
SECTION 207—GRANT AUTHORIZATION
This section authorizes $2,000,000,000 for fiscal year 1972 toward
the Federal share of the construction costs of publicly owned
sewage treatment facilities. EPA is further authorized to incur
obligations, in the form of grant contracts, of $3,000,000,000 in
fiscal 1973, $4,000,000,000 in fiscal 1974, and $5,000,000,000 in fiscal
1975 toward the construction of sewage treatment facilities.
Up to 5 percent of the fiscal 1972, 1973, and 1974 funds may be
spent to carry out Section 209.
This section provides an authorization of $14 billion for four years
for grants to communities for construction of treatment works. The
authorizations made available in the form of obligations through con-
tract authority (discussed below). Except in fiscal year 19T2 when
$2 billion would be made available (an amount already appropriated
by the Committees on Appropriations). There would be available $3
billion for fiscal year 1973, $4 billion for fiscal year 1974, and $5
billion for fiscal year 1975.
The $9 billion amounts authorized through fiscal year 1974 is based
on an estimated 70 percent of the cost of the $12.6 billion backlog
estimated by the Environmental Protection Agency. The Environ-
mental Protection Agency estimate is based on the estimate of needs
to provide secondary treatment for all the Nation's sewered communi-
ties as Avell as some additional tertiary treatment where a need lias
been identified.
The Committee figure reflects the fact that (a) the Environmental
Protection Agency calculations only project a demand for Federal
funds for three years; (b) the Environmental Protection Agency cal-
culations do not include any treatment works for the Nation's non-
sewered urban population; (c) the Environmental Protection Agency
calculations do not provide for any investment in the problem of storm
and sanitary sewer overflow, which is an essential element to the water
pollution control programs in a number of cities; (d) the Environ-
mental Protection Agency calculations apparently do not anticipate
joint municipal and industrial waste treatment facilities; and (e)
the Environmental Protection Agency calculations did not consider
the magnitude of the effort projected by this legislation.
The Committee asked the National League of Cities—United States
Conference of Mayors to survey their members' cities to determine the
need for Federal construction grant assistance. That study, which has
been made a part of the hearing record, identified and estimated a
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124 LEGAL COMPILATION—SUPPLEMENT I
waste treatment backlog of $33-$37 billion. While the funds authorized
by this Act will not provide full Federal assistance to retire a backlog
of that magnitude there should be adequate funds for communities
to make major inroads into their construction backlog and begin to
achieve the kind of a program anticipated by this legislation.
Additionally, this legislation encourages joint municipal-industrial
waste treatment facilities construction. As discussed in another section
user charges are required as a condition of the Federal grant. Indus-
tries using municipal systems will be required to repay that portion of
their cost of project attributed to the Federal payment. But com-
munities and industries will be able to benefit from economies of
scale, from savings in operation and maintenance costs and, in some
instances, from benefits to be derived from the compatibility of wastes
to be treated.
The language of subsection (b) of Section 207 provides that funds
authorized for fiscal years 1973, 1974, and 1975, shall be available for
obligation by contract upon their allocation to the States. The im-
portance of assured Federal financial support to the achievement of
the objectives of this title and to our national purpose of cleaning up
polluted waterways cannot be overstated. The task is a massive one
in terms of the work to be done and the funds to be expended.
In order to insure a properly phased program, States and local gov-
ernments can go forward only when there is strong assurance that fed-
eral funds will be available when needed. The Congress, through the
Committees on Appropriations this year, fully funded authorizations
for waste treatment facilities. In order to plan for construction of
needed facilities and meet the deadlines of this Act, communities must
be able to anticipate with some certainty the level of Federal funding
available. This can only be obtained through the process known as
"contract authority".
Questions have been raised regarding the ability of State and local
government to absorb the $14 billion which the till would authorize
over four fiscal years. Testimony before the Committee, experience with
the existing water pollution programs, and experience with other
major Federal-aid construction programs indicate that it will be pos-
sible to build up to the levels of activity required to properly utilize
the funds which Title II would authorize for waste treatment facil-
ities construction. The time for actual construction of facilities re-
quired to treat municipal and continued municipal and industrial
wastes extends over four to seven years. The commitment to pay must
be made at the time the project is approved with payment to be made
over the construction period.
If Congress places upon State and communities the burden of carry-
ing out this program, it should bind itself to pay the Federal share
of the projects costs. The authority for obligation will not bar the
Committee on Appropriations from reviewing the manner in which
the program is being carried forward.
SECTION 208—DISBURSEMENT
This section is the first sentence of subsection (e) of section 8
of existing law.
5 [p. 35]
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WATER—STATUTES AND LEGISLATIVE HISTORY 125
SECTION 209—WASTE TREATMENT MANAGEMENT
This provision seeks to stimulate waste treatment management
on a regional basis. The Administrator shall establish guidelines
under which each Governor should designate waste management
regions. Such regions should cover all sections of each State. An
agency for developing the waste management plan for each re-
gion is to be similarly designated by the Governor. If the Governor
fails to designate, the chief elected local officials in the area shall
designate the agency.
Within two years of designation, all such agencies must develop
waste treatment management plans consistent with Section 201.
A six-month extension may be granted to individual regions. Such
a plan must contain waste treatment construction priorities and
information on waste treatment needs over 20 years, and create a
regulatory program to implement the purposes of Section 201,
with controls over industrial discharges and control over the
disposal of pollutants onto the land or into subsurface excavation.
The plan must also, if appropriate and to the extent feasible,
provide for controls over pollution related to agriculture, mine-
water, construction, and salt water intrusion.
The Administrator shall help to finance development of these
plans, and the Army Corps of Engineers is authorized, upon re-
quest of a Governor, to provide technical assistance to any waste
management agency in the development of its plans.
States may request the Secretary of the Army to acquire lands
for any needed treatment works.
Once a plan is completed, the Governor shall designate agencies
in each region that shall implement the plan, build waste treat-
ment facilities, and assess user charges.
After July 1,1974, all grants will go to a designated agency, for
projects that conform with the waste management plan.
Perhaps the principal cause of inefficiency and poor performance in
the management of waste in the metropolitan regions is the incoherent
and uncoordinated planning and management that prevails in many
areas of the Nation. Adjacent communities and industries are under
no mandate to coordinate laud use or water quality planning activities.
This results in poor overall performance and the proliferation of many
direct and indirect discharge sources into receiving waters. Such dif-
fuse and divergent programs not only intensify pollution problems but
they prevent the use of economies of scale, efficiency of treatment meth-
ods, and, most importantly, coherent, integrated and comprehensive
land use management.
Consequently, the Committee has included in the bill a mechanism
that would establish planning and management capability throughout
each State. The mechanism is initiated by the Administrator who
would set forth definitive criteria on those intestate and intrastate
areas for which regional waste treatment management plans are to
be developed. The Governor, or Governors, after consultation with lo-
cal elected officials, are required to designate regions for the purpose
of developing regional waste management plans.
The agencies designated as planning agencies by the Governor, are
entitled at their request to receive from the Administrator financial
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126 LEGAL COMPILATION—SUPPLEMENT I
and planning assistance in development of plans so that the alterna-
tive waste treatment methods may be examined and reviewed and
the best one developed for each region. One hundred percent planning
grants are available for the first two years and Yo percent grants will be
available thereafter. The Governor then submits the plan, along with
the designation of an operating agency (or agencies) to carry out
suclh plan, to the Administrator for approval.
A regional planning mechanism will be ineffective if it does not
provide an effective means of regulating all sources of pollutants with-
in the region, and if it does not provide an overall management mechan-
ism to assure implementation of any plan developed.
Section 209 requires that any regional plan developed pursuant to
this Act not only establish construction priorities for treatment works
and identify alternative waste management strategies, but also estab-
lish a regulatory program to implement those waste treatment man-
agement requirements, regulate the location, modification and con-
struction of facilities in the region, assure that industrial and com-
mercial wastes discharged into any treatment works meet applicable
pretreatment requirements, provide for control of residual waste gen-
erated in the area, and provide for control over the disposal of pollut-
ants on land or in subsurface excavation in the region.
These specific regulatory functions are in addition to requirements
to establish processes to identify and control agriculturally related
pollution, mine related pollution, construction related pollution and
salt water intrusion. To the extent required to provide uniformity of
regulation, a Governor may determine that these processes and proce-
dures should be imposed by the State rather than at the regional level.
Should a Governor make this determination and notify the Adminis-
trator, the Committee expects that any regional plan submitted for
approval would include reference to these controls.
The magnitude of the task and the policy considerations implicit
in that task make it essential that the planning operations be con-
ducted under the supervision of regional agencies composed of elected
officials. The regulatory functions proposed in this plan will require
legislation in many regions. Ordinances 'and regulations will be re-
quired. Metropolitan area plans, land use requirements, and zoning
decisions will all be affected by this plan.
The independent functioning of units of government in areas of
population concentration without regard to the pollution related re-
quirements of other areas of the same region will not 'be possible.
Uncontrolled growth and expansion and competition among units of
government will be reduced if effective environmental controls are
to be imposed.
The Committee is cognizant of the impact planning and imple-
mentation of these requirements will have but the Committee also
recognizes that in those areas of urban and industrial concentration
any program which falls short of that defined by this section will be
inadequate to protect an environment Which is healthful to the people
who live within those regions.
The Committee is concerned that adequate planning and prepara-
tion is not being given the location, construction, and operation of
waste treatment facilities. There has been a tendency in the past to
allow a proliferation of investment in waste treatment facilities be-
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WATER—STATUTES AND LEGISLATIVE HISTORY 127
cause, local governmental jurisdictions have been unable or unwilling
to work together to jointly construct and operate facilities.
While local jurisdictional differences may be the reason for potential
waste inherent in such individual construction operation activities,
the Congress cannot permit such practices to continue.
The new legislation provides a Federal contribution to the cost of
construction of wastp, treatment facilities of up to 70 percent. In many
instances the local community's share of a project's cost will be as
little as 20 percent. This investment of State and Federal funds where
made must be strictly regulated to assure that the best facilities are con-
structed in terms of effluent quality, public investment, population to
be served and potential for best operation and maintenance.
The Committee does not have any preconceptions as to what the
"best" is. The Committee is convinced that waste treatment methods
which will most greatly reduce any discharges into the waterways
while avoiding poisoning the land is preferable. However, the Com-
mittee also recognizes that many communities cannot apply available
alternatives, such as land disposal, because of geographical or physical
factors and must rely on improved conventional treatment methods.
The Committee believes that a positive instruction to work on a
regional basis is essential to effective implementation of the goals
and the deadlines established in this law. This may mean individual
waste treatment plants for entire metropolitan areas and it may mean
separate, independent treatment plants for each jurisdiction within
the area. This decision is to be made as a part of the regional plan to
be developed by the local elected officials to be approved by the State
and by the Environmental Protection Agency. If this procedure is
followed, the chances of success of the program are greatly enhanced.
Section 202 malcer funds available for this program in the form of
obligations. Five percent of the funds authorized in each fiscal year
shall be available for the purposes of this section.
Without the guarantee, of funding implicit in this provision the
needed planning will not get under way immediately and approved
plans to meet the requirements of Section 201 will not be completed.
Failure to have an approved plan will result in ineligibilty for con-
struction grants funds after fiscal year 1974.
Following the approval by the Administrator of a plan and a desig-
nated operating agency or agencies, all waste management in the de-
scribed region must conform to the plan and any grants under this
Act shall serve to carry out the plan. In order to assure effective plan
implementation, the Governor is required to designate an operating
agency (or agencies) within such region. To the extent that exist-
ing agencies (county, city, independent district or other) have the au-
thority required and agree to carry out the plan, the Committee would
expect them to be designated. Use of existing c-''is. .'fiioii agencies
will accelerate application of these regional pla,.o.
It is possible that many of the entities that would be created under
Section 209 would be without condemnation authority outside their
specific geographical jurisdiction. Since any land-based disposal sys-
tem will require major land acquisition, the bill provides that where
necessary, and approved by the Administrator, the condemnation au-
thority of the Secretary of the Army (acting through the Chief of
Engineers) is available to secure land, providing that such land serves
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128 LEGAL COMPILATION—SUPPLEMENT I
an essential function in the treatment process or is necessary for the
disposal of residual waste.
One of the most significant aspects of this year's hearings on the
pending legislation was the information presented on the degree to
which nonpoint sources contribute to water pollution. Agricultural
runoff, animal wastes, soil erosion, fertilizers, pesticides and other
farm chemicals that are a part of runoff, construction runoff and silta-
tion from mines and acid mine drainage are major contributors to the
Nation's water pollution problem. Little has been done to control this
major source of pollution.
It has become clearly established that the waters of the Nation
cannot be restored and their quality maintained unless the very com-
plex and difficult problem of nonpoint sources is addressed.
It has been estimated that 700 times as much suspended solids
reach the Nation's waters from surface runoff in any period as reach
the waters in the discharge of sewage. The volume of such solids from
land runoff has been estimated at 4 billion tons each year.
A considerable portion of this runoff is in the form of particles
of soil, which may not have any direct impact on the chemical or
biological integrity of the waters. Yet the effect of this sediment on
water quality can be severe, damaging the esthetic value of lakes and
smothering fish spawning grounds.
Land runoff also carries into the Nation's waters animal wastes
and fertilizers, which may contribute to eutrophication, as well as
pesticide residues and other chemicals that may damage fish or other
aquatic organisms.
For the first time, the Committee bill provides a mechanism to es-
tablish a program to control the principal nonpoint sources of water
pollutants. Section 304 requires that the Administrator develop, in
conjunction with other appropriate Federal agencies, information re-
garding nonpoint sources and their control. Following the publication
of this information, each State or regional planning agency under Sec-
tion 209 is required to deve'op plans for nonprofit source pollution
control after public hearings, and submit that plan, by a time certain,
to the Administrator. Specific nonprofit sources must be included
within such plan and in each instance the State must identify and each
of the specific sources within each category.
The Committee recognizes, at the outset, that many nonpoint sources
of pollution are beyond present technology of control. However, there
are many programs that can be applied to each of the categories of
nonpoint sources and the Committee expects that these controls will
be applied as soon as possible.
For instance, in the construction of buildings, parking lots and high-
ways, it is possible to install catch basins or holding ponds for the pur-
poses of settling out silt or sediment before runoff water reaches either
storm sewers or the natural drainage system. Also, methods of excava-
tion and storage of fill are available to reduce the susceptibility to
erosion.
Another perplexing nonpoint source problem is pollution from
mining—strip, surface, and underground. The control of pollution
originating from such activities involves regulating mining practices,
including where practicable, total elimination of the practice in certain
areas because of soil and geologic factors.
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WATER—STATUTES AND LEGISLATIVE HISTORY 129
The bill requires identification of nonpoint source activities and de-
velopment of methods and procedures to control them to the extent pos-
sible. The bill also directs the Administrator to perform and support
additional research to control these very serious problems.
The present Federal water pollution control program does not con-
sider degradation of water caused by reduction in fresh water flows
which produce the intrusion of salt or brackish waters into estuaries
and rivers. Salt water intrusion, no less than point sources of discharge,
alters significantly the character of the water and the life system it sup-
ports. Salt water intrusion often devastates the commercial sheepish
industry. It must be accounted for and controlled in any pollution con-
trol program. It makes no sense to control salts associated with indus-
trial or municipal waste point sources and allow, at the same time,
similar effects to enter the fresh water as a result of intrusion of salt
water. Fresh water flows can be reduced from any of a number of
causes. The bill requires identification of those causes and establish-
ment of methods to control them so as to minimize the impact of salt
water intrusion.
SECTION 210—DEFINITIONS
For the purposes of Title II a number of terms are defined. In
addition to the term "construction", present in existing law, defi-
nitions are added for "treatment works", "replacement costs",
"industrial user", and "grant".
The term "treatment works" includes any device or system for stor-
ing, treating, recycling, or reclaiming municipal sewage or industrial
wastes of a liquid nature. And in addition to the elements included
in existing law, "treatment works" would include acquisition of land
to be used in the treatment process (as in land disposal by spray irri-
gation) or for the ultimate disposal of sludge and other residues.
The term "treatment works" also includes any pipelines that would
convey sewage sludge a reasonable distance from a treatment plant
to any publicly owned facility constructed for further treatment of
those wastes by methods such as, composting, or for ultimate disposal
on land.
Included within the definition of "treatment works" is "any land
that will be an integral part of the treatment process or is used for
ultimate disposal of residues resulting from such treatment." By
lands which are an integral part of the treatment process, it is in-
tended (o refer only to those lands which physically interact with the
wastewater or pollutants removed therefrom. Lands which are merely
a site foi the placement of buildings or equipment are not considered
to be a part of the treatment process, and are not included in the cost
of construction.
"Another change in the definition of 'treatment works' recom-
mended by the Committee would include facilities for preventing or
abating storm water overflows among those eligible for construction
grants. Although the existing definition of 'treatment works' could
be interpi-eted to include such facilities, the EPA and its predecessor
agencies have mare no construction grants for such facilities." The
Administrator has suggested that the cost of constructing facilities to
eliminate the combined sewer problem that exists in numerous cities
throughout the Nation would be prohibitive. The Committee believes,
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130 LEGAL COMPILATION—SUPPLEMENT I
however, that it would be unwise to exclude from the construc-
tion grant program facilities that in some instances could achieve
water quality objectives on a far more economical and efficient basis
than through the construction of treatment facilities. For example,
the Committee heard testimony to the effect that the water treatment
facilities required for Chicago may be reduced by 50 percent or more if
a method is developed for storing storm overflows that occur per-
haps once or twice a month. Under such circumstances, it is obvi-
ously wasteful to construct water treatment facilities adequate to
handle peak loads that occur so infrequently, so long as there is a
satisfactory alternative method of achieving the same result at a far
lower cost. The Committee was also advised of another situation in
which, because of the city's topographical and rainfall characteristics,
partial separation of combined sewers would prove to be the most
efficient method of meeting water quality standard in that community.
It is important, especially in the case of very large systems, that
such facilities are eligible to be included in construction grants, so
that the long term planning, design and engineering can be undertaken
with the understanding that a proposal based on the inclusion of
facilities for handling storm overflow will be fairly and reasonably
considered by the Administrator.
The term "replacement costs" which is denned to mean "those ex-
penditures for obtaining and installing equipment, accessories, or ap-
purtenances during the useful life of the treatment works necessary
to maintain the capacity and performance for which such works are
designed and constructed", is intended to include more than the usual
recurring expenses of operation and maintenance. It is intended to
include costs of equipment which might be replaced only once or in-
frequently during the life of the works. It is not intended to include
total structural replacement of the building or works itself.
Section 210(d) defines ''industrial user" of a waste treatment sys-
tem. The method chosen is to include all industries classified under
"division D-Mamifacturing" of the Standard Industrial Classifica-
tion prepared by the Bureau of the, Budget in 1967. In addition, the
Administrator of the Environmental Protection Agency is given the
authority to include other classes of significant waste producers, as ho
deems appropriate, through the publication of regulations. This defi-
nition permits the, Administrator to designate as an "industrial user''
any commercial or business enterprise which as a class or as a single
installation discharges significant wastes to a municipal system, under
the intent of the Act.
The term "grant" means a grant or grant contract, as the context
of the bill requires.
TITLE III—STANDARDS AND ENFORCEMENT
SECTION -301—EFFLUENT LIMITATIONS
The discharge of any pollutant is illegal, except as permitted
under this section or sections 302, 306, 307, or 402.
By January 1, 1976, all point sources of pollution, except pub-
licly owned treatment works, must have in use the best practicable
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WATER—STATUTES AND LEGISLATIVE HISTORY 131
treatment technology or meet any Section 307 pretreatment stand-
ard, if the effluent is sent through a publicly owned treatment
works.
All publicly owned facilities must utilize secondary treatment
by that same date, or within four years of the date that construc-
tion was started on any grant project begun prior to June 30,1974.
By 1981, point sources, other than publicly owned treatment
works, must eliminate the discharge of pollutants. An exception
to this requirement shall be granted if the owner presents infor-
mation to the Administrator showing that compliance cannot be
attained at a reasonable cost. If that occurs, the discharge limita-
tion for that source shall be the best available technology. The
Section 307 pretreatment standard covers any industrial discharge
into publicly owned treatment works.
Any publicly owned treatment works that is approved after
June 30,1974, must comply with Section 201.
This section requires that all effluent limitations must be re-
viewed at least every five years.
A prohibition is declared on the discharge of any radiological,
chemical, or biological warfare material, or any high-level radio-
active waste.
This section establishes a two-phase program for application of
effluent limitations, the first based on technological practicability and
the second on technological availability. While the Administrator is
not precluded from applying effluent controls based on water quality
(where that relationship can be or has been established), the failure to
establish a direct relationship will not be an excuse for delay. Phase I,
to be implemented by 1976, will require application of the best prac-
ticable technology to all industrial pollution sources. Communities will
be required to have approved secondary treatment construction pro-
grams by the end of Fiscal Year 1974. Phase IT, to be implemented by
1981, will require, where no-discharge cannot be attained, application
of the best available technology for communities and industries.
This section clearly establishes that the discharge of pollutants is
unlawful. Unlike its predecessor program which permitted the dis-
charge of certain amounts of pollutants under the conditions de-
scribed above, this legislation would clearly establish 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.
The program proposed by this Section will be implemented
through permits issued in Section 402. The Administrator will
have the capability and the mandate to press technology and economics
to achieve those levels of effluent reduction which he believes to be
practicable in the first instance and attainable in the second. Because
the program established by this section requires increasingly tougher
controls on industry; because industry will be required every'five years
to re-evaluate its control efforts and to apply the best technology"then
available; because industries will have to show every five years that
no-discharge is not attainable; because of the site peculiarities of cer-
tain plants; or because of the economies of joint municipal-industrial
treatment, many industrial polluters will choose to discharge their
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132 LEGAL COMPILATION—SUPPLEMENT I
wastes into municipal systems. However, industry should not expect
that the use of municipal systems will avoid the cost or requirements
of this Act.
Much of the time the Committee devoted to this Act centered on
an effort to resolve the existing water quality program and the sep-
arate pollution permit program developing under the 1899 Refuse Act.
The Committee believes that the no-discharge declaration in Section
13 of the 1899 Refuse Act is useful as an enforcement tool. Therefore,
this section declares the discharge of pollutants unlawful. The Com-
mittee believes it is important to clarify this point: No one has the
right to pollute.
But the Committee recognizes the impracticality of any effort to
halt all pollution immediately. Therefore, this section provides an
exception if the discharge meets the requirements of this section, Sec-
tion 402, and others listed in the bill.
Under a subsequent section of this bill pretreatment standards are
required. Any industrial wastes which are not compatible with, or
will not be treated by, conventional municipal waste treatment must be
pretreated by the industry choosing to use the municipal treatment
works.
Publicly-owned treatment systems must meet the secondary treat-
ment requirement of Phase I and, in Phase II. the mandate requires
the best practicable treatment, including recycling and reclamation of
wastes confined and contained disposal as set forth in section 201.
Additionally, regional waste treatment management plans devel-
oped under section 209 will require the consideration of the best al-
ternatives available to eliminate the discharge of any waste generated
in the region and will require overall waste treatment management
plans for all areas of the country in order to assure that the require-
ments for section 201 are carried out, that all alternative control
strategies are explored, and that the best available alternative for a
particular region is utilized.
Pretreatment requirements, user charges, requirements on munic-
ipalities and regional waste management programs should protect
against abuse of public systems and public investment by industry.
Additionally, any industry using a publicly owned treatment facil-
ity which will not meet the requirements of section 201 by 1981 shall
be required to meet the requirement of no-discharge or, if that is not
attainable, the best available technology as determined by the Admin-
istrator. This requirement should prove to be an effective incentive
to cooperative efforts between communities and industries to develop
and implement section 209 plans.
The committee emphasizes that this section is not to be construed as
reducing anv water quality or effluent requirements imposed as a result
of the Federal Water Pollution Control Act prior to enactment, or
State law. In fact, the Administrator is under a specific obligation to
require that level of effluent control which is needed to implement
existing water quality standards without regard to the limits of
practicability.
The application of Phase I technology to industrial point sources
is based upon the control technologies for those sources and to publicly
owned sewage treatment works is based upon secondary treatment. It
is not based upon ambient water quality considerations. In requiring
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WATER—STATUTES AND LEGISLATIVE HISTORY 133
best practicable controls to be applied and achieved by 1976, the Com-
mittee is incorporating the general requirements established under the
1965 Act for interstate waters. The Committee recognized, however,
that the water quality standards established under the 1965 Act may
require higher levels of control that can be achieved if only the "best
practicable" is applied. It is not the intent of the Committee to in any
way restrict the Administrator, or the States from applying higher
levels of control than best practicable where necessary to achieve
standards established pursuant to the 1965 Act or, in the case of intra-
state waters, under similar legislation in any of the States.
In addition, the Committee recognizes that many criteria included
in standards applicable to both interstate and intrastate waters are not
adequate. For example, only seven States have established criteria for
phosphorous for their interstate streams. Since initial approval of
standards the need to control phosphate discharges to prevent eu-
trophication has been established.
Section 301(b)(l)(C) provides adequate authority to apply new
information to existing water quality requirements and upgrade
effluent limits accordingly.
In other words, wherever the Administrator determines that ap-
plication of the best practicable treatment requirements of Phase I
will not provide for implementation of existing water quality stand-
ards for interstate or intrastate streams, he must tighten the require-
ments against a source of discharge or group of sources.
However, in these cases the Administrator must act quickly. The
deadlines established to achieve effluent limitations are strict. Time
will be required to achieve any effluent limitations established. Sources
of pollution, whether they are cities or industries, must know what the
requirements are in order to proceed on schedule with their construc-
tion program. In the case of cities, this should not be difficult, because
of the existing requirement that a minimum of secondary treatment is
maintained for Phase I. Many communities have begun to construct
these needed facilities. Others are in the process. Of course others
must act quickly to begin construction if they are to meet the dead-
lines required in the legislation.
Unfortunately, as noted above, little has been done to identify for
industry the exact meaning, on a plant-by-plant basis, of the equiv-
alent of secondary treatment. Through the permit program estab-
lished under section 402, with the help of those States which have
effective programs, the Administrator and the States can and should,
by mid-1973, be able to apply specific effluent limitations for each
iiidustrial source. Application of limitation by that date would provide
thirty months for achievement of required levels of reduction.
While some may suggest that this is too short a period, many in-
dustries have known that they are expected to achieve the equivalent
of secondary treatment and should be in the process of applying con-
trol techniques.
In some cases, where industries have done nothing, their capacity
to comply may be stretched to the limit. The Committee recognizes
this, and suggests that to provide opportunity for further delay would
only reward polluters who ignored the requirements of the 1965 Act
and penalize those discharge sources who m6Ved quickly to comply.
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134 LEGAL COMPILATION—SUPPLEMENT I
Phase II of the Act provides five years to achieve no-discharge or
apply the best available technology. By 1976 each discharge sour
should have applied for, and received, a permit setting forth tl
effluent limitations that will be required in this phase. The Admi
istrator should have reviewed the information generated by the ear
phases of the water quality inventory in order to determine thcx
waterways which can be significantly improved by the applicatic
of alternative strategies as required by section 302. Those industrif
and communities located in the areas subject to section 302 will ha\
the information they need to determine how to proceed to meet moi
restrictive requirements. Once the requirements to be met by 1981 ai
defined, the planning and construction required to meet the 1981 deao
line can proceed as expected.
Many industries will be able to anticipate the requirements in Phas
II. In those instances where corporate managers know that their bes
course is to connect with municipal waste treatment systems, plans cai
be made during Phase I to assure that pretreatment standards will bi
met and to assure that the community will be in compliance with thi
requirements of section 201.
In other cases, corporate managers will know that closed cyclt
systems, recycling, and waste reclamation techniques are available tc
their plants and can be applied as required in Phase II. In those in-
stances, plans can be made during Phase I and industries can begin im-
mediately to work toward that objective by 1981.
In still other cases, there will be uncertainty as to the economic im-
pact of closed cycle systems necessary to meet the no-discharge stand-
ard or, in fact, as to the availability of such technology. In those cases
the .corporate managers will be required to make a showing to the
Administrator of the facts on which they base a determination that
the no-discharge requirement of the Act cannot be attained at a rea-
sonable cost. If the Administrator finds, on the basis of the showing
made, and, after eva'uating the achievements of similar facilities,
that no-discharge cannot be achieved at the plant in question, the Ad-
ministrator is required to establish an effluent limitation based on the
best technology available (as defined in Sec. 304) to that plant.
"The burden of coming forward to show that a no-discharge stand-
ard cannot be applied to a specific plant rests on the owner or operator
of the pollution source. The Administrator's role is to confirm the
facts presented. But the Administrator is not bound by the limits of
the information presented by the polluter.
This is important for two reasons. In some instances, polluters may
attempt to show that a no-discharge standard cannot be attained by
making an incomplete or inaccurate presentation of facts. The Admin-
istrator, on the other hand, using his own resources, would be able to
contradict such a presentation. In other cases, a polluter may lack the
resources to determine what technology is available to him. This pol-
luter may conclude, wrongly, that a no-discharge standard cannot
be achieved. In this case, the Administrator, calling on resources avail-
able to him, can provide guidance to the polluter.
In the latter instance, the Committee expects the Administrator to
provide industrial pollution sources with technical information as re-
quired by section 304 on control technology available to various kinds
of plants. This information may well serve as the basis for those pol-
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WATER—STATUTES AND LEGISLATIVE HISTORY 135
luters with insufficient resources to determine what they may be able
to do or not do.
The Committee has established a procedure to continue the program
beyond 1981. Under this provision, the procedures and requirements of
Phase II would be repeated every five years for those sources of pollu-
tion which could not have to achieve the no-discharge requirement in
Phase I (if required to meet water quality standards) or Phase II, or
in an earlier five-year phase.
SECTION 302—WATER QUALITY RELATED EFFLUENT LIMITATIONS
If any Section 301 effluent limit to be attained by 1981 interferes
with the achievement of a water quality assuring protection of
public water supplies, the propagation of fish, and swimming, a
more restrictive effluent standard must be set to provide such
protection. But prior to setting a more restrictive standard, a
hearing shall be held to determine the balance between the eco-
nomic and social costs of such new limitation and the social and
economic benefits. If the relationship is unreasonable, the limita-
tion shall be adjusted.
Section 302 is intended to implement the interim goal (identified
in Section 101 of the Act) of achieving by 1981, wherever attainable, a
standard of water quality which provides for the protection and propa-
gation of fish, shellfish, and wildlife and provides for recreation in and
on the water, and also assures that public water supplies, agricultural
and industrial uses will be protected.
To the extent that water quality standards can be used to generate
firm data on necessary effluent limitations this enforcement tool should
be available. The limitations necessary to achieve a given level of water
quality in one reach of a waterway may require more control of efflu-
ents than that attainable through application of the best available
technology. Where that is desirable to implement the policies of the
Act, and feasible, section 302 provides the authority to impose controls
based on water quality.
Where application of the best available control technology
(as required for all industrial point sources in "phase II" under sec-
tion 301 (b) (2)) or best practicable treatment (as required for all pub-
licly owned treatment works under section 301 (b) (2)) will not attain
that standard of water quality, more stringent effluent limitations or
alternative control strategies can be imposed. Such limitations would
be established for the affected point sources at a level wrhich can reason-
ably be expected to contribute to the attainment or maintenance of
such a standard of water quality.
The concept of "alternative effluent control strategies" is necessary
to account for two difficulties in simply setting more stringent effluent
limitations than those attainable with the best available control tech-
nology, may include elimination of anv discharge of pollutants. Com-
pliance with such a limitation, even if demonstrably not sufficient to
reach a given water quality standard, could not be improved upon
with a more stringent effluent limitation. Secondly, further reduction
of the level of effluent entering the affected waters may not be possible
through control technology, yet essential to water quality. Alternative
effluent control strategies, such as the transportation of effluents to
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136 LEGAL COMPILATION—SUPPLEMENT I
other less affected waters or the control of in-plant processes would
have to be developed.
Prior to establishing a water quality related effluent limitation under
the authority of this section, the State or the Administrator would be
required to give public notice and hold a hearing. At the hearing,
evidence would be taken on the relationship of the economic and social
costs of achieving the proposed limitation (including possible eco-
nomic or social dislocation in affected communities), to the economic
and social benefits to be obtained. The communities affected for the
purpose of assessing dislocation, are only those from which the point
source or sources in question draws significant numbers of employees.
The hearing would also provide a base for determining whether pro-
posed effluent limitations can be implemented with available technology
or alternative strategies.
To obtain an adjustment of a proposed effluent limitation under this
section, the owner or operator of an affected point source must demon-
strate at the hearing that there is no reasonable relationship between
the economic and social costs and the benefits to be obtained. The own-
er or operator of such a source must carry this burden regardless of
whether technology or alternative strategies are available to imple-
ment the proposed limitation.
The Committee has included language in this section requiring
that in the determination of effluent limitations based on water qaul-
ity, consideration must be given, on a case-by-case basis, to a balancing
of the economic and social costs against the social and economic bene-
fits sought to be obtained.
The Committee believes that there must be a reasonable relation-
ship between costs and benefits if there is to be an effective and work-
able program. The projected economic costs of establishing the
limitations and strategies contemplated under this section include in-
creased overhead, possible job losses, projected production cutbacks,
and loss of revenue to the community. Full weight shall be given to such
readily quantifiable factors.
Balancing economic costs against what may be considered intangi-
ble social benefits is difficult. Some economic benefits can be calcu-
lated with reasonable accuracy. These include savings of the costs to
public health of polluted waters, the costs of lowered property values
along polluted lakes and rivers, the cost to the community of lower
tax revenues and an unattractive business climate, the loss of future
industry and jobs because of severe pollution problems, as well as the
expansion of recreational opportunities available to the general pub-
lic, including lower-income persons who rely heavily on public recrea-
tion facilities; transportation and other savings through the provi-
sion of recreation sites in closer proximity to densely populated areas;
and the impact of not imposing proposed effluent controls and strate-
gies on neighboring communities. Benefits more difficult to calculate
such as long-term improvement of water quality and reduction of
estuarine and ocean pollution should not be ignored.
Another factor to be taken into consideration is the availability
of Federal, State or local adjustment assistance to individuals af-
fected by any economic or social dislocation from pollution abate-
ment. Any balancing of costs and benefits should take into account
the nature of the receiving waters and the feasibility of their use
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WATER—STATUTES AND LEGISLATIVE HISTORY 137
for recreational purposes, and the recreational and aesthetic values
of maintaining a balanced population of shellfish, fish and wildlife in
the particular waterway.
The Committee recognizes that no mathematical balance can be
achieved in considering relative costs and benefits nor would any
precise formula be desirable, but in each case the Administrator or the
State will be able to determine whether there is any reasonable con-
nection at all between the costs which a particular effluent limitation
would impose and any benefits (including the attainment of natural
water quality) which might be derived.
In all cases, the proposed effluent limitations shall not operate to
delay the application of any effluent limitation established under sec-
tion 301. Section 302 is intended to furnish a supplemental basis for
improving water quality, and not to be a cause for delay in executing
the requirements of Section 301, or for requiring any less stringent
effluent limitations.
SECTION 303—AQTJACULTURE
After public hearings, the Administrator may allow discharges
of pollutants for approved agriculture projects.
The language of Section 303(a) is intended to refer to localized
portions of waterways where predetermined and controlled quantities
of specified pollutants may be added in order to increase the growth
of particular fish, shellfish or other species for a designed beneficial
use by man. Such projects as the building of artificial reefs by use of
inert bulk solids, the use of some nutrients for the growth of selected
algae to be fed to fishes in a confined or controlled area, the promotion
of growth of certain aquatic plants such as water hyacinth for subse-
quent use as animal fodder, are examples of projects which are intended
to be permitted on an experimental basis under Federal or State super-
vision and approval. It is intended that no pollutants be permitted to
migrate from the aquaculture project to cause pollution elsewhere.
The addition of heat to a waterbody, for example, is not intended to
be permitted, unless it is shown in advance, to the satisfaction of Fed-
eral or State environmental protection authorities, that such pollutant
will be released in a controlled and confined way for the purpose of
growing aquatic organisms which will be harvested and used bene-
ficially, according to preapproved plans. In no event is a project to be
approved which disturbs the integrity of waters outside the approved
project area.
In Section 303 (b) the Administrator is required to establish proce-
dures and guidelines which would (1) assure confinement of the pol-
lutant additions to the aquaculture area; (2) determine whether the
inert bulk spjids, the use of some nutrients for the growth of selected
additions will produce the desired benefits, that the desired organisms
will be harvested or otherwise used; and minimum control and man-
agement requirements.
SECTION 304—INFORMATION AND GUIDELINES
Within one year after enactment, the Administrator shall pub-
lish criteria on water quality. The criteria must reflect the latest
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138 LEGAL COMPILATION—SUPPLEMENT I
scientific information on the factors needed for a restoration of
the natural chemical, physical, and biological integrity of all
navigable waters, the factors needed for propagation of fish, shell-
fish, and wildlife, and the factors needed to allow swimming, to-
gether with the effects that individual pollutants have on fish,
plant life, beaches, as well as the movement of particular pollu-
tants through the life chain.
Within a year of enactment, the Administrator shall also pub-
lish effluent-limitation guidelines that identify the degree of ef-
fluent reduction that is attainable through the use of the best
practicable technology currently available. Similar guidelines are
also required for assessing the degree of effluent reduction at-
tained in the use of the best available technology.
These guidelines shall also specify all factors to take into con-
sideration in assessing both the best practicable technology and
best available technology. These include the age of equipment and
facilities, the process employed, and the cost of achieving such a
reduction.
The Administrator shall also issue information on processes,
procedures, and operating methods that will result in the elimina-
tion or reduction of pollution discharges in order to meet the
Section 306 standards, plus information on alternative waste
treatment systems to be considered in Section 201.
The Administrator shall also publish guidelines and procedures
on the impact on water quality of hydrographic modification
work, as well as guidelines and procedures identifying and con-
trolling pollution from various types of nonpoint sources: agri-
culture, mining activities, and construction work.
The Administrator shall also publish guidelines on pretreat-
ment standards for pollutants that are not susceptible to treat-
ment by publicly owned treatment works.
Guidelines for the test procedures that will analyze pollutants
must be published by the Administrator, in addition to guidelines
for the monitoring, reporting, and enforcement requirements to
be included in any State program delegated under Section 402.
An authorization for this section is set at $100,000,000 for fiscal
year 1973, and each year thereafter.
The development of information which describes the relationship of
pollutants to water quality is essential for carrying °ut the objective
of the Act. This information, known as criteria, is required under Sec-
tion 304(a) to be developed and published by the Administrator and
issued to the states and public. Criteria to be developed in this section
should draw upon the best scientific knowledge on the subject, includ-
ing information, if any, from the National Academy of Sciences, the
U.S. Geological Survey in the Department of Interior, scholarly litera-
ture, academic experts, and other sources.
Criteria establish the effects of pollutants on health or welfare, in-
cluding the effects of pollutants on receiving water ecosystems and
man, and identify the natural chemical, psysical and biological integ-
rity of the Nation's waters. The concentration and dispersal of pollut-
ants and their by-products through biological, physical and chemical
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WATER—STATUTES AND LEGISLATIVE HISTORY 139
processes and any related changes in the diversity, productivity, or
stability of receiving water ecosystems would be part of the informa-
tion provided.
The "natural . . . integrity" of the waters may be determined
partially by consultation of historical records on species composition,
partially from ecological studies of the area or comparable habitats;
partially from modeling studies which make estimations of the bal-
anced natural ecosystem based on the information available. It is
expected that the ultimate mechanism for the restoration and mainte-
nance of the natural integrity of the waters will be the complete
cessation of discharge of pollutants into waters. Prevention of the
migration of pollutants into grouudwaters or to estuaries and oceans
should be considered in publishing such information.
It is the Committee's intention that pursuant to subsection 301 (b)
(1) (A), and Section 304(b) the Administrator will interpret the term
"best practicable'' when applied to various categories of industries as
a basis for- specifying clear and precise effluent limitations to be imple-
mented by January 1, 1976. In defining best practicable for any given
industrial category, the Committee expects the Administrator to take
a number of factors into account. These factors should include the age
of the plants, their size and the unit processes involved and the cost of
applying such controls. In effect, for any industrial category, the Com-
mittee expects the Administrator to define a range of discharge levels,
above a certain base level applicable to all plants within that category.
In applying effluent limitations to any individual plant, the factors
cited above should be applied to that specific plant. In no case, how-
ever, should any plant be allowed to discharge more pollutants per
unit of production than is denned by that base level.
The Administrator should establish the range of best practicable
levels bnsed upon the average of the best existing performance by
plants of various sizes, ages, and unit processes within each industrial
category. It is acknowledged that in those industrial categories where
present practices are uniformly inadequate, the Administrator may
determine best practicable to require higher levels of control than any
currently in place if he determines the technology to achieve those
higher levels can be practicably applied.
Best practicable can be assumed to substitute for the present term-
inologv "equivalent of secondary treatment for industry but this inter-
pretation should not be construed as limiting the authority of the
Administrator.
Under the Phase II the Committee intends that effluent limitations
be based upon application of best available teehnoloo-v as defined bv
the Administrator. In ranking the determination of "best available"
the Committee expects the Administrator to applv the snme principles
involved in making the determination of best practicable ?m outlined
above except that rather fhan the ran.
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140 LEGAL COMPILATION—SUPPLEMENT I
of obsolete plants and processes, and other improvements in tech-
nology, the Commitee anticipates that it should be possible, taking into
account the cost of controls, to achieve, by 1981 levels of control ap-
proaching 95-99 percent reduction of pollutants discharged in most
cases and complete recycling in the remainder.
In establishing the levels of best practicable, and best available tech-
nology for point sources the Administrator should not ignore dis-
charges resulting from point sources other than pipelines or similar
conduits. For instance, the Administrator must give proper attention
to the control of dredge spoil disposal and fill operations especially
in light of the Committee's action in striking the limitation contained
in the Rivers and Harbors Act of 1970, thereby making diked disposal
areas, previously available only in the Great Lakes, available
nationally.
There are many other forms of periodic, though frequent, dis-
charges of pollutants into the water through point sources such as
barges, vessels, feedlots, trucks and other conveyances. The Admin-
istrator is required to publish information on the best practicable
and best available control technology including alternative disposal
methods for these sources. The Administrator should also issue regu-
lations regarding discharges resulting from the deposit of residues
from various manufacturing processes to assure control of periodic,
as well as continuous discharges into the navigable waters can be de-
veloped and implemented.
Water quality is intended to refer to the biological, chemical and
physical parameters of aquatic ecosystems, and is intended to include
reference to key species, natural temperature and current flow pat-
terns, and other characteristics which help describe ecosystem
integrity.
Criteria would also include a description of the factors related to
rates of eutrophication and the rates of accumulation of organic and
inorganic sediment.
The criteria will allow the translation of the narrative of the gen-
eral objective of the Act to specific and precise parameters.
Subsection (b) of this section requires the Administrator, within
one year after enactment, to publish guidelines for setting effluent
limitations reflecting the mandate of section 301, which will be im-
posed as conditions of permits issued under section 402. These guide-
lines would identify what constituted the "best practicable control
technology currently available" and the ''best available control meas-
ures and practices,'' and the degree of effluent reduction attainable
through the application of each. Thus, these guidelines would define the
effluent limitations required by the first and second phases of the
program established under section 301. In addition, the Administrator
would identify control measures and practices available to eliminate
the discharge of pollutants from any category of point sources, to
allow the full implementation of the objectives of the Act.
As used in this bill the concept "best available control technology"
is intended to mean that the Administrator should examine the degree
of effluent control that has been or can be, achieved through the appli-
cation of technology which is available or normally can be made
available. This does not mean that the technology must be in actual
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WATER—STATUTES AND LEGISLATIVE HISTORY 141
routine use somewhere. It does mean that the technology must be avail-
able at a cost and at a time which the Administrator determines to be
reasonable, and that the technology has been adequately demonstrated
if not routinely applied.
In order to reflect the change in emphasis of the Federal Water
Pollution Control Act, the Administrator is required to issue infor-
mation to the States and to the public on the processes, procedures, and
methods to control pollution related to non-point sources. Included
within this category are activities such as agriculture, forestry, min-
ing, construction, disposal of material in wells, and salt water intru-
sion. While many of these activities are the subject, directly or indi-
rectly, of Federal programs established for other purposes, the bill
for the first time directs attention to these activities in the context of
integrated water pollution control. It should be clear that the Com-
mittee does not intend that the Administrator should develop infor-
mation on these subjects completely independently. Rather, to the
extent possible, he should utilize the existing knowledge and existing
programs of other Federal agencies and incorporate the fruits of such
programs into the information published under this section.
In order to further carry out this intent, the Administrator is
instructed to enter into agreements with the Secretary of Agriculture,
the Secretary of the Army, and the Secretary of the Interior, to fully
incorporate programs conducted in their Departments in carrying out
the objectives of the Act. The Administrator is authorized to transfer
the funds provided under this section to those other Secretaries, in
order to further enhance those programs for water pollution control.
The Committee recognizes that the Department of Agriculture, for
instance, has authority to give technical and financial assistance, and
carry out research to promote sound land use and control pollution by
reducing erosion and runoff, providing for the orderly removal of
excess water and efficient use of irrigation water, and installation of
systems for management, storing, and recycling of animal and poultry
wastes and other agricultural related pollutants. A considerable por-
tion of this authority is administered through the REAP (Rural
Environmental Assistance Program) which the Committee strongly
endorses and hopes can be, to the extent feasible, integrated into the
water pollution control program.
Sediment, often associated with agricultural activities, is by volume
our major pollutant, not only from the degrading effect of the sedi-
ment, but because it also transports other pollutants. Fertilizer
and pesticide runoff are also major agricultural non-point sources.
Poor forestry practices, including indiscriminate clear cutting, may
also generate substantial soil erosion problems. The full utilization of
agricultural conservation techniques will be an important part of con-
trol of non-point sources called for under section 209.
Another phenomena associated w-ith construction is. of course, the
effect of completed projects upon the hydrologic cycle. One of the
common problems associated with pollution control is the dramatic
increase in storm runoff when the earth's surface is made imper-
meable. Thus highways, building, and parking lots all contribute
substantially to the accelerated runoff of rainwater' into natural water
systems. The greater volumes and greater velocity produced cause
high rates of erosion and siltation. In addition, highway runoff often
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142 LEGAL COMPILATION—SUPPLEMENT I
includes oil, rubber particles, lead, asbestos and other elements or addi-
tives deposited on highways as a result of vehicular traffic. Recent
studies have shown that this source of pollutants is growing in its
magnitude and deserves prompt attention by the Administrator. The
magnitude and deserves prompt attention by the Administrator.
The Committee would hope, therefore, that information will be pub-
lished making clear the responsibilities of those making surfaces imper-
meable, especially large expanses such as shipping centers, major
highways and large buildings, to provide as part of the construction
either catch basins or other methods to hold the water, at least tempo-
rarily, so that during storms peak flows do not run off the land and
into the natural water courses.
Guidelines for disposal of material in deep wells may range from
provisions for evaluating geological characteristics of disposal sites
to the costs and benefits of alternative methods of disposal. For shal-
lower disposal sites, the main concern is for groundwater contamina-
tion. Provisions should be outlined to control leaching of materials
from such sites, which include land-fill sites as well as abandoned
mines.
Among the causes of salt water intrusion for which information
on methods of control is needed are intrusions caused by withdrawal
of subsurface fluids such as petroleum and fresh water. Information
must be generated on problems related to from leaching of ores and
waste piles, and acid from the dissolving of acid salts formed on ex-
posed spoil surfaces or added to groundwater percolating through
spoil or waste dumps.
Procedures to control soil erosion must be described, including
methods to inhibit loss of nutrients and organic matter from exposed
soils to the stream. Procedures for rapid revegetation of mined sur-
faces should be described, including possibilities of use of sewage
sludge as a soil conditioner. Methods for killing the bacteria that pro-
duce or release acids in mines should be evaluated. Methods of ore
extraction and waste ore disposal could be described which will pre-
vent loss of toxic and other pollutants to waterways. Access roads
should be built to avoid soil erosion and minimize disturbance of the
regional hydrology. Information should be published for the non-
point source pollution associated with hydraulic mining, under-sea
mineral exploitation, and off-shore oil exploration.
Soil erosion from construction sites can be controlled by temporary
terracing, retention ponds, and other means. Information should bo
provided, in addition, on ways to insure that the facility so constructed
has adequate ways of preventing soil erosion and confining runoff.
Water pollution effects from mining activities include sediment from
sand and gravel pit mining, from surface mine overburden, from sur-
face excavation procedures,,and from dredge and hydraulic mining
operations; additions of toxic and of her chemical materials from this
source have occurred both in coastal regions, such as Florida, and in
mid-continent areas, such as Oklahoma and Texas. Increased salinity
may result from withdrawal of water from the headwaters of a river,
and especially from repeated cycles of irrigation. The return of heated
water to water bodies, increasing the evaporation rate, has accelerated
the concentration of salts. Situations such as these and others must be
considered in the guidelines.
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WATER—STATUTES AND LEGISLATIVE HISTORY 143
Another factor for consideration is the temporary or permanent
obstruction or diversion of fresh water flows in the construction of
a dam or other facility, which may also cause salt water intrusion
from estuaries.
Section 304 also requires the Administrator to publish information
on processes, procedures, or operating methods resulting in the elimi-
nation or reduction of the discharge of pollutants. This information is
necessary to implement the standards of performance for new sources
under section 306, and alternative waste treatment management techni-
ques and systems available to implement section 201. He is also required
to publish guidelines for establishing pre-treatment standards for pol-
lutants discharged into publicly owned treatment works, and guide-
lines establishing procedures and test protocols for the analysis of
pollutants in permit applications. It should be noted that this
authority is in addition to the authority of the Administrator to estab-
lish pre-treatment standards directly under Section 307. The authority
contained in Section 304 is intended to generate information to sup-
port municipalities and States in establishing pre-treatment require-
ments necessary for effective and efficient use of treatment works.
The Committee acknowledges that pre-treatment standards established
under Section 307 would generally be national in scope and addressed
to the most significant pre-treatment problem. There will remain many
pre-treatment requirements and conditions which must be incorporated
into all treatment works systems by municipalities to govern the influx
of industrial waste and the Administrator is instructed to provide
assistance in the form of guidelines. In the case of each of these require-
ments, information or guidelines would be updated annually.
In addition, the Administrator is required to issue information on
methods, procedures and processes useful in restoring and enhancing
the quality of publicly owned fresh water lakes.
Within 30 days after enactment, section 304(h) requires the Ad-
ministrator to promulgate guidelines establishing the minimum re-
quirements for the acquisition of information from owners and opera-
tors of point sources applying for permits under section 402. It is in-
tended that the program under Section 402 will, even after incorpora-
tion of any or all States, be uniform in as many procedural require-
ments as possible. This is especially true of application forms and
the actual permit forms. This should not, however, be construed to
limit States from establishing any requirements necessary in addi-
tion to the basic forms and procedures. Within 90 days after enact-
ment, the Administrator must' promulgate guidelines, in accordance
with section 402, establishing the minimum elements of a State permit
program submitted to him for approval.
It is acknowledged that the time allotted for publication of informa-
tion under this section, is short. The Committee expects however,
that the Refuse Act experience should enable the Administrator
to comply. In addition, of course, the Committee desires to make
it possible for State programs to qualify for participation in the per-
mit program under section 402 as soon as possible after the date of
enactment. This will only be possible if general guidelines establishing
the minimum requirements for such program are published at an early
date. ,
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144 LEGAL COMPILATION—SUPPLEMENT I
SECTION 305—WATER QUALITY INVENTORY
The Administrator is required to send to Congress by July 1,
1973, a report that describes the specific quality of all U.S. waters
as of January 1,1973. The report must identify and inventory all
point sources of discharge together with an analysis of each
discharge.
Those navigable waters that presently allow swimming and
provide protection for the propagation of fish must be identified
in the report. Those waters that will meet such a level of water
quality by 1976 or 1981 must be identified, as well as those waters
that will meet that level of quality at some later date.
Each State must submit by July 1, 1974, and annually there-
after, a report that describes the existing water quality on all its
navigable waters. The report must correlate the existing water
quality with the water quality described in the criteria published
under Section 304(a), plus an analysis of the extent to which all
navigable waters in the State provide for the protection of fish
and allow swimming.
Each State is further required to submit an estimate on the eco-
nomic and social costs that will be necessary to achieve that high
quality water, an analysis of the economic and social benefits of
achieving that water quality, and an estimate of the date it will
be achieved. The report should also describe the nature and extent
of nonpoint sources of pollution, programs to control such sources,
and the cost of such programs.
Much of the information on which the present water quality pro-
gram is based is inadequate and incomplete. The fact that a clearly
defined relationship between effluent discharge and water quality has
not been established is evidence of that information gap. The fact that
mixing zones have been permitted so is is indication of the informa-
tion gap. The fact that assimilative capacity has been the essential
factor in the existing control program is evidence of the information
gap. The fact that many industrial pollutants continue to be discharged
in ignorance of their effect on the water environment is evidence of the
information gap.
The Committee recognizes that there are technical limitations on
what can be done to achieve elimination of the discharge of pollutants.
But more importantly, the Committee is concerned that program ad-
ministrators and enforcement officers do not know what those technical
limits are. It can be generally stated that inadequate information
exists on the degree to which pollution could be eliminated now and
what the cost of that effort would be.
More significantly, the Committee is concerned that program admin-
istrator's and enforcement officers do not have adequate information on
the range of controls that could be applied to types of plants within
various industries. For example, after six years under the Water Qual-
ity Act, pursuant to which a guideline was established that each in-
dustry must meet "a minimum of secondary treatment or its equiva-
lent." Six years later, program administrators cannot identify the
equivalent of secondary treatment for each industry. This informa-
tion gap within the State and Federal agencies administering this pro-
gram is a cause for major national concern.
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WATER—STATUTES AND LEGISLATIVE HISTORY 145
Some of this uncertainty should be resolved by Section 304, which
requires the establishment of regulations setting forth guidelines on
effluent limitations which can be achieved from application of various
control techniques and which requires the establishment of Federal
water quality criteria so that a uniform (to the extent apprapriate) the
basis can be set for determining the levels of pollution at which various
effects occur.
Sections 104 and 105 (if properly implemented) should provide more
specific information on which to base Section 304 regulations. If the
Administrator focuses attention on those areas in which information is
inadequate, there should be a considerably greater ability to make
sound judgments under Phase II than there will be with Phase I.
This Section requires a national water quality inventory. The Ad-
ministrator is directed to inventory the quality of the Nation's waters
and identify the extent to which existing quality meets, exceeds, or
falls short of the goals established in this Act.
The Committee wants to know what waters are in their natural state
and where they are located. The Committee wants to know what waters
are of the quality which will assure protection and propagation of fish,
shellfish, and wildlife. And the Committee wants to know what waters
are safe for swimming. The Committee wants information on those
waters which fail to meet high quality requirements, where they are
located, and the reason for failure. The Committee expects a full and
complete inventory of municipal and industrial waste discharged in-
cluding a quantitative and qualitative evaluation of the pollutants
those sources. The statutory mandate as well as the necessary backup
authority for information acquisition in Section 308 and sub'pena
power under 501 is available exists to carry out the functions of this
Section.
With the above data accumulated, the Administrator and the
States can and should be able to begin to identify where the goals of
this Act will not be met, what levels of control will be required to meet
them, and what the overall economic and environmental impact of the
elimination of pollutants will be. By the 94th Congress, the Committee
on Pubic Works can carefully review this program to identify those
additional steps which must be taken to assure the achievement of the
goal of this Act by 1985.
This Committee is under no illusions as to the ease of the task set
out. But, to those who express concern as to the magnitude of the cost
of what this legislation proposes, the Committee would call attention
to information supplied by the Administration which indicates that
a 95-99 percent reduction of industrial and municipal pollutants can be
achieved through contemporary, admittedly obsolete and expensive
technology such as that represented in the tertiary system installed at
Lake Tahoe, in the next decade for a capital cost of approximately
$35.3 billion.
According to these estimates, operating and maintenance costs for
that investment over a 20-25 year time frame would be $83.5 billion.
A national investment of $3.5 billion a year for the elimination of 95-
99 percent of pollutants must be considered in relation to the Commit-
tee's anticipation that at least $12 billion will be required to provide
secondary treatment to the Nation's sewered population in Phase I of
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146 LEGAL COMPILATION—SUPPLEMENT I
the program. And, no one is under any illusion that that $12 billion in-
vestment in municipal waste treatment plants will implement exist-
ing water quality standards in many areas of the Nation, much less
meet the goals of this Act.
The Committee recognizes that these figures may be conservative. It
also notes that the Administration has estimated that the cost of re-
moval of the final 1 percent of pollutants may exceed the cost of re-
moving the initial 99 percent of pollutants. The Administration's esti-
mate of the capital cost to achieve 100 percent pollution control for
point sources is $94.5 billion.
The Committee also recognizes that even with application of a no-
discharge standard where attainable at reasonable cost and, where
not attainable, the best available technology, no better than 99 percent
pollutant removal can be expected by 1981.
What the Congress must decide in 1976-1977, on the basis of the in-
formation provided by the inventory and evaluation required by this
Section, is whether or not the additional levels of control required to
completely eliminate pollutants are technically available, and if so,
whether the ecological and water quality benefits to be derived worth
the economic and social cost to be incurred. Having this information
shortly after mid-decade will provide the Congress with a unique op-
portunity to make a mid-course correction in moving toward a 1985
goal. This policy evaluation is essential in order to balance the long-
term program costs projected by this legislation with the Nation's
priorities as they will be established in 1976-1977 and beyond.
SECTION 306—NATIONAL STANDARDS or PERFORMANCE
New sources of pollution in at least twenty-eight specified in-
dustries must be constructed to meet a standard that reflects the
greatest degree of effluent reduction that can be achieved by use
of the latest available control technology. If it is practicable, this
could be a standard that permits no discharge of pollution. EPA
must promulgate the best available technology standard for each
industry. That technology must be followed by each plant which
by modification becomes subject to the new source standards, un-
less the economic and social costs of achieving such a standard
far exceeds the social and economic benefits. If that occurs, a
lesser standard will be promulgated.
The Administrator may distinguish among classes and sizes of
new sources. He may also delegate this authority to individual
States if they develop procedures for setting and enforcing such
standards.
The Committee believes that this section, which is designed to assure
that new stationary sources of water pollution are designed, built,
equipped, and operated to minimize the discharge of pollutants, is
among the most significant in the legislation.
Under the provisions of the bill, the standards of performance for
new source of water pollution would require the achievement of the
greatest degree of pollution reduction that can be achieved through the
application of the best available effluent control technology and ulti-
mately, to eliminate space. Such a maximum use of available means
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WATER—STATUTES AND LEGISLATIVE HISTORY 147
to prevent and control water pollution is essential to the prevention of
new pollution problems and the eventual attainment of the goal of no-
discharge.
It should be noted that the Committee considered use of the phrase
"latest available control technology," but rejected it in favor of "best
available control technology."
The Committee agreed that, although used in the Clean Air Act, the
term "latest" may not (as intended) be interpreted as the best. The
Committee has substituted the word "best" in this bill to make clear
its intention.
As used in this section, the term "available control technology"
is intended to direct the Administrator to examine the degree of
effluent reduction that has been or can be achieved through the ap-
plication of technology which is available or normally can be made
available. This does not mean that the technology must be in actual,
routine use somewhere. Rather, it means that the technology must be
available at a cost and at a time which the Administrator determines to
be reasonable.
The implicit consideration of economic factors in determining
whether technology is "available" should not affect the usefulness of
this section. The overriding purpose of this section would be to prevent
new water pollution problems, and toward that end, maximum feasible
control of new sources, at the time of their construction, is considered
by the Committee to be the most effective and, in the long run, the least
expensive approach to pollution control.
This section requires that the Administrator, within 90 days fol-
lowing enactment of this Act, publish a list of categories of indus-
trial groups for which he will establish standards of performance.
The Committee has specified 28 industrial groups for which, at a
minimum, the Administrator must establish national standards of
performance:
pulp and paper mills;
paperboard, builders, paper and board mills;
meat product and rendering processing;
dairy product processing;
grain mills;
canned and preserved fruits and vegetables processing;
canned and preserved seafood processing;
sugar processing;
textile mills;
cement manufacturing;
feedlots;
electroplating;
organic chemicals manufacturing;
inorganic chemicals manufacturing;
plastic and synthetic materials manufacturing;
soap and detergent manufacturing;
fertilizer manufacturing ;
petroleum refining ;
iron and steel manufacturing;
nonferrous metals manufacturing;
cotton ginning ;
phosphate manufacturing;
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148 LEGAL COMPILATION—SUPPLEMENT I
steam electric powerplants;
ferroalloy manufacturing;
leather tanning and finishing;
glass and asbestos manufacturing;
rubber processing; and
timber products processing.
The Administrator has authority to add to this list when he finds
that any other category of new sources falls within the requirement
of this section.
The Committee, agreed not to include in its list of new sources nu-
clear fuels processing plants. The Environmental Protection Agency.
indicated that the Agency does not have the technical capability to
establish controls for such plants at this time. The Committee, how-
ever, expects that EPA will develop the capability that is required
to implement the purpose of this Act, as well as to carry out the func-
tions delegated to the Agency in Reorganization Plan No. 3. The
Bureau of Radiological Health, which was transferred to the Environ-
mental Protection Agency, should have the capacity to determine
those levels of control whic'h can be achieved for nuclear fuels process-
ing plants. If they do not, such a capability should be developed and
this particular source should be added to the list of new sources as
soon as possible.
Within one year of the publication of the list, or any eventual addi-
tions to the list, the Administrator shall publish proposed regulations
establishing a standard of performance for each type of industry on
the Administrator's list. The section gives interested persons and in-
dustries 60 days in which to comment on those proposed regulations.
By the end of that 60-day period, the Administrator shall promul-
gate a standard providing for the application of the "best available
control technology". If the owner or operator of a modified source can
demonstrate to the Administrator that the economic and social costs of
implementing such a standard bears "no reasonable relationship" to
the social and economic benefits that would be obtained from such
standard, the Administrator may adjust the standard as it applies to
the source. Implicit in any consideration of social and economic bene-
fits is the national objective of dean water.
The term "standard of performance" has not previously appeared
in the Federal Water Pollution Control Act, although a similar con-
cept and language was written into the Clean Air Act last year.
The Administrator shall evaluate the level of effluent reduction that
can be attained through the application of best available technology.
Once he has evaluated what can be accomplished, the Administrator
must set the standard at a particular volume of effluent or a particu-
lar percentage of effluent reduction. The Committee believes that the
greatest public benefit can be achieved when each company in an in-
dustrial group is free to make its own, innovative engineering deci-
sions on how to meet that standard. The Administrator should not
attempt to dictate the use of specific processes or other methods of
control to implement the standard of performance.
A significant aspect of the entire bill is the emphasis
placed on development of a cooperative State-Federal ap-
proach toward environmental enhancement. The Committee has added
a provision to enable the States to participate in a program for apply-
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WATER—STATUTES AND LEGISLATIVE HISTORY 149
ing new source standards. The Committee language would allow any
State to submit to the Administrator a procedure under which the
States would apply and enforce standards of performance for new
sources for water pollution within that State. If the Administrator
considers the procedure to be adequate, he must delegate this responsi-
bility to the State. However the Administrator retains the responsi-
bility for establishing and revising standards of performance. As the
States are much closer to the individual problems within their juris-
dictions, the Committee believes that such a delegation of Federal au-
thority to the States can lead to the most efficient application of this
program.
For the purposes of this section the Committee lias defined a ''new
source" of pollution to be any facility on which construction or mod-
ification begins following the publication of the standard of perform-
ance by the Administrator. To further clarify the application of this
section, the Committee has defined "modification" to mean any physi-
cal change in an existing plant, or its method of operation, that in-
creases the amount of water pollutants discharged by the source. In
the case of multi-unit plants, the ''modification" applies to the particu-
lar unit being modified.
SECTIOX 307—Toxic AND PKETREATMENT STAXDARDS
EPA must publish, within 90 days of enactment, a list of pollu-
tants that are determined to be toxic. Six months later EPA must
publish proposed effluent limitations, which could be a prohibi-
tion of a discharge, for these pollutants. A hearing will be held
within thirty days.
No later than six months after publication of the proposed
limitation, EPA must promulgate that published standard un-
less, based upon a preponderance of the evidence at the hearings,
he finds that a variation from the standard is justified. The new
standard would be promulgated. Any standard must provide an
ample margin of safety.
Subsection (b) requires EPA to set national pretreatment
standards for the discharge of pollutants into publicly owned
treatment works. These standards must cover pollutants that are
not susceptible to treatment at the treatment works or which
would interfer with operation of a municipal treatment plant.
The proposed new section 307 would authorize the Administrator to
establish ellluent standards, which may include a prohibition, applica-
ble to the discharge of toxic water pollutants which the Administrator
determines are toxic based on the definition in section 502.
On the basis of information presented to the Committee, it is clear
that the definition wTill encompass a limited number of pollutants.
Arsenic, cadmium, mercury, and beryllium as well as certain chlori-
nated hydrocarbons, have been identified as pollutants which could be
subject to effluent standards or prohibitions that would be established
under this section. It would be the Administrator's responsibility to
determine whether there are additional pollutants which also should be
covered under section 307.
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150 LEGAL COMPILATION—SUPPLEMENT I
Under an administrative procedure to regulate and control the dis-
charge of such toxic pollutants, the Administrator would, from time to
time designate as toxic those pollutants as indicated by available ma-
terial evidence. Following designation the Administrator would be
required to publish a proposed effluent standard or prohibition of the
discharge of such pollutants. The Committee has provided the Admin-
istrator with authority to differentiate among categories of sources in
establishing requirements under this section.
This authority, for example, would give the Administrator the
latitude to treat a plant that processes cadmium ore differently than
he might treat a plant in which cadmium appears as a trace impurity.
A similar ability to differentiate exists in the Clean Air Act.
After public hearings and within six months of the publication of
any proposed regulation, the Administrator would be required to
promulgate such regulation, unless he found on the basis of a pre-
ponderance of the evidence, that a different level of control could be
permitted without presenting toxic discharges. Both an initial effluent
standard and any modification would be required to provide an ample
margin of safety.
The bill would provide that any standard or prohibition should be-
come effective no later than one year after such promulgation. Because
of the hazards posed by toxic substances, the committee considers the
need for compliance with promulgated standards for toxic substances
to be especially urgent. Language in section 307 (a) (5) is thus intended
to convey that one year be an absolute maximum time allowed for
compliance with standards promulgated under this section, and that
compliance be required as early as possible within this limit.
Comprehensive water pollution abatement requires that controls
should also be extended to any industrial discharge into municipal
waste treatment works in order to prevent pollutants from entering
such works if they would impair the effectiveness of the waste treat-
ment works or, if they would pass untreated or inadequately treated
wastes through the treatment works into the navigable waters. Sub-
section (b) of section 307 gives the Administrator authority to
establish pretreatment standards to control the addition of industrial
pollutants to municipal waste treatment systems. Tt is clear that the
Administrator may be unable to establish such standards for all pol-
lutants which require such control. Therefore, the provisions of this
section do not relieve municipalities and States from establishing
pretreatment standards to control rate, flows, and concentration of in-
dustrial discharges into waste treatment works.
The Administrator would be expected to prohibit the discharge of
any industrial pollutants which adversely affect functions of conven-
tional treatment works. Conversely there may be industrial wastes
which stimulate the performance of conventional treatment works or
which are consistent with alternative control strategies. The latter
should be identified.
The Committee also expects the Administrator to approve State
programs which have adequate pretreatment requirements in order
to reduce Federal involvement in this area to an absolute minimum.
Guidelines under section 304 should facilitate this transfer of func-
tion.
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WATER—STATUTES AND LEGISLATIVE HISTORY 151
SECTION 308—INSPECTION, MONITORING, AND ENTRY
The owner or operator of any effluent source must install and
maintain pollution monitoring equipment. This includes the moni-
toring of the biological effects of any discharge. EPA has the right
of entry to inspect records, monitoring equipment, and the effluent.
EPA my delegate this authority to any State setting up its own
program. The public shall have access to any records or reports
obtained in this manner, except on a showing that the record or
reports would reveal a trade secret.
There are several other objectives which must be considered in estab-
lishing criteria for requiring pretreatment. Many of these also may be
satisfied by advanced wastewater treatment methods.
Although industrial wastes vary considerably between industries,
it is possible to define generally the requirements for pretreatment of
industrial wastes prior to discharge into a municipal wastewater sys-
tem. These are:
First, to enable a conventional sewage treatment to fulfill its
ordinary functions by assuring the waste is treatable and does not
overload the oxidation facilities, and there are no toxic substances
which will degrade the capacity of the treatment system to func-
tion properly;
Second, to minimize eutrophication by removing compounds
containing nutrients such as phosphorus and nitrogen from major
industrial sources;
Third, to produce a combined municipal and industrial waste
which is similar to that of domestic sewage with regard to inor-
ganic compounds such as chlorides and sulf ates;
Fourth, to reduce damage to sewer lines due to excessively high
or low pH's, substantially high temperatures, or other conditions
of industrial wastes that may damage sewers;
Fifth, to minimize the introduction of compounds into waste-
waters which are not removed by conventional treatment methods
but offer a potential for incorporation in food chains such as chlo-
rinated organics and heavy metals; and
Sixth, to produce a sewage treatment plant effluent that can be
used for a selected reuse purpose.
When establishing requirements for pretreatment. each of these ob-
jectives must be evaluated. Particular emphasis should be given to
those contaminants which limit recycling or reuse of treated waste-
waters.
A necessary adjunct to the establishment of effective water pollution
requirements and the enforcement of such requirements is aiithority to
require information, data, and reports, as well as to establish monitor-
ing requirements. Section 308 establishes authority identical to the
authority for such purposes contained in the Clean Air Act Amend-
ments of 1970; except that recognizing such authority is essential to
control programs, the Committee removed the element of discretion
from the Administration. Through this authority the Administrator
can make investigations of buildings, structures, monitoring equip-
ment, or other facilities subject to control requirements established
under the Act and authority to enter after presentation of proper
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152 LEGAL COMPILATION—SUPPLEMENT I
credentials. In addition, the Administrator is authorized to require
installation of appropriate monitoring equipment. It should be noted
that the Administrator upon a showing is required to hold informa-
tion, other than effluent data, proprietary.
As under the Clean Air Act, the Committee expects the authority to
enter will be used judiciously and upon any challenge to entry the
Committee expects the Administrator to obtain the necessary warrant.
It should also be noted that the, authority to enter, as under the
Clean Air Act, is reserved to the Administrator and his authorized
representatives which such representatives must be full time employees
of the Environmental Protection Agency. The authority to enter is not
extended to contractors with the EPA in pursuit of research and
development.
SECTION 309—FEDERAL ENFORCEMENT
When EPA discovers a violation of any effluent limitation, it
must provide notice to the polluter and the State. Unless the State
initiates enforcement action within 30 days, EPA shall issue an
order requiring compliance or bring a civil suit against the
polluter.
If widespread violations indicate that the State is failing to
enforce the limitations in general, EPA shall notify the State.
If this State failure continues beyond another thirty days, EPA
shall give public notice and assume enforcement over all effluent
limitation requirements in that State.
When EPA finds anyone violating Sections 301, 302, 306, 307,
308, or 402, the agency must either issue an order that requires
immediate compliance or bring a civil suit. If this involves Sec-
tion 308, the order will not take effect until the polluter has an
opportunity to confer with EPA. The Administrator shall initiate
a civil suit for appropriate relief, such as an injunction, against
anyone who refuses to comply with any such abatement order.
Anyone willfully or negligently violating a Section 402 permit
or any of several other specific sections of the bill shall be liable
to a fine of up to $25,000 per day of violation and one year in jail.
For a willful or negligent violation of Sections 301, 302, 306, 307,
or 402, the fine shall be not less than $2,500 per day. The penalty
for a second conviction shall be up to $50,000 per day and two
years in jail.
Anyone who is found to have knowingly made a false statement
on any application or report, or who has tampered with a monitor-
ing device, shall be liable to a fine of $10,000 and six months in jail.
In any regulatory program involving Federal and State participa-
tion is the allocation or division of enforcement responsibilities is
difficult. The Committee, of course, lias in the record documentation
of the poor enforcement performance under the 1965 Act. The
Committee concluded that not only \vere there weaknesses in the pro-
cedures established on enforcement, but more importantly, there were
Aveaknesses in the overall design of enforceable requirements.
In writing the enforcement procedures involving the Federal Gov-
ernment the Committee drew extensively upon the provisions of the
Clean Air Act of 1970, and upon the existing enforcement provisions
of the Kefuse Act of 1899.
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WATER—STATUTES AND LEGISLATIVE HISTORY 153
As in the Clean Air Act, the bill reported, from the Committee es-
tablishes and makes precise new requirements imposed 011 persons and
subject to enforcement. One purpose of these new requirements is to
avoid the necessity of lengthy fact finding, investigations, and negotia-
tions at the time of enforcement. Enforcement of violations of require-
ments under this Act should be based on relatively narrow fact situa-
tions requiring a minimum of discretionary decision making or delay.
The bill, therefore, deletes the cumber-some conference and hearing
procedures in the existing law. Such administrative procedures were
appropriate when the, control program was based on ambient water
quality and would serve no purpose except delay in an enforcement
program based on effluent controls.
Against the background of the Clean Air Act and the Refuse Act
the Committee concluded that the enforcement presence of the Fed-
eral government shall be concurrent with the enforcement powers of
the States. The Committee does not intend this jurisdiction of the
Federal government to supplant state enforcement. Rather the Com-
mittee intends that the enforcement power of the Federal government
be available in cases where States and other appropriate enforcement
agencies are not acting expeditiously and vigorously to enforce con-
trol requirements.
Under the Refuse Act the Federal government is not constrained
in any way from acting against violators. The Committee continues
that authority in this Act.
The Committee again, however, notes that the authority of the Fed-
eral Government should be used judiciously by the Administrator in
those cases deserve Federal action because of their national character,
scope, or seriousness. The Committee intends the great volume of en-
forcement actions be brought by the State. It is clear that the Adminis-
trator is not to establish an enforcement bureaucracy but rather to
reserve his authority for the cases of paramount interest.
It should be noted that if the Federal, State, and local agencies
fail to exercise their enforcement responsibility, the public is pro-
vided the right to seek vigorous enforcement action under the citizen
suit provisions of section 505.
It should be noted that the Administrator is partially limited in
acting under Section 301 (a). The Administrator is precluded from
acting where the allegation is for failure to acquire a necessary per-
mit under Section 402, if the owner or operator of a discharge has
filed an application for such required permit. The Administrator re-
tains, without qualification, the authority presently available under
the Refuse Act to prosecute for unlawful discharges.
The distinction between enforcement for violation of an unlawful
discharge and enforcement for operating without a required permit
under Section 402 is intended to cause the Administrator to act ex-
peditiously to issue permits under Section 402.
The Committee further recognizes that sanctions under existing law
have not been sufficient to encourage compliance with the provisions
of Federal "\Vater Pollution Control Act. Therefore, the Committee
proposes to increase significantly the penalties for knowing violations
would be subject to penalty of $25,000 per day or imprisonment for
one year or both. In addition, any violation of an effluent limitation,
effluent standard, pretreatment standard, or standard of performance
is subject to a minimum penalty of $2,500.
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154 LEGAL COMPILATION—SUPPLEMENT I
If conviction is for a second knowing violation, the penalty could
be increased to $50,000 per day of the violation or by imprisonment for
2 years or both. In addition, penalties would be added for knowing
violation of the procedural requirements of the Act such as record-
keeping, report filing, information availability or falsifying, tamper-
ing with, or rendering inaccurate monitoring devices.
The Committee believes that if the timetables established throughout
the Act are to be met, the threat of sanction must be real, and enforce-
ment provisions must be swift and direct. Abatement orders, penalty
provisions, and rapid access to the Federal District Court should ac-
complish the objective of coniDliance.
SECTION 310—INTERNATIONAL POLLUTION ABATEMENT
If the Secretary of State requests abatement of pollution from
a U.S. source that endangers the health or welfare of persons in a
foreign country, EPA must notify the State where the discharge
originates. If the pollution is in sufficient quantity to warrant
such action and if the foreign nation has given the U.S. similar
rights over pollution originating in that nation, EPA shall call
a hearing. The hearing board shall consider the allegation and
make a recommendation. If the recommendation calls for abate-
ment, EPA shall initiate abatement action if EPA finds that the
evidence warrants it.
Section 10 of existing law provides for a method of abatement of
water pollution involving a hearing or conference procedure. While
this approach to enforcement against domestic polluters is replaced
in this Act by sections 309 and 402, it is retained for water pollution
of an international character. In addition to conforming changes, the
only substantial modification of section 10 of existing law as it deals
with international water pollution situations, is the requirement that
effluent data involved in any enforcement action under this section be
made public and not considered confidential as a trade secret.
SECTION 311—OIL AND HAZARDOUS SUBSTANCE LIABILITY
The portions of this section that deal with clean-up liability
for oil discharges are taken from existing law. Modifications add
liability for the clean-up of any hazardous material discharged
onto the navigable waters.
EPA shall designate materials and quantities that are hazard-
ous. To be judged hazardous, a pollutant must present an immi-
nent and substantial danger to the public health or welfare, in-
cluding fish, shellfish, and beaches.
The discharger of any hazardous substance that cannot be
cleaned up is liable to a penalty of $5,000 for each barrel of ma-
terial that is discharged. The discharger has the same defenses
existing in present law to anyone discharging oil: an Act of God,
act of war, negligence on the part of the U.S. Government, or an
act of a third party.
Section 311 enacted as a part of the Water Quality Improvement
Act which provides for the control of oil pollution has been modified
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WATER—STATUTES AND LEGISLATIVE HISTORY 155
in three respects. First, the Federal Maritime Commission (which has
been charged by the President with responsibility to regulate and en-
force the financial responsibility requirements of this Section) is pro-
vided enforcement authority required to carry out effectively its
functions with respect to vessels which violate the financial responsi-
bility provisions.
Second, the Committee bill provides for the assessment of the pen-
alty for discharging oil or hazardous substances in the case where the
owner or operator acted ''willfully or negligently". As contained in
existing law the penalty applied to a "knowing"' discharge and was
only being sought when "actual knowledge" could be shown.
Third, the Committee determined, on the basis of reports author-
ized by and subsequently submitted pursuant to the Water Quality
Improvement Act, that hazardous substances heretofore treated in a
separate section should be subject to the same control mechanism
applied to oil. Under present law major spills of hazardous sub-
stances which could cause significant environmental and economic
damage are not subject to liability for the cost of clean-up of those
spills. The Committee was concerned that many hazardous substances
cannot be cleaned-up by standard methods because they immediately
dissolve in the receiving waters.
These substances, the discharge of which may cause environmental
disaster, could not be subject to any meaningful clean-up liability. A
clean-up liability provision therefore would provide no incentive to
carriers and handlers of these substances to exercise the great caution
that such materials warrant.
The Committee notes that in the March, 1971 report entitled "Con-
trol of Hazardous Polluting Substances", the Administration made
the following recommendation: "We have examined the issue of
whether there should be financial limitations of liability for the costs
of removal of hazardous polluting substances, and we have concluded
that there should be no liability limitations imposed."
The Committee believes that the discharge of such substances should
be subject to penalty even though clean up is not practicable. In this
way, each carrier or handler evaluates the risk of discharge and
determines whether or not the potentially penalty is worth the risk.
Because the penalty to be imposed under this section should relate to
the environmental hazard involved, the Committee determined that the
Administrator should set the amount of penalty on the basis of the
actual amounts of material released into the waste environment. The
bill would establish a minimum fine of $50,000 and a limit per barrel
fine of $5,000. The Administrator is expected by regulation to set the
fine per barrel of discharge based on toxicity, degradability, and dis-
posability of such substances.
Because no outside limit is proposed the potential penalty would be
the amount of substance involved times the amount of penalty set by
the Administrator.
Concern has been expressed as to the potential magnitude of a fine to
which a carrier or handler1 of a hazardous substance miffht be exposed.
The Committee examined this concern and concluded that the penalty
would be limited in two ways: First, the Administrator would estab-
lish per unit limits on the basis of the hazard posed by each of the sub-
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156 LEGAL COMPILATION—SUPPLEMENT I
stances designated. Second, the penalty would be strictly limited to
those substances actually released into the water.
The Committee recognizes that a bulk carriage of a substance which
has an extremely high per unit penalty will be exposed to an unaccept-
able level of liability. Faced with this fact, bulk carriage of extremely
toxic materials in most cases will pose an unacceptable risk. Thus by
determining not to haul, in bulk, such hazardous materials the carrier
will avoid unacceptable economic risk and the public will not be con-
fronted with unacceptable environmental risk (over which only the
carrier has any control).
SECTION 312—MARINE SANITATION DEVICES
This section closely follows a similar provision in existing law.
New language frees from State regulation any boat owner who
installs a federally certified treatment device prior to the effective
date of regulations that require use of such devices.
This Section, enacted as part of the Water Quality Improvement
Act of 1970, has only been changed in two instances to clarify Con-
gressional intent.
Subsection (f) of Section 312 is revised to provide that any vessel
which installs a marine sanitation device in compliance with any
standards or regulations required by this Section prior to the effective
date of such standard shall be protected from any State or local
enforcement action or other requirement.
Subsection (f) is also modified to clarify the provision which allows
a State to apply for a complete prohibition on discharges from vessels
where protection and enhancement of the quality of specified waters
requires such prohibition.
Under the 1970 Act the State was required to show that the specific
discharge caused ;i specific violation of water quality standards. In
other parts of this report the difficulty of demonstrating a direct rela-
tionship between a specific discharge and water quality is discussed.
In light of this difficulty the Committee has attempted to clarify the
intent of this provision.
SECTION 313—FEDERAL FACILITIES POLLUTION CONTROL
This section, similar to one in existing law, requires that Federal
facilities meet the same effluent limitations as private sources of
polluton, unless the Federal facility is specifically exempted by
the President. The President cannot exempt any source from
requirements of Sections 306 and 307.
This section would require every Federal agency with control over
any activity or real property, to provide national leadership in the
control of water pollution in such operations.
Evidence received in hearings disclosed many incidents of flagrant
violations of air and water pollution requirements by Federal facilities
and activities. Lack of Federal leadership has been detrimental to the
water pollution control effort. The Federal Government cannot expect
private industry to abate pollution if the Federal Government con-
tinues to pollute. This section requires that Federal facilities meet all
control requirements as if they were private citizens.
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WATER—STATUTES AND LEGISLATIVE HISTORY 157
The Committee recognizes, however, that it may be in the paramount
interest of the United States that a plant or facility not achieve full
water pollution control within the time required. Therefore, the bill
would provide case by case exceptions, on the basis of determination
by the President, for a period of no more than one year.
New one-year extensions could be granted on the basis of a sub-
sequent determination by the President. The President would be re-
quired to report each January to the Congress on any such exception
during the preceding year, together with a detailed explanation of the
need to grant such exceptions.
No exception could be granted due to lack of appropriations, unless
the Congress specifically rejected a request for funds that appeared as
a line item in the Budget request.
SECTION 314—CLEAN LAKES
All States shall identify and classify their lakes according to
eutrophic condition, and set up procedures to control lake pollu-
tion and restore these lakes. Seventy percent grants are authorized
to assist States in carrying out this program, with $300,000,000
authorized over three fiscal years.
In many areas of the nation, fresh water lakes and reservoirs are
seriously degraded by municipal-industrial pollutants, by agricultural
runoff, and by accelerated sedimentation. These pollutants greatly
accelerate the rate of eutrophication.
Lake Erie is an example of this process. There is not a State, how-
ever, in which the water quality of lakes is not seriously degraded.
Excessive eutrophication, accumulated sludge and other pollutants,
reduced flow and severe water level fluctuations, and heavy sedimenta-
tion all are contributing to critical conditions which must be remedied
promptly if the lakes are to recover and continue their natural function
in our national life.
The Committee bill adopts the essence of legislation proposed by
Senator Walter F. Mondale which requires each State to classify fresh
water lakes according to water quality condition and to develop plans
and methods for restoring those lakes. The plans are to be submitted to
the Administrator for his approval.
Upon approval by the Administrator, such State will become eligi-
ble for Federal grants to pay 70 percent of the cost of carrying out the
approved programs. A total of $300 million is authorized for these
grants as follows: $50 million for fiscal year 1972, $100 million for
fiscal year 1973, and $150 million for fiscal year 1974.
To complement the procedure set out, the bill authorizes the Ad-
ministrator to develop methods, processes, and procedures to restore
fresh water lakes. Only in this manner can the program be fully used.
While the Committee recognizes that many such techniques will re-
quire development, many methods now available have considerable
potential for cleaning and restoring water quality to lakes. In view of
the urgent need in many areas of the Nation, these methods should be
supported.
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158 LEGAL COMPILATION—SUPPLEMENT I
TITLE IV—PERMITS AND LICENSES
SECTION- 401—CERTIFICATION
This section, largely taken from present law, requires that any
applicant for a Federal license or permit provide the licensing
agency with a certification from the State in which the discharge
occurs that any such discharge will comply with Sections 301 and
302.
This section is substantially section 21 (b) of existing law (enacted
as a part of the Water Quality Improvement Act of 1970) amended
to assure consistency with the bill's changed emphasis from water
quality standards to effluent limitations based on the elimination of any
discharge of pollutants.
Subsection (a) (7) has contained a grandfather provision allowing
facilities on which construction under a Federal license or permit be-
gan before April 3, 1970, three years before any certification would be
required. This provision is amended in this bill to except permits under
section 402 of this Act or section 13 of the Rivers and Harbors Act of
1899. Certification will be required for all such permits from the date
of enactment on, regardless of the time construction of the facility
began.
Existing law is further modified by section 401 of this bill to include
a definition of certification. The certification provided by a State in
connection with any Federal license or permit must set forth effluent
limitations and monitoring requirements necessary to comply with the
provisions of this Act or under State law and such a certification be-
comes an enforceable condition on the Federal license or permit.
In addition, the provision makes clear that any water quality re-
quirements established under State law, more stringent than those re-
quirements established under this Act, also shall through certification
become conditions on any Federal license or permit. The purpose of the
certification mechanism provided in this law is to assure that Federal
licensing or permitting agencies cannot override State water quality
requirements.
It should also be noted that the Committee continues the authority
of the State or interstate agency to act to deny a permit and thereby
prevent a Federal license or permit from issuing to a discharge source
within such State or jurisdiction of the interstate agency. Should
such an affirmative denial occur no license or permit could be issued
by such Federal agencies as the Atomic Energy Commission, Federal
Power Commission, or the Corps of Engineers unless the State action
was overturned in the appropriate courts of jurisdiction.
SECTION- 402—NATIONAL POBLTJTANT DISCHARGE ELIMINATION SYSTEM
The Administrator may issue a permit for the discharge of
pollutants into the navigable waters, or beyond, if the discharge
meets applicable requirements of Sections 209, 301, 302, 306,307, or
308. Any permit issued under Section 13 of the 1899 Refuse Act
prior to June 30, 1972, shall be considered a permit pursuant to
this section.
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WATER—STATUTES AND LEGISLATIVE HISTORY 159
Any State may create its own permit system, following Section
304 guidelines. The Administrator shall approve the State permit
program and delegate authority to the State, unless the State
program fails to have adequate authority to carry out several
specified functions.
Any State receiving such a delegation of authority shall send a
copy of all permit applications to the Administrator. The State
may not issue a permit until the Administrator is satisfied that
the conditions imposed meet the requirements of the Act. The
Administrator may waive this review authority over specific
classes or sizes of plants or after a 30-day period.
Section 402 provides statutory basis for the continuation of a Fed-
eral program to control, on a source by source basis the discharge of
pollutants into the navigable waters.
In addition to redirecting the control program from ambient stand-
ards to direct effluent controls, the second most difficult policy and pro-
gram issue which the Committee considered was the integration of
the program under section 13 of the Refuse Act of 1899 initiated
by the Administration pursuant to Executive Order in December of
1970.
When implemented and applied to pollution, the Refuse Act permit
program established a direct relationship between the Federal Gov-
ernment and each industrial source of discharge into the navigable
waters of the United States. This relationship existed completely in-
dependent of the Federal-State program established under the 1965
Act and created a duality of control requirements that placed all par-
ties under a cloud of uncertainty. In addition, to the problem of inter-
governmental relations, the Refuse Act authority has significant gaps
(particularly its exemption of municipal waste treatment works) that
render it seriously inadequate as a means of implementation of a water
pollution control program.
Because of the complexity of the Refuse Act permit program and
its relationship to Section 402 a short discussion of the factors involved
in development of the permit program is relevant.
In 1899, the Congress enacted a statute which precisely prohibited
the discharge of any "refuse" (subsequently defined by the Courts to
include everything except sewage from municipalities) without a per-
mit from the Secretary of the Army (the Corps of Engineers). This
prohibition can be enforced with both civil and criminal sanctions.
This authority was ignored until June 1,1971.
The Corps of Engineers, pursuant to an Executive Order of the
President, issued December 23, 1970 (E.O. 11574), proposed regula-
tions (December 31, 1970, 35 F.R. 20005 and January 21, 1971, F.R.
983) to exercise authority contained in the 1899 statute relating to dis-
charges into the navigable waters. The regulations were finally pro-
mulgated on April 7, 1971. Supplementary regulations have been
promulgated by E.P.A. and several supporting administrative inter-
agency agreements have been published.
Recent studies by the Administration reveal that there are at least
40,000 industrial sources of discharge into the navigable waters.
In part, the "discovery" of the Refuse Act is the result of the Sub-
committee on Air and Water Pollution's initiative in the Water
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160 LEGAL COMPILATION—SUPPLEMENT I
Quality Improvement Act. Section 21 (b) of that Act triggers the use
of Federal permit authority (including the Kef use Act) as a means of
implementing water requirements.
The regulations of the Corps and the Administrator required all
dischargers into the navigable waters to apply for Refuse Act permits
by July 1,1971.
The period of implementation of the Refuse Act permit program co-
incides with the evolution of the bill reported by the Committee. Con-
sequently, continuous consultation was undertaken with representa-
tives of State governments, and the Administration in an effort to
weave the permit program into this legislation. The Refuse Act as now
restated in the Committee bill establishes that the discharge of pollu-
tants into the navigable waters of the United States is prohibited. The
Federal Government as the custodian of the navigable waters has the
responsibility to control affirmatively any discharges of pollutants
into the navigable waters and, under the Committee bill, seek to achieve
elimination of the discharge of pollutants.
It is expected that the States will play a major role in the adminis-
tration of this program.
The Committee believes that, after a transition period during which
the State program and capability will be upgraded, the program
should be administered by those States with programs which meet the
requirements of this Act.
Therefore, the bill provides that after a State submits a program
which meets the criteria established by the Administrator pursuant to
regulations, the Administrator shall suspend his activity in such State
under the Federal permit program. The Administrator would period-
ically assess the performance of the State program and have the
authority to withdraw this delegation upon finding that the State is
not carrying out its program properly.
Although the Administrator is given the authority to review any
permit before it is issued by a State, the Committee expects that, after
delegation, the Administrator will withhold his review of proposed
permits which are not of major significance. If the Administrator
finds that a State program is inadequate to mitigate his involvement
he should not approve a State program.
The Administrator has authority to establish, by regulation, those
classes and categories of point sources for which he will not exercise
permit-by-permit review in any State that has received delegated
authority. Certain classes and categories involving individual dis-
chargers (such as small municipalities) may be more appropriately
subject to State review. If the Administrator approves a State pro-
gram he should waive his right to review such permits in the interest
of efficient program management.
Furthermore, the Committee believes that there are some States
which presently possess broad expertise" in evaluating certain classes
or categories of discharge sources. The Administrator is therefore
given flexibility to indicate at the time of approval of a State program
that any permit issued by a State for discharge sources in a designated
category would not be subject to his residual review authority. For
the remaining classes of discharge source, the Administrator retains
authority to exercise final review and approval over the issuance of a
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WATER—STATUTES AND LEGISLATIVE HISTORY 161
permit by a State. The bill, in an rliort to insure expeditions imple-
mentation of issuance of permi*- and remove any uncertainty, requires
that the Administrator inuot notify the State within thirty days of
the receipt of any application for permit if he desires to waive author-
ity to review and -Approve. If the Administrator does not so notify
within the time required, he retains his authority and the State cannot
issue the pe-mit without agreement from the Administrator, Should
the Advjim,strator choose not to waive involvement in the develop-
ment of the conditions of any permit, the Committee urges that he
become involved in the process at the earliest possible stage. Such
earty involvement should minimize the duplication of time and effort
by all parties, should facilitate determining the conditions of any
permit, and should assure that a permit application will receive
prompt consideration.
The bill would not allow the Administrator to waive his review and
approval responsibility under the permit section for those classes
and categories of point sources which will discharge into the territorial
seas, the waters of the contiguous zone and the waters of the ocean.
In such circumstances the Administrator (in addition to require-
ments under Title III) is required to apply guidelines established by
regulation for determining the effect on the territorial sea, the waters
of the contiguous zone and the- waters of the ocean under section 403.
Because the Administrator has the expertise with which to make
judgments on the effect of the discharge of pollutants into the ter-
ritorial seas or the contiguous zone and the oceans, consequently every
permit issued by a State with an approved program under section 402
would be subject to review and approval by the Administrator in
order that all of the factors relating to such discharge and its effect are
thoroughly analyzed and the proper control exercised.
An essential element in any control program involving the nation's
waters is public participation. The public must have a genuine oppor-
tunity to speak on the issue of protection of its waters. The Committee
has therefore established requirements to provide opportunity for
public hearing by the Federal Government, or if State participation is
approved by the Administrator, the State, and other provisions to
make available to the public all relevant information surrounding a
discharge source and the control requirements placed on it. This in-
cludes the deposit of any permit, and the conditions thereto, in a place
of ready public access. The scrutiny of the public and the exercise of
authority under this section is extremely important in insuring expe-
ditious implementation of the authority and a high level of perform-
ance by all levels of government and discharge sources.
The integration of the Refuse Act permit program into the Federal
Water Pollution Control Act has been difficult but there can be no
doubt that the most effective control mechanism for point sources of
discharge is one which will provide for the establishment of condi-
tions of effluent control for each source of discharge. A permit or
equivalent program, properly implemented and fully utilizing the re-
sources of the State and Federal Government should provide for the
most expeditious water pollution elimination program.
The information on the technology of control developed under sec-
tion 304 should facilitate the administration of this system.
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162 LEGAL COMPILATION—SUPPLEMENT I
One of the most difficult problems of enforcement is the sanction
or remedy to be applied in the event there is a violation of an effluent
requirement by a municipal treatment works. Through the vehicle of
a permit a mechanism is provided to reach through the municipality
or other public body to regulate the actual course of such violations;
the respective contributors to the municipal waste load. The Commit-
tee has, therefore, authorized the State or, if appropriate, the Admin-
istrator to proceed directly against the users of the treatment works,
and to restrict new additions to such treatment works until any viola-
tion has been abated.
Several bills pending before the Committee provided authority to
establish Federally approved standards for groundwaters which
permeate rock, soil, and other subsurface formations. Because the
jurisdiction regarding groundwaters is so complex and varied from
State to State, the Committee did not adopt this recommendation.
The Committee recognizes the essential link between ground and
surface waters and the artificial nature of any distinction. Thus the
Committee bill requires in section 402 that each State include in its
program for approval under section 402 affirmative controls over the
injection or placement in wells or any pollutants that may affect
ground water. This is designed to protect ground waters and eliminate
the use of deep well disposal as an iincontrolled alternative to toxic
and pollution control.
The importance of groundwater in the hydrological cycle cannot be
underestimated. Although only about 21.5 percent of our domestic, in-
dustrial agricultural supply comes directly from wells, it must be re-
membered that rivers, streams and lakes themselves are largely sup-
plied with water from the ground—not surface runoff.
Present water pollution control programs concentrate on the control
of pollutants placed in surface waters, on the assumption that to control
these inputs will assure desirable qualities in the ground waters. Unfor-
tunately, this is not always the case. Groundwaters, due to their much
larger volume than surface waters, their slow natural rates of circula-
tion, and their almost complete absence of living organisms can accept
more pollutants with less obvious, direct degradation than can well-
defined lakes and rivers with their tell-tale biologic indicators of
chemical change. However, due to the lack of organisms and slow
circulation, polluted groundwaters generally have no "self-cleaning"
mechanisms, and could remain polluted for centuries.
Groundwater pollution is not as serious a national problem at present
MS is surface water pollution, but groundwater availability and quality
is deteriorating. In some locales, serious hazard exists. Deep-well dis-
posal raises a possibility of irrevocable damage to public aquifers and
slow dissemination of pollutants into potential water supplies. Deep
water wells are not now widely used for public water supplies except
in water-short areas like west Texas and Nebraska where shallower
groundwaters have been virtually exhausted since the end of the
second world war. However, deep disposal wells are becoming more
prevalent throughout the nation, while deep wells are predicted to
supply increasing percentages of public water in the arid west and
southwest in the next two decades. r_ 73]
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WATER—STATUTES AND LEGISLATIVE HISTORY 163
SECTION 403—OCEAN DISCHARGE CRITERIA
This section sets standards under which a permit can be issued
for a discharge of pollutants into the territorial sea, the contigu-
ous zone, or the ocean.
The Administrator shall establish guidelines on the effect of
disposal of pollutants on human health and welfare, on marine
life, and on recreational and economic values, as well as guide-
lines for determining the persistence of the pollutant and other
possible locations for its disposal.
The Committee on Public Works has exclusive jurisdiction over
legislation affecting the discharge of pollutants into the navigable
waters of the United States. This includes territorial seas of the
United States, which, under present law, is a band of the oceans ex-
tending in most States three miles from the shore. In addition, the
Committee has exclusive jurisdiction over the discharge of pollutants
from any facility located within States through a pipeline into any
part of the oceans including the contiguous zone or beyond. The Com-
mittee has established a regulatory framework to control the dis-
charge of pollutants into the navigable waters and from pipelines
beyond the territorial seas in Sections 301, 402 and 403. The frame-
work is in concert with the ultimate objective of the Act to eliminate
the discharge of pollutants.
The Committee shares equally jurisdiction with the Senate Com-
merce Committee over the disposal of pollutants from vessels beyond
the territorial seas. Both the Committee on Public Works and the
Commerce Committee have had before them several bills which would
create a regulatory scheme to control the discharge of pollutants from
vessels beyond three miles. Both Committees have held hearings on
the subject of ocean degradation. There can be no doubt that there is
presently serious deficiency that exists in present law that must be re-
paired if this Nation is to lead in the protecting the quality of the
ocean.
In order to expedite the legislative process, the Committee on Public
Works and the Committee on Commerce have jointly agreed on a
bill to provide the regulatory framework to control the dumping of
pollutants from vessels into the Avaters beyond the territorial seas. It
has been further agreed that this provision will be contained in a bill to
be reported from the Commerce Committee with the concurrence of
the Committee on Public Works as to those portions on which there
is a joint agreement. The basic outline of the bill would provide the
Administrator of the Environmental Protection Agency with author-
ity to control all dumping of pollutants from vessels beyond three
miles to twelve miles to control discharge of pollutants from vessels
beyond 12 miles wherever such pollutants are generated in the terri-
torial jurisdiction of the United States.
Coupled with the provisions in the bill reported by the Committee
on Public Works, the bill to be reported from the Commerce Commit-
tee should enable the United States to have complete and integrated
regulation of the disposal of pollutants into all waters and over all
sources of pollutants subject to its jurisdiction. It is expected that the
leadership so exercised by the United States will be the model for
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164 LEGAL COMPILATION—SUPPLEMENT I
other nations and should in a short time produce the framework for
international agreement over the protection of the oceans.
_ The disposal of pollutants into ocean waters is regulated under this
bill when it involves a discharge from any outfall beyond the shore-
line of the United States or any discharge into the territorial sea from
a vessel. Under a bill to be jointly reported by the Committee on Public
Works and the Committee on Commerce, the discharge of pollutants
from vessels into the waters of the contiguous zone and the oceans
would be regulated.
Under section 403, no discharge into ocean waters would be allowed,
except in compliance with the criteria established under this section.
The Federal role in establishing conditions on any permit for dis-
charge into ocean waters could not be waived. In subparagraph (c) (1)
(A) of the section, the contamination of marine organisms or waters
which prevents the harvesting of sea food that is safe to eat, the use
of oceans for recreation, or its use as drinking water after desalination,
among other things, would be recognized as detrimental to human
health or welfare.
The ocean's waters are in constant circulation, so that any discharge
beyond any arbitrary limit, such as 3 or 12 miles, may reach the beaches
of the United States. Thus, in considering discharge effects, the Ad-
ministrator must consider the effect that the discharge may have else-
where on the integrity of marine systems.
In subparagraph (c)(l)(G) the Committee wishes to emphasize
the need to preserve the ocean in as natural a state as possible at least
until we understand its tolerances and characteristics, so that dis-
charges permitted today will not irreversibly modify the oceans for
future uses. Any discharge which would so alter the ocean's character
that scientific study of that feature of the ocean is forever destroyed
would seem to the Committee inconsistent with the objective of main-
taining the integrity of the Nation's coastal waters, which constantly
circulate with waters in the open ocean. For example, discharge of a
harmful pollutant at 15 miles may migrate into the coastal zone region,
killing large numbers of one or more species, altering the character of
the marine ecosystem characteristic of the coastal zone, and prevent-
ing study of the zone's natural features before alteration by man's dis-
charges.
TITLE V—GENERAL PROVISIONS
SECTION 501—ADMINISTRATION
This section is similar to section 22 of existing law. A new sub-
section allows EPA to dispatch employees to assist State pollution
agencies in their work.
SECTION 502—GENERAL DEFINITIONS
The section defines pollutant, pollution, effluent limitation, dis-
charge, toxic pollutant, point source, biological monitoring, and
several other words and phrases as they are used in this Act.
The bill would amend the definition of a State water pollution con-
trol agency from that contained in existing law to reflect the changes
[p. 75]
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WATER—STATUTES AND LEGISLATIVE HISTORY 165
that have occurred since the definition was first included in the law.
Originally the pollution control agencies were coincident with public
health officers of the States, and therefore such officers generally ad-
ministered water pollution control activities. The bill amends the defi-
nition of State water pollution control agency to mean the State
agency designated by the Governor with responsibility for enforcing
State water pollution control laws.
The definition of interstate agency is refined to make it clear that
only those interstate agencies approved by Congress or those with
sufficient power to implement the requirements of the Act as deter-
mined by the Administrator are functionally qualified to participate
in the provisions of the Act.
The term State, for the purpose of the Act, includes the fifty States
of the United States as well as several other jurisdictions specified. In
addition the term State includes those agencies or instrumentalities of
the United States with jurisdiction over river basins which are created
by the United States with jurisdiction over river basins if the agency
was created by or pursuant to an Act of Congress and has been desig-
nated either by the Governors or by the statutes of the participating
States as having jurisdiction to implement the Act in the river basin.
The definition of municipalities is clarified to make clear that public
bodies eligible for grants under this Act includes associations formed
under State law for the purpose of dealing with water problems,
whether or not they are given broad powers of general government, as
well as operating agencies established and approved under section 209.
The term person, for purpose of the Act, means all entities which are
capable of suing or being sued.
For the first time the Committee would add to the law a definition
of the term pollutant. In order to trigger the control requirements
over addition of materials to the navigable water, waters of the con-
tiguous zone and the ocean, it is necessary to define such materials so
that litigable issues are avoided over the question of whether the addi-
tion of a particular material is subject to control requirements. The
Committee has extracted from the Kef use Act the basic formula and
added municipal discharges to it, so that before any material can be
added to the navigable waters authorization must first be granted by
the Administrator, or State in the case of an approved State program,
under Section 402. The Committee has made two specific exceptions
from the term pollutant; sewage from vessels, as that term is denned
and controlled through the provisions of Section 312, and water, gas,
or other materials associated with the secondary recovery of oil.
The Committee has added a definition of pollution to further refine
the concept of water quality measured by the natural chemical, physi-
cal and biological integrity. Maintenance of such integrity requires
that any changes in the environment resulting in a physical, chemical
or biological change in a pristine water body be of a temporary nature,
such that by natural processes, within a few hours, days or weeks, the
aquatic ecosystem will return to a state functionally identical to the
original.
In those water bodies which are not pristine, it should be the na-
tional policy to take those steps which will result in change towards
that pristine state in which the physical, chemical and biological
integrity of the water body can be said to exist. Striving towards,
[p. 76]
525-J10 O - 73 - 12
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166 LEGAL COMPILATION—SUPPLEMENT I
and maintaining the pristine state is an objective which minimizes the
burden to man in maintaining a healthy environment, and which will
provide for a stable biosphere that is essential to the well-being of
human society.
The control strategy of the Act extends to navigable waters. The
definition of this term means the navigable waters of the United
States, portions thereof, tributaries thereof, and includes the terri-
torial seas and the Great Lakes. Through a narrow interpretation of
the definition of interstate waters the implementation 1965 Act was
severely limited. Water moves in hydrologic cycles and it is essential
that discharge of pollutants be controlled at the source. Therefore,
reference to the control requirements must be made to the navigable
waters, portions thereof, and their tributaries.
The Committee has added definitions of the terms territorial seas,,
contiguous zone, and ocean to describe clearly the jurisdictional limits
of the Act, and provide a basis for its relationship to other laws of the
United States as well as to international law.
A definition of effluent limitations has been included so that control
requirements are not met by narrative statements of obligation, but
rather are specific requirements of specificity as to the quantities,
rates, and concentration of physical, chemical, biological and other
constituents discharged from point sources. It is also made clear that
the term effluent limitation includes schedules and time tables of
compliance.
The Committee has added a definition of schedules and time-tables
of compliance so that it is clear that enforcement of effluent limitations
is not withheld until the final date required for achievement.
The Committee has also added a definition of the term discharge to
indicate the scope of the control requirements under the Act.
Any pollutant added to the navigable waters from any point source
or the addition of any pollutant to the contiguous zone or the water
of the ocean by outfall or other pipeline is included within the con-
trol requirements of Title III or the addition of any pollutant to a
publicly owned treatment works by any industrial user.
A definition of toxic substance is provided to assist the Adminis-
trator in implementing his authority under section 307 to regulate
toxic discharges. The definition provides a benchmark for evaluating
those pollutants which in certain concentrations would have a par-
ticularly adverse impact on humans as well as other forms of life.
It is necessary to evaluate the effect of all forms of such pollutants
and consider their persistence, degradation, or interaction with other
materials, once in the receiving water.
Disease-causing agents are intended to refer to all pathogens, in-
cluding viruses, which may produce disease symptoms in any orga-
nisms. In addition, any pollutant or agent which lowers an organism's
resistance to serious disease should be considered a toxic pollutant.
The following substances were mentioned in relation to potential
toxic effects by the President's Council on Environmental Quality
(April, 1971) in a report entitled Toric Rukxtances: lead, cadmium,
mercury, vanacium, arsenic, molybdenum, antimony, nickel, barium,
beryllium, copper, selenium, zinc, nitrilotriacetio acid (NTA). ortho-
nitrochlorobenzene (OXCB). polychlorinated biphenyls (PCB's),
dichlordiphenyl-trichloroethane (DDT). The Committee expects the
[p. 77]
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WATER—STATUTES AND LEGISLATIVE HISTORY 167
Administrator to give first consideration to these pollutants in the
exercise of his authority under Section 307.
Such substances as heavy metals should be controlled on an absolute
rather than on a regional waste management basis. The following
criteria would affect such classification:
—the presence of pathogenic organisms, including viruses;
—the seriousness and irreversibility of any effects on man or the
environment that might occur;
—the likelihood or possibility that such effects might occur;
—the possibility for incorporation into biological organisms and.
man in concentrations which latest scientific knowledge suggests
will produce effects on man and organisms;
—the nondegradable or persistent nature of the substance;
—the availability of data on similar substances or compounds; and
—margins of safety to reflect the lack of data on potential toxicity
where there is no experience under conditions of human or environ-
mental exposure.
In order to further clarify the scope of the regulatory procedures
in the Act the Committee has added a definition of point source to dis-
tinguish between control requirements where there are specific con-
fined conveyances, such as pipes, and control requirements which are
imposed to control runoff. The contro lof pollutants from runoff is ap-
plied pursuant to section 209 and the authority resides in the State
or other local agency.
SECTION 503—WATER POLLUTION CONTROL ADVISORY BOARD
This section is section 9 of existing law, conformed with the
remainder of the bill, and modified to allow $100 per diem for
Board members while attending conferences or meetings of the
Board.
The Committee expects that the recommendations of the Board shall
be included in the annual report required under Section 515 of the
Act.
SECTION 504—EMERGENCY POWERS
If a pollution source presents an imminent or substantial en-
dangerment to the health of persons, EPA shall issue an immedi-
ate abatement order. If a pollution source could present a substan-
tial economic injury to persons because of their inability to market
shellfish, EPA shall initiate a civil suit for relief.
The bill would grant new authority to the Administrator to take
remedial action in case of a water pollution episode.
This emergency authority provides for immediate, effective action
whenever the discharge of water pollutants reach levels of concentra-
tion that present an imminent or substantial endangerment to the
health or welfare of persons. In addition the bill provides emergency
abatement authority to protect shellfish and shellfish products.
The bill recognizes the importance of contingency planning, and
would require such contingency planning as a part of the water pollu-
tion control program of each State.
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168 LEGAL COMPILATION—SUPPLEMENT I
When the prediction can reasonably be made that such elevated
levels could be reached even for a short period of time—that is that
they are imminent—an emergency action plan should be implemented
to reduce or terminate the discharge of pollutants and prevent the
occurrence of substantial endangerment.
The Committee expects the Administrator to continue to refine
emergency procedures under section 504 of this bill and to assist the
States and municipalities in the development and execution of such
procedures.
SECTION 505—CITIZEN SUITS
Anyone may initiate a civil suit against any person who is al-
leged to be in violation of an effluent limitation or a Federal or
State abatement order, or against the Administrator for failure
to perform a non-discretionary act.
No action on a suit may begin for 60 days following notifica-
tion. If EPA or the State begins a civil or criminal action on its own
against the alleged violator, no court action may take place on the
citizen's suit. Litigation costs may be awarded to any party when
the court determines such an award is appropriate.
Without regard to any time limitation, a Governor may start
action against the Administrator for an alleged failure to abate a
pollution violation in another State that adversely effects the
Governor's State.
The Committee has established a provision in the bill that would
provide citizen participation in the enforcement of control require-
ments and regulations established under this Act modeled on the pro-
vision enacted in the Clean Air Amendments of 1970. As in that Act
the provision in this bill is carefully restricted to actions where viola-
tions of standards and regulations or a failure on the part of officials
to act are alleged. One modification would allow the Courts to impose
civil penalties provided as a result of actions brought by citizens. It
should be noted that any penalties imposed would be deposited as mis-
cellaneous receipts and not be recovered by the complainant. In addi-
tion the bill specifically provides that a Governor may utilize the au-
thority granted, without reference to time limitations, to seek abate-
ment of pollution which originates in another State and affects his
State. Also, since a municipality may not be able to comply with a
Court order because of limitations resulting from State law the bill
would provide that the State shall be joined as a party.
Section 505 would not substitute a "common law" or court-developed
definition of water quality. An alleged violation of an effluent control
limitation or standard, would not require reanalysis of technological
in other considerations at the, enforcement stage. These matters will
have been settled in the administrative procedure leading to the estab-
lishment of such effluent control provision. Therefore, an objective
evidentiary standard will have to be met by any citizen who brings
an action under this section.
In order to further encourage and provide for agency enforcement,
the Committee has added a requirement that prior to filing a petition
with the court, a citizen or group of citizens would first have to serve
notice of intent to file such action on the Federal and State water
[p. 79]
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WATER—STATUTES AND LEGISLATIVE HISTORY 169
pollution control agency and the alleged polluter. Each citizen or
group would have to include facts in such notice in accordance with
regulations prescribed by the Administrator. The Administrator
should prescribe such regulations as soon as possible after enactment,
and such regulations should reflect simplicity, clarity, and stand-
ardized form. The regulations should not require notice that places im-
possible or unnecessary burdens on citizens but rather should be con-
fined to requiring information necessary to give a clear indication
of the citizens' intent. These regulations might require information
regarding the identity and location of alleged polluter, a brief de-
scription of the activity alleged to be in violation, and the provision of
law alleged to be violated.
The Committee has provided a period of time after notice before a
citizen may file an action against an alleged violator. The time between
notice and filing of the action should give the administrative en-
forcement office an opportunity to act on the alleged violation.
It should be emphasized that if the agency had not initiated abate-
ment proceedings following notice or if the citizen believed efforts
initiated by the agency to be inadequate, the citizen might choose to
file the action. In such case, the courts would be expected to consider
the petition against the background of the agency action and could
determine that such action would be adequate to justify suspension,
dismissal, or consolidation of the citizen petition. On the other hand,
if the court viewed the agency action as inadequate, it would have
jurisdiction to consider the citizen action notwithstanding any pend-
ing agency action.
The Committee emphasizes that if the alleged violation is a failure
to comply with an administrative enforcement order, a violation of
a standard of performance, or a prohibition, or effluent standard or
limitation established under the act, there would be no waiting period
following notice. It is the Committee's intent that enforcement of
these control provisions be, immediate, that citizens should be uncon-
strained to bring these actions, and that the courts should not hesitate
to consider them.
Section 505 would provide that a citizen enforcement action might
be brought against an individual or a government agency. As recog-
nized under section 313 of the bill, Federal facilities generate consider-
able water pollution. Since some Federal agencies such as the De-
partment of Defense have failed in abating pollution and in request-
ing appropriations to develop control measures, it is important to pro-
vide that citizens can seek, through the courts, to expedite the govern-
ment performance specifically directed under section 313.
The standards for which enforcement would be sought either under
administrative enforcement or through citizen enforcement procedures
are the same. Therefore the participation of citizens in the courts seek-
ing enforcement of water pollution control requirements should not
result in inconsistent policy. Whether abatement is sought by an
agency or by a citizen, there should be a considerable record available
to the courts in any enforcement proceeding resulting from the Fed-
eral and State administrative standard-setting procedures. Conse-
quently, the factual basis for enforcement, of requirements would be
available at the time enforcement is sought, and the issue before the
courts would be a factual one of whether there had been compliance.
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170 LEGAL COMPILATION—SUPPLEMENT I
The information and other disclosure obligations required through-
out the bill are important to the operation of this provision. The Ad-
ministrator would have a special duty to make meaningful information
on discharging sources available to the public on a timely basis.
The section is drawn to avoid problems raised by class action pro-
visions of the Federal rules of civil procedure, specifically by Kule 23.
Section 505 does not authorize a "class action." Instead, it would au-
thorize a private action by any citizen or citizens acting on their own
behalf. Questions with respect to traditional "class" actions often in-
volve: (1) identifying a group of people whose interests have been
damaged; (2) identifying the amount of total damage to determine
jurisdiction qualification; and (3) allocating any damages recovered.
None of these points is appropriate in citizen suits seeking abatement
of violations of water pollution control requirements. It should be
noted, however, that the section would specifically preserve any rights
or remedies under any other law. Thus, if damages could be shown,
other remedies would remain available. Compliance with requirements
under this Act would not be a defense to a common law action for
pollution damages.
Concern was expressed that some lawyers would use section 505 to
bring frivolous and harassing actions. The Committee has added a key
element in providing that the, courts may award costs of litigation,
including reasonable attorney and expert witness fees, whenever the
court determines that such action is in the public interest. The court
could thus award costs of litigation to defendants where the litigation
was obviously frivolous or harassing. This should have the effect of
discouraging abuse of this provision, while at the same time encourag-
ing the quality of the actions that will be brought.
The Courts should recognize that in bringing legitimate actions
under this section citizens would be performing a public service and in
such instances, the courts should award costs of litigation to such party.
This should extend to plaintiffs in actions which result in successful
abatement but do not reach a verdict. For instance, if as a result of a
citizen proceeding and before a verdict is issued, a defendant abated a
violation, the court may award litigation expenses borne by the plain-
tiffs in prosecuting such actions.
Enforcement of pollution regulations is not a technical matter be-
yond the competence of the courts. The citizen suit provision is con-
sistent with principles underlying the Federal Water Pollution Con-
trol Act, that is the development of clear and identifiable requirements.
Such requirements should provide manageable and precise benchmarks
for enforcement.
As pointed out, the Committee bill would provide in the citizen suit
provision that actions will lie against the Administrator for failure
exercise his duties under the Act, including his enforcement duties.
Authority granted to citizens to bring enforcement actions under this
section is limited to effluent standards or limitations established ad-
ministratively under the Act. Such standards or limitation are defined
in subsection (f) of Section 505 to include the enforcement of an un-
lawful discharge under section 301 (a), effective after July 1,1973. By
limiting the effective date of citizens suits for violation of this provi-
sion the Committee believes sufficient time is available for the State
and Federal governments to develop fully, and execute the author-
ity contained in section 402.
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WATER—STATUTES AND LEGISLATIVE HISTORY 171
In addition to violations of section 301 (a) citizens are granted
authority to bring enforcement actions for violations of schedules
or timetables of compliance .and effluent limitations under section 301,
standards of performance under section 306, prohibitions or effluent
standards and pretreatment standards under section 307, provisions of
certification under section 401, and any condition of any permit issued
under section 402.
SECTION 506—APPEARANCE
EPA shall appoint its own attorney to represent EPA in any
court action, if the Attorney General does not, within a reasonable
time, notify the Administrator that the Justice Department will
represent EPA.
The Committee recognizes that this legislation would put greatly
increased burdens on the administering agency. Constant legal as-
sistance would be required in legislative interpretation, administra-
tive procedure, review of implementation plans, information acquisi-
tion, and enforcement. The Administrator would need a staff of sup-
porting attorneys. Good administration dictates that such assistance
be immediately available to the Administrator.
Therefore, the bill would authorize the Administrator to appoint
attorneys to appear and to represent him in actions instituted under
the Federal Water Polluton Control Act, if, after initial request
to the Attorney General for litigation services, the Attorney General
notified the Administrator he would be unable to provide quickly such
services. The Committee believes this is necessary for three reasons.
First, the timetables imposed by the bill would require that full time
legal assistance be available to assure compliance. Second, new enforce-
ment procedures would require the development of competence and ex-
pertise if the Act were to be administered and enforced fairly and ex-
peditiously. Finally, failure to comply with enforcement within the
time required would necessitate immediate action in Federal District
Courts to seek compliance with such order.
The purpose of the bill is to establish clear and enforceable require-
ments upon those activities which affect water quality. Monitoring
requirements and information acquisition should reveal violations
of control requirements with a minimum of factual complexity. Once
the Administrator has, under the procedures established under the
bill, determined a violation, the government should immediately pro-
ceed to abatement. Once this determination is made there should be no
further discretionary decision making by government officials.
SECTION 507—EMPLOYEE PROTECTION
This section offers protection to employees who believe they
have been fired or discriminated against as a result of the fact
that they have testified or brought suit under this Act. The em-
ployee may apply to the Secretary of Labor for review of his
case. The Secretary of Labor can issue an order for the employee
to be rehired, or otherwise compensated, if the employee's case
is justified. The section does not apply to an employee who acts
outside the direction of his employer.
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172 LEGAL COMPILATION—SUPPLEMENT I
Section 507 of the bill is patterned after the National Labor Man-
agement Act and a similar provision in Public Law 91-173 relating to
the health and safety of the Nation's coal miners. Under this section
employees and union officials could help assure that employers do not
contribute to the degradation of our environment.
Any worker who is called upon to testify or who gives informa-
tion with respect to an alleged violation of a pollution control law by
his employer or who files or institutes any proceeding to enforce a pol-
lution control law against an employer may be subject to discrimina-
tion.
The section would prohibit any firing or discrimination and would
provide an administrative procedure under which the employee or his
representative could seek redress for any violation of this prohibition.
The Secretary of Labor would investigate such charges and is-
sue findings and a decision which would be subject to judicial re-
view. If the Secretary should find a violation, he would issue orders
to abate it, including, where appropriate, the rehiring of the employee
to his former position with back pay. Also, the person committing the
violation could be assessed the costs incurred by the employee to obtain
redress.
This provision would safeguard the rights of employees, but it
should not encourage employees to frivolously allege violations since
the employee would have to pay the costs of the proceedings unless the
violation is proved.
In order to avoid abuse of the protection afforded under this Section
the Committee has added a provision which would deny its applicabil-
ity to any Employee who, without direction from his employer, delib-
erately violates or wilfully contributed to a violation of any standard,
requirement or regulation under the Act.
SECTIOX 508—FEDERAL PROCUREMENT
No Federal agency may enter into any contract involving any
facility that has been convicted under Section 309. The prohibition
continues until EPA certifies that the violation that led to the
conviction no longer exists.
The President may exempt any contract if the exemption is
in the paramount interest of the United States. The President
is required to submit an annual report on implementing this
section.
The Committee, as in the Clean Air Amendments of 1970, has
reported a bill that would provide that the Federal Government will
not patronize or subsidize polluters through its procurement practices
and policies.
Section 508 would make any person or corporation who fails to com-
ply with a court order issued under this Act or who is convicted of a
knowing violation of any requirement under the Act becomes ineligi-
ble for a Federal contract for any work to be done at the polluting fa-
cility. This ineligibility would continue until the Administrator certi-
fies that the facility is in compliance with the court order or the pro-
visions of the Act.
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WATER—STATUTES AND LEGISLATIVE HISTORY 173
This section would be limited, whenever feasible and reasonable, to
contracts affecting only the facility not in compliance, rather than an
entire corporate entity or operating division.
There might be cases where a plant could not participate in a Fed-
eral contract due to a violation but another plant owned by the same
company might bid and transfer other work to the first plant. This type
of action would circumvent the intent of this provision. In this case,
the company's second facility should also be barred from bidding until
the first plant returns to compliance.
There would also be instances where a second plant within a cor-
poration was seeking a contract unrelated to the violation at the first
plant. In such a case, the unrelated facility should be permitted to
bid and receive Federal contracts.
The bill also mandates that the President publish new Federal con-
tract guidelines that will enable the Federal Government to exercise
its procurement power to assure compliance with the Federal Water
Pollution Control Act and to suspend or revoke a contract once the con-
tracting party is found in non-compliance with the requirements of the
Act.
The effectiveness of this section would depend on fast, accurate dis-
semination of information. All Federal agencies would have to be
rapidly apprised of any abatement order or conviction which would
bar a facility from eligibility for Federal contracts. The Administrator
would also have to act expeditiously to certify that a facility had
achieved compliance, and notify all Federal agencies of that fact.
Delays in reporting such information, leading to inaccurate public
disclosures, would quickly render this section unworkable.
SECTION 509. ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW
EPA may issue subpoenas. Trade secrets are protected from
public reporting. Fees are granted to witnesses. Any suit against
a Federal standard must be filed in the U.S. Court of Appeals in
Washington, D.C. Suits for review of a Section 402 permit must be
filed in the Court of Appeals for the appropriate circuit. Such
suits must be filed within thirty days of promulgation or approval.
Section 509 of the bill includes provisions relating to subpoenas,
specifies the courts in which certain appeals may be prosecuted, and
the circumstances under which additional evidence may be ordered
by the courts to be taken by the Administrator.
As noted in the discussion of section 305, the Administrator is
required to furnish information to the Congress and the public on
control technology and the status of progress toward eliminating the
discharge of pollutants. It should be noted that the authority to sub-
poena records and other information as contained in section 509 is
available to support the acquisition by the Administrator of informa-
tion necessary to fully apprise Congress of the official status of the
control technology and success of the program so that Congress will
be in a position to assess accurately water pollution control needs and
make any appropriate adjustments in policy on legislation.
One of the uncertainties in the existing Federal Water Pollution
Control Act is the availability or opportunity for judicial review of
administratively developed and promulgated requirements, standards
[p. 84]
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174 LEGAL COMPILATION—SUPPLEMENT I
and regulations. Moreover, the effect on the general program of a
review itself is not clear.
Any person has standing in court to challenge administratively
developed standards, rules and regulations under the Act. The
courts are increasingly adapting this test to what administrative
actions are re viewable, in several recent cases [Environmental Defense
Fvlmd, Inc. v. Hardin (C.A. No. 23,813, May 28, 1970) ; Barlow v.
Collins (397 U.S. 159, 167 (1970)); Abbott Laboratories v. Gardiner
(387 U.S. 136, 140-41 (1967))] the Courts have held that even in
matters committed by statute to administrative discretion, preclusion
of judicial review "is not lightly to be inferred ... it requires a show-
ing of clear evidence of legislative intent." (E.D.F. v. Hardin, supra,
p. 7). The Courts have granted this review to those being regulated
and to those who seek "to protect the public interest in the proper
administration of a regulatory system enacted for their benefit."
(E.D.F. v. Hardin supra, p. 6). Since precluding review does not
appear to be warranted or desirable, the bill would specifically provide
for such review within controlled time periods. Of course, the person
regulated would not be precluded from seeking such review at the
time of enforcement insofar as the subject matter applies to him alone.
Because many of these administrative actions are national in scope
and require even and consistent national application, Deluding the
approval of State programs under Section 402. This section specifies
that any review of such actions shall be in the United States Court of
Appeals for the District of Columbia. For review of permits issued
under section 402 and other actions which run only to one region, the
section places jurisdiction in the U.S. Court of Appeals for the Circuit
in which the affected State or region, or portion thereof, is located.
In order to maintain the integrity of the time sequences provided
throughout the Act, the section would provide that any review sought
must be filed within 30 days of the date of the challenged promulga-
tion or other action.
The Committee recognizes that it would not be in the public interest
to measure for all time the adequacy of a promulgation of any stand-
ard requirement or regulation by the information available at the time
of such promulgation. In the area of protection of public health and
environmental quality, it is clear that new information will be devel-
oped and that such information may dictate a revision or modification
of any promulgated standard, requirement, or regulation established
under the act. The judicial review section, therefore, provides that any
person may challenge any requirement after the date of promulgation
whenever it is alleged that significant new information has become
available.
SECTION 510—STATE AUTHORITY
This section states that-the States retain the right to set more
restrictive standards than those imposed by this Act.
This section of the Act retains the right of any State or locality to
adopt or enforce effluent standards or limitations, or any other require-
ment, respecting control or abatement of a water pollution more
stringent than those required or established under this Act.
[p. 85]
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WATER-—STATUTES AND LEGISLATIVE HISTORY 175
SECTION 511—OTHER AFFECTED AUTHORITY
This section requires that the discharge of pollutants under
1888 and 1910 Acts will be regulated according to this Act.
Section 511 preserves the authority of other Federal laws which are
consistent with this Act. Specifically, the authority of the Secretary
of the Army to maintain navigation and that under the Rivers and
Harbors Act of 1899 is preserved. However, in the case of dredge and
fill activities permitted under section 10 of the Rivers and Harbors
Act of 1899, a certification under section 401 or permit under section
402 would be conclusive as to the effect on water quality. Also this sec-
tion provides that this Act will not affect or impair the provisions of
any treaty of the United States.
Another provision of this section states that the consultation and
coordination requirements of the Fish and Wildlife Coordination
Act shall apply only to the provisions of section 306, the publication
of information under section 304 and the establishment of guidelines
under section 403 but not to the imposition of any specific effluent
limitation on a particular source. In addition, this section provides
that discharges of pollutants into the navigable waters subject to the
Rivers and Harbors Act of 1910 (dealing with discharges into Lake
Michigan) and the Supervisory Harbors Act of 1888 (dealing with
discharges into the Baltimore and New York Harbors, and environs),
will be regulated under the Federal Water Pollution Control Act.
Therefore, the 1910 and 1888 Acts would apply only to discharges af-
fecting navigation or anchorage.
SECTION 512—SEPARABILITY
This section of the bill restates section 25 of existing law, with
minor language changes.
SECTION 513—LABOR STANDARDS
This section of the bill is section 8(g) of existing law, with
minor language changes.
SECTION 514—EFFLUENT STANDARDS AND WATER QUALITY
INFORMATION ADVISORY COMMITTEE
A nine-member scientific committee is established to hold public
hearings and transmit to the Administrator information on any
proposed Section 304(b) regulations or standards under Sections
306 and 307.
In order to ensure that effluent limitations and standards criteria
issued under this bill are based on the maximum amount of scientific
and technical information, an Advisory Committee of scientifically and
competent independent individuals would participate in the develop-
ment of information based on which the Administrator would make
regulatory decisions.
The Advisory Committee authorized by this section would consist
of nine members appointed by the Administrator of the Environmental
Protection Agency serving on a full time basis for a term of four
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176 LEGAL COMPILATION—SUPPLEMENT I
years. They would be selected from the scientific community on the
basis of their capabilities to provide scientific and technical informa-
tion required for the standards and criteria developed under this Act.
Strict conflict-of-interests provisions would apply to the members of
this committee.
Six months before the publication of any guidelines for effluent
limitations, proposed standards of performance for new sources, or
proposed toxic effluent standards, the Administrator would notify the
Advisory Committeee of his intent to propose regulations in these
areas. Within four months of such notice, the Advisory Committee
would provide the Administrator with all the scientific and technical
information related to the subject matter which it has developed. To
prepare such information, the Advisory Committee may hold a public
hearing.
The information which the Advisory Committee provides to the
Administrator would constitute a part of the administrative record of
the Administrator's rule-making in these areas. In developing this
information the Advisory Committee should utilize the services of
other Federal agencies including the United States Geological Survey
and the National Environmental Laboratories proposed in S. 1113 if
they are established.
This section provides that the Advisory Committee would cease to
exist within one year after the establishment of the National Environ-
mental Laboratories.
SECTION 515—RETORTS TO CONGRESS
Ninety days after the start of each session of Congress, EPA
shall submit a report on measures taken to implement this Act.
An annual report to Congress by EPA is also required on detailed
cost estimates for carrying out this Act.
Subsection (b) of section 515 is substantially section 26 from exist-
ing law. Subsection (a) adds a requirement for annual reports to the
Congress by the Administrator on the development of comprehensive
and area wide plans; progress of water pollution control research
efforts; development of effluent limitations and control techniques;
status of State programs; identification and status of enforcement
actions of that year; status of State, interstate, and local pollution con-
trol programs; and results of the Administrator's survey on the
efficiency of the operation and maintenance of treatment works con-
structed with grants under this Act.
SECTION 516—GENERAL AUTHORIZATIONS
This section authorizes funds for those sections of the bill lack-
ing specific authorization. The following sums are authorized: for
fiscal 1972, $150,000,000; for fiscal 1973, $250,000,000; for fiscal 1974,
$300,000,000; and for fiscal 1975, $350,000,000.
In developing the figures included in section 515 providing for au-
thorizations of appropriations for the next four years to implement
the bill as reported, the Committee considered experience -with the
Federal Water Pollution Control Act of 1965, the Clecan Waters
[p. 87]
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WATER—STATUTES AND LEGISLATIVE HISTORY 177
Restoration Act of 1966 and the Water Quality Improvement Act
of 1970 and further consulted with the Administration for estimates
of resources needed to implement the proposed amendmenta
Appropriations under existing law have been significantly below
the amount authorized. This lack of funding has lessened the effec-
tiveness of water pollution control.
This pattern cannot continue if the Congress and the Federal
government are to retain credibility with the American people. The
authorization figures contained in the bill represent the best estimate
of the Committee, in consultation with the Administration, of what
will be required to implement its provisions.
Only the 'availability of manpower, with adequate funding, can
provide effective implementation of this Act. The committee expects
that past trends will be reversed and that required manpower and
resources will be made available to implement the program.
SECTION 517—SHORT TITLE
This section of the bill restates section 27 of existing law.
MISCELLANEOUS PROVISIONS
SECTION 3—OVERSIGHT STUDY
The Comptroller General is directed to study research work on
waste water treatment for possible conflicts, as well as the efficacy
of such programs and report to the Congress by March 1, 1973.
The Committee is concerned that research and demonstration pro-
grams dealing with water pollution and waste treatment authorized
under this Act may conflict witih or duplicate similar programs
conducted or supported by other Federal agencies.
SECTION 4—DIKED DISPOSAL AREAS
This section strikes subsection (h) of section 123 of the Rivers
and Harbors Act of 1970.
The Rivers and Harbors Act of 1970 authorized the construction
of diked disposal areas for dredged spoil in the Great Lakes. To re-
duce as much as possible the need to dispose of dredged spoil in open
•waters of the Atlantic and Pacific Oceans, it is important that such
confined disposal areas be constructed on the East and West coasts,
as well as the Great Lakes.
This section removes the limitation to the Great Lakes contained
in the provision of the Rivers and Harbors Act of 1970 authorizing
such facilities.
The Committee notes that the maintenance and improvement of
non-Federal dock and berthing facilities adjacent to authorized Fed-
eral channels are essential to navigation. Therefore, private dredgers
should be treated on the same basis as the Corps of Engineers, in
utilizing diked disposal areas authorized under this section in the
regulation of dredging activities and the disposal of dredged spoil,
the Corps of Engineers and private dredgers should be subject to the
same requirements.
[p. 88]
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178 LEGAL COMPILATION—SUPPLEMENT I
SECTION 5—INTERNATIONAL AGREEMENTS
This section mandates the President to enter into international
pollution control agreements.
The Committee has repeatedly expressed its concern with global
environmental problems. Air and water are resources that do not re-
spect the boundaries of sovereign states. Rapid development and ex-
pansion of industrialization has caused the degradation of these
shared resources. There is need to formulate international policies that
will preserve, protect, and enhance the quality of the world environ-
ment.
The Clean Air amendments of 1970 provided for a comprehensive
and intensive attack on air pollution that included new source per-
formance standards and controls over the emission of toxic substances.
This bill would provide for new source performance standards and
controls over the discharge of toxic substances. Discharges of pollu-
tants into the territorial seas or through ocean outfalls would also be
subject to regulation.
It is the belief of the Committee that there is adequate justification
for internationally uniform controls and standards for the regulation
of discharges of pollutants into the environment. The Committee
places a high priority on the need to formulate and apply such uni-
form standards of performance for the control of effluents and emis-
sions from any new sources wherever constructed. These standards
should be framed to insure that new source are designed, built,
equipped, operated, and maintained so as to reduce effluents and emis-
sions to a minimum. Controlling toxic pollutants and the discharge of
any pollutants into the oceans also demands priority attention in in-
ternational agreements. Therefore the bill would provide the President
with guidance in conducting the participation of the United States
in these international efforts.
The 1972 United Nations Conference on the Human Environment
affords the United States with an opportunity to seek multilateral
cooperative action in areas of priority concern while concentrating on
the creation of comprehensive global arrangements for environmental
control.
The Committee believes that industrialized and developing nations
must join together in addressing themselves to the problems of the
world environment. It is the responsibility of the industrialized na-
tions to provide assistance to developing nations to assure that a goal
of progress without pollution will be achieved.
[p. 89]
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WATER—STATUTES AND LEGISLATIVE HISTORY 179
ROLLCALL VOTES DURING COMMITTEE
CONSIDERATION
During the Committee's consideration of this bill, 15 rollcall votes
were taken (including those which were taken during consideration
by the Subcommittee on Air and Water Pollution). Pursuant to sec-'
tion 133 of the Legislative Reorganization Act of 1970 and the Rules
of the Committee on Public Works, these votes are announced here.
First, the Subcommittee took two rollcall votes on the Federal share
of the costs of waste treatment works. On July 21, the Subcommittee
adopted, 8-1, a minimum 60 per cent Federal share, with an additional
15 per cent in States with matching grant programs. Senators Bayh,
Beall, Bentsen, Boggs, Montoya, Muskie, Randolph, and Tunney voted
in the affirmative, and Senator Buckley voted in the negative. On
August 4, the Subcommittee approved, 9-0, a minimum Federal share
of 60 per cent, with additional matching funds on a dollar for dollar
basis for States contributing a minimum of 5 per cent, up to a maxi-
mum Federal share of 75 per cent. Senators Beall, Bentsen, Boggs,
Copper, Eagleton, Montoya, Muskie, Randolph, and Tunney voted
in the affirmative. (Note: The final decision on this issue was by voice
vote during consideration by the full Committee.)
The Committee voted on an amendment offered by Senator Buckley
to provide a 100 percent initial Federal contribution to waste treat-
ment works construction, with repayment by the community of 70
per cent of the cost over the life of the works. The amendment failed
3-9, with Senators Baker, Buckley, and Tunney voting in the affirma-
tive, and Senators Bentsen, Boggs, Cooper, Eagleton, Gravel, Mon-
toya, Muskie, Randolph, and Stafford voting in the negative.
Four rollcall votes were taken on the level of authorizations for the
sewage treatment works construction grant program. On August 5,
the Subcommittee rejected, 6-7, an amendment offered by Senator
Cooper for authorizations of $2 billion in fiscal year 1972 and $2.5
billion in each of fiscal years 1973, 1974, and 1975. Senators Baker,
Beall, Boggs, Buckley, Cooper, and Dole voted in the affirmative, and
Senators Bayh, Bentsen, Eagleton, Montoya Muskie, Randolph, and
Tunney voted in the negative. The Subcommittee then approved, 13-0,
authorizations of $2 billion in fiscal year 1972, $3 billion in fiscal year
1973, $4 billion in fiscal year 1974, $5 billion in fiscal year 1975, and
$6 billion in fiscal year 1976. Senators Baker, Bayh, Beall, Bentsen,
Boggs, Buckley, Cooper, Dole, Eagleton, Montoya, Muskie, Randolph,
and Tunney voted in the affirmative.
On _September 28, Senator Cooper offered an amendment in the
Committee to set the section 207 authorizations at $2 billion in fiscal
year 1972, $3 billion in fiscal year 1973, and $4 billion in fiscal year
1974. The amendment failed, 8-8, with Senators Baker, Bentsen,
Boggs, Buckley, Cooper, Dole, Stafford, and Weicker voting in the
affirmative, and Senator Bayh, Eagleton, Gravel, Jordan, Montoya,
[p. 91]
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180 LEGAL COMPILATION—SUPPLEMENT I
Muskie, Randolph, and Tunney voting in the negative. The Commit-
tee then accepted, 10-3, Senator Boggs' proposal that $2 billion be
authorized for fiscal year 1972, $3 billion for fiscal year 1973, $4 billion
for fiscal year 1974, and $5 billion for fiscal year 1975. Senators Bayh,
Bentsen, Boggs, Dole, Eagleton, Gravel, Montoya, Muskie, Stafford,
and Tunney voted in the affirmative, and Senators Baker, Buckley, and
Cooper voted in the negative.
Senator Buckley offered an amendment in the Committee on Sep-
tember 28 to require industrial user charges to include only capital
costs of construction and not interest costs. The amendment was
adopted, 6-5, with Senator Boggs, Buckley, Cooper, Montoya, Ran-
dolph, and Stafford voting in the affirmative and Senators Bentsen,
Eagleton, Gravel, Muskie, and Tunney voting in the negative.
The issue of reimbursement for treatment works constructed be-
tween 1956 and 1966 was addressed in three rollcall votes. Senator
Eagleton offered an amendment in the Subcommittee on August 4 pro-
viding for such reimbursement, in addition to that provided in the
draft then under consideration for treatment works constructed be-
tween 1966 and 1971. The amendment failed, 4—7, with Senators Bayh,
Cooper, Eagleton, and Tunney voting in the affirmative, and Senators
Beall, Bentsen, Boggs, Buckley, Montoya, Muskie, and Randolph vot-
ing in the negative. The Subcommittee then approved the language of
the draft, 10-1, with Senators Baker. Beall, Bentsen, Boggs, Cooper,
Eagleton, Montoya, Muskie, Randolph, and Tunney voting in the af-
firmative, and Senator Buckley voting in the negative.
Senator Eagleton offered his reimbursement amendment again, in
the form included in the reported bill, in full Committee on October
13. It was adopted, 11-3, with Senators Baker, Bayh, Bentsen, Dole,
Eagleton, Gravel, Jordan, Montoya, Muskie, Randolph, and Tunney
voting in the affirmative, and Senators Boggs, Cooper, and Stafford
voting in the negative.
On October 19, Senator Boggs offered an amendment to strike from
the bill the authority to obligate authorized construction grant funds
in advance of appropriation. The amendment failed, 5-9, with Sen-
ators Baker. Boggs, Buckley, Cooper and Stafford voting affirma-
tively, and Senators Bayh, Bentsen, Eagleton, Gravel, Jordan, Mon-
tova, Muskie, Randolph, and Tunney voting negatively.
The Committee on October 13 approved, 12-3, an amendment of-
fered by Senator Baker to eliminate from the citizen suit provision the
mandatory award of litigation costs to a successful plaintiff. Senators
Baker, Bentsen, Bosfgs, Buckley, Cooper, Dole, Eagleton, Gravel,
Jordan, Montoya, and Randolph voted in the affirmative, and Senators
Bavh, Muskie, and Tunney voted in the negative.
Senator Randolph offered an amendment providing that the Sec-
retary of the Armv would regulate the disposal of dredged spoil, rather
than the Administrator. The amendment failed, 6—9, on October 19,
with Senators Bentsen, Cooper, Gravel, Jordan, Montoya, and Ran-
dolph voting affirmatively, and Senators Bayli, Boggs, Buckley, Dole,
Eacrleton, Muskie, Stafford, Tunney. and Weicker voting negatively.
The vote of the Committee to report the bill, taken on October 19,
was unanimous. Senators Baker, Bahy. Bentsen, Boggs, Buckley,
Cooper. Dole, Eagleton Gravel, Jordan, Montova, Muskie, Randolph,
Stafford. Tunney, and Weicker voted in the affirmative.
[p. 92]
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WATER—STATUTES AND LEGISLATIVE HISTORY 181
ESTIMATES OF COSTS
Section 252(a) (1) of the Legislative ^Reorganization Act of 1970
requires publication in this report of the Committee's estimate of the
costs of reported legislation, together with a comparison of that esti-
mate with any prepared by a Federal agency. The Committee has de-
veloped estimates of the costs to the Federal Government which would
be necessary to carry out this legislation, and has used those estimates
in determining the amounts which the bill would authorize for particu-
lar programs. These sums are indicated in the table below.
AUTHORIZATIONS
[In millions!
Fiscal year-
Sec. 104
Sec. 104(g)(l)
Sec. 104(g)(2)
Sec. 104(p)
Sec 105
Sec 106
Sec. 107
Sec. 108
Sec 112
Sec 113
Sec. 114 . .
Sec 206
Sec 207
Sec 304
Sec 311
Sec 314
Sec 516
Total
1972
$65
7.5
2.5
10
70
30
25
2, 000
50
150
2,410
1973
$70
10
75
30
3,000
100
100
250
3,635
1974
$75
10
80
35
4,000
100
150
300
4,750
1975
$80
10
85
40
5,000
100
350
5,665
No
fiscal year
$30
20
1
6
1,500
135
1,992
i Revolving fund.
Many of the specific authorization items in the bill were based on
estimates informally supplied by the Environmental Protection
Agency. However, where the Committee estimates a need for $14
billion of Federal funds for waste treatment works construction grants
through fiscal year 1975, the Environmental Protection Agency esti-
mates a need for $6 billion of Federal funds through fiscal year 1974.
[p- 93]
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182 LEGAL COMPILATION-—SUPPLEMENT I
COMMITTEE VIEWS
Water pollution control in the past has all too often been sporadic,
inconsistent, and improvised on an ad hoc basis. The major purpose
of this legislation is to establish a comprehensive long-range policy
for the elimination of water pollution, making it clear to industry and
municipalities alike the pollution control performance which will be
expected over the next decade. At the same time, the bill provides a
mechanism for generating sound, detailed information on the costs
which will be associated with the later stages of the control program,
and allow subsequent Congresses to evaluate the success of the policy
enunciated in this bill.
The Committee recommends the passage of this bill.
[p. 95]
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WATER—STATUTES AND LEGISLATIVE HISTORY 183
SUPPLEMENTAL VIEWS
SUPPLEMENTAL VIEWS OF SENATORS J. CALEB BOGGS, JOHN SHERMAN
COOPER. HOWARD H. BAKER, ROBERT DOLE. AND JAMES L. BUCKLEY
SUPPLEMENTAL VIEWS
The Federal Water Pollution Control Act Amendments of 1971
represent a major step forward in the effort to enhance our environ-
ment and control pollution. We believe it is one of the most significant
pieces of legislation that will be considered by the 92d Congress.
We endorse and support most of the concepts and programs within
the legislation, and urge their support in the Senate.
However, there is one aspect of the legislation that we believe is un-
necessary. This concerns the authority under which the Administrator
of the Environmental Protection Agency could enter into contracts
and other obligations under Section 207 for the financing of municipal
waste treatment facilities. Such contract obligation authority would
enable the Administrator in large measure to skirt the appropriations
process in assisting municipalities for the construction of waste treat-
ment facilities.
The sums authorized in Section 207 are necessary and appropriate,
but we do not believe that a contract authority provision is essential
to accelerate the water pollution control program. Rather, because of
potential technological breakthroughs, we believe it would be wise for
the Congress, through the appropriations process, to make an annual
examination of the justification for funds to be spent for waste treat-
ment grants.
We fully agree that the water pollution control program holds a
very high priority in any list of national goals. But we believe that
contract authority is a too restrictive fiscal tool, as it removes the
flexibility the Congress and the President should have to re-examine
spending levels annually.
The Congress, in appropriations bills for the current fiscal year as
well as the two preceding fiscal years, has clearly demonstrated its
support for the national water cleanup effort. As a result, we believe
that a contract authority provision in no way is necessary to assure
financial support for this important aspect of the legislation. Rather,
it may actually prove to be detrimental by removing the program one
step from the appropriations process.
J. CALEB BOGGS.
JOHN SHERMAN COOPER.
HOWARD H. BAKER, JR.
ROBERT DOLE.
JAMES L. BUCKLEY.
[p. 97]
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184 LEGAL COMPILATION—SUPPLEMENT I
SUPPLEMENTAL VIEWS OF SENATOR BOB DOLE
The bill reported by the committee adopts many of the proposals
offered by the President in his February 10, 1971, environmental mes-
sage and has been developed through a long process of consultation
and discussion between the committee and the administration.
A major new thrust of this bill is in the field of agricultural pollu-
tion, and as a Senator from an agricultural State and a member of
the Senate Agriculture Committee, this matter is of great interest to
me and my State.
The bill would amend the Federal Water Pollution Control Act to
place responsibility on the States for instituting and expanding the
control of water pollution related to agriculture. To assist the States
in this effort, the Environmental Protection Agency, working closely
with the Department of Agriculture, is directed by the bill to provide
technical expertise and in some cases financial assistance for combat-
ting this serious, yet extremely complex, form of pollution. A total
of $10 million is provided for agricultural research.
This bill recognizes that the U.S. Department of Agriculture and
the agricultural community in general have made great strides in im-
proving the quality of the environment; therefore, the bill does not
attempt to parallel or duplicate the contributions already made but
seeks to incorporate them into the framework of the act.
The committee report discusses the operative provisions of the bill
in considerable detail and describes some of the problems associated
with agricultural pollution. Since this is a new area for pollution
control legislation, I would like to discuss some of the more important
aspects of this area which lie within the scope of the bill's operations.
Agricultural pollution control is concerned primarily with the
following:
Sedimentation
Animal wastes
Fertilizers
Pesticides, Fungicides and Herbicides
Forest and crop residues
Agricultural processing wastes
Inorganic salts and minerals
The management and control of these factors are essential to the
maintenance of environmental quality while providing food and fiber
products in abundant quantity. At the outset, I believe it is important
to recognize that we are undertaking the first step in establishing an
overall water pollution control system. Before solutions can be effected,
we must, first, identify and define the problems which face us, and
second, we must then take into account the available means of con-
trol and the costs of each type of control.
I believe discussion of three specific problem areas—pesticides, ani-
mal wastes and fertilizers—will be helpful in understanding the com-
plexity of the agricultural problem and at the same time indicate the
need for coordinated control programs.
Most of the problems of agricultural pollution deal with non-point
sources. Very simply, a non-point source of pollution is one that does
not confine its polluting discharge to one fairly specific outlet, such
[p. 98]
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WATER—STATUTES AND LEGISLATIVE HISTORY 185
as a sewer pipe, a drainage ditch or a conduit; thus, a feedlot would
be considered to be a non-point source as would pesticides and
fertilizers.
PESTICIDES, HERBICIDES AND FUNGICIDES
Pesticides provide substantial benefits to mankind by protecting
plants and animals from pest losses. It has been estimated that without
pesticides, food production would be reduced by 40 to 50 percent, with
substantial accompanying reductions in quality also.
Approximately 50,000 species of fungi cause more than 1,500 plant
diseases; of about 30,000 species of weeds 1,800 cause serious economic
losses each year; and nearly 1,500 varieties of nematodes cause sig-
nificant damage. In addition, there are more than 10,000 species of
lucects capable of causing large losses in food, feed and fiber produc-
tion. A number of agricultural chemicals are used to control these
problems, and their ecological impact must be taken into account in
the formulation of agricultural production programs.
The chief hazard of pesticide use lies in the long-lasting properties
possessed by many of them. Some, such as DDT, retain their potency
for virtually unlimited periods after application, their residues are
introduced into the complicated food chains at work in nature, and,
ultimately, they become concentrated at levels which are hazardous
to both animal and human life.
Pesticide residues are of concern in three ways. First, residues be-
come attached to soil particles and may reach water through runoff
and erosion. Second, some crops pick up and accumulate excess resi-
dues when irrigated with water contaminated through runoff erosion.
Third pesticide residues in water are picked up at low levels by
certain marine organisms which result in relatively high concentra-
tions being reached in organisms at the top of the food chain.
The use of pesticides and other agricultural chemicals will un-
doubtedly retain a high level of importance in agriculture for the
foreseeable future. In the meantime efforts at both State and Federal
levels are paying off in securing the registration and adherence to
recommended usages. Increased research is underway to develop alter-
native means of pest, weed and fungal control. Experiments are un-
derway to develop integrated programs in which cultural, mechanical,
chemical and biological methods are combined to achieve the greatest
degree of control at the least expense to the environment.
Every possible effort must be made to see that in achieving control
appropriate chemicals are applied at carefully controlled minimum
rates. Off-target applications must be reduced, and soil and water
conservation measures must be utilized to prevent movement of chemi-
cals through runoff and erosion.
The ideal solution to the problem of pesticide residues would be to
employ only pesticides which degrade after application and leave no
toxic or hazardous after-products. The difficulty in this solution, how-
ever, appears to be that the available alternative chemicals which are
non-persistent are extremely toxic to human life in the forms in which
they are effective in pest control.
Immediate dangers to human life are posed by these extremely toxic
chemicals, such as parathion which has been recommended as a substi-
tute for DDT. These substances, commonly referred to as "hot" chem-
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186 LEGAL COMPILATION—SUPPLEMENT I
icals, are recommended for use because they do attack the pests against
which persistent chemicals have proven effective, but they do not per-
sist in their toxic state for long periods after application. Shortly after
application, these chemicals start to disintegrate and are soon absorbed
by natural processes leaving no residual accumulation to endanger
wildlife or man. The difficulty in their use arises out of their high
original toxicity. These chemicals cause most of the deaths from pesti-
cides in the Nation. Mere exposure to dust from a parathion sack has
resulted in the death of children, and farmers, justifiably, are fearful
to use these "hot" chemicals.
ANIMAL WASTES
Animal and poultry waste, until recent years, has not been consid-
ered a major pollutant. Until the past ten or fifteen years few prob-
lems existed, because animals were relatively wide-spread on pasture
and rangeland and their manure was deposited on the ground to be
naturally recycled through the soil and plant cover. Even housed live-
stock and poultry were supplied with bedding or litter to absorb mois-
ture from manure and facilitate handling in solid form through
spreading back on the land.
The picture has changed dramatically, however, as development of
intensive livestock and poultry production on feedlots and in modern
buildings has created massive concentrations of manure in small areas.
The recycling capacity of the soil and plant cover has been surpassed.
In these modern facilities the use of bedding and litter has been greatly
reduced; consequently, the manure which is produced remains essen-
tially in the liquid state and is much more difficult to handle without
odor and pollution problems. Precipitation runoff from these areas
picks up high concentrations of pollutants which reduce oxygen levels
in receiving streams and lakes and accelerate the eutrophication
process.
The present situation and the outlook for future developments in
livestock and poultry production show that waste management systems
are required to prevent wastes generated in concentrated production
areas from causing serious harm to surface and ground waters. Some
115 million dairy and beef cattle, 20 million sheep and lambs, 67 million
hogs and pigs and over 900 million poultry, turkeys and broilers pro-
duce an estimated 1.6 to 1.8 billion tons of manure each year. This
quantity is more than 12 times the amount produced by the human pop-
ulation. Fortunately, only a small portion of this manure is produced
under concentrated conditions having a high potential for pollution.
Estimates vary, but a reasonable assumption would be that no more
than 20 percent of total manure production poses a threat to our water
resources. Of this 20 percent, of course, only a small fraction of the pol-
lutants it contains will actually reach ground or surface waters through
leaching or surface runoff. -However, with increasing concentration of
livestock and poultry production in modern facilities the pollution
problem will become more serious.
The situation is not one in which solutions appear to be of doubtful
value or impossible to accomplish. At the present time waste manage-
ment systems are being installed by animal and poultry producers with
technical assistance from the U.S. Department of Agriculture and the
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WATER—STATUTES AND LEGISLATIVE HISTORY 187
States. These systems are proving to be effective in preventing pollut-
ants from reaching surface and groundwaters. Systems are also being
developed to recycle wastes through the land and its plant cover. Ke-
search is being carried out to improve waste management systems.
Hearings held by the Air and Water Pollution Subcommittee in
Kansas City this year disclosed the fact that those States, such as
Kansas, which have large numbers of feedlots are in the forefront of
efforts to develop new techniques for waste management. Information
and instruction programs are being conducted to notify producers of
animal waste problems.
FERTILIZERS
When virgin soils were first cultivated in America, they were rich
in organic matter and plant nutrients, and provided far more nitrogen
and phosphorus than crops could use. In those early days losses to
ground and surface waters, as well as to the atmosphere, were very
high. As a result of cultivation over the years, these natural supplies
have been gradually and greatly diminished, and with this diminution
in natural nutrients came a corresponding and accelerated use of fer-
tilizers. By 1969, the annual application of almost 7 million tons of
nitrogen fertilizer was insufficient to replace the yearly drop in the
soils capacity to supply this vital element in plant growth. Today,
still greater amounts of all kinds of fertilizers are being applied.
This large-scale use of commercial fertilizer with high nitrogen and
phosphorous content comes at a time of increasing public concern about
eutrophication of lakes and streams and the presence of nutrients in
ground water.
As the committee bill recognizes, much remains to be learned about
eutrophication. In the meantime, control of nitrogen and phosphorous
in surface waters is receiving wide attention as a means of limiting
growth of algae and aquatic plants. It is known that nitrogen and
phosphorous are essential nutrients for the growth of algae and aqua-
tic plants, and that they do not usually occur naturally in concentra-
tions which affect water quality. In addition, it is well established that
nitrogen, when converted to nitrates, readily leaches to ground water,
an important fact, because concentration of nitrate in excess of
45 mg/1. in drinking water is considered hazardous. Other elements
such as potassium, calcium and magnesium are also necessary for such
growth but are usually present in nature in abundant supply and pre-
sent no great difficulty without the additional presence of nitrates and
phosphorous.
Phosphorous in fertilizer is immediately tied up by clay particles
in the soil upon application, so its primary route to becoming a problem
is through soil erosion by flowing water. Thus, with proper fertilizer
application and good land.management phosphorous cannot be con-
sidered a significant problem in the use of fertilizers.
The best solution to problems arising from use of commercial fer-
tilizers is sound management of their use; and in this regard it should
be remembered that cost-benefit relationships will always work to min-
imize the application of any agricultural chemicals. Fertilizer should
be applied to crops only in necessary minimum effective amounts and
at times when crops can utilize it. Good land management, through use
of conservation practices to prevent soil erosion and reduce surface
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188 LEGAL COMPILATION—SUPPLEMENT I
runoff from cultivated or fertilized areas, is the most practical ap-
proach to minimizing fertilizer problems.
CONCLUSION
It is my belief that the bill establishes an effective framework to
provide for the application of the expertise developed by U.S.D.A.
and others in a program which will remedy the adverse impact of agri-
cultural activities on water pollution. It will do this by placing primary
responsibility in the States, while still providing integrated programs
to achieve water pollution control from all sources. Only in this man-
ner will the quality of the Nation's water resources be insured and
^haintained.
SUPPLEMENTAL VIEWS OF SEN. JAMES L. BUCKLEY
The Federal Water Pollution Control Act Amendments of 1971
is landmark legislation in our national effort to achieve a quality en-
vironment. Moreover, it seems destined to be controversial because
it may attempt to achieve too much on the basis of too little informa-
tion ; because it will increase the federal financial contribution to waste
treatment plants to so high a percentage that the net effect may be a
lower total national investment in such plants while placing an un-
necessary new strain on an increasingly inflated federal budget; be-
cause despite the pious references to the primacy of the state role in
water quality efforts, it may well threaten in too many instances to
reduce the role of the states and local governments to that of "errand
boy", so that the bill may, in fact, encourage states to withdraw from
the national effort.
Lest my remarks be interpreted in too negative a vein, I want to
make it clear that my complaint is that this constructive bill might
have been better; that some of the ideal objectives to which it has given
legislative shape might give rise to such unattainable expectations on
the one hand, and to such unwarranted concerns on the other, that in
the longer run, the bill may set back the cause of water quality and
unnecessarily discredit the environmental movement. And finally, I
am concerned that the concentration of scarce resources in attempting
to achieve a perhaps impossible degree of performance in just one
area of environmental concern may divert or postpone public and
private investment in other areas where far more tangible, far more
essential near-term results could be achieved.
In these remarks I will address myself to three principal areas. The
first has to do with the naming of a specific target date (1985) for
the achievement of the national goal of no-discharge; the second has
to do with the size of the federal contribution; and the third with the
responsibility relegated to the states:
ALLOCATION OF RESOURCES
Although it is technically true that no single provision in the bill
specifically mandates the application of a "no-discharge" standard by
1985 or by any ether date, it appears clear to me the bill will operate
in such a way as to make it increasingly difficult for the Administra-
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WATER—STATUTES AND LEGISLATIVE HISTORY 189
tor or any State official charged with regulatory responsibilities under
the Act to impose a standard less stringent than "no-discharge", par-
ticularly with respect to the "phase" ending on January 1, 1981 (sec-
tion 301 (b) (2) (A)).
I have no quarrel with the "no-discharge" standard as a statement
of the ideal towards which we should focus our efforts. On the con-
trary, I would welcome as eagerly as any other American the quality
of water that would result form the elimination of the discharge of
all pollutants, intelligently defined.
However, we cannot lose sight of the fact that there is, somewhere,
an outside limit to what the public—as taxpayers and consumers—
will be willing to invest over any given period in the improvement of
the environment. The commitment of resources to one sphere of ac-
tivity means that those resources are no longer available for other
competing needs where a given investment can, on balance, do more
to move us towards achievement of all of our environmental goals.
I have little, if any, idea of the investment—in terms of the total
resources available to us—that will be required to achieve the goals
set forth in this legislation. But I do suspect that no one else does
either; and that the attempt to reach an incremental degree of perfec-
tion beyond that required for a steady, dramatic improvement in
water quality may dry up funds which could far better be utilized to
achieve significant breakthroughs in other areas affecting the environ-
ment.
The bill is by no means devoid of provisions that address themselves
to the kind of potential misallocation of resources that I have sug-
gested. With the justifiable exception of the provisions of section 307,
which would impose controls on toxic pollutants in harmful amounts,
the imposition of any effluent standard (including "no-discharge")
pursuant to the Act would be subject to some sort of economic test.
The Committee devoted considerable time to the search for a way to
balance the costs of control against the benefits achieved. Sections
302(b) and 305(b) (1) (D) are examples of the Committee's efforts to
strike a balance. But these provisions themselves vest an awesome re-
sponsibility in the Administrator. Tens of thousands of individual
effluent standards will be imposed pursuant to this Act, each of which
will have to be tailor-made. Compliance with each of these standards
will require the investment of nonproductive capital resources, whether
the source of discharge be publicly or privately owned. In each in-
stance, the Administrator or his designee will be called upon to make
often complex economic determinations of the kind that are tradi-
tionally resolved in response to the imperatives of a system of markets
and prices. National water quality standards must in fact be met, if
we are to achieve our necessary goals. But to expect what may prove
to be an inordinately theoretical standard of omniscience on the part
of the Administrator, given our near-term technological capabilities,
may unnecessarily restrict his ability to apply the rule of Common
Sense in the achievement of effective progress.
The bill adopts the rather curious approach of establishing the "no-
discharge" standard by 1985 as "national policy" (section 101 (a) (1))
and then providing procedures whereby the Congress will be given
the opportunity, somewhere in the mid-1970's, to decide whether such
a policy is achievable or, in fact, desirable (section 305). I wholeheart-
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190 LEGAL COMPILATION—SUPPLEMENT I
edly support the idea that the Congress should continually review the
progress of the program and make judgments as to its future course.
But I confess to a concern that the opportunity to make the "mid-
course correction" envisioned by section 305 may come too late to
achieve its intended purpose, i.e., Congressional reevaluation of the
1985 "no-discharge" policy.
For example, section 301 (b) (2) (A) would require the application
of the "no-discharge" standard by 1981 to existing sources unless the
owner of the source is able to persuade the Administrator that "no-
discharge" is not "reasonable". It seems likely to me that, in light of
the lead time required, dischargers will need to know not later than
1976 what will be expected of them by the 1981 deadline. And yet, it
is in 1976 or 1977 that the Congress will be making its section 305
review of the "no-discharge policy". I anticipate confusion.
The wisdom to propose an answer to this dilemma is not at my
command. While I acknowledge that the bill does not enforce a "no-
discharge" standard by 1985,1 continue to believe that the bill would
be improved by deletion of the date itself. It holds out a promise to
the American people that is, I fear, however desireable, unrealistic.
And barring some welcome breakthrough in control technology,
should the 1985 "goal" operate as an enforceable standard, I reluc-
tantly conclude that the cost of implementing it—in terms of the total
resources available to us—is likely to prove unacceptable, if not pro-
hibitive. But worst of all, it may (a) breed an antienvironmentalist
backlash which will set us back years in our struggle to save the en-
vironment, and (b) divert the large sums required to achieve, in the
end, breakthroughs in such other urgent matters as developing pollu-
tion-free means of generating electricity.
FEDERAL SHARE
In the matter of the size of the federal contribution to the construc-
tion of waste treatment facilities, I cannot agree with the majority's
view that it should be increased from a maximum of 55%, as provided
in the current program, to a maximum of 70%. I am not at all per-
suaded that an accelerated investment in waste treatment works will
be stimulated by increasing the federal share. Such an increase may, in
fact, reduce the number of plants on which construction could begin
during the next five years. Under present legislation, enacted in 1966,
the size of the federal share is increased from 30% to 55% of the cost
of an approved water treatment facility if the state undertakes to
contribute 25% and if certain other requirements are met.
Although, as of September 1, 1971, thirteen states had still declined
to qualify for additional federal contributions under the existing law,
testimony before the Committee made it amply clear that the "heel
dragging" had little, if anything, to do with the percentage of the
federal share. The one major complaint was that the Federal contri-
butions promised in early legislation were not sufficiently dependable.
There is little reason to believe, therefore, that raising the federal ante
will be very significantly more effective in causing the remaining states
to make the grants contemplated in the proposed bill. Furthermore,
those 38 states (including the District of Columbia) which already
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WATER—STATUTES AND LEGISLATIVE HISTORY 191
agree to pay 25% of the costs account for 90% of the total estimated*
construction needs for fiscal years 1972, 1973 and 1974. Hence, in the
overwhelming number of projects which might be built, the act of in-
creasing the federal share will merely substitute federal dollars for
state dollars. Since this bill encourages the states to contribute only
10% of the cost of construction to qualify for a 70% federal grant,
there is little reason to expect these 38 states to maintain the 25% to
30% contribution which they presently make.
Furthermore, the increase in the federal share may well be to make
it politically impossible for a State or community to move faster than
the federal contribution will allow.
Given, for example, that the total amount of federal funds available
in a single fiscal year is $2 billion, a 55% federal share would generate
$3.63 billion worth of construction, whereas a 70% federal share would
generate $2.86 billion worth, a difference of about $370 million in total
construction which would be initiated in that year. By way of com-
parison, $370 million is the equivalent of the total estimated construc-
tion needs for as many as 26 states for fiscal year 1972; or, to be fair,
as few as one state (e.g., Illinois) which has particularly burdensome
water pollution abatement requirements.
There is ample testimony that delays in the construction or moderni-
zation of sewage treatment facilities under existing legislation are not
so much attributable (if at all) to the size of the basic federal contri-
bution as to other factors such as a community's own conception of its
priorities, an unwillingness to go to the voters for an authorization of
new debt issues, or, in some instances, a technical impediment imposed
by statute (e.g., debt or interest ceilings) and, perhaps most im-
portantly, the unavailability of federal funds. There are also, of course,
those communities which simply do not have the credit rating re-
quired to enable them to borrow the necessary funds at a reasonable
price. To some degree, the Administration's proposed Environmental
Financing Authority will alleviate this difficulty. However, I cannot
agree that the most efficacious and fiscally prudent means of dealing
with these relatively limited number of situations is to increase the
federal share and thereby restrict the number of plants on which con-
struction could be initiated in a given fiscal year.
An additional observation one might make in this regard is that a
periodic upping of the federal ante will have the counter-productive
effect of inducing some communities to delay the planning and con-
struction of modern sewage treatment facilities in the expectation of
a better deal in a later year. If 70% this year is good, 90% in a few
more years is better. And this expectation would not seem unreason-
able, given legislation which has in fact been introduced.
I readily acknowledge the need for a strong, residual federal pres-
ence behind environmental quality programs. Th<- p. obi ems of the
environment, as a rule, respect no political boundaries, and are, there-
fore national. Where state and local governments, for whatever rea-
son, are unwilling to act or unable to act, the federal government has
a necessary obligation to intervene. But this bill, in my judgment, pre-
supposes and anticipates inadequate state action.
•These estimates, "need assessments," were made by the Environmental Protec-
tion Agency as of December 1970, and were based on the standards in effect in the states
at that time.
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192 LEGAL COMPILATION—SUPPLEMENT I
My concern is not theoretical or doctrinaire. The active participa-
tion by state and local governments in this program, and a mood of
cooperation and interdependence between those units of government
and EPA, are essential to the success of the program. The federal
government cannot possibly, as I see it, administer this program with-
out the active cooperation of the states. And I question whether com-
petent state officials will approach their responsibilities with dedica-
tion and enthusiasm, if their every act is subject either to prior ap-
proval or subsequent review by the Administrator.
STATE ROLE
From the outset of the Committee's deliberations, I have been, and
remain, concerned that the detailed requirements of this Act will work
to erode the initiative and flexibility of the States in exercising "their
primary responsibility and rights ... to prevent and eliminate water
pollution." Notwithstanding that it is the policy of the Congress to
recognize, preserve, and protect that responsibility (section 101 (b)),
the overall effect of this bill is to mandate to the federal Adminis-
trator what I believe to be excessively broad and detailed responsibil-
ity over the most minute aspects of the State's programs. Section 106,
for example, which grants federal funds and imposes conditions upon
the States for the award of these funds, provides the Administrator
with the authority (in subsection (j)) that, "notwithstanding the fact
that a State is in compliance with the requirements of subsections
(g) and (h) of this section to reduce, after notice and opportunity
for hearing, the grant payable to such State in such fiscal year if he
determines, based on criteria established in regulations promulgated
by him, that the water pollution control program of such State is
inadequate in whole or in part." Given the natural history of bureauc-
racies, such a provision could, at best, prove mischievous.
In addition to the direction that the Administrator must stipulate
the elements which a state program must include, he is required to
judge the acceptability of the svstem of charges which each and every
applicant will impose upon all users of waste treatment services as
a condition of receiving a grant; he must determine the capability
of 50 States to qualify for delegation of authority for a waste dis-
charge permit system; he must approve waste treatment management
plans for each State and each regional agency created within each
State; and he must, once he has disposed of all these duties, continue
to be responsible, as the ultimate enforcer, for the maintenance of
every last provision imposed upon him and upon the States by this
Act, whether or not these minutiae actually affect the achievement of
water quality standards.
In closing, I would like to say something rather personal. I am the
only member of the Committee on Public Works who has not had
previous legislative experience. I have had rather definite points of
view on a number of provisions which at one time or another have
appeared in the drafts of the legislation which is now before the
Senate. But I know of no situation in private life where a newcomer
would have been accorded greater consideration, or where differences
of opinion would, have been given a fairer hearing than that which
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WATER—STATUTES AND LEGISLATIVE HISTORY 193
was characteristic of both the Committee on Public Works and its
Subcommittee on Air and Water Pollution. I feel particularly fortu-
nate to be a member of both and to have been able to work with the
two chairmen and the committee staff, who have made so great an
effort to accommodate differences of approach to common objectives.
JAMES L. BUCBXEY.
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194 LEGAL COMPILATION—SUPPLEMENT I
CHANGES IN EXISTING LAW MADE BY THE BILL, AS
REPORTED
In the opinion of the Committee, it is necessary to dispense with the
requirements of subsection (4) of rule XXIX of the Standing Eules
of the Senate in order to expedite the business of the Senate. Therefore,
this report does not contain a line-type and italic comparison of the
bill with existing law.
This bill re-enacts the Federal Water Pollution Control Act in its
entirety, with amendments. The discussion of intent indicates the ef-
fect of the amendments on existing law. Section 8 of the Federal Water
Pollution Control Act, dealing with construction grants for waste
treatment works, is replaced by Title II of this bill. Section 10 of
existing law, containing standard-setting and enforcement language,
is replaced by Title III, Title IV, and sections 504 and 505 of this bill.
The material of section 11 (oil pollution) and section 12 (hazardous
polluting substances) of existing law are combined in section 311 of
this bill, while section 13 (sewage from vessels) is now section 312.
Research, training, and special demonstration programs from exist-
ing law are collected in Title I of this bill, with the statement of policy
and State program grants (formerly section 7, now section 106). Title
V of the bill contains definitions and general administrative provisions
from the existing law, together with new matter.
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WATER—STATUTES AND LEGISLATIVE HISTORY 195
APPENDIX A
The following water pollution control bills, introduced during the
first session of the 92nd Congress; were considered by the Subcom-
mittee on Air and Water Pollution in its 1971 series of public hearings:
S. 75 (SENATOR NELSON) DETERGENT POLLUTION CONTROL ACT
The Administrator of the Environmental Protection Agency shall
issue standards of water eutrophication, biodegradability, toxicity,
and of effects on the public health and welfare which must be met
by all synthetic detergents. It shall be unlawful after June 30, 1973,
for any person to import or manufacture any detergent not in com-
pliance with these standards. Federal assistance is provided to accel-
erate the development and manufacture of detergents that are pollu-
tion free.
8. 192 (SENATOR NELSON) MARINE POLLUTION CONTROL ACT
After June 30, 1975, no citizen of the United States shall dispose
of refuse materials originating within the U.S. into the Great Lakes,
the coastal waters of the United States or the high seas without a per-
mit from the Administrator of the EPA with concurrence of the
Council on Environmental Quality.
8. 280 (SENATOR NELSON) NATIONAL LAKES PRESERVATION ACT
Establishes a National Lake Areas System to preserve, protect, and
make accessible the lake areas of the Nation (to be composed of both
federally administered lake areas and lake areas administered by the
States). The Secretary of the Interior shall conduct a nationwide study
of lake areas considering resource, economic, recreational, agricultural,
and industrial values to establish the most appropriate means of pre-
serving and protecting such areas. The Secretary is authorized to issue
regulations governing the public use of Federal lake areas. The Secre-
tary shall support, assist, and encourage progams, including grants and
contracts, of lake and lake area research, investigation, and
experiments.
S. 281 (SENATOR NELSON) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Protects the navigable waters of the United States from further pol-
lution by requiring that pesticides manufactured for use in the United
States or imported for use in the United States comply with certain
standards of biodegradability and toxicity. It shall be unlawful after
June 30, 1973, for any person to import or manufacture pesticides
which do not comply with these standards.
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196 LEGAL COMPILATION—SUPPLEMENT I
8. 523 (SENATOR MUSKIE)—NATIONAL WATER QUALITY STANDARDS ACT
Authorizes a five year national program of $25 billion for the con-
struction of waste treatment plants to improve and achieve more effi-
cient waste treatment. The Administrator of the EPA shall issue
standards to protect and enhance the existing quality of all waters.
These standards shall apply to all navigable waters and their tribu-
taries and must be adopted with a statutory deadline and attained
within three years of approval. Ocean discharges would be regulated
through permits granted by the Administrator. Negligent violation of
a water quality standard, requirement of an implementation plan, or
an order of the Administrator would be liable to a civil penalty of
$10,000 per day. A knowing violation would be subject to criminal
penalty of $25,000 per day or imprisonment for up to one year. The
Administrator may enter and inspect effluent sources. Any person may
sue a polluter to abate a violation of water quality standards. Dis-
charge of hazardous substances would be prohibited.
S. 601 (SENATOR 8AXBE) TO AMEND THE WATER POLLUTION CONTROL
ACT
Provides assistance for river basin programs, not to exceed 50% of
administrative, investigatory, operator training, and water quality
control inspection costs of carrying out a basin water quality manage-
ment plan.
S. 679 (SENATOR STEVENS) TO AMEND THE REFUSE ACT OF 1899
Increases penalties relating to wrongful deposit of certain refuse,
injury to harbor improvements, and obstruction of navigable waters
from $2,500 to $100,000, and repeated infractions would be treated as
separate violations each day they continue.
S. 1011 (SENATOR WILLIAMS) NATIONAL MARINE WATERS POLLUTION
CONTROL ACT
Provides means and measures to control the discharge of wastes
transported by any means from areas within the U.S. and to protect
and enhance the quality of the marine environment. Prohibits the dis-
charge or the contribution to discharge of wastes from any vessel,
except sewage discharged from marine sanitation devices. There shall
be a civil penalty of not more than $100,000 per violation. Within 180
days after enactment, the Administrator of the EPA shall issue pro-
posed regulations governing the discharge of wastes by any owner or
operator of a vessel or onshore or offshore facility into or upon all or
any portion or portions of the waters beyond the contiguous zone. The
Administrator shall make grants to any State, municipality, or other
political subdivision for the construction of treatment works annually.
S. 1012 (SENATOR COOPER) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Amends Sections 5, 6, and 7 providing increased authorizations for
appropriations to assist the State and interstate water pollution con-
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WATER—STATUTES AND LEGISLATIVE HISTORY 197
trol programs. Provides additional flexibility to the Administrator of
the EPA in awarding such grants through increased use of incentives.
Provides additional research and development authority. Provides for
development of new technology in the area of advanced waste treat-
ment, combined sewers, and industrial waste treatment.
S. 1013 (SENATOR COOPER) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Amend Section 8 providing a new program of financial assistance to
States and municipalities for the construction of treatment works. In-
cludes a new provision to assure the development of financial and oper-
ation and maintenance capability in the States and municipalities in
construction and maintenance of waste treatment works. Authorizes
$6 billion in Federal funds: $2 billion for each of the next 3 fiscal years,
to be matched by contributions up to 55 percent in State and local
funds for the construction of a total of $12 billion of waste treatment
works throughout the Nation. Revises the allocation formula to pro-
vide greater flexibility to meet the most critical water pollution prob-
lems, and provides a new formula' for reimbursement of prefinanced
Federal shares.
8. 1014 (SENATOR COOPER) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Amends Section 10 providing for a strengthened program to estab-
lish, implement, and enforce water quality standards. Extends the
Federal-State program for the establishment and approval of stand-
ards and plans applicable to all navigable and ground waters. Estab-
lishes effluent standards as the primary pollution abatement mecha-
nism in implementation plans to achieve water quality standards. Mod-
ifies enforcement provisions to include immediate Federal abatement,
information acquisition, and emergency authority.
8. 1015 (SENATOR COOPER) ENVIRONMENTAL FINANCING ACT
Creates the Environmental Financing Authority under the supervi-
sion of the Secretary of the Treasury. Insures that inability to borrow
necessary funds on reasonable terms does not prevent any State or lo-
cal public body from carrying out any project for construction waste
treatment works. EFA would be authorized to buy the State and local
bonds at rates to be determined by the Secretary of the Treasury. EFA
would be authorized to issue taxable obligations on the market.
8. 1017 (SENATOR MONDALE) CLEAN LAKES ACT
Authorizes the Administrator of the EPA to increase the Federal
grant percentage for the treatment works to a maximum of 65 percent
of the costs for treatment works which are located near or adjacent
to any lake and which discharges wastes into the lake or tributary
waters, if the States pay at least 20 percent of the costs. Authorizes the
Administrator to provide technical and financial assistance to the
States and municipalities in carrying out a comprehensive program
of pollution control.
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198 LEGAL COMPILATION—SUPPLEMENT I
S. 1082 (SENATOR CASE) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Kegulates the discharge of wastes in territorial and internationa
waters until five years after the date of enactment, prohibits such dis
charge thereafter, authorizes research and demonstration projects t
determine means of using and disposing such wastes. After a five-yea
period, dumping is prohibited anywhere in ocean waters or Grea
Lakes.
S. 1143 (SENATOR EAGLETON) A BILL TO AMEND THE FEDERAL WATE1
POLLUTION CONTROL ACT
Provides a national commitment for financing of expanded pro
grams under the Federal Water Pollution Control Act to assure bette:
coordination in development of clean water programs. Authorize:
grants to States and interstate agencies to assist them in meeting costi
of establishing and maintaining adequate measures for prevention anc
control of water pollution, including training of personnel of publit
agencies.
S. 1238 (SENATOR BOGGS) MARINE PROTECTION ACT OF 1971
Kegulates the dumping of material in oceans, coastal, and othei
waters. EPA Administrator is authorized to issue permits for dump-
ing of materials or for transporting of such materials to areas where
dumping in his judgment will not unreasonably degrade or endanger
human health, welfare or amenities, or the marine environment.
ecological systems, or economic potentialities. Administrator is re-
quired to establish criteria for evaluating permit applications. Attor-
ney General is authorized to bring action for equitable relief of viola-
tions. Surveillance and enforcement authority is given to the Coast
Guard.
8. 1259 (SENATOR MAGNU8ON) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Amends Section 8 of the Federal Water Pollution Control Act to
authorize a special 20 per cent incentive grant for new construction
of pollution abatement works by any municipality which has built
sewage projects since 1956 that qualified for Federal assistance at
the time of building but did not receive the 30% Federal grant then
authorized. Authorizes not to exceed $10-billion to finance the pro-
grams and activities under this section.
8. 1286 (SENATOR BOGGS) EMERGENCY WATER POLLUTION PREVENTION
ACT OF 1971
Amends the Federal Water Pollution Control Act by inserting a
new section on Control of Ocean Pollution. EPA Administrator is
authorized to develop and promulgate regulations on the future con-
trol of ocean dumping by using a permit system no later than six
months after the effective date of enactment. Permits are to allow
ocean disposal only where it will not produce a harmful effect on the
[p. 114]
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WATER—STATUTES AND LEGISLATIVE HISTORY 199
environment and only in areas designated by the Administrator out-
side the territorial waters and beyond the Continental Shelf. Until
the permit system is established, the bill would prohibit any ocean
discharge.
S. 1781 (SENATOR NELSON) CLEAN WATER FINANCING ACT OF 1971
Effective for fiscal years beginning after July 1, 1971, section 8 of
the Federal Water Pollution Control Act is amended to provide 90
per cent Federal aid for the construction or upgrading of municipal
waste treatment plants.
Authorizes the EPA Administrator to incur obligations in the form
of grant agreements or otherwise in amounts not to exceed $25-billion
during the next five years, with Congress liquidating the obligations
at the rate of $5-billion a year.
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200 LEGAL COMPILATION—SUPPLEMENT I
APPENDIX B
The following water pollution control bills, introduced during the
second session of the 91st Congress, were considered by the Subcom-
mittee on Air and Water Pollution in its 1970 series of public
hearings:
S. 3181 (SENATOR PROXMIRE) —REGIONAL WATER QUALITY ACT OF 19 7 0
Secretaries of Interior and Treasury to establish by June, 1971, a
schedule of national effluent charges for all substances other than
domestic sewage which detract from water quality. Charges shall be
determined on oasis of waste discharged and relationship to resulting
damage of waterway. Kevenues collected by Secretary of Treasury
shall be deposited in a trust fund. This fund to be distributed as fol-
lows : 50 percent to municipalities for construction of waste treatment
facilities; 50 percent to regional water management associations for
same purpose. Violators subject to fines of $1,000 to $5,000 per day of
violation.
8. 3468 (SENATOR SCOTT) ENVIRONMENTAL FINANCING ACT OF 1970
Establishes the Environmental Financing Authority, subject to
supervision of Secretary of Treasury. Authorizes up to $100 million
for initial capital. Purpose to assure all communities can get financing
at reasonable rates for local share of waste treatment plant construc-
tion. EFA would be authorized, where Secretary of Interior certifies a
community cannot get financing, to buy the State and local bonds at
rates to be determined by Secretary of Treasury. EFA would be au-
thorized to issue taxable obligations on the market.
S. 3470 (SENATOR SCOTT) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
Amends language relating to grants for research and demonstration
on water pollution control projects. Authorizes $125 million per fiscal
year for fiscal years 1970, 1971, and 1972 for contracts and grants to
research sewage treatment methods, effects of pollution on water uses,
etc. For State and interstate programs, provides graduated authoriza-
tions starting with $12.5 million in fiscal year 1971 and increasing to
$30 million for fiscal year 1975. Of this, $10 million a year (equal to
the current authorization) is to be available for the basic program of
assisting State and interstate groups to administer their water pollu-
tion control programs. The additional funds may be used for grants to
States agreeing to develop an improved water pollution control pro-
gram meeting certain criteria. (This amount can be up to 25 percent
of basic Federal grant under existing sections). Secretary also can
make special project grants to State or interstate agencies for projects
exception in scope of problems they cover.
[p. H6]
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WATER—STATUTES AND LEGISLATIVE HISTORY 201
S. 3471 (SENATOR SCOTT) A BILL TO AMEND THE FEDERAL WATER POLLU-
TION CONTROL ACT
Changes the declaration of policy in Section l(a) from the current
"to enhance the quality and value of our water resources" to "enhance
the quality of our environment." Sets forth enlarged Federal role in
water pollution abatement. Expands standards requirement to navi-
gable, boundary and ground waters and waters of the contiguous zone.
Eliminates need for governor's request for federal enforcement of
standards in intrastate cases. Adds effluent standards as part of water
quality standards program. Specifies fines of up to $10,000 a day. In
case of violation, Secretary must notify polluter 180 days before initi-
ating abatement procedures. Not less than 21 days after this notice,
there shall be a public hearing. If there has not been remedial action
within 180-day period, Secretary may request Attorney General to
bring suit.
S. 3472 (SENATOR SCOTT) CLEAN WATER FINANCING ACT OF 1970
Secretary of Interior authorized to incur obligations of $4 billion
for grants for waste treatment facilities. Of this, $1 billion would be
available during each of 4 fiscal years beginning fiscal year 1971. Sec-
retary to submit report by January, 1973, outlining addition needs for
fiscal years 1975 through 1979.30 and 50 percent share formula remains
the same. Formula for Federal share of 40 percent changed. State
would have to guarantee 25 percent of cost, rather than present 30 per-
cent. Eliminates bonus for conformity with water quality standards,
substitutes requirement all grants must comply with regulations pre-
scribed by Secretary. Eevises allocation formula to provide 60 percent
of funds to be allocated under present criteria of population and fi-
nancial need, 20 percent to be allocated on basis of State agreements
to pay at least 25 percent of cost, and 20 percent on basis of Secre-
tarial determination of severity of water pollution problems and ability
to conform to basin-wide abatement program. Eliminates 10 percent
bonus for compliance with a metropolitan plan, making such com-
pliance a requirement for all grants.
S. 3484 (SENATOR NELSON) MARINE ENVIRONMENT AND POLLUTION
CONTROL ACT OF 1970
Prohibits all dumping of refuse originating in U.S. into oceans,
Great Lakes, or coastal waters after June 30,1975, except on a tempo-
rary permit from the Secretary of the Interior on a finding that there
is no other feasible means of disposing of such refuse. In the interim,
such dumping would be permitted only with a permit issued by the
Secretary. Before issuing permit, Secretary must hold public hearings
and solicit views of State officials, other Federal departments. His
decision can be vetoed by the Council on Environmental Quality.
Sets up in Department of Interior an Advisory Committee on the
Marine Environment, and also charges Secretary with establishing
an Inter-Agency Committee on Marine Resources Management, with
representatives from other departments. As of three years from effec-
tive date of amendments, no submerged lands under jurisdiction of
[p. H7]
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202 LEGAL COMPILATION—SUPPLEMENT I
Secretary shall be leased for oil or other minerals without a manage-
ment plan in effect for that area. Whenever such a lease is proposed,
or when the Secretary thinks its desirable, he shall in consultation
with above groups, study the area and develop a management plan.
The management plan shall afford protection for plant and animal
life, ecological and other systems and recreational values of the area.
This plan shall allow a given use only upon the Secretary's finding
that it does not risk environmental damage.
S. 3488 (SENATOR WILLIAMS) NATIONAL MARINE WATERS POLLUTION
CONTROL AND QUALITY ENHANCEMENT ACT OF 1071
Amends Section 17 of the Federal Water Pollution Control Act to
prohibit discharge of wastes into the waters of the contiguous zone,
except under regulations promulgated by the Secretary of the Inte-
rior. Provides for issuance of regulations by the Secretary governing
the discharge of wastes and for the designation of areas where such
controlled discharges are permitted.
S. 3500 (SENATOR NELSON) A BILL TO AMEND THE FEDERAL WATER
POLLUTION CONTROL ACT
S. 3507 (SENATOR NELSON) DETERGENT POLLUTION CONTROL ACT OF 1970
These bills are similar; one more comprehensive than the other.
S. 3500 makes it unlawful after June 30. 1972, to import or manu-
facture detergents containing phosphorus on basis that these deter-
gents contribute to water pollution. Detergent in violation may be
seized and destroyed or sold, with proceeds to U.S. Treasury, pro-
vided that such detergents are not to be used for purpose contributing
to pollution. S. 3507 contains identical provisions banning phosphorus
in detergents. In addition, it stipulates that the Secretary of Interior
shall establish by June 30, 1971, standards for detergents relative to
eutrophication, biodegradability, toxicity and effects on the public
health and welfare. Any detergent not in compliance after June 30,
1972, is liable to seizure and court action. Conviction of violation
is punishable by a fine up to $5,000.
S. 3614 (SENATOR COOK) FEDERAL PROCUREMENT AND ENVIRONMENT
ENHANCEMENT ACT OF 1970
Any person or corporation under court order to abate pollution or
found to be in violation of water pollution laws or regulations is made
ineligible to enter into a contract for procurement of goods or serv-
ices with the Federal Government. All Federal agencies, before enter-
ing into contracts, must require proof of compliance with water pollu-
tion control laws on part of person or corporation entering into the
contract. Also contains similar provisions relative to air pollution law.
s. 3687 (SENATOR MUSKIE)—NATIONAL WATER QUALITY
STANDARDS ACT OF 1970
Increases Federal grant authorization for waste treatment facilities
to $2.5 billion a year for 5 fiscal years (1972-1976). This would pay
[p. 118]
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WATER—STATUTES AND LEGISLATIVE HISTORY 203
Federal share of $25 billion worth of construction. Continues presem
system of 30,40 and 50 percent grants based on State aid level and com-
pliance with water quality standards. As incentive to river basin plan-
ning, authorizes grants of up to 60 percent in basins designated by
the Secretary of Interior where waste treatment works are part of
basinwide plan which plan meets certain statutory requirements. Dou-
bles level of Federal assistance to State and interstate program to $20
million a year beginning in fiscal year 1972. Adds requirement Federal
assistance to be used to aid in implementation and enforcement of water
quality standards. Extends standards program to all navigable waters
(instead of interstate waters as at present). Requires that all standards
include effluent requirements and compliance schedules. Provides for
public hearings on setting standards. Prohibits discharge in violation
of standards. Authority for Secretary of Interior to issue orders, re-
quiring abatement and prescribing time for compliance. Appeal proce-
dure. Failure to comply or appeal, subject to court action. Know-
ing violation of standards or refusing to comply with order subject
to penalties of one year in prison, $25,000 per day of violation, or both.
Prohibits Federal loans, grants, contracts or permits to firms not com-
plying with water quality standards. Protects workers who give in-
formation in proceedings under the Act. Authorizes Secretary to bring
immediate court action in event of substantial endangerment to per-
sons or wildlife.
8. 3688 (SENATOR MTTSKIE) CLEAN WATER COMMITMENT ACT OF 1970
(INTRODUCED AT REQUEST OF NATIONAL LEAGUE OF CITIES AND U.S.
CONFERENCE OF MAYORS)
Increases authorization for Federal share of waste treatment con-
struction to $10 billion for 5 fiscal years at $2 billion per year.
Shifts emphasis of pollution control to river basin plan, requiring
commission to be set up for each basin, with representative from each
affected State. Each commission must adopt comprehensive pollution
abatement plan. Federal government authorized to pay up to 50 per-
cent of administrative expenses of such commissions. Authorizes $25
million a year, beginning in fiscal year 1972, for grants to States and
basin commissions for administrative and planning costs. No grant
shall be approved unless project has been approved by basin commis-
sion and affected States. Limits Federal share of waste treatment proj-
ects to 50 percent as general rule. Exception is that this share can go
up to 70 percent for communities that in past have paid 80 percent or
more as local share of such projects.
S. 3697 (SENATOR MONDALE) CLEAN LAKES ACT OF 1970
Would authorize the Secretary of the Interior to increase the Fed-
eral grant percentage for treatment works under Section 8(b) of
the Federal Water Pollution Control Act to a maximum of 65 per-
cent of the costs for treatment works which are located near or ad-
jacent to any lake and which discharges wastes into the lake or tribu-
tary waters, if the States pay at least 20 percent of the costs. Au-
thorizes an annual appropriation of $150 million for fiscal years
1972, 1973, 1974, and 1975 for the purpose of funding these increased
[p. 119]
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204 LEGAL COMPILATION—SUPPLEMENT I
grants. Authorizes the Secretary to provide technical and financial
assistance to the States and municipalities in carrying out a compre-
hensive program of pollution control. Authorizes up to 80 percent
Federal grants for this program from a total appropriation of $900
million over a 6-year period beginning in fiscal year 1972. Authorizes
the use of experienced Federal water resources agencies such as the
Bureau of Keclamation and the Corps of Engineers to help carry
out this program under agreements with the States; and provides
measures to enforce water quality standards for lakes subject to this
program.
[p. 120]
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WATER STATUTES AND LEGISLATIVE HISTORY 205
1.2p(2) HOUSE COMMITTEE ON PUBLIC WORKS
H.R. REP. No. 92-911, 92d Cong., 2d Sess. (1972)
FEDEEAL WATEK POLLUTION CONTEOL ACT
AMENDMENTS OF 1972
MARCH 11, 1972.—Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. BLATNIK, from the Committee on Public Works, submitted
the following
REPORT
together with
ADDITIONAL AND SUPPLEMENTAL VIEWS
[To accompany H.R. 11886]
The Committee on Public Works, to whom was referred the bill
(H.E. 11896) to amend the Federal Water Pollution Control Act,
having considered the same, report favorably thereon with an amend-
ment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following:
That this Act may be cited as the "Federal Water Pollution Control Act Amend-
ments of 1972".
SEC. 2. The Federal Water Pollution Control Act is amended to read as
follows:
"TITLE I—RESEARCH AND RELATED PROGRAMS
"DECLABATION OF GOALS AND POLICY
"SEC. 101. (a) The objective of this Act is to restore and maintain the chemi-
cal, physical, and biological integrity of the Nation's waters. In order to achieve
this objective it is hereby declared that, consistent with the provisions of this
Act—
"(1) it is the national goal that the discharge of pollutants into the navigable
waters be eliminated by 1985;
"(2) it is the national goal that wherever attainable, an interim goal of water
quality which provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water be achieved by 1981;
"(3) it is the national policy that the discharge of toxic pollutants in toxic
amounts be prohibited;
"(4) it is the national policy that Federal financial assistance be provided
to construct publicly owned waste treatment works;
" (5) it is the national policy that areawide waste treatment management plan-
ning processes be developed and implemented to assure adequate control of
sources of pollutants in each State; and
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206 LEGAL COMPILATION SUPPLEMENT I
"(6) it is the national policy that a major research and demonstration effort
be made to develop technology necessary to eliminate the discharge of pollutants
into the navigable waters, waters of the contiguous zone, and the oceans.
"(b) It is the policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent and abate pollution, to
plan the development and use (including restoration, preservation, and enhance-
ment) of land and water resources, and to consult with the Administrator in
the exercise of his authority under this Act. It is further the policy of the Con-
gress to support and aid research relating to the prevention and abatement of
pollution, and to provide Federal technical services and financial aid to State
and interstate agencies and municipalities in connection with the prevention and
abatement of pollution.
"(c) It is further the policy of Congress that the President, acting through the
Secretary of State and such national and international organizations as he de-
termines appropriate, shall take such action as may be necessary to insure that
to the fullest extent possible all foreign countries shall take meaningful action
for the prevention, control, and abatement of pollution in their waters and in in-
ternational waters and for the achievement of goals regarding the elimination
of discharge of pollutants and the improvement of water quality to at least the
same extent as the United States does under its laws.
"(d) Except as otherwise expressly provided in this Act, the Administrator of
the Environmental Protection Agency (hereinafter in this Act called 'Admin-
istrator' ) shall administer this Act.
"(e) Public participation in the development, revision, and enforcement of any
regulation, standard, or effluent limitation established by the Administrator or
any State under this Act shall be provided for, encouraged, and assisted by the
Administrator and the States. The Administrator, in cooperation with the States,
shall develop and publish regulations specifying minimum guidelines for public
participation in such processes.
"(f) It is the national policy that to the maximum extent possible the proce-
dures utilized for implementing this Act shall encourage the drastic minimiza
tion of paperwork and interagency decision procedures, and the best use of avail-
able manpower and funds, so as to prevent needless duplication and unnecessary
delays at all levels of government.
"(g) In the implementation of this Act, agencies responsible therefor shall
consider all potential impacts relating to the water, land, and air to insure that
other significant environmental degradation and damage to the health and wel-
fare of man does not result.
"COMPREHENSIVE PROGRAMS FOB WATER poiitmoN CONTROL
SEC. 102. (a) The Administrator shall, after careful investigation, and in co-
operation with other Federal agencies, State water pollution control agencies,
interstate agencies, and the municipalities and industries involved, prepare or
develop comprehensive programs for abating or reducing the pollution of the
navigable waters and ground waters and improving the sanitary condition of
surface and underground waters. In the development of such comprehensive pro-
grams due regard shall be given to the improvements which are necessary to
conserve such waters for public water supplies, propagation of fish and aquatic
life and wildlife, recreational purposes, and agricultural, industrial, and other
legitimate uses. For the purpose of this section, the Administrator is authorized
to make joint investigations with any such agencies of the condition of any waters
in any State or States, and of the discharges of any sewage, industrial wastes, or
substance which may adversely affect such waters.
" (b) (1) In the survey or planning of any reservoir by the Corps of Engineers,
Bureau of Reclamation, or other Federal agency, consideration shall be given to
inclusion of storage for regulation of streamflow for the purpose of water quality
control, except that any such storage and water releases shall not be provided as
a substitute for adequate treatment or other methods of controlling waste at the
source.
"(2) The need for and the value of storage for this purpose shall be determined
by these agencies, with the advice of the Administrator, and his views on these
matters shall be set forth in any report or presentation to the Congress pro-
posing authorization or construction of any reservoir including such storage.
"(3) The value of such storage shall be taken into account in determining the
economic value of the entire project of which it is a part, and costs shall be
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WATER—STATUTES AND LEGISLATIVE HISTORY 207
allocated to the purpose of water quality control in a manner which will insure
that all project purposes share equitably in the benefits of multiple-purpose
construction.
"(4) Costs of water quality control features incorporated in any Federal
reservoir or other impoundment under the provisions of this Act shall be deter-
mined and the beneficiaries identified and if the benefits are widespread or
national in scope, the costs of such features shall be npnreimburseable.
"(5) No license granted by the Federal Power Commission for a hydroelectric
[x>wer project shall include storage for regulation of streamflow for the purpose
of water quality control unless the Administrator shall recommend its inclusion
and such reservoir storage capacity shall not exceed such proportion of the total
storage required for the water quality control plan as the drainage area of such
reservoir bears to the drainage area of the river basin or basins involved in such
water quality control plan.
"(c) (1) The Administrator shall, at the request of the Governor of a State,
or a majority of the Governors when more than one State is involved, make a
grant to pay not to exceed 50 per centum of the administrative expenses of a
planning agency for a period not to exceed three years, which period shall begin
after the date of enactment of the Federal Water Pollution Control Act Amend-
ments of 1972, if such agency provides for adequate representation of appropriate
State, interstate, local, or (when appropriate) international interests in the
basin or portion thereof involved and is capable of developing an effective, com-
prehensive water quality control and abatement plan for a basin or portion
(hereof.
"(2) Each planning agency receiving a grant under this subsection shall de-
velop a comprehensive pollution control and abatement plan for the basin or
portion thereof which—
"(A) is consistent with any applicable water quality standards, effluent
and other limitations, and thermal discharge regulations established pur-
suant to current law within the basin ;
"(B) recommends such treatment works as will provide the most effective
and economical means of collection, storage, treatment, and elimination of
pollutants and recommends means to encourage both municipal and indus-
trial use of such works;
"(C) recommends maintenance and improvement of water quality within
the basin or portion thereof and recommends methods of adequately financing
those facilities as may be necessary to implement the plan ; and
"(D) as appropriate, is developed in cooperation with, and is consistent
with any comprehensive plan prepared by the Water Resources Council any
areawide waste management plans developed pursuant to section 208 of this
Act, and any State plan developed pursuant to section 303 (e) of this Act.
"(3) For the purposes of this subsection the term 'basin' includes, but is not
limited to, rivers and their tributaries, streams, coastal waters, sounds, estuaries,
bays, lakes, and portions thereof, as well as the lands drained thereby.
"INTERSTATE COOPERATION AND UNIFORM LAWS
"SEC. 103. (a) The Administrator shall encourage cooperative activities by the
States for the prevention and abatement of pollution, encourage the enactment
of improved and, so far as practicable, uniform State laws relating to the preven-
tion and abatement of pollution; and encourage compacts between States for the
prevention and control of pollution.
"(b) The consent of the Congress is hereby given to two or more States to ne-
gotiate and enter into agreements or compacts, not in conflict with any law or
treaty of the United States, for (1) cooperative effort and mutual assistance for
the prevention and control of pollution and the enforcement of their respective
laws relating thereto, and (2) the establishment of such agencies, joint or other-
wise, as they may deem desirable for making effective such agreements and com-
pacts. No such agreement or compact shall be binding or obligatory upon any
State a party thereto unless and until it has been approved by the Congress.
"RESEARCH, INVESTIGATIONS, TRAINING, AND INFORMATION
"SEC. 104. (a) The Administrator shall establish national programs for
the prevention and abatement of pollution and as part of such program shall—
"(1) in cooperation with other Federal, State and local agencies, con-
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208 LEGAL COMPILATION—SUPPLEMENT I
duct, and promote the coordination and acceleration of, research, investi-
gations, experiments, training, demonstrations, surveys, and studies re-
lating to the causes, effects, extent, prevention, and abatement of polution;
"(2) encourage, cooperate with, and render technical services to pollu-
tion control agencies and other appropriate public or private agencies, in-
stitutions, and organizations, and individuals, including the general public,
in the conduct of activities referred to in paragraph (1) of this subsection;
"(3) conduct, in cooperation with State water pollution control agencies
and other interested agencies, organizations and persons, public investiga-
tions concerning the pollution of any navigable waters, and report on the
results of such investigations;
"(4) establish advisory committees composed of recognized experts in
various aspects of pollution and representatives of the public to assist in
the examination and evaluation of research progress and proposals and
to avoid duplication of research ;
"(5) in cooperation with the States, and their political subdivisions, and
other Federal agencies establish, equip, and maintain a water quality sur-
veillance system for the purpose of monitoring the quality of the navigable
waters and ground waters and the contiguous zone and the oceans and the
Administrator shall, to the extent practicable, conduct such surveillance by
utilizing the resources of the National Aeronautics and Space Administration.
the National Oceanic and Atmospheric Administration, and the Coast Guard,
and shall report on such quality in the report required under subsection
(a) of section 516; and
"(6) initiate, and promote the coordination and acceleration of research
designed to develop the most effective practicable tools and techniques for
measuring the social and economic costs and benefits of activities which are
subject to regulations under this Act; and shall transmit a report on the
results of such research to the Congress not later than July 1, 1973.
"(b) In carrying out the provisions of subsection (a) of this section the
Administrator is authorized to—
"(1) collect and make available, through publications and other appro-
priate means, the results of and other information, including appropriate
recommendations by him in connection therewith, pertaining to such research
and other activities referred to in paragraph (1) of subsection (a) ;
"(2) cooperate with other Federal departments and agencies, State water
polution control agencies, interstate agencies, and other public and private
agencies, institutions, organizations, industries involved, and individuals,
in the preparation and conduct of such research and other activities referred
to in paragraph (1) of subsection (a) ;
"(3) make grants to State water pollution control agencies, interstate
agencies, other public or nonprofit private agencies, institutions, organiza-
tions, and individuals, for purposes stated in paragraph (1) of subsection (a)
of this section;
"(4) contract with public or private agencies, institutions, organizations,
and individuals, without regard to sections 3648 and 3709 of the Revised
Statutes (31 U.S.C. 529; 41 U.S.C. 5), referred to in paragraph (1) of sub-
section (a) ;
"(5) to establish and maintain research fellowships at public or nonprofit
private educational institutions or research with other Federal depart-
"(6) collect and disseminate, in cooperation with other Federal depart-
ments and agencies, and with other public or private agencies, institutions,
and organizations having related responsibilities, basic data on chemical,
physical, and biological effects of varying water quality and other informa-
tion pertaining to pollution and the prevention and abatement thereof; and
"(7) develop effective and practical processes, methods, and prototype
devices for the prevention or abatement of pollution.
" (c) In carrying out the provisions of subsection (a) of this section the Admin-
istrator shall conduct research on, and survey the results of other scientific
studies on, the harmful effects on the health or welfare of persons caused by
pollutants. In order to avoid duplication of effort, the Administrator shall, to the
extent practicable, conduct such research in cooperation with and through the
facilities of the Secretary of Health, Education, and Welfare.
"(d) In carrying out the provisions of tbis section the Administrator shall
develop and demonstrate under varied conditions (including conducting such
basic and applied research, studies, and experiments as may be necessary) :
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WATER—STATUTES AND LEGISLATIVE HISTORY 209
"(1) Practicable means of treating municipal sewage and other waterborne
wastes to remove the maximum possible amounts of pollutants in order to
restore and maintain the maximum amount of the Nation's water at a quality
suitable for repeated reuse;
"(2) Improved methods and procedures to identify and measure the
effects of pollutants on water uses, including those pollutants created by
new technological developments; and
"(3) Methods and procedures for evaluating the effects on water quality
and water uses of augmented streamflows to control pollution not sus-
ceptible to other means of abatement.
"(e) The Administrator shall establish, equip, and maintain field laboratory
and research facilities, including, but not limited to, one to be located in the
northeastern area of the United States, one in the Middle Atlantic area, one in
the southeastern area, one in the midwestern area, one in the southwestern area,
one in the Pacific Northwest, and one in the State of Alaska, for the conduct
of research, investigations, experiments, field demonstrations and studies, and
training relating to the prevention and control of pollution. Insofar as practi-
cable, each such facility shall be located near institutions of higher learning
in which graduate training in such research might be carried out.
"(f) The Administrator shall conduct research and technical development
work, and make studies, with respect to the quality of the waters of the Great
Lakes, including an analysis of the present and projected future water quality
of the Great Lakes under varying conditions of waste treatment and disposal,
an evaluation of the water quality needs of those to be served by such waters, an
evaluation of municipal, industrial, and vessel waste treatment and disposal
practices with respect to such waters, and a study of alternate means of
solving pollution problems (including additional waste treatment measures)
with respect to such waters.
"(g)(l) For the purpose of providing an adequate supply of trained per-
sonnel to operate and maintain existing and future treatment works and
related activities, and for the purpose of enhancing substantially the pro-
ficiency of those engaged in such activities, the Administrator shall finance
pilot programs, in cooperation with State and interstate agencies, municipalities,
educational institutions and other organizations and individuals of manpower
development and training and retraining of persons in, on entering into, the
field of operation and maintenance of treatment works and related activities.
Such program and any funds expended for such a program shall supplement,
not supplant, other manpower and training programs and funds available for
the purposes of this paragraph. The Administrator is authorized, under such
terms and conditions as he deems appropriate, to enter into agreements with
one or more States, acting jointly or severally, or with other public or private
agencies or institutions for the development and implementation of such a
program.
"(2) The Administrator is authorized to enter into agreements with public
and private agencies and institutions, and individuals to develop and maintain
an effective system for forecasting the supply of, and demand for, various pro-
fessional and other occupational categories needed for the prevention, control,
and abatement of pollution in each region. State, or area of the United States
and. from time to time, to publish the results of such forecasts.
"(3) In furtherance of the purposes of this Act. the Administrator is au-
thorized to—
"(A) make grants to public or private agencies and institutions and to
individuals for training projects, and provide for the conduct of training
by contract with public or private agencies and institutions and with indi-
viduals without regard to sections 3648 and 3709 of the Revised Statutes;
"(B) establish and maintain research fellowships in the Environmental
Protection Agency with such stipends and allowances, including traveling
and subsistence expenses, as he may deem necessary to procure the assist-
ance of the most promising research fellowships; and
"(C) provide, in addition to the program established under paragraph (1)
of this subsection, training in technical matters relating to the causes, pre-
vention, and control of pollution for personnel of public agencies and other
persons with suitable qualifications.
"(4) The Administrator shall submit, through the President, a report to the
Congress not later than December 31. 1973, summarizing the actions taken under
this subsection and the effectiveness of such actions, and setting forth the num-
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210 LEGAL COMPILATION—SUPPLEMENT I
ber of persons trained, the occupational categories for which training was pro-
vided, the effectiveness of other Federal, State, and local training programs in
this field, together with estimates of future needs, recommendations on im-
proving training programs, and such other information and recommendations,
including legislative recommendations, as he deems appropriate.
"(h) The Administrator is authorized to enter into contracts with, or make
grants to, public or private agencies and organizations and individuals for (A)
the purpose of developing and demonstrating new or improved methods for the
prevention, removal, and abatement of pollution in lakes, including the unde-
sirable effects of nutrients and vegetation, and (B) the construction of publicly
owned research facilities for such purpose.
"(i) The Administrator, in cooperation with the Secretary of the depart-
ment in which the Coast Guard is operating, shall—
"(1) engage in such research, studies, experiments, and demonstrations as
he deems appropriate, relative to the removal of oil from any waters and to
the prevention, control, and elimination of oil and hazardous substances
pollution;
"(2) publish from time to time the results of such activities; and
"(3) from time to time, develop and publish in the Federal Register speci-
fications and other technical information on the various chemical compounds
used in the control of oil and hazardous substances spills.
In carrying out this subsection, the Administrator may enter into contracts with,
or make grants to, public or private agencies and organizations and individuals.
"(j) The Secretary of the department in which the Coast Guard is operating
shall engage in such research, studies, experiments, and demonstrations as he
deems appropriate relative to equipment which is to be installed on board a vessel
and is designed to receive, retain, treat, or discharge human body wastes and the
wastes from toilets and other receptacles intended to receive or retain body
wastes with particular emphasis on equipment to be installed on small recre-
ational vessels. The Secretary of the department in which the Coast Guard is
operating shall report to Congress the results of such research, studies, experi-
ments, and demonstrations prior to the effective date of any regulations estab-
lished under section 312 of this Act. In carrying out this subsection the Secretary
of the department in which the Coast Guard is operating may enter into contracts
with, or make grants to, public or private organizations and individuals.
"(k) In carrying out the provisions of this section relating to the conduct by
the Administrator of demonstration projects and the development of field labora-
tories and research facilities, the Administrator may acquire land and interests
therein by purchase, with appropriated or donated funds, by donation, or by
exchange for acquired or public lands under his jurisdiction which he classifies
as suitable for disposition. The values of the properties so exchanged either shall
be approximately equal, or if they are not approximately equal, the values shall
be equalized by the payment of cash to the grantor or to the Administrator as
the circumstances require.
"(1)(1) The Administrator shall, after consultation with appropriate local,
State, and Federal agencies, public and private -organizations, and interested
individuals, as soon as practicable but not later than October 3, 1972, develop
and issue to the States for the purpose of carrying out this Act the latest scien-
tific knowledge available in indicating the kind and extent of effects on health
and welfare which may be expected from the presence of pesticides in the water
in varying quantities. He shall revise and add to such information whenever
necessary to reflect developing scientific knowledge.
"(2) The President shall, in consultation with appropriate local, State, and
Federal agencies, public and private organizations, and interested individuals.
conduct studies and investigations of methods to control the release of pesticides
into the environment which study shall include examination of the persistency of
pesticides in the water environment and alternatives thereto. The President shall
submit reports, from time to time, on such investigations to Congress together
with his recommendations for any necessary legislation.
"(m) (1) The Administrator shall, in an effort to prevent degradation of the
environment from the disposal of waste oil, conduct a study of (A) the genera-
tion of used engine, machine, cooling, and similar waste oil, including quantities
generated, the nature and quality of such oil, present collecting methods and dis-
posal practices, and alternative uses of such oil; (B) the long-term, chronic
biological effects of the disposal of such waste oil; and (C) the potential market
for such oils, including the economic and legal factors relating to the sale of prod-
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WATER—STATUTES AND LEGISLATIVE HISTORY 211
ucts made from such oils, the level of subsidy, if any, needed to encourage the
purchase by public and private nonprofit agencies of preducts from such oil, and
the practicability of Federal procurement, on a priority basis, of products made
from such oil. In conducting such study, the Administrator shall consult with
affected industries and other persons.
"(2) The Administrator shall report the results of such study to the Congress
within 18 months after the date of enactment of the Federal Water Pollution
Control Act Amendments of 1972.
"(n) (1) The Administrator shall, in cooperation with the Secretary of the
Army, the Secretary of Agriculture, the Water Resources Council, and with other
appropriate Federal, State, interstate, or local public bodies and private organi-
zations, institutions, and individuals, conduct and promote, and encourage con-
tributions to, continuing comprehensive studies of the effects of pollution, includ-
ing sedimentation, in the estuaries and estuarine zones of the United States on
fish and wildlife, on sport and commercial fishing, on recreation, on water sup-
ply and water power, and on other beneficial purposes. Such studies shall also
consider the effect of demographic trends, the exploitation of mineral resources
and fossil fuels, land and industrial development, navigation, flood and erosion
control, and other uses of estuaries and estuarine zones upon the pollution of the
waters therein.
"(2) In conducting such studies, the Administrator shall assemble, coordinate,
and organize all existing pertinent information on the Nation's estuaries and
estuarine zones; carry out a program of investigations and surveys to supple-
ment existing information in representative estuaries and estuarine zones; and
identify the problems and areas where further research and study are required.
"(3) The Administrator shall submit to Congress, from time to time, reports
of the studies authorized by this subsection but at least one such report during
any three year period. Copies of each such report shall be made available to all
interested parties, public and private.
"(4) For the purpose of this subsection, the term 'estuarine zones' means
an environmental system consisting of an estuary and those transitional areas
which are consistently influenced or affected by water from an estuary such
as, but not limited to, salt marshes, coastal and intertidal areas, bays, harbors,
lagoons, inshore waters, and channels, and the term 'estuary' means all or part
of the mouth of a river or stream or other body of water having unimpaired
natural connection with open sea and within which the sea water is measurably
diluted with fresh water derived from land drainage.
"(o)(l) The Administrator shall conduct research and investigations on de-
vices, systems, incentives, pricing policy, and other methods of reducing the
total flow of sewage, including, but not limited to, unnecessary water consump-
tion in order to reduce the requirements for, and the costs of, sewage and
waste treatment services. Such research and investigations shall be directed to
develop devices, systems, policies, and methods capable of achieving the maximum
reduction of unnecessary water consumption.
"(2) The Administrator shall report the preliminary results of such studies
and investigations to the Congress within one year after the date of enactment
of the Federal Water Pollution Control Act Amendments of 1972, and annually
thereafter in the report required under subsection (a) of section 516. Such report
shall include recommendations for any legislation that may be required to pro-
vide for the adoption and use of devices, systems, policies, or other methods of
reducing water consumption and reducing the total flow of sewage. Such report
shall include an estimate of the benefits to be derived from adoption and use
of such devices, systems, policies, or other methods and also shall reflect esti-
mates of any increase in private, public, or other cost that would be occasioned
thereby.
"(p) In carrying out the provisions of subsection (a) of this section the Ad-
ministrator shall, in cooperation with the Secretary of Agriculture, other Fed-
eral agencies, and the States, carry out a comprehensive study and research
program to determine new and improved methods and the better application
of existing methods of preventing and abating pollution from agriculture, in-
cluding the legal, economic, and other implications of the use of such methods.
" (Q) (1) The Administrator shall conduct a comprehensive program of research
and investigation and pilot project implementation into new and improved meth-
ods of preventing, abating, reducing, storing, collecting, treating, or otherwise
eliminating pollution from sewage in rural and other areas where collection of
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212 LEGAL COMPILATION—SUPPLEMENT I
sewage in conventional, community-wide sewage collection systems is imprac-
tical, uneconomical, or otherwise infeasible, or where soil conditions or other
factors preclude the use of septic tank and drainage field systems.
"(2) The Administrator shall conduct a comprehensive program of research
and investigation and pilot project implementation into new and improved meth-
ods for the collection and treatment of sewage and other liquid wastes combined
with the treatment and disposal of solid wastes.
"(r) The Administrator is authorized to make grants to colleges and univer-
sities to conduct basic research into the structure and function of fresh water
aquatic ecosystems, and to improve understanding of the ecological characteris-
tics necessary to the maintenance of the chemical, physical, and biological integ-
rity of freshwater aquatic ecosystems.
"(s) The Administrator is authorized to make grants to one or more institu-
tions of higher education (regionally located and to be designated as 'River Study
Centers') for the purpose of conducting and reporting on interdisciplinary studies
on the nature of river systems, including hydrology, biology, ecology, economics,
the relationship between river uses and land uses, and the effects of development
within river basins on river systems and on the value of water resources and
water development activities. No such grant in any fiscal year shall exceed
$1,000,000.
"(t) The Administrator shall, in cooperation with State and Federal agencies
and public and private organizations, conduct continuing comprehensive studies
of the effects and methods of control of thermal discharges. In evaluating alter-
native methods of control the studies shall consider (1) their relative engineering
and technical feasibility, (2) their relative social and economic costs and benefits,
and (3) their relative impact on the environment, considering not only water
quality but also air quality, land use, and effective utilization and conservation
of natural resources. Such studies shall consider methods of minimizing adverse
effects and maximizing beneficial effects of thermal discharges. The results of
these studies shall be reported by the Administrator as soon as practicable,
but not later than one year after enactment of this subsection, and shall be made
available to the public and the States, and utilized by the Administrator in
proposing regulations with respect to thermal discharges under section 316 of
this Act.
"(u) There is authorized to be appropriated (1) $100,000,000 per fiscal year
for the fiscal year ending June 30, 1973, and the fiscal year ending June 30, 1974,
for carrying out the provisions of this section other than subsections (g), (p),
and (r) ; (2) not to exceed $7,500,000 for fiscal year 1973 for carrying out the
provisions of subsection (g) (1) ; (3) not to exceed $2.500,000 for fiscal year
1973 for carrying out the provisions of subsection (g) (2) ; (4) not to exceed
$10,000,000 for each of the fiscal years ending June 30, 1973, and June 30. 1974,
for carrying out the provisions of subsection (p) ; and not to exceed $15,000,000
per fiscal year for the fiscal years ending June 30, 1973, and June 30, 1974, for
carrying out the provisions of subsection (r).
"GRANTS FOB RESEARCH AND DEVELOPMENT
"SEC. 105. (a) The Administrator is authorized to conduct in the Environ-
mental Protection Agency, and to make grants to any State, municipality, or
intermunicipal or interstate agency for the purpose of assisting in the develop-
ment of—
"(1) any project which will demonstrate a new or improved method of
preventing and abating the discharge into any waters of pollutants from
sewers which carry storm water or both storm water and pollutants; or
"(2) any project which will demonstrate advanced waste treatment and
water purification methods (including the temporary use of new or improved
chemical additives which provide substantial immediate improvement to
existing treatment processes), or new or improved methods of joint treat-
ment systems for municipal and industrial wastes ;
and to include in such grants such amounts as are necessary for the purpose of
reports, plans, and specifications in connection therewith.
"(b) The Administrator is authorized to make grants to any State or States
or interstate agency to demonstrate, in river basins or portions thereof, advanced
pollution treatment and environmental enhancement techniques to control pol-
lution from all sources, within such basins or portions thereof, including non-
point sources, together with in-stream water quality improvement techniques.
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WATER—STATUTES AND LEGISLATIVE HISTORY 213
"(c) The Administrator is authorized to conduct in the Environmental Pro-
tection Agency, to make grants to, and to enter into contracts with, persons for
research and demonstration projects for prevention of pollution by industry
including, but not limited to, treatment of industrial waste. No grant shall be
made for any project under this subsection unless the Administrator determines
that such project will develop or demonstrate a new or improved method of
treating industrial wastes or otherwise prevent pollution, by industry, which
method shall have industrywide application.
"(d) In carrying out the provisions of this section, the Administrator shall
conduct, on a priority basis, an accelerated effort to develop, reflne, and achieve
practical application of:
"(1) waste management methods applicable to point and nonpoint sources
of pollutants to eliminate the discharge of pollutants, including, but not
limited to, elimination of runoff of pollutants and the effects of pollutants
from inplace or accumulated sources;
"(2) advanced waste treatment methods applicable to point and nonpoint
sources, including inplace or accumulated sources of pollutants, and methods
for reclaiming and recycling water and confining and containing pollutants
so they will not migrate to cause water or other environmental pollution;
and
"(3) improved methods and procedures to identify and measure the effects
of pollutants on the chemical, physical, and biological integrity of water,
including those pollutants created by new technological developments.
"(e) (1) The Administrator is authorized to (A) make, in consultation with
the Secretary of Agriculture, grants to persons for research and demonstration
projects with respect to new and improved methods of preventing and abating
pollution from agriculture, and (B) disseminate, in cooperation with the Sec-
retary of Agriculture, such information obtained under this subsection, section
104(p), and section 304 as will encourage and enable the adoption of such
methods in the agriculture industry.
"(2) The Administrator is authorized, (A) in consultation with other in-
terested Federal agencies, to make grants for demonstration projects with re-
spect to new and improved methods of preventing, abating, reducing, storing,
collecting, treating, or otherwise eliminating pollution from sewage in rural and
other areas where collection of sewage in conventional, community-wide sewage
collection systems is impractical, uneconomical, or otherwise infeasible, or where
soil conditions or other factors preclude the use of septic tank and drainage field
systems, and (B) in cooperation with other interested Federal and State agencies,
to disseminate such information obtained under this subsection as will encourage
and enable the adoption of new and improved methods developed pursuant to this
subsection.
"(f) Federal grants under subsection (a) of this section shall be subject to
the following limitations:
"(1) No grant shall be made for any project unless such project shall
have been approved by the appropriate State water pollution control agency
or agencies and by the Administrator:
"(2) No grant shall be made for any project in an amount exceeding 75
per centum of the cost thereof as determined by the Administrator; and
"(3) No grant shall be made for any project unless the Administrator
determines that such project will serve as a useful demonstration for the
purpose set forth in clause (1) or (2) of subsection (a).
"(g) Federal grants under subsections (e) and (d) of this section snail not
exceed 75 per centum of the cost of the project.
"(h) For the purpose of this section there is authorized to be appropriated
$70,000,000 per fiscal year for the fiscal year ending June 30, 1973, and the fiscal
year ending June 30, 1974, and from such appropriations at least 10 per centum
of the funds actually appropriated in each fiscal year shall be available only
for the purposes of subsection (e).
"GRANTS FOB POLLUTION CONTROL PROGRAMS
"SEC. 106. (a) There are hereby authorized to be appropriated the following
suma, to remain available until expended, to carry out the purposes of this
section—
" (1) $60,000,000 for the fiscal year ending June 30,1973; and
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523-310 0-73-15
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214 LEGAL COMPILATION—SUPPLEMENT I
" (2) $75,000,000 for the fiscal year ending June 30,1974;
for grants to States and to interstate agencies to assist them in carrying out
programs for the prevention and abatement of pollution.
"(b) From the sums appropriated in any fiscal year, the Administrator shall
make allotments to the several States and interstate agencies in accordance
with regulations promulgated by him on the basis of the extent of the polluion
problem in he respective States.
"(c) The Administrator is authorized to pay to each State and interstate
agency each fiscal year either—
"(1) the allotment of such State or agency for such fiscal year under
subsection (b), or
"(2) the reasonable costs as determined by the Administrator of develop-
ing and carrying out a pollution program by such State or agency during
such fiscal year,
whichever amount is the lesser.
"(d) No grant shall be made under this section to any State or interstate
agency for any fiscal year when the expenditure of non-Federal funds by such
State or interstate agency during such fiscal year for the recurrent expenses
of carrying out its pollution control program are less than the expenditure by
such State or interstate agency of non-Federal funds for such recurrent pro-
gram expenses during the fiscal year ending June 30,1971.
" (e) Grants shall be made under this section on condition that—
"(1) Such State (or interstate agency) files with the Administrator within
one hundred and twenty days after the date of enactment of this section :
"(A) a summary report of the current status of the State pollution control
program, including the criteria used by the State in determining priority
of treatment works; and
"(B) such additional information, data, and reports as the Administrator
may require.
"(2) No federally assumed enforcement as defined in section 300(a) (2) is in
effect with respect to such State or interstate agency.
"(3) Such State (or interstate agency) submits within one hundred and
twenty days after the date of enactment of this section and before July 1 of
each year thereafter for the Administrator's approval its program for the pre-
vention and abatement of pollution in accordance with purposes and provisions
of this Act in such form and content as the Administrator may prescribe.
"(f>) Any sums allotted under subsection (b) in any fiscal year which are
not paid shall be reallotted by the Administrator in accordance with regula-
tions promulgated by him.
"AREA ACID AND OTHER MINE WATER POLLUTION CONTROL DEMONSTRATIONS
"SEC. 107. (a) The Administrator in cooperation with other Federal depart-
ments, agencies, and instrumentalities is authorized to enter into agreements
with any State or interstate agency to carry out one or more projects to demon-
strate methods for the elimination or control, within all or part of a watershed,
of acid or other mine water pollution resulting from active or abandoned mines.
S.uch projects shall demonstrate the engineering and economic feasibility and
practicality of various abatement techniques which will contribute substan-
tially to effective and practical methods of acid or other mine water pollution
elimination or control, including techniques that demonstrate the engineering
and economic feasibility and practicality of using sewage sludge materials and
other municipal wastes to diminish or prevent pollution from acid, sedimentation,
or other water pollutants and to restore the lands on which such projects are
located to usefulness for forestry, agriculture, recreation, or other beneficial
uses.
"(b) The Administrator, in selecting watersheds for the purposes of this sec-
tion, shall (1) require such feasibility studies as he deems appropriate, (2)
give preference to areas which have the greatest present or potential value for
public use for recreation, fish and wildlife, water supply, and other public uses,
and (3) be satisfied that the project area will not be affected adversely by the
influx of acid or other mine water pollution from nearby sources.
"(c) Federal participation in such projects shall be subject to the conditions—
"(1) that the State or interstate agency shall pay not less than 25 per
centum of the actual project costs which payment may be in any form,
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WATER—STATUTES AND LEGISLATIVE HISTORY 215
including, but not limited to, land or interests therein that is needed for
the project, or personal property or services, the value of which shall be
determined by the Administrator; and
"(2) that the State or interstate agency shall provide legal and practical
protection to the project area to insure against any activities which will
cause future acid or other mine water pollution.
" (d) There is authorized to be appropriated $15,000,000 to carry out the provi-
sions of this section, which sum shall be available until expended. No more than
25 per centum of the total funds available under this section in any one year
shall be granted to any one State.
"POLLUTION CONTROL IN GREAT LAKES
"SEC. 108. (a) The Administrator in cooperation with other Federal depart-
ments, agencies, and instrumentalities is authorized to enter into agreements
with any State, political subdivision, interstate agency, or other public agency,
or combination thereof, to carry out one or more projects to demonstrate new
methods and techniques and to develop preliminary plans for the elimination
or control of pollution, within all or any part of the watersheds of the Great
Lakes. Such projects shall demonstrate the engineering and economic feasibility
and practicality of removal of pollutants and prevention of any polluting matter
from entering into the Great Lakes in the future and other abatement and
remedial techniques which will contribute substantially to effective and practical
methods of pollution elimination or control.
"(b) Federal participation in such projects shall be subject to the condition
that the State, political subdivision, interstate agency, or other public agency,
or combination thereof, shall pay not less than 25 per centum of the actual
project costs, which payment may be in any form, including, but not limited to,
land or interests therein that is needed for the project, and personal property
or services the value of which shall be determined by the Administrator.
" (c) There is authorized to be appropriated $20,000,000 to carry out the provi-
sions of subsections (a) and (b) of this section, which sum shall be available
until expended.
"(d) (1) In recognition of the serious conditions which exist in Lake Erie, the
Secretary of the Army, acting through the Chief of Engineers, is directed to
design and develon a demonstration waste water management program for the
rehabilitation and environmental repair of Lake Erie. Prior to the initiation of
detailed engineering and design, the program, along with the specific recom-
mendations of the Chief of Engineers, and recommendations for its financing,
shall be submitted to the Congress for statutory approval. This authority is in
addition to, and not in lieu of, other waste water studies aimed at eliminating
pollution emanating from select sources around Lake Erie.
"(2) This program is to be developed in cooperation with the Environmental
Protection Agency, other interested departments, agencies, and instrumentalities
of the Federal Government, and the States and their political subdivisions. This
program shall set forth alternative systems for managing waste water on a
regional basis and shall provide local and State governments with a range of
choice as to the type of system to be used for the treatment of waste water.
These alternative systems shall include both advanced waste treatment tech-
nology and land disposal systems including aerated treatment-spray irrigation
technology and will also include provisions for the disposal of solid wastes,
including sludge. Such program should include measures to control point sources
of pollution, area sources of pollution, including acid-mine drainage, urban runoff
and rural runoff, and sources of in-place pollutants, including bottom loads,
sludge banks, and polluted harbor dredgings.
"(e) There is authorized to be appropriated $5,000,000 to carry out the provi-
sions of subsection (d) of this section, which sum shall be available until
expended.
"TRAINING GRANTS AND CONTRACTS
"SEC. 109. The Administrator is authorized to make grants to or contracts
with institutions of higher education, or combinations of such institutions, to
assist them in planning, developing, strengthening, improving, or carrying out
programs or projects for the preparation of undergraduate students to enter an
occupation which involves the design, operation, and maintenance of treatment
works, and other facilities whose purpose is water quality control. Such grants or
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216 LEGAL COMPILATION—SUPPLEMENT I
contracts may include payment of all or part of the cost of programs or projects
such as—
"(A) planning for the development or expansion of programs or projects
for training persons in the operation and maintenance of treatment works ;
" (B) training and retraining of faculty members;
"(0) conduct of short-term or regular session institutes for study by per-
isons engaged in, or preparing to engage in, the preparation of students pre-
paring to enter an occupation involving the operation and maintenance of
treatment works;
"(D) carrying out innovative and experimental programs of cooperative
education involving alternate periods of full-time or part-time academic
study at the institution and periods of full-time or part-time employment
involving the operation and maintenance of treatment works; and
"(E) research into, and development of, methods of training students or
faculty, including the preparation of teaching materials and the planning of
curriculum.
"APPLICATION FOR TRAINING GRANT OR CONTRACT; ALLOCATION OF GRANTS
OR CONTRACTS
"SEC. 110. (1) A grant or contract authorized by sectiota 109 may be made only
upon application to the Administrator at such time or times and containing such
information as he may prescribe, except that no such application shall be
approved unless it—
"(A) sets forth programs, activities, research, or development for which
a grant is authorized under section 109 and describes the relation to any
program set forth by the applicant in an application, if any, submitted
pursuant to section 111;
"(B) provides such fiscal control and fund accounting procedures as may
be necessary to assure proper disbursement of and accounting for Federal
funds paid to the applicant under this section; and
"(0) provides for making such reports, in such form and containing such
information, as the Administrator may require to carry out his functions
under this section, and for keeping such records and for affording such
access thereto as the Administrator may find necessary to assure the
correctness and verification of such reports.
"(2) The Administrator shall allocate grants or contracts under section 109 in
such manner as will most nearly provide an equitable distribution of the grants
or contracts throughout the United States among institutions of higher education
which show promise of being able to use funds effectively for the purpose of this
section.
"(3) (A) Payment under this section may be used in accordance with regula-
tions of the Administrator, and subject to the terms and conditions set forth
in an application approved under subsection (a), to pay part of the compensa-
tion of students employed in connection with the operation and maintenance
of treatment works, other than as an employee in connection with the operation
and maintenance of treatment works or as an employee in any branch of the
Government of the United States, as part of a program for which a grant has
been approved pursuant to this section.
"(B) Departments and agencies of the United States are encouraged, to the
extent consistent with efficient administration to enter into arrangements with
institutions of higher education for the full-time, part-time, or temporary employ-
ment, whether in the competitive or excepted service, of students enrolled in
programs set forth in applications approved under subsection (a).
"AWARD OF SCHOLARSHIPS
"SEC. 111. (1) The Administrator is authorized to award scholarships in ac-
cordance with the provisions of this section for undergraduate study by persons
who plan to enter an occupation involving the operation and maintenance of
treatment works. Such scholarships shall be awarded for such periods as the
Administrator may determine but not to exceed four academic years.
"(2) The Administrator shall allocate scholarships under this section among
institutions of higher education with programs approved under the provisions
of this section for the use of individuals accepted into such programs, in such
manner and according to such plan as will insofar as practicable—
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WATER—STATUTES AND LEGISLATIVE HISTORY 217
"(A) provide an equitable distribution of such scholarships throughout
the United States ; and
"(B) attract recent graduates of secondary schools to enter an occupa-
tion involving the operation and maintenance of treatment works.
"(3) The Administrator shall approve a program of any institution of higher
education for the purposes of this section only upon application by the institu-
tion and only upon his findings—
"(A) that such program has a principal objective the education and
training of persons in the operation and maintenance of treatment works;
"(B) that such program is in effect and of high quality, or can be readily
put into effect and may reasonably be expected to be of high quality;
"(C) that the application describes the relation of such program to any
program, activity, research, or development set forth by the applicant in
• an application, if any, submitted pursuant to section 110 of this Act; and
"(D) that the application contains satisfactory assurances that (i) the
institution will recommend to the Administrator for the award of scholar-
ships under this section, for study in such program, only persons who have
demonstrated to the satisfaction of the institution a serious intent, upon
completing the program, to enter an occupation involving the operation and
maintenance of treatment works, and (ii) the institution will make reason-
able continuing efforts to encourage recipients of scholarships under this
section, enrolled in such program, to enter occupations involving the opera-
tion and maintenance of treatment works upon completing the program.
"(4) (A) The Administrator shall pay to persons awarded scholarships under
this section such stipends (including such allowances for subsistence and other
expenses for such persons and their dependents) as he may determine to be con-
sistent with prevailing practices under comparable federally supported programs.
"(B) The Administrator shall (in addition to the stipends paid to persons
under subsection (a)) pay to the institution of higher education at which such
person is pursuing his course of study such amount as he may determine to be
consistent with prevailing practices under comparable federally supported
programs.
"(5) A person awarded a scholarship under the provisions of this section
shall continue to receive the payments provided in this section only during such
periods as the Administrator finds that he is maintaining satisfactory proficiency
and devoting full time to study or research in the field in which such scholarship
was awarded in an institution of higher education, and is not engaging in gain-
ful employment other than employment approved by the Administrator by or
pursuant to regulation.
"(6) The Administrator shall by regulation provide that any person awarded
a scholarship under this section shall agree in writing to enter and remain in an
occupation involving the design, operation, or maintenance of treatment works
for such period after completion of his course of studies as the Administrator
determines appropriate.
"DEFINITIONS ANn AUTHORIZATIONS
"SEC. 112. (a) As used in sections 109 through 112 of this Act—
"(1) The term 'institution of higher education' means an educational institu-
tion described in the first sentence of section 1201 of the Higher Education Act
of 1965 (other than an institution of any agency of the United States) which is
accredited by a nationally recognized accrediting agency or association ap-
proved by the Administrator for this purpose. For purposes of this subsection,
the Administrator shall publish a list of nationally recognized accrediting agen-
cies or associations which he determines to be reliable authority as to the quality
of training offered.
"(2) The term 'academic year' means an academic year or its equivalent, as
determined by the Administrator.
"(b) The Administrator shall annually report his activities under sections 109
through 112 of this Act, including recommendations for needed revisions in the
provisions thereof.
"(c) There are authorized to be appropriated $25,000,000 per fiscal year for
the fiscal years ending June 30, 1973, and June 30, 1974, to carry out sections
109 through 112 of this Act.
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218 LEGAL COMPILATION—SUPPLEMENT I
"ALASKA VILLAGE DEMONSTRATION PROJECTS
"SEC. 113. (a) The Administrator is authorized to enter into agreements with
the State of Alaska to carry out one or more projects to demonstrate methods
to provide for central community facilities for safe water and elimination or
control of pollution in those native villages of Alaska without such facilities.
Such project shall include provisions for community safe water supply systems,
toilets, bathing and laundry facilities, sewage disposal facilities, and other sim-
ilar facilities, and educational and informational facilities and programs relating
to health and hygiene. Such demonstration projects shall be for the further pur-
pose of developing preliminary plans for providing such safe water and such
elimination or control of pollution for all native villages in such. State.
"(b) In carrying out this section the Administrator shall cooperate with the
Secretary of Health, Education, and Welfare for the purpose of utilizing such of
the personnel and facilities of that Department as may be appropriate.
"(c) The Administrator shall report to Congress not later than January 31,
1974, the results of the demonstration projects authorized by this section together
with his recommendations, including any necessary legislation, relating to the
establishment of a statewide program.
"(d) There is authorized to be appropriated not to exceed $2,000,000 to carry
out this section.
"ECONOMIC GROWTH CENTERS
"SEC. 114. In the case of any economic growth center designated under section
143 of title 23, United States Code, the Administrator is authorized to make a
supplemental grant to such center in any case where such center receives a grant
for construction of treatment works under this Act. Such supplemental grant
shall be for such percentage of the costs of such works as the Administrator
determines. There is authorized to be appropriated to carry out this section not
to exceed $5,000,000.
"TITLE II—GRANTS FOR CONSTRUCTION OF TREATMENT WORKS
"PURPOSE
"Sec. 201. (a) It is the purpose of this title to require, and to assist the devel-
opment and implementation of, waste treatment management plans and practices.
"(b) Waste treatment management plans and practices shall provide for the
application of the best practicable waste treatment technology before any dis-
charge into receiving waters, including reclaiming and recycling of water, and
confined disposal of pollutants so they will not migrate to cause water or other
environmental pollution and shall provide for consideration of advanced waste
treatment technology and aerated treatment-spray-irrigation technology.
"(c) To the extent practicable, waste treatment management shall be on an
areawide basis and provide control or treatment of all point and nonpoint sources
of pollution, including in place or accumulated pollution sources.
"(d)(l) The Administrator is authorized to make grants to any State, mu-
nicipality, or intermunicipal or interstate agency for the construction of pub-
licly owned treatment works.
"(2) The Administrator shall not make grants from funds authorized for any
fiscal year beginning after June 30. 1974, to any State, municipality, or inter-
municipal or interstate agency for the erection, building, acquisition, alteration,
remodeling, improvement, or extension of treatment works unless the grant ap-
plicant has satisfactorily demonstrated to the Administrator that—
"(A) alternative waste management techniques have been studied and
evaluated and the works proposed for grant assistance will provide for the
application of the best practicable waste treatment technology over the
life of the works consistent with the purposes of this title ; and
"(B) as appropriate, the works proposed for grant assistance will take
into account and allow to the extent practicable the application of tech-
nology at a later date which will provide for the reclaiming or recycling of
water or otherwise eliminate the discharge of pollutants.
"(3) The Administrator shall not approve any grant after July 1, 1973, for
treatment works under this section unless the applicant shows to the satisfac-
tion of the Administrator that each sewer collection system discharging into
such treatment works is not subject to excessive infiltration.
[p. 14]
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WATER—STATUTES AND LEGISLATIVE HISTORY 219
"(4) The Administrator is authorized to make grants to applicants for treat-
ment workers grants under this section for such sewer system evaluation studies
as may be necessary to carry out the requirements of paragraph (3) of this
subsection. Such grants shall be made in accordance with rules and regula-
tions promulgated by the Administrator. Initial rules and regulations shall be
promulgated under this paragraph not later than 120 days after the date of
enactment of the Federal Water Pollution Control Act Amendments of 1972.
"FEDERAL SHARE
"SEC. 202. (a) The amount of any grant for treatment works made under
this Act from funds authorized for any fiscal year beginning after June 30,
1971, shall be 60 per centum of the cost of construction thereof (as approved by
the Administrator) ; except that the amount of such grant shall be increased
to 75 per centum of such cost if the State agrees to pay at least 15 per centum of
the cost of construction of each treatment works for which Federal grants are to
be made from funds allocated to such State for such fiscal year. Any grant (other
than for reimbursement) made prior to the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972 from any funds authorized for
any fiscal year beginning after June 30, 1971, shall, upon the request of the ap-
plicant, be increased to the applicable percentage under this section.
"(b) The amount of the grant for any project approved by the Administrator
after January 1, 1971, and before July 1, 1971, for the construction of treatment
works, the actual erection, building or acquisition of which was not commenced
prior to July 1, 1971, shall, upon the request of the applicant, be increased to the
applicable percentage under subsection (a) of this section for grants for treat-
ment works from funds for fiscal years beginning after June 30, 1971, with re-
spect to the cost of such actual erection, building, or acquisition. Such increased
amount shall be paid from any funds allocated to the State in which the
treatment works is located without regard to the fiscal year for which such funds
were authorized. Such increased amount shall be paid for such project only if—
"(1) a sewage collection system that is a part of the same total waste
treatment system as the treatment works for which such grant was approved
is under consruction or is to be constructed for use in conjunction with
such treatment works, and if the cost of such sewage collection system
exceeds the cost of such treatment works, and
"(2) the State water pollution control agency certifies that the quantity
of available ground water will be insufficient to meet the future require-
ments for public water supply, unless effluents from publicly-owned treat-
ment works after adequate treatment, are injected into the ground to
replenish the supply of ground water.
"PLANS, SPECIFICATIONS, ESTIMATES, AND PAYMENTS
"SEC. 203. (a) Each applicant for a grant shall submit to the Administrator
for his approval, plans, specifications, and estimates for each proposed project
for the construction of treatment works for which a grant is applied for under
section 201 (d) (1) from funds allotted to the State under section 205 and which
otherwise meets the requirements of this Act. The Administrator shall act upon
such plans, specifications, and estimates as soon as practicable after the same
have been submitted, and his approval of any such plans, specifications, and
estimates shall be deemed a contractual obligation of the United States for the
payment of its proportional construction to such project.
"(b) The Administrator shall, from time to time as the work progresses, make
payments to the recipient of a grant for costs of construction incurred on a proj-
ect. These payments shall at no time exceed the Federal share of the cost of
construction incurred to the date of the voucher covering such payment plus the
Federal share of the value of the materials which have been stockpiled in the
vicinity of such construction in conformity to plans and specifications for the
project.
"(c) After completion of a project and approval of the final voucher by the
Administrator, he shall pay out of the appropriate sums the unpaid balance of
the Federal share payable on account of such project.
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220 LEGAL COMPILATION—SUPPLEMENT I
"LIMITATIONS AND CONDITIONS
"SEC. 204. (a) Before approving grants for any project for any treatment works
under section 201 (d) (1) the Administrator shall determine—
"(1) that such works are included in any applicable area wide waste
treatment management plan developed under section 208 of this Act;
"(2) that such works are in conformity with any applicable State plan
under section 303 (e) of this Act;
"(3) that such works have been certified by the appropriate State water
pollution control agency as entitled to priority over such other works in
the State in accordance with any applicable State plan under section 303(e)
of this Act;
"(4) that the applicant proposing to construct such works agrees to pay
the non-Federal costs of such works and has made adequate provisions
satisfactory to the Administrator for assuring proper and efficient operation,
including the employment of trained management and operations personnel,
and the maintenance of such works in accordance with a plan of operation
approved by the State water pollution control agency or, as appropriate,
the interstate agency, after construction thereof;
"(5) that the size and capacity of such works relate directly to the needs
to be served by such works, including sufficient reserve capacity. The amount
of reserve capacity provided shall be approved by the Administrator on the
basis of a comparison of the cost of constructing such reserves as a part of
the works to be funded and the anticipated cost of providing expanded
capacity at a date when such capacity will be required ;
"(6) that no specification for bids in connection with such works shall be
written in such a manner as to contain proprietary, exclusionary, or discrimi-
natory requirements other than those based upon performance, unless such
requirements are necessary to test or demonstrate a specific thing or to pro-
vide for necessary interchangeability of parts and equipment, or at least
two brand names or trade names of comparable quality or utility are listed
and are followed by the words 'or equal'.
"(b) (1) Notwithstanding any other provision of this title, the Administrator
shall not approve any grant for any treatment works under section 201 (d) (1)
after June 30, 1973, unless he shall first have determined that the applicant (A)
has adopted or will adopt a system of charges to assure that each recipient of
waste treatment services within the applicant's jurisdiction, as determined by
the Administrator, will pay its proportionate share of the costs of operation, main-
tenance (including replacement), and expansion of any waste treatment services
provided by the applicant; (B) has made provision for the payment to such
applicant by the industrial users of the treatment works, of that portion of the
cost of construction of such treatment works (as determined by the Administra-
tor) which is allocable to the treatment of such industrial wastes to the extent
attributable to the Federal share of the cost of construction; and (C) has legal,
institutional, management, and financial capability to insure adequate construc-
tion, operation, maintenance, and expansion of treatment works throughout the
applicant's jurisdiction, as determined by the Administrator.
"(2) The Administrator shall, within one hundred and eighty days after
the date of enactment of the Federal Water Pollution Control Act Amendments
of 1972, and after consultation with appropriate State, interstate, municipal,
and intermunicipal agencies, issue guidelines applicable to payment of waste
treatment costs by industrial and nonindustrial recipients of waste treatment
services which shall establish (A) classes of users of such services, including
categories of industrial users; (B) criteria against which to determine the
adequacy of charges imposed on classes and categories of users reflecting all
factors that influence the cost of waste treatment, including strength, volume,
and delivery flow rate characteristics of waste; and (C) model systems and
rates of user charges typical of various treatment works serving municipal-
industrial communities.
"(3) Revenues derived from the payment of costs by industrial users of waste
treatment services to the extent costs are attributable to the Federal share of
eligible project costs provided pursuant to this title, as determined by the Ad-
ministrator, shall be retained by the grantee for use solely for the operation,
maintenance, expansion, and construction of treatment works which are publicly
owned, in accordance with regulations promulgated by the Administrator.
[p. 16]
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WATER—STATUTES AND LEGISLATIVE HISTORY 221
"(4) Approval by the Administrator of a grant to an interstate agency estab-
lished by interstate compact for any treatment works shall satisfy any other
requirement that such works be authorized by Act of Congress.
"ALLOTMENT
"SEC. 205. (a) All sums authorized to be appropriated pursuant to section 207
for each fiscal year beginning after June 30, 1972, shall be allotted by the
Administrator not later than the January 1st immediately preceding the begin-
ning of the fiscal year for which authorized, except that the allotment for fiscal
year 1973 shall be made not later than 30 days after the date of enactment of
the Federal Water Pollution Control Act Amendments of 1972. Such sums shall
be allotted among the States by the Administrator in accordance with regula-
tions promulgated by him, in the ratio that the estimated cost of constructing all
needed publicly owned treatment works in each State bears to the estimated
cost of construction of all needed publicly owned treatment works in all of the
States. For the fiscal years ending June 30, 1973, and June 30, 1974, such ratio
stoall be determined on the basis of the table on page 18 of volume I of Senate
Document 92-23 entitled 'The Cost of Clean Water'. Allotments for fiscal years
which begin after the fiscal year ending June 30, 1974, shall be made only
in accordance with a revised cost estimate made and submitted to Congress in
accordance with section 516(b) of this Act and only after such revised cost
estimate shall have been approved by law specifically enacted hereafter.
"(b)(l) Any sums allotted to a State under subsection (a) shall be avail-
able for obligation under section 203 on and after the date of such allotment. Such
sums shall continue available for obligation in such State for a period of one year
after the close of the fiscal year for which such sums are authorized. Any amounts
so allotted which are not obligated by the end of such one year period shall be
immediately reallotted by the Administrator, in accordance with regulations
promulgated by him, generally on the basis of the ratio used in making the last
allotment of sums under this section. Such reallotted sums shall be added to the
last allotments made to the States. Any sum made available to a State by reallot-
inent under this subsection shall be in addition to any funds otherwise allotted
to such State for grants under this title during any fiscal year.
"(2) Any sums which have been obligated under section 203 and which are re-
leased by the payment of the final voucher for the project shall be immediately
credited to the State to which such sums were last allotted. Such released sums
shall be added to the amounts last allotted to such State and shall be immediately
available for obligation in the same manner and to the same extent as such last
allotment
"REIMBURSEMENT AND ADVANCED CONSTRUCTION
"SEC. 206. (a) Any publicly owned treatment works in a State on which con-
struction was initiated after June 30, 1966, but before July 1, 1971, which was
approved by the appropriate State water pollution control agency and which the
Administrator finds an application was made prior to initiation of construction
for financial assistance under this Act and which the Administrator finds meets
the requirements of section 8 of this Act in effect at the time of the initiation of
construction but which was constructed (1) without financial assistance author-
ized by such section 8 solely because of the lack of Federal funds or (2) with
financial assistance authorized by such section 8 but in a lesser percentage of the
cost of construction than authorized by such section 8 shall qualify for payment
and reimbursement of State or local funds used or committed (including retro-
active use or commitment of State funds) for such project prior to July 1, 1974,
from sums allocated to such State under this section for any fiscal year ending
prior to July 1, 1974, to the maximum extent that assistance could have been pro-
vided under such section 8 and for which it would have qualified if such project
had been approved thereunder and adequate funds had been available (including
retroactive State participation).
"(b) Any publicly owned treatment works constructed with or eligible for
Federal financial assistance under this Act in a State 'between June 30, 1956,
and June 30, 1966, which was approved by the State water pollution control
agency and which the Administrator finds meets the requirements of section 8
of this Act immediately prior to the date of enactment of the Federal Water
Pollution Control Act Amendments of 1972 but which was constructed without
[p. IT]
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222 LEGAL COMPILATION—SUPPLEMENT I
assistance under such section 8 or which received such assistance in an amount
less than 30 per centum of the cost of such project shall qualify for payments
and reimbursement of State or local funds used for such project from sums
allocated to such State under this section in an amount which shall not exceed
the difference between the amount of such assistance, if any, received for such
project and 30 per centum of the cost of such project.
"(c) There is authorized to be appropriated to carry out subsection (a) of
this section not to exceed $2,000,000,000 and, to carry out subsection (b) of this
section, not to exceed $750,000,000. The authorizations contained in this sub-
section shall be the sole source of funds for reimbursements authorized by this
section.
"(d) (1) In any case where all funds alloted to a State under this title have
been obligated under section 203 of this Act, and there is construction of any
treatment works project without the aid of Federal funds and in accordance
with all procedures and all requirements applicable to treatment works proj-
ects, except those procedures and requirements which limit construction of
projects to those constructed with the aid of previously allotted Federal funds,
the Administrator, upon his approval of an application made under this sub-
section therefor, is authorized to pay the Federal share of the cost of construc-
tion of such project when additional funds are alloted to the State under this
title if prior to the construction of the project the Administrator approves plans,
specifications, and estimates therefor in the same manner as other treatment
works projects. The Administrator may not approve an application under this
subsection unless an authorization is in effect for the future fiscal year for
which the application requests payment, which authorization will insure such
payment without exceeding the State's expected allotment from such author-
ization.
"(2) In determining the allotment for any fiscal year under this title, any
treatment works project constructed in accordance with this section and without
t'he aid of Federal funds shall not be considered completed until an application
under the provisions of this subsection with respect to such project has been
approved by the Administrator, or the availability of funds from which this
project is eligible for reimbursement has expired, whichever first occurs.
"AUTHOBIZATION
"SEC. 207. There is authprized to be appropriated to carry out this title, other
than section 208 and 209, for the fiscal year ending June 30, 1973, $5,000,000,000,
for the fiscal year ending June 30, 1974, $6,000,000,000, and for the fiscal year
ending June 30,1975, $7,000,000,000.
"ABEAWIDE WASTE TBEATMENT MANAGEMENT
"SEC. 208. (a) For the purpose of encouraging and facilitating the development
and implementation of areawide waste treatment management plans—
"(1) The Administrator, within ninety days after the date of enactment
of this Act and after consultation with appropriate Federal, State, and local
authorities, shall by regulation publish guidelines for the identification of
those areas which, as a result of urban-industrial concentrations or other
factors, have substantial water quality control problems.
"(2) The Governor of each State, within sixty days after publication of
the guidelines issued pursuant to paragraph (1) of this subsection, shall
identify each area within the State which, as a result of urban-industrial
concentrations or other factors, has substantial water quality control prob-
lems. Not later than one hundred and twenty days following such identifica-
tion and after appropriate consultation with the officials of all local govern-
ments having jurisdiction in such areas, the Governor shall designate (A)
the boundaries of each such area, and (B) a single representative organ-
ization capable of developing effective areawide waste treatment manage-
ment plans for such area. The Government may in the same manner at
any later time identify any additional area (or modify an existing area)'
for which he determines areawide waste treatment management to be
appropriate, designate the boundaries of such area, and designate an organ-
ization capable of developing effective areawide waste treatment manage-
ment plans for such area.
[p. 18]
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WATER—STATUTES AND LEGISLATIVE HISTORY 223
" (3) With respect to any area which, pursuant to the guidelines published
under paragraph (1) of this subsection, is located in two or more States,
the Governors of the respective States shall consult and cooperate in carrying
out the provisions of paragraph (2), with a view toward designating the
boundaries of the interstate area having common water quality control
problems and for which area wide waste treatment management plans would
be most effective, and toward designating, within one hundred and eighty
days after publication of guidelines issued pursuant to paragraph (1) of
this subsection, of a single representative organization capable of developing
effective areawide waste treatment management plans for such area.
"(4) Existing regional agencies may be designated under paragraphs (2)
and (3) of this subsection.
"(5) Designations under this subsection shall be subject to the approval
of the Administrator.
" (b) (1) No later than two years after the date of designation of any organiza-
tion under subsection (a) of this section such organization shall have in oper-
ation a continuing areawide waste treatment management planning process con-
sistent with section 201 of this Act. Plans prepared in accordance with this
process shall contain alternatives for waste treatment management, and be
applicable to all wastes generated within the area involved.
"(2) Any plan prepared under such process shall include, but not be limited
to—
"(A) the identification of treatment works necessary to meet the antici-
pated municipal and industrial waste treatment needs of the area over a
twenty-year period, annually updated (including an analysis of alternative
waste treatment systems), including any requirements for the acquisition
of land for treatment purposes; the necessary waste water collection and
urban storm water runoff systems; and a program to provide the necessary
financial arrangements for the development of such treatment works;
"(B) the establishment of construction priorities for such treatment
works and time schedules for the initiation and completion of all treatment
works;
"(C) the establishment of a regulatory program to—
"(i) implement the waste treatment management requirements of
section 201 (c),
"(ii) regulate the location, modification, and construction of any
facilities within such area which may result in any discharge in such
area, and
"(iii) assure that any industrial or commercial wastes discharged
into any treatment works in such area meet applicable pretreatment
requirements;
"(D) the identification of those agencies necessary to construct, operate,
and maintain all facilities required by the plan and otherwise to carry out
the plan;
"(E) the identification of the measures necessary to carry out the plan
(including financing), the period of time necessary to carry out the plan,
the costs of carrying out the plan within such time, and the economic, social,
and environmental impact of carrying out the plan within such time;
"(F) a process to (i) identify, if appropriate, agriculturally related non-
point sources of pollution, including runoff from manure disposal areas, and
from land used for livestock and crop production, and (ii) set forth proce-
dures and methods (including land use requirements) to control to the
extent feasible such sources;
"(Gr) a process to (i) identify, if appropriate, mine-related sources of
pollution including new, current, and abandoned surface and underground
mine runoff, and (ii) set forth procedures and methods (including land use
requirements) to control to the extent feasible such sources;
"(H) a process to (i) identify construction activity related sources of
pollution, and (ii) set forth procedures and methods (including land use
requirements) to control to the extent feasible such sources; and
"(I) a process to (i) identify, if appropriate, salt water intrusion into
rivers, lakes, and estuaries resulting from reduction of fresh water flow
from any cause, including irrigation, obstruction, ground water extraction,
and diversion, and (ii) set forth procedures and methods to control such
intrusion to the extent feasible where such procedures and methods are
otherwise a part of the waste treatment management plan.
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224 LEGAL COMPILATION—SUPPLEMENT I
"(3) Areawide waste treatment management plans shall be certified annually
by the Governor or his designee (or Governors or their designees, where more than
one State is involved) as being consistent with applicable basin plans and such
areawide waste treatment management plans shall be submitted to the Adminisi-
trator for his approval.
"(c) (1) The Governor of each State, in consultation with the planning agency
designated under subsection (a) of this section, at the time a plan is submitted to
the Administrator, may designate one or more waste treatment management
agencies for each area designated under subsection (a) of this section and sub-
mit a list of such designations to the Administrator.
"(2) The Administrator shall approve any such designation, within ninety
days of designation, only if he finds that the designated management agency (or
agencies) is authorized—
"(A) to carry out appropriate portions of an areawide waste treatment
management plan developed under subsection (b) of this section;
"(B) to manage effectively waste treatment works and related facilities
serving such area in eonfonnance with any plan required by subsection (b)
of this section;
"(C) directly or by contract, to design and construct new works, and to
operate and maintain new and existing works as required by any plan
developed pursuant to subsection (b) of this section;
"(D) to accept and utilize grants, or other funds from any source, for
waste treatment management purposes ;
"(E) to raise revenues, including the assessment of waste treatment
charges;
" (F) to incur short- and long-term indebtedness;
"(G) to assure in implementation of an areawide waste treatment man-
agement plan, that each participating community pays its proportionate
share of treatment costs ;
" (H) to refuse to receive any wastes from any municipality or subdivision
thereof, which does not comply with any provisions of an approved plan
under this section applicable to such area ; and
" (I) to accept for treatment industrial wastes.
"(d) After a waste treatment management agency has been designated under
this subsection for an area and a plan for such area has been approved undei
subsection (b) of this section, the Administrator shall not make any grant for
construction of a publicly owned treatment works under section 201 (d) (1) within
such area except to such designated agency and for works in conformity with
such plan.
"(e) No permit under section 402 of this Act shall be issued for any point
source which is in conflict with a plan approved pursuant to subsection (b) of
this section.
"(f) (1) The Administrator shall make grants to any agency designated under
subsection (a) of this section for payment of the reasonable costs of developing
and operating a continuing areawide waste treatment management planning
process under subsection (b) of this section.
"(2) The amount granted to any agency under paragraph (1) of this subsec-
tion shall be 100 per centum of the costs of developing and operating a continuing
areawide waste treatment management planning process under subsection (b) of
this section for each of the fiscal years ending on June 30, 1973, June 30, 1974,
and June 30, 1975, and shall not exceed 75 per cenLum of such costs in each suc-
ceeding fiscal year.
"(3) There is authorized to be appropriated to the Administrator to carry out
this subsection not to exceed $100,000,000 for the fiscal year ending June 30, 1973,
and not to exceed $150,000,000 for the fiscal year ending June 30, 1974.
"(g) The Administrator is authorized upon request of the Governor or the
designated planning agency, and without reimbursement, to consult with, and
provide technical assistance to, any agency designated under subsection (a) of
this section in the development of areawide waste treatment management plans
under subsection (b) of this section.
"(h) (1) The Secretary of the Army, acting through the Chief of Engineers,
in cooperation with the Administrator is authorized and directed, upon request
of the Governor or the designated planning organization, to consult with, and
provide technical assistance to, any agency designated under subsection (a) of
this section in developing and operating a continuing areawide waste treatment
management planning process under subsection (b) of this section.
[p. 20]
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WATER—STATUTES AND LEGISLATIVE HISTORY 225
"(2) There is authorized to be appropriated to the Secretary of the Army,
to carry out this subsection, not to exceed $50,000,000 per fiscal year for the fiscal
years ending June 30,1973, and June 30,1974.
"BASIN PLANNING
"SEC. 209. (a) The President, acting through the Water Resources Council,
shall, as soon as practicable, prepare a Level B plan under the Water Resources
Planning Act for all basins in the United States. All such plans shall be com-
pleted not later than January 1, 1980, except that priority in the preparation of
such plans shall be given to those basins and portions thereof which are within
those areas designated by a Governor or Governors under paragraphs (2) and
(3) of subsection (a) of section 208 of this Act.
"(t>) The President, acting through the Water Resources Council, shall report
annually to Congress on progress being made in carrying out this section. The
first such report shall he submitted not later than January 31, 1973.
"(c) There is authorized to be appropriated to carry out this section not to
exceed $200,000,000.
"ANNUAL SURVEY
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226 LEGAL COMPILATION—SUPPLEMENT I
for the evaluation of methods, including cost-effective analysis, described in
subparagraph (B) of this paragraph.
"(3) The term 'replacement' as used in this title means those expenditures
for obtaining and installing equipment, accessories, or appurtenances during
the useful life of the treatment works necessary to maintain the capacity and
performance for which such works are designed and constructed.
"(4) The term 'industrial user' means those industries identified in the Stand-
ard Industrial Classification Manual, Bureau of the Budget, 1967, as amended
and supplemented, under the category 'Division D—Manufacturing' and such
other classes of significant waste producers as, by regulation the Administrator
deems appropriate under this title.
"TITLE III—STANDARDS AND ENFORCEMENT
"EFFLUENT LIMITATIONS
"SEC. 301. (a) Except as in compliance with this section and sections 302, 306,
307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person
shall be unlawful.
"(b) In order to carry out the objective of this Act there shall be achieved—
"(1)(A) not later than January 1, 1967, effluent limitations for point
sources, other than publicly owned treatment works, (i) which shall require
the application of the best practicable control technology currently available
as defined by the Administrator pursuant to section 304(b) of this Act, or (ii)
in the case of a discharge into a publicly owned treatment works which meets
the requirements of subparagraph (B) of this paragraph, which shall require
compliance with any applicable pretreatment requirements and any require-
ments under section 307 of this Act; and
"(B) for publicly owned treatment works in existence on January 1, 1976,
or approved pursuant to section 203 of this Act prior to June 30, 1974 (for
which construction must be completed within four years of approval),
effluent limitations based upon secondary treatment as defined by the Ad-
ministrator pursuant to section 304(d) (1) of this Act; or,
"(C) not later than January 1, 1976, any more stringent limitation, in-
cluding those necessary to meet water quality standards, treatment stand-
ards, or schedules of compliance, establish pursuant to any other State or
Federal law or regulation, or required to implement any applicable water
quality standard established pursuant to this Act.
"(2) (A) except as provided in section 315, not later than January 1, 1981,
effluent limitations for point sources, other than publicly owned treatment
works, (i) which shall require the elimination of the discharge of pollutants,
unless on the basis of facts presented by the owner or operator of any such
sources, among other information, the State under a program approved
pursuant to section 402 of this Act (or, where no such program is approved,
the Administrator) finds, that compliance is not attainable at a reasonable
cost, in which event there shall be applied an effluent limitation based on that
degree of effluent control achievable through the application of the best
available demonstrated technology, taking into account the cost of such
controls, as determined in accordance with regulations issued by the Admin-
istrator pursuant to section 304(b) of this Act, and the environmental
impact, or (ii) in the case of a discharge of a pollutant into a publicly owned
treatment works which meets the requirement of subparagraph (B) of this
paragraph, which shall require compliance with anv applicable pretreatment
requirements and any requirement under section 307 of this Art; and
"(B) not later than January 1, 1981, compliance by all publicly owned
treatment works with the requirements set forth in section 201 (d) (2) (A)
of this Act.
"(3) The Administrator may extend for any point source the dates pre-
scribed in subparagraphs (A) and (B) of paragraph (1) of this subsec-
tion. No extension or extensions of such date shall exceed a total of two
years from the date prescribed in such subparagraph. Public hearings must
be held by the Administrator in connection with any such extension prior
to granting such extension. No extension shall be granted unless the Ad-
ministrator determines (i) that it is not possible either physically or legally
to complete the necessary construction within the statutory time limit, or
(ii) that a longer time period is provided in the plan of implementation
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WATER—STATUTES AND LEGISLATIVE HISTORY 227
for the applicable water quality standard. An extension of dates under this
authority may also include a waiver for the same period of any applicable
water quality standard.
"(c) Any effluent limitation required by paragraph (2) of subsection (b) of
this section shall be reviewed at least every five years and, if appropriate, revised
pursuant to the procedure established under such paragraph.
"(d) Effluent limitations established pursuant to this section or section 302
of this Act sha 1 be app ied to all point sources of discharge of pollutants
in accordance with the provisions of this Act
"(e) Notwithstanding any other provisions of this Act it shall be unlawful
to discharge any radiological, chemical, or biological warfare agent or high-
level radioactive waste into the navigable waters.
"(f) Notwithstanding any other provision of this Act, any point source the
construction or modification of which is commenced after the date of enactment
of the Federal Water Pollution Control Act Amendments of 1972 and before the
expiration of the one-year period which begins on the date of submission of
the report required by section 315 of this Act, and which is so constructed or
modified as to meet effluent limitations based upon the best available tech-
nology at the time of such construction or modification, shall not be subject to
any more stringent effluent limitations with respect to such effluents during a
12 year period beginning on the date of completion of such construction or
modification or during the period of depreciation or amortization of such facility
for the purposes of section 167 or 169 (or both) of the Internal Revenue Code
of 1954, whichever periods ends first.
"WATER QUALITY RELATED EFFLUENT LIMITATIONS
"SEC. 302. (a) Whenever, in the judgment of a State or the Administrator, dis-
charges of pollutants from a point source or group of point sources, with the ap-
plication of effluent limitations required under section 301 (b) (2) of this Act,
would interfere with the attainment or maintenance of that water quality in a
specific portion of the navigable waters which shall assure protection of public
water supplies, agricultural and industrial uses, and the protection and propa-
gation of a balanced population of shellfish, fish and wildlife, and allow recrea-
tional activities in and on the water, effluent limitations (including alternative
effluent control strategies) for such point source or sources shall be established
which can reasonably be expected to contribute to the attainment or mainte-
nance of such water quality.
"(b) (1) Before establishing any effluent limitation under subsection (a) of
this section, the Administrator shall issue a notice of intent to establish such
limitation to the Chairman of the Council of Economic Advisers, the Chairman
of the Council on Environmental Quality, and the Director of the Office of Science
and Technology. Each person so notified shall have a ninety-day period to submit
to the Administrator written comments and recommendations which shall be
made part of the public record with respect to the establishment of such limita-
tion. If any part of such written recommendations are not accepted by the Ad-
ministrator, then the Administrator shall notify, in writing, the person submit-
ting such recommendation, of his failure to so accept such recommendations to-
gether with his reasons for so doing. Thereafter, the Administrator shall issue
notice of intent to establish such limitation and within ninety days of such notice
hold a public hearing to determine the relationship of the economic, social, and
environmental costs of achieving any such limitation or limitations, including any
economic or social dislocation in the affected community or communities, to the
economic, social, and environmental benefits to be obtained (including the at-
tainment of the objective of this Act) and to determine whether or not such efflu-
ent limitations can be implemented with available technology or other alterna-
tive control strategies.
"(2) Prior to establishment of any effluent limitation pursuant to subsection
(a) of this section, the State shall issue notice of intent to establish such limita-
tion and within ninety days of such notice hold a public hearing to determine
the relationship of the economic, social, and environmental costs of achieving
any such limitation or limitations, including any economic or social disloca-
tion in the affected community or communities, to the economic, social, and en-
vironmental benefits to be obtained (including the attainment of the objective
of this Act) and to determine whether or not such effluent limitations can be
implemented with available technology or other alternative control strategies.
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228 LEGAL COMPILATION—SUPPLEMENT I
"(3) If a person affected by such limitation demonstrates at such hearing
that (whether or not such technology or other alternative control strategies
are available) there is no reasonable relationship between the economic, social,
and environmental costs and the benefits to be obtained (including attainment
of the objective of this Act), such limitation shall not become effective and the
State or the Administrator sliall adjust such limitation as it applies to such per-
son. Whenever the Administrator adjusts or refuses to adjust any limitation
as it applies to any person under this paragraph he shall, prior to the time such
limitation takes effect, set forth in writing his reasons for such action, and such
reasons shall be part of the public record with respect to such limitation.
"(c) The establishment of effluent limitations under this section shall not
operate to delay the application of any effluent limitation established under sec-
tion 301 of this Act.
"WATEB QUALITY STANDARDS AND IMPLEMENTATION PLANS
"SEC. 303. (a) (1) In order to carry out the purpose of this Act, any water
quality standard applicable to interstate waters which was adopted by any State
and submitted to, and approved by. or is awaiting approval by, the Administra-
tor pursuant to this Act as in effect immediately prior to the date of enactment
of the Federal Water Pollution Control Act Amendments of 1972, shall remain
in effect unless the Administrator determined that such standard is not consist-
ent with the applicable requirements of this Act as in effect immediately prior
to the date of enactment of the Federal Water Pollution Control Act Amend-
ments of 1972. If the Administrator makes such a determination he shall, within
three months after the date of enactment of the Federal Water Pollution Control
Act Amendments of 1972, notify the State and specify the changes needed to meet
such requirements. If such changes are not adopted by the State within ninety
days after the date of such notification, the Administrator shall promulgate
such changes in accordance with subsection (b) of this section.
"(2) Any State which, before the date of enactment of the Federal Water
Pollution Control Act Amendments of 1972, has adopted, pursuant to its own
law, water quality standards applicable to intrastate waters shall submit such
standards to the Administrator within thirty days after the date of enactment
of the Federal Water Pollution Control Act Amendments of 1972. Each such
standard shall remain in effect, in the same manner and to the same extent as
any other water quality standard established under this Act unless the Adminis-
trator determines that such standard is inconsistent with the applicable require-
ments of this Act as in effect immediately prior to the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972. If the Administrator
makes such a determination he shall not later than the one hundred and twen-
tieth day after the date of submission of such standards, notify the State and
specify the changes needed to meet such requirements. If such changes are not
adopted by the State within ninety days after such notification, the Adminis-
trator shall promulgate such changes in accordance with subsection (b) of this
section.
"(3) (A) Any State which prior to the date of enactment of the Federal Water
Pollution Control Act Amendments of 1972 has not adopted pursuant to its
own laws water quality standards applicable to intrastate waters shall, not
later than one hundred and eighty days after the date of enactment of the
Federal Water Pollution Control Act Amendments of 1972, adopt and submit
such standards to the Administrator.
"(B) If the Administrator determines that any such standards are consistent
with the applicable requirements of this Act as in effect immediately prior to
the date of enactment of the Federal Water Pollution Control Act Amendments
of 1972, he shall approve such standards.
"(C) If the Administrator determines that any such standards are not con-
sistent with the applicable requirements of this Act as in effect immediately
prior to the date of enactment of the Federal Water Pollution Control Act
Amendments of 1972, he shall not. later than the ninetieth day after the date of
submission of such standards, notify the State and specify the changes to meet
such requirements. If such changes are not adopted by the State within ninety
days after the date of notification, the Administrator shall promulgate such
standards pursuant to subsection (b) of this section.
"(b)(l) The Administrator shall promptly prepare and publish proposed
regulations setting forth water quality standards for a State in accordance with
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WATER—STATUTES AND LEGISLATIVE HISTORY 229
the applicable requirements of this Act as in effect immediately prior to the date
of enactment of the Federal Water Pollution Control Act Amendments of 1972,
if—
"(A) the State fails to submit water quality standards within the times
prescribed in subsection (a) of this section,
"(B) a water quality standard submitted by such State under subsection
(a) of this section is determined by the Administrator not to be consistent
with the applicable requirements of subsection (a) of this section.
"(2) The Administrator shall promulgate any water quality standard pub-
lished in a proposed regulation not later than one hundred and ninety days after
the date he publishes any such proposed standard, unless prior to such promul-
gation, such State has adopted a water quality standard which the Administrator
determines to be in accordance with subsection (a) of this section.
"(c) (1) The Governor of a State or the State water pollution control agency
of such State shall from time to time (but at least once each three year period
beginning with the date of enactment of the Federal Water Pollution Control
Act Amendments of 1972) hold public hearings for the purpose of reviewing ap-
plicable water quality standards and, as appropriate, modifying and adopting
standards. Results of such review shall be made available to the Administrator.
"(2) Whenever the State revises or adopts a new standard, such revised or
new standard shall be submitted to the Administrator. Such revised or new
water quality standard shall consist of the designated uses of the navigable
waters involved and the water quality criteria for such waters based upon such
uses. Such standards shall be such as to protect the public health or welfare,
enhance the quality of water and serve the purposes of this Act. Such standards
shall be established taking into consideration their use and value for public
water supplies, propagation of fish and wildlife, recreational purposes, and agri-
cultural, industrial, and other legitimate uses, and also taking into consideration
their use and value for navigation.
"(3) If the Administrator, within sixty days after the date of submission of
the revised or new standard, determines that such standard meets the require-
ments of this Act, such standard shall thereafter be the water quality standard
for the applicable waters of that State. If the Administrator determines that any
such revised or new standard is not consistent with the applicable requirements
of this Act, he shall not later than the ninetieth day after the date of submis-
sion of such standard notify tne State and specify the changes to meet such
requirements. If such changes are not adopted by the State within ninety days
after the date of notification, the Administrator shall promulgate such standard
pursuant to paragraph (4) of this subsection.
"(4) The Administrator shall promptly prepare and publish proposed regula-
tions setting forth a revised or new water quality standard for the navigable
waters involved—
"(A) if a revised or new water quality standard submitted by such State
under paragraph (3) of this subsection for such waters is determined by
the Administrator not to be consistent with the applicable requirements
of this Act, or
"(B) ill any case where the Administrator determines that a revised or
new standard is necessary to meet the requirements of this Act.
The Administrator shall promulgate any revised or new standard under this
paragraph not later than ninety days after he publishes such proposed stand-
ards, unless prior to such promulgation, such State has adopted a revised or new
water quality standard which the Administrator determines to be in accord-
ance with this Act.
"(5) No revised or new standard under this subsection shall have any ap-
plication to thermal discharges in accordance with regulations issued pursuant
to section 316 of this Act.
"(d)(l) Each State shall identify those waters within its boundaries for
which the effluent limitations required by section 301 (b) (1) (A) and section
301 (b) (1) (B) are not stringent enough to implement any water quality stand-
ard applicable to such waters. The State shall establish a priority ranking for
such waters, taking into account the severity of the pollution and the uses to
be made of such waters. Each State shall establish for the waters so identified,
and in accordance with the priority ranking, the total maximum daily load, with
seasonal variations and margins of safety, for those pollutants which the Ad-
ministrator identifies under section 304(a) (2) as suitable for such calculation.
[p. 25]
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230 LEGAL COMPILATION—SUPPLEMENT I
Such load shall be established at a level necessary to implement the applicable
water quality standards with a margin of safety which takes into account any
lack of knowledge concerning the relationship between effluent limitations and
water quality.
"(2) Each State shall submit to the Administrator from time to time, with
the first such submission not later than one hundred eighty days after the date
of publication of the first identification of pollutants under section 304(a) (2) (D),
for his approval the waters identified and the load established under paragraph
(1) of this subsection. The Administrator shall either approve or disapprove such
identification and load not later than thirty days after the date of submission.
If the Administrator approves such identification and load such State shall incor-
porate them into its current plan under subsection (e) of this section. If the
Administrator disapproves such identification and load, he shall not later than
thirty days after the date of such disapproval identify such waters in such State
and establish such loads for such waters as he determines necessary to implement
the water quality standards applicable to such waters and upon such identification
and establishment the State shall incorporate them into its current plan under
subsection (e) of this section.
"(3) For the purpose of developing information, each State shall identify all
waters within its boundaries which it has not identified under paragraph (1) of
this subsection and establish for such waters the total maximum daily load, with
seasonal variations and margins of safety, for those pollutants which the Adminis-
trator identifies under section 304(a) (2) as suitable for such calculation, at a
level that would implement the water quality standards.
"(e) (1) Each State shall have a continuing planning process approved under
paragraph (2) of this subsection which is consistent with this Act.
"(2) Each State shall submit not later than 120 days after the date of the
enactment of the Water Pollution Control Amendments of 1972 to the Adminis-
trator for his approval a proposed continuing planning process which is con-
sistent with this Act. Not later than thirty days after the date of submission of
such a process the Administrator shall either approve or disapprove such process.
The Administrator shall from time to time review each States' approved plan-
ning process for the purpose of insuring that such planning process is at all
times consistent with this Act. The Administrator shall not approve any State
permit program under title IV of this Act for any State which does not have
an approved continuing planning process under this section.
"(3) The Administrator shall approve any continuing planning process sub-
mitted to him under this section which will result in plans for all navigable
waters within such State, which include, but are not limited to, the following:
"(A) effluent limitations and schedules of compliance at least as stringent
as those required by section 301 (b) (1), section 301 (b) (2) (B), section 306,
and section 307, and at least as stringent as any requirements contained
in any applicable water quality standard in effect under authority of this
section;
"(B) the incorporation of all elements of any applicable area wide waste
management plans under section 208, and applicable basin plans under sec-
tion 209 of this Act;
"(C) total maximum daily load for pollutants in accordance with sub-
section (d) of this section;
" (D) procedures for revision ;
" (E) adequate authority for intergovernmental cooperation ;
"(F) adequate implementation, including schedules of compliance, for
revised or new water quality standards under subsection (c) of this section ;
"(G) controls over the disposition of all residual waste from any water
treatment processing;
"(H) an inventory and ranking, in order of priority, of needs for con-
struction of waste treatment works required to meet the applicable require-
ments of sections 301 and 302.
" (f) Nothing in this section shall be construed to affect any effluent limita-
tion, or schedule of compliance required by any State to be implemented prior
to the dates set forth in sections 301 (b) (1) and 301 (b) (2) nor to preclude any
State from requiring compliance with any effluent limitation or schedule of
compliance at dates earlier than such dates.
[p. 26]
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WATER—STATUTES AND LEGISLATIVE HISTORY 231
"INFORMATION AND GUIDELINES
"SEC. 304. (a) (1) The Administrator, after consultation with appropriate
Federal and State agencies and other interested persons, shall develop and pub-
lish, within one year al'ter the date of enactment of this title (and from time
to time thereafter revise) criteria for water quality accurately reflecting the
latest scientific knowledge (A) on the kind and extent of all identifiable effects
on health and welfare including, but not limited to, plankton, fish, shellfish,
wildlife, plant life, shorelines, beaches, esthetics, and recreation which may be
expected from the presence of pollutants ia any body of water, including ground
water; (B) on the concentration and dispersal of pollutants, or their byproducts,
through biological, physical, and chemical processes; and (C) on the effects of
pollutants on biological community diversity, productivity, and stability, includ-
ing information on the factors affecting rates of eutrophication and rates of
organic and inorganic sedimentation for varying types of receiving waters.
"(2) The Administrator, after consultation with appropriate Federal and
State agencies and other interested persons, shall develop and publish, withiu
one year after the date of enactment of this title (and from time to time there-
after revise) information (A) on the factors necessary to restore and maintain
the natural chemical, physical, and biological integrity of all navigable waters,
ground waters, waters of the contiguous zone, and the oceans; (B) on the factors
necessary for the protection and propagation of shellfish, fish, and wildlife and
to allow recreational activities in and on the water; and (C) on the measurement
and classification of water quality; and (D) on and the identification of pollu-
tants suitable for maximum daily load measurement correlated with the achieve-
ment of water quality objectives.
"(3) Such criteria and information and revisions thereof shall be issued to the
States and shall be published in the Federal Register and otherwise made avail-
able to the public.
"(b) For the purpose of adopting or revising effluent limitations under this
Act the Administrator shall, after consultation with appropriate Federal and
State agancies and other interested persons, publish within one year of enact-
ment of this title, regulations, providing guidelines for effluent limitations, and,
at least annually thereafter, revise, if appropriate, such regulations. Such regula-
tions shall—
"(1) (A) identify, in terms of amounts of constituents and chemical,
physical, and biological characteristics of pollutants, the degree of effluent
reduction attainable through the application of the best practicable control
technology currently available for classes and categories of point sources
(other than publicly owned treatment works) ; and
"(B) specify factors to be taken into account in determining the control
measures and practices to be applicable to any point sources (other than
publicly owned treatment works) within such categories or classes. Factors
relating to the assessment of best practicable control technology currently
available to comply with subsection (b) (1) of section 301 of this Act, shall
take into account the age of equipment and facilities involved, the process
employed (including whether batch or continuous), the engineering aspects
of the application of various types of demonstrated control techniques.
process changes, the cost and the economic, social, and environmental im-
pact of achieving such effluent reduction, foreign competition, and such other
factors as the Administrator deems appropriate;
"(2) (A) identify, in terms of amounts of constituents and chemical
physical, and biological characteristics of pollutants, the degree of effluent
reduction attainable through the application of the best available demon-
strated control measures and practices including treatment techniques, proc-
ess and procedure innovations, operating methods, and other alternatives for
classes and categories of point sources (other than publicly owned treatment
works) ; and
" (B) specify factors to be taken into account in determining the best meas-
ures and practices available to comply with subsection (b) (2) of section 301
of this Act to be applicable to any point source (other than publicly owned
treatment works) within such categories or classes. Factors relating to
the assessment of best available demonstrated technology shall take into
account the age of equipment and facilities involved, the process employed
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232 LEGAL COMPILATION—SUPPLEMENT I
(including whether batch or continuous), the engineering aspects of the ap-
plication of various types of demonstrated control techniques, process
changes, the cost and the economic, social, and environmental impact of
achieving such effluent reduction, foreign competition, and such other factors
as the Administrator deems appropriate; and
"(3) identity control measures and practices available to eliminate the
discharge of pollutants from categories and classes of point sources, taking
into account the cost of achieving such elimination of the discharge of
polluants.
"(c) The Administrator, after consultation, with appropriate Federal and
State agencies and other interested persons, shall issue to the States and appro-
priate water pollution control agencies within one year after enactment of this
title (and from time to time thereafter) information on the processes, procedures,
or operating methods which result in the elimination or reduction of the dis-
charge of pollutants to implement standards of performance under section 306 of
this Act. Such information shall include technical and other data, including
costs, as are available on alternative methods of elimination or reduction of the
discharge of pollutants. Such information, and revisions thereof, shall be pub-
lished in the Federal Register and otherwise shall be made available to the public.
"(d) ( 1) The Administrator, after consultation with appropriate Federal and
State agencies and other interested persons, shall publish within sixty days after
enactment of this title (and from time to time thereafter) information, in terms
of amounts of constituents and chemical, physical, and biological characteristics
of pollutants, on the degree of effluent reduction attainable through the applica-
tion of secondary treatment.
"(2) The Administrator, after consultation with appropriate Federal and
State agencies and other interested persons, shall publish within nine months
after the date of enactment of this title (and from time to time thereafter) in-
formation on alternative waste treatment management techniques and systems
available to implement section 201 of this Act
"(e) The Administrator, after consultation with appropriate Federal and
State agencies and other interested persons, shall issue to appropriate Federal
agencies, the States, water pollution control agencies, and agencies designated
under section 208 of this Act, within one year after the effective date of this sub-
section (and from time to time thereafter) information including (1) guidelines
for identifying and evaluating the nature and extent of nonpoint sources of
pol'utants, and (2) processes, procedures, and methods to control pollution
resulting from—
"(A) agricultural and silvicultural activities, including runoff from fields
and crop and forest lands ;
"(B) mining activities, including runoff and siltation from new, currently
operating, and abandoned surface and underground mines;
"(C) all construction activity, including runoff from the facilities result-
ing from such construction;
"(D) the disposal of pollutants in wells or in subsurface excavations;
"(E) salt water intrusion resulting from reductions of fresh water flow
from any cause, including extraction of ground water, irrigation, obstruction,
and diversion; and
"(F) changes in the movement, flow, or circulation of any navigable
waters or ground waters, including changes caused by the construction of
dams, levees, channels, causeways, or flow diversion facilities.
Such information and revisions thereof shall be published in the Federal Register
and otherwise made available to the public.
"(f) (1) For the purpose of assisting States in carrying out programs under
section 402 of this Act, the Administrator shall publish, within one hundred and
twenty days after the date of enactment of this title, and review at least annually
thereafter, and, if appropriate, revise guidelines for pretreatment of pollutants
which he determines are not susceptible to treatment by publicly owned treat-
ment works. Guidelines under this subsection shall be established to control
and prevent the discharge into the navigable waters, the contiguous zone, or
the ocean (either directly or through publicly owned treatment works) of any
pollutant which interferes with, passes through, or otherwise is incompatible
with such works.
"(2) When publishing guidelines under this subsection, the Administrator shall
designate the category or categories of treatment works to which the guidelines
shall apply.
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WATER—STATUTES AND LEGISLATIVE HISTORY 233
"(g) The Administrator shall, within one hundred and eighty days from the
date of enactment of this title, promulgate guidelines establishing tests proce-
dures for the analysis of pollutants that shall include the factors which must be
provided in any certification pursuant to section 401 of this Act or permit
application pursuant to section 402 of this Act.
"(h) The Administrator shall (1) within ninety days after the enactment of
this title promulgate guidelines for the purpose of establishing uniform applica-
tion forms and other minimum requirements for the acquisition of information
from owners and operators of point sources of discharge subject to any State
program under section 402 of this Act, and (2) within ninety days from the
date of enactment of this title promulgate guidelines establishing the minimum
procedural and other elements of any State program under section 402 of this
Act which shall include:
"(A) monitoring requirements;
"(B) reporting requirements (including procedures to make information
available to the public) ;
"(C) enforcement provisions ; and
"(D) funding, personnel qualifications, and manpower requirements (in-
cluding a requirement that no board or body which approves permit applica-
tions or portions thereof shall include, as a member, any person who receives,
or has during the previous two years received, a significant portion of his
income directly or indirectly from permit holders or applicants for a
permit).
"(i) The Administrator shall, within one year after the effective date of this
subsection (and from time to time thereafter), issue such information on meth-
ods, procedures, and processes as may be appropriate to restore and enhance
the quality of the Nation's publicly owned fresh water lakes.
"(j)(l) The Administrator shall, within six months from the date of en-
actment of this title, enter into agreements with the Secretary of Agriculture,
the Secretary of the Army, and the Secretary of the Interior to provide for
the maximum utilization of the appropriate programs authorized under other
Federal law to be caried out by such Secretaries for the purpose of achieving
and maintaining water quality through appropriate implementation of plans
approved under section 208 of this Act.
"(2) The Administrator, pursuant to any agreement under paragraph (1) of
this subsection is authorized to transfer to the Secretary of Agriculture, the
Secretary of the Army, or the Secretary of the Interior any funds appropriated
under paragraph (3) of this subsection to supplement any funds otherwise ap-
propriated to carry out appropriate programs authorized to be carried out by
such Secretaries.
"(3) There is authorized to be appropriated to carry out the provisions of
this subsection, $100,000,000 per fiscal year for the fiscal year ending June
30, 1973, and the fiscal year ending June 30, 1974. Sums so appropriated shall
remain available until expended.
"WATER QUALITY INVENTORY
"SEC. 305. (a) The Administrator, in cooperation wtih the States and with
the assistance of appropriate Federal agencies, shall prepare a report to be
submitted to the Congress on or before July 1, 1973, which shall—
"(1) describe the specific quality, during 1972, with appropriate supple-
mental descriptions as shall he required to take into account seasonal, tidal,
and other variations, of all navigable waters and the waters of the con-
tiguous zone;
"(2) include an inventory of all point sources of discharge (based on a
qualitative and quantitative analysis of discharges) of pollutants into all
navigable waters and the waters of the continguous zone; and
"(3) identify specifically those navigable waters, the quality of which
"(A) is adequate to provide for the protection and propagation of
a balanced population of shellfish, fish, and wildlife and allow recrea-
tional activities in and on the water;
"(B) can reasonably be expected to attain such level by 1976 or
1981; and
"(C) can reasonably be expected to attain such level by any later
date.
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234 LEGAL COMPILATION—SUPPLEMENT I
"(b) (1) Each State shall prepare and submit to the Administrator by July 1,
1974, and shall bring up to date each year thereafter, a report which shall
include—
"(A) a description of the water quality of all navigable waters in such
State during the preceding year, with appropriate supplemental descriptions
as shall be required to take into account seasonal, tidal, and other vari-
ations, correlated with the quality of water required by the objective of this
Act (as identified by the Administrator pursuant to criteria published under
section 304(a) of this Act) and the water quality described in subparagraph
(B) of this paragraph ;
"(B) an analysis of the extent to which all navigable waters of such State
provide for the protection and propagation of a balanced population of
shellfish, fish, and wildlife, and allow recreational activities in and on the
water;
"(C) an analysis of the extent to which the elimination of the discharge
of pollutants and a level of water quality which provides for the protection
and propagation of a balanced population of shellfish, fish, and wildlife and
allows recreational activities in and on the water, have been or will be
achieved by the requirements of this Act, together with recommendations as
to additional action necessary to achieve such objectives and for what waters
such additional action is necessary;
"(D) an estimate of (i) the economic, social, and environmental costs
necessary to achieve the objectives of this Act in such State; (ii) the eco-
nomic, social, and environmental benefits of such achievements ; and (iii) an
estimate of the date of such achievement; and
"(E) a description of the nature and extent of nonpoint sources of pollu-
tants, and recommendations as to the programs which must be undertaken
to control each category of such sources, including an estimate of the costs
of implementing such programs.
"(2) The Administrator shall transmit such State reports, together with an
analysis thereof, to Congress on or before April 1, 1975, and annually thereafter.
"NATIONAL STANDABDS OF PERFORMANCE
"Sec. 306. (a) For purposes of this section :
"(1) The term 'standard of performance' means a standard for the control
of the discharge of pollutants which reflects the greatest degree of effluent re-
duction which the Administrator determines to be achievable through applica-
tion of the best available demonstrated control technology, processes, operating
methods, or other alternatives, including, where practicable, a standard permit-
ting no discharge of pollutants.
"(2) The term 'new source' means any source, the construction or modifica-
tion of which is commenced after the publication of proposed regulations pre-
scribing a standard of performance under this section which will be applicable
to such source, if such standard is thereafter promulgated in accordance with
this section.
"(3) The term 'source' means any building, structure, facility, or installation
from which there is or may be the discharge of pollutants.
"(4) The term 'owner or operator' means any person who owns, leases, oper-
ates, controls, or supervises a source.
"(5) The term 'modification' means any construction (other than construc-
tion of pollution abatement facilities as determined by the Administrator or ap-
propriate State agency) which may alter the nature or may increase the
amounts of pollutants, or combinations of such pollutants, discharged by a
source.
"(6) The term 'construction' means any placement, assembly, or installation
of facilities or equipment (including contractual obligations to purchase such
facilities or equipment) at the premises where such equipment will be used,
including preparation work at such premises.
"(b)(l)(A) The Administrator shall, within ninety days after the date of
enactment of this title publish (and from time to time thereafter shall revise)
a list of categories of sources, which shall, at the minimum, include:
"pulp and paper mills ;
"paperboard, builders paper and board mills;
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WATER—STATUTES AND LEGISLATIVE HISTORY 235
"meat product and rendering processing;
"dairy product processing ;
"grain mills;
"canned and preserved fruits and vegetables processing;
"canned and preserved seafood processing;
"sugar processing;
"textile mills;
"cement manufacturing;
"feedlots;
"electroplating;
"organic chemicals manufacturing;
"inorganic chemicals manufacturing;
"plastic and synthetic materials manufacturing;
"soap and detergent manufacturing;
"fertilizer manufacturing;
"petroleum refining;
"iron and steel manufacturing;
"ironferrous metals manufacturing;
"phosphate manufacturing;
"steam electric powerplants;
"ferroalloy manufacturing;
"leather tanning and finishing;
"glass and asbestos manufacturing;
"rubber processing; and
"timber products processing.
"(B) As soon as practicable, but in no case more than one year, after a
category of sources is included in a list under subparagraph (A) of this para-
graph, the Administrator shall propose and publish regulations establishing
Federal standards of performance for new sources within such category. The
Administrator shall afford interested persons an opportunity for written com-
ment on such proposed regulations. After considering such comments, he shall
promulgate, within one hundred and twenty days after publication of such pro-
posed regulations, such standards with such adjustments as he deems appro-
priate. The Administrator shall, from time to time, as technology and alterna-
tives change, revise such standards following the procedure required by this
subsection for promulgation of such standards. Standards of performance, or
revisions thereof, shall become effective upon promulgation. In establishing or
revising Federal standards of performance for new sources under this section,
the Administrator shall take into consideration factors relating to the age of
equipment and facilities involved, the process employed, the engineering aspects
of the application of various types of demonstrated control techniques, process
changes, the cost of and the economic, social, and environmental impact of
achieving such effluent reduction, foreign competition, and such other factors
as he determines appropriate.
"(C) Such standards of performance shall apply to all sources within such
category, unless, upon application from an owner or operator of any source
which as a result of modification is subject to this section, the Administrator
determines, after public hearing, that the economic, social, and environmental
costs of implementing such standard bear no reasonable relationship to the
economic, social, and environmental benefits (including water quality objec-
tives) to be obtained. Any such determination shall be accompanied by an
appropriate adjustment of such standard for such source, which shall reflect the
greatest degree of effluent reduction which the Administrator determines can
reasonably be achieved by such source.
"(2) The Administrator may distinguish among classes, types, and sizes
within categories of new sources for the purpose of establishing such standards
and shall consider the type of process employed (including whether batch or
continuous).
"(3) The provisions of this section shall apply to any new source owned or
operated by the United States.
"(c) After the effective date of standards of performance promulgated under
this section, it shall be unlawful for any owner or operator of any new source
to operate such source in violation of any standard of performance applicable
to such source.
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236 LEGAL COMPILATION—SUPPLEMENT I
"TOXIC AND PRETREATMENT EFFLUENT STANDABDS
"SEC. 307. (a) (1) The Administrator shall, within ninety days after the date
of enactment of this title, publish (and from time to time thereafter revise) a
list which includes any toxic pollutant combination of such pollutants for which
an effluent standard (which may include a prohibition of the discharge of such
pollutants or combination of such pollutants) will be established under this
section. The Administrator in publishing such list shall take into account the
toxicity of the pollutant, its persistence, degradability, the usual or potential
presence of the affected organisms in the receiving waters, the importance of
the affected organisms and the nature and extent of the effect of the toxic
pollutant on such organisms.
"(2) Within one hundred and eighty days after the date of publication of
any list, or revision thereof, containing toxic pollutants or combination of
pollutants under paragraph (1) of this subsection, the Administrator, in ac-
cordance with section 553 of title 5 of the United States Code, shall publish a
proposed effluent standard (or a prohibition) for such pollutant or combination
of pollutants which shall take into account the toxicity of the pollutant, its
persistence, degradability, the usual or potential presence of the affected or-
ganisms in the receiving waters, the importance of the affected organisms and
the nature and extent of the effect of the toxic pollutant on such organisms, and
he shall publish a notice for a public hearing on such proposed standard to be
held within thirty days. As soon as possible after such hearing, but not later
than six months after publication of the proposed effluent standard (or prohibi-
tion), unless the Administrator finds, on the record, that a modification of such
proposed standard (or publication) is justified based upon a preponderance of
evidence adduced at such hearings, such standard (or prohibition) shall be
promulgated.
"(3) If after a public hearing the Administrator finds that a modification of
such proposed standard (or prohibition) is justified, a revised effluent standard
(or prohibition) for such pollutant or combination of pollutants shall be promul-
gated immediately. Such standard (or prohibition) shall be reviewed and, if
appropriate, revised at least every three years.
"(4) Any effluent standard promulgated under this section shall be at that
level which the Administrator determines provides an ample margin of safety.
"(5) When proposing or promulgating any effluent standard (or prohibition)
under this section, the Administrator shall designate the category or categories
of sources to which the effluent standard (or prohibition) shall apply.
"(6) Any effluent standard (or prohibition) established pursuant to this sec-
tion shall take effect on. such date or dates as specified in the order promulgating
such standard, but in no case more than one year from the date of such promul-
gation.
"(7) Prior to publishing any regulations pursuant to this section, the Ad-
ministrator shall, to the maximum extent practicable within the time provided,
consult with appropriate advisory committees, States, independent experts, and
Federal departments and agencies.
"(8) After the effective date of any effluent standard or prohibition pro-
mulgated under this subsection, it shall be unlawful for any owner or operator
of any source to operate any source in violation of any such effluent standard
or prohibition.
"(b) (1) The Administrator shall, within one hundred and eighty days after
the date of enactment of this title and from time to time thereafter, publish pro-
posed regulations establishing pretreatment standards for introducion of pol-
lutants into treatment works (as defined in section 212 of this Act) which are
publicly owned for those pollutants which are determined not to be susceptible
to treatment by such treatment works or which would interfere with the opera-
tion of such treatment works. Not later than ninety days after such publi-
cation, and after opportunity for public hearing, the Administrator shall pro-
mulgate such pretreatment standards. Pretreatment standards under this sub-
section shall specify a time for compliance not to exceed three years from the
date of promulgation and shall be established to prevent the discharge of any
pollutant through treatment works (as defined in section 212 of this Act) which
are publicly owned, which pollutant interferes with, passes through, or other-
wise is incompatible with such works.
"(2) The Administrator shall, from time to time, as control technology, proc-
esses, operating methods, or other alternatives change, revise such standards
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WATER—STATUTES AND LEGISLATIVE HISTORY 237
following the procedure established by this subsection for promulgation of such
standards.
"(3) When proposing or promulgating any pretreatment standard under this
section, the Administrator shall designate the category or categories of sources
to which such standard shall apply.
"(4) Nothing in this subsection shall affect any pretreatment requirement
established by any State or local law not in conflict with any pretreatment
standard established under this subsection.
"INSPECTIONS, MONITOEING AND ENTET
"SEC. 308. (a) Whenever required to carry out the objective of this Act,
including but not limited to (1) developing or assisting in the development of
any effluent limitation, or other limitation, prohibition, or effluent standard,
pretreatment standard, or standard of performance under this Act; (2) determin-
ing whether any person is in violation of any such effluent limitation, or other
limitation, prohibition or effluent standard, pretreatment standard, or standard
of performance; (3) any requirement established under this section; or (4)
carrying out sections 305, 311, 402, and 504 of this Act—
"(A) the Administrator shall require the owner or operator of any point
source to (i) establish and maintain such records, (ii) make such reports,
(iii) install, use, and maintain such monitoring equipment or methods
(including where appropriate, biological monitoring methods), (iv) sam-
ple such effluents (in accordance with such methods, at such locations, at
such intervals, and in such manner as the Administrator shall prescribe),
and (v) provide such other information as he may reasonably require; and
"(B) the Administrator or his authorized representative, upon presen-
tation of his credentials—
"(i) shall have a right of entry to, upon, on through any premises in
which an effluent source is located or in which any records required to
be maintained under clause (A) of this subsection are located, and
"(ii) may at reasonable times have access to and copy any records,
inspect any monitoring equipment or method required under clause
(A), and sample any effluents which the owner or operator of such
source is required to sample under such clause.
"(b) Any records, reports, or information obtained under this section shall
be available to the public, except that upon a showing satisfactory to the Admin-
istrator by any person that records, reports, or information, or particular part
thereof (other than effluent data), to which the Administator has access under
this section, if made public would divulge methods or processes entitled to protec-
tion as trade secrets of such person, the Administrator shall consider such record,
report, or information, or particular portion thereof confidential in accordance
with the purposes of section 1905 of title 18 of the United States Code, except that
such record, report, or information may be disclosed to other officers, employees,
or authorized representatives of the United States concerned with carrying out
this Act or when relevant in any proceeding under this Act.
"FEDERAL ENFORCEMENT
"SBC. 309. (a) (1) Whenever, on the basis of any information available to
him, the Administrator finds that any person is in violation of any condition or
limitation which implements section 301, 302, 306, 307, 308, or 316 of this Act
in a permit issued by a State under an approved permit program under section
402 of this Act, he shall proceed under his authority in paragraph (3) of this
subsection or he shall notify the person in alleged violation and such State of
such finding. If beyond the thirtieth day after the Administrator's notification
the State has not commenced appropriate enforcement action, the Administrator
shall issue an order requiring such person to comply with such condition or lim-
itation or shall bring a civil action in accordance with subsection (b) of this
section.
"(2) Whenever, on the basis of information available to him, the Administra-
tor finds that violations of permit conditions or limitations as set forth in para-
graph (1) of this subsection are so widespread that such violations appear to
result from a failure of the State to enforce such permit conditions or limita-
tions effectively, he shall so notify the State. If the Administrator finds such
failure extends beyond the thirtieth day after such notice, he shall give public
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238 LEGAL COMPILATION—SUPPLEMENT I
notice of such finding. During the period beginning with such public notice and
ending when such State satisfies the Administrator that it will enforce such
conditions and limitations (hereafter referred to in this section as the period
of 'federally assumed enforcement'), the Administrator shall enforce any permit
condition or limitation with respect to any person—
"(A) by issuing an order to comply with such condition or limitation,
or
"(B) by bringing a civil action under subsection (b) of this section.
"(3) Whenever on the basis of any information available to him the Admin-
istrator finds that any person is in violation of section 301, 302, 306, 307, 308, or
316 of this Act, or is in violation of any permit condition or limitation imple-
menting any of such sections, in a permit issued under section 402 of this Act
by him or by a State, he shall issue an order requiring such person to comply
with such section or requirement, or he shall bring a civil action in accordance
with subsection (b) of this section.
"(4) A copy of any order issued under this subsection shall be sent immedi-
ately by the Administrator to the State in which the violation occurs and other
affected States. Any order issued under this subsection shall be by personal
service and shall state with reasonable specificity the nature of the violation,
specify a time for compliance, not to exceed thirty days, which the Administrator
determines is reasonable, taking into account the seriousness of the violation
and any good faith efforts to comply with applicable requirements. In any case
in which an order under this subsection (or notice to a violator under para-
graph (1) of this subsection) is issued to a corporation, a copy of such order
(or notice) shall be served on any appropriate corporate officers. An order
issued under this subsection relating to a violation of section 308 of this Act
shall not take effect until the person to whom it is issued has had an oppor-
tunity to confer with the Administrator concerning the alleged violation.
"(b) The Administrator is authorized to commence a civil action for appro-
priate relief, including a permanent or temporary injunction, for any violation
for which he is authorized to issue a compliance order under subsection (a)
of this section. Any action under this subsection may be brought in the
district court of the United States for the district in which the defendant is
located or resides or is doing business, and such court shall have jurisdiction
to restrain such violation and to require compliance. Notice of the commencement
of such action shall be given immediately to the appropriate State.
"(c)(l) Any person who willfully or negligently violates section 301, 302,
306, 307, 308, or 316 of this Act, or any permit condition or limitation imple-
menting any of such sections in a permit issued under section 402 of this Act
by the Administrator or by a State, shall be punished by a fine of not less than
$2,500 nor more than $25,000 per day of violation, or by imprisonment for not
more than one year, or by both. If the conviction is for a violation committed
after a first conviction of such person under this paragraph, punishment shall
be by a fine of not more than $50,000 per day of violation, or by imprisonment
for not more than two years, or by both.
"(2) 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 falsifies, tampers with, or
knowingly renders inaccurate any monitoring device or method required to be
maintained 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.
"(3) For the purposes of this subsection, the term 'person' shall mean, in addi-
tion to the definition contained in section 505(5) of this Act, any responsible
corporate officer.
"(d) Any person who violates section 301, 302, 306, 307, 308, or 316 of this
Act, or any permit condition or limitation implementing any of such sections in
a permit issued under section 402 of this Act by the Administrator, or by a
State, and any person who violates any order issued by the Administrator under
subsection (a) of this section, shall be subject to a civil penalty not to exceed
$10,000 per day of such violation.
"(e) Whenever a municipality is a party to a civil action brought by the
United States under this section, the State in which such municipality is located
shall be joined as a party. Such State shall be liable for payment of any judg-
ment, or any expenses incurred as a result of complying with any judgment,
entered against the municipality in such action to the extent that the laws of
that State prevent the municipality from raising revenues needed to comply with
such judgment.
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WATER—STATUTES AND LEGISLATIVE HISTORY 239
INTERNATIONAL POLLUTION ABATEMENT
"SEC. 310. (a) Whenever the Administrator, upon receipts of reports, surveys,
or studies from any duly constituted international agency, has reason to believe
that pollution is occurring which endangers the health or welfare of persons in a
foreign country, and the Secretary of State requests him to abate such pollution,
he shall give formal notification thereof to the State water pollution control
agency of the State or States in which such discharge or discharges originate
and to the appropriate interstate agency, if any. He shall also promptly call such
a hearing, if he believes that such pollution is occurring in sufficient quantity to
warrant such action, and if such foreign country has1 given the United States
essentially the same results with respect to the prevention and control of pollution
occurring in that country as is given that country by this subsection. The Ad-
ministrator, through the Secretary of State, shall invite the foreign country
which may be adversely affected by the pollution to attend and participate in
the hearing, and the representative of such country shall, for the purpose of the
hearing and any further proceeding resulting from such hearing, have all the
rights of a State water pollution control agency. Nothing in this subsection shall
be construed to modify, amend, repeal, or otherwise affect the provisions of the
3909 Boundary Waters Treaty between Canada and the United States or the
Water Utilization Treaty of 1944 between Mexico and the United States (59
Stat. 1219), relative to the control and abatement of pollution in waters covered
by those treaties.
"(b) The calling of a hearing under this section shall not be construed by the
courts, the Administrator, or any person as limiting, modifying, or otherwise
affecting the functions and responsibilities of the Administrator under this
section to establish and enforce water quality requirements under this Act.
"(c) The Administrator shall publish in the Federal Register a notice of a
public hearing before a hearing board of five or more persons appointed by the
Administrator. A majority of the members of the board and the chairman who
shall be designated by the Administrator shall not be officers or employees of
Federal, State, or local governments. On the basis of the evidence presented at
such hearing, the board shall within sixty days after completion of the hearing
make findings of fact as to whether or not such pollution is occurring and shall
thereupon by decision, incorporating its findings therein, make such recommen-
dations to abate the pollution as may be appropriate and shall transmit such
decision and the record of the hearings to the Administrator. All such decisions
shall be public. Upon receipt of such decision, the Administrator shall promptly
implement the board's decision in accordance with the provisions of this Act
"(d) In connection with any hearing called under this subsection, the board
is authorized to require any person whose alleged activities result in discharges
causing or contributing to pollution to file with it in such forms as it may pre-
scribe, a report based on existing data, furnishing such information as may rea-
sonably be required as to the character, kind, and .quantity of such discharges
and the use of facilities or other means to prevent or reduce such discharges by
the person filing such a report. Such report shall be made under oath or other-
wise, as the board may prescribe, and shall be filed with the board within such
reasonable period as it may prescribe, unless additional time is granted by it.
Upon a showing satisfactory to the board by the person filing such report that
such report or portion thereof (other than effluent data), to which the Admin-
istrator has access under this section, if made public would divulge trade secrets
or secret processes of such person, the board shall consider such report or portion
thereof confidential for the purposes of section 1905 of title 18 of the United
States Code. If any person required to file any report under this paragraph shall
fail to do so within the time fixed by the board for filing the same, and such
failure shall continue for thirty days after notice of such default, such person
shall forfeit to the United States the sum of $1,000 for each and every day of
the continuance of such failure, which forfeiture shall be payable into the
Treasury of the United States, and shall be recoverable in a civil suit in the
name of the United States in the district court of the United States where such
person has his principal office or in any district in which he does business. The
Administrator may upon application therefor remit or mitigate any forfeiture
provided for under this subsection.
"(e) Board members, other than officers or employees of Federal, State, or
local governments, shall be, for each day (including traveltime) during which
they are performing board business, entitled to receive compensation at a rate
fixed by the Administrator but not in excess of the maximum rate of pay for
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240 LEGAL COMPILATION—SUPPLEMENT I
grade GS-18, as provided in the General Schedule under section 5332 of title 5
of the United States Code, and shall, notwithstanding the limitations of sections
5703 and 5704 of title 5 of the United States Code, be fully reimbursed for travel,
subsistence, and related expenses.
"(f) When any such recommendation adopted by the Administrator involves
the institution of enforcement proceedings against any person to obtain the
abatement of pollution subject to such recommendation, the Administrator shall
institute such proceedings if he believes that the evidence warrants such pro-
ceedings. The district court of the United States shall consider and determine
de novo all relevant issues, but shall receive in evidence the record of the pro-
ceedings before the conference or hearing board. The court shall have jurisdic-
tion to enter such judgment and orders enforcing such judgment as it deems
appropriate or to remand such proceedings to the Administrator for such further
action as it may direct.
"OIL AND HAZARDOUS SUBSTANCE LIABILITY
"SEC. 311. (a) For the purpose of this section, the term—
"(1) 'oil' means oil of any kind or in any form, including, but not limited
to, petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes other
than dredged spoil;
"(2) 'discharge' includes, but is not limited to, any spilling, leaking, pump-
ing, pouring, emitting, emptying or dumping;
"(3) 'vessel' means every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of transportation
on water other than a public vessel;
"(4) 'public vessel' means a vessel owned or bare-boat-chartered and
operated by the United States, or by a State or political subdivision thereof,
or by a foreign nation, except when such vessel is engaged in commerce;
"(5) 'United States' means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa.
the Virgin Islands, and the Trust Territory of the Pacific Islands;
"(6) 'owner or operator' means (A) in the case of a vessel, any person
owning, operating, or chartering by demise, such vessel, and (B) in the
case of an onshore facility, and an offshore facility, any person owning or
operating such onshore facility or offshore facility, and (C) in the case
of any abandoned offshore facility, the person who owned or operated such
facility immediately prior to such abandonment;
"(7) 'person' includes an individual, firm, corporation, association, and
a partnership;
"(8) 'remove' or 'removal' refers to removal of the oil or hazardous
substances from the water and shorelines or the taking of such other actions
as may be necessary to minimize or mitigate damage to the public health
or welfare, including, but not limited to, fish, shellfish, wildlife, and public
and private property, shorelines, and beaches;
"(9) 'contiguous zone' means the entire zone established or to be estab-
lished by the United States under article 24 of the Convention on the Terri-
torial Sea and the Contiguous Zone;
"(10) 'onshore facility' means any facility (including, but not limited to,
motor vehicles and rolling stock) of any kind located in, on, or under, any
land within the United States other than submerged land;
"(11) 'offshore facility' means any facility of any kind located in, on,
or under, any of the navigable waters of the United States other than a
vessel or a public vessel;
"(12) 'act of God' means an act occasioned by an unanticipated grave
natural disaster;
"(13) 'barrel' means 42 -United States gallons at 60 degrees Fahrenheit;
"(14) 'hazardous substance' means any substance designated pursuant
to subsection (b) (2) of this section.
"(b)(l) The Congress hereby declares that it is the policy of the United
States that there should be no discharges of oil or hazardous substances into or
upon the navigable waters of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone.
"(2) (A) The Administrator shall develop, promulgate, and revise as may be
appropriate, regulations designating as hazardous substances, other than oil
as defined in this section, such elements and compounds which, when discharged
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WATER—STATUTES AND LEGISLATIVE HISTORY 241
in any quantity into or upon the navigable waters of the United States or ad-
joining shorelines or the waters of the contiguous zone, present an imminent and
substantial danger to the public health or welfare, including, but not limited to,
fish, shellfish, wildlife, shorelines, and beaches.
"(B) (i) The Administrator shall include in any designation under subpara-
graph (A) of this subsection a determination whether any such designated haz-
ardous substance is itself actually removable.
"(ii) The owner or operator of any vessel, onshore facility, or offshore facility
from which there is discharged any hazardous substance determined not remov-
able under clause (i) of this subparagraph shall be liable, subject to the defenses
to liability provided under subsection (f) of this section, as appropriate, to the
United States for a civil penalty per discharge established by the Administrator
based on toxicity, degradability, and disposal characteristics of such substance,
in an amount not to exceed $50,000, except that where the United States can
show that such discharge was a result of willful negligence or willful misconduct
within the privity and knowledge of the owner, such owner or operator shall be
liable to the United States for a civil penalty in such amount as the Adminis-
trator shall establish, based upon the toxicity, degradability, and disposal char-
acteristics of such substance.
"(3) The discharge of oil or hazardous substances into or upon the navigable
waters of the United States, adjoining shorelines, or into or upon the waters of
the contiguous zone in harmful quantities as determined by the President under
paragraph (4) of this subsection, is prohibited, except (A) in the case of such
discharges of oil into the waters of the contiguous zone, where permitted under
article IV of the International Convention for the Prevention of Pollution of the
Sea by Oil, 1954. as amended, and (B) where permitted in quantities and at
times and locations or under such circumstances or conditions as the President
may, by regulation, determine not to be harmful. Any regulations issued under
this subsection shall be consistent with maritime safety and with marine and
navigation laws and regulations and applicable water quality standards.
"(4) The President shall by regulation, to be issued as soon as possible after
the date of enactment of this paragraph, determine for the purposes of this sec-
tion, those quantities of oil and any hazardous substance the discharge of which,
at such times, locations, circumstances, and conditions, will be harmful to the
public health or welfare of the United States, including, but not limited to, fish,
shellfish, wildlife, and public and private property, shorelines, and beaches except
that in the case of the discharge of oil into or upon the waters of the contiguous
zone, only those discharges which threaten the fishery resources of the con-
tiguous zone or threatens to pollute or contribute to the pollution of the territory
or the territorial sea of the United States may be determined to be harmful.
"(5) Any person in charge of a vessel or of an onshore facility or an offshore
facility shall, as soon as he has knowledge of any discharge of oil or a hazardous
substance from such vessel or facility in violation of paragraph (2) of this sub-
section, immediately notify the appropriate agency of the United States Govern-
ment of such discharge. Any such person who fails to notify immediately such
agency of such discharge shall, upon conviction, be fined not more than $10,000,
or imprisoned for not more than one year, or both. Notification received pursuant
to this paragraph or information obtained by the exploitation of such notification
shall not be used against any such person in any criminal case, except a prosecu-
tion for perjury or for giving a false statement.
"(6) Any owner or operator of any vessel, onshore facility, or offshore facility
from which oil or a hazardous substance is discharged in violation of paragraph
(2) of this subsection shall be assessed a civil penalty by the Secretary of the
department in which the Coast Guard is operating of not more than $5,000 for
each offense. No penalty shall be assessed unless the owner or operator charged
shall have been given notice and opportunity for a hearing on such charge. Each
violation is a separate offense. Any such civil penalty may be compromised by
such Secretary. In determining the amount of the penalty, or the amount agreed
upon in compromise, the appropriateness of such penalty to the size of the
business of the owner or operator charged, the effect on the owner or operator's
ability to continue in business, and the gravity of the violation, shall be con-
sidered by such Secretary. The Secretary of the Treasury shall withhold at the
request of such Secretary the clearance required by section 4197 of the Revised
Statutes of the United States, as amended (46 U.S.C. &1), of any vessel the
owner or operator of which is subject to the foregoing penalty. Clearance may
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242 LEGAL COMPILATION—SUPPLEMENT I
be granted in such cases upon the filing of a bond or other surety satisfactory to
such Secretary.
"(c) (1) Whenever any oil or a hazardous substance is discharged, into or upon
the navigable waters of the United States, adjoining shorelines, or into or upon
the waters of the contiguous zone, the President is authorized to act to remove
or arrange for the removal of such oil or substance at any time, unless he deter-
mines such removal will be done properly by the owner or operator of the vessel,
onshore facility, or offshore facility from which the discharge occurs.
"(2) Within sixty days after the effective date of this section, the President
shall prepare and publish a National Contingency Plan for removal of oil and
hazardous substances, pursuant to this subsection. Such National Contingency
Plan shall provide for efficient, coordinated, and effective action to minimize
damage from oil and hazardous substance discharges, including containment,
dispersal, and removal of oil and hazardous substances, and shall include, but
not limited to—
"(A) assignment of duties and responsibilities among Federal departments
and agencies in coordination with State and local agencies, including, but not
limited to, water pollution control, conservation, and port authorities;
"(B) identification, procurement, maintenance, and storage of equipment
and supplies;
"(C) establishment or designation of a strike force consisting of personnel
who shall be trained, prepared, and available to provide necessary services
to carry out the Plan, including the establishment at major ports, to be
determined by the President, of emergency task forces of trained personnel,
adequate oil and hazardous substance pollution control equipment and
material, and a detailed oil and hazardous substance pollution prevention
and removal plan;
"(D) a system of surveillance and notice designed to insure earliest
possible notice of discharges of oil and hazardous substances to the appro-
priate Federal agency;
"(E) establishment of a national center to provide coordination and
direction for operations in carrying out the Plan;
"(F) procedures and techniques to be employed in identifying, containing.
dispersing, and removing oil and hazardous substances ; and
"(G) a schedule, prepared in cooperation with the States, identifying (i)
dispersants and other chemicals, if any, that may be used in carrying out
the Plan, (ii) the waters in which such dispersants and chemicals may be
used, and (iii) the quantities of such dispersant or chemical which can be
used safely in such waters, which schedule shall provide in the case of any
dispersant. chemical, or waters not specifically identified in such schedule
that the President, or his delegate, may, on a case-by-case basis, identify the
disperants and other chemicals which may be used, the waters in which
they may be used, and the quantities which can be used safely in such waters,
The President may, from time to time, as he deems advisable revise or otherwise
amend the National Contingency Plan. After publication of the National Con-
tingency Plan, the removal of oil and hazardous substances and actions to mini-
mize damage from oil and hazardous substance discharges shall, to the greatest
extent possible, be in accordance with the National Contingency Plan.
"(d) Whenever a marine disaster in or upon the navigable waters of the
United States has created a substantial threat of a pollution hazard to the public
health or welfare of the United States, including, but not limited to, fish, shell-
fish, and wildlife and the public and private shorelines and beaches of the
United States, because of a discharge, or an imminent discharge, of large quan-
tities of oil, or of a hazardous substance from a vessel the United States may
(A) coordinate and direct all public and private efforts directed at the removal
or elimination of such threat; and (B) summarily remove, and, if necessary,
destroy such vessel by whatever means are available without regard to any
provisions of law governing the employment of personnel or the expenditure of
appropriated funds. Any expense incurred under this subsection shall be a cost
incurred by the United States Government for the purposes of subsection (f)
in the removal of oil or hazardous substance.
"(e) In addition to any other action taken by a State or local government,
when the President determines there is an imminent and substantial threat to
the public health or welfare of the United States, including, but not limited to,
fish, shellfish, and wildlife and public and private property, shorelines, and
beaches within the United States, because of an actual or threatened discharge
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WATER—STATUTES AND LEGISLATIVE HISTORY 243
of oil or hazardous substance into or upon the navigable waters of the United
States from an onshore or offshore facility, the President may require the United
States attorney of the district in which the threat occurs to secure such relief
as may be necessary to abate such threat, and the district courts of the United
States shall have jurisdiction to grant such relief as the public interest and the
equities of the case may require.
"(f) (1) Except where an owner or operator can prove that a discharge was
caused solely by (A) an act of God, (B) an act of war, (C) negligence on the
part of the United States Government, or (D) an act or omission of a third
party without regard to whether any such act or omission was or was not negli-
gent, or any combination of the foregoing clauses, such owner or operator of
any vessel from which oil or a hazardous substance is discharged in violation
of subsection (b) (2) of this section shall, notwithstanding any other provision
of law, be liable to the United States Government for the actual costs incurred
under subsection (c) for the removal of such oil or substance by the United
States Government in an amount not to exceed $100 per gross ton of such vessel
or $14,000,000, whichever is lesser, except that where the United States can
show that such discharge was the result of willful negligence or willful mis-
conduct within the privity and knowledge of the owner, such owner or operator
shall be liable to the United States Government for the full amount of such costs.
Such costs shall constitute a maritime lien on such vessel which may be recovered
in an action in rem in the district court of the United States for any district
within which any vessel may be found. The United States may also bring an
action against the owner or operator of such vessel in any court of competent
jurisdiction to recover such costs.
"(2) Except where an owner or operator of an onshore facility can prove that
a discharge was caused solely by (A) an act of God, (B) an act of war, (C)
negligence on the part of the United States Government, or (D) an act or omis-
sion of a third party without regard to whether any such act or omis-
sion was or was not negligent, or any combination of the foregoing clauses, such
owner or operator of any such facility from which oil or a hazardous substance
is discharged in violation of subsection (b) (2) of this section shall be liable to
the United States Government for the actual costs incurred under subsection (c)
for the removal of such oil or substance by the United States Government in an
amount not to exceed $8,000,000, except that where the United States can show
that such discharge was the result of willful negligence or willful misconduct
within the privity and knowledge of the owner, such owner or operator shall
be liable to the United States Government for the full amount of such costs.
The United States may bring an action against the owner or operator of such
facility in any court of competent jurisdiction to recover such costs. The Secre-
tary is authorized, by regulation, after consultation with the Secretary of Com-
merce and the Small Business Administration, to establish reasonable and
equitable classifications of those onshore facilities having a total fixed storage
capacity of 1,000 barrels or less which he determines because of size, type, and
location do not present a substantial risk of the discharge of oil or a hazardous
substance in violation of subsection (b) (2) of this section, and apply with re-
spect to such classifications differing limits of liability which may be less than
the amount contained in this paragraph.
"(3) Except where an owner or operator of an offshore facility can prove
that a discharge was caused solely by (A) an act of God, (B) an act of war, (C)
negligence on the part of the United States Government, or (D) an act or
omission of a third party without regard to whether any such act or omission
was or was not negligent, or any combination of the foregoing clauses, such
owner or operator of any such facility from which oil or a hazardous substance
is discharged in violation of subsection (b) (2) of this section shall, notwith-
standing any other provision of law, be liable to the United States Government
for the actual costs incurred under subsection (c) for the removal of such oil
or substance by the United States Government in an amount not to exceed
$8,000,000, except that where the United States can show that such discharge
was the result of willful negligence or willful misconduct within the privity
and knowledge of the owner, such owner or operator shall be liable to the
United States Government for the full amount of such costs. The United States
may bring an action against the owner or operator of such a facility in any
court of competent jurisdiction to recover such costs.
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244 LEGAL COMPILATION—SUPPLEMENT I
"(g) In any case where an owner or operator of a vessel, of an onshore
facility, or of an offshore facility, from which oil or a hazardous substance is
discharged in violation of subsection (b) (2) of this section, proves that such
discharge of oil or hazardous substance was caused solely by an act or omission
of a third party, or was caused solely by such an act or omission in combina-
tion with an act of God, an act of war, or negligence on the part of the United
States Government, such third party shall, notwithstanding any other provision
of law, be liable to the United States Government for the actual costs incurred
under subsection (c) for removal of such oil or substance by the United States
Government, except where such third party can prove that such discharge was
caused solely by (A) an act of God, (B) an act of war, (C) negligence on the
part of the United States Government, or (D) an act or omission of another
party without regard to whether such act or omission was or was not negligent,
or any combination of the foregoing clauses. If such third party was the owner
or operator of a vessel which caused the discharge of oil or a hazardous sub-
stance in violation of subsection (b) (2) of this section, the liability of such
third party under this subsection shall not exceed $100 per gross ton of such
vessel or $14,000,000, whichever is the lesser. In any other case the liability
of such third party shall not exceed the limitation which would have been ap-
plicable to the owner or operator of the vessel or the onshore or offshore facility
from which the discharge actually occured if such owner or operator were
liable. If the United States can show that the discharge of oil or a hazardous
substance in violation of subsection (b) (2) of this section was the result of
willful negligence or willful misconduct within the privity and knowledge of
such third party, such third party shall be liable to the United States Govern-
ment for the full amount of such removal costs. The United States may bring
an action against the third party in any court of competent jurisdiction to re-
cover such removal costs.
"(h) The liabilities established by this section shall in no way affect any
rights which (1) the owner or operator of a vessel or of an onshore facility or
an offshore facility may have against any third party whose acts may in any
way have caused or contributed to such discharge, or (2) the United States
Government may have against any third party whose actions may in any way
have caused or contributed to the discharge of oil or hazardous substance.
"(i) (1) In any case where an owner or operator of a vessel or an onshore
facility or an offshore facility from which oil or a hazardous substance is dis-
charged in violation of subsection (b) (2) of this section acts to remove such
oil or substance in accordance with regulations promulgated pursuant to this
section, such owner or operator shall be entitled to recover the reasonable
costs incurred in such removal upon establishing, in a suit which may be brought
against the United States Government in the United States Court of Claims,
that such discharge was caused solely by (A) an act of God, (B) an act of
war, (C) negligence on the part of the United States Government, or (D) an
act or omission of a third party without regard to whether such act or omission
was or was not negligent, or of any combination of the foregoing causes.
"(2) The provisions of this subsection shall not apply in any case where
liability is established pursuant to the Outer Continental Shelf Lands Act.
"(3) Any amount paid in accordance with a judgment of the United States
Court of Claims pursuant to this section shall be paid from the fund established
pursuant to subsection (k).
"(j)(l) Consistent with the National Contingency Plan required by subsec-
tion (c) (2) of this section, as soon as practicable after the effective date of this
section, and from time to time thereafter, the President shall issue regulations
consistent with maritime safety and with marine and navigation laws (A) estab-
lishing methods and procedures for removal of discharged oil and hazardous
substances, (B) establishing criteria for the development and implementation of
local and regional oil and hazardous substance removal contingency plans, (C)
establishing procedures, methods, and equipment and other requirements for
equipment to prevent discharges of oil and hazardous substances from vessels
and from onshore facilities and offshore facilities, and to contain such discharges
and (D) governing the inspection of vessels carrying cargoes of oil and hazardous
substances and the inspection of such cargoes in order to reduce the likelihood
of discharges of oil from vessels in violation of this section.
"(2) Any owner or operator of a vessel or an onshore facility or an offshore
facility and any other person subject to any regulation issued under paragraph
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WATER—STATUTES AND LEGISLATIVE HISTORY 245
(1) of this subsection who fails or refuses to comply with the provisions of any
such regulation, shall be liable to a civil penalty of not more than $5,000 for each
such violation. Bach violation shall be a separate offense. The President may
assess and compromise such penalty. No penalty shall be assessed until the
owner, operator, or other person charged shall have been given notice and an
opportunity for a hearing on such charge. In determining the amount of the
penalty, or the amount agreed upon in compromise, the gravity of the violation,
and the demonstrated good faith of the owner, operator, or other person charged
in attempting to achieve rapid compliance, after notification of a violation, shall
be considered by the President.
"(k) There is hereby authorized to be appropriated to a revolving fund to be
established in the Treasury not to exceed $35,000,000 to carry out the provisions
of subsections (c), (d), (i), and (1) of this section. Any other funds received
by the United States under this section shall also be deposited in said fund for
such purposes. All sums appropriated to, or deposited in, said fund shall remain
available until expended.
"(1) The President is authorized to delegate the administration of this sec-
tion to the heads of those Federal departments, agencies, and instrumentalities
which he determines to be appropriate. Any moneys in the fund established by
subsection (k) of this section shall be available to such Federal developments,
agencies, and instrumentalities to carry out the provisions of subsections (c)
and (i) of this section. Each such department, agency, and instrumentality, in
order to avoid duplication of effort, shall, whenever appropriate, utilize the per-
sonnel, services, and facilities of other Federal departments, agencies, and in-
strumentalities.
"(m) Anyone authorized by the President to enforce the provisions of this
section may, except as to public vessels, (A) board and inspect any vessel upon
the navigable waters of the United States or the waters of the contiguous zone,
(I?) with or without a warrant arrest any person who violates the provisions of
this section or any regulation issued thereunder in his presence or view, and (C)
execute any warrant or other process issued by an officer or court of competent
jurisdiction.
"(n) The several district courts of the United States are invested with juris-
diction for any actions other than actions pursuant to subsection (i) (1), arising
under this section. In the case of Guam and the Trust Territory of the Pacific
Islands, such actions may be brought in the district court of Guam, and in the
case of the Virgin Islands such actions may be brought in the district court of
the Virgin Islands. In the case of American Samoa and the Trust Territory
of the Pacific Islands, such actions may be brought in the District Court of the
United States for the District of Hawaii and such court shall have jurisdiction
of such actions. In the case of the Canal Zone, such action may be brought in
the United States District Court for the District of the Canal Zone.
"(o) (1) Nothing in this section shall affect or modify in any way the obliga-
tions of any owner or operator of any vessel, or of any owner or operator of
any onshore facility or offshore facility to any person or agency under any pro-
vision of law for damages to any publicly owned or privately owned property
resulting from a discharge of any oil or hazardous substance or from the re-
moval of any such oil or hazardous substance.
"(2) Nothing in this section shall be construed as preempting any State or
political subdivision thereof from imposing any requirement or liability with
respect to the discharge of oil or hazardous substance into any waters within
such State.
''(3) Nothing in this section shall be construed as affecting or modifying any
other existing authority of any Federal department, agency, or instrumentality,
relathe to onshore or offshore facilities under this Act or any other provision
of law, or to affect any State or local law not in conflict with this section.
"(p)(l) Any vessel over three hundred gross tons, including any barge of
equivalent size, but not including any barge that is not self-propelled and that
.does not carry oil or hazardous substances as cargo or fuel, using any port or
place in the United States or the navigable waters of the United States for any
purpose shall establish and maintain under regulations to be prescribed from
time to time by the President, evidence of financial responsibility of $100 per
gross ton, or $14,000,000 whichever is the lesser, to meet the liability to the United
States which such vessel could be subjected under this section. In cases where
an owner or operator owns, operates, or charters more than one such vessel, finan-
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246 LEGAL COMPILATION—SUPPLEMENT I
cial responsibility need only be established to meet the maximum liability to
which the largest of such vessels could be subjected. Financial responsibility may
be established by any one of, or a combination of, the following methods accept-
able to the President: (A) evidence of insurance, (B) surety bonds, (C) quali-
fication as a self-insurer, or (D) other evidence of financial responsibility. Any
bond filed shall be issued by a bonding company authorized to do business in
the United States.
"(2) The provisions of paragraph (1) of this subsection shall be effective
April 3,1971, with respect to oil and one year after the date of enactment of this
section with respect to hazardous susbtances. The President shall delegate the
responsibility to carry out the provisions of this subsection to the appropriate
agency head within sixty days after the date of enactment of this section. Regu-
lations necessary to implement this subsection shall be issued within six months
after the date of enactment of this section.
"(3) Any claim for costs incurred by such vessel may be brought directly
against the insurer or any other person providing evidence of financial respon-
sibility as required under this subsection. In the case of any action pursuant to
this subsection such insurer or ot her person shall be entitled to invoke all rights
and defenses which would have been available to the owner or operator if an
action had been brought against them by the claimant, and which would have
been available to him if an action had been brought against him by the owner
or operator.
"MARINE SANITATION DEVICES
"SEC. 312. (a) For the purpose of this section, the term—
"(1) 'new vessel' includes every description of watercraft or other artifi-
cial contrivance used, or capable of being used, as a means of transporta-
tion on the navigable waters, the construction of which is initiated after
promulgation of standards and regulations under this section;
"(2) 'existing vessel' includes every description of watercraft or other
artificial contrivance used, or capable of being used, as a means of trans-
portation on the navigable waters, the construction of which is initiated
before promulgation of standards and regulations under this section;
"(3) 'public vessel' means a vessel owned or bareboat chartered and
operated by the United States, by a State or political subdivision thereof,
or by a foreign nation, except when such vessel is engaged in commerce;
"(4) 'United States' includes the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Canal Zone, and the Trust Territory of the Pacific Islands;
"(5) 'marine sanitation device' includes any equipment for installation
on board a vessel which is designed to receive, retain, treat, or discharge
sewage, and any process to treat such sewage;
" (6) 'sewage' means human body wastes and the wastes from toilets and
other receptacles intended to receive or retain body wastes;
"(7) 'manufacturer' means any person engaged in the manufacturing,
assembly, or importation of marine sanitation devices or of vessels subject
to standards and regulations promulgated under this section;
"(8) 'person' means an individual, partnership, firm, corporation, or as-
sociation, but does not include an individual on board a public vessel;
"(9) 'discharge' includes, but is not limited to, any spilling, leaking, pump-
ing, pouring, emitting, emptying, or dumping.
"(b) (1) As soon as possible, after the enactment of this section and subject
to the provisions of section 104(j) of this Act, the Administrator, after consulta-
tion with the Secretary of the department in which the Coast Guard is operat-
ing, after giving appropriate consideration to the economic costs involved, and
within the limits of available technology, shall promulgate Federal standards
of performance for marine sanitation devices (hereafter in this section referred
to as 'standards') which shall be designed to prevent the discharge of untreated
or inadequately treated sewage into or upon the navigable waters from new
vessels and existing vessels, except vessels not equipped with installed toilet
facilities. Such standards shall be consistent with maritime safety and the ma-
rine and navigation laws and regulations and shall be coordinated with the
regulations issued under this subsection by the Secretary of the department in
which the Coast Guard is operating. The Secretary of the department in which
the Coast Guard is operating shall promulgate regulations, which are consistent
with standards promulgated under this subsection and with maritime safety
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WATER—STATUTES AND LEGISLATIVE HISTORY 247
and the marine and navigation laws and regulations governing the design, con-
struction, installation, and operation of any marine sanitation device on board
such vessels.
"(2) Any existing vessel equipped with a marine sanitation device on the
date of promulgation of initial standards and regulations under this section,
which device is in compliance with such initial standards and regulations, shall
be deemed in compliance with this section until such time as the device is re-
placed or is found not to be in compliance with such initial standards and regula-
tions.
"(c)(l) Initial standards and regulations under this section shall become
effective for new vessels two years after promulgation; and for existing vessels
five years after promulgation. Revisions of standards and regulations shall be
effective upon promulgation, unless another effective date is specified, except
that no revision shall take effect before the effective date of the standard or regu-
lation being revised.
"(2) The Secretary of the department in which the Coast Guard is operating
with regard to his regulatory authority established by this section, after con-
sultation with the Administrator, may distinguish among classes, type, and
sizes of vessels as well as between new and existing vessels, and may waive ap-
plicability of standards and regulations as necessary or appropriate for such
classes, types, and sizes of vessels (including existing vessels equipped with
marine sanitation devices on the date of promulgation of the initial standards
required by this section), and, upon application, for individual vessels.
"(d) The provisions of this section and the standards and regulations promul-
gated hereunder apply to vessels owned and operated by the United States unless
the Secretary of Defense finds that compalince would not be in the interest of
national security. With respect to vessels owned and operated by the Department
of Defense, regulations under the last sentence of subsection (b) (1) of this sec-
tion and certifications under subsection (g) (2) of this section shall be promul-
gated and issued by the Secretary of Defense.
"(e) Before the standards and regulations under this section are promulgated,
the Administrator and the Secretary of the department in which the Coast Guard
is operating shall consult with the Secretary of State; the Secretary of Health,
Education, and Welfare; the Secretary of Defense; the Secretary of the Treas-
ury ; the Secretary of Commerce; other interested Federal agencies; and the
States and indutsries interested; and otherwise comply with the requirements of
section 553 of title 5 of the United States Code.
"(f) (1) After the effective date of the initial standards and regulations pro-
mulgated under this section, no State or political subdivision thereof shall adopt
or enforce any statute or regulation of such State or political subdivision with
respect to the design, manufacture, or installation or use of any marine sanita-
tion device on any vessel subject to the provisions of this section.
"(2) If, after promulgation of the initial standards and regulations and prior
to their effective date, a vessel is equipped with a marine sanitation device in
complaince with such standards and regulations and the installation and opera-
tion of such device is in accordance with such standards and regulations, such
standards and regulations shall, for the purposes of paragraph (1) of this sub-
section, become effective with respect to such vessel on the date of such com-
pliance.
"(3) If the Administrator determines upon application by a State that the
protection and enhancement of the quality of specified waters within such State
requires such a prohibition, he shall by regulation completely prohibit the dis-
charge from a vessel of any sewage f whether treated or not) into such waiters.
"(g) (1) No manufacturer of a marine sanitation device shall sell, offer for
sale, or introduce or deliver for introduction in interstate commerce, or import
into the United States for sale or resale any marine sanitation device manufac-
tured after the effective date of the standards and regulations promulgated
under this section unless such device is in all material respects substantially the
same as a test device certified under this subsection.
"(2) Upon application of the manufacturer, the Secretary of the department
in which the Coast Guard is operating shall so certify a marine sanitation device
if he determines, in accordance with the provisions of this paragraph, that it
meets the appropriate standards and regulations promulgated under this section.
The Secretary of the department in which the Coast Guard is operating shall
test or require such testing of the device in accordance with procedures set forth
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248 LEGAL COMPILATION—SUPPLEMENT I
by the Administrator as to standards of performance and for such other pur-
poses as may be appropriate. If the Secretary of the department in which the
Coast Guard is operating determines that the device is satisfactory from the
standpoint of safety and any other requirements of maritime law or regulation,
and after consideration of the design, installation, operation, material, or other
appropriate factors, he shall certify the device. Any device manufactured by such
manufacturer which is in all material respects substantially the same as the
certified test device shall be deemed to be in conformity with the appropriate
standards and regulations established under this section.
"(3) Every manufacturer shall establish and maintain such records, make such
reports, and provide such information as the Administrator or the Secretary of
the department in which the Coast Guard is operating may reasonably require
to enable him to determine whether such manufacturer has acted or is acting in
compliance with this section and regulations issued thereunder and shall, upon
request of an officer or employee duly designated by the Administrator or the
Secretary of the department in which the Coast Guard is operating, permit such
officer or employee at reasonable times to have access to and copy such records.
All information reported to or otherwise obtained by the Administrator or the
Secretary of the department in which the Coast Guard is operating or their
representatives pursuant to this subsection which contains or relates to a trade
secret or other matter referred to in section 1905 of title 18 of the United States
Code shall be considered confidential for the purpose of that section, except
that such information may be disclosed to other officers or employees concerned
with carrying out (his section. This paragraph shall not apply in the case of
the construction of a vessel by an individual for his own use.
"(h) After the effective date of standards and regulations promulgated
under this section, it shall be unlawful—
"(1) for the manufacturer of any vessel subject to .such standards and
regulations to manufacture for sale, to sell or offer for sale, or to distribute
for sale or resale any such vessel unless it is equipped with a marine
sanitation device which is in all material respects substantially the same
as the appropriate test device certified pursuant to this section;
"(2) for any person, prior to the sale or delivery of a vessel subject to
such standards and regulations to the ultimate purchaser, wrongfully to
remove or render inoperative any certified marine sanitation device or
element of design of such device installed in such vessel;
"(3) for anyperson to fail or refuse to permit access to or copying of
records or to fail to make reports or provide information required under
this section: and
"(4) for a vessel subject to such standards ana regulations to operate on
the navigable waters of the United States, if such vessel is not equipped
with an operable marine sanitation device certified pursuant to this section.
"(i) The district courts of the United States shall have jurisdictions to re-
strain violations of subsection (g) (1) of this section and subsection (h) (1)
through (3) of this section. Actions to restrain such violations shall be "brought
by, and in, the name of the United States. In case of contumacy or refusal to obey
a subpena served upon any person under this subsection, the district court of
the United States for any district in which such person is found or resides or
transacts business, upon application by the United States and after notice to
such person, shall have jurisdiction to issue an order requiring such person to
appear and give testimony or to appear and produce documents, and any failure
to obey such order of the court may be punished by such court as a contempt
thereof.
"(j) Any person who violates subsection (g) (1) of this section or clause (1)
or (2) of subsection (h) of this section shall be liable to a civil penalty of not
more than $5.(K)0 for each violation. Any person who violates clause (4) of sub-
section (h) of this section or any regulation issued pursuant to this section
shall be liable to a civil penalty of not more than .?2.000 for each violation. Each
violation shall be a separate offense. The Secretary of the department in which
the Coast Guard is operating may assess and compromise any such penalty.
No penalty shall be assessed until the person charged shall have been given
notice and an opportunity for a hearing on such charge. In determining the
amount of the penalty, or the amount agreed upon in compromise, the gravity
of the violation, and the demonstrated good faith of the person charged in at-
tempting to achieve rapid compliance, after notification of a violaion, shall be
considered by said Secretary.
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WATER—STATUTES AND LEGISLATIVE HISTORY 249
"(k) The provisions of this section shall be enforced by the Secretary of the
department in which the Coast Guard is operating and he may utilize by agree-
ment, with or without reimbursement, law enforcement officers or other person-
nel and facilities of the Administrator, other Federal agencies, or the States to
carry out the provisions of this section.
"(1) Anyone authorized by the Secretary of the department in which the Coast
Guard is operating to enforce the provisions of this section may, except as to
public vessels, (1) board and inspect any vessel upon the navigable waters of
the United States and (2) execute any warrant or other process issued by an
officer or court of competent jurisdiction.
"(m) In the case of Guam and the Trust Territory of the Pacific Islands, ac-
tions arising under this section may be brought in the district court of Guam,
and in the case of the Virgin Islands such actions may be brought in the district
court of the Virgin Islands. In the case of American Samoa and the Trust Terri-
tory of the Pacific Islands, such actions may be brought in the District Court of
the United States for the District of Hawaii and such court shall have jurisdiction
of such actions. In the case of the Canal Zone, such actions may be brought in the
District Court for the District of the Canal Zone.
"FEDERAL FACILITIES POLLUTION CONTROL
"SEC. 313. Each department, agency, or instrumentality of the executive, leg-
islative, and judicial branches of the Federal Government (1) having jurisdiction
over any property or facility, or (2) engaged in any activity resulting, or which
may result, in the discharge or runoff of pollutants shall comply with Federal,
State, interstate, and local requirements respecting control and abatement of
pollution to the same extent that any person is subject to such requirements, in-
cluding the payment of reasonable service charges. The President may exempt
any effluent source of any department, agency, or instrumentality in the executive
branch from compliance with any such a requirement if he determines it to be in
the paramount interest of the United States to do so; except that no exemption
may be granted from the requirements of section 306 or 307 of this Act. No such
exemption shall be granted due to lack of appropriation unless the President shall
have specifically requested such appropriation as a part of the budgetary process
and the Congress shall have failed to make available such requested appropriation.
Any exemption shall be for a period not in excess of one year, but additional ex-
emptions may be granted for periods of not to exceed one year upon the Presi-
dent's making a new determination. The President shall report each January
to the Congress all exemptions from the requirements of this section granted
during the preceding calendar year, together with his reason for granting such
exemption.
"CLEAN LAKES
"SEC. 314. (a) Each State shall prepare or establish, and submit to the Admin-
istrator for his approval—
"(1) an identification and classification according to eutrophic condition
of all publicly owned fresh water lakes in such State;
"(2) procedures, processes, and methods (including land use require-
ments), to control sources of pollution of such lakes ; and
"(3) methods and procedures, in conjunction with appropriate Federal
agencies, to restore the quality of such lakes.
"(b) The Administrator shall provide financial assistance to States in order
to carry out methods and procedures approved by him under this section.
"(c) (1) The amount granted to any State for any fiscal year under this sec-
tion shall not exceed 70 per centum of the funds expended by such State in
such year for carrying out approved methods and procedures under this section.
"(2) There is authorized to be appropriated $100,000,000 for the fiscal year
ending June 30, 1973; and $150,000,000 for the fiscal year 1974 for grants to
States under this section which such sums shall remain available until ex-
pended. The Administrator shall provide for an equitable distribution of such
sums to the States with approved methods and procedures under this section.
"NATIONAL ACADEMIES STUDY
"SEC. 315. (a) The National Academy of Sciences and the National Academy
of Engineering, acting through the National Research Council, shall make a full
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250 LEGAL COMPILATION—SUPPLEMENT I
and complete investigation and study of all of the technological aspects of
achieving, and all aspects of the total economic, social, and environmental
effects of achieving or not achieving, the effluent limitations and goals set forth
for 1981 in section 301(b) (2) of this title. A report shall be submitted to Con-
gress of the results of such investigation and study, together with recommenda-
tions, not later than two years after the date of enactment of this title. JS'owith-
standing the provisions of section 301 (b) (2) of this title or any other provision
of this Act to the contrary, effluent limitations, goals, and policies established
for 1981 for point and nonpoint sources (other than publicly owned treatment
works) and later years for point and nonpoint sources, by this Act shall not
take effect until such time as Congress shall, by statute enacted after the sub-
mission of the report required by this subsection, specifically so provide.
"(b) The heads of the departments, agencies, and instrumentalities of the
executive branch of the Federal Government shall cooperate with the Academies
in carrying out the requirements of subsection (a) of this section, and shall
furnish to such Academies such information as the Academies deem necessary
to carry out this section.
"(c) There is authorized to be appropriated to the President, for use in carry-
ing out this section, not to exceed $15,000,000.
"REGULATION OF THERMAL DISCHARGES
"SEC. 316. (a) As soon as practicable, but not later than one year after enact-
ment of this section, the Administrator shall issue proposed regulations with
respect to control of thermal discharges.
"(b) Such proposed regulations shall recognize that the optimum method of
control of any thermal discharge may depend upon local conditions, including
the type and size of the receiving body of water. The regulations shall require
any person proposing to make such a discharge to consider all alternative meth-
ods for controlling such a discharge, including, but not limited to (1) utilization
of available water bodies or cooling devices, including once-through cooling,
mixing zones, cooling ponds, spray ponds, evaporative or nonevaporative cooling
towers, (2) di'ution of heated waters with cooler waters, and (3) an alteration
of the outlet configuration. In evaluating such alternative methods of control
consideration shall be given to (1) their relative engineering and technical
feasibility, (2) their relative social and economic costs and benefits, (3) their
relative impact on the environment, considering not only water quality but also
air quality, land use, and effective utilization and conservation of natural re-
sources, and (4) methods of minimizing adverse effects and maximizing bene-
ficial effects of such discharges.
"(c) The Administrator shall afford interested persons an opportunity, not
to exceed sixty days, for written comment on such proposed regulations. After
considering such comments, he shall promulgate, within one hundred and twenty
days after publication of such proposed regulations, final regulations. The Ad-
ministrator shall, from time to time, as technology and alternatives change,
revise such regulations.
"(d) Such regulations shall apply to thermal discharges from all sources.
utfess the Administrator determines, after a public hearing requested by the
owner or operator of a point source, that the economic and social co^ts of im-
plementing the regu'ations at a point source bear no reasonable relationship
to the economic and social benefits (including water quality objectives) to be
attained. Any such determination shall be accompanied by an appropriate ad-
justment of such regu'ations for such source, which shall reflect the greatest
degree of control which the Administrator determines can reasonably be achieved
at such source.
"(e) The provisions of this section shall apply to point sources owned or oper-
ated by the United States or instrumentalities thereof.
"FINANCING STUDY
"SEC. 317. (a) The Administrator shall continue to investigate and study the
feasibility of alternate methods of financing the cost of preventing, controlling
and abating pollution as directed in the Water Quality Improvement Act of
1970 (Public Law 91-224), including, but not limited to, the feasibility of es-
tablishing a pollution abatement trust fund. The results of such investigation
and study shall be reported to the Congress not later than two years after
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WATER—STATUTES AND LEGISLATIVE HISTORY 251
enactment of this title, together with recommendations of the Administrator for
financing the programs for preventing, controlling and abating pollution for the
fiscal years beginning after fiscal year 1976, including any necessary legislation.
"(b) There is authorized to be appropriated for use in carrying out this sec-
tion, not to exceed $1,000,000.
"AQUACULTUBE
"SEC. 318. (a) The Administrator is authorized, after public hearings, to per-
mit the discharge of a specific pollutant or pollutants under controlled conditions
associated with an approved aquaculture project under Federal or
State supervision.
"(b) The Administrator shall by regulation, not later than January 1, 1974,
establish any procedures and guidelines he deems necessary to carry out this
section.
"TITLE IV—PERMITS AND LICENSES
"CERTIFICATION
"SEC. 401. (a) (1) Any applicant for a Federal license or permit to conduct
any activity including, but not limited to, the construction or operation of
facilities, which may result in any discharge into the navigable waters, shall
provide the licensing or permitting agency a certification from the State in
which the discharge originates or will originate, or, if appropriate, from the
interstate water pollution control agency having jurisdiction over the naviga-
ble waters at the point where the discharge originates or will originate, that
any such discharge will comply with the applicable provisions of sections 301,
302, 306, 307, and 316 of this Act. In the case of any such activity for which
there is not an applicable effluent limitation or other limitation under sections
301 (b) and 302, and there is not an applicable standard under sections 306 and
307, and there is not an applicable regulation under section 316, the State shall
so certify, except that any such certification shall not be deemed to satisfy sec-
tion 511 (d) of this Act. Such State or interstate agency shall establish pro-
cedures for public notice in the case of all applications for certification by it
and. to the extent it deems appropriate, procedures for public hearings in connec-
tion with specific applications. In any case where a State or interstate agency
has no authority to give such a certification, such certification shall be from the
Administrator. If the State, interstate agency, or Administrator, as the case may
be, fails or refuses to act on a request for certification, within a reasonable period
of time (which shall not exceed one year) after receipt of such request, the cer-
tification requirements of this subsection shall me waived with respect to such
Federal application. No license or permit shall be granted until the certification
required by this section has been obtained or has been waived as provided in
the preceding sentence. No license or permit shall be granted if certification has
been denied by the State, interstate agency, or the Administrator, as the case
may be.
"(2) Upon receipt of such application and certification the licensing or per-
mitting agency shall immediately notify the Administrator of such application
and certification. Whenever such a discharge may affect, as determined by the
Administrator, the quality of the waters of any other State, the Administrator
within thirty days of the date of notice of application for such Federal license
or permit shall so notify such other State, the licensing or permitting agency,
and the applicant. If, within sixty days after receipt of such notification, such
other State determines that such discharge will affect the quality of its waters
so as to violate any water quality requirement in such State, and within such
sixty-day period notifies the Administrator and the licensing or permitting agency
in writing of its objection to the issuance of such license or permit and requests
a public hearing on such objection, the licensing or permitting agency shall hold
such a hearing. The Administrator shall at such hearing submit his evaluation
and recommendations with respect to any such objection to the licensing or
permitting agency. Such agency, based upon the recommendations of such State,
the Administrator, and upon any additional evidence, if any, presented to the
agency at the hearing, shall condition such license or permit in such manner
as may be necessary to insure compliance with applicable water quality require-
ments. If the imposition of conditions cannot insure such compliance such agency
shall not issue such license or permit.
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252 LEGAL COMPILATION—SUPPLEMENT I
"(3) The certification obtained pursuant to paragraph (1) of this subsection
with respect to the construction of any facility shall fulfill the requirements of
this subsection with respect to certification in connection with any other Federal
license or permit required for the operation of such facility unless, after notice
to the certifying State, agency, or Administrator, as the case may be, which shall
be given by the Federal agency to whom application is made for such operating
license or permit, the State, or if appropriate, the interstate agency or the Ad-
ministrator, notifies such agency within sixty days after receipt of such notice
that there is no longer reasonable assurance that there will be compliance with
the applicable provisions of sections 301, 302, 306, 307, and 316 of this Act be-
cause of changes since the construction license or permit certification was issued
in (A) the construction or operation of the facility, (B) the characteristics of the
waters into which such discharge is made, (C) the water quality criteria appli-
cable to such waters or (D) applicable effluent limitations or other requirements.
This paragraph shall be inapplicable in any case where the applicant for such
operating license or permit has failed to provide the certifying State, or, if
appropriate, the interstate agency or the Administrator, with notice of any
proposed changes in the construction or operation of the facility with respect
to which a construction license or permit has been granted, which changes may
result in violation of section 301,302, 306, 307, or 316 of this Act.
"(4) Prior to the initial operation of any federally licensed or permitted fa-
cility or activity which may result in any discharge into the navigable waters and
with respect to which a certification has been obtained pursuant to paragraph (1)
of this subsection, which faciltiy or activity is not subject to a Federal operating
license or permit, the licensee or permittee shall provide an opportunity for such
certifying State, or, if appropriate, the interstate agency or the Administrator to
review the manner in which the facility or activity shall be operated or conducted
for the purposes of assuring that applicable effluent limitations or other limita-
tions or other applicable water quality requirements will not be violated. Upon
notification by the certifying State, or if appropriate, the interstate agency or the
Administrator that the operation of any such federally licensed or permitted
facility or activity will violate applicable effluent limitations or other limitations
or other water quality requirements such Federal agency may, after public hear-
ing, suspend such license or permit. If such license or permit is suspended, it shall
remain suspended until notification is received from the certifying State, agency,
or Administrator, as the case may be, that there is reasonable assurance that such
facility or activity will not violate the applicable provisions of section 301, 302,
306,307, or 316 of this Act.
"(5) Any Federal license or permit with respect to which a certification has
been obtained under paragraph (1) of this subsection may be suspended or re-
voked by the Federal agency issuing such license or permit upon the entering of
a judgment under this Act that such facility or activity has been operated in vio-
lation of the applicable provisions of section 301. 302, 306, 307, or 316 of this Act,
"(6) No Federal agency shall be deemed to be an applicant for the purposes of
this subsection.
"(7) In any case where actual construction of a facility has been lawfully com-
menced prior to April 3, 1970, no certification shall be required under this sub-
section for a license or permit issued after April 3, 1970, to operate such facility,
except that any such license or permit issued without certification shall termi-
nate April 3, 1973, unless prior to such termination date the person having such
license or permit submits to the Federal agency which issued such license or per-
mit a certification and otherwise meets the requirements of this section.
"(b) Nothing in this section shall be construed to limit the authority of any
department or agency pursuant to any other provision of law to require com-
pliance with any applicable water quality requirements. The Administrator shall,
upon the request of any Federal department or agency, or State or interstate
agency, or applicant, provide, for the purpose of this section, any relevant in-
formation on applicable effluent limitations, or other limitations, standards, regu-
lations, or requirements, or water quality criteria, and shall, when requested
by any such department or agency or State or interstate agency, or applicant,
comment on any methods to comply with such limitations, standards, regulations,
requirements, or criteria.
"(c) In order to implement the provisions of-this section, the Secretary of the
Army, acting through the Chief of Engineers, is authorized, if he deems it to be
in the public interest, to permit the use of spoil disposal areas under his juris-
diction by Federal licensees or permittees, and to make an appropriate charge
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WATER—STATUTES AND LEGISLATIVE HISTORY 253
for such use, Moneys received from such licensees or permittees shall be de-
posited in the Treasury as miscellaneous receipts.
"(d) Any certification provided under this section shall set forth any effluent
limitations and other limitations, and monitoring requirements necessary to
assure that any applicant for a Federal license or permit will comply with any
applicable effluent limitations and other limitations, under section 301 or 302
of this Act, standard of performance under section 306 of this Act, or prohibi-
tion, effluent standard, or pretreatment standard under section 307 of this Act,
or any regulation under section 316 of this Act, and shall become a condition
on any Federal license or permit subject to the provisions of this section.
"NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
"SEC. 402. (a) (1) Except as provided in sections 318 and 404 of this Act, the
Administrator may, after opportunity for public hearing, issue a permit for the
discharge of any pollutant, or combination of pollutants or any thermal dis-
charge, notwithstanding section 301 (ft), upon condition that such discharge
will meet either all applicable requirements under sections 301, 302, 306, 307,
308, 316, and 403 of this Act, or prior to the taking of necessary implementing
actions relating to all such requirements, such conditions as the Administrator
determines are necessary to carry out the provisions of this Act.
"(2) The Administrator shall prescribe conditions for such permits to assure
compliance with the requirements of paragraph (1) of this subsection, includ-
ing conditions on data and information collection, reporting, and such other
requirements as he deems appropriate.
"(3) The permit program of the Administrator under paragraph (1) of this
subsection, and permits issued thereunder, shall be subject to the same terms,
conditions, and requirements as apply to a State permit program and permits
issued thereunder under subsection (b) of this section.
"(4) All permits for discharges into the navigable waters issued pursuant to
section 13 of the Act of March 3, 1899, shall be deemed to be permits issued under
this title, and permits issued under this title shall be deemed to be permits issued
under section 13 of the Act of March 3, 1899, and shall continue in force and
effect for their term unless revoked, modified, or suspended in accordance with
the provisions of this Act.
"(5) No permit for a discharge into the navigable waters shall be issued under
section 13 of the Act of March 3, 1899, after the date of enactment of this title.
Each application for a permit under section 13 of the Act of March 3, 1899,
pending on the date of enactment of this Act shall be deemed to be an application
for a permit under this section. The Administrator may authorize a State, which
he determines has the capability of administering a permit program which will
carry out the objective of this Act. to issue permits for discharges into the navi-
gable waters within the jurisdiction of such State. The Administrator may ex-
ercise the authority granted him by the preceding sentence only during the period
which begins on the date of enactment of this Act and ends either on the nine-
tieth day after the date of the first promulgation of guidelines required by section
304(h) (2) of this Act. or the date of approval by the Administrator of a permit
program for such State under subsection (b) of this section, whichever date
first occurs, and no such authorization to a State shall extend beyond the last
day of such period. Each such permit shall be subject to such conditions as the
Administrator determines are necessary to carry out the provisions of this Act.
Xo such permit shall issue if the Administrator objects to such issuance.
"(b) At any time after the promulgation of the guidelines required by subsec-
tion (h) (2) of section 304 of this Act. the Governor of each State desiring to ad-
minister its own permit program for discharges into navigable waters within
its jurisdiction may submit to the Administrator a full and complete description
of the program it proposes to establish and administer under State law or under
an interstate compact. In addition, such State shall submit a statement from
the attorney general (or the attorney for those State water pollution control
agencies which have independent legal counsel), or from the chief legal officer
in the case of an interstate agency, that the laws of such State, or the Inter-
s/ate compact, as the case may be, provide adequate authority to carry out the
described program. The Administrator shall approve each such submitted pro-
gram unless he determines that adequate authority does not exist:
"(1) To issue permits which—
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254 LEGAL COMPILATION—SUPPLEMENT I
"(A) apply, and insure compliance with, any applicable requirements of
sections 301, 302, 306, 307, and 403 ;
" (B) are for fixed terms not exceeding five years; and
"(C) can be terminated or modified for cause including, but not limited to,
the following:
"(i) violation of any condition of the permit;
"(ii) obtaining a i>erinit by misrepresentation, or failure to disclose
fully all relevant facts ;
"(iii) change in any condition that requires either a temporary or
permanent reduction or elimination of the permitted discharge;
" (D) control the disposal of pollutants into wells ;
"(2) (A) To issue permits which apply, and insurance compliance with, all
applicable requirements of section 308 of this Act, or
"(B) Except with respect to sources owned or operated by the United States,
to inspect, monitor, enter, and require reports to at least the same extent as re-
quired in section 308 of this Act;
"(3) To insure that the public, and any other State the waters of which may
be affected, receive notice of each application for a permit and to provide an
opportunity for public hearing before a ruling on each such application ;
"(4) To insure that the Administrator receives notice of each application (in-
cluding a copy thereof) for a permit;
"(5) To insure that any State (other than the permitting State), whose
waters may be affected by the issuance of a permit may submit written recom-
mendations to the permitting State (and the Administrator) with respect to any
permit application and, if any part of such written recommendations are not
accepted by the permitting State, that the permitting State will notify such
affected State (and the Administrator) in writing of its failure to so accept such
recommendations together with its reasons for so doing;
"(6) (A) To issue permits which apply, and insure compliance with, all ap-
plicable requirements of section 316 of this Act; or
"(B) Except with respect to sources owned or operated by the United States,
to apply and enforce control of thermal discharges from point sources located in
such State to at least the same extent as is provided in section 316 of this Act;
"(7) To insure that no permit will be issued if. in the judgment of the Secre-
tary of the Army acting through the Chief of Engineers, after consultation with
the Secretary of the department in which the Coast Guard is operating, anchor-
age and navigation of any of the navigable waters would be substantially im-
paired thereby ; and
"(8) To abate violations of the permit or the permit program, including civil
and criminal penalties and other ways and means of enforcement.
"(c) (1) Not later than ninety days after the date on which a State has sub-
mitted a program (or revision thereof) pursuant to subsection (b) of this sec-
tion, the Administrator shall suspend the issuance of permits under subsection
(a) of this section as to those navigable waters subject to such program unless
he determines that the State permit program does not meet the requirements of
subsection (b) of this section or does not conform to the guidelines issued under
section 304(h) (2) of this Act. If the Administrator so determines, he shall notify
the State of any revisions or modifications necessary to conform to such require-
ments or guidelines.
"(2) Any State permit program under this section shall at all times be in
accordance with this section and guidelines promulgated pursuant to section
304(h) (2) of this Act.
"(3) Whenever the Administrator determines after public hearing that a
State is not administering a program approved under this section in accordance
with requirements of this section, he shall so notify the State and, if appropriate
corrective action is not taken within a reasonable time, not to exceed ninety
days, the Administrator shall withdraw approval of such program. The Admin-
istrator shall not withdraw approval of any such program unless he shall first
have made public, in writing, the reasons for such withdrawal.
"(d) (1) Each State shall transmit to the Administrator a copy of each permit
application received by such State and provide notice to the Administrator of
every action related to the consideration of such permit application, including
each permit proposed to be issued by such State.
"(2) No permit shall issue if the Administrator within sixty days of the
date of his notification under subsection (b) (.">) of this section objects in writ-
ing to the issuance of such permit
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WATER—STATUTES AND LEGISLATIVE HISTOEY 255
"(3) The Administrator may, as to any permit application, waive paragraph
(2) of this subsection.
"(e) In accordance with guidelines promulgated pursuant to subsection
(h) (2) of section 804 of this Act, the Administrator is authorized to waive
the requirements of subsection (d) of this subsection at the time he approves a
program pursuant to subsection (b) of this section for any category (including
any class, type, or size within such category) of point sources within the State
submitting such programs.
"(f) The Administrator shall promulgate regulations establishing categories
of point sources which he determines shall not be subject to the requirements of
subsection (d) of this section in any State with a program approved pursuant
to subsection (b) of this section. The Administrator may distinguish among
classes, types, and sizes within any category of point sources.
"(g) The Administrator or any State shall not issue a permit under this sec-
tion for any point source unless such permit shall assure the maintenance or
enhancement of the quality of any affected waters.
"(h) Any permit issued under this section for the discharge of pollutants into
the navigable waters from a vessel or other floating craft shall be subject to
any applicable regulations promulgated by the Secretary of the Department
in which the Coast Guard is operating, establishing specifications for safe
transportation, handling, carriage, storage, and stowage of pollutants.
"(i) In the event any condition of a permit for discharges from a treatment
works (as denned in section 210 of this Act) which is publicly owned is
violated, a State with a program approved under subsection (b) of this sec-
tion or the Administrator, where no State program is approved, may proceed
in a court of competent jurisdiction to restrict or prohibit the introduction
of any pollutant into such treatment works by a source not utilizing such treat-
ment works prior to the finding that such condition was violated.
"(j) Nothing in this section shall be construed to limit the authority of the
Administrator to take action pursuant to section 309 of this Act.
"(k) A copy of each permit application and each permit issued under this
section shall be available to the public, in an appropriate place (1) in each
State; (2) in a regional office of the Environmental Protection Agency; or
(3) with the Administrator, whichever is appropriate. Such permit applica-
tion or permit, or portion thereof, shall further be available on request for
the purpose of reproduction.
"(1) Compliance with a permit issued pursuant to this section shall be deemed
compliance, for purposes of sections 309 and 505, with sections 301, 302, 306,
307, 316, and 403, except any standard imposed under section 307 for a toxic
pollutant injurious to human health. Until January 1, 1976, in any case where
a permit for discharge has been applied for pursuant to this section, but final
administrative disposition of such application has not been made, and such
discharge is not in violation of any applicable water quality standard under
subsections (a) and (b) of section 303 of this Act, and is not in violation of
any applicable regulation under section 316 of this Act, such discharge shall
not be a violation of (1) this Act (other than an order under section 504),
or (2) section 13 of the Act of March 3, 1899, unless the Administrator or other
plaintiff proves that final administrative disposition of such application has
not been made because of the failure of the applicant to furnish information
reasonably required or requested in order to process the application.
"OCEAN DISCHARGE CRITERIA
"SEC. 403. (a) Xo permit under section 402 of this Act for a discharge into
the territorial sea, the waters of the contiguous zone, or the oceans shall be
issued, after promulgation of guidelines established under sub«
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256 LEGAL COMPILATION—SUPPLEMENT I
"(B) the effect of disposal of pollutants on marine life including the
transfer, concentration, and dispersal of pollutants or their byproducts
through biological, physical, and chemical processes; changes in marine
ecosystem diversity, productivity, and stability; and species and commu-
nity population changes;
"(C) the effect of disposal, of pollutants on esthetic, recreation, and eco-
nomic values;
"(D) the persistence and permanence of the effects of disposal of pol-
lutants ;
"(B) the effect of the disposal at varying rates, of particular volumes and
concentrations of pollutants;
"(F) other possible locations and methods of disposal or recycling of
pollutants including land-based alternatives ; and
"(G) the effect on alternate uses of the oceans, such as mineral exploita-
tion and scientific study.
"(2) In any event where insufficient information exists on any proposed
discharge to make a reasonable judgment on any of the guidelines established
pursuant to this subsection no permit shall be issued under section 402 of this
Act.
"PERMITS FOR DREDGED OR FILL MATERIAL
"SEC. 404. (a) The Secretary of the Army, acting through the Chief of En-
gineers, may issue permits, after notice and opportunity for public hearing, for
the discharge of dredged or fill material into the navigable waters, where the
Secretary determines that such discharge will not unreasonably degrade or en-
danger human health, welfare, or amenities, or the marine environment, eco-
logical 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 any guidelines
which have been promulgated by the Administrator pursuant to section 403
(c) (1), together with an evaluation by the Secretary of the effect on naviga-
tion, economic and industrial development, and foreign and domestic commerce
of the United States. In applying the guidelines established by the Administra-
tor, the Secretary shall consult with the Administrator and shall give due con-
sideration to the views and recommendations of the Administrator in that regard
and also in regard to the designations of the Administrator of recommended sites
for disposal. The Secretary may issiie no permit for discharge of dredged or fill
material which would violate the designation of the Administrator, found neces-
sary to protect critical areas, of a site within which certain material may not
be discharged. In regard to the designation of recommended sites or sites where
certain material may not be discharged, 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 reason-
ably available.
"(c) In connection with Federal projects involving dredged or fill material
the Secretary may, in lieu of the permit procedure, issue regulations to govern
the discharge of dredged or fill material into the navigable waters 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.
"TITLE V—GENERAL PROVISIONS
"ADMINISTRATION
"SEC. 501. (a) The Administrator is authorized to prescribe such regulations
as are necessary to carry out his functions under this Act.
"(b) The Administrator, with the consent of the head of any other agency
of the United States, may utilize such officers and employees of such agency as
may be found necessary to assist in carrying out the purposes of this Act.
"(c) Each recipient of financial assistance under this Act shall keep such
records as the Administrator shall prescribe, including records which fully dis-
close the amount and disposition by such recipient of the proceeds of such assist-
ance, the total cost of the project or undertaking in connection with which such
assistance is given or used, and the amount of that portion of the cost of the
project or undertaking supplied by other sources, and such other records as will
facilitate an effective audit.
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WATER—STATUTES AND LEGISLATIVE HISTORY 257
"(d) The Administrator and the Comptroller General of the United States, or
any of their duly authorized representatives, shall have access, for the purpose
of audit and examination, to any books, documents, papers, and records of the
recipients that are pertinent to the grants received under this Act.
"(e) (1) It is the purpose of this subsection to authorize a program which
will provide official recognition by the United States Government to those in-
dustrial organizations and political subdivisions of States which during the pre-
ceding year demonstrated on outstanding technological achievement or an innova-
tive process, method, or device in their waste treatment and pollution abatement
programs. The Administrator shall in consultation with the appropriate State
water pollution control agencies, establish regulations under which such rec-
ognition may be applied for and granted, except that no applicant shall be eligible
for an award under this subsection if such applicant is not in total compliance
with all applicable water quality requirements under this Act, or otherwise does
not have a satisfactory record with respect to environmental quality.
"(2) The Administrator shall award a certificate or plaque of suitable design
to each industrial organization or political subdivision whch qualifies for such
recognition under regulations established under this subsection.
"(3) The President of the United States, the Governor of the appropriate
State, the Speaker of the House of Representatives, and the President pro tern-
pore of the Senate shall he notified of the award by the Administrator and the
awarding of such recognition shall be published in the Federal Register.
"(f) Upon the request of a State water pollution control agency, personnel
of the Environmental Protection Agency may be detailed to such agency for the
purpose of carrying out the provisions of this Act.
"GENERAL DEFINITIONS
"SEC. 502. Except as otherwise specifically provided, when used in this Act:
"(1) The term 'State water pollution control agency' means the State agency
designated by the Governor having responsibility for enforcing State laws relat-
ing to the abatement of pollution.
"(2) The term 'interstate agency' means an agency of two or more States
established by or pursuant to an agreement or compact approved by the Congress,
or any other agency of two or more States, having substantial powers or duties
pertaining to the control of pollution as determined and approved by the
Administrator.
"(3) The term 'State' means a State, the District of Columbia, the Com-
monwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and
the Trust Territory of the Pacific Islands.
"(4) The term 'municipality' means a city, town, borough, county, parish, dis-
trict, association, or other p'ublic body created by or pursuant to State law and
baring jurisdiction over disposal of sewage, industrial wastes, or other wastes,
or an Indian tribe or an authorized Indian tribal organization, or a designated
and approved management agency under section 208 of this Act.
"(5) The term 'person' means an individual, corporation, partnership, asso-
ciation, State, municipality, commission, or political subdivision of a State, or
any interstate body.
"(6) The term 'pollutant' means, but is not limited to, dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirct and industrial, municipal, agricultural, and
other waste discharged into water. This term does not mean (A) 'sewage from
vessels' within the meaning of section 312 of this Act; or (B) water, gas, or
other material which is injected into a well to facilitate production of oil or gas,
or water derived in association with oil or gas production and disposed of in a
well, if the well used either to facilitate production or for disposal purposes is
approved by authority of the State in which the well is located, and if such State
determines the injection or disposal of such water, gas, or other material will not
result in the degradation of ground or surface water resources; or (C) thermal
discharges in accordance with regulations issued pursuant to section 316 of this
Act; or (D) organic fish wastes.
"(7) The term 'pollution' means the man-made or man-induced alteration of
the natural chemical, physical, biological, and radiological integrity of water.
"(8) The term 'navigable waters' means the navigable waters of the United
States, including the territorial seas.
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258 LEGAL COMPILATION—SUPPLEMENT I
"(9) The term 'territorial seas' means the belt of the seas measured from the
line of ordinary low water along that portion of the- coast which is in direct
contact with the open sea and the line marking the seaward limit of inland
waters, and extending seaward a distance of three miles.
"(10) The term 'contiguous zone' means the entire zone established or to be
established by the United States under article 24 of the Convention of the
Territorial Sea and the Contiguous Zone.
"(11) The term 'ocean' means any portion of the high seas beyond the con-
tiguous zone.
"(1) The term 'effluent limitation' means any restriction established by a State
or the Administrator on quantities, rates, and concentrations of chemical, physi-
cal, biological, and other constituents (other than thermal discharges) which are
discharged from point sources into navigable waters, the waters of the con-
tiguous zone, or the ocean, including schedules and timetables for compliance.
"(13) The term 'discharge of a pollutant' and the term 'discharge of pollutants'
each means (A) any addition of any pollutant to navigable waters from any
point source, (B) any addition of any pollutant to the waters of the contiguous
zone or the ocean from any point source other than a vessel or other floating
craft.
"(14) The term 'toxic pollutant' means those pollutants, or combinations of
pollutants, including disease-causing agents, which after discharge and upon
exposure, ingestion, inhalation or assimilation into any organism, either directly
from the environment or indirectly by ingestion through food chains, will, on the
basis of information available to the Administrator, cause death, disease, be-
havioral abnormalities, cancer, genetic mutations, physiological malfunctions
(including malfunctions in reproduction) and physical deformations, in such
organisms or their offspring.
"(15) The term 'point source' means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated animal feeding oper-
ation, or vessel or other floating craft, from which pollutants are or may be
discharged, or from which there is or may be a thermal discharge.
"(16) The term 'biological monitoring' shall mean the determination of the
effects on aquatic life, including accumulation of pollutants in tissue, in receiving
waters due to the discharge of pollutants (A) by techniques and procedures,
including sampling of organisms representative of appropriate levels of the food
chain, appropriate to the volume and the physical, chemical, and biological
characteristics of the effluent, and (B) at appropriate frequencies and locations.
"(17) The term 'thermal discharge' means the introduction of water into the
navigable waters or the waters of the contiguous zone from a point source at a
temperature different from the ambient temperature of the receiving waters.
"(18) The term 'discharge' when used without qualification includes a dis-
charge of a pollutant, a discharge of pollutants, and a thermal discharge.
"WATER POLLUTION CONTROL ADVISORY BOARD
"SEC. 503. (a) (1) There is hereby established in the Environmental Protection
Agency a Water Pollution Control Advisory Board, composed of the Administra-
tor or his designee, who shall be Chairman, and nine members appointed by the
President, none of whom shall be Federal officers or employees. The appointed
members, having due regard for the purposes of this Act, shall be selected from
among representatives of various State, interstate, and local governmental agen-
cies, of public or private interests contributing to, affected by, or concerned with
pollution, and of other public 'and private agencies, organizations, or groups
demonstrating an active interest in the field of pollution prevention and control,
as well as other individuals who are expert in this field.
"(2) (A) Each member appointed by the President shall hold office for a tefin
of three years, except that (i) any member appointed to fill a vacancy occurring
prior to the expiration of the term for which his predecessor was appointed >ihall
be appointed for the remainder of such term, and (ii) the terms of office of the
members first taking office after June 30, 1936. shall expire a« follows: three at
the end of one year after such date, three at the end of two years after such date,
and three at the end of three years after s-uch date, as designated by the Presi-
dent at the time of appointment, and (iii) the term of any member under the
preceding provision's shall be extended until the date on which his successor's
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WATER—STATUTES AND LEGISLATIVE HISTORY 259
appointment is effective. None of the members appointed by the President shall
be eligible for reappointment within one year after the end of his preceding term.
"(B) The members of the Board who are not officers or employees of the
United States, while attending conferences or meetings of the Board or while
otherwise serving at the request of the Administrator, (-hall be entitled to receive
compensation at a rate to be fixed by the Administrator, but not exceeding $100
per diem, including traveltime, and while away from their home or regular places
of business they may be allowed travel expenses, including per diem in lieu of
subsistence, as authorized by law (5 U.S.C. 73b-2) for persons in the Government
service employed intermittently.
"(b) The Board sihall advise, consult with, and make recommendations to the
Administrator on matters of policy relating to the activities and functions of the
Administrator under this Act.
"(c) Such clerical and technical assistance as may be necessary to discharge
the duties of the Board shall be provided from the personnel of the Environ-
mental Protection Agency.
"EMERGENCY POWERS
"SEC. 504. Notwithstanding any other provision of this Act. the Administrator
upon receipt of evidence that a pollution source or combination of sources is
presenting an imminent and substantial endangerment to the health of persons,
may bring suit on behalf of the United States in the appropriate district court to
immediately restrain any person causing or contributing to the allaged pollution
to stop the discharge of pollutants causing or contributing to such pollution or to
take such other action as may be necessary.
"CITIZEN SUITS
"SEC. 505. (a) Except as provided in subsection (b) of this section, any citizen
may commence a civil action on Ms own behalf—
"(1) under subsection (a) (1) of this section—
other governmental instrumentality or agency to the extent permitted by the
eleventh amendment to the Constitution) who is alleged to tie in violation
of (A) an effluent standard or limitation under this Act or (B) an order
issued by the Administrator or a State with respect to such a standard or
limitation, or
"(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this Act Which is not dis-
cretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the amount in con-
troversy or the citizenship of the parties, to enforce such an effluent standard or
limitation, or such an order, or to order the Administrator to perform such act
or duty, as the case may be, and to apply any appropriate civil penalties under
section 309(d) of this Act.
"(b) No action may be commenced—
"(1) under subsection (a) (1) of this section—
"(A) prior to sixty days after the plaintiff has given notice of the
alleged violation (i) to the Administrator, (ii) to the State in which the
alleged violation occurs, and (iii) to any alleged violator of the standard,
limitation, or order, or
"(B) if the Administrator or State has commenced and is diligently
prosecuting a civil or criminal action in a court of the United States or a
State to require compliance with the standard, limitation, or order, but
in any such action in a court of the United States any citizen may inter-
vene as a matter of right.
"(2) under subsection (a) (2) of this section prior to sixty days after the
plaintiff has given nottice of such action to the Administrator,
except that such action may ;be brought immediately after such notification in
the case of an action under this section respecting a violation of sections 301,
302, 306, and 307 of this Act, or in violation of a permit, or conditions thereunder..
issued 'by the Administrator under section 402 of this Act, or in violation of an
order issued by the Administrator pursuant to section 309 of this Act. Notice
under this subsection shall be given in such manner as the Administrator shall
prescribe by regulation.
"(c) (1) Any action respecting a violation by a discharge source of an affluent
standard or limitation or an order respecting such standard or limitation may be
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260 LEGAL COMPILATION—SUPPLEMENT I
brought under this section only in the judicial district in which such source is
located.
"(2) In such action under this section, the Administrator, if not a party, may
intervene as a matter of right.
"(d) The court, in issuing any final order in any action brought pursuant to
this section, 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 accord-
ance with the Federal Rules of Civil Procedure.
"(e) Nothing in this section shall restrict any right which any person (or
class of persons) may have under any statute or common law to seek enforce-
ment of any effluent standard or limitation or to seek any other relief (including
relief against the Administrator or a State agency).
"(f) For purposes of this section, the term 'effluent standard or limitation
under this Act, means (1) effective July 1. 1973, an unlawful act under subsec-
tion (a) of section 301 of this Act; (2) an effluent limitation or other limitation
under section 301 or 302 of this Act; (3) standard of performance under section
306 of this Act; (4) prohibition, effluent standard or pretreatment standard
under section 307 of this Act; (5) certification under section 401 of this Act;
or (6) a permit or condition thereof issued under section 402 of this Act, which
is in effect under this Act (including a requirement applicable by reason of
section 313 of this Act).
" (g) For the purposes of this section the term 'citizen' means (1) a citizen (A)
of the geographic area and (B) having a direct interest which is or may be
affected, and (2) any group of persons which has been actively engaged in the
administrative process and has thereby shown a special interest in the geographic
area in controversy.
" (h) A Governor of a State may commence a civil action under subsection (a),
without regard to the limitations of subsection (b) of this section, against the
Administrator where there is alleged a failure of the Administrator to enforce
an effluent standard or limitation under this Act the violation of which is
occurring in another State and is causing an adverse effect on the public health
or welfare in his State, or is causing a violation of any water quality require-
ment in his State.
"APPEARANCE
"Sec. 506. The Administrator shall request the Attorney General to appear
and represent the United States in any civil or criminal action instituted under
this Act to which the Administrator is a party. Unless the Attorney General
notifies the Administrator within a reasonable time, that he will appear in a
civil action, attorneys, who are officers or employees of the Environmental
Protection Agency shall appear and represent the United States in such action.
"EMPLOYEE PROTECTION
"Sec. 507. (a) No person shall fire, or in any other way discriminate against,
or cause to be fired or discriminated against, any employee or any authorized
representative of employees by reason of the fact that such employee or represent-
ative has fi'ed, instituted, or caused to be filed or instituted any proceeding
under this Act. or has testified or is about to testify in any proceeding resulting
from the administration or enforcement of the provisions of this Act.
"(b) Any employee or a representative of employees who believes that he has
been fired or otherwise discriminated against by any person in violation of sub-
section (a) of this section may, within thirty days after such alleged violation
occurs, apply to the Secretary of Labor for a review of such firing or alleged
discrimination. A copy of the application shall be sent to such person who shall
be the respondent. Upon receipt of such application, the Secretary of Labor shall
cause such investigation to be made as he deems appropriate. Such investigation
shall provide an opportunity for a public hearing at the request of any party
to such review to enable the parties to present information relating to such
alleged violation. The parties shall be given written notice of the time and place
of the hearing at least five days prior to the hearing Any such hearing shall
be of record and shall be subject to section 5o4 of title 5 of the United States
Code. Upon receiving the report of such investigation, the Secretary of Labor
shall make findings of fact. If he finds that such violation did occur, he shall
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WATER—STATUTES AND LEGISLATIVE HISTORY 261
issue a decision, incorporating an order therein and his findings, requiring the
party committing such violation to take such affirmative action to abate the
violation as the Secretary of Labor deems appropriate, including, but not limited
to, the rehiring or reinstatement of the employee or representative of employees
to his former position with compensation. If he finds that there was no such vio-
lation, he shall issue an order denying the application. Such order issued by the
Secretary of Labor under this subparagraph shall be subject to judicial review
in the same manner as orders and decisions of the Administrator are subject
to judicial review under this Act.
"(c) Whenever an order is issued under this section to abate such violation,
at the request of the applicant, a sum equal to the aggregate amount of all costs
and expenses (including the attorney's fees), as determined by the Secretary of
Labor, to have been reasonably incurred by the applicant for, or in connection
with, the institution and prosecution of such proceedings, shall be assessed
against the person committing such violation.
"(d) This section shall have no application to any employee who, acting with-
out direction from his employer (or his agent) deliberately violates any pro-
hibition of effluent limitation or other limitation under section 301 or 302 of
this Act, standards of performance under section 306 of this Act, effluent stand-
ard, prohibition or pretreatment standard under section 307 of this Act, thermal
discharge regulation under section 316 of this Act, or any other prohibition or
limitation established under this Act.
"FEDERAL PROCUREMENT
"SEC. 508. (a) No Federal agency may enter into any contract with any person,
who has been convicted of any offense under section 309(c) of this Act, for the
procurement of goods, materials, and services if such contract is to be performed
at any facility at which the violation which gave rise to such conviction occurred,
and if such facility is owned, leased, or supervised by such person. The prohi-
bition in the preceding sentence shall continue until the Administrator certifies
that the condition giving rise to such conviction has been corrected.
"(b) The Administrator shall establish procedures to provide all Federal
agencies with the notification necessary for the purposes of subsection (a) of
this section.
"(c) In order to implement the purposes and policy of this Act to protect and
enhance the quality of the Nation's water, the President shall, not more than one
hundred and eighty days after enactment of this Act. cause to be issued an order
(1) requiring each Federal agency authorized to enter into contracts and each
Federal agency which is empowered to extend Federal assistance by way ef grant,
loan, or contract to effectuate the purpose and policy of this Act in such con-
tracting or assistance activities, and (2) setting forth procedures, sanctions,
penalties, and such other provisions, as the President determines necessary to
carry out such requirement.
"(d) The President may exempt any contract, loan, or grant from all or part
of the provisions of this section where he determines such exemption is 'neces-
sary in the paramount interest of the United States and he shall notify the Con-
gress of such exemption.
"(e) The President shall annually report to the Congress on measures taken
in compliance with the purpose and intent of this section, including, but not
limited to, the progress and problems associated with such compliance.
"ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW
"SEC. 509. (a) In connection with any determination under section 301 (b) (3)
of this Act, or for purposes of obtaining information under section 305 of this Act,
the Administrator may issue subpenas for the attendance and testimony of wit-
nesses and the production of relevant papers, books, and documents, and he may
administer oaths. Except for effluent data, upon a showing satisfactory to the
Administrator that such papers, books, documents, or information or particular
part thereof, if made public, would divulge trade secrets or secret processes, the
Administrator shall consider such record, report or information or particular
portion thereof confidential in accordance with the purposes of section 1905 of
title 18 of the United States Code, except that such paper, book, document, or
information may be disclosed to other officers, employees, or authorized repre-
sentatives of the United States concerned with carrying out this Act, or when
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262 LEGAL COMPILATION—SUPPLEMENT I
relevant in any proceeding under this Act. Witnesses summoned shall be paid
the same fees and mileage that are paid witnesses in the courts of the United
States. In case of contumacy or refusal to obey a subpena served upon any person
under this subsection, the district court of the United States for any district
in which such person is found or resides or transacts business, upon application
by the United States and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give testimony before the Ad-
ministrator, to appear and produce papers, books, and documents before the
Administrator, or both, and any failure to obey such order of the court may be
punished by such court as a contempt thereof.
"(b) Review of the Administrator's action (1) in promulgating any standard
of performance under section 306, (2) in making any determination pursuant to
section 306(b) (1) (C), (3) in promulgating any effluent standard, prohibition,
or treatment standard under section 307, (4) in making any determination as to
a State permit program submitted under section 402(b), (5) in approving or
promulgating any effluent limitation or other limitation under section 301, 302,
or 306, and (6) in issuing or denying any permit under section 402, may be had
by any interested person in the district court of the United States for the district
in which such person resides or transacts such business upon application by such
person. Any such application shall be made within thirty days from the date of
such determination, approval, promulgation, issuance or denial, or after such
date only if such application is based solely on grounds which arose after such
thirtieth day.
"(c) In any judicial proceeding brought under subsection (b) of this section
in which review is sought of a determination under this Act required to be made
on the record after notice and opportunity for hearing, if any party applies to
the court for leave to adduce additional evidence, and shows to the satisfaction
of the court that such additional evidence is material and that there were reason-
able grounds for the failure to adduce such evidence in the proceeding before the
Administrator, the court may order such additional evidence (and evidence in
rebuttal thereof) to be taken before the Administrator, in such manner and upon
such terms and conditions as the court may deem proper. The Administrator may
modify his findings as to the facts, or make new findings, by reason of the addi-
tional evidence so taken and he shall file such modified or new findings, and his
recommendation, if any, for the modification or setting aside of his original de-
termination, with the return of such additional evidence.
"STATE AUTHORITY
"SEC. 510. Except as expressly provided in this Act, nothing in this Act shall
(1) preclude or deny the right of any State or political subdivision thereof or
interstate agency to adopt or enforce (A) any standard or limitation respecting
discharges of pollutants, or (B) any requirement respecting control or abate-
ment of pollution: except that if an effluent limitation, or other limitation, efflu-
ent standard, prohibition, pretreatment standard, standard of performance, or
thermal discharge regulation is in effect under this Act, such State or political
subdivision or interstate agency may not adopt or enforce any effluent limitation,
or other limitation, effluent standard, prohibition, pretreatment standard, stand-
ard of performance, or thermal discharge regulation which is less stringent than
the effluent limitation, or other limitation, effluent standard, prohibition, pre-
treatment standard, standard of performance, or thermal discharge regulation
under this Act; or (2) be construed as impairing or in any manner affecting
any right or jurisdiction of the States with respect to the waters (including
boundary waters) of such States.
"OTHER AFFECTED AUTHORITY
"Sec. 511. (a) This Act shall not be construed as (1) limiting the authority or
functions of any officer or agency of the United States under any other law or
regulation not inconsistent with this Act; (2) affecting or impairing the author-
ity of the Secretary of the Army (A) to maintain navigation or (B) under the
Act of March 3. 1899 (30 Stat. 1112) ; except that any permit issued under section
404 of this Act shall be conclusive as to the effect on water quality of any dis-
charge resulting from any activity subject to section 10 of the Act of March 3,
1899, or (3) affecting or impairing the provisions of any treaty of the United
States.
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WATER—STATUTES AND LEGISLATIVE HISTORY 263
"(b) The consultation and coordination requirements of the Act of March 10,
1934, as amended (16 U.S.C. 661, et seq'.), shall apply under this Act only to the
provisions of (1) section 306 of this Act; (2) the publication of information
under section 304 of this Act; and (3) the establishment of guidelines under
section 403 of this Act.
"(c) Discharges of pollutants into the navigable waters subject to the Rivers
and Harbors Act of 1910 (36 Stat. 593; 33 U.S.C. 421) and the Supervisory
Harbors Act of 1888 (25 Stat. 209; 33 U.S.C. 441^t51b) shall be regulated pur-
suant to this Act, and not subject to such Act of 1910 and the Act of 1888 except
as to effect on navigation and anchorage.
"(d) The requirements of the National Environmental Policy Act of 1969
(83 Stat. 852) as to water quality considerations shall be deemed to be satisfied—
"(1) by certification pursuant to section 401 of this Act with respect to
any Federal license or permit for the construction of any activity; and
any Federal license or permit for the construction of any activity; and
"(2) by certification pursuant to section 401 of this Act and the issuance
of a permit pursuant to section 13 of the Act of March 3, 1899, or section
402 of this Act with respect to any Federal license or permit for the opera-
tion of any activity.
"SEPARABILITY
"SEC. 512. If any provision of this Act, or the application of any provision
of this Act to any person or circumstance, is held invalid, the application of
such provision to other persons or circumstances, and the remainder of this Act,
shall not be affected thereby.
"LABOR STANDARDS
"SEC. 513. The Administrator shall take such action as may be necessary to
insure that all laborers and mechanics employed by contracts or subcontractors
on treatment works for which grants are made under this Act shall be paid
wages at rates not less than those prevailing for the same type of work on
similar construction in the immediate locality, as determined by the Secretary
of Labor, in accordance with the Act of March 3, 1931, as amended, known as
the Davis-Bacon Act (46 Stat. 1494; 40 U.S.C., sec. 276a through 276a-5).
The Secretary of Labor shall have, with respect to the labor standards specified
in this subsection, the authority and functions set forth in Reorganization Plan
Numbered 14 of 1950 (15 F.R. 3176) and section 2 of the Act of June 13, 1934,
as amended (48 Stat 948; 40 U.S.C. 276c).
"AGRICULTURAL FACILITIES
"SEC. 514. In the case of any water pollution control facility required to
be constructed for any property used for any agricultural purpose, no owner or
operator of any such property shall be required to expend any funds for the
construction of any such facility (A) until a plan for such facility and its
operation shall have been approved by the Administrator; and (B) until a cer-
tification by the Administrator that such plan, and the construction and opera-
tion of any facility in accordance with such plan, will not result in a violation
of the laws or regulations of any local, State, or Federal health agency or other
governmental agency.
"EFFLUENT STANDARDS AND WATER QUALITY INFORMATION ADVISORY COMMITTEE
"SEC. 515. (a) (1) There is established an Effluent Standards and Water Quality
Information Advisory Committee, which shall be composed of a Chairman and
eight members who shall be appointed by the Administrator within sixty days
after the date of enactment of this Act.
"(2) All members of the Committee shall be selected from the scientific com-
munity, qualified by education, training, and experience to provide, assess, and
evaluate scientific and technical information on effluent standards and limitations.
"(3) Members of the Committee shall serve for a term of four years, and may
be reappointed.
"(b) (1) No later than one hundred and eighty days prior to the date on
which the Administrator is required to publish any proposed regulations required
by section 304 (b) of this Act, any proposed standard of performance for new
sources required by section 306 of this Act, or any proposed toxic effluent stand-
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264 LEGAL COMPILATION—SUPPLEMENT I
ard required by section 307 of this Act, he shall transmit to the Committee a
notice of intent to propose such regulations. The Chairman of the Committee
within ten days after receipt of such notice may publish a notice of a public
hearing by the Committee, to be held within thirty days.
"(2) No later than one hundred and twenty days after receipt of such notice,
the Commitee shall transmit to Administrator such scientific and technical infor-
mation as is in its possession, including that presented at any public hearing,
related to the subject matter contained in such notice.
"(3) Information so transmitted to the Administrator shall constitute a part
ot the administrative record and comments on any proposed regulations or stand-
ards as information to be considered with other comments and information in
making any final determinations.
"(4) In preparing information for transmittal, the Committee shall avail itself
of the technical and scientific services of any Federal agency, including the United
States Geological Survey and any national environmental laboratories which
may be established.
"(c) (1) The Committee shall appoint and prescribe the duties of a Secretary,
and such legal counsel as it deems necessary. The Committee shall appoint such
other employees as it deems necessary to exercise and fill its powers and respon-
sibilities. The compensation of all employees appointed by the Committee shall
be fixed in accordance with chapter 51 and subchapter III of chapter 53 of title
V of the United States Code.
"(2) Members of the Committee shall be entitled to receive compensation at
a rate to be fixed by the President but not in excess of the maximum rate of pay
for grade GS-18, as provided in the General Schedule under section 5332 of title V
of the United States Code.
"(d) Five members of the Committee shall constitute a quorum, and official
actions of the Committee shall be taken only on the affirmative vote of at least
five members. A special panel composed of one or more members upon order
of the Committee shall conduct any hearing authorized by this section and submit
the transcript of such hearing to the entire Committee for its action thereon.
"(e) The Committee is authorized to make such rules as are necessary for the
orderly transaction of its business.
"REPORTS TO CONGRESS
"SEC. 516. (a) Within ninety days following the convening of each session
of Congress, the Administrator shall submit to the Congress a report, in addition
to any other report required by this Act, on measures taken toward implementing
the objective of this Act, including, but not limited to, (1) the progress and
problems associated with developing comprehensive plans under section 102 of
this Act, areawide plans under section 208 of this Act, basin plans under section
209 of this Act, and plans under section 303(e) of this Act; (2) a summary of
actions taken and results achieved in the field of water pollution control re-
search, experiments, studies, and related matters by the Administrator and other
Federal agencies and by other persons and agencies under Federal grants or
contracts; (3) the progress and problems associated with the development of
effluent limitations and recommended control tehcniques; (4) the status of State
programs, including a detailed summary of the progress obtained as compared
to that planned under State program plans for development and enforcement
of water quality requirements; (5) the identification and status of enforcement
actions pending or completed under such Act during the preceding year; (6) the
status of State, interstate, and local pollution control programs established pur-
suant to, and assisted by, this Act; (7) a summary of the results of the survey
required to be taken under section 210 of this Act; (8) his activities including
recommendations under sections 100 through 111 of this Act; and (0) all reports
and recommendations made by the Water Pollution Control Advisory Board.
"(b) The Administrator, in cooperation with the States, including water
pollution control agencies and other water pollution control planning agencies,
shall make (1) a detailed estimate of the cost of carrying out the provisions of
this Act; (2) a detailed estimate, biennially revised, of the cost of construction
of all needed publicly owned treatment works in all of the States and of the
cost of construction of all needed publicly owned treatment works in each of
the States; (3) a comprehensive study of the economic impact on affected units
of government of the cost of installation of treatment facilities; and (4) a com-
prehensive analysis of the national requirements for and the cost of treating
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WATER—STATUTES AND LEGISLATIVE HISTORY 265
municipal, industrial, and other effluent to attain the water quality objectives
as established by this Act or applicable State law. The Administrator shall sub-
mit such detailed estimate and such comprehensive study of such cost to the
Congress no later than February 10 of each odd-numbered year. Whenever the
Administrator, pursuant to this subsection, requests and receives an estimate
of cost from a State, he shall furnish copies of such estimate together with such
detailed estimate to Congress.
"GENERAL AUTHORIZATION
"SEC. 517. There are authorized to be appropriated to carry out this Act, other
than sections 104, 105, 106(a), 107, 108, 112. 113, 114, 206, 207, 208(t) and (h),
209, 304, 311, (c), (d), (i), (1), and (k), 314, 315, and 317. $250,000,000 for the
fiscal year ending June 30 1973, $300,000,000 for the fiscal year ending June 30,
1974, and $350,000,000 for the fiscal year ending June 30, 1975.
"SHORT TITLE
"SEC. 518. This Act may be cited as the 'Federal Water Pollution Control Act'."
AUTHORIZATIONS FOR FISCAL YEAK 1972
SEC. 3. (a) There is authorized to be appropriated for the fiscal year ending
June 30, 1972, not to exceed $6,000,000 for the purpose of carrying out section
5(n) (other than for salaries and related expenses) of the Federal Water Pol-
lution Control Act as it existed immediately prior to the date of the enactment
of the Federal Water Pollution Control Act Amendments of 1972.
(b) There is hereby authorized to be appropriated for the fiscal year ending
June 30, 1972, not to exceed $350,000,000 for the purpose of making grants under
section 8 of the Federal Water Pollution Control Act as it existed immediately
prior to the date of the enactment of the Federal Water Pollution Control Act
Amendments of 1972.
(c) The Federal share of all grants made under section 8 of the Federal
Water Pollution Control Act Amendments of 1972 from sums herein and hereto-
fore authorized for the fiscal year ending June 30, 1972, shall be that authorized
by section 202 of such Act as established by the Federal Water Pollution Control
Act Amendments of 1972.
(d) Sums authorized by this section shall be in addition to any amounts
heretofore authorized for such fiscal year for sections 5(n) and -8 of the Federal
Water Pollution Control Act as it existed immediately prior to the date of
enactment of the Federal Water Pollution Control Act Amendments of 1972.
SAVINGS PROVISIONS
SEC. 4. (a) No suit, action, or other proceeding lawfully commenced by or
against the Administrator or any other officer or employee of the United States
in his official capacity or in relation to the discharge of his official duties under
the Federal Water Pollution Control Act as in effect immediately prior to the
date of enactment of this Act shall abate by reason of the taking effect of the
amendment made by section 2 of this Act. The court may, on its own motion or
that of any party made at any time within twelve months after such taking
effect, allow the same to be maintained by or against the Administrator or such
officer or employee.
(b) All rules, regulations, orders, determinations, contracts, certifications,
authorizations, delegations, or other actions duly issued, made, or taken by or
pursuant to the Federal Water Pollution Control Act as in effect immediately
prior to the date of enactment of this Act, and pertaining to any functions, powers,
requirements, and duties under the Federal Water Pollution Control Act as in
effect immediately prior to the date of enactment of this Act, shall continue in
full force and effect after the date of enactment of this Act until modified or
rescinded in accordance with the Federal Water Pollution Control Act, as
amended by this Act.
(c) The Federal Water Pollution Control Act as in effect immediately prior
to the date of enactment of this Act shall remain applicable to all grants made
from funds authorized for the fiscal year ending June 30, 1972, and prior fiscal
years, including any increases in the monetary amount of any such grant which
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266 LEGAL COMPILATION—SUPPLEMENT I
may be paid from authorizations for fiscal years beginning after June 30, 1972,
except as specifically otherwise provided in section 202 of the Federal Water
Pollution Control Act as amended by this Act and in subsection (c) of section
3 of this Act.
OVERSIGHT STUDY
SEC. 5. In order to assist the Congress in the conduct of oversight responsibil-
ities the Comptroller General of the United States shall conduct a study and
review of the research, pilot, and demonstration programs related to prevention
and control of water pollution, including waste treatment and disposal tech-
niques, which are conducted, supported, or assisted by any agency of the Federal
Government pursuant to any Federal law or regulation and assess conflicts be-
tween, and the coordination and efficacy of, such programs, and make a report to
the Congress thereon by October 1,1973.
INTERNATIONAL TRADE STUDY
SEC. 6. (a) the Secretary of Commerce, in cooperation with other interested
Federal agencies and with representatives of industry and the public, shall un-
dertake immediately an investigation and study to determine—
(1) the extent to which pollution abatement and control programs will
be imposed on, or voluntarily undertaken by United States manufacturers
in the near future and the probable short- and long-range effects of the
costs of such programs (computed to the greatest extent practicable on an
industry-by-industry basis) on (A) the production costs of such domestic
manufacturers, and (B) the market prices of the goods produced by them;
(2) the probable extent to which pollution abatement and control pro-
grams will be implemented in foreign industrial nations in the near future
and the extent to which the production costs (computed to the greatest
extent practicable on an industry-by-industry basis) of foreign manufac-
turers will be affected by the costs of such programs ;
(3) the probable competitive advantage which any article manufactured
in a foreign nation will likely have in relation to a comparable article made
in the United States if that foreign nation—
(A) does not require its manufacturers to implement pollution abate-
ment and control programs,
(B) requires a lesser degree of pollution abatement and control in
its programs, or
(C) in any way reimburses or otherwise subsidizes its manufacturers
for the costs of such programs;
(4) alternative means by which any competitive advantage accruing to
the products of any foreign nation as a result of any factor described in
paragraph (3) may be (A) accurately and quickly determined, and (B)
equalized, for example, by the imposition of a surcharge or duty, on a
foreign product in an amount necessary to compensate for such advantage;
and
(5) the impact, if any, which the imposition of a compensating tariff or
other equalizing measure may have in encouraging foreign nations to
implement pollution and abatement control programs.
(b) The Secretary shall make an initial report to the President and Congress
within six months after the date of enactment of this section of the results of
the study and investigation carried out pursuant to this section and shall make
additional reports thereafter at such times as he deems appropriate taking into
account the development of relevant data, but not less than once every twelve
months.
INTERNATIONAL AGREEMENTS
SEC. 7. The President shall undertake to enter into international agreements
to apply uniform standards of performance for the control of the discharge and
emission of pollutants from new sources, uniform controls over the discharge
and emission of toxic pollutants, and uniform controls over the discharge of
pollutants into the ocean. For this purpose the President shall negotiate multi-
lateral treaties, conventions, resolutions, or other agreements, and formulate,
present, or support proposals at the 1972 United Nations Conference on the
Human Environment and other appropriate international forums.
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WATER—STATUTES AND LEGISLATIVE HISTORY 267
LOANS TO SMALL BUSINESS CONCERNS FOB WATER POLLUTION CONTROL FACILITIES
SEC. 8. (a) Section 7 of the Small Business Act is amended by inserting at
the end thereof a new subsection as follows :
"(g) (1) The Administration also is empowered to make loans (either directly
or in cooperation with banks or other lenders through agreements to participate
on an immediate or deferred basis) to assist any small business concern in affect-
ing additions to or alterations in the equipment, facilities (including the con-
struction of pretreatment facilities and interceptor sewers) or methods of
operation of such concern to meet water pollution control requirements estab-
lished under the Federal Water Pollution Control Act, if the Administration
determines that such concern is likely to suffer substantial economic injury
without assistance under this subsection.
"(2) Any such loan—
"(A) shall be made in accordance with provisions applicable to loans
made pursuant to subsection (b) (5) of this section, except as otherwise
provided in this subsection;
"(B) shall be made only if the applicant furnishes the Administration
with a statement in writing from the Environmental Protection Agency or,
if appropriate, the State, that such additions or alterations are necessary
and adequate to comply with requirements established under the Federal
Water Pollution Control Act.
"(3) The Administrator of the Environmental Protection Agency shall, as
soon as practicable after the date of enactment of the Federal Water Pollution
Control Act Amendments of 1972 and not later than one hundred and eighty
days thereafter, promulgate regulations establishing uniform rules for the
issuance of statements for the purpose of paragraph (2) (B) of this subsection.
"(4) There is authorized to be appropriated to the disaster loan fund estab-
lished pursuant to section 4(c) of this Act not to exceed $800,000,000 solely for
the purpose of carrying out this subsection."
(b) Section 4(c) (1) (A) of the Small Business Act is amended by striking
out "7(c) (2)" and inserting in lieu thereof "7(c) (2), and 7(g)".
ENVIRONMENTAL COURT
SEC. 9. The President, acting through the Attorney General, shall make a full
and complete investigation and study of the feasibility of establishing a sepa-
rate court, or court system, having jurisdiction over environmental matters
and shall report the results of such investigation and study together with his
recommendations to Congress not later than one year after the date of enact-
ment of this Act.
NATIONAL POLICIES AND GOALS STUDY
SEC. 10. The President shall make a full and complete investigation and study
of all of the national policies and goals established by law for the purpose of
determining what the relationship should be between the policies and goals,
taking into account the resources of the Nation. He shall report the results of
such investigation and study together with his recommendations to Congress
not later than two years after the date of enactment of this Act. There is
authorized to be appropriated not to exceed $5,000,000 to carry out the purposes
of this section.
EFFICIENCY STUDY
SEC. 11. The President shall conduct a full and complete investigation and
study of ways and means of utilizing in the most effective manner all of the
various resources, facilities, and personnel of the Federal Government in order
most efficiently to carry out the objective of the Federal Water Pollution Con-
trol Act. He shall report the results of such investigation and study together
with his recommendations to Congress not later than two hundred and seventy
days after the date of enactment of this Act.
ENVIRONMENTAL FINANCING
SEC. 12. (a) This section may be cited as the "Environmental Financing Act
of 1972".
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268 LEGAL COMPILATION—SUPPLEMENT I
(b) There Is hereby created a body corporate to be known as the Environ-
mental Financing Authority, which shall have succession until dissolved by Act
of Congress. The Authority shall be subject to the general supervision and
direction of the Secretary of the Treasury. The Authority shall be an instru-
mentality of the United States Government and shall maintain such offices as
may be necessary or appropriate in the conduct of its business.
(c) The purpose of this section is to assure that inability to borrow necessary
funds on reasonable terms does not prevent any State or local public body from
carrying out any project for construction of waste treatment works determined
eligible for assistance pursuant to subsection (e) of this section.
(d) (1) The Authority shall have a Board of Directors consisting of five
persons, one of whom shall be the Secretary of the Treasury or his designee as
Chairman of the Board, and four of whom shall be appointed by the President
from among the officers or employees of the Authority or of any department or
agency of the United States Government.
(2) The Board of Directors shall meet at the call of its Chairman. The Board
shall determine the general policies which shall govern the operations of the
Authority. The Chairman of the Board shall select and effect the appointment
of qualified persons to fill the offices as may be provided for in the bylaws, with
such executive functions, powers, and duties as may be prescribed by the bylaws
or by the Board of Directors, and such persons shall be the executive officers
of the Authority and shall discharge all such executive functions, powers, and
duties. The members of the Board, as such, shall not receive compensation for
their services.
(e) (1) The Authority is authorized to make commitments to purchase, and to
purchase on terms and conditions determined by the Authority, any obligation
or participation therein which is issued by a State or local public body to finance
the non-Federal share of the cost of any project for the construction of waste
treatment works which the Administrator of the Environmental Protection
Agency has determined to be eligible for Federal financial assistance under the
Federal Water Pollution Control Act.
(2) No commitment shall be entered into, and no purchase shall be made,
unless the Administrator of the Environmental Protection Agency (A) has certi-
fied that the public body is unable to obtain on reasonable terms sufficient credit
to finance its actual needs; (B) has approved the project as eligible under the
Federal Water Pollution Control Act; and (C) has agreed to guarantee timely
payment of principal and interest on the obligation. The Administrator is au-
thorized to guarantee such timely payments and to issue regulations as he deems
necessary and proper to protect such guarantees. Appropriations are hereby au-
thorized to be made to the Administrator in such sums as are necessary to make
payments under such guarantees, and such payments are authorized to be made
from such appropriations.
(3) No purchase shall be made of obligations issued to finance projects, the
permanent financing of which occurred prior to the enactment of this section.
(4) Any purchase by the Authority shall be upon such terms and conditions
as to yield a return at a rate determined by the Secretary of the Treasury taking
into consideration (A) the current average yield on outstanding marketable
obligations of the United States of comparable maturity or in its stead whenever
the Authority has sufficient of its own long-term obligations outstanding, the
current average yield on outstanding obligations of the Authority of comparable
maturity ; and (B) the market yields on municipal bonds.
(5) The Authority is authorized to charge fees for its commitments and other
services adequate to cover all expenses and to provide for the accumulation of
reasonable contingency reserves and such fees shall be included in the aggregate
project costs.
(f) To provide initial capital to the Authority the Secretary of the Treasury-
is authorized to advance the funds necessary for this purpose. Each such ad-
vance shall be upon such terms and conditions as to yield a return at a rate not
less than a rate determined by the Secretary of the Treasury taking into con-
sideration the current average yield on outstanding marketable obligations of the
United States of comparable maturities. Interest payments on such advances
may be deferred, at the discretion of the Secretary, but any such deferred pay-
ments shall themselves bear interest at the rate specified in this section. There is
authorized to be appropriated not to exceed .$100.000,000, which shall be available
for the purposes of this subsection without fiscal year limitation.
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WATER—STATUTES AND LEGISLATIVE HISTORY 269
(g) (1) The Authority is authorized, with the approval of the Secretary of
the Treasury, to issue and have outstanding obligations having such maturities
and bearing such rate or rates of interest as may be determined by the Author-
ity. Such obligations may be redeemable at the option of the Authority before
maturity in such manner as may be stipulated therein.
(2) As authorized in appropriation Acts, and such authorizations may be with-
out fiscal year limitation, the Secretary of the Treasury may in his discretion
purchase or agree to purchase any obligations issued pursuant to paragraph (1)
of this subsection, and for such purpose the Secretary of the Treasury is author-
ized to use as a public debt transaction the proceeds of the sale of any securities
hereafter issued under the Second Liberty Bond Act, as now or hereafter in force,
and the purposes for which securities may be issued under the Second Liberty
Bond Act as now or hereafter in force, are extended to include such purchases.
Bach purchase of obligations by the Secretary of the Treasury under this sub-
section shall be upon such terms and conditions as to yield a return at a rate
not less than a rate determined by the Secretary of the Treasury, taking into
consideration the current average yield on outstanding marketable obligations
of the United States of comparable maturities. The Secretary of the Treasury
may sell, upon such terms and conditions and at such price or prices as he shall
determine, any of the obligations acquired by him under this paragraph. All
purchases and sales by the Secretary of the Treasury of such obligations under
this paragraph shall be treated as public debt transactions of the United States.
(h) The Secretary of the Treasury is authorized and directed to make annual
payments to the Authority in such amounts as are necessary to equal the amount
by which the dollar amount of interest expense accrued by the Authority on
account of its obligations exceeds the dollar amount of interest income accrued
by the Authority on account of obligations purchased by it pursuant to subsection
(e) of this section.
(1) The Authority shall have power—
(1) to sue and be sued, complain and defend, in its corporate name;
(2) to adopt, alter, and use a corporate seal, which shall be judicially
noticed;
(3) to adopt, amend, and repeal bylaws, rules, and regulations as may be
necessary for the conduct of its business ;
(4) to conduct its business, carry on its operations, and have offices and
exercise the powers granted by this section in any State without regard to
any qualification or similar statute in any State;
(5) to lease, purchase, or otherwise acquire, own, hold, improve, use, or
otherwise deal in and with any property, real, personal, or mixed, or any
interest therein, wherever situated ;
(6) to accept gifts or donations of services, or of property, real, personal,
or mixed, tangible or intangible, in aid of any of the purposes of the
Authority ;
(7) to sell, convey, mortgage, pledge, lease, exchange, and otherwise dis-
pose of its property and assets :
(8) to appoint such officers, attorneys, employees, and agents as may be
required, to define their duties, to fix and to pay such compensation for their
services as may be determined, subject to the civil service and classification
laws, to require bonds for them and pay the premium thereof : and
(9) to enter into contracts, to execute instruments, to incur liabilities.
and to do all tilings as are necessary or incidental to the proper management
of its affairs and the proper conduct of its business.
(j) The Authority, its property, its franchise, capital, reserves, surplus, secu-
rity holdings, and other funds, and its income shall be exempt from all taxation
now or hereafter imposed by the United States or by any State or local taxing
authority : except that (A) any real property and any tangible personal property
of the Authority shall be subject to Federal, State, and local taxation to the same
exent according to its value as other such property is taxed, and (B) any and
all obligations issued by the Authority shall be subject both as to principal and
interest to Federal. State, and local taxation to the same extent as the obligations
(if private corporations are taxed.
(k) All obligations issued by the Authority shall be lawful investments, and
may be accepted as security for all fiduciary, trust, and public funds, the invest-
ment or deposit of which shall be under authority or control of the United
States or of any officer or officers thereof. All obligations issued by the Authority
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270 LEGAL COMPILATION—SUPPLEMENT I
pursuant to this section shall be deemed to be exempt securities within the mean-
ing of laws administered by the Securities and Exchange Commission, to the
same extent as securities which are issued by the United States.
(1) In order to furnish obligations for delivery by the Authority, the Secretary
of the Treasury is authorized to prepare such obligations in such form as the
Authority may approve, such obligations when prepared to be held in the
Treasury subject to delivery upon order by the Authority. The engraved plates,
dies, bed pieces, and so forth, executed in connection therewith, shall remain in
the custody of the Secretary of the Treasury. The Authority shall reimburse
the Secretary of the Treasury for any expenditures made in the preparation,
custody, and delivery of such obligations.
(m) The Authority shall, as soon as practicable after the end of each fiscal
year, transmit to the President and the Congress an annual report of its opera-
tions and activities.
(n) The sixth sentence of the seventh paragraph of section 5136 of the Revised
Statutes, as amended (12 U.S.C. 24), is amended by inserting "or obligations of
the Environmental Financing Authority" immediately after "or obligations, par-
ticipations, or other instruments of or issued by the Federal National Mortgage
Association or the Government National Mortgage Association".
(o) The budget and audit provisions of the Government Corporation Control
Act (31 U.S.C. 846) shall be applicable to the Environmental Financing Author-
ity in the same manner as they are applied to the wholly owned Government
corporations.
(p) Section 3689 of the Revised Statutes, as amended (31 U.S.C. 711), is
further amended by adding a new paragraph following the last paragraph ap-
propriating moneys for the purposes under the Treasury Department to read
as follows:
"Payment to the Environmental Financing Authority : For payment to the
Environmental Financing Authority under subsection (h) of the Environmental
Financing Act of 1972."
SEX DISCRIMINATION
SEC. 13. No person in the United States shall on the ground of sex be excluded
from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal assistance under this Act, the
Federal Water Pollution Control Act, or the Environmental Financing Act. This
section shall be enforced through agency provisions and rules similar to those
already established, with respect to racial and other discrimination, under
title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive
and will not prejudice or cut off any other legal remedies available to a
discriminatee.
BACKGROXTXD
America's waters are in serious trouble, thanks to years of neglect,
ignorance and public indifference. Almost from its inception in 1946
the Committee on Public Works has been trying to bring to reality
an effective properly funded program to restore and enhance the
quality of our Avaters and to insure their future as a lasting national
asset.
Prior to the Reorganization Act of 1946 there had been some legis-
lation enacted in this general field—The Refuse Act of 1899, the
Public Health ^Service Act of 1912 and the Oil Pollution Act of 1924.
However, it was not until after the Committee on Public Works was
established and considered the problem of water pollution control
to be sufficiently serious for national attention that, in 1948, the first
comprehensive measure aimed specifically at that problem was en-
acted. This landmark legislation was Public Law 80-845.
Public Law 80-845 essentially had a five-fold purpose:
1. Authorized the Surgeon General to assist in and encourage
State studies and plans, interstate compacts, and creation of uniform
State laws to control pollution.
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WATER—STATUTES AND LEGISLATIVE HISTORY 271
2. Supported research.
3. Authorized the Department of Justice to bring suits to require an
individual or firm to cease practices leading to pollution—suits could
be brought only after notice and hearings, and only with the consent
of the State.
4. Established the Federal Water Pollution Control Advisory
Board.
5. Provided authorization for funding.
a. $22.5 million a year for Fiscal Years 1949-1953 for low inter-
est (2 percent) loans for construction of sewage and waste treat-
ment works. Loans limited to $250,000 or one-third the cost of the
project.
b. $1 million a year for Fiscal Years 1949-1953 for grants to
States for pollution studies.
c. $800,000 a year for Fiscal Years 1949-1953 for grants to aid
in drafting construction plans for water pollution control projects.
Public Law 82-579, enacted in 1952 extended the provisions of the
1948 Act for an additional three years through Fiscal Years 1954-1956.
The emergence of the national water pollution control program
as a permanent program came about with the enactment of Public
Law 84-660 in 1956. This Act, which was brought about by the efforts
of the Public Works Committee, provided legislation of a compre-
hensive nature and permitted Federal participation in a wide variety
of activities, including Federal-State cooperation in developing com-
prehensive programs, increased technical assistance, intensified and
broadened, research; provided $3 million a year in grants for Fiscal
years 1957-1961 to assist in the preparation of State plans for pol-
lution control, $500 million for grants to help local communities build
sewage treatment plants for Fiscal Years 1957-1966; and modified and
simplified enforcement measures for controlling pollution of inter-
state Avaters.
In 1961, the Nation was beginning to realize the need for an active
and accelerated water pollution control program. After considerable
hearings, the Public Works Committee recommended to the Congress
H.K. 6441 and this eventually became enacted as Public Law 87-88.
The major provisions of that Act were as follows:
1. Vested administration of program in Secretary of Health, Edu-
cation, and Welfare (previously Surgeon General).
2. Authorize grants to local communities for sewage treatment
plants of:
(a) $80 million in Fiscal Year 1962
(&) $90 million in Fiscal Year 1963
(c) $100 million in Fiscal Years 1964-1967
3. Raised Federal contribution to 30 percent of total cost or $600,000
whichever was less (formerly 30 percent or $250,000).
4. Permitted Federal grants as high as $2.4 million where communi-
ties unite to build one project.
5. Authorized seven regional laboratories for research and demon-
stration in improved methods of sewage treatment and control.
6. Permitted the HEW Secretary, through the Justice Department
to bring court suits to require an offender to cease activities causing
pollution in interstate waters without seeking permission of the State.
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272 LEGAL COMPILATION—SUPPLEMENT I
7. Extended pollution abatement procedures of the Act to navigable
intrastate and coastal waters, but required permission of owners be-
fore Federal enforcement suit could be brought to stop activities in
such waters. (Previously abatement procedures applied only to inter-
state waters).
The water pollution control program as we know it today was put
into present shape by enactment of the Water Quality Act of 1965
and the Clean Waters Restoration Act of 1966.
Under the Water Quality Act of 1965 (P.L. 89-234), the States
were given the initial opportunity of adopting by June 30,1967, water
quality standards for their interstate waters, and plans to implement
and enforce the standards for approval by the Administrator of the
Environmental Protection Act as Federal standards. (The Reorga-
nization Plan No. 2 which was effective May 10, 1966, transferred the
Federal Water Pollution Control Administration, as well as most of
the functions of the Secretary of HEW authorized by the Federal
Water Pollution Control Acts, to the Secretary of the Interior. Subse-
quently, Reorganization Plan No. 3, July 1970, transferred the water
pollution control program to the Administrator of the Environmental
Protection Agency). If the State fails to adopt adequate criteria and
plans, the Administrator is authorized to initiate Federal actions to
establish standards.
The Water Quality Act of 1965 also provided for grants for re-
search and development in better methods of controlling pollution
from stormwater and combined sewer overflows and for increased
amounts for constructing sewage treatment works ($150 million for
Fiscal Years 1966 and 1C67).
The Clean Water Restoration Act of 1966 (P.L. 89-753) authorized
a massive Federal participation in the construction of sewage treat-
ment grants. The legislation authorized a total Federal expenditure of
$3,550,000,000 during Fiscal Years 1967-1971. Unfortunately, despite
the demonstrated need for such Federal expenditures, the appropria-
tions for Fiscal Years 1967-1970 have been just a little over 50 percent
of the authorized amounts.
The Water Quality Act of 1970, enacted on April 3, 1970 (P.L. 91-
224) included major innovations in the law concerning oil pollution
from vessels and on-shore and off-shore facilities. Federal permits and
licenses, sewage pollution from vessels and hazardous substances dis-
charged into the waters of the United States. In addition, one of the
most important provisions was the creation of the Office of Environ-
mental Quality to furnish staff support for the Council of Environ-
mental Quality established pursuant to Public Law 91-190.
Hearings
The Committee on Public Works conducted long and intensive hear-
ings, starting in May 1971, first to determine what has been done or
not done with the existinsj legislation, and then to consider proposals
for strengthening, expanding, and accelerating the water pollution con-
trol program.
The Committee received testimony from everybody who wanted to
be heard: from our leading universities, from business and industry,
from environmentalists, from the general public, from labor organiza-
tions, from Congress, from Federal, State, and municipal govern-
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WATER—STATUTES AND LEGISLATIVE HISTORY 273
ments, and from the Environmental Protection Agency, which is re-
sponsible for carrying out the laws the Congress has enacted in this
program.
The hearings were divided into three stages. The first stage, involving
12 days of hearings over a 6-week period, 32 witnesses, and 10 addi-
tional statements received for the record, was an oversight of the exist-
ing program. These hearings entailed a searching review and appraisal
of all our water pollution control activities to judge the effectiveness of
public expenditures in this area, and to decide what program changes
or new legislation would be needed to clean up our waters, and keep
them clean, more effectively than has been the case to date.
The second stage involved hearings on over 200 separate introduced
bills amending the existing Federal Water Pollution Control Act.
These hearings were held on 22 days and involved 178 witnesses and
50 additional statements submitted for the record.
The third stage followed the introduction of H.R. 11895 and H.E.
11896, in December, cosponsored by the 37 members of the Committee.
The hearings were held over 4 days and involved 84 witnesses and 75
additional statements offered for the record. This set of hearings was
considered necessary because several provisions of the bills were new
and far reaching, and the Committee decided that in all fairness to
the public all interested parties should have an opportunity to express
their views. Cosponsorship of all members of the Committee did not
mean that they all agreed on all provisions of the bill as introduced.
But out of the full and frank discussion of these provisions has
emerged legislation that the Committee considers to the effective and
administratively workable—a bill that will, at long last, get us moving
in high gear on the task of restoring the purity of our waters and
preserving them for future generations.
Thus, over a 7-month period, the Committee held 38 days of hear-
ings, listened to 294 witnesses, and received 135 additional statements
for the record. The record of the three sets of hearings required 4,155
printed pages.
FORMAT OF THE BILL
H.R. 11896, as reported, consists of 13 sections, and the bill as a
totality is referred to as "The Federal Water Pollution Control Act
Amendments of 1972."
Section 2 of the bill is "The Federal Water Pollution Act" as it is
amended by this legislation. This Act is divided into 5 titles:
Title I: Research and Related Programs.
Title II: Grants for Construction of Treatment Works.
Title III: Standards and Enforcement.
Title IV: Permits and Licenses.
Title A7: General Provisions.
Other sections of H.R. 11896 are:
Section 3 : Authorizations for Fiscal Year 1972.
Section 4: Savings Provision.
Section 5 : Oversight Study.
Section 6: International Trade Study.
Section 7 : International Agreements.
Section 8: Loans to Small Business Concerns for Water Pollution
Control Facilities.
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274
LEGAL COMPILATION—SUPPLEMENT I
Section 9 : Environmental Court.
Section 10: National Policies and Goals Study.
Section 11: Efficiency Study.
Section 12: Environmental Financing Act of 1972.
Section 13: Sex Discrimination.
INDEX TO FEDERAL WATER POLLUTION CONTROL ACT
TITLE I. RESEARCH AND RELATED PROGRAMS
Section 101: Declaration of Goals and Policy.
Section 102: Comprehensive Programs for Water Pollution Control.
Section 103: Interstate Cooperation and Uniform Laws.
Section 104: Research, Investigations. Training and Information.
Section 105: Grants for Research and Development.
Section 106: Grants for Pollution Control Programs.
Section 107: Area Acid and Other Mine Water Pollution Control
Demonstrations.
Section 108: Pollution Control in Great Lakes.
Section 109: Training Grants and Contracts.
Section 110: Application for Training Grant or Contract; Allocation
of Grants or Contracts.
Section 111: Award of Scholarships.
Section 112: Definitions and Authorizations.
Section 113: Alaska Village Demonstration Projects.
Section 114: Economic Growth Centers.
TITLE II. GRANTS FOR CONSTRUCTION OF TREATMENT WORKS
Section 201: Purpose.
Section 202: Federal Share.
Section 203: Plans, Specifications, Estimates and Payments.
Section 204: Limitations and Conditions.
Section 205: Allotment.
Section 206: Reimbursement and Advanced Construction.
Section 207: Authorization.
Section 208: Areawide Waste Treatment Management.
Section 209 : Basin Planning.
Section 210: Annual Survey.
Section 211: Sewage Collection Systems.
Section 212: Definitions.
Section 301:
Section 302:
Section 303:
Section
Section
Section
Section
304:
305:
306:
307:
Section 308:
TITLE III. STANDARDS AND ENFORCEMENT
Effluent Limitations.
Water Quality Related Effluent Limitations.
Water Quality Standards and Implementation Plans.
Information and Guidelines.
Water Quality Inventory.
National Standards of Performance.
Toxic and Pretreatment Effluent Standards.
Inspections, Monitoring and Entry.
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WATER—STATUTES AND LEGISLATIVE HISTORY
275
Section 309: Federal Enforcement.
Section 310: International Pollution Abatement.
Section 311: Oil and Hazardous Substance Liability.
Section 312: Marine Sanitation Devices.
Section 313: Federal Facilities Pollution Control.
Section 314: Clean Lakes.
Section 315: National Academies Study.
Section 316: Regulation of Thermal Discharges.
Section 317: Financing Study.
Section 318: Aquaculture.
TITLE IV. PERMITS AND LICENSES
Section 401: Certification.
Section 402: National Pollutant Discharge Elimination System.
Section 403: Ocean Discharge Criteria.
Section 404: Permits for Dredged or Fill Material.
TITLE V. GENERAL PROVISIONS
Section 501: Administration.
Section 502: General Definitions.
Section 503: Water Pollution Control Advisory Board.
Section 504: Emergency Powers.
Section 505: Citizen Suits.
Section 506: Appearance.
Section 507: Employee Protection.
Section 508: Federal Procurement.
Section 509: Administrative Procedure and Judicial Review.
Section 510: State Authority.
Section 511: Other Affected Authority.
Section 512: Separability.
Section 513: Labor Standards.
Section 514: Agricultural Facilities.
Section 515: Effluent Standards and Water Quality Information Ad-
visory Committee.
Section 516: Reports to Congress.
Section 517: General Authorization.
Section 518: Short Title.
HIGHLIGHTS or BILL
H.R. 11896, as reported, includes the following provisions:
The objective of the bill is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.
It is declared to be national goals to eliminate the discharge of pol-
lutants into the waters of the United States by 1985 and to achieve
water quality which provides for the protection and propagation of
fish, shellfish, and wildlife and provides for recreation in and on the
water to be achieved by 1981.
It is stated policy of the bill to prohibit the discharge of toxic pol-
lutants in toxic amounts, to provide financial assistance to communi-
ties to construct publicly owned waste treatment facilities, to increase
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276 LEGAL COMPILATION—SUPPLEMENT I
research and development, to expand the regional and basin planning
and management programs, and eliminate red tape in the administra-
tion of water pollution control programs. It is stated to be the policy
of the Congress to encourage Federal-State efforts in the water pollu-
tion control policy.
It is also declared to be the policy that the President shall take
action to insure that to the fullest extent possible all foreign countries
shall take meaningful action for the prevention, control, and abate-
ment of water pollution in their waters and international waters and
for the achievement of goals to at least the same extent as the United
States does.
In order to achieve these policies and goals, the following pro-
visions are included in the program:
1. Authorizes appropriations of $600,000,000 for basic and ad-
vanced research, development, and training.
2. This program recognizes the need for an expanded and improved
State participation in the water pollution control program. The grants
for the funding for State programs have been increased from $30,000,-
000 for the previous 3 years to $135,000,000 for the next 2 years.
3. The program would encourage alternative systems including ad-
vanced technologies and land disposal systems including the Muske-
gon system.
4. It is required in the implementation of this bill that the agencies
consider all potential impacts relating to water, land, and air to insure
that in enhancing the water quality, other significant environmental
problems are not created.
5. Authorizes $18,000,000,000 for construction of waste treatment
works for fiscal years 1973-1975. This includes construction of treat-
ment facilities and collector sewer systems, including systems for
treatment of storm sewer run-off.
6. Establishes the basic Federal share of construction grants at
60 percent. If a State pays 15 percent of the cost, the Federal grant
is increased to 75 percent.
7. Provides for contract authority for construction grants.
8. Establishes allocation of grant funds to the States on the basis
of need for waste treatment works.
9. Provides that projects initiated after 1956 which meet the re-
quirements of the previous Acts would be eligible for retroactive
grants. $2,750,000,000 is authorized for this purpose.
10. Provides for user charges to assure that recipients of waste
treatment services will pay their share of the cost of constructing,
operating, and maintaining waste treatment facilities. The portion of
the Federal grants for construction which is applicable to industrial
user wastes will be retained by the local waste treatment works man-
agement agency to provide for its needs.
11. Emphasizes the necessity for areawide waste treatment man-
agement and makes provisions for areawide management agencies;
$350,000,000 is authorized to the Environmental Protection Agency
and the Corps of Engineers to assist in carrying out this areawide
waste treatment management. The Water Resources Council is directed
to complete comprehensive river basin plans by January 31, 1980, and
$200,000,000 is authorized to be appropriated to carry out these plans.
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WATER—STATUTES AND LEGISLATIVE HISTORY 277
12. Retains the process in existing law for establishing water quality
standards for interstate waters. The bill further requires that water
quality standards be established for all navigable waters.
13. Requires point sources other than publicly owned treatment
works to utilize the best practicable control technology currently
available or a higher level of treatment if required to meet water
quality standards.
14. Requires those publicly owned treatment works for which grants
are approved as of June 30, 1974, or which are in existence on Janu-
ary 1, 1976, to have effluent limitations based on secondary treatment.
15. Because of concern about the economic and social impacts of the
desirable objective of attaining the 1981 and 1985 goals, the bill re-
quires that the National Academy of Sciences complete within 2 years
of the enactment of this bill, a comprehensive study of the economic,
social, and environmental costs, impacts, and benefits. The 1981 and
1985 goals would not be implemented until the Congress has an op-
portunity to evaluate the report and take further action.
16. Requires that new sources of water pollution be constructed to
meet a standard that reflects the greatest degree of effluent reductions
that can be achieved by the use of the best available demonstrated con-
trol technology. If practicable, the standard would permit no discharge
of pollutants. Each new plant or modification of an existing plant will
be required to follow such standards unless it can be demonstrated that
the economic, social and environmental costs of achieving this stand-
ard exceed the economic, social and environmental benefits.
17. Requires the Administrator to publish a list of toxic pollutants.
Six months thereafter the Administrator must publish proposed ef-
fluent standards for the listed pollutants. This standard when justified
could prohibit any discharge of toxic material.
18. Requires pretreatment of those effluents from industrial facilities
which are discharged into publicly owned treatment works and which
would interfere with the operation of the treatment process or which
would not be susceptible to treatment by such works.
19. Repeals existing enforcement procedures, including conferences
and 180-day actions for violation of the water quality standards. The
bill substitutes a system of enforcement based upon discharge permits
and effluent limitations. Violations under the provisions of this bill
could result in penalties of up to $50,000 and 2 years in jail.
20. Modifies existing provisions of law dealing with oil pollution to
add liability for the cleaning up of any hazardous material discharged
into navigable waters. Under the bill, EPA is required to designate
materials and quantities of such materials that are hazardous. To be
judged hazardous, a substance must present an element of substantial
danger to the public health and welfare, including danger to fish,
shellfish, and beaches. The person responsible for a discharge of any
hazardous substance which cannot be removed is made liable to a pen-
alty not to exceed $50,000. There is no limitation of liability for will-
ful discharges.
21. Requires Federal facilities to meet the same effluent limitations
and water quality standards as private sources of pollution unless the
facility is specifically exempted by the President. The President can-
not exempt any source from new source performance standards or
toxic and pretreatment standards.
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278 LEGAL COMPILATION—SUPPLEMENT I
22. Eequires all States to identify and classify their lakes according
to eutrophic conditions and to establish procedures and to carry out
methods to control and restore polluted lakes. $250,000,000 is authorized
for this program.
23. Adds new provisions for thermal discharges. The bill provides
for continuing comprehensive studies of the effects and methods of
control of thermal discharges which shall consider costs, benefits, en-
vironmental impacts, and methods to minimize adverse effects and
maximize the beneficial effects of thermal discharges. The results of
these studies shall be reported within 1 year. The Administrator is
required to issue proposed regulations for control of thermal dis-
charges within 1 year after enactment of the Act. Permits for thermal
discharges are required as a part of the national discharge permit
program.
24. Declares to be unlawfiu che discharge of any pollutant by any
person except as specifically authorized in the bill. The bill establishes
a Federal-State discharge permit program. All permits issued under
this program shall be consistent with the specific requirements of the
bill, including effluent limitations or other limitations, national stand-
ards of performance, toxic and pretreatment standards, and ocean dis-
charge guidelines.
25. Provides that upon enactment of this bill, no new permits will
be issued under the 1899 Refuse Act. Permits previously issued under
that Act will be considered to be permits under this new program.
Pending applications under the Refuse Act program would be trans-
ferred from the Corps of Engineers who are administering the 1899
Refuse Act to the Environmental Protetcion Agency who would be
initially responsible for the administration of the new program.
26. The Administrator shall promulgate guidelines which spell out
the details of a State program which would be capable of managing
the permit program. Those States which in the Administrator's judg-
ment have programs which meet these guidelines would assume the
responsibility of managing the permit program in those States. In
States which fail to meet the guidelines, the Administrator will carry
on the program. In the interim, while the guidelines are being pro-
mulgated, the Administrator may grant authority to those States that
have an adequate program to issue permits, except that in these cases
all permits proposed to be issued would be subject to the review and
approval of the Administrator.
27. The permit program includes the regulation of discharge into
the navigable waters, territorial sea, the waters of the contiguous
zones, and the oceans.
28. Establishes provisions for citizen participation in enforcement
of control requirements and regulations created by this bill. Anyone
who has standing may initiate a civil suit against any person who is
alleged to be in violation of a Federal or State effluent standard or
limitation or an order with respect to such a standard or limitation
and may initiate a civil suit against the Administrator for failure to
perform a nondiscretionary act. The bill grants standing to citizens
of the area having a direct interest which is or may be affected and
to a group of persons which has been actively engaged in the adminis-
trative process and has thereby shown a special interest in the geo-
graphic area in controversy.
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WATER—STATUTES AND LEGISLATIVE HISTORY 279
29. The bill precludes the Federal Government from patronizing
or subsidizing polluters through its procurement practices and
policies.
30. Directs the Secretary of Commerce to make an investigation and
study of the effect that the costs of undertaking abatement control
programs would have on the competitive position of the United States
manufacturers as compared with foreign industrial nations not hav-
ing the same degree of pollution control. This study would include
alternative means of equalizing any competitive cost advantage that
foreign nations may have and encouraging them to implement pollu-
tion and abatement programs. $1,000,000 is authorized for the study
and an initial report is due within 6 months from the date of the en-
actment of this section.
31. Amends the Small Business Act and makes available $800,000,-
000 to make loans to assist small concerns likely to suffer substantial
economic injury in meeting the water pollution requirements estab-
lished under the Federal Water Pollution Control Act. These loans
would be for the purpose of making additions or alterations in the
equipment, facilities, including the construction of treatment facilities
and interceptor sewers, or methods of operation.
32. Kequires the President to investigate and report to the Congress
within 6 months the feasibility of establishing a separate court or
court system to deal with environmental matters.
33. Requires the President to make an investigation and to report
the results to the Congress within 2 years of all national policies and
goals heretofore established by law with the purpose of determining
the relationship between these possibly competing policies and goals.
This evaluation should take into account the available resources of the
Nation. $5,000,0000 is authorized for this study.
34. Authorizes the establishment of an Environmental Financing
Authority (EFA) under the supervision of the Secretary of the
Treasury for the purpose of facilitating the efforts of State and local
governments to obtain funds to finance their share of the construction
costs of waste treatment facilities that receive grants from the Federal
Government.
ANALYSIS OF THE BILL
Section /.—This is the short title of the bill—"The Federal Water
Pollution Control Act Amendments of 1972."
Section 2.—The existing Federal Water Pollution Control Act con-
sists of 27 sections. Section 2 of H.R. 11896, as reported, would restruc-
ture the Act by replacing the 27 sections with 5 titles, each of which
would be divided into an appropriate number of sections.
In order to fully understand section 2, it is necessary to recognize
that certain terms used in the drafting of this section have very spe-
cific and technical meanings. The definitions of these terms are included
in section 502 of title V, and it is recommended that very special atten-
tion be accorded section 502. However, since these terms will be used
in this report with the same meanings as they are given in the legisla-
tion, it is appropriate to note some of the more important terms at this
point.
(1) The term "pollution" means the man-made or man-induced al-
teration of the natural chemical, physical, biological, and radiological
integrity of water.
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280 LEGAL COMPILATION—SUPPLEMENT I
(2) The term "pollutant" means, but is not limited to, dredged spoil,
solid waste, incinerator residue, sewage, garbage, sewage sludge, muni-
tions, chemical wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand, cellar dirt and in-
dustrial, municipal, agricultural, and other waste discharged into
water. This term does not mean (a) "sewage from vessels" within the
meaning of section 312 of this Act; or (b) water, gas, or other ma-
terial which is injected into a well to facilitate production of oil or
gas, or water derived in association with oil or gas production and
disposed of in a well, if the well used either to facilitate production or
for disposal purposes is approved by authority of the State in which
the well is located, and if such State determines the injection or dis-
posal of such water, gas, or other material will not result in the deg-
radation of ground or surface water resources; or (c) thermal dis-
charges in accordance with regulations issued pursuant to section
316 of this Act; or (d) organic fish wastes.
(3) The term "discharge of a pollutant" and the term "discharge of
pollutants" means (a) any addition of any pollutant to navigable
waters from any point source, (b) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any point source other
than a vessel or other floating craft.
(4) The term "thermal discharge" means introduction of water into
the navigable waters or from a point source at a temperature different
from the ambient temperature of the receiving waters.
(5) The term "discharge" when used without qualification means
both discharges of a pollutant or of pollutants and a thermal discharge.
(6) The term "point source" means any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or other floating craft
from which pollutants are or may be discharged, or from which there
is or may be a thermal discharge.
TITLE I RESEARCH AXD RELATED PROGRAMS
Section 101—Declaration of Goals and Policy
Subsection (a) of section 101 declares the objective of this legislation
to be the restoration and maintenance of the chemical, physical, and
biological integrity of the Nation's waters.
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.
As a concept, natural structure and function is relatively well under-
stood by ecologists both in precise terms, and as an abstract concept
in those few cases where specific quantification is not confidently at-
tainable.
Although man is a "part of nature" and a product of evolution,
"natural" is generally defined as that condition in existence before
the activities of man invoked perturbations which prevented the system
from returning to its original state of equilibrium.
This definition is in no way intended to exclude man as a species from
the natural order of things, but in this technological age, and in numer-
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WATER—STATUTES AND LEGISLATIVE HISTORY 281
ous cases that occurred before industrialization, man has exceeded
nature's liomeostatic ability to respond to change. Any change induced
by man which overtaxes the ability of nature to restore conditions to
''natural" or "original" is an unacceptable perturbation.
Ecosystems themselves are dynamic, changing things. They undergo
their own evolutionary changes, and these are "natural". The time
scale that we are referring to for the purposes of this legislation, how-
ever, implies a relatively high degree of stability, when compared to
the changes that occur over geological or evolutionary time. The latter
time scales would encompass major evolutionary changes such as major
successional changes, extinctions, appearances of new forms, major
climatic changes, major physiograph changes and the like. Our time
scale involves lesser adaptations and almost no evolutionary changes,
and allows for the minor physical activities that accompany a shorter
time frame, such as the peturbations caused by earthquakes, landslides,
hurricanes, floods, volcanic activity, and the like. These changes are
part of the general order of things: the natural law that has existed
since the planet began to support life.
On that basis we could describe that ecosystem whose structure and
function is "natural" as one whose systems arc capable of preserving1
themselves at levels believed to have existed before irreversible per-
turbations caused by man's activities.
Such systems can be identified with substantial confidence by
scientists.
In order to achieve the stated objective, the legislation declares
two national goals. It is declared to be national goals to eliminate
the discharge of pollutants into the waters of the United States by
1985 and to achieve wherever attainable an interim goal of water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on the water
be achieved by 1981.
The Committee recognizes the problems associated with imple-
menting a no-discharge policy. Although considerable views were
heard on this subject by the Committee during hearings, it was
apparent that very little hard evidence was available on which to
make final irretrievable judgement on this matter. It was for this
reason that the legislation includes section 315 providing for a study
by the National Academy of Sciences and the National Academy of
Engineering, acting through the National Research Council, of the
effects of achieving or not achieving the 1981 and 1985 goals. At the
conclusion of the study, with the appropriate information available,
the Congress will be in a position to fully evaluate the implications
of a no-discharge policy.
Subsection (a) further states it to be national policy that Federal
financial assistance be provided to construct publicly-owned waste
treatment works; that areawide waste treatment management plan-
ning processes be developed and implemented to assure adequate
control of sources of pollutants in each state; and that a major re-
search and demonstration effort be made to develop technology nec-
essary to eliminate the discharge of pollutants into the navigable
waters, waters of the contiguous zone, and the oceans. These policies
are implemented in this legislation with major commitments of
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282 LEGAL COMPILATION—SUPPLEMENT I
Federal funds. The bill provides $18 billion for construction of waste
treatment works for fiscal years 1973-1975; $600,000,000 for basic
and advanced research, development and training; and almost $1,-
000,000,000 for State basin, and area-wide planning.
Subsection (b) states a policy of the Congress to recognize, preserve
and protect the primary responsibilities and rights of States to pre-
vent and abate pollution, to plan the development and use of land
ana water resources, and to consult with the Administrator in the
exercise of his authority. It is the further policy to support and aid
research relating to the prevention and abatement of pollution, and
to provide Federal technical services and financial aid to State and
interstate agency and municipalities.
It is also declared to be the policy of Congress that the President
shall take action to insure that to the fullest extent possible all foreign
countries shall take meaningful action for the prevention, control,
and abatement of water pollution in their waters and international
waters and for the achievement of goals to at least the same extent as
the United States does.
Subsection (d) states that except as otherwise expressly provided,
the Administrator or the Environmental Protection Agency shall ad-
minister this Act.
A major finding of the Committee's oversight hearings was that the
water pollution control program had been seriously impaired by the
lack of continuity which had existed for years because of various reor-
ganizations, transfers, restructuring, and staff manpower shortages.
The consequences of these eventually resulted in a start-stop, halting
arrangement, of operations and procedures and the inability of the
agency to perform necessary duties and functions. It is earnestly hoped
that there will be no more reorganizations or restructuring of the Fed-
eral agency responsible for the water pollution control program. The
following chart shows the many changes in the leadership of this
program.
1948—Division of Water Pollution Control established in the
Department of Health, Education, and Welfare.
Shortly thereafter, the division was transferred to
the Bureau of State Services of the Public Health
Service.
1954—Division of Water Pollution Control was reduced to a
branch and was consolidated with other divisions into
the new Division of Sanitary Engineering Services.
1959—Water Pollution Control Branch and other water pol-
lution research and technical functions became the
Division of Water Supply and Pollution Control.
1960—Division of Water Supply and Pollution Control was
grouped with other divisions to form the environmen-
tal health segment of the Bureau of State Services,
Public Health Service.
1961—Research and training grants responsibilities under the
control of the National Institutes of Health were
transferred to the Division of Water Supply and
Pollution Control.
1965—Division of Water Supply and Pollution Control became
the Federal Water Pollution Control Administration,
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WATER—STATUTES AND LEGISLATIVE HISTORY 283
a separate administration within the Department of
Health, Education, and Welfare.
1966—Federal Water Pollution Control Administration was
transferred to the Department of the Interior in ac-
cordance with Reorganization Plan No. 2.
1967—Federal Water Pollution Control Administration was
reorganized.
1968—Federal Water Pollution Control Administration was
reorganized.
1970—Federal Water Pollution Control Administration be-
came the Federal Water Quality Administration.
1970—Federal Water Quality Administration was transferred
to the Environmental Protection Agency in accord-
ance with Reorganization Plan No. 3, and became
the Water Quality Office.
1971—Water Quality Office became the Office of Water Pro-
grams and with the Office of Air Programs was placed
under the Assistant Administrator for Media
Programs.
Subsection (e) provides for public participation in the development,
revision and enforcement of any regulation, standard or effluent lim-
itation established by the Administrator or any State. The subsection
further directs the Administrator and the States to encourage and as-
sist the public so that it may fully participate in the administrative
process.
Subsection (f) declares it to be the national policy that to the maxi-
mum extent possible the procedures utilized for implementing this leg-
islation shall encourage the drastic minimization of paperwork and in-
teragency decision procedures, and the best use of manpower and
funds, so as to prevent needless duplication and unnecessary delays at
all levels of government.
This provision implements the recommendations of the Subcommit-
tee on Investigations and oversight which held extensive hearings on
the subject of red tape in the Federal agencies and on their decision
making processes.
Subsection (g) provides that in the implementation of this legisla-
tion, agencies responsible therefore shall consider all potential impacts
relating to the water, land, and air to insure that other significant en-
vironmental degradation and damage to the health and welfare of
man does not result.
The Committee believes that there is little to be gained in stopping
water pollution if the preventive actions cause more environmental
damage than it eliminates. Therefore, the agencies are directed to con-
sider all the ramifications of their actions.
Section J02—Comprehensive Program for Water Pollution Control
Section 3 (a) of the existing Federal Water Pollution Control Act
is the basic authority for the Environmental Protection Agency
(EPA) to conduct comprehensive water quality management plan-
ning. This authority is continued in subsection (a) of section 102 of
H.E. 11896, as reported.
Section 3 (b) of the existing law provides for the inclusion of storage
in Federal projects for the regulation of stream flow for water quality
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284 LEGAL COMPILATION—SUPPLEMENT I
control with Federal assumption if the costs of the benefits are wide-
spread or national in scope. Section 3(b) further specifically provides
that releases from Federal reservoirs may not be used as a substitute
for the adequate treatment of wastes, or other methods of controlling
pollution at the source. The Committee is satisfied that flow regulation
will continue as a viable alternative in the foreseeable future even with
further improvements in waste treatment technology and, therefore,
has continued this authority in subsection (b) of section 102. An addi-
tional provision relating to storage for regulation of stream flow in
hydroelectric power projects licensed by the Federal Power Commis-
sion has been included in subsection (b) of section 102.
Subsection (c) authorizes the Administrator to make grants to pay
up to 50 percent of the administrative expenses of planning agencies
for a 3-year period. These grants would be for the development of
comprehensive water quality control and abatement plans for a basin
or portions thereof. These plans must be developed in cooperation with
and consistent with applicable area-wide waste management plans
under section 208 and comprehensive basin plans under section 209, and
any State plan under section 303(e). Any agency presently receiving
a grant under the existing law would be eligible for grants for an
additional 3 years. >
Section 103—Interstate Cooperation and Uniform Laws
This section essentially restates the provisions of section 4 of the
existing law. It establishes a policy for active Federal promotion of
cooperative efforts among the States to promote pollution control. Such
efforts include programs to promote model legislation and uniform
laws and administration of laws in the States and to encourage inter-
state compacts and agreements for pollution control.
Section 104—Research, Investigations, Training and Information
This section basically rewrites and revises the research programs of
section 5 of the existing law. Subsections (a) and (b) of section 104
grant the Administrator broad general authorities to participate in
and encourage research, investigations, experiments, training, demon-
strations, surveys and studies relating to the causes, effects, extent, pre-
vention and abatement of pollution. The Administrator is directed to
conduct public investigations concerning the pollution of any naviga-
ble waters; establish advisory committees to assist in the examination
and evaluation of research progress and proposals; to avoid duplica-
tion of research; to establish, equip and maintain a water quality sur-
veillance system for monitoring the quality of the navigable waters,
ground waters, contiguous zones and the oceans; and to develop the
tools and techniques for measuring the social and economic costs and
benefits of activities regulated under this legislation. In order to carry
out this directive, the Administrator is authorized to publish infor-
mation which has been developed, make grants and enter into con-
tracts, establish and maintain research fellowships, and take other
relevant actions.
In subsection (c) the Administrator is authorized to conduct re-
search on, and survey the results of other scientific studies on, the
harmful effects on the health or welfare of persons caused by pol-
lutants. In carrying out this effort, the Administrator is required to
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WATER—STATUTES AND LEGISLATIVE HISTORY 285
coordinate his efforts with the Secretary of Health, Education, and
Welfare so as to avoid duplication of effort.
Subsections (d), (e), (g), (h), (i), (k), and (1) are basically ex-
tensions of the existing law with relatively minor changes.
In regard to these subsections the following items should be noted:
(1) The rewriting of subsection (e) does not increase the number of
authorized laboratories at any one area of the country, (2) the report
relating to training required by subsection (g) (4) is meant to be a new
report, and not in lieu of previously authorized reports, (3) the ref-
erence to cooperation with the Coast Guard in subsection (i) is to
indicate that the Committee recognizes the extremely important role
of that agency in this program, and expects that the Administrator
will work closely with the Coast Guard in a manner which would pre-
clude any differences as to which agency is the lead agency, (4) the
Administrator is granted a 6-month extension on the requirements of
subsection (1) (1) and the reports required by subsection (1) (2) are
in addition to and not in lieu of the report required in the existing law.
In subsection (j) the Committee retained the study authorized in
section 5(j) of the existing law, but substituted the Coast Guard as the
agency to conduct the program. Although the Administrator has been
engaged in this type of study since its original authorization in 1970,
the Committee believes that the Coast Guard has a longer history of
involvement and a greater expertise and responsibility in matters re-
lating to equipment to be installed on board a vessel. The Committee
notes that all ongoing contracts and in-house work at EPA may con-
tinue under the authority of the savings provision contained in section
4 of the Federal Water Pollution Control Act Amendments of 1972.
The assignment of this research work to the Coast Guard is clearly
consistent with other requirements in the existing law that the Coast
Guard promulgate regulations governing the design, construction, in-
stallation, and operation of any marine sanitation device on board
vessels.
Subsection (m) authorizes a study of methods to deal with the dis-
posal of various types of waste oils, including used engine, machine
and cooling oils.
Subsection (n) continues the Administrator's authority to conduct
studies of problems in the estuaries and estuarine zones, and from time
to time submit reports of the studies. The Committee has given consid-
erable attention to the National Estuarine Pollution Study Report pre-
pared by EPA's predecessor agency, the Federal Water Pollution Con-
trol Agency, and expects to be kept closely informed on this subject.
Subsection (o) expands the Administrator's authority to conduct
research on methods to reduce the total flow of sewage, including un-
necessary water consumption.
Subsection (p) authorizes the Administrator, in cooperation with
the Secretary of Agriculture, other Federal agencies, and the States,
to research problems relating to pollution from agriculture.
Subsection (q) (1) authorizes the Administrator to make grants for
demonstration programs for new and improved methods of prevent-
ing, reducing, storing, collecting, and treating sewage in rural and
other areas where conventional sewage collection is impractical or
where soil conditions or other factors preclude the use of septic tanks
and drainage field systems.
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286 LEGAL COMPILATION—SUPPLEMENT I
Subsection (q) (2) authorizes the Administrator to conduct a com-
prehensive program of research and investigation and pilot project im-
plementation into new and improved methods of the collection and
treatment of sewage and other liquid wastes combined with the treat-
ment and disposal of solid wastes.
Subsection (r) authorizes the Administrator to make grants to col-
leges and universities to conduct research in fresh water aquatic eco-
systems. Comprehensive basic research on general problems of water
quality is a necessity for the accumulation of a broad baseline of
information on all important parameters. These funds are specifically
authorized with the realization that to date competing priorities have
mitigated against intensive effort in this area.
Subsection (s) authorizes the Administrator to make grants to in-
stitutions of higher education to conduct and report on interdiscipli-
nary studies on the nature of river systems. No single grant in any
fiscal year may exceed $1,000,000. The recipient institutions should
be regionally located and be designated as "River Study Centers."
Subsection (t) provides that the Administrator shall, in coopera-
tion with State and Federal agencies and public and private organiza-
tions, conduct continuing comprehensive studies of the effects and
methods of control of thermal discharges. A number of electric power
utilities, including the Tennessee Valley Authority, have accumulated
extensive experience in reducing and controlling the effects of such dis-
charges, and it is intended that the Administrator shall call upon such
organizations for cooperation and assistance in conducting such
studies. Full consideration should be given to all alternative methods
of controlling thermal discharges from the point of view of economic
and technical feasibility as well as social and economic costs and bene-
fits. The evaluation of these alternative control methods should not be
made in isolation, but rather in relationship to their relative impact
on other environmental factors such as air quality, land use, and
effective use of natural resources. The studies should examine methods
of maximizing benefits while minimizing adverse effects of thermal
discharges, and should assist the Administrator in proposing regu-
lations with respect to thermal discharges under section 316 of this
Act.
The legislation provides for these studies because the Committee
believes that the development and evaluation of this information is
essential in order to develop a sound scientific, technical, and economic
basis for proposing reasonable and workable regulation of thermal dis-
charges. The Committee intends that the Administrator shall keep
the Committee fully and currently informed of the progress of the
studies prior to formulating any proposed regulations.
Subsection (u) authorizes appropriations of $100,000,000 for each
of the fiscal years 1973 and 1974 for carrying out the provisions of
section 104 other than for subsections (g), (p), and (r). There are ad-
ditional authorizations for appropriations for subsection (g) (1) re-
lating to the pilot training program for personnel to operate and main-
tain treatment plants in the amount of $7,500,000 for fiscal year 1973.
subsection (g) (2) relating to forecasting employment needs in pollu-
tion control in the amount of $2.500,000 for fiscal year 1973, subsection
(p) relating to agricultural pollution research in the amount of $10,-
000,000 for each of the fiscal years 1973 and 1974, and subsection (r)
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WATER'—STATUTES AND LEGISLATIVE HISTORY 287
relating to research in aquatic ecosystems in the amount of $15,000,-
000 for each of the fiscal years 1973 and 1974.
Section 105—Grants for Research and Development
This section continues and expands on the provisions of section 6
of the existing law.
The Administrator is authorized in subsections (a) and (c) of
section 105 to continue programs for (1) assisting the development
of projects to demonstrate new or improved methods of preventing
and abating discharge into any waters of pollutants from sewers which
carry storm water or both storm water and pollutants; (2) assisting
the development of projects to demonstrate advanced waste treat-
ment or water purification methods or new or improved methods of
joint treatment systems for municipal and industrial wastes; and (3)
research and demonstration projects for preventing pollution of
waters by industry, including, but not limited to, treatment of in-
dustrial waste. This authority in existing law has been limited to per-
forming these functions by grant or contract. Subsections (a) and (c)
would now authorize the Administrator to conduct in-house demon-
stration projects of this type.
Subsection (b) authorizes the, Administrator to undertake model
river basin demonstration projects of advanced pollution treatment
and environmental enhancement techniques to control pollution from
all sources together with in-stream water quality improvement
techniques. The Passaic Eiver Basin is the perfect example of a river
basin which deserves model basin treatment. The problem there re-
sults from a complete abuse of this vital natural resource. The severe
pollution of the river and its tributaries thwarts the economy of the
region and is a mounting and ever present threat to the safety and
health of the residents of this region of New Jersey. The Committee
urges the Administrator to give this river basin a high priority.
Subsection (d) gives specific emphasis to the study of management
methods and technologies related to eliminating discharges into water.
and to the study of the impact of specific discharges on receiving water
quality. The last is a highly complex subject, but its thorough under-
standing is fundamental to an effective and sound water pollution
control program.
Increased emphasis on demonstration projects is consistent with,
and essential to, the increased requirements for technology in this bill.
There is need for the demonstration of technology so that reports
thereon can be widely distributed in order to inform dischargers
subject to regulation that technology is available to meet the require-
ments of this legislation. This increased emphasis, further, is directed
at a broad range of pollution sources and comprehensive approaches
recognizing that an effective control program must be based on con-
trol of all sources ultimately, in a systematic and interrelated manner.
For example, municipal pollution control requires control over sew-
ered and non-sewered wastes, storm waters, and urban runoff. Munici-
pal control must, in turn, be consistent with area and basin-wide
control. Such comprehensive control will require a blend of control
technologies, both new and conventional.
Subsection (e) authorizes demonstration projects for control of
agricultural pollution and for rural sewage disposal systems.
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288 LEGAL COMPILATION—SUPPLEMENT I
The bill provides in subsection (c) that no grant will be made under
this section unless the Administrator determines that the project will
develop or demonstrate a new or improved method of treating in-
dustrial wastes or otherwise prevent pollution by industry, which
method must have industrywide application.
It is further provided that no grant for subsections (a) or (c) may
exceed 75 percent of the cost of the project. This is similar to existing
law.
Subsection (h) authorizes appropriations of $70,000,000 for each of
fiscal years 1973 and 1974; however, 10 percent of the funds actually
appropriated in each fiscal year must be available only for the pur-
poses of subsection (e) relating to agricultural and rural research
and demonstration projects.
Section 106—Grants for Pollution Control Programs
Subsection (a) of section 106 authorizes appropriations in the
amount of $60,000,000 for fiscal year 1973 and $75,000,000 for fiscal
year 1974 for grants to States and to interstate agencies to carry out
programs for prevention and abatement of pollution. Subsection (b)
provides that allotments of such funds by the Administrator will be
based on the extent of the pollution problem in the respective States.
Subsection (c) authorizes the Administrator to pay to the States
and interstate agencies each fiscal year either (1) the allotment estab-
lished under subsection (b), or (2) the reasonable costs of developing
and carrying out a pollution program during that year, whichever
amount is the lesser.
Subsection (d) establishes fiscal year 1971 as the base line for the
maintenance of effort by a State or interstate agency. If a State or
interstate agency reduces its spending below this amount, grants under
this program will be discontinued.
Subsection (e) provides that grants will be made under this section
on condition that (1) the State or interstate agency files with the Ad-
ministrator within 120 days of enactment of this section a summary
report of the current status of its program, including the criteria used
by the State in determining priority of treatment works and any other
additional information requested by the Administrator; (2) no fed-
erally assumed enforcement (section 309(a) (2)) is in effect; and (3)
the State or interstate agency submits within 120 days after enactment
of this section and before July of each year thereafter for the
Administrator's approval its program for prevention and abatement
of pollution.
Subsection (f) authorizes the Administrator to reallot moneys not
paid.
Section 106 substantially increases the Federal encouragement and
support of State programs authorized under section 7 of the existing
law. The new section 106 recognizes the need for expanded and im-
proved State (and interstate agency) participation in the water pollu-
tion control program to achieve the objectives set by this legislation.
The Administrator is given power to review State programs to assure
they will effectively promote the ends of this legislation and that they
maintain at least the spending level of effort of their fiscal year 1971
program.
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WATER—STATUTES AND LEGISLATIVE HISTORY 289
In making allotments to the several States and interstate agencies
"on the basis of the extent of the water pollution problem in the vari-
ous States" the Administrator should recognize that "water pollution
problems" include the prevention of water quality degradation as well
as abatement of existing problems.
The State (or interstate agency) program submitted in compliance
with the conditions of subsection (e) (3) is expected to describe the
relationship between the various program elements required by other
portions of this Act, such as: the basin plans (sec. 102), the areawide
waste treatment management plans (sec. 208), the Comprehensive
River Basin plans (sec. 209), and the State plan (sec. 303(e)). In
administering this section, the Committee expects the Administrator
to minimize, to the extent possible, the number and diversity of sub-
missions by the States (and interstate agencies) required under this
and other sections of the Act. At the same time, the State program
should serve as a vehicle for development of a meaningful working re-
lationship between the States (and interstate agencies) and the Fed-
eral Government. The use of areawide and basin plans as the keystone
for much of the State and local water quality management efforts is
required to assure effective and efficient use of limited State resources.
The Committee intends that State program grants may be used for
any reasonable expenses in carrying out State responsibilities under
this Act, including enforcement and permit programs.
Section 107—Area Acid and Other Mine Water Pollution Control
Demonstrations
This section continues, with conforming language changes, the pro-
visions of section 14 of the existing law. Specific provision is made
that techniques utilizing sewage sludge and other municipal wastes
are appropriate for abatement demonstration projects under this sec-
tion, and the Committee intends these techniques will be explored and
demonstrated.
The Committee expects that this program will assume added sig-
nificance from the requirement to identify and develop procedures and
methods for control of mine pollution sources as part of the compre-
hensive attack on all pollution sources. Mine pollution sources are
responsible for much of the pollution of many of our rivers, particu-
larly in Appalachia. The Committee believes that an aggressive pro-
gram to develop practicable and economic methods to control this
pollution is an important priority.
Subsection (d) authorizes appropriations in the amount of $15,-
000,000. This is the amount originally authorized for this purpose in
Public Law 91-224 and does not constitute an additional authoriza-
tion over and above that amount.
Section 108—Pollution Control in the Great Lakes
Subsections (a) through (c) of section 108 continues, with con-
forming language changes, the provisions of section 15 of the existing
law.
Subsection (c) authorizes for appropriation $20,000,000. This is
the amount originally authorized for this purpose in Public Law
91-224 and does not constitute an additional authorization over and
above that amount.
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290 LEGAL COMPILATION—SUPPLEMENT I
Subsection (d) requires the Secretary of the Army, acting through
the Chief of Engineers, to design and develop a demonstration waste-
water management program for the rehabilitation and environmental
repair of Lake Erie. This would be in addition to, and not in lieu of,
ongoing studies of Lake Erie. Prior to the initiation of detailed engi-
neering and design, the program along with the specific recommenda-
tions of the Chief of Engineers and recommendations for its financing
shall be submitted to Congress for approval.
There is a further requirement that the program be developed in
cooperation with EPA, other interested Federal agencies, and the
States and their political subdivisions.
This program would result in a plan which will set forth alternative
systems for regional waste treatment management and which is de-
signed to provide local and State governments with a range of choices
as to the type of system to be used for the treatment of water. These
alternative systems include both advanced waste treatment technology
and land disposal systems including aerated treatment-spray irriga-
tion technology.
Subsection (e) authorizes appropriations in the amount of $5,000,-
000 for the Secretary of the Army to carry out the Lake Erie program.
The Committee notes that the language utilized in subsection (d) is
not the usual authorization for Corps of Engineers studies found in
the River and Harbor Acts or the Flood Control Acts. This is an in-
ternational change. It is the Committee's express intent that this study
be expedited and not be delayed by red tape. For example, the Com-
mittee has no objection to the Chief of Engineers utilizing the Board
of Engineers for Rivers and Harbors for advisory services, but does
not want this report held up at the Board for 3 to 6 months waiting
for formal action.
Section 109—Training Grants and Contracts
This section continues, with conforming language changes, the pro-
visions of section 16 of the existing law. The Committee would stress
the n~ed for active prosecution of this program in light of a recent study
by the General Accounting Office which concluded that the prevalence
of poorly trained treatment works personnel is one of the major weak-
nesses in the national pollution control program.
Section 110—Application for Training Grant or Contract; Allocation
of Grants or Contracts
This section continues, with conforming language changes, the pro-
visions of section 17 of the existing law.
Section 111—Award of Scholarships
This section continues, with conforming language changes, the pro-
visions of section 18 of the existing law.
Section 113-—Definitions and Authorizations
This section continues, with conforming language changes, the pro-
visions of section 19 of the existing law.
Subsection (c) of section 112 authorizes appropriations of $25,000,-
000 for each of fiscal years 1973 and 1974 to carry out sections 109
through 112 of this Act.
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WATER—STATUTES AND LEGISLATIVE HISTORY 291
Section 113—Alaska Village Demonstration Projects
This section continues, with conforming language changes, the pro-
visions of section 20 of the existing law.
Subsection (d) of section 133 authorizes appropriations of $2,000,000
to carry out this section. The amount originally authorized for this
purpose in Public Law 91-224 was $1,000,000, and the effect of sub-
section (d) is to raise that amount by an additional $1,000,000.
Section 114—Economic Growtli Centers
Section 114 authorizes the Administrator to make a supplemental
grant to economic growth centers (designated under section 143 of
title 23, United States Code) in any case where the center receives a
grant for construction of waste treatment works under this bill. The
Administrator will determine in his discretion the percentage of the
supplemental grant. There is authorized to be appropriated $5,000,-
000 to carry out the section.
TITLE II GRANTS FOR CONSTRUCTION OF TREATMENT WORKS
Section Wl—Purpose
The purpose of this title is to establish the requirements and to pro-
vide the financial assistance needed for the expeditious development
and implementation of the Nation's waste treatment plans and
practices.
The Committee believes that applicants must in the future be re-
quired to examine a much broader range of alternatives for the treat-
ment of pollutants than they have heretofore typically done. It ex-
pects the Administrator to provide leadership and to stimulate research
to assure the development and application of new treatment tech-
niques. In arriving at the best practicable waste treatment technology-
consideration must be given to its full environmental impact on water,
land, and air and not simply to the impact on water quality. There may
be no net gain to the Xation if we adopt a technology to improve wa-
ter quality without recognizing its possible adverse effect on our land
and air resources.
The term "best practicable waste treatment technology" covers a
range of possible technologies. There are essentially three categories
of alternatives available in selection of wastewater treatment and dis-
posal techniques. These are (1) treatment and discharge to receiving
waters, (2) treatment and reuse, and (3) spray-irrigation or other
land disposal methods. No single treatment, or disposal technique can
be considered to be a panacea for all situations and selection of the best
alternative can only be made after careful study.
Particular attention should be given to treatment and disposal tech-
niques which recycle organic matter and nutrients within the ecologi-
cal cycle.
In defining "best practicable waste treatment technology" for a
given case, consideration must be given to new or improved treatment
techniques which have been developed and are now considered to be
ready for full-scale application. These include land disposal, use of
pure oxygen in the activated sludge process, physical-chemical treat-
ment as a replacement for biological treatment, phosphorus and nitro-
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292 LEGAL COMPILATION—SUPPLEMENT I
gen removal, in collection line treatment, and activated carbon absorp-
tion for removal of organics. Planners must also give consideration.
however, to future use of new techniques that are now being developed
and plan facilities to adapt to new techniques.
Testimony before the House Public Works Committee disclosed that
some existing Federal funding programs specifically designed to com-
bat domestic water pollution, are inadeqlate. These inadequacies are
evidenced by the construction of oversized sewage treatment plants.
the existence of sewage bypasses to public waterways after new treat-
ment facilities have been constructed, and in general the inability to
solve the clear water infiltration problems that are present in sewage
collection systems throughout the country. If infiltration is not elimi-
nated within these systems, vast sums of Federal, State and local
monies could be wasted in trying to cope with the excess clear water
at the sewage treatment facility.
On December 31,1971, the Environmental Protection Agency issued
broad outlines to deal with the infiltration problem to be followed in re-
viewing grant applications. The Committee has incorporated in sub-
section (d) not only a requirement that after July 1, 1973 the appli-
cant, for a grant for treatment works must satisfy the Administrator
that no excessive infiltration exists but also has authorized grants for
sewer evaluation studies to applicants to be financed from funds al-
lotted to each State under Section 205 of this Title. There is presently
no authority for EPA or any other Federal Agency to finance such
studies. The terms and conditions for such grants, which could be for
the full cost of a study will be prescribed by the Administrator in his
regulations. Such a study may constitute one of the elements of con-
struction as defined in this title.
The Administrator will be expected to take appropriate action to
assure that applications for waste treatment works handled prior to
July 1, 1973 give special attention to the infiltration problem to avoid
a waste of public funds. Funds for sewer evaluation studies should be
made available promptly.
Keeping in mind that the portion of the bill dealing with infiltra-
tion has been proposed primarily to solve the clear water infiltration
problem and to eliminate the indiscriminate and wasteful use of mon-
ies in funding waste treatment works, care must be taken to insure
against unnecessary studies and the over study of the infiltration prob-
lem. Therefore, fiscal prudence dictates that guidelines for the new
funding program be established to insure that the desired results will
be achieved.
It is explicitly stated in H.R. 11896 that funds will be made avail-
able for the evaluation of existing sewage collection systems. This tech-
nology can cover a very broad spectrum. Misinterpretation of "collec-
tion system evaluation" could result in the needless expenditure of
funds without corresponding benefits. It is, therefore, imperative that
the clear water infiltration problems to be solved through the method
of system evaluation and rehabilitation be specifically defined and
stated. A method of system evaluation is outlined in an EPA docu-
ment entitled "Prevention and Correction of Excessive Infiltration
and Inflow into Sewer Systems."
Many existing sewage collection systems need to be rehabilitated,
particularly in cities with systems that were installed many years ago.
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WATER—STATUTES AND LEGISLATIVE HISTORY 293
The legislation requires infiltration problems in these systems be cor-
rected so that facilities will be designed only to handle sewage which
needs treatment.
Section 202—Federal Share
Subsection (a) of this section of the bill increases the Federal share
of waste treatment projects from the existing maximum of 55 percent
to a maximum of 75 percent. Localities receive this amount only if
the State agrees to provide an additional 15 percent of the full costs
for each project assisted in that State during the applicable fiscal
year. The increased percentage of Federal participation is effective
for any grant made from funds authorized after June 30, 1971, and
any applicant, except for reimbursements, may request the increased
percentage. The Committee believes that State grant participation
in the water pollution control program is essential and should be
encouraged since substantial financial participation helps assure their
concern for the effectiveness of the overall program. If a State does
not participate in cost sharing the Federal share would be 60%,
which compares with 30% under existing law.
It is the intent of the Committee that the term "to pay" means the
provision by the State, by any means (including loans), of funds, or
the equivalent, sufficient to serve as the State matching share for all
projects determined to be eligible by the Administrator under the pro-
visions of this Act.
Some State laAvs now require the States and municipalities together
to pay more than the 25 per centum stipulated in this title. This will
necessitate a change in their laws. However, the mandatory payment
of 75% by the Federal Government to the States is effective imme-
diately. When their laws are amended the Committee directs that the
difference between the 25% and the amount required under their pres-
ent laws be returned to the States and municipalities. The Committee
views this as essentially an administrative matter which can be han-
dled by the Administrator in a manner that will not delay the program
pending the enactment of State amendatory legislation.
Subsection (b) of this section provides that a grant for a project
approved after January 1, 1971, and before July 1, 1971, where the
actual erection, building or construction of the treatment works did not
begin before July 1, 1971, shall, on request, be increased to the per-
centages contained in subsection (a),'i.e. 60-75 per cent. This increased
amount shall be paid from allocations to the State without regard to
the fiscal year for which the funds were authorized. This increased
amount, however, shall be paid only for a project if (1) a sewage treat-
ment collection system part of the total waste treatment system for
which the grant was approved is under construction or is to be con-
structed for use with the treatment works and the cost of such sewage
collection system is more than the cost of the treatment works and (2)
the State water pollution control agency certifies that the available
ground water is insufficient to meet future requirements for water sup-
ply unless after treatment, effluent from the treatment works are in-
jected to refresh the ground water supply.
An example of a situation where this problem has arisen is the
Southwest Sewer District in Suffolk County, Long Island, New York.
Testimony by local representatives before the Committee revealed that
[p. 89]
523-310 O - 73 - 20
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294 LEGAL COMPILATION—SUPPLEMENT I
substantial spread-out municipal development and salt water percola-
tion problems caused by an unusually low water table have made the
installation of collector sewers more expensive ($250 million est.) than
the rest of the treatment system for the Southwest Sewer District
combined ($248 million est.).
In addition, Long Island as a whole faces a severe drinking water
shortage which may force importation of water by the year 2020. Loss
of valuable fresh water through use of a sewer outfall (the usual and
least expensive method for discharging the effluents) may accelerate
this problem and lead to even greater salt water intrusion which fur-
ther contaminates the remaining fresh water. The result is that the
treatment would have to be upgraded to the point where the effluent
could be recharged into the drinking water. This would involve sub-
stantial modification of the treatment works and an amount at least as
much as the original outlay of almost $500 million.
This subsection is designed to provide increased assistance to this
project and similar projects faced with the same problems.
Section 203—Plans, Specifications, Estimates and Payments
One of the major features of this bill is the authority contained in
this section which authorizes the Administrator to commit the Federal
Government to the payment of its proportional contribution to the con-
struction of treatment works at the time he approves the plans, speci-
fications and estimates submitted to him by each applicant. This is in
contrast to existing law wherein such a contractual obligation cannot
occur.
The Committee believes that contract authority is essential if the
Federal Government is to carry out its responsibilities in meeting the
needs of the Nation for waste treatment works in a timely manner.
This authority will permit the States and municipalities to plan their
construction programs with assurance that once their plans, specifi-
cations, and estimates are approved, construction can proceed in an
orderly fashion.
An appropriation of funds will be required annually to the Admin-
istrator to make progress payments to the recipients of grants for the
Federal share of the costs of construction as they are earned by con-
tractors on projects under construction.
In addition, the definition of construction contained in section 212
permits each element included in the construction of a treatment work
to be approved as a proposed project, e.g. preliminary planning, engi-
neering, architectural investigations, etc. This definition of a project
together with the authority for the Administrator to make payments
as construction progresses should assist the States and municipalities
in expediting the planning and initiation of waste treatment works
and also relieve the financial pressure as to the time when the funds
for their share of project costs must be made available.
Section 204—Grant Conditions
This section continues, with appropriate modifications, the require-
ment that projects be included in applicable areawide plans under sec-
tion 208, conform to any applicable State plan under section 303 (e)
that the applicant agree to pay the remaining non-Federal costs, and
provide assurance of proper operation and maintenance. An important
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WATER—STATUTES AND LEGISLATIVE HISTORY 295
clarification in the existing law is the specific requirement that the
applicant employ trained operating and management personnel. Fail-
ure to do so in the past has been identified by GAO as one of the major
weaknesses in the national water pollution control program. Also a
provision has been included that no written specification for bids in
connection with treatment works shall include proprietary, exclusion-
ary, or discriminatory requirements, other than those based upon per-
formance, except under limited and specifically defined circumstances.
The addition of specific language in the bill concerning provision
of reserve capacity in waste treatment works is intended to empha-
size that this planning factor must be given through consideration by
both the applicant and the Administrator. The Administrator as well
as the States and localities are given the authority and responsibility
to weigh the comparable costs of providing reserve capacity either
immediately or at some future point in time.
A major new condition for receiving a grant relates to the establish-
ment of user charges. This section specifically provides that the Ad-
ministrator shall not approve any grant for publicly owned treatment
works, after June 30, 1973 unless the applicant has adopted or will
adopt a system of user charges to assure that each recipient of waste
treatment services within his jurisdiction, as determined by Admin-
istrator, will pay its proportionate share of operation, maintenance
(including replacement) and expansion costs. The applicant's juris-
diction means his entire service area.
The Committee believes it is essential to the successful operation by
public agencies that a system of fair and equitable user charges be es-
tablished. The Committee recognizes that differing circumstances and
conditions in local areas may call for especially designed systems and
has therefore proposed that the Administrator promulgate general
criteria and that such general criteria allow for variations to meet local
conditions. This section contains standards the Committee believes
should be taken into account by the Administrator; foremost among
these is the underlying objective of achieving a local system that is self-
sufficient.
In connection with industrial users of publicly owned systems, the
Committee desired to establish within the user charge system an ar-
rangement whereby industrial users would pay charges sufficient t^
bear their fair portion of all costs including the share of Federal
contributions for capital construction attributable to that part of the
cost of constructed facilities attributable to use by industrial sources. It
is the Committee's view that it is inappropriate in a large Federal grant
program providing a high percentage of construction funds to subsi-
dize industrial users from funds provided by the taxpayers at large.
Accordingly, the bill imposes an obligation on the part of publicly
owned systems to incorporate into their user charge schedule a com-
ponent to recover, without interest, that proportion of the total Fed-
eral grant to the community for construction purposes attributable to
industrial users The committee recognizes that there will be some
administrative difficulties involved in establishing classes of industrial
users and has left to the local system the obligation to set up an effec-
tive and equitable system, subject to the approval of the Administrator,
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296 LEGAL COMPILATION—SUPPLEMENT I
inasmuch as the establishment of such a system is a precondition to
Federal grants.
Since one of the objectives of the legislation is the development of
self-sufficiency among local systems, the Committee has recommended
that the revenues obtained by user charges covering the Federal con-
tribution attributable to the use of the local system by industrial users
remain with the local system. The Committee believes, however, that
these funds should be used by the local system only for those purposes
related directly or indirectly, to the maintenance, operation and de-
velopment of the system. The Committee strongly opposes rebates
to industrial users or any other form of a special treatment which
would thwart the objective of the Committee stated above to prohibit
Federal subsidies to industrial users.
Among the purposes for which the Committee believes the revenues
so received might be used are the following: (1) construction, opera-
tion, maintenance, repair and replacement of sewage systems and for
the repayment of principal and interest for indebtedness incurred
therefore; (2) support for monitoring the quantity and quality of
effluents to the agency's system for industrial, commercial, and resi-
dential sources; (3) monitoring of receiving water to ensure main-
tenance of adopted water quality standards; (4) water pollution con-
trol and abatement planning, particularly with respect to developing
the interrelationships between such planning and water resources
management, air resources management, solid waste management, and
land use planning; (5) establish, operate, and maintain, where feas-
ible, central facilities for the storage and analysis of system wide oper-
ating data to promote the most efficient use and operation of the
agency's interceptors, regulating stations, pump stations, and treat-
ment facilities; (6) enhancement of agency-owned property to pro-
vide community multi-use facilities over and above the basic function
of controlling and abating water pollution; and (7) agency personnel
training programs.
The following are examples of items which the Committee believes
should not be financed by such revenues: (1) facilities for the pre-
treatment and monitoring of industrial waste in order to meet the
agency's reserve system requirements; (2) reductions in user charges
for specific categories of users, especially industrial users; and (3) pay-
ments of agency bonds or other long-term indebtedness outstanding for
construction financed under the law as it heretofore has existed.
Finally, this section provides that approval of a grant to an inter-
state compact agency would satisfy any other requirement for con-
gressional authorization.
Section £05—Allotment
There are two major changes in the existing law which result from
the provisions contained in this section: (1) the formula for the allot-
ment of funds among the States and (2) the handling of reallotment
of funds not obligated in a given fiscal year.
This section replaces the formula contained in the existing law which
allots grant funds among the States largely on the basis of population,
with a formula which uses the actual waste treatment needs of each
State for this purpose. Likewise, funds not obligated by a given State
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WATER—STATUTES AND LEGISLATIVE HISTORY 297
would be reallocated on the basis of need. This needs formula is a
sound basis for allotting funds since our experience to date clearly
demonstrates that there is no necessary correlation between the finan-
cial assistance needed for waste treatment works in a given State and
its population.
The Committee is fully aware that at the present time there is no
satisfactory estimate of the total funds required by the States for the
construction of publicly owned treatment works. Hearings before the
Committee revealed serious deficiencies in the $12 billion estimate for
the 3 fiscal years 1972-1974 in the report printed as Senate Document
No. 92-23 entitled "The Cost of Clean Water." However, this report
does provide some measure of the relative needs of the various States
and in the absence of any better measure has been incorporated in the
bill for the determination of the State allotmeiits for the fiscal years
1973 and 1974.
The distribution of funds for the fiscal years 1975 and 1976 are to be
based on the report required by section 516 and the first report will be
submitted to Congress for its approval no later than February 10,
1973.
This report requires the Administrator and the States including the
State water pollution control agencies and other water pollution con-
trol planning agencies to furnish detailed estimates, biennially revised
of the cost of construction of all needed publicly owned treatment
works in each of the States. Because of the importance of this report in
assuring the proper allotment of grant funds to the areas of greatest
need, the Committee expects the Administrator and the State to take
whatever steps are necessary to improve the quality of future needs
estimates. This report should also include information on the require-
ments for sewer collection systems since grants for this purpose are
now authorized by this title.
In the case of the reallotment of funds not obligated by a State the
Committee has incorporated into the law some of the features of the
allotment and reallotment procedures successfully used in the Federal
Aid Highway program. Beginning with the fiscal year 1974 all sums
authorized to be appropriated shall be allotted among the States not
later than the January immediately preceding the beginning of the
fiscal year for which they are authorized. Sums allotted to a State
shall be available for obligation on and after the date of the allotment
and shall continue available for obligation in such State for a period
of 1 year after the year for which they are authorized. This will
provide a period of %y2 years for a State to obligate its allotment. Any
funds not so obligated by a State are to be reallotted by the Adminis-
trator generally on the basis of the ratio used in making the last
allotment.
The use of the word "generally" is intended to provide the Adminis-
trator with some discretion where it is obvious that certain States will
be unable to use their allotment. Also with a periodic reallotment of
unused allotments, the Committee expects each of the authorizations
provided in section 207 to be ultimately used and has accordingly
provided indefinite appropriation authority to permit the payment of
the obligations regardless of the year in which this may occur. The
Committee has also included language to make it clear that reallot-
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298 LEGAL COMPILATION—SUPPLEMENT I
ments to a State are to be in addition to any funds otherwise allotted
to the State. For example, reallotments made in 1975 from a 1973
allotment could not be used to reduce its new allotment for 1975.
Section WQ—Reimbursement and advanced construction
This section provides the authority and establishes the conditions
for reimbursing States, municipalities, inter municipal agencies, or
interstate agencies for any publicly owned treatment works constructed
by them for which the full Federal contribution to which they were
entitled was not received.
The Committee intends that the Federal Government provide suffi-
cient and timely reimbursement of funds to States and localities which
committed their own funds to prefinance a portion of the Federal share
of the eligible cost of construction of waste treatment facilities. This
is a matter of equity since by such commitments the national program
to clean up the Nation's waters has been expedited.
Projects initiated between 1956 and 1966 will not be eligible unless
it was constructed with or eligible for Federal financial assistance,
had been approved by the State water pollution control agency and
the Administrator has made a determination that it met the require-
ments of the Federal Water Pollution Control Act as in effect imme-
diately prior to the 1972 amendments or which had received less than
30% of the cost of the project. Payments with respect to any project
which meets the requirements of the subsection may not exceed the
difference between the amount of any Federal assistance already
received for such project under section 8 of the law in effect at that
time, and 30% of the costs of construction. An authorization of $750
million is provided in subsection (c) to make these payments.
Projects initiated after June 30, 1966, but before June 30, 1971,
shall be eligible for retroactive Federal assistance if they had
been approved by the State water pollution agency and the Admin-
istrator finds an application was made prior to initiation of construc-
tion which would have been eligible for Federal contribution had
adequate funds been available. Reimbursement will cover payment of
State or local funds used or committed for such projects prior to
July 1, 1974 in place of the Federal funds and the project shall be
eligible for retroactive Federal assistance in accordance with pro-
visions of section 8 of the Federal Water Pollution Control Act
applicable at the time. The reimbursement provision includes projects
constructed without Federal funds or with a lesser percentage of the
cost of construction than that authorized in section 8 of the then
existing Federal Water Pollution Control Act. Moreover, until
July 1, 1974, a State may change its laws and provide for a larger
State contribution than that provided at the time the Administrator
approved a project thereby entitling it to a higher percentage of
reimbursement.
An appropriation authorization of 2 billion dollars is provided
in subsection (c) for payment of these reimbuisements.
Section 206 (d) provides that pub^c agencies may proceed with
projects during a fiscal year after a State's allotment has been obli-
gated. The Administrator may approve a project for construction
and commit funds under section 203 to the extent that there are
grant authorizations available for subsequent fiscal years. It is the
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WATER—STATUTES AND LEGISLATIVE HISTORY 299
intent of this section that projects approved to proceed without
Federal funds will be fully covered by a State's expected allotment.
Section %07—Authorizations
This section provides the appropriation authorizations to continue
grants for the construction of publicly owned waste treatment works
through June 30,1975 in the amounts shown below :
Fiscal year
1973 $5,000,000,000
1974 6,000,000,000
1975 7,000,000,000
Total 18,000,000,000
The language of section 203 (a) provides that the funds authorized
for the fiscal years 1973, 1974, and 1975 shall be available for con-
tractual obligation upon their allotment to the States.
Appropriation authority for 1972 in the amount of $1,350,000,000
has already been authorized and section 3(b) of this bill, includes
an authorization of $350,000,000 which will be administered on the
basis of the same requirements and conditions as prevailed prior
to the enactment of this bill.
Section 208—Area/wide waste treatment management
This section of the bill places emphasis on what the Committee
considers the most important aspect of a water pollution control
strategy. The planning process authorized in this section when imple-
mented will provide an identification of the problems, a strategy of
solution, implementation of the strategy and evaluation of its effec-
tiveness in accomplishing the desired objectives. The planning process
will provide a management concept to coordinate the many separate
requirements of this legislation in an effective attack for restoring our
Nation's waters. It is intended that the plans called for in this sec-
tion be developed by existing regional organizations, wherever pos-
sible, in order to minimize creation of new agencies.
This Committee has had a long experience with past planning ef-
forts and feels strongly that the present EPA planning requirements as
further amplified with certain modifications by this legislation will
assure that measurable progress will be made both with improved
water quality and enhancement of inter-related areas of the environ-
ment. The plans developed are to be utilized by EPA and the States
in managing their water pollution control programs. If these plans
are not utilized effectively we will continue in our fragmented
approach.
The planning process envisioned by the Committee is made up of
several significant steps.
1. The Administrator will issue guidelines which will be published
as regulations for the purpose of designating urban industrial and
other areas confronted with serious water quality control problems.
2. The Governor of each state will designate areas requiring area-
wide planning and appoint a single representative planning agency
for each area and may subsequently designate additional areas. These
designations would be done in consultation with all local governments
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300 LEGAL COMPILATION—SUPPLEMENT I
having jurisdiction in a specific area. In cases where an area covers
more than one State the plans developed by the planning organization
must be concurred in by the Governors concerned unless the authority
is vested exclusively in an interstate agency by the concerned States.
All designated areas require the approval of the Administrator.
3. Once the area wide planning organizations have been designated,
these organizations have 2 years in which to have in operation a
continuing areawide waste treatment management planning process.
4. The content of plans developed by the planning organizations
must include comprehensive information regarding the water quality
control program for the area including the anticipated construction
for 20 years required to meet municipal and industrial waste treat-
ment needs, the establishment of construction priorities, the estab-
lishment of regulatory programs, the designation of agencies required
to manage the program, and other items enumerated in section (b).
5. As a part of the planning process and at the time a plan is sub-
mitted to the Administrator for his approval, the Governor in con-
sultation with the planning agency shall designate and submit for the
Administration's approval one or more waste treatment management
agencies capable of implementing the strategies for pollution control
within the planning areas. This agency (or agencies) will be desig-
nated as the entity which can receive and spend the Federal grants
for the construction of publicly owned waste treatment facilities. All
such agencies must meet the requirements enumerated in subsec-
tion (c).
The areawide plans will require coordination with the comprehen-
sive water pollution control program in Section 102; the water
quality implementation plan in section 303 (e); and the basin plan-
ning in section 209.
The Committee notes that in some States water resource develop-
ment agencies are responsible for allocation of stream flow and are
required to give full consideration to the effects on water quality. To
avoid duplication^ the Committee believes that a State which has an
approved program for the handling of permits under section 402, and
which has a program for water resource allocation, should continue
to exercise the primary responsibility in both of these areas and tlius
provide a balanced management control system.
6. After the first plan for an area has been accepted by EPA, the
Governor will thereafter, as required, annually certify revisions in
conformance with basin plans, and provide an evaluation as to the
effectiveness of the plan to the Administrator.
The Committee is aware that to develop soundly conceived areawide
plans, the planning agencies must be adequately financed. With this
in mind, an authorization of $100 million has been provided for the
fiscal year 1973 and $150 million for fiscal year 1974 for the exclusive
use of these planning agncies. For each of the fiscal years 1973, 1974
and 1975 the Administrator shall make 100% grants to those agencies
for the cost of developing and operating a continuing waste treat-
ment management process. For fiscal years thereafter the grant may
not exceed 75%.
In addition to grants to planning agencies, specific authority is
included for the Administrator to provide such agencies on a non-re-
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WATER—STATUTES AND LEGISLATIVE HISTORY 301
imbursable basis with consulting services and technical assistance.
The Secretary of the Army also is authorized through the Chief of
Engineers and in cooperation with the Administrator to assist plan-
ning agencies in developing and operating a continuing management
process. The Secretary of the Army is provided an authorization of
$50 million for each of the fiscal years 1973 and 1974 for this purpose.
Any grant or technical assistance under this section must be on the
request of the Governor or the designated planning agency.
. Section 209—Basin planning
The time has long passed when this Nation can afford to consider
each problem on an ad hoc basis. We can no longer act as if one en-
vironmental issue is not related to any other; after all, the pretense
that industrial growth is unrelated to environmental quality has
brought us to where we are today. Even an issue so pressing as water
quality cannot be considered or resolved without concurrent consider-
ation of water quantity problems. The Committee recognizes that
comprehensive planning programs have been under way for the past
50 years and that they are now under the aegis of the Water Resources
Council.
The Environmental Protection Agency and the Corps of Engineers,
along with all other Federal agencies, participate in the activities of
the Council and follow the Council's directions with respect to compre-
hensive planning. In its statement of July 27, 1970, "Water and Re-
lated Land Resources Planning," the Council provides for develop-
ment of regional and river basin plans (Level B) in cooperation with
State and local interests—such planning considers both quantity and
quality problems, Federal and non-Federal alteratives in solving those
problems, and is focused on the next 15 to 25 years. A level (B) plan
for a basin indentifies each water resource project and each water
quality program that should be authorized and implemented to attain
the water quantity and water quality objectives established for the
river basin plan. Only through such a rational, comprehensive plan-
ning process can we provide a program to cope, on a sound priority
basis, with our water quality problems.
The Committee in this section is directing the President to prepare
Level B plans which are to be accomplished for all areas of the Na-
tion by 1980 through the Water Resources Council. Priority for devel-
opment of such plans is to be given to areas designated by Governors
as being most critical. The Committee also notes that notwithstanding
the importance of these studies to the sound development of our Na-
tion's water resources, practically no comprehensive river basin plans
have been completed since the establishing of the Water Resources
Council in 1965 due largely to inadequate funding and the unwilling-
ness of anyone to assume the responsibility for the timely initiation
and completion of these studies. To insure their proper funding and
management in the future, the bill provides a $200 million author-
ization to the Council. While the studies would be managed by the
Council in accord with its July 1970 statement, the bulk of the
funds authorized would be transferred to and be utilized by EPA, the
Corps, and others in the actual conduct of the studies.
The bill provides for annual reports to be made on the progress of
these Level B plans. History has shown that insufficient attention has
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302 LEGAL COMPILATION—SUPPLEMENT I
been paid to the completion of comprehensive plans; this must be
avoided. The Committee desires that the first report, due January 1,
1973, contain a listing of all studies to be accomplished, including a
schedule for completion of each of the studies. The Council's statement
indicates that regional and river basin plans should be generally com-
pleted within 3 years.
The Council should provide for appropriate Federal and non-
Federal involvement in the development of plans essential to sound
investment of resources available to meet our water quality problems.
The Committee recognizes that water oualitv investment must be
made as expeditiously as possible and does not wish to hinder such
investment. Therefore, it is anticipated that investments will be made
concurrent with the planning effort in some areas. The goal remains
to have planning precede investment and to have all plans completed
by 1980.
Section. 210—Annual survey
The Committee is concerned over the reported failure of waste
treatment works to be properly maintained and operated with quali-
fied personnel after they are constructed. Such occurrences result in
a waste of public resources both Federal and non-Federal. Appropriate
action should be taken by the Administrator to see that this situation
is corrected. For this reason the Committee has included a provision
in this section to require the Administrator to conduct an annual sur-
vey of the operation and maintenance of publicly owned treatment
works and to include the results of his survey in his annual report to
the Congress.
Section 210—Definitions
This section contains definitions of the following terms as used in
Title III: "Construction", "treatment works", "replacement" and "in-
dustrial user".
"Construction" in this bill is a defined term consisting of a number
of elements any one of which may be considered a project eligible for
a grant from the State allotment under section 205. For example, a
grant could be made for the sewer infiltration studies authorized in
section 201 (d), preliminary planning to determine the feasibility of
treatment works, surveys, and any of the other elements enumerated
in the definition.
The term "treatment works" has been substantially broadened as
compared with the definition in section 23 of the existing Federal
Water Pollution Control Act. For example, combined storm and sani-
tary sewer lines, sewage collection systems and lands that will be an
integral part of a treatment process have been added to the defined
term as well as any devices and systems used in "recycling and recla-
mation" of municipal sewage or industrial waste of a liquid nature.
It is the intention of the Committee that as an alternative to, or
complement to, a central treatment system (with sewer lines and a
treatment plant), a rural community could decide to have a system
with a central septic or collecting tank serving a cluster of homes,
which system would be eligible for Federal assistance.
Under this type of system, the unit of government would own the
collecting facilities and the central tanks and would be responsible
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WATER—STATUTES AND LEGISLATIVE HISTORY 303
for the proper functioning of the system, including design, installa-
tion, maintenance, and replacement. This does not include connections
to the publicly owned collecting facilities by households and others.
The system would be required to meet any state requirements on
sub-surface waste disposal systems, and the community would have to
make a commitment for future maintenance and operation. The unit
of government would have easements from the landowners for the site
and access thereto. Eligible costs would include engineering for proper
location and construction, all improvements, and all equipment neces-
sary for installation and proper maintenance of the system, including
disposal of residual sludge.
Section 211—Sewage collection system
This section provides authority for the Administrator to make
grants for sewage collection systems in an existing community when
necessary to the effective and economic operation of its waste treat-
ment system. Collection systems are now included for the first time
in the term "treatment works" and are eligible to receive grants from
the state allotments under 205 and under the same terms and condi-
tions as any other construction grant made under the Federal Water
Pollution Control Act Amendments of 1972.
The Committee received testimony which clearly indicated that one
of the reasons for delays in initiating construction of waste treatment
facilities was due to the inability of public agencies to arrange for the
financing of collection systems. Until EPA is assured that a satisfac-
tory collection system will be available when the plant is finished, no
grant can be finalized.
The Committee is aware that some Federal agencies now have the
authority to assist communities in financing collection systems. These
include the Farmer's Home Administration which is limited to serv-
ing communities of 5,500 or less; the Economic Development Admin-
istration which operates only in areas designated for special economic
assistance and the Department of Housing and Urban Development
which has limited funds and has therefore accorded a low priority to
rehabilitation of sewer collection systems. Frequently a long delay has
occurred between the approval by EPA of a grant for a sewage treat-
ment plant and the approval by HUD of a collection system grant.
This has resulted in increased construction costs which in turn has
created problems with the communities in arranging their local
financing.
Divided responsibilities for any program should be avoided where-
ever possible. The Committee believes that by giving EPA the full
responsibility for making a decision involving a community requiring
both financed assistance for the construction of a Avaste treatment
plant and a collection system, the national water pollution control
program will be expedited with a resulting saving in public funds
and the time of public officials who have to deal with two agencies.
Sewer lines financed under this authority are to be limited to the
main lines constructed by tihe public agency and does not include the
connection to such lines by households and others. The authority to
assist in the financing of collection systems also covers their major
rehabilitation which can often be accomplished at a fraction of the
cost of building a treatment plant or by adding to its capacity. Hear-
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304 LEGAL COMPILATION—SUPPLEMENT I
ings before the Committee discloses situations where sewage treat-
ment plants had been built (or proposed) which were larger than re-
quired due to the volume of clear water infiltrating into the collection
system. The rehabilitation of the collection system would have avoided
this situation. The authority contained in Section 201 to finance sew-
er evaluation studies and the requirement that the applicant as a
condition of receiving a grant, satisfy the Administrator that there
is not excessive infiltration should prevent this situation from occur-
ring in the future.
The Committee does not intend grants to be made for ordinary
repairs and maintenance of collection systems. This should continue
to be the responsibility of the community. The Administrator by regu-
lation should specify the items and the circumstances under which
grants will be made for major rehabilitation and to take whatever
steps appear appropriate to advise the communities of their responsi-
bility for adequately maintaining sewer collection systems.
The authority provided in this section covers only communities in
existence on the date of the enactment of this bill. It is the Committee's
intent that sewage collection systems for new communities, new sub-
divisions or newly developed urban areas, be addressed in the planning
of such areas and be included as a part of the development costs of the
new construction in these areas. They are not to be covered under the
construction grant program.
TITLE III STANDARDS AND ENFORCEMENT
Section 301—Effluent limitations
Subsection (a) of section 301 establishes that any discharge of a
pollutant, not in compliance with sections 301, 302, 306, 307, 318, 402,
and 404 is unlawful. Any discharge of a pollutant without a permit
issued by the Administrator under section 318, or by the Administra-
tor or the State under section 402 or by the Secretary of the Army
under section 404 is unlawful. Any discharge of a pollutant not in
compliance with the conditions or limitations of such a permit is also
unlawful. By the provisions of this legislation, such unlawful dis-
charges can be proceeded against by the Administrator under section
309, or by the State under State law if the Administrator has au-
thorized the State to issue permits pursuant to subsection (a) (5) of
section 402(a) (5) or if the Administrator has approved the State
permit program pursuant to subsection (b) of section 402(b).
Subsection (b) of section 301 establishes a technological basis for
the determination of effluent limitations for any discharge of pollu-
tants provided that such limitations, at a minimum, are, when applied
to all point sources, adequate to meet existing or new water quality
standards as provided under section 303. Subsection (b) requires that
all point sources of discharge of pollutants, other than publicly owned
treatment works, achieve not later than January 1, 1976, effluent limi-
tations requiring the use of the best practicable control technology
currently available. Publicly o\vned treatment works in existence on
January 1, 1976, or those approved for construction grants prior to
June 30, 1974, must meet effluent limitations based upon secondary
treatment as defined by the Administrator.
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WATER—STATUTES AND LEGISLATIVE HISTORY 305
It has been argued before the Committee that privately owned point
sources should not be held to a strict standard than publicly owned
treatment works which are required to meet secondary treatment or
the equivalent. This argument was rejected by the Committee. Second-
ary treatment as considered in the context of a publicly owned treat-
ment works is generally concerned with suspended solids and biologi-
cally degradable, oxygen demanding materials (BOD). Such a stand-
ard in the minds of some, if applied to effluents containing materials
other than suspended solids and BOD, would be an empty standard.
Best practicable control technology currently available might mean
"secondary treatment" for some effluents but it is not a synonym for
secondary treatment.
By the term "control technology" the Committee means the treat-
ment facilities at the end of a manufacturing, agricultural, or other
process rather than control technology within the manufacturing
process itself.
By the term "best practicable", the Committee means that all factors
set forth in Section 304(b) (1) (B) be taken into consideration. The
determination of the best practical control technology currently avail-
able is not to be governed by the existing quality of the receiving
waters.
By the term "currently available", the Committee means a control
technology, which, by demonstration projects, pilot plants, and general
use, has demonstrated a reasonable level of engineering and economic
confidence in the viability of the process at the time of commencement
of actual construction of the control facilities.
It is the intention of the Committee that the requirements of section
301(b)(l) (A) and (B) be met by phased compliance between the
date of enactment of this Act and January 1, 1976, so that all point
sources will be in full compliance no later than January 1,1976, except
as any extension of time for compliance may be made in accordance
with section 301 (b) (3).
Subsection (b)(1) (C) of section 301 requires that any more string-
ent limitation than that established under section 301 (b) (1) (A) and
(B), including any necessary to meet water quality standards, treat-
ment standards, or schedules of compliance established pursuant to
any other State or Federal law or regulation or any required to imple-
ment any applicable water quality standards established pursuant to
section 303 of this Act shall be met by January 1,1976. The Committee
intends that the water quality standards established pursuant to sub-
section (c) of section 10 of the existing Federal Water Pollution Con-
trol Act be complied with prior to January 1,1976, in accordance with
the implementation plans that are parts of such standards, or any revi-
sion of these standards made pursuant to section 303 of this Act, and
that there be appropriate phased compliance with revised or new
standards adopted pursuant to section 303 (c) of this Act, not later
than January 1, 1976.
Even though section 301(b)(l) (A) and (B) requires the setting
of effluent limitations consistent with best practicable control tech-
nology currently available, the Committee intends that if the sum of
the discharges from point sources meeting such effluent limitations
would preclude the meeting of water quality standards in existence on
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306 LEGAL COMPILATION—SUPPLEMENT I
the date of enactment of the 1972 Amendments, or those promulgated
pursuant to section 303, new and more stringent effluent limitations
would have to be established consistent with such water quality stand-
ards.
Subsection (b) (3) of section 301 authorizes the Administrator to
extend the January 1,1976, requirements under subsection (b) (1) (A)
and (B) for a point source for up to two years except that no exten-
sion or extensions of such date shall exceed a total of two years. The
Committee expects that such extensions will be given if it is clearly
demonstrated after public hearings that there are either physical or
legal impediments to the completion of the required construction. The
Committee recognizes that certain point sources may be in the process
of being modified pursuant to an implementation plan. Diligent ad-
herence to the requirement of the implementation plan is recognized in
this section as being a good and sufficient reason for granting a rea-
sonable extension provided that such implementation plan has re-
quirements which have been met to date or for which there is good rea-
son for their not being met and they are not inconsistent with the
January 1, 1976, requirement.
If an extension is given by the Administrator, it can include a
waiver for the same period of any applicable water quality standard.
Such a waiver shall be effective only for the point source to which it
applies.
The Committee recognizes that extensive testimony was received
during the oversight and legislative hearings that nonpoint sources
of pollutants could and would, in many cases, preclude the meeting
of water quality standards. The Committee considered this testimony
but it does not consider this to be an acceptable excuse for point sources
not meeting their individual requirements.
Subsection (b)(2)(A) of section 301 provides that all point sources,
other than publicly owned treatment works, shall by January 1, 1981,
achieve effluent limitations which require the elimination of the dis-
charge of pollutants or if that is not reasonable, limitations consistent
with the best available demonstrated technology. This will be a re-
quirement for January 1, 1981, if after the National Academy of
Sciences' report required by section 315, which is to be submitted two
years after the date of enactment of this Act, Congress by future
action implements the January 1, 1981, requirement.
Effluent limitations based upon the best available demonstrated
technology will be applied in lieu of the elimination of discharge of
pollutants if the State or the Administrator, as appropriate, finds
that compliance with the January 1, 1981, standard of no discharge
is not obtainable at a reasonable cost. This determination is to be made
by the State or the Administrator, as appropriate, in accordance with'
the factors to be specified by the Administrator pursuant to subsection
(b) (2) (B) of section 304.
When the term "best available demonstrated technology" is used,
the Commitee intends that this shall apply to the totality of the point
source and the plant processes behind the point source. By this, ic is
meant in contrast to the term "best practicable control technology
currently available", that the total plant is being considered and that
"best available demonstrated technology" does not apply solely to the
control techniques used at the actual discharge of the point source.
[p. 102]
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WATER—STATUTES AND LEGISLATIVE HISTORY 307
This is a basic difference between the best available demonstrated tech-
nology in the January 1, 1981, requirement and the best practicable
control technology currently available in the January 1, 1976,
requirement.
By the term "best available demonstrated technology", the Com-
mittee means those plant processes and control technology which, at
the pilot plant, semi-works, or other level, has demonstrated both tech-
nological performance and economic viability at a level sufficient to
reasonably justify the making of investments in such new facilities.
This term applies to those processes or control techniques which are
the best for a specific point source.
The Committee received extensive testimony on the fact that the
difference in the cost of 100 percent elimination of pollutants as com-
pared to the cost of removal of 97-99 percent of the pollutants in an
effluent can far exceed any reasonable benefit to be achieved. In most
cases, the cost of removal of the last few percentage points increases
expotentially. This is the basic reason for the provision for the sub-
stitution of best available demonstrated technology for the elimina-
tion of the discharge of pollutants if such substitution is consistent
with the enumerated factors, and the cost of complete elimination
of pollutants is unreasonable. The Committee expects that such sub-
stitution would be based upon a strict review of the factors and that
such substitution would be granted by the State or Administrator, as
appropriate, only when the balance of, evidence is definitely weighted
on the side of such substitution.
Subsection (b) (2) (B) of section 301 incorporates the requirement
of section (d) (2) (A) that not later than January 1,1971, all publicly
owned waste treatment -works shall provide for application of the
best practicable waste treatment technology. This requirement is not
affected by the National Academy of Sciences study which is required
by section 315.
Subsection (e) of section 301 makes it unlawful to discharge any
radiological, chemical, biological warfare agent, or a high-level radio-
active waste into the navigable waters. By this the Committee means
that no permits are to be issued by either a State or the Administrator
for the discharge into the navigable waters of such agent or waste. For
purposes of this section, "high-level radioactive wastes" include but
are not limited to the aqueous waste resulting from the operation of
the first cycle solvent extraction system, or equivalent, and the con-
centrated waste from subsequent extraction cycles, or equivalent, in a
facility for reprocessing irradiated reactor fuels, or irradiated fuel
from nuclear power reactors.
Subsection (f) of section 301 provides a statutory minimum use-
ful life for any point source which is constructed or modified to meet
effluent limitations based upon the best available technology at such
time of such construction or modification. In so providing, the Com-
mittee recognizes the fact that industrial managers must be able to
plan for some useful life before they can approve the modification or
construction of any point source. The Committee recognizes that de-
cisions on construction or modification of point sources must be made
on the knowledge that such facilities will have a reasonably predictable
useful life. Thus, subsection (f) provides that there shall be a restric-
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308 LEGAL COMPILATION—SUPPLEMENT I
tion against the imposition of any more stringent effluent limitation
for such modified new point source during a twelve-year period begin-
ning on the date of completion of such construction or modification
or during the period of depreciation or amortization of such facility.
This restriction applies, however, only to a point source the construc-
tion or modification of which is begun after the date of enactment of
this legislation and before the end of one year after the date of sub-
mission of the National Academy of Sciences' report. If the decision
is made to write off the entire cost of such modification or construc-
tion in the minimum five-year period, a more stringent effluent limi-
tation could be imposed, at that time, under this Act. If, however,
the fast writeoff provision is not fully utilized, no more stringent ef-
fluent limitation could be imposed until the end of a 12-year period.
If the write-off schedule is changed during the first four years of
the 5-year write-off period, the facility would still be exempt from
more stringent effluent limitations for the statutory twelve year period.
Section 302—Water Quality Related Effluent Limitations
This section provides authority to supplement any effluent limita-
tions set pursuant to subsection (b) (2) of section 301. Under this
section, in the event that effluent limitations are established under sub-
section (b) (2) of section 301 and such limitations are inadequate to
attain or preserve water quality adequate to protect public water
supplies, agricultural and industrial uses, fish and wildlife, and recrea-
tional activities, the State or the Administrator will be required to
establish a more restrictive effluent limitation to attain such quality.
Before setting such a limitation, the Administrator will be required
to hold a hearing to determine the relationship of the economic, social,
and environmental costs 01 compliance with the limitation to the re-
sults to be obtained. If this relationship were unreasonable, the limi-
tation would be adjusted.
This section would become operative only if the Congress, after
study of the economic, social, and environmental impact of the goals
proposed for 1981, decides to implement those goals. It must also
be noted that the applicability of section 302 is restricted to publicly
owned treatment works until such time as the Congress enacts a law
to impose the January 1, 1981, requirement of subsection (b) (2) of
section 301.
Proposed effluent limitations under section 302 shall in no case
operate to delay the application of any effluent limitation established
under section 301.
/Section 303—Water Quality Standards and Implementation Plans
Section 303 continues the use of water quality standards. Any water
quality standard, including use designation, water quality criteria, and
implementation plan, applicable to interstate waters which was
adopted by any State and submitted to, and approved by, or is await-
ing approval by the Administrator pursuant to the Federal Water
Pollution Control Act as in effect immediately prior to the date of
enactment of the Federal Water Pollution Control Act Amendments
of 1972, shall remain in effect unless the Administrator determines that
such standard is not consistent with the Act, as it existed before the
enactment of the 1972 Amendments.
[p. 104]
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WATER—STATUTES AND LEGISLATIVE HISTORY 309
Any water quality standards applicable to intrastate waters which
were adopted by any State pursuant to its own law prior to the enact-
ment of the 1972 Amendments are to be submitted to the Administrator
within 30 days of enactment of the 1972 Amendments. Any such stand-
ard for intrastate waters which the Administrator determines to be
consistent with the applicable requirements of the Federal Water Pol-
lution Control Act as in effect immediately prior to the date of enact-
ment of the 1972 Amendments shall remain in effect to the same extent
as any other water quality standard established under this Act. If the
Administrator determines that such standard for intrastate waters
submitted by a State is inconsistent with the basis for setting inter-
state standards in the Act as it existed prior to enactment of the 1972
Amendments he shall notify the State and specify changes which, if
not adopted by the State within 90 days after notification, shall be
promulgated by the Administrator.
If a State has not adopted water quality standards applicable to
intrastate waters prior to the enactment of the 1972 Amendments,
such State shall adopt and submit such standards to the Administrator.
If these standards are consistent with the basis for setting interstate
standards in the Act as it existed prior to the enactment of the 1972
Amendments, the Administrator shall approve such standards for
intrastate waters. If they are not, the Administrator shall specify
changes to meet the requirements: If the changes are not adopted by
the State within 90 days after receiving the notification, standards
for intrastate waters are to be promulgated by the Administrator.
If for any reason, water quality standards for either intrastate or
interstate waters are promulgated by the Administrator under subsec-
tion (a), they shall be consistent with the Act as it existed prior to
the enactment of the 1972 Amendments.
Any standard revised or adopted after the enactment of the 1972
Amendments under subsection (c) shall consist of the use designation
and the water quality criteria and will not include implementation
plans as required in the Act as it existed prior to enactment of the
1972 Amendments. These standards will be subject to the Admini-
strator's approval and if they are not approved, the Administrator
may promulgate revised or new standards. The Committee expects the
Administrator to work closely with the State to obtain approved
standards before he promulgates standards for any waters.
Water quality standards will be utilized for the purpose of setting
effluent limitations in those cases where effluent limitations for point
sources would not be consistent with such standards. Even though all
point sources must by January 1,1976, as a minimum, meet the require-
ments of subsection (b) (1) (A) and subsection (b) (1) (B) of section
301 all point sources could be required to meet a more stringent effluent
limitation consistent with water quality standards of the receiving
waters if the effluent limitations set pursuant to subsection (b) (1) (A)
and subsection (b) (1) (B) of section 301 are inadequate to meet those
water quality standards. In this case a more stringent effluent limitation
will be imposed.
Any required more stringent effluent limitations will be set on the
basis of that reduction in the quantity and quality of the discharge of
pollutants which would be required to make the total discharge load
: [p. 105]
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310 LEGAL COMPILATION—SUPPLEMENT I
in the receiving waters from municipal and industrial sources con-
sistent with water quality standards. This should not be interpreted
to mean that such more stringent industrial and municipal effluent
limitations will, in themselves, bring about a meeting of water quality
standards for receiving waters. The Committee clearly recognizes that
non-point sources of pollution are a major contributor to water quality
problems.
The Committee heard extensive testimony during the oversight and
legislative hearings to the effect that it is extremely difficult to appor-
tion the discharge load from all point sources along a waterway or
section of a waterway. However, testimony was also heard from the
more experienced States that they already have this capability. The
Committee feels that with appropriate support from the Administra-
tor, the required analysis can be completed by the State in a timely
fashion.
Subsection (d) (1) of section 303 requires each State to identify
for the Administrator's approval those waters within its boundaries
for which the effluent limitations required for non-publicly owned
point sources and for publicly owned treatment works by January 1,
1976, are not stringent enough to implement any water standard ap-
plicable to such waters. Each State would then establish a priority
ranking for such waters which takes into account the severity of the
pollution and the iises to be made of such waters. For example, a water-
way, which is the sole source of drinking water for a municipality but
which has a lower level of pollution could have a higher priority than
a more polluted waterway within the same State which is not used as
a source of drinking water.
The State shall establish from any waters so identified, in their
order of priority, the total maximum daily load, with seasonal varia-
tions and margins of safety, for those pollutants (including all types
of heat) for which the water quality standards cannot be met and
which the Administrator has identified under subsection (a) (2) of
section 304 as suitable for such calculation. These daily load limits
are to be submitted to the Administrator for his approval. If they are
approved, they are to be incorporated into the applicable State plan
under subsection (e) of section 303.
A maximum daily load shall also be developed by a State for all
waters within its boundaries which are not identified as requiring more
stringent effluent limitations to meet water quality standards. The
committee recognizes that this is a time-consuming and difficult task.
However, if effluent limitations which meet best applicable control
technology currently available are to provide a water quality equal
to or exceeding water quality standards such maximum daily load
limits must be available for correlation.
Section 303 (e) requires each State to have a continuing planning
process which will result in plans 'for all navigable waters within such
State which plans include, but are not limited to, effluent limitations
and schedules of compliance at least as stringent as any required to
meet any applicable water quality standard, the best practicable con-
trol technology currently available for point sources other than pub-
licly-owned treatment works pursuant to section 301 (b) (1) (A), efflu-
ent limitations based upon secondary treatment as required by section
301 (b) (1) (B), the January 1, 1981, requirements in section 201 (d)
[p. 106]
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WATER—STATUTES AND LEGISLATIVE HISTORY 311
for publicly-owned treatment works, for the new source performance
standards of section 306, and the toxic and pre-treatment standards of
section 307. These plans shall also be consistent with any applicable,
area-wide, waste management plans under section 208, applicable basin
plans under section 209, and the total maximum daily load for pol-
lutants in accordance with section 303 (d).
Section 304—Information and Guidelines
This section states a number of specific requirements for the develop-
ment of criteria or information, guidelines, factors, procedures, and
analyses which are required to implement either the objective of this
Act or the requirements of the different sections.
Within one year after enactment of the 1972 Amendments, the Ad-
ministrator shall publish criteria on water quality. The criteria must
accurately reflect the latest scientific knowledge on the kind and extent
of the identifiable effects of pollutants in any body of water, including
groundwater, on aquatic life, shorelines, beaches, esthetics and recrea-
tion ; the concentration and dispersal through natural processes; and
the effect of pollutants on aquatic life.
Section 304(b) requires the Administrator, after consultation with
appropriate Federal and State agencies and other interested persons,
to publish within one year of the enactment of the 1972 Amendments,
regulations for the establishment of effluent limitations, consistent with
the "best practicable control technology currently available", and the
"best available demonstrated technology". The Administrator shall
also identify control measures and practices available to eliminate the
discharge of pollutants from categories and classes of point sources,
taking into account the cost of achieving such elimination of the dis-
charge of pollutants.
As required in section 304(b) (1) (A), the Administrator, by regu-
lations, is to identify the degree of effluent reduction attainable by the
application of the best practicable control technology currently avail-
able for classes and categories of point sources. By this the Committee
expects that the Administrator will concentrate on, but not be limited
to, those categories of point sources enumerated in section 306 (b)
(1) (A) and any which the Administrator might add to that list.
The Committee expects that the identification will be in objective
terms and will set out actual perfarmance levels for the classes and
categories of point sources rather than prescribing specific control
techniques, processes, or equipment.
In specifying the factors to be taken into account in determining
the control measures and practices to be applicable to any point source
within a category and class, the Administrator is expected to give
specific and detailed consideration to the age of the equipment and
facilities involved, the process employed (including batch or continu-
ous), the engineering aspects of the application of various types of
demonstrated control techniques, the cost and the economic, social, and
environmental impacts of achieving such effluent reduction, foreign
competition, and such other factors as the Administrator deems
appropriate.
As required in section 304(b) (2) (A), the Administrator is to iden-
tify the degree of effluent reduction attainable by the application of
the best available demonstrated control measures and practices. By
[p. 107]
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312 LEGAL COMPILATION—SUPPLEMENT I
this the Committee intends that the degree of reduction be specified
in objective terms and that the incorporation of a specific process shall
not be required. This means that the Administrator shall not prescribe
a specific design or process in order to meet the requirements of best
available demonstrated control technology but instead shall set out
effluent limitations which are consistent with such best available dem-
onstrated technology.
Best available demonstrated technology is the highest degree of
technology and control that has been achieved or has been demonstrated
to be capable of being designed for plant scale operation. Costs for
this level of treatment may be much higher than that for the applica-
tion of best practicable control technology currently available. This
level of control is intended to be the top-of-the line of current technol-
ogy, subject to limitations imposed by economic feasibility and the
economic, social and environmental impact.
In the determination of the factors for best practicable demonstrated
control technology currently available and best applicable demon-
strated technology, the Administrator is expected to actively consult
with appropriate Federal and State agencies. For example, it is ex-
pected that the Department of Commerce will be consulted on poten-
tial economic effects and that the States which might be affected would
be consulted for the totality of impacts. The Committee is most
determined that other Federal and State agencies will participate in
meaningful consultation with the Administrator.
As required in section 304(c), and after the same level of consulta-
tion with other Federal and State agencies required by section 304 (b),
the Administrator shall issue to the States and the appropriate water
pollution control agencies, within one year after enactment of the 1972
Amendments, information on processes, procedures, and operating
methods which result in the elimination or reduction of the discharge
of pollutants from new sources as required under section 306. This
information is not to be interpreted as a requirement under section
306, but is only to be considered as information on available methods
which may meet the requirements of section 306 as applied to specific
new sources.
As required in section 304(d) (1). the Administrator shall publish
information in terms of amounts of constituents and chemical, physi-
cal, and biological characteristics of pollutants, on the degree of
effluent reduction available through the application of secondary
treatment. The Committee intends that the term "secondary treat-
ment" shall be utilized for the purposes of this section in its broadest
context. The Committee does not mean secondary treatment to in-
clude only the treatment of suspended solids and BOB.
Section 304(d) (2) requires the Administrator to publish informa-
tion on alternative waste treatment management techniques and sys-
tems available to implement section 301 of this Act. The Committee
intends that the Administrator shall emphasize land disposal tech-
niques. If the goal of eliminating the discharge of pollutants into our
Nation's waters is to be achieved, land disposal of the waste from
treatment works will be necessary. It is mandatory that information on
such techniques be kept up to date and published if it is available in
order that the planning as required in section 208 and the considera-
[p- 108]
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WATER—STATUTES AND LEGISLATIVE HISTORY 313
tion of alternatives as required in section 201 can be based upon the
latest developments in land disposal.
Section 304(e) addresses the problem of nonpoint sources of pol-
lutants. This section and the information on such nonpoint sources is
among the most important in the 1972 Amendments. If our water
pollution problems are to be truly solved, we are going to have to
vigorously address the problems of nonpoint sources. The Committee,
therefore, expects the Administrator to be most diligent in gathering
and distribution of the guidelines for the identification of nonpoint
sources and the information on processes, procedures, and methods for
control of pollution from such nonpoint sources as agricultural and
silvicultural activities including runoff from crop and forest lands;
new, operating and abandoned mining operations; construction activi-
ties; the disposal of pollutants in wells or other subsurface excava-
tions ; salt water intrusion; and natural and manmade changes in the
normal flow of surface and ground waters.
The Administrator shall also publish guidelines on pretreatment
standards for pollutants that are not susceptible to treatment by pub-
licly owned treatment works, information on lake restoration, guide-
lines for test procedures to analyze pollutants, and guidelines for the
monitoring, reporting, and enforcement requirements to be included
in any State permit program established pursuant to section 402.
The Committee recognizes that many of the activities required by
this Act are the subject, directly or indirectly, of Federal programs
established for other purposes. This bill for the first time directs atten-
tion to these activities in the context of integrated water pollution con-
trol. It should be clear that the Committee does not intend that the
Administrator should develop information on these subjects com-
pletely independently. Rather, to the extent possible, he should utilize
the existing knowledge and existing programs of other Federal agen-
cies and incorporate the fruits of such programs into the information
published under this section.
In order to carry out this intent, the Administrator is instructed to
enter into agreements with the Secretary of Agriculture, the Secretary
of the Army, and the Secretary of the Interior, to fully incorporate
programs conducted in their Departments in carrying out the objec-
tives of the Act. The administrator is authorized to transfer funds pro
vided under this section to those other Secretaries, in order to further
enhance those programs for water pollution control.
Section 305—Water Quality Inventory
The Administrator is required to send to Congress by July 1,1973,
a report that describes the specific quality of all U.S. waters during
1972. The report must identify and inventory all point sources of dis-
charge together with an analysis of each discharge.
Those navigable waters that presently allow recreation in and on the
water and provide protection for the propagation of fish must be iden-
tified in the report. Those waters that will meet such a level of water
quality by 1976 or by 1981 if the January 1,1981 requirements are sub-
sequently implemented or if the January 1,1981, requirements are not,
as well as those waters that will meet that level of quality at some later
date if the January 1, 1981, requirements are subsequently imple-
mented or if they are not must also be identified.
[p. 109]
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314 LEGAL COMPILATION—SUPPLEMENT I
Each State must submit by July 1, 1974, and annually thereafter,
a report that describes the existing water quality on all its navigable
waters. The report must correlate the existing water quality with the
water quality described in the criteria published under section 304 (a),
plus an analysis of the extent to which all navigable waters in the
State provide for the protection of fish and allow recreation in and on
the water.
Each State is further required to submit an estimate of the economic,
social, and environmental costs, and an analysis of the economic, social,
and environmental benefits, of achieving that water quality, and an
estimate of the date on which the proposed goals of the Act might be
met. The report should also describe the nature and extent of non-
point sources of pollution, programs to control such sources, and the
cost of such programs.
The most important aspect of the program required to fulfill this
section is the implicit requirement for close State/Federal cooperation
in data and information-gathering efforts. The Committee emphasizes
the responsibility of the States in providing the necessary information.
However, the Administrator is expected to support the States in these
efforts through full use of other authorities contained in the bill. In
particular, State requirements under this section should be supported
by Federal programs developed under section 104(a) (5) establishing
a water quality surveillance system, and under section 104 (b) (6) which
necessitates a system of collection and dissemination of basic water
quality and other information pertaining to water pollution control.
To prevent any possible duplication of effort, the Federal require-
ment to produce the initial report should be used as impetus toward
developing a mutually useable State/Federal data exchange mechanism
making State and Federal water quality and waste sources inventories
reciprocally available.
The thrust of this section is to require, on a regular basis, a compari-
son of actual water quality with the water quality required to support
a balanced fish and wildlife population and recreational activities. As
a practical matter, this will be accomplished through monitoring activi-
ties throughout the United States. The resulting data will be compared
with the required levels of water quality under water quality stand-
ards, as they will be revised and upgraded pursuant to guidelines under
section 304.
Section 306—National Standards of Performance
This section provides for national standards of performance for any
new source of the discharge of pollutants. Such standards shall be ap-
plicable to any new source regardless of where it is constructed.
In section 306, the Committee recognizes two of the most significant
factors in the attainment of clean water. These factors are (1) the need
to preclude the construction of new sources or the modification of exist-
ing sources which use less than the best available control technology
for the reduction or elimination of the discharge of pollutants, and (2)
the recognition of the significantly lower expense of attaining a given
level of effluent control in a new facility as compared to the future cost
of retrofitting a facility to meet stringent water pollution control
measures.
[p. 110]
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WATER—STATUTES AND LEGISLATIVE HISTORY 315
New sources of the discharge of pollutants include any source for
which the construction or modification (not including the construc-
tion or modification of pollutant abatement facilities for existing
plants) is commenced after the publication of proposed regulations
prescribing a standard of performance under section 306. New sources
of the discharge pollutants, including, as a minimum those in twenty-
seven specified categories of sources must be constructed to meet a
standard of performance that reflects the greatest degree of effluent
reduction that can be achieved by the use of the best available demon-
strated control technology, processes, or operating methods for that
category of sources, and for class, types, and sizes within categories of
new sources. If it is practicable, a new source performance standard
could prohibit any discharge of pollutants.
In the establishment or the periodic revision of new source perform-
ance standards for a class, type, or category of new sources, the Ad-
ministrator shall take into consideration factors relating to the age of
the equipment and facilities within the class, the process employed,
the engineering aspects of the application of various types of demon-
strated control techniques, process changes, the cost and the economic,
social, and environmental impact of achieving such effluent reduction,
foreign competition and such other factors as he deems appropriate.
Standards of performance shall apply to all sources within a cate-
gory, unless, after application by the owner or operator of any source
which as a result of modification is subject to this section, and after
public hearing, the Administrator determines that the economic, so-
cial, and environmental costs bear no reasonable relationship to the
economic, social, and environmental benefit to be obtained. It is empha-
sized that this individual treatment can apply only in the case of new
sources resulting from modifications to existing plants.
The term "best available demonstrated control technology, processes,
operating methods" refers both to control technology applicable to
the end of the pipe and to control technology and procedures and
operating methods inside the production plant.
It must be recognized that if the process which is intended to be
used would not have a discharge of pollutants, the Administrator
would not be able to preclude the construction of such a plant.
It will be sufficient, for the purposes of setting the level of control
under available technology, that there be one operating facility which
demonstrates that the level can be achieved or that there is sufficient
information and data from a relevant pilot plant or semi-works plant
to provide the needed economic and technical justification for such a
new source.
New sources of the discharge of pollutants include any source for
which construction or modification (not including the construction of
pollution abatement facilities) is commenced after the publication of
proposed regulations prescribing a standard of performance under
section 306.
It must be noted that the Committee intends that when a given plant
is incorporating a modification of a production process or facility
which will change the characteristics of the effluent discharge then the
best available treatment will be required. The Committee, however,
recognizes, as should the Administrator or State authorities, that
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316 LEGAL COMPILATION—SUPPLEMENT I
batch manufacturing processes are set up for a mill run and then
disassembled or extensively modified for another mill run of another
product. To treat each breakdown and setup as a new source would be
unreasonable. Thus the Committee expects that a reasonable and not a
strict interpretation of the term modification will be applied with
respect to batch processing equipment.
The Administrator may delegate his authority to individual States
if they develop procedures for setting and enforcing standards of per-
formance for new sources.
It shall be unlawful to operate any new source in violation of any
standard of performance applicable to such source. Violations may
be enforced by the Administrator pursuant to section 309 or by the
Administrator or the State via the enforcement of any applicable
permit.
Section 307—Toxic and Pretreatment Effluent Standards
This section provides for the setting of effluent standards for toxic
pollutants or combinations of pollutants. There are also provisions
for the setting of pretreatment standards for pollutants which will
be discharged into publicly owned treatment works.
EPA shall publish within 90 days of enactment of the 1972 Amend-
ments a list of pollutants or combinations of pollutants that are de-
termined to be a toxic pollutant under the definition in paragraph
• (14) of section 502. Six months later, EPA shall publish a proposed
effluent standard for each listed toxic pollutant. This could include
a prohibition of the discharge of a toxic pollutant or combination of
pollutants.
No later than six months after publication of the proposed standard,
and after a hearing on the proposed standard which will be held within
thirty days of the publication of the proposed standard, EPA shall
promulgate that proposed standard unless, based upon a preponder-
ance of the evidence of the hearings, he finds that a variation from the
standard is justified. Any standard must provide an ample margin
of safety.
The Committee intends that any standard under this section shall
recognize that the toxicity of some "pollutant" will depend upon the
species or valence of the pollutant present in any discharge. In these
cases, it is expected that standards should be set in terms of the specific
species or valence. Care should be taken, however, to be reasonably
assured that physical, chemical or biological processes in the receiving
waters will not cause changes in the species or valence.
The Administrator is authorized to set standards which include a
total prohibition of toxic pollutants. The Committee expects that any
such prohibition will reflect naturally occurring background quan-
tities of the pollutant in question. In any event, a proper margin of
safety must be maintained.
The Administrator is directed under this section to establish
a list of substances which are recognized to be toxic when released into
the environment. However, the standards which are to be established
for that list may be varied pursuant to Section 307(a) (5) according
to the category or categories of source to which the effluent standard
shall apply. Less stringent standards for an industry will not be estab-
lished simply because it is more expensive to treat wastes to eliminate
[p. 112]
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WATER—STATUTES AND LEGISLATIVE HISTORY 317
or reduce toxic discharges in one industry than in another. The Com-
mittee considers that the discharge of toxic pollutants are much too
dangerous to be permitted on merely economic grounds.
Subsection (b) requires EPA to set national pretreatment standards
for introduction of pollutants into publicly owned treatment
works. These standards must cover pollutants that are not susceptible
to treatment at the treatment works or which would interfere with
operation of a municipal treatment plant. The pretreatment standards
may be set for pollutants introduced into publicly owned treatment
works from a specified category or specific categories of sources. Thase
standards will be utilized to prevent the introduction of industrial and
commercial pollutants into municipal collection systems and waste-
water treatment plants if introduction would impair the effectiveness
of the process utilized in the treatment works or if the pollutants
would pass through untreated or inadequately treated into the Nation's
waters. It should be understood that the pretreatment standards estab-
lished under this section would be national in scope and addressed to
the most significant pretreatment problems. The Committee expects
that the standards would vary with the broad type of treatment proc-
esses used, but the Committee does not intend that each individual
treatment works would have its pretreatment standards set up by the
Administrator.
These standards will not preclude municipalities and States from
establishing pretreatment standards not in conflict with any Federal
pretreatment standard to control types, flows, concentration, and vari-
ability of industrial and commercial discharges into municipal treat-
ment works. It is expected that each manager of a treatment works
would provide for such standards.
It should be understood that this section authorizes the Administra-
tor to prohibit the discharge of certain industrial and commercial
wastes which are unavoidably detrimental to municipal treatment
works and to require treatability studies on those pollutants for which
there is inadequate existing information available to assess treatability
in municipal systems. It is not intended that private pre-treatment
facilities be required as a substitute for adequate municipal waste
treatment works. The administrator would be expected to prohibit
the discharge of any industrial pollutants which adversely affect
the functions of treatment works. Conversely there may be indus-
trial wastes which stimulate the performance of conventional treat-
ment works, or which are consistent with alternative control strategies.
The latter should be identified. For example, the Committee's hear-
ing indicated that in some cities, the discharge of residue for the
production of beer has greatly assisted in the production of com-
mercial fertilizers.
Section 308—Inspections, Monitoring and Entry
The Committee has found that one of the critical deficiencies in
existing law is the lack of an effective system for obtaining
information on pollutants discharged to surface or ground
waters. The Committee recognizes that the Environmental Protection
Agency has had difficulty in obtaining reliable cost and waste loading
information to set effluent limits and to enforce effective pollution con-
trol. This lack of data has in many cases greatly impeded effective en-
fp. 11,3]
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318 LEGAL COMPILATION—SUPPLEMENT I
forcement of implementation schedules established pursuant to an
enforcement conference or as part of water quality standards.
To correct this deficiency, the Committee has created authority for
the Administrator to require that each point source be monitored and
that reports as the Administrator may reasonably require on informa-
tion obtained by the monitoring to be supplied to the Administrator
and Federal agencies; to enter and inspect any premise in which an
effluent source is located; to inspect any records concerning any point
source discharges and to make all such information available to the
public, except for information entitled to protection under 18 U.S.C.
1905 which protects trade secrets.
By the term "any premises in which an effluent source is located" the
Committee means the facility and any relevant part of the process
which produces the effluent.
This section requires the owner or operator of any point source
to monitor his own discharges accurately and to provide infor-
mation to show whether or not he is in compliance with effluent limita-
tions and other requirements under this Act;
An indirect result of this requirement to provide valid data will be
the expansion of EPA's and the States' data base for monitoring and
planning. However, such monitoring is basically for control of the
discharge of pollutants and not the gathering of data. The rights of
the Administrator to inspect is limited to control of discharge of pol-
lutants and not data gathering per se.
The Committee expects that authority granted to the Administrator
under this section will be utilised to monitor pollutant discharges into
publicly owned treatment facilities to ascertain compliance with pre-
treatment standards promulgated under section 307(b). Appropriate
equipment will be required to monitor pollutants discharged into
publicly owned treatment works.
The individual States participating in the permit program author-
ized by section 402 are required by section 402 to have the authority
to inspect, monitor, enter, and require to at least the same extent as
required in section 308. Such State actions are, not a delegation of
Federal authority.
Section 309—Federal Enforcement
The Committee has provided fast, effective, and straightforward
enforcement procedures to replace enforcement conferences and
180-day notices in the Water Quality Act of 1965. Section 309 con-
tains provisions for Federal enforcement of violations of an unper-
mitted discharge under section 301 or a violation of anv permit
condition or limitation which implements any effluent limitation under
section 302, any performance standard under section 306, any toxic
effluent standard under 307, any inspection, monitoring or entry
requirement under section 308, and any discharge permit issued in
an approved State permit program under section 402 or a permit
issued by the Administrator under section 402 of this Act.
Whenever on the basis of any information available to him the Ad-
ministrator finds that anyone is in violation of any of these require-
ments, he may take any of the following enforcement actions: (1) he
shall issue an order requiring compliance; (2) he shall notify the
person in alleged violation in such State of such finding. If beyond
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WATER—STATUTES AND LEGISLATIVE HISTORY 319
the 30th day after the Administrator's notification the State has not
commenced appropriate enforcement action, the Administrator shall
issue an order requiring such person to comply with a permit for
a condition or limitation of a permit; or (3) he shall bring a civil
action; or (4) he shall cause to be instituted criminal proceedings.
Any civil action commenced by the Administrator shall be for ap-
propriate relief including a permanent or temporary injunction in any
case where the Administrator is authorized to issue a compliance
order. Any person who violates any of these provisions or who vio-
lates an order issued by the Administrator shall be subject to a civil
penalty of not to exceed $10,000 per day of such violation.
In the case of a willful or negligent violation by any person of sec-
tion 301, 302, 306, 307, 308, or 316, or any permit condition or limita-
tion implementing any of these sections in a permit issued under
section 402 of this Act by the Administrator or by a State shall be
punished by a criminal penalty of a fine of not less than $2,500 nor
more than $25,000 per day of violation or by imprisonment for not
more than one year, or by both. Any subsequent conviction for a viola-
tion by such person shall be subject to a criminal penalty of a fine of
not more than $50,000 per day of violation or by imprisonment for not
more than two years, or by both.
Whoever knowingly makes a false statement, representation or
certification in any application, record, report, plan, or other document
filed or required to be maintained under this Act or falsifies, tampers
with, or knowingly renders inaccurate, any monitoring device or
method required to be maintained under this Act shall upon convic-
tion be punished by a fine of not more than $10,000 or by imprisonment
for not more than six months or by both.
The requirements of section 303 which provide for water quality
standards and implementation plans may be enforced under the pro-
visions of section 309 because section 303 is operative under section
301(b)(l)(C). Section 301(b)(l)(C) requires the meeting of any
water quality standards, treatment standards, or schedules for compli-
ance, established pursuant to any other State or Federal law or reg-
ulation, or any more stringent requirements such limitation required to
implement any applicable water quality standard established pursuant
to this Act.
Consistent with the general tenor of this Act, the Committee ex-
pects that the Administrator will rely to the maximum extent possible
upon the enforcement actions of the individual States. The Commit-
tee in providing for Federal enforcement does not intend to replace
enforcement by the States. The provisions of section 309 are supple-
mental to those of the State and are available to the Administrator in
those cases where local, State, or interstate enforcement agencies will
not or cannot act expeditiously and vigorously to enforce the require-
ments of this Act. The Committee clearly intends that the greater pro-
portion of enforcement actions be brought by the Staes.
The Committee expects that the Administrator will notify a State
before he commences any civil action whenever possible.
Section 309(e) provides that the State in which any municipality
which is a party to a civil action brought by the United States under
this section, shall be joined as a party to the extent that the laws of
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320 LEGAL COMPILATION—SUPPLEMENT I
that State prevent the municipality from raising revenues needed to
pay expenses required by a judgment resulting from any such action.
The State shall be liable for the payment of any judgment penalties
or court expenses. This provision was included because of the Com-
mittee's awareness of the fact that some States have laws limiting the
capacity of municipalities to raise revenues for such payments.
Section 310—International Pollution Abatement
If the Administrator has reason to believe that pollution is occur-
ing in the United States which endangers the health or welfare of
persons in a foreign country and the Secretary of State requests abate-
ment of said pollution, the Administrator must notify the State where
the discharge originates. If the pollution is in sufficient quantity to
warrant such action and if the foreign nation has given the U.S. simi-
lar rights over pollution originating in that nation, the Administrator
shall call a hearing. The hearing board shall consider the allegation
and make a recommendation. If the recommendation calls for abate-
ment, the Administrator shall initiate abatement action to implement
the hearing board's decision.
Section 10 (d) (2) of the existing law provides for a method of
abatement of water pollution involving a hearing or conference pro-
cedure. Although the Committee believes that, in general, the confer-
ence procedures are too time-consuming to form the basis of an effec-
tive abatement program, they do provide an appropriate forum where
sensitive international pollution abatement issues may be resolved.
Accordingly, they are retained in this section. However, under exist-
ing law, the conference procedure results in "recommendations,"
which are enforceable in court. This procedure was revised. The Com-
mittee feels that individual dischargers should be required to comply
only with specific requirements established to the procedures set forth
in this Act. The Administrator would be required to carry out deci-
sions arrived at in the conference through these procedures. For ex-
ample, conference recommendations might result in recognition of
requirements for upgrading of water quality standards pursuant to
section 303. Or, if a conference were to disclose widespread violations
of the Act, the Administrator might assume enforcement authority
under section 309(a)(2), or simply issue orders under section 309
(a)(3).
The Committee recognizes that the United States shares the North
American continent with Canada to the Norib and Mexico to the
South. With both countries we share common boundary waters. A
Treaty has existed since 1909 between the United States and Canada,
a provision of which specifica^y agrees that boundary waters "shall
not be polluted on either side to the injury of health or property on
the other." The most significant water resource we share with our
Canadian neighbors are the Great Lakes and their Connecting Chan-
nels, the largest system of fresh water lakes found anywhere in the
world. Their economic significance to both countries is obvious.
The Committee recognizes that the Administrator of EPA in
administrating the provisions of this act may wish to give added
consideration to those water pollution control projects along our
boundaries which are considered to be of international significance
and will enable our country to meet our Treaty commitments.
[p- H6]
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WATER—STATUTES AND LEGISLATIVE HISTORY 321
Section 311—Oil and Hazardous Substance Liability
Section 311 closely follows existing section 11 with respect to oil
spills. New provisions for hazardous substances have been added.
The discharger of any hazardous substances that cannot be cleaned
up is liable to a penalty of not to exceed $50,000 per discharge depend-
ing upon the characteristics of the discharged substance except where
the United States can show that such discharge was a result of willful
negligence or willful conduct within the privity and knowledge of
the owner or operator, such owner or operator shall be liable to a civil
penalty as determined by the Administrator. A discharger of a hazard-
ous substance may raise the same defenses as a discharger of oil under
existing law: an Act of God, act of war, negligence on the part of the
U.S. Government, or an act of a third party.
The Administrator will be required to publish a list of hazardous
substances. The list of hazardous substances must be easy to under-
stand, and must receive widespread publicity.
A pollutant may be designated hazardous if it presents an imminent
and substantial danger to the public health or welfare, including fish,
shellfish, and beaches.
Any substance designated as hazardous will have a determination
made by the Administrator as to whether the designated substance is
actually removable. In this regard, the Committee expects that the
Administrator will take a reasonable and not a restrictive attitude in
the interpretation of the term "actually removable". The Administra-
tor can specify conditions in a graduated approach under which the
substance is removable or not removable, in whole or in part.
The definition of the terms 'remove' and 'removal' refers to actual
removal by any means including physical, chemical, biological de-
gradation or any other appropriate method or the taking of such
other actions as may be necessary to minimize or mitigate damage
to the public health or welfare.
The authorization for appropriations in section 311 (k) is merely a
restatement of existing provisions. This is not an increase in the auth-
orization and any funds previously appropriated are chargeable to
this fund.
Section 311(h) provides that either the district court of Guam or
the District Court of the United States for the District of Hawaii shall
have jurisdiction of actions arising in the Trust Territory of the Pacific
Islands under section 11 except those actions arising under section
311(i)(l).
The language, "notice and opportunity for a hearing" of Section
311 (b) (6) is not intended to impose in every instance the complex
procedural requirements associated with formal adjudicatory hear-
ings on the record before a hearing examiner such as are used for rate-
making and similar federal rule issuance. The committee believes that
effective administrative enforcement will be enhanced by assessment
procedures which are expeditious. Provisions of title 5 of the United
States Code commonly referred to as the Administrative Procedure
Act, as amended, will nevertheless apply to assure due process and
protection of a respondent's rights. In that regard, the respondent
has the opportunity of a de novo hearing in any collection proceeding
initiated by a United States Attorney after the conclusion of admin-
[p. 117]
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322 LEGAL COMPILATION—SUPPLEMENT I
istrative procedures. The net result is to parallel the penalty assess-
ment method which the Coast Guard has used in the past in connection
with laws which it administers.
Section 312—Marine Sanitation Devices
This section is almost identical to the provisions on marine sanita-
tion devices in existing law, which were enacted as a part of the Water
Quality Improvement Act of 1970 (Public Law 91-224). However,
new language frees from State regulation any owner of a vessel who
installs a marine sanitation device which device and installation is in
compliance with any applicable Federal standard or regulation prior •
to the effective date of standards and regulations that require use of
such device.
The existing law frees from State regulation anyone in compliance
with standards and regulations after the effective date of the initial
regulations and standards. The Committee originally intended to
make this Federal preemption applicable in this manner when Pub-
lic Law 91-224 was enacted. Thus, this provision simply carries out
the original intent of the Committee.
This section continues the provisions of existing law which make
standards and regulations on marine sanitation devices and their in-
stallation effective two years after their promulgation for new vessels.
Any revision of standards after the initial effective date of such stand-
ards and regulations shall be effective upon promulgation unless an-
other effective date is specified.
Section 312(f) (3) provides that if a State makes an application
to the Administrator for a complete prohibition of the discharge from
a vessel of any sewage (whether treated or not) into such waters, the
Administrator, if he objects, shall by regulations completely prohibit
such discharge.
Section 312 (m) provides that either the district court of Guam
or the District Court of the United States for the District of Hawaii
shall have jurisdiction of actions arising in the Trust Territory of
the Pacific Islands under section 311 except those actions arising under
section 311 (i) (1).
Section 313—Federal Facilities Pollution Control
This section requires that Federal facilities meet the same effluent
limitations, other limitations, performance standards, toxic effluent
standards and thermal discharge regulations as private sources of
pollution, unless the Federal facility is specifically exempted by the
President. The President cannot exempt any source from the require-
ments of sections 306 and 307.
The lease of public lands by various Federal agencies to conces-
sioners or other organizations for the purpose of providing regional
facilities often results in serious sanitation problems. The Committee
believes that the responsible Federal agencies should take this into
account at the time lease arrangements are made to see that necessary
facilities are provided either by the Federal agency or by the leasee
and that appropriate user chargers should be established.
The Committee, after hearing of numerous examples of flagrant
violation of pollution controls is determined that the Federal facili-
ties shall be a model for the Nation and that unless exempted bv the,
[p. 118]
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WATER—STATUTES AND LEGISLATIVE HISTORY 323
President, they shall be required to meet all requirements as if they
were private citizens. Any exemptions would be for periods no more
than one year although the President could grant more than one ex-
emption for a given Federal facility.
All exemptions granted by the President during the previous cal-
endar year shall be reported to the Congress each January. The Com-
mittee expects that such report will contain detailed reasons for any
exemption and the corrective action being taken.
The lack of an appropriation shall not be the basis for an exemp-
tion unless the Congress shall have specifically rejected a request for
funds that appeared as line item in the budget.
Section 314—Clean Lakes
Each State is required to submit an identification and classification
of all publicly owned fresh water lakes, and may develop procedures,
processes, and methods to control sources of pollution in such lakes.
Federal assistance to the States in the form of grants is authorized to
carry out methods and procedures approved by the Administrator.
This system recognizes that the problem with which the section at-
tempts to deal is essentially a matter for the States to resolve, with
Federal assistance. It is not a matter to be dealt with by a direct Fed-
eral program, except as otherwise provided in the Act.
At the same time, the Committee recognizes the urgency of dealing
with such problems as excessive sedimentation and accelerated eu-
trophication, which threaten many of our valuable lake resources.
Accordingly, the Administrator will be expected, in carrying out the
purposes of this section, to utilize all the authorities available to him
under the Act.
Section 315—National Academies Study
The National Academy of Sciences shall report to Congress within
two years on the economic, social, environmental and technological
effects of achieving or not achieving the effluent limitation and goals
set forth for January 1, 1981, in section 301 (b) (2). The Congress
must know the cost and impact of the no discharge requirements of the
January 1,1981, requirements.
The Committee, after thorough investigation and hearings, has
determined that the goals set forth in section 301 (b) of this Act for
January 1, 1981, the elimination of the discharge of pollutants, will
need to be evaluated carefully to determine the economic, social, and
environmental impact of such a requirement before legislation is con-
sidered to impose this as a national policy. Thus, the Committee se-
lected the National Academy of Science and the National Academy of
Engineering as the most competent and unbiased organization to per-
form this most difficult and important task.
The Committee received extensive testimony on the cost of the
elimination of discharge of pollutants. While there is controversy
as to the validity of the estimated costs to both the Federal, State, and
local governments and to industry that were received, there is no
question on the part of the Committee that the costs would be enormous.
Faced with the wide variation in estimates, the Committee feels that it
would be irresponsible at this time to impose this requirement on the
Nation without gathering additional facts and without making a de-
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324 LEGAL COMPILATION—SUPPLEMENT I
tailed and competent review by a multi-disciplined team which can
review all facets of the social, economic, technological, and environ-
mental effects of this requirement.
The Committee expects that the National Academy of Sciences and
the National Academy of Engineering will assemble a multi-
disciplined team of experts from within the Academy itself and will
supplement this Academy team via contract or otherwise with what-
ever outside help is required to provide the full scope of capabilities
in the scientific, engineering, economic, biological, medical, legal,
social science, ecological and international trade disciplines. The Com-
mittee expects this report, which is among the most important to
ever be requested by the Congress from any source to be completed
in the time required and in sufficient detail to provide the basis for
future action by the Congress.
Section 316—Regulation of Thermal Discharges
This section regulates thermal discharges which are defined in
paragraph (17) of section 502 to mean the introduction of water into
the navigable waters on the waters of the contiguous zone from a
point source at a temperature different from the ambient temperature
of the receiving waters.
The definition restricts thermal discharges to water which is at
either a higher or lower temperature than the receiving waters. It
does not include heat otherwise introduced into waters. It also does
not in any way exclude any other pollutant which may be contained
in the heated or cooled water.
The Committee expects the Administrator to assign the highest
priorities to the issuance of proposed thermal discharge regulation
as required by section 316(a) and to the promulgation of such regu-
lations, after comment by any interested persons, as required by sec-
tion 316(c).
Thermal discharges may be enforced by the provisions for Federal
enforcement under section 309 in the case of any violation of a condi-
tion or limitation on thermal discharges in any permit issued by the
Administrator or a State under section 402. No permit shall be issued
under section 402 for any thermal discharge not in compliance with
any thermal discharge regulations issued consistent with section 316.
It is the intent of the Committee that the application of thermal dis-
charge regulations to any given point source shall reflect, if after a
public hearing which be requested by the owner or operator of a point
source, a consideration of the relationship of the economic and social
costs of the implementation of the regulations to the economic and
social benefits and water quality objectives to be obtained.
The Committee expects that any thermal discharge will be made
only after alternative methods for controlling such a discharge have
been considered and evidence of such consideration is made available
to the permitting agency.
Section 317—Financing Study
This section requires the Administrator to continue to investigate
and study the feasibility of alternate methods of financing the cost of
preventing, controlling and abating pollution as directed in the Water
Quality Improvement Act of 1970 including but not limited to the
feasibility of establishing a pollution abatement trust fund.
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WATER—STATUTES AND LEGISLATIVE HISTORY 325
Timely submittal of the required report and recommendations for
legislation and financing methods for the post 1976 period is expected.
Section 318—Aquaculture
It is the intention of the Committee to encourage the recycling of
pollutants. There is a possibility of doing this with aquaculture. This,
however, shall not result in a degradation of the aquatic environment.
Therefore, the program is considered to be experimental and the per-
mit program must be carefully controlled and evaluated to insure that
the broad public interest in the aquatic environment is not compro-
mised while at the same time making possible the investigation of the
potential promise of aquaculture.
Any discharge of pollutants must be in accordance with a permit
issued by the Administrator pursuant to regulation. Such regulations
shall authorize, on a selective basis, discharges which would other-
wise be prohibited as in violation of the requirements of this Act,
but which clearly will be controlled in such a way as not to contribute
to pollution outside the designated project area. Applicants will be
expected to demonstrate, to the satisfaction of the Administrator,
that the project will be beneficial, will be controlled so as to preclude
the possibility of pollutants reducing waters outside the project area,
and that the project will not interfere with designated beneficial uses
of the waters in question.
Any permit issued under this section will be enforced by the Ad-
ministrator pursuant to application provisions of section 309.
TITLE IV—PERMITS AND LICENSES
Section 401—Certification
Section 401 is substantially section 21 (b) of the existing law
amended to assure that it conforms and is consistent with the new re-
quirements of the Federal Water Pollution Control Act.
Subsection (a) (1) of Section 401 requires any applicant for a Fed-
eral license or permit to conduct any activity (this includes construct-
ing or operating facilities) which may result in any discharge into
navigable waters to provide the licensing or permitting agency with
a certification from the State in which the discharge originates or will
originate or a certification from the interstate water pollution control
agency having jurisdiction over the navigable waters at the point
where the discharge originates or will originate if such certification is
appropriate from such interstate agency rather than from the State of
origin. This certification must state that any such discharge will com-
ply with the "applicable" provisions of sections 301, 302, 306, 307 and
316 of this Act.
The Committee notes that the term "applicable" as used in section
401 has two meanings. It means that the requirement which the term
"applicable" refers to must be pertinent and apply to the activity and
the requirements must be in existence by having been promulgated or
implemented. For example, if a thermal discharge regulation has no
relevance to an activity, the State need not certify that the activity
will comply with section 316. Similarly, if an effluent limitation has
not been established under section 302, obviously a State could not
certify that the activity will comply with an effluent limitation under
that section.
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326 LEGAL COMPILATION—SUPPLEMENT I
In the case of any activity for which there is not an applicable efflu-
ent limitation or other limitation under sections 301 (b) and 302,
applicable standard under sections 306 and 307 and applicable regula-
tion under section 316, the State would so declare in its certification.
The State is required to provide public notice with respect to all
applications received by it for certification and, to the extent that the
State determines it appropriate, to establish procedures for holding
public hearings with respect to specific applications. If a State or
interstate agency has no authority to make such a certification, then
the certifications must be obtained from the Administrator of EPA.
In order to insure that sheer inactivity by the State, interstate
agency or Administrator as the case may be, will not frustrate the
Federal application, a requirement, that if within a reasonable period,
which cannot exceed 1 year, after it has received a request to certify
the State, interstate agency, or Administrator, as the case may be, fails
or refuses to act on the request for certification, then the certification
requirement is waived. If a State refuses to give a certification, the
courts of that State are the forum in which the applicant must chal-
lenge the refusal if the applicant wishes to do so. No Federal license
or permit shall be granted unless this certification has first been ob-
tained or there has been a waiver of the requirement as provided by this
subsection. Denial of certification by a State, interstate agency, or the
Administrator, as the case may be, results in a complete prohibition
against the issuance of the Federal license or permit.
Subsection (a) (2) of section 401 provided that when a licensing or
permitting agency receives an application and a certification, it must
immediately notify the Administrator thereof. Whenever such a dis-
charge may affect the quality of the waters of any other State as deter-
mined by the Administrator then the Administrator shall, within 30
days of the date he is notified of the application for the Federal license
or permit, notify such other State, the licensing or permitting agency,
and the applicant. If within 60 days thereafter the State so determined
to be affected determines that the discharge will affect the quality of its
waters so as to violate any water quality requirements in that State
and within that 60-day period notifies the Administrator and the
licensing or permitting agency of its objection to the issuance of the
license or permit and requests a public hearing on its objection, such
a public hearing shall be held by the licensing or permitting agency.
At that hearing the Administrator shall submit his evaluation and
recommendations with respect to the objection to the licensing or per-
mitting agency. Based upon the recommendations of the State, the
Administrator, and any additional evidence presented at the hearing,
the agency shall condition the license or permit so as to insure compli-
ance with applicable water quality requirements. If conditions cannot
insure this compliance, the license or permit shall not be issued.
In the case where a Federal license or permit is required both as to
the construction of a facility and its operation, the initial certification
required for the construction license or permit shall fulfill the re-
quirements of this subsection with respect to certification for a Fed-
eral license or permit to operate that facility unless the certifying
State, interstate agency, or Administrator, as the case may be, after
having been given notice of the application for an operating license
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WATER—STATUTES AND LEGISLATIVE HISTORY 327
or permit by the agency to whom the application is made notifies that
agency within 60 days that there is no longer reasonable assurance
of compliance with applicable provision of sections 301, 302, 306, 307
and 316 because of changes since the construction license or permit
certification was issued in (1) the construction or operation of the facil-
ity, (2) the characteristics of the waters into which the discharge is
made, (3) the water quality criteria applicable to those waters, or (4)
applicable effluent limitations or other requirements. This paragraph-
is made inapplicable if the applicant for the operating license or per-
mit has not provided the certifying State, interstate agency, or Admin-
istrator, as the case may be, with notice of any proposed changes in
the construction or operation of the facility which changes may result
in violation of sections 301, 302, 306, 307, or 316.
Before the initial operation of a federally licensed or permitted fa-
cility or activity with respect to which a certification has been ob-
tained under this provision which facility or activity is not subject
to a Federal operating license or permit, the licensee or permittee is
required to provide an opportunity to the certifying State, agency, or
Administrator as the case may be, to review the manner of operation
of the facility for the purpose of assuring that applicable effluent
limitations or other applicable water quality requirements will not be
violated. Upon notification by such certifying State, agency, or Ad-
ministrator, as the case may be, that operation of this facility will
violate applicable effluent limitations or other limitations the Federal
agency may, after public hearings suspend the license or permit until
notification is received from the certifying State, agency or Adminis-
trator, as the case may be, that there is reasonable assurance that the
facility or activity will not violate applicable provisions of sections
301, 302, 306, 307 or 316. This right to review the manner of operation
of a facility or activity is not to be construed as authority to the State,
agency, or Administrator, as the case may be, to impose operational
requirements with respect to that facility or activity.
If a judgment is entered under the Federal Water Pollution Control
Act that a federally licensed or permitted facility or activity has been
operated in violation of applicable provisions of sections 301. 302, 306,
307 or 316, then the Federal license or permit with respect to which
a certification has been obtained under this provision may be suspended
or revoked by the Federal agency issuing that license or permit.
No Federal agency is to be deemed to be an applicant for the pur-
poses of this subsection.
If the actual construction of a facility has been lawfully commenced
prior to April 3, 1970 (the date of enactment of the Water Quality
Improvement Act of 1970), then no certification is to be required for a
license or permit issued thereafter to operate such facility except that
if such a license or permit is issued without this certification it shall
terminate April 3,1973 unless before such date a proper certification is
submitted to the licensing or permitting agency and the person hav-
ing that license or permit otherwise meets the requirements of this
subsection.
Subsection (b) provides that nothing in this section is to be con-
strued to limit the authority of any department or agency pursuant
to any other provision of law to require compliance with applicable
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328 LEGAL COMPILATION—SUPPLEMENT I
water quality requirements. The Administrator is also directed to
provide technical assistance to carry out the purposes of this Act.
The Committee notes that a similar provision in the 1970 Act has
been interpreted to provide authority to the Administrator to inde-
pendently review all State certifications. This was not the Committee's
intent. The Administrator may perform services of a technical na-
ture, such as furnishing information or commenting on methods to
comply with limitations, standards, regulations, requirements or cri-
teria, but only upon request of a State, interstate agency or Federal
agency.
Subsection (c) authorizes the Chief of Engineers to permit the use
of spoil disposal areas under his jurisdiction by a Federal licensee or
permittee, to charge for that use, with the moneys received to be de-
posited in miscellaneous receipts of the Treasury. In considering the
"public interest" the Chief of Engineers should take into consideration
the necessity to maintain non-Federal dock and berthing facilities
which are essential to the functioning of the Federal navigation proj-
ect. In determining the needs and utilization of spoil disposal areas
under the jurisdiction of the Chief of Engineers, he should give appro-
priate consideration to the related requirements of the non-Federal
dredging activities and should consider their needs for disposal on
the same basis as those of the Federal Government. Where local inter-
ests donates land, or shares in the costs of construction of spoil disposal
areas, local interest should be permitted reasonable use of the area,
utilizing the same standards as set forth in the two preceding sen-
tences, at nominal charge.
Subsection (d) provides that any certifications must set forth any
effluent limitations and other limitations and monitoring require-
ments necessary to assure that any applicant for a Federal license or
permit will comply with any applicable effluent limitations and other
limitations (section 301, 302) or standard of performance (section
307), prohibition, effluent standard or pretreatment standard (section
307), or any regulation (section 316) of the Federal Water Pollution
Control Act, and the effluent limitations and other limitations and anj7
monitoring requirements will become a condition on any Federal
license or permit.
It should be clearly noted that the certifications required by section
401 are for activities which may result in any discharge into navigable
waters. It is not intended that State certification is or will be required
for discharges into the contiguous zone or the oceans beyond the terri-
torial seas.
Section 4-0%—National pollutant discharge elimination system
During the Committee's extensive hearings—oversight and legisla-
tive—on water pollution control, one question which kept appearing
and reappearing was the appropriate relationship between the Federal
Water Pollution Control Act and the permit program initiated bv the
Corps of Engineers under the authority of the Refuse Act of 1899.
Information gathered during the hearings made it abundantly clear
that the two programs needed to be consolidated and not left each to go
in its own direction. The Committee was particularly concerned that
the overall administration of the Refuse Act permit program was in
the Corps of Engineers and not EPA. Although the Committee has
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WATER—STATUTES AND LEGISLATIVE HISTORY 329
the highest regard for the integrity and abilities of the Corps, the basic
decision had been made by the President and the Congress at the time
that the Environmental Protection Agency came into existence that it
would be the single agency responsible for leading the battle against
pollution. Although other agencies such as the Corps have a tremen-
dous role to play in this battle, it must be a supportive role. The ad-
ministration of the extremely important permit program is not a
supportive role. Indeed, this permit program as envisioned by the
Committee may well be the most important facet of the new water
pollution control program.
Another problem raised by the Eefuse Act permit program is the
total usurpation of enforcement of water quality control by the Fed-
eral Government. This is inconsistent with the Federal-State partner-
ship that is necessary if we are ever to have clean and safe waters. The
role of the States must be clearly recognized. It is impossible for the
Federal Government to succeed in this program without the close and
active cooperation of the States. A system of permits which requires
duplicative effort or destroys the initiative of the States and local
governments is wasteful and non-productive.
The Committee has expended considerable time and effort in seek-
ing to establish a permit program for discharges of pollutants into the
navigable waters which will be meaningful and will accomplish its
purpose. The Committee believes that section 402, as reported, does
just this. It gives the Administrator of EPA and the State govern-
ments major roles in this program. The section provides a mechanism
so that if a State chooses not to participate or if it does not live up to
its responsibilities, the Administrator may step in and perform the
task for the State. The Committee is confident, however, that, together,
the Federal Government and the States will make the program work.
Subsection (a) (1) provides that the Administrator may issue a per-
mit for the discharge of any polluant or any thermal discharge upon
the condition that the discharge will meet all the applicable require-
ments of sections 301, 302, 306, 307, 308, 316 and 403 of this Act, or
prior to the taking of the necessary implementing actions relating to
all such requirements, such conditions as the Administrator determines
are necessary to carry out the provisions of this Act.
As noted previously in this report, it is extremely important to an
understanding of this section to know the definition of the various
terms used and a careful reading of the definitions in section 502 is
recommended. Of particular significance is the words "discharge of
pollutants."
By the use of the term "discharge of pollutants" this provision
covers any addition of any pollutant to navigable waters from any
point source and any addition of any pollutant to the waters of the
contiguous zone or the ocean from any point source other than a vessel
or other floating craft. Thus, unlike the Kefuse Act, this provision does
not exempt from its coverage municipal waste treatment works.
Furthermore, any discharge from a point source, other than a vessel
or floating craft, in the contiguous zone or the ocean is clearly covered
under this provision.
The Committee points out, as it did in the discussion of section 401,
that the term "applicable" used in section 402 has two meanings. It
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330 LEGAL COMPILATION—SUPPLEMENT I
means that the requirement which the term "applicable" refers to must
be pertinent and apply to the activity and the requirement must be in
existence by having been promulgated or implemented.
The Committee further recognizes that the requirements under sec-
tions 301, 302, 306, 307, 308, 316 and 403 will not all be promulgated
immediately upon enactment of this bill. Nevertheless, it would be un-
reasonable to delay issuing of permits until all the implementing steps
are necessary. Therefore, subsection (a) (2) provides that prior to the
taking of the necessary implementing actions relating to all such re-
quirements, the Administrator may issue permits during this interim
period with such conditions as he determines are necessary to carry put
the provisions of this Act. Thus, the new permit program may be initi-
ated without undue delay upon enactment of this Act.
Subsection (a) (2) requires the Administrator to prescribe condi-
tions for these permits to assure compliance with the requirements of
subsection (a) (1), including conditions on data and information col-
lection, reporting, and such other requirements as he deems appro-
priate.
Subsection (a) (3) provides that the Administrator's permit pro-
gram and the permits he issues will be subject to the same terms, con-
ditions, requirements as apply to a state permit program and permit
issued under subsection (b).
Subsection (a) (4) provides that all permits for discharges into navi-
gable waters issued under the Refuse Act shall be deemed to be permits
issued under this title (sections 402 and 404) and permits issued under
this title shall be deemed to be permits issued under the Refuse Act.
Subsection (a) (5) prohibits the issuance of any further permits
under the Refuse Act. Any pending application for a permit under the
Refuse Act will be considered to be an application for a permit under
this section.
The Committee notes that considerable effort and moneys have been
expended by applicants under the Refuse Act permit program. It
should not be necessary to resubmit all applications. Applications
which have been addressed to the Corps of Engineers will, under this
provision, be considered to be addressed to the Administrator.
Subsection (a) (5) further provides that the Administrator may
authorize a State, which he determines has the capability of adminis-
tering a permit program, to issue permits for the discharges into the
navigable waters within the jurisdiction of such State (but not in the
contiguous zone or the ocean). This authority may be exercised only
during the period beginning on the date of enactment of this bill and
ends either on the 19th day after the date of the first promulga-
tion of guidelines required by section 304(h) (2) or the date, of ap-
proval by the Administrator of a permit program for such State
under subsection (b), whichever date occurs first. Each permit granted
during this interim period shall be subject to whatever conditions the
Administrator determines are necessary to carry out the provisions
of this Act. Moreover, no permit may be issued during this interim
period if the Administrator objects to its issuance.
Subsection (b) provides the procedure whereby the Governor of
a State desiring to administer its own permit program for discharges
into the navigable waters within its jurisdiction may submit its pro-
gram to the Administrator. The Administrator must approve the sub-
[p. 126]
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WATER—STATUTES AND LEGISLATIVE HISTORY 331
mitted program unless he determines that adequate authority does not
exist to carry out specified requirements of the Act.
The Committee considered extensively the proposition that all the
permits issued by the States ought to be subject to review and possible
veto by the Administrator. During the Committee's hearings, the Gov-
ernors and other representatives of the States, almost unanimously,
stressed the need to put the maximum responsibility for the permit
program in the States. They deplored the duplication and second
guessing that could go on if the Administrator could veto the State
decisions'. The Committee believes that the States ought to have the
opportunity to assume the responsibilities that they have requested. If,
however, a State fails to carry out its obligations and misuses the per-
mit program, the Administrator is fully authorized under subsection
(c) (3) of this section to withdraw his approval of a State program.
The Committee has included a provision in subsection (b) that any
permit program administered by a State must insure that any other
State whose waters may be affected by the issuance of a permit
have an opportunity to submit written recommendations with respect
to the permit application. If any part of the recommendations are not
accepted by the permitting State, the affected State and the Admin-
istrator must be notified in writing of its failure to accept such recom-
mendations together with its reasons for so doing. Subsection (d) (2)
provides that no permits shall issue if the Administrator within 60
days of his notification objects to the issuance of such permits. The
committee has included this procedure to protect States which
might otherwise be affected by the issuance of a permit in a second
State. This is similar to the safeguards given to States in the certifica-
tion procedure under section 401. However, since permits granted by
States under section 402 are not Federal permits—but State permits—
the certification procedures are not applicable.
Subsection (c)(l) provides that not later than 90 days after the
date on which a State has submitted a program pursuant to subsection
(b), the Administrator shall suspend the Federal permit program
authorized under subsection (a) unless he finds the proposed State per-
mit program does not satisfy the requirements of subsection (b) or
the guidelines issued under section 304(h) (2).
Subsection (c) (2) requires that any State permit program must at
all times be in accordance with section 402 and the section 304 (h) (2)
guidelines.
Subsection (c) (3) provides that whenever the Administrator deter-
mines after public hearings that a State is not administering a pro-
gram in accordance with this section, he shall notify the State. If
corrective action is not taken within a reasonable time, not to exceed
90 days, the Administrator shall withdraw approval of the State per-
mit program.
Subsection (d)(l) provides that each State shall transmit to the
Administrator a copy of each permit application received by the
State and give him full information on each action they propose
to take.
Subsection (e) authorizes the Administrator to waive the require-
ments of subsection (d) at the time he approves a State permit pro-
gram—for any category of point sources within the State.
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332 LEGAL COMPILATION—SUPPLEMENT I
Subsection (f) requires the Administrator to promulgate regulations
establishing categories of point sources which he determines shall not
be subject to the requirements of subsection (d) in any State with ap-
proved State permit programs.
Subsection (g) provides that the Administrator or any State may
not issue a permit for any point source unless the permit assures the
maintenance or enhancement of the quality of any affected waters.
Subsection (h) provides that any permit issued under this section
for the discharge of pollutants into the navigable waters from
a vessel or other floating craft shall be subject to any applicable regu-
lations promulgated by the Secretary of Transportation establishing
specifications for safe transportation, handling, carriage, storage, and
stowage of pollutants.
Subsection (i) provides that if any condition of a permit for dis-
charge from a publicly owned treatment works is violated the State
or the Administrator, as appropriate, may proceed in a court of com-
petent jurisdiction to restrict or prohibit the introduction of any pol-
lutant into such treatment works by a source not utilizing the treat-
ment work prior to the finding that the condition was violated.
Subsection (j) provides that nothing in section 402 shall be con-
strued to limit the authority-of the Administrator to take action pur-
suant to section 309.
Subsection (1) provides that compliance with a permit issued pur-
suant to section 402 shall be considered to be compliance for purposes
of sections 309 and 505, with section 301, 302, 306, 307, 316 and 403,
except any standard imposed upon section 307 for a toxic pollutant in-
jurious to public health. The purpose of this provision is to assure
that the mere promulgation of any effluent limitation or other limi-
tation, a standard, or a thermal discharge regulation, by itself will
not subject a person holding a valid permit to prosecution. However,
once such a requirement is actually made a condition of the permit,
then the permittee will be held to comply with the terms thereof.
Subsection (1) further provides that until January 1, 1976, in any
case where a permit for discharge has been applied for pursuant to
section 402, but final administrative disposition of the application
has not been made, and the discharge is not in violation of any appli-
cable water quality standards under subsections (a) and (b) of sec-
tion 303, and any applicable regulation under section 316. the dis-
charge shall not be in violation of this Act or the Refuse Act of 1899,
unless the Administrator or other plaintiff proves that final adminis-
trative disposition of such application has not been made because of
the applicant's failure to furnish information reasonably required or
requested in order to process the application.
The Committee notes that although subsection (a) (5) would dis-
continue further permits being granted under the Refuse Act permit
program, no direct amendments have been made either to the Refuse
Act or the olher enforcement provisions of the River and Harbor Act
df 1SUU. Tluiu, iliu'liiii.M. Cium .t sunlit nliirli fiiWI ?lftt luiV" !! (ii.'imit
unHW Kociion 40'2 or 4U4 would Still 1)C, Hub.jwt U) thu provisions of
the lief use Act
The Committee further intends that as a minimum any discharge
which would be subject to the, Refuse Act of 1899 would be subject
to the provisions of Title IV.
[p. 128]
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WATER—STATUTES AND LEGISLATIVE HISTORY 333
Section 4-03—Ocean discharge criteria
Section 402 provides that no permit under section 402 for a dis-
charge into the territorial sea, the waters of the contiguous zone, or
the oceans shall be issued, after promulgation of guidelines established
by the Administrator except in compliance with the guidelines.
The requirement of subsection (d) of section 402 (pertaining to
controversies between States) may not be waived in the case of permits
for discharges into the territorial sea.
The Administrator shall, within 180 days after enactment of this
bill, and from time to time, thereafter, promulgate guidelines for
determining the degradation of the waters of the territorial seas,
the contiguous zone, and the oceans in the effect of disposal of pollut-
ants on human health and welfare, on marine life, and on esthetic,
recreational, and economic values as well as guidelines for determining
the persistence of the pollutant and other possible locations for its
disposal.
Where insufficient information exists on any proposed discharge
to make a reasonable judgment on any of the guidelines the Adminis-
tractor shall not issue a permit under section 402 of this Act.
Section 404—Permits for dredged or fill material
Section 404 authorizes the Secretary of the Army,.acting through
the Chief of Engineers, to issue permits for the discharge of dredged
or fill material into the navigable waters, where the Secretary deter-
mines that the discharge is not unreasonable.
In making this determination the Secretary shall apply the guide-
lines promulgated pursuant to section 403(c)(l) 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 which a denial of a permit request would have. In
applying the guidelines established by the Administrator, the Secre-
tary should consult with the Administrator and give due consideration
to his views and recommendations.
The Secretary may issue no permits which would violate the desig-
nation of the Administrator, found necessary to protect critical areas,
of a site within which certain material may not be discharged. In
referring to "critical areas," the types of areas the Committee has in
mind are shellfish beds, breeding or spawning areas, highly suscepti-
ble resort beaches, and similar areas. The language of the section makes
it clear that this action to create in effect, "prohibited areas'' for dis-
charging certain materials is to be used with circumspection. Prior
to designating "prohibited areas," it is intended that the Administra-
tor consult with the Secretary of the Army if the banned materials
concern the Secretary's permit program. In establishing criteria for
dumping, the Administrator is required to consider economic factors
and these in turn would be taken into account in the designation of
recommended sites for discharging or prohibited sites or times for
discharging.
However, the Secretary upon certification that there is no economi-
cally feasible alternative reasonably available, will not be bound by
the determination of the Administrator.
In connection with Federal projects involving dredged or fill ma-
terial the Secretary may, in lieu of the permit procedure, issue regu-
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334 LEGAL COMPILATION—SUPPLEMENT I
lations to govern the discharged or fill material into the navigable
waters which shall require the application to these projects of the same
criteria, factors to be evaluated, procedures, and requirements which
are made applicable to the issuance of permits under subsections (a)
and (b).
The Committee expects that until such time as economic and feasi-
ble alternative methods for disposal of dredge material are avail-
able, no arbitrary of unreasonable 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 Committee expects the disposal activities of private dredgers and
the Corps of Engineers will be treated in a similar manner.
The Committee further notes that under section 404 the Secretary
of the Army shall have final decision-making responsibility and he
shall not abdicate this responsibility to any other agency. For ex-
ample, after consultation with the Administrator, the Secretary can
override the Administrator's designation if he determines that it is
not economically feasible to use the designated site.
It is expected that the Secretary shall act promptly on dredging
permits essential for the maintenance of interstate commerce because
of the seasonal nature of dredging and the need to preschedule scarce
dredging equipment. Tliu Committee p-sporta that, ttifi Secretary will
uet on t.ho penriil, applications usually within -10 dayg aft HI- notice and
opportunity for public hearings.
Finally, the shift in emphasis of this legislation from water quality
standards to effluent controls does not obviate the need for temporary
turbidity standards for dredging activities.
Consequently, the Committee expects the Administrator to develop
and issue to the States criteria providing for the establishment of
standards for temporary turbidity resulting from dredging and dis-
posal of dredge material, and to take such other action as is necessary
in establishing effluent limitations to assure continuation of dredging
essential to our Nation's waterborne transportation.
TITLE V GENERAL PROVISIONS
Section 501—Administration
This section continues, with conforming language changes, the pro-
visions of section 22 of the existing law.
A new subsection (f) is added which allows EPA, upon the request
of a State Water Pollution Control Agency, to detail employees to
assist the State agencies in carrying out the provisions of this legisla-
tion.
Section 502—General definitions
The section includes definitions for the following terms:
(1) State Water Pollution Control Agency
(2) Interstate Agency
(3) State
(4) Municipality
(5) Person
(6) Pollutant
(7) Pollution
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WATER—STATUTES AND LEGISLATIVE HISTORY 335
(8) Navigable Waters
(9) Territorial Seas
(10) Contiguous Zone
(11) Ocean
(12) Effluent Limitation
(13) Discharge of a Pollutant and Discharge of Pollutants
(14) Toxic Pollutant
(15) Point Source
(16) Biological Monitoring
(17) Thermal Discharge
(18) Discharge
One term that the Commi'tee was reluctant to define was the term
"navigable waters." The reluctance Avas based on the fear that any
interpretation would be read narrowly. However, this is not the Com-
mittee's intent. The Committee fully intends that the term "navigable
waters" be given the broadest possible constitutional interpretation
unencumbered by agency determinations which have been made or may
be made for administrative purposes.
The term "pollutant" as defined in the bill includes "radioactive
materials." These materials are those not encompassed in the defini-
tion of source, byproduct, or special nuclear materials as defined by
the Atomic Energy Act of 1954, as amended, and regulated pursuant
to that Act. "Radioactive materials" encompassed by this bill are
those beyond the jurisdiction of the Atomic Energy Commission. Ex-
amples of radioactive material not covered by the Atomic Energy Act,
and, therefore, included within the term "pollutant," are radium and
accelerator produced isotopes.
It is the intent of the Committee that the exclusion from the term
"pollutant" relating to the injection of water, gas, or other materials
into wells applies only to the properly executed injection of materials
into wells to stimulate the primary, secondary, or subsequent produc-
tion of crude oil or natural gas, and to the properly executed disposal
in wells of brines derived in association with the production of crude
oil or natural gas, with appropriate precautions taken to assure that
such injection or disposal does not lead to, or make substantially more
likely, the degradation of usable water resources. For such exclusion to
be effective, the State is required (1) to approve the well used either to
facilitate production or for disposal purposes, and (2) to make a de-
termination, based on sufficient investigation and evidence, that such
degradation has not taken place and has not been or will not be made
substantially more likely as a result of such injection or disposal.
It should be noted that the term "thermal discharge" is defined as
the introduction of water into the navigable waters or the waters of
the contiguous zone at a temperature different from the ambient tem-
perature of the receiving waters. It is intended that the term "thermal
discharge" and the term "discharge of a pollutant" (and "discharge
of pollutants") are mutually exclusive.
Section 503—Water Pollution Control Advisory Board
This section continues, with conforming language changes, the pro-
visions of section 9 of the existing law. The per diem allowance for
Board members while attending conferences or meetings of the Board
is raised from $50 per diem to $100 per diem.
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336 LEGAL COMPILATION—SUPPLEMENT I
Section 504—Emergency power
Section 5(M provides that notwithstanding any other provision of
this legislation, the Administrator, upon receipt of evidence that a
pollution source or combination of sources is presenting an imminent
and substantial endangerment to the health of persons, may bring suit
on behalf of the United States. The appropriate district court could
immediately restrain any person causing or contributing to the alleged
pollution to stop the discharge of pollutants causing or contributing
to the pollution or to take other action as may be necessary.
This section is similar to section 303 of the Clean Air Act.
Section 505—Citizen suits
The Committee was impressed during the hearings with the inten-
sity of feeling generated by the apparent growing reliance on legal
actions as a means of controlling pollution and environmental prob-
lems. The Committee listened carefully to exponents of the various
doctrines justifying an emerging role for citizen suits. There can be
little question based on the increasing number of public works proj-
ects which are being litigated that individual citizens and environ-
mental groups have turned and are continuing to turn to legal action
as a remedy for what they consider to be errors on the part of the
Government. They are no longer willing to rely on the administrative
process to work but instead have taken the initiative in having the
forum for decision-making be in the court room.
The Committee appreciates the growing citizen awareness of their
rights to utilize the courts.
However, the Committee is also concerned that this movement to
the courts 7nay have been brought about by inadequate recognition on
the part of the administrative agencies as to the proper role of the
public. Time and time again during the hearings evidence was sub-
mitted as to decisions made by Federal agencies without appropriate
consultation with the State and local governments or the general pub-
lic. And what is true about the Federal agencies is also true of the State
and local governmental agencies. It is with the understanding that
steps are necessarv to restore the public's confidence and to open wide
the opportunities for the public to participate in a meaningful way in
the decisions of government, that the Committee has included in the
proposed legislation various steps to arrive at this goal. First, the
Committee has included provision for public participation in the de-
velopment, revision and enforcement of anv regulation, standard, or
ellluent limitation established bv the Administrator or any State under
this Act. Xot only is this specifieallv required in section 101 (a) but
the Administration is directed to encourage this participation. Sec-
ond, the Committee has included provision in most instances where
a determination is to be made by the administrator or the State, that
such determination shall be made as p art of a public record. Third,
a tough and meaningful provision has been included on Federal en-
forcement (section 309) to insure that the Administrator is not lim-
ited in protecting the rights of the public. Fourth, judicial review
of the Administrator's actions is provided for in section 500 (b). Fifth,
the Committee has incorporated into this legislation this section (505)
specifically dealing with citizen suits.
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WATER—STATUTES AND LEGISLATIVE HISTORY 337
Section 505 closely follows the concepts utilized in section 304 of the
Clean Air Act. However, this legislation authorizes the courts to
impose civil penalties, as well as injunctive relief. Section 505 would
specifically provide that a Governor of a State may bring a suit against
the Administrator to compel him to seek abatement of pollution which
originates in another State and affects the Governor's State. Another
major distinction is that this bill specifically uses and defines the term
"citizens"'.
Subsection (a) of section 505 authorizes a citizen to bring a civil
action against any person, including the United States and other
government agencies to the extent permitted by the Constitution, who
is alleged to be in violation of effluent standards or limitations or an
order issued by the Administration with respect to such standard or
limitation. Actions are also permitted against the Administrator for
alleged failure to perform mandatory acts or duties.
The district courts are granted jurisdiction to enforce the effluent
standards or limitations, orders of the Administrator, and to order
the Administrator to perform his functions. In addition, the courts
are authorized to apply appropriate civil penalties under section
309(d). The penalties imposed would be deposited as miscellaneous
receipts in the treasury and not be recovered by the citizen bringing
the suit.
Subsection (b) provides that prior to commencing any action in
the district courts for a violation of an effluent standard or limita-
tion or any order of the Administrator or State, the complainant
must have provided the violator, the Administrator and the State
with 60 days notice. If an abatement action is pending and is being
diligently pursued in a United States or State court, the action per-
mitted under subsection (a) cannot be commenced but any citizen
may intervene as a matter of right.
However, no delay following notice to the Administrator is re-
quired where there is an alleged violation of sections 301, 302, 306
and 307, or an alleged violation of a section 402 permit issued by the
Administrator, or an alleged violation of an order issued by the Ad-
ministrator under section 309.
Subsection (b) requires the Administrator to promulgate regula-
tions establishing the appropriate manner in which the notices are
to be furnished. These regulations should be issued as soon as possible
after enactment of this legislation and, although not placing unneces-
sary or impossible burdens on complainants, should require informa-
tion regarding the identity and location of the alleged polluter, a
brief description of the activity alleged to be in violation, the provi-
sion of law alleged to be violated and, if appropriate, the specific func-
tion the Administrator is alleged to have failed to perform.
Subsection (c) provides that actions respecting a violation of a
discharge source of an effluent standard or limitation or an order are
to be brought in the judicial district in which the source is located.
The subsection further establishes that, in any action, the Adminis-
trator may intervene as a matter of right.
Subsection (d) allows the court to award to any party the costs of
litigation, including reasonable attorney and expert witness fees, when-
ever the court considers this to be appropriate. Concern was expressed
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338 LEGAL COMPILATION—SUPPLEMENT I
during the hearings that inclusion of a "citizen suit" provision would
lead to frivolous and harassing legal actions. By permitting the court
to award costs of litigation whenever it believes that it is appropriate
to do so. the Committee is satisfied that defendants who were sub-
jected to needless harassment or frivolous suits may be reimbursed for
their expenses. This should have the effect of discouraging abuse of the
"citizen suit" provision.
Subsection (d) permits the court to require the filing of a bond or
equivalent security in accordance with the Federal Rules of Civil Pro-
cedure in those cases where a temporary restraining order or prelimi-
nary injunction is sought.
Subsection (e) provides that the right of persons (or class of per-
sons) to seek enforcement or other relief under any statute or common
law is not affected.
Subsection (f) defines the term ''effluent standards or limitation
under this Act" as meaning for the purposes of this section (1) effec-
tive .luly 1,1973, an unlawful act under section 301 (a) ; (2) an effluent
limitation or other limitation under section 301 or 302; (3) standard
of performance under section 306; (4) prohibition, effluent standard
or pretreatment under section 307; (5) certification under section 401;
or (6) a permit or condition thereof issued under section 402, which
is in effect under this Act.
The Committee notes that the limitation of the effective date of
citizens suits for unlawful acts under section 301 to July 1,1973, pro-
vides suitable time for the Administrator and the States to develop
fully, and execute the authority contained in section 402. However, the
use of this date is not meant to override the specific provisions of sec-
tion 402 (1).
Subsection (g) defines the term "citizen"' to mean (1) a citizen of
the geographic area having a direct interest which is or may be affected
and (2) any group of persons Avhich has been actively engaged in the
administrative process and has thereby shown a special interest in the
geographic area in controversy.
The Committee's definition of the term "citizen" is based upon the
"private attorney general" doctrine as developed in the cases of Scenic
Hudson Preservation Conference v. Federal Power Commission, 354
F. 2d 60S (2 Cir. 19(15), South Hill Neighborhood Association v.
Romney, 421 F. 2d 454. 1969. The Committee believes this provides an
open door for those who have legitimate interests in the courts, and
encourages more meaningful participation in the administrative
processes.
Subsection (h) provides that a Governor of a State may bring a
civil action under subsection (a) against the Administrator for an
alleged failure to enforce an effluent standard or limitation, the viola-
tion of which is occurring in another State and causing either an
adverse effect on the public health or welfare or a violation of any
water quality requirement in the Governor's State.
Meet lot i ~>0(!—A ppea ranee
Section 506 provides that the Administrator shall request the At-
torney General to appeal' and represent the ITnited States in any civil
or criminal action instituted under this legislation to which the Ad-
ministration is a party. Unless the Attorney General notifies the
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WATER—STATUTES AND LEGISLATIVE HISTORY 339
Administrator within a reasonable time that lie will appear in a civil
action, EPA attorneys shall appear and represent the United States in
these civil actions.
The Committee wishes to stress that criminal actions involving the
United States should not be handled by attorneys other than those ap-
pointed by the Attorney General.
Section 507—Employee protection
Section 507 is patterned after the National Labor Management Act
and a similar provision in Public Law 91-173 relating to the health
and safety of the Nation's coal miners. Under this section employees
and union officials could help assure that employers do not contribute
to the degradation of our environment.
Any worker who is called upon to testify or who gives informa-
tion with respect to an alleged violation of a pollution control law by
his employer or who files or institutes any proceeding to enforce a
pollution control law against an employer may be subject to dis-
crimination.
The section would prohibit any firing or discrimination and would
provide an administrative procedure under which the employee or his
representative could seek redress for any violation of this prohibition.
The Secretary of Labor would investigate such charges and issue
findings and a decision which M*ould be subject to judicial review. If
the Secretary should find a violation, he would issue orders to abate it,
including, where appropriate, the rehiring of the employee to his
former position with back pay. Also, the person committing the viola-
tion could be assessed the costs incurred by the employee to obtain
redress.
This provision would safeguard the rights of employees, but it
should not encourage employees to frivolously allege violations since
the employee may have to pay the costs of the proceedings unless the
violation is proved.
In order to avoid abuse of the protection afforded under this sec-
tion the Committee has added a provision which would deny its appli-
cability to any employee who, without direction from his employer,
deliberately violates or wilfully contributed to a violation of any
standard, requirement or regulation under the Act.
Section 508—Federal procurement
Section 508, which is similar to section 306 of the Clean Air Act,
provides that persons convicted of any offense under section 309 (c) of
this legislation shall be ineligible to enter into Federal contracts until
the Administrator certifies that the violation has been corrected. The
President is required to issue an order directing Federal agencies (1)
to assist in the implementation of this Act, and (2) to establish sanc-
tions for non-compliance. Authority is provided to exempt contracts,
loans and grants in the paramount interest of the United States from
such sanctions for reasons of national security. Such exemptions and
other effort to implement the Act are to be reported to the Congress.
Section 509—Administrative procedure and judicial review
Section 509 authorizes the Administrator to issue subpoenas for the
attendance and testimony of witnesses and the production of relevant
papers, books, and documents, in connection with any determination
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340 LEGAL COMPILATION—SUPPLEMENT I
under section 301 (b) (3) — (extensions of the 1!)76 date for point
source effluent limitations)—or to obtain information under section
305 (water quality inventory).
Subsection (b) provides for judicial review of the Administrator's
action in promulgating any standard of performance under sec-
tion 306; in making any determination under section 306 (b) (1)
(C), in promulgating an effluent standard, prohibition, or treatment
standard under section 307; in making any determination as to a
State permit program submitted under section 402 (b) (5) ; in approv-
ing or promulgating any effluent limitation or other limitation under
sections 301, 302, or 306; and in issuing or denying any permit under
section 402, The judicial review may Ixi brought by any interested
person in the district court of the United States for the district in
which the person resides or transacts business. Application for review
must be filed within 30 days from the date of the Administrator's ac-
tion, or after that date only if the application is based solely on
grounds which arose after the 3()th day.
Subsection (c) provides that in any judicial proceeding brought
under subsection (b) in which review is sought of a determination
of the Administrator required to be made on the record after notice
and opportunity of hearing, if any party applies to the court for per-
mission to bring forward additional evidence and satisfies the court
that the additional evidence is pertinent and there were reasonable
grounds for failure to offer the evidence during the administrative
proceedings, the court may order the Administrator to take the evi-
dence into consideration in Devaluating his determination. The Ad-
ministrator may subsequently modify his findings as to the facts or
make new findings, and he shall file the, modified or new findings, and
his recommendations for the modification or setting aside of his orig-
inal determination.
The Committee believes with the nuinlxn- and complexity of admin-
istrative determinations that the legislation requires there is a need
to establish a clear and orderly process for judicial review. Section
50!) will ensure that administrative actions are reviewable. but that
the review will not unduly impede enforcement.
The Committee further notes that the inclusion of section 50!) is not
intended to exclude judicial review under other provisions of the leg-
islation that are otherwise permitted by law.
Section, •'>!(>—Xfufe ini-fliority
Section 510 retains the right of any State or interstate agency to
adopt or enforce any standard or limitation as to discharges of pol-
lutants or any requirement as to control or abatement of pollution
which is not less stringent than those required or established under the
Federal Water Pollution Control Act, except as otherwise expressly
provided in the Act.
The Committee considers section 510 to be of extreme importance in
assuring the States of the right to adopt or enforce provisions at least
as strict as those established in this legislation. Thus, the Committee
rejected in most instances suggestions for preemption by the Federal
Government and preempted the States only where the situation war-
ranted it based upon the urgent need for uniformity such as in section
312(f) relating to marine sanitation devices.
[p. 136]
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WATER—STATUTES AND LEGISLATIVE HISTORY 341
Section 511—Other affected authority
Subsection (a) of section 511 preserves the authority of other Fed-
eral laws which are consistent with this legislation including the au-
thority of the Secretary of the Army to maintain navigation and his
authority under the Rivers and Harbors Act of 1899. In the case of the
dredge and fill activities permitted under section 404 of this legislation,
a certification under section 401 shall be conclusive as to the effect on
water quality. Also subsection (a) provides that this legislation will
not affect or impair the provisions of any treaty of the United States.
Subsection (b) provides that the consultation and coordination re-
quirements of the Fish and Wildlife Coordination Act shall apply
only to the provisions of section 306, the publication of information
under section .304 and the, establishment of guidelines under section
403 but not to the imposition of any specific effluent limitation on a
particular source.
The Committee does not intend by this provision to decrease or limit
the, consideration of fish and wildlife which must be accorded each
and every action taken under the Federal Water Pollution Control
Act. The intent of this provision is instead directed to assuring that
coordination will be required at the most appropriate time, that is,
when guidelines, standards, limitations, and regulations are being
promulgated.
Subsection (c) provides that discharges of pollutants into the navi-
gable waters subject to the Rivers and Harbors Act of 1910 (dealing
with discharges into Lake Michigan) and the Supervisory Harbors
Act of 1888 (dealing with discharges into the Baltimore, New York,
and Hampton Roads Harbors) will be regulated under the Federal
Water Pollution Control Act. Therefore, the 1910 and 1888 Acts would
apply only to discharges affecting navigation or anchorage.
Subsection (d) provides that the requirements of the National
'Environmental Policy Act of 1969, Public Law 91-190. as to water
quality considerations shall be deemed to be satisfied (1) with respect
to any Federal license or permit for the construction of any activity
by a section 401 certification and (2) with respect to any Federal
license or permit for the operation of any activity by a section 401
certification and the issuance of a Refuse Act permit or a section
402 permit.
Subsection (d) is essentially identical to section f>10(d) of S. 2770,
the Federal Water Pollution Control Act Amendments of 1971, as
passed by the Senate on November '2. 1971. The provision was offered
and accepted as an amendment on the floor of the Senate by Senator
Howard H. Baker. The only differences between this provision in this
bill and the Senate bill are editorial to conform the proposal to the
terminology used in the House bill.
, In offering the amendment. Senator Baker stated:
>(Mr. President, the purpose of this amendment is to clarify
the relationship between the PYderal Water Pollution Con-
trol Act, as this bill would amend it. and the National En-
vironmental Policy Act of 1969.
Section 21 (b) of the existing Federal Water Pollution
Control Act provides that any Federal agency charged with
the, responsibility of issuing a Federal license or permit
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342 LEGAL COMPILATION—SUPPLEMENT I
for the conduct of any activity which may result in any
discharge into the navigable- waters of the United States
must, prior to the issuance of such license or permit, re-
ceive certification from the State in which such activity will
be conducted that the activity will be conducted in a manner
that will not violate, water quality requirements. Section
21 (b), with minor changes, appeal's as section 401 of tin-
pending bill. S. 2770.
The, National Environmental Policy Act of 1969—Public
Law 91-190—vests in any Federal agency having jurisdic-
tion over any action significantly affecting the quality of the
human environment as affirmative duty to weigh environ-
mental impact in determining whether a given action should
proceed and. if so, how such ;m action can minimize its im-
pact on the environment. The issuance of a license or permit
by any Federal agency, when the activity licensed or per-
mitted results in a discharge, into the Nation's waters, is
clearly one, of the kinds of actions embraced by the National
Environmental Policy Act—NEPA.
In July of this year the, U.S. Court of Appeals for the Dis-
trict of Columbia handed down a far-reaching, and as yet
unreported, decision in what has become known as the "Cal-
vert Cliffs" case (U.S.C.A., D.C., F. 2d, July 2H, 1971). In its
opinion the court said, in part:
NEPA mandates a case-by-case balancing judgment on the
part of Federal agencies in each individual case, the particular
economic and technical benefits of planned action must be
assisted and then weighed against the environmental costs;
alternatives must be considered which would affect the balance
of values.
I wholly concur with the court's view of the affirmative
mandate imposed by NEPA.
It seems to me most desirable, however, that each Federal
permitting and licensing agency not be required by the opera-
tion of NEPA to develop special expertise vested by the Con-
gress in other agencies. It was, in fact, to avoid this kind of
duplication that the Congress enacted section -21 (b) of the
Federal Water Pollution Control Act in 1970. As I said
earlier, section 21 (b) with some modification, appears as sec-
tion 401 of the pending bill.
My amendment would make it clear that for the purposes
of making the kind of ''balancing judgment" required by
NEPA, each individual Federal permitting and licensing
agency would not be required to develop its own special ex-
pertise with respect to water quality considerations. My
amendment should not in any way be construed to mean that
water quality considerations do not play a role in such a "bal-
ancing judgment." On the contrary, where pertinent, water
quality considerations must be considered by any agency when
it decides, under the NEPA mandate, whether it is in the pub-
lic interest to grant a license or permit and, if so, under what
conditions and stipulations.
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WATER—STATUTES AND LEGISLATIVE HISTORY 343
However, my amendment would relieve any such permit-
ting or licensing agency of the responsibility for determining
on its own the standard of performance or effluent limitation
that must be applied to the activity under consideration for a
license or permit. That determination would be made by a
State or by EPA pursuant to sections 401 and 402 of the
pending bill. Certification pursuant to section 402 would dis-
charge a licensing or permitting agency from any further
consideration as to what specific degree of effluent control
was required with respect to water quality considerations for
the activity under consideration."
The Committee notes that subsection (d) is limited to section 401
certifications and does not include certifications issued pursuant to
section 21 (b) of the existing law.
The Committee further notes that a recent court decision Kalur v.
Resor (3ERC 1458, D.D.C., 1971) held that environmental impact
statements under NEPA must be tiled for each Refuse Act permit ap-
plication. If it is determined after enactment of this legislation that
section 102 of NP]PA is applicable to section 402 permits, the Adminis-
trator may be required to prepare environmental impact statements
prior to his issuing such a permit.
Section 512—Separability
Section 512 continues with conforming language changes the provi-
sions of section 25 (d) of the existing law.
Section: 513—Labor standard*
Section 513 continues, with conforming language changes the provi-
sions of Section 8 (g) of the existing law.
Section 514—Agricultural facilities
The production of milk and other agricultural products normally
requires an operator first to obtain a license from the health authority
regulating such operations within his State or locality. The health
codes generally require removal of all animal wastes on a regular basis
so as to avoid the accumulation of manure and thereby minimize the
breeding of insects and rodents.
It has been brought to the Committee's attention that in some cases
the requirement for installation of waste-holding facilities on proper-
ties used for agricultural operations will place the operator in viola-
tion of these related health codes, which require the removal of all
animal wastes from the immediate area in use.
The purpose of section 514 is to assure that before an agricultural
operator will be required to install special waste treatment facilities,
the Administrator shall certify that the construction and operation
of such proposed facilities will not result in placing the operator in
violation of other local. State, or Federal health regulations.
Section 515—Effluent Standards* and Water Qualify Information
Advisory Committee
In order to ensure that effluent limitations and standards criteria
issued under this bill are based on the maximum amount of scientific
and technical information, section 515 establishes an Advisory Com-
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344 LEGAL COMPILATION—SUPPLEMENT I
mittee of competent and scientifically qualified independent individ-
uals to participate in the development of information based on which
the Administrator would make regulatory decisions.
The Advisory Committee authorized by this section would consist
of !) members appointed by the Administrator of the Environmen-
tal Protection Agency serving on a full time basis for a term of 4
years. They would be selected from the scientific community on the
basis of their capabilities to provide scientific and technical informa-
tion required for the standards and criteria developed under this Act.
Strict conflict-of-interests provisions would apply to the members of
this committee.
Six months before the publication of any guidelines fbr effluent lim-
itations, proposed standards of performance for new sources, or pro-
posed toxic effluent standards, the Administrator would notify the
Advisory Committee of his intent to propose regulations in these areas.
Wthin 4 months of such notice, the Advisory Committee would
provide the Administrator with all the scientific and technical infor-
mation related to the subject matter which it has developed. To pre-
pare such information, the Advisory Committee may hold a public
hearing.
The information which the Advisory Committee provides to the
Administrator would constitute a part of the administrative record
of the Administrator's rule-making in these areas. In developing this
information the Advisory Committee should utilize the services of
other Federal agencies including the United States Geological Survey.
Although section 515 includes provision for the establishment of
the Advisory Committee and provides for a relatively long tenure of
service (4 years), it is not intended that the Advisory Committee be
retained 011 a long-term basis.
Accordingly, subsection (a)(l) very specifica^y provides that the
Chairman and the members must be appointed by the Administrator
within 60 days of enactment of this legislation.
Section 516—Reports to Congress
Subsection (a) of section 516 provides that the Administrator shall
submit to the Congress, within 90 days after the start of each session,
a report on measures taken toward implementing the objectives of the
Federal Water Pollution Control Act,
Subsection (b), with conforming language changes, continues sec-
tion 26 of the existing law. In addition to the previous requirements,
the Administrator must submit a detailed estimate, biennially revised,
of the cost of construction of all needed publicly owned treatment
works in all of the States and of the cost of construction of all needed
publicly owned treatment works in each of the. States. The subsection
further provides that whenever the Administrator requests and receives
a cost estimate from a State, he shall furnish copies of the estimate
together with the detailed estimate to Congress. The cost estimate re-
quired under this subsection will be utilized in determining the allot-
ments pursuant to section 205.
Section 517—General authorizations
Section 517 authorizes appropriations in the amount of $250,000,000
for Fiscal Year 1973, and $300,000,000 for Fiscal Year 1974, and $250-
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WATER—STATUTES AND LEGISLATIVE HISTORY 345
000.000 for Fiscal Year 1975 to carry out the provisions of the Federal
Water Pollution Control Act other than sections 104, 105, 106(a), 107,
108, 112, 113, 114, 206, 207, 208(f), 208(h), 209, 304, 311(c), 311(d).
31l'(i), 311 (k), 311(1), 314, 315, and 317. The excepted sections have
additional separate authorizations for appropriations.
Section 518—Short title
Section 518 cites titles I through V as "The Federal Water Pollu-
tion Control Act".
Section 3—Authorizations for Fiscal Year 1972
The authorization for programs in sections 5, 6, 7 and 8 of the exist-
ing Federal Water Pollution Control Act as provided for in the Clean
Water Restoration Act of 1966 (Public Law 89-753) expired on
,1une 30, 1971. Subsequently, additional limited authorizations for ap-
propriations for these sections were included in Public Laws 92-50.
92-137.and 92-240.
Section 3 provides an additional authorization of $6,000,000 for sec-
tion 5(n) relating to research and $350,000,000 for section 8 relating to
the, construction grant program. These authorizations for appropria-
tions would be for the purpose of carrying out these programs under
sections 5(n) and 8 of the Federal Water Pollution Control Act as it
presently exists and would complete the funding requirements for
these programs for fiscal year 1972. It should be noted that the enact-
ment of this section will not require the appropriation of any addi-
tional moneys. Public Law 92-73, the Agriculture-Environmental and
Consumer Protection Act, 1972, included the necessary moneys for this
program subject to later authorizations. Section 3 is the authorization
to utilize the funds previously appropriated.
Subsection (c) provides that the Federal share of all grants made
under section 8 of the existing Federal Water Pollution Control Act
from sums authorized in this section and in Public Laws 92-50, 92-137,
and 92-240 will be at the rate required by section 202 of the Federal
Water Pollution Control Act (see section 2, title II of this legislation).
Thus, a recipient of a grant would receive either 60 percent or 75 per-
cent Federal assistance (depending on State participation).
Section 4—Savings Provision
Section 4 provides that no actions commenced by or against the Ad-
ministrator in the carrying out of his responsibilities under the Fed-
eral Water Pollution Control Act as it presently exists shall abate be-
cause of the amendments to the Federal Water Pollution Control Act
in section 2 of this legislation. All rules, regulations, certifications, and
other actions taken under the existing Federal Water Pollution Con-
trol Act shall remain in effect until modified or rescinded.
Subsection (c) of section 4 provides that the existing Federal Water
Pollution Control Act will remain applicable to all grants made from
fiscal year 1972 funds (and prior year funds), including increases in
the monetary amount of any such grant which may be, paid from fiscal
year 1973 funds (or later year funds). An exception to this would be
made for the higher cost sharing permitted under section 202 of the
Federal Water Pollution Control Act as amended bv section 2 of this
bill.
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346 LEGAL COMPILATION—SUPPLEMENT I
The Committee notes that there nmy be publicly owned treatment
works presently under construction ;ind receiving Federal assistance
nnder section S of the existing law where it may be later determined
that the Administrator underestimated the eligible costs of construc-
tion. Subsection (c) would permit the Administrator to pay the grantee
the remaining eligible amount from Fiscal Year 197:5 (or later year)
funds. However, the payment would be based on the applicable cost-
sharing arrangements of section 8 and not the higher amounts of sec-
tion 2(12. The grants made from Fiscal Year 1972 funds being eligible
for the higher percentages of section 202 would, of course, not be
limited to the amounts specified in section 8 of the existing law.
Section 5—Oversight Study
Section 5 directs the Comptroller General to study and review the
Federal and Federally assisted research, pilot and demonstration pro-
grams related to prevention and control of pollution. The Comptroller
General is to assess the conflicts between, and the coordination and use-
fulness of the programs and to submit a report to the Congress by
October 1,1073.
The ultimate purpose of this study is to identify und to weed out un-
necessary and duplicative work, as well as to strengthen those, pro-
grams which require additional attention.
Section 6—International Trade Study
Section 6 directs the Secretary of Commerce to conduct an in-depth
study aimed at measuring and assessing the, problems vis-a-vis foreign
competition likely to arise with the type of pollution abatement meas-
ures being undertaken in this country.
Such a study would be conducted in consultation with other govern-
mental agencies, iudust?'ies and interested parties both at home, and
abroad. Foreign pollution control programs would be evaluated and
an industry-by-industry index of comparative operational and invest-
ment costs would be constructed. The objective would be to learn what
types of advantages might, accrue, to foreign competition, particularly
those countries where pollution control efforts are presently minimal
or nonexistent. Recommendations for equalizing such competitive dis-
advantages would also be prepared and submitted.
Because of the urgency . f the receipt of such information, initial
study results would be submitted to the Congress within 6 months
following enactment of this legislation. Subsequent reports would be
submitted at least annually thereafter.
Section 7—International Agreements
Section 7 directs the President to enter into international agree-
ments to apply uniform standards of performance, for the control of
the discharge and emission of pollutants from new sources, uniform
controls over the discharge and emission of toxic pollutants, and uni-
form control over the discharge of pollutants into the oceans.
Section 8—Loans to Small Business Concerns for Water Pollution
Control Facilities
Section 8 would add a new subsection (g) to section 7 of the Small
Business Act to authorize loans to assist a small business concern in
making additions to or alterations in its equipment, facilities, or meth-
ods of operating so as to meet water pollution control requirements of
[p. 142]
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WATER—STATUTES AND LEGISLATIVE HISTORY 347
the, Federal Water Pollution Control Act. In order to be eligible for
these loans the Administrator- of the Small Business Administration
would have to find that without this assistance the small business con-
cern is likely to suffer substantial economic injury.
The loans would be authorized for small businesses as denned by the
Small Business Act, which means a firm independently owned and
operated and not dominant in its field.
The Environmental Protection Agency, or where appropriate under
the Federal law, a State, would be required to certify that the appli-
cant's waste treatment facility or process change would be necessary
and adequate to comply with requirements under the Federal Water
Pollution Control Act.
The provision authorizes $800,000,000 to be appropriated to in-
crease the S.B.A.'s disaster loan fund by this amount and requiring
that these funds be spent solely for the water quality loans and loan
guarantees.
As consistent with SBA section 7 authority and regulations, the
loans could be for up to $500,000 or 100 percent of the project's cost,
whichever is less, with a maximum duration of 30 years. The inter-
est would be the average cost to the U.S. Treasury of making the
loans, minus 2 percentage points—currently. This would translate
into a rate of about 4 percent.
The Committee notes that the $800,000,000 authorized by this sec-
tion is to be used exclusively for purposes outlined above. As repay-
ments are received, they should be separately accounted for and used
only for the purposes of subsection (g) (1).
Section 9—Environmental Court
Section 9 directs the President, acting through the Attorney Gen-
eral, to make a study of the feasibility of establishing a separate
court or court system having jurisdiction over environmental matters
and to submit a report on the results of the study together with rec-
ommendations to the Congress within 1 year after the enactment of
this legislation.
The Committee believes that this study will be useful in determining
whether the time is now appropriate for the establishment of an en-
vironmental court. The increase in litigation on environmental mat-
ters, the detailed specialized legislation which has been enacted on this
subject, the high degree of sophisticated technology involved in pol-
lution control, and the increasing involvement of the judiciary in
reviewing the beneficial and adverse effects of on-going programs
may well justify a new environmental court.
Section 10—National Policies and Goals Study
Section 10 requires the President to make an investigation and
to report the results to the Congress within 2 years of all national
policies and goals heretofore established by law with the purpose of
determining the relationship between these possibly competing policies
and goals. This evaluation should take into account the available re-
sources of the Nation. $5,000,000 is authorized for this study.
Section 11—Efficiency Study
Section 11 would require the President to make an investigation and
report to the Congress within 270 days on ways and means of effec-
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348 LEGAL COMPILATION—SUPPLEMENT I
lively utilizing alt of the resources, facilities, and personnel of the
Federal Government in carrying out the purposes and objectives of
the Federal Water Pollution Control Act.
The Committee believes that if there is to be a successful water
pollution control program, all available resources and expertise in the
Federal Government must be utilized. In recognition of this, the Com-
mittee has in this legislation assigned tasks to or authorized the Ad-
ministrator of EPA to work with a number of Federal agencies such
as the Coast Guard, the Corps of Engineers, and others. The purpose
of this review is not to challenge or les-.-en the leadership of EPA in
this field, but to determine where and to whom EPA may look for
assistance.
Section 12—Environmental Financing
Section 12 authorizes the, establishment, of an Environmental Financ-
ing Authority under the supervision of the Secretary of the Treasury.
The Environmental Financing Authority, or EFA, will make a
significant contribution to the program for a better environment by
greatly facilitating the efforts of State and local governments to con-
struct waste treatment facilities. This EFA would do by purchasing
municipal waste treatment bonds which could not otherwise be sold
on reasonable terms. To finance these purchases EFA would issue its
own securities in the market.
EFA is essential to assure that no municipality in this country is
denied the opportunity to see its bonds for the construction of waste
treatment plants.
In order to help communities comply with the Federal Water Pollu-
tion Control Act there is a provision for Federal grant assistance to
municipalities and other public bodies for the construction of waste
treatment facilities. The non-Federal share of the project cost must be
borne by the local and State governments involved. The, local govern-
ment share of the, project cost is, in virtually all cases, raised through
the sale of debt securities in the private market. Thus, even if the Fed-
eral grant share is increased, many projects could be delayed or can-
celled because of a locality's inability to borrow.
The purpose of EFA is to assure that no municipality will be unable
to participate in the Federal grant program because of an inability to
market its bonds at reasonable rates.
EFA could not purchase any obligations unless the Administrator
of the Environmental Protection Agency (1) has certified that the,
borrower is unable to obtain on reasonable terms sufficient credit to
finance its actual needs; (2) has approved the project as eligible for
a waste treatment construction grant under the Federal Water Pollu-
tion Control Act; and (3) has agreed to guarantee timely payment of
principal and interest on the obligations,
To avoid unnecessarily interfering with the market, the legislation
provides an important safeguard: the interest rate at which EFA
would lend would be set by the Secretary of the Treasury only after
considering the current market yields on comparable Treasury or EFA
securities outstanding in the private market as well as the, market
yields on municipal bonds. EFA would also be authorized to charge
fees to cover its administrative costs and provide for reasonable, con-
tingency reserves.
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WATER—STATUTES AND LEGISLATIVE HISTORY 349
While it is expected to be a simple and costless operation, EFA could
contribute significantly to the success of the whole Avaste treatment
facility program. With EFA standing ready to assure a market, no
essential project need be canceled or delayed because the State or local
government is unable to market its bond issue on reasonable terms.
It has been argued that the need for EFA assistance to municipal
borrowers has diminished because of the general improvement in bond
market conditions since EFA was first proposed by the Administra-
tion in February 1970. While communities are certainly having much
less difficulty in selling their bonds today, as compared to the crisis
situation municipal borrowers faced 2 years ago. even in times of
relatively favorable market conditions there are some communities that
lack the size or credit standing necessary to support their bond issues
at reasonable rates of interest. EFA would help these communities.
Also, as demonstrated in 1966 and in 1909, conditions in the munic-
ipal bond market can deteriorate rapidly. The construction of waste
treatment facilities requires a great deal of planning, and the approval
of interested groups at the Federal. State, and local levels is a time
consuming process that may extend for several years. This process can
be facilitated greatly by assurance in advance that when the project
reaches the financing stage it will not be unduly delayed or cancelled
because of changing bond market conditions. EFA would help pro-
vide that assurance.
Subsection (a) provides for section 12 to be cited as the "Environ-
mental Financing' Act of 1972.''
Subsection (b) establishes the Environmental Financing Authority
as an instrumentality of the Tnited States subject to the general super-
vision and direction of the Secretary of the Treasury and authorizes
the Authority to establish offices to conduct its business.
Subsection (c) states that the purpose, of the Act is to assure that
inability to borrow necessary funds in the market at reasonable inter-
est rates does not prevent any State, or local public body from carry-
ing out a waste treatment, works project receiving a grant from tlie
Administrator of the Environmental Protection Agency.
Subsection (d) provides a 5-member Board of Directors consist-
ing of the Secretary of the Treasury or his designee as Chairman and
4 others appointed by the President from the officers or employees
of the Authority or of any Federal agency. The Board would meet
at the call of the Chairman and would determine the general policies
of the Authority. The Chairman would appoint the officers of the
Authority.
Subsection (e) authorizes the Authority to purchase obligations is-
sued by State and local public bodies to finance the non-Federal share
of the cost of a waste treatment construction project. Xo purchase
could be made unless the Administrator of EPA has certified that the
seller is unable to obtain sufficient credit at reasonable rates of interest
and unless the Secretary has guaranteed principal and interest pay-
ments on the obligation. Xo purchase, could be made of obligations
issued to finance projects, the permanent financing of which occurred
prior to this Act. Interest rates on such purchases would be deter-
mined by the Secretary of the Treasury taking into consideration (1)
current market yields on obligations of comparable maturity issued
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350 LEGAL COMPILATION—SUPPLEMENT I
by the Treasury or the Authority and (2) market yields on municipal
bonds.
The Authority would charge fees to cover expenses and to accumu-
late reasonable reserves, and such fees would be included in project
costs.
Subsection (f) authorizes appropriations to the Secretary of the
Treasury to advance up to $100 million for initial capital to the Au-
thority. The interest rate 011 advances would be not less than a rate
determined by the Secretary of the Treasury taking into considera-
tion current market yields on Treasury obligations. Interest payments
could be deferred at the discretion of the Treasury.
Subsection (g) authorizes the Authority, with the approval of the
Secretary of the Treasury, to issue its own obligations in the market.
The Secretary of the Treasury could purchase sucli obligations, as
authorized in appropriation acts. Purchases by the Secretary would be
public debt transactions and would be at interest rates determined by
him taking into consideration current market yields on outstanding
Treasury obligations of comparable maturities.
Subsection (h) directs the Secretary of the Treasury to make an-
nual payments to the Authority in the amount by which the Author-
ity's interest expense exceeds its interest income.
Subsection (i) provides the Authority with general corporate
powers.
Subsection (j) generally exempts the Authority and its income
from all taxes except real and personal property taxes and taxes on
the principal or interest on obligations issued by the Authority, which
would be taxed to the same extent as obligations of private corpo-
rations.
Subsection (k) makes obligations issued by the Authority lawful
investments, acceptable as security for all fiduciary, trust, and public
funds, and exempt from SEC requirements.
Subsection (1) authorizes the Secretary of the Treasury to pre-
pare, hold, and deliver obligations for the Authority on a reimburs-
able basis.
Subsection (m) requires the Authority to transmit to the President
and Congress an annual report of its operations and activities.
Subsection (n) permits national banks to invest in or deal in obli-
gations of the Authority.
Subsection (o) subjects the Authority to the budget and audit pro-
visions of the Government Corporation Control Act in the same man-
ner as they are applied to a wholly-owned Government corporation.
Subsection (p) provides a permanent indefinite appropriation to
permit the Secretary of the Treasury to make interest payments to
the Authority as required by subsection (h).
Section 13—Sex Discrimination
Section 1.3 provides that no person shall, because of sex, be ex-
cluded from participation in. denied the benefits of, or be subjected
to discrimination under any program receiving Federal assistance
under the Federal Water Pollution Control Act Amendments of 1972,
the Federal "Water Pollution Control Act, or the Environmental Fi-
nancing Act. This section is to be enforced through agency provisions
and rules similar to those already established under title VI of the
Civil Rights Act of 19(54. However, this remedy is not exclusive and
[p. 146]
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WATER—STATUTES AND LEGISLATIVE HISTORY 351
will not prejudice or cut off any other legal remedies available to a
discriminatee.
COSTS OF THR LEGISLATION
In accordance with rule XIII (7) of the Rules of the House of Rep-
resentatives, the estimated costs to the United States which would be
incurred in carrying out H.R. 11896 in fiscal year 1972 and in each
of the following 5 fiscal years are as follows:
Fiscal year:
1972 $356,000,000
1973 9.872,000,000
1974 7,045,000,000
1975 7, 350, 000, 000
1976
1977
Total 24, 623, 000, 000
Thus the total costs of H.R. 11896 to the United States would be
$24,623,000,000.
The estimated costs are based on authorizations rather tHan on antic-
ipated obligations or expenditures of funds. Where an authorization
is stated without a fiscal year, it has been assigned to fiscal year 1973.
Of the above, $18,350,000,000 is authorized for construction of waste
treatment works (section 207 and section 3(b)). The appropriations
required for payment of the obligations authorized by this legislation
for the construction of waste treatments are estimated as follows:
Fiscal year:
1072 $350, 000, 000
1073 20,000.000
1974 250, 000. 000
1975 2, 450, 000. 000
1976 5, 000, 000, 000
1977 5. 955. 000. 000
1978 3, 250, 000, 000
1979 1, 050, 000, 000
1980 50. 000. 000
Total 18, 350, 000. 000
The estimate of cost of H.R. 11896, as reported, has been prepared
by the. Committee. Xo estimate of cost of the bill has been submitted
by any government agency to the Committee.
AGENCY COMMENTS
The comments of the Office of Management and Budget and the
Environmental Protection Agency on H.R. 11895 and H.R. 11896.
as introduced as submitted to the Chairman of the Committee on
Public Works are as follows:
ENVIRONMENTAL PROTECTION AGENCY.
Washington, D.C., December 13,1971.
Hon. JOHN A. BLATNIK,
Chairman, Committee, on Public Works, House of Representatives,
Washington, D.C,
DEAR MR. CHAIRMAN : We are pleased to respond to your request for
views and comments on H.R, 11895 and H.R. 11896, identical bills to
amend the Federal Water Pollution Control Act.
[p.
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352 LEGAL COMPILATION—SUPPLEMENT I
Our views, comments, and recommendations follow in the sequence
of the various titles and sections of the bills.
Title I—Research and Related Programs
Section 101. The general objective of the Act would be to "restore
and maintain the natural chemical, physical, and biological integrity
of the Xation's waters." This objective is supported by specific policies
and goals including:
1. elimination of pollutant discharges into navigable waters by 1985.
•2. an interim 1981 goal of water quality suitable to support aquatic
life and to permit recreation in and on the water.
'). prohibition of discharge of toxic pollutants in toxic amounts.
4. Federal grants for construction of waste treatment facilities, new
regional waste management programs, and expanded research
programs.
We do not support the new purpose of "general objective" that
would be provided. The pursuit of natural integrity of water for its
own sake without regard to the various beneficial uses of water in un-
necessary, uneconomic, and undesirable from a social, economic, or
environmental point of view.
We believe that the purpose of water pollution control is the achieve-
ment a:id protection of water quality for beneficial uses.
We also disagree with the nation-wide across-the-board application
of both the "no discharge" goal and the interim 1981 goal. Neither of
these goals allow for a legitimate range of State-designated beneficial
uses, which EPA believes sets a more reasonable and achievable basis
for a Federal-State water quality program.
The policy statement in the bills recognizes the primary role of the
States in implementing the pollution control programs and the need
to take action to promote control of international pollution.
EPA supports these premises. However, we firmly believe that the
Declaration of Policy should commit us to a vigorous and effective wa-
ter pollution control program. However, we do not believe that this pol-
icy should be so stated that it might preclude us from relating costs to
benefits in a meaningful way. The goals of the elimination of all dis-
chai'ges by 198;") and recreation in and on the water by 1981 is prac-
ticable only if the costs of achieving them are justified by resulting
social benefits. Otherwise, the nation would be applying costly tech-
nology in an indiscriminate and wasteful manner without regard to
discernible social benefits.
Accordingly, on line (i of page 2 after the words "of the Xation's
water's" add the words "and protect all beneficial uses of such Avaters".
Line 10 should be changed by deleting "by 1985" and adding "to the
maximum extent practicable"'.
Line 11 should be changed by deleting "attainable" and adding
"feasible and appropriate."
Section 102(a). The scope of the Act is extended to apply to all navi-
gable waters and ground waters, in addition to interstate waters, and
in some instances to ocean waters.
EPA supports the expanded scope which is similar to that proposed
in the President's Environmental Program for 1971. However, the
bill is inconsistent in its inclusion of "ground water" provisions in
many of its sections.
[p. 148]
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WATER—STATUTES AND LEGISLATIVE HISTORY 353
The bill would continue the Administrator's authority to advise
Federal agencies regarding the need for and value of storage for
regulation of streamflcnv for water quality control purposes in the
design of Federal reservoirs and other impoundment projects.
The bill would continue the Administrator's authority to advise
Federal agencies regarding the need for and value of storage for
regulation of streamflow for water quality control purposes in the
design of Federal reservoirs and other impoundment projects. The
authority presently contained in Section 3(c) to make grants to pay
up to 50% of the administrative expenses of State or interstate water
pollution control planning agencies is continued.
We support this provision but we believe that clarification is needed
as to whether federally licensed but privately constructed projects
are to be covered. We believe they should be included.
Section 102(b) provides for consideration by Federal agencies in
the planning of any reservoir, to inclusion of storage for regulation
of streamflow for water quality control purposes. This section is identi-
cal to Section 3(b) o.f the Federal Water Pollution Control Act.
We support the concept of considering storage and streamflow
regulation as an alternative method of water quality control. We also
agree with the provision that such regulation not be a substitute for
adequate treatment or other methods of eliminating was^e at the
source. However, we favor the approach taken in S. 2770 wherein this
subsection is applicable, to all reservoirs and impoundments under
other Federal law and the need and value of storage is determined by
the Administrator rather than the construction agencies.
Section 102(c). The authority presently contained in Section 3(c)
to make grants to pay up to 50% of the administrative expenses of
State or interstate water pollution control planning agencies is con-
tinued. Two additional provisions are added. The three year period
of planning begins after the date of enactment, and the plans are to
be developed in cooperation with and consistent with any comprehen-
sive plan prepared by the Water Resources Council and any regional
plans developed pursuant to Section 208. We support the provisions
for grants for these purposes. We believe clarification is needed with
respect to the beginning date of the three, year period.
Section 10.'5. Present Section 4, entitled "Interstate Cooperation and
Uniform Laws," is unchanged.
Sections 104 and 105 continue the authorities and appropriation
authorizations contained in present Sections 5 and f> with 7'espect to
research, investigations, training and information, with the following
new provisions:
(1) EPA would be required to establish and maintain a water
quality surveillance and monitoring system in cooperation with the
States and other Federal agencies (Section 104(a)(5)).
(2) EPA would have authority to conduct, in cooperation with the
States and other interested agencies, organizations and persons, public
investigations concerning the pollution of any water body (Section
104(a)(3)). This retains desirable features of the enforcement con-
ference of former Section 10.
(.5) EPA would be directed to promote reseach for the development
of techniques to measure social costs and benefits of activities regu-
[p. 149]
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354 LEGAL COMPILATION—SUPPLEMENT I
lated by the Act. and to report results to the Congress by April 1,
1974.
(4) EPA would be required to conduct a waste oil study and to
report the results of such study to the Congress within 18 months
after passage of the Act (Section 104(m)). In this regard, we would
point out that other Federal agencies are also concerned with waste
oil problems, and EPA would cooperate with them in the conduct of
this study.
(5) EPA would be required to conduct research on devices and
methods to reduce the total flow of sewage, including unnecessary
water consumption for domestic uses (Section 104(o)).
(6) EPA would be required to conduct research to determine new
and improved methods of abating water pollution from agriculture
(Section 104 (p)).
(7) EPA would be required to conduct research into the control
of pollution from sewage in rural and other areas which are not sus-
ceptible to conventional community-wide collection and treatment
(Section l()4(q)).
(8) EPA would be authorized to make grants to colleges and uni-
versities for the study of fresh water aquatic systems (Section 104(r)).
(9) EPA would be authorized to make grants to State and inter-
state agencies to demonstrate advanced pollution control techniques
in river basins (Section 105 (b)).
(10) EPA would be authorized to make grants for research into
the control of agricultural pollution, and for research into the control
of pollution from sewage in rural areas (Section 10,5(e)). Section 105
(i) requires that 10% of funds appropriated to carry out activities
under Section 105 be earmarked for subsection (e)(l).
We support the general objectives of these Sections. However, we
believe it is undesirable to fix in law the share of appropriated funds
which will be devoted to any particular research area, such as would
be the case for Section 105(e) (1).
EPA would be required to establish advisory committees ... to
assist in the examination and evaluation of research progress and pro-
posal and to avoid duplication of research.
We also object to the requirement to "establish committees." We
agree that extramural advice and consultation should be sought and
utilized but disagree, that it is desirable to limit our flexibility by re-
quiring that we establish such committees.
We recommend the deletion of the word "nonprofit'' on line 15 of
page 10. We believe that grants to profit making organizations should
continue to be, available as in present law.
We recommend that the exemptions in Subsection 104(b) (4) with
regard to Sections 3648 and 3709 of the Revised Statutes should also
be made available to grantees under Subsection 104(b) (3).
We further recommend that grant and contract authority be pro-
vided for purposes of the study directed under Subsection 104(1) re-
lating to pesticides in water.
We suggest the words "water purification" in line 1 at page 24 be
deleted and that the words "waste water renovation" be substituted
therefor.
[p. 150]
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WATER—STATUTES AND LEGISLATIVE HISTORY 355
The report called for in Subsection 104(m) (2) with respect to
"long-term, chronic biologic effects of such waste oil"' cannot reason-
ably be prepared on the basis of adequate study and experimentation
within 18 months. At least five (5) years will be necessary for such
purposes.
Section 106 extends EPA's present Section 7 authority to make
grants to States and interstate agencies to assist them in carrying out
water pollution control programs. The section is designed so as to
encourage increased program expenditures by the States. The section
authorizes appropriations of $30 million in FY 1972. $60 million in
FY 1973, and $75 million in FY 1974, and provides for allocation on
the basis of need.
We support increasing the authorization for these program grants.
as Avell as encouraging more State expenditures for their program
needs. However, we question the ability of the States to utilize effec-
tively the monies which would be authorized by this section.
Section 107 continues the provision of present Section 14 concerning
acid mine pollution, but is amended to require that projects demon-
strate the uses of sewage sludge for land restoration. $15,000,000 would
be authorized for this section.
EPA fully supports the demonstration.
Section 108 continues the provisions of present Section 15 concerning
Great Lakes pollution, but would add a new Lake Erie program for
the Corps of Engineers.
We are opposed to the provision of Section 108(d) which relates to
Lake Erie. First, it is undesirable to specify programs in law for spe-
cific geographic areas which can and should be covered under general
provisions. National objectives, as well as ongoing programs for water
pollution control would be weakened if separate authorities and ap-
proaches are established for a particular body of water. Second, it
would also be undesirable to create for another Federal agency a lead
role in developing environmental protection programs. This would be
counter to the President's efforts to unify Federal environmental con-
trol leadership in EPA. AVe would point out in this regard that EPA
would consult with appropriate Federal agencies, such as the Corps of
Engineers and NOAA, in developing control plans for the Great
Lakes.
Sections 109-11:2 continue the provisions of present Sections 16-19
concerning training grants and scholarships, extending the present $25
million annual authorization level for two more years, to 1974.
We agree with the proposed program continuation.
Section 113 would continue the authority for the ''Alaska village
demonstration projects.''
We recommend that the reporting date of January 31, 1973, con-
tained in Subsection 113 (c) be revised to read "January 31,1974." This
one year extension is necessary because of construction delays occa-
sioned by severe weather.
Title II—Grants for Construction of Treatment 'Works
Section 201. The objective of this Title is to require and assist the
development of waste treatment management plans and practices,
preferably on a regional basis.
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356 LEGAL COMPILATION—SUPPLEMENT I
The existing Section 8 authority to make grants for the construction
of waste treatment plants is continued, with significant changes.
Beginning in FY 197;), a grant may not be made unless the applicant
demonstrates that alternative waste management techniques have been
studied, and that the treatment works will provide for application of
the best practicable waste treatment technology, allowing as appropri-
ate for recycling at a later date (Section 201 (d)).
We agree with the requirement that the best practicable treatment
technology be employed after it has been identified through considera-
tion of alternative waste management techniques that could be
employed.
Section 202. The Federal share of construction costs, beginning in
FY 1973 is a flat GQc/r. increased to 75% if the State agrees to pay \o%.
We are opposed to the proposal to increase the Federal share to a
maximum of 15% of the cost of construction. The meaningful involve-
ment and responsibility of States and local governments in this effort
are absolutely essential if the programs are to work. This cannot be
achieved without a commitment of substantial State and local match-
ing funds.
When States and localities are obliged to contribute substantial por-
tions of the costs of waste treatment facilities, it necessarily follows
that all levels of government then endeavor to produce the needed
facilities which can most effectively perform the task at the least pos-
sible cost.
Section 20,'5 provides that upon EPA approval of a project it shall
be deemed a contractual obligation of the United States.
We are opposed to the substitution of contracts for grants. The
contract approach sidesteps all the safeguards provided by the budget-
ary-appropriations process. We believe this is highly undesirable in
a program of constantly changing needs and costs assessments.
We believe that the system of grants and annual appropriations is
essential and recommend that it be retained in the law.
Section 204. Grant conditions include (1) inclusion of the project
in any applicable comprehensive river basin plan developed under
Section 209 of this Act; (2) certification of priority by the State
agency; (3) adequate provision for operation and maintenance, includ-
ing provision for user charges to recover the costs of operation, main-
tenance and replacement; (4) provision for recovery from industrial
users of the capital costs attributable to the Federal share of the plant's
industrial waste treatment capacity (this cost recovery reverts to the
Federal disaster fund set up under the Small Business Act); (5) pro-
vision for adequate reserve capacity; and (6) legal, institutional and
other capability for insuring adequate construction, operation, mainte-
nance, and expansion of treatment works. EPA would be required to
issue guidelines governing user charges.
We generally favor these provisions. However we cannot agree that
industrial user charges attributable to the Federal share of the capital
costs of a project should revert to the I'.S. Treasury, nor that such
funds should be made available to the disaster relief fund.
We strongly support the concept of requiring that grant recipients
have the legal, institutional, and economic capability of self-sufficiency.
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WATER—STATUTES AND LEGISLATIVE HISTORY 357
Accordingly, we believe that funds recovered from user charges should
be retained by the communities in support of this important objective.
We are opposed to the inclusion of "expansion" as a part of the
basis for determining user charges as provided in Section 204(b) (1)
(A). We believe that such practice is legally precluded in many com-
munities and does not represent sound municipal economic practice.
However, "expansion" is essential to the self-sufficiency objectives and
should be retained in Subsection 204(b) (1) (C).
Section '205. Allocation and reallocation (at the end of the fiscal
year) of construction grant funds would be made on the basis of need,
as determined by the "Cost of Clean Water" for FY 1973 and 1974,
and revised studies thereafter.
EPA strongly endorses an allocation formula based on identified
needs. We recommend that needs be determined on criteria including
seriousness of pollution, population and industrial concentrations,
natural conditions and other relevant factors.
Also language similar or the same as that included on S. 2770 Sec-
tion '205(d) (1) is needed to assure adequate funding of the Blue Plains
Sewage Treatment Plant since the allocation formula would not pro-
vide sufficient funds to the District of Columbia. Also, no allocation
formula is provided for FY 1972 funds.
Section 206 provides for reimbursement of State and local funds
used to prefinance the Federal share of projects initiated between
June 30,1966 and July 1,1971. In addition, projects may be approved
for payment of the Federal share out of later year's allocation, in the
event that all funds allocated to a State in the fiscal year in which
the construction is undertaken have been obligated. Reimbursement
for projects constructed between June 30. 1956 and June 30, 1966
would be authorized as the difference between the amount of Federal
assistance already received, and ?>()% of project costs. For projects
constructed between June 30, 1966 and July 1, 1971, reimbursement
would be authorized as the difference between the amount of Federal
assistance already received and the amount for which it was eligible.
*2.75 billion is authorized to be appropriated for- purposes of this
section.
We strongly object to the "windfall" reimbursement of 1956-1966
projects. There is no guarantee that such payment will do anything to
make our water cleaner. It is fund distribution unrelated to environ-
mental protection. Revenue sharing, if that is the object, is better
achieved under a general mechanism based on financial rather than
clean water needs. However, we do endorse reimbursement to cover
the full Federal share allowable under current law. which applies to
post-1966 projects only.
Section 207 authorizes funding for waste treatment construction
grants as follows: Appropriations authority of $2 billion in FY 1972:
and $5, $6 and $7 billion in FY 1973-1975.
We continue to support our originally proposed three year, $6 bil-
lion construction grant program. Our proposal is based on the most
comprehensive and reliable assessment of waste treatment needs avail-
able. Further, the waste treatment construction industry does not
presently have the capability nor do we believe it can expand rapidly
enough to provide for the construction larger funding demands. Costs,
[p. 153]
523-310 O - 13 - 24
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358 LEGAL COMPILATION—SUPPLEMENT I
already inflated in this area, will undoubtedly mount as the lag be-
tween construction capacity and funding increases.
Section 208, entitled "Area-wide Waste Treatment Management",
provides that the Governors of States, with EPA guidance, would
designate the boundaries of urban-industrial or other seriously polluted
areas appropriate for regional waste treatment management, and agen-
cies to develop areawide waste treatment management plans for such
areas. Within two years after designation of an agency, each would be
required to develop plans for its area, which would include (1) es-
tablishment of construction priorities for treatment works; (2)
identification of future waste collection and treatment needs; (3)
establishment of a regulatory program; and (4) processes to identify
various nonpoint sources of pollution, with procedures to control them
to the extent feasible. After certification by the Governor, the plans
would bo submitted to EPA for approval. EPA would be required
to provide financial assistance to designated planning agencies, in
amounts equal to 100% of their planning costs in each of the first
four years, and not to exceed 75% of such costs thereafter. $300 mil-
lion would be authorized for the first three years. The Secretary of the
Army would be authorized to consult with and provide technical and
operating assistance to planning agencies, and would be authorized
$50 million for each of the first three years.
Although we fully endorse the concept of regional waste treat-
ment planning, we do not favor the provisions of Section 208 for
several reasons. Basin-wide, regional and metropolitan planning are
already required pursuant to regulations governing waste treatment
facilities construction grants. Moreover, new special purpose authori-
ties should not be created without regard to other planning under-
way or without regard to important functions of other levels of
government.
Furthermore, we strongly oppose 100% Federal funding of these
planning costs. If Federal financial assistance for such activities is
to be provided, substantial State and local matching is essential.
We are also opposed to the provision of 208(h) which, evidently,
would sanction a direct role for the U.S. Army Corps of Engineers
in the planning and operation of regional waste treatment manage-
ment. Such provisions would tend to divide Federal authority and
activities regarding environmental protection, which were consoli-
dated under EPA's leadership by Reorganization Plan Xo. 3 of 1970.
The Corps does have planning expertise which can be utilized in many
instances in developing alternatives for regional waste treatment.
However, in such cases the Corps should provide assistance to EPA
and to local and State agencies under EPA criteria upon request. We
do not believe that a separate aiithorization for the Corps for this ac-
tivity is appropriate.
Section 209 would direct the President to prepare, through the
Water Resources Council, Type B plans for all U.S. river basins by
January 1, 1980. $200 million would be authorized for this purpose.
We are opposed to this provision. Adequate authorization for Type
B studies is provided in the Water Resources Planning Act and should
not be repeated in the Federal Water Pollution Control Act. We also
believe that appropriations for river basin aspects of water quality
[p. 154]
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WATER—STATUTES AND LEGISLATIVE HISTORY 359
management planning should be made directly to the agencies respon-
sible for such planning.
Section 210 would add "sewage collection" systems to the defini-
tion of "waste treatment works."
We believe that sewers, per se, are more directly related to com-
munity development than to pollution control. Therefore, EPA does
not support the inclusion of sewage collection systems for grant as-
sistance under the Federal Wa er Pollution Control Act. Moreover,
adequate mechanisms exist for coordinating EPA's waste treatment
facility construction grants program and HUD's sewage collection
systems program and more are being developed administratively as
necessary. The proposed legislative change would cause needless con-
fusion and delay by further dividing Federal responsibilities for
sewage collection systems.
Section 210(2) (c) provides for the publication of guidelines for the
evaluation of methods of Avaste treatment. We recommend that the
deadline for the preparation of these guidelines be extended by an
additional 180 days.
Title III—Standards and Enforcement
This Title would substantially alter the standard setting and en-
forcement provisions of present law. In fact, the water quality stand-
ards approach would be abandoned over a period of time.
Before discussing particular aspects of the Title III provisions of
H.E. 11895 and 11896. we would like to point out a basic considera-
tion. As was proposed by the Administration earlier this year, the cur-
rent law needs to be strengthened, primarily by providing for effluent
limitations as an applicatio-i and enforcement tool in the achievement
of the standards. We believe that the establishment of effluent limita-
tions, that is, a direct address to the quality and quantity of the efflu-
ent is the key ingredient. We need clear authority to regulate effluent
sources directly. We believe that regulation must take into account
both the best practicable treatment currently available, and ambient
water quality standards where higher treatment is required to protect
ambient water quality.
We are convinced that adequate effluent limitations cannot be based
entirely on ambient water quality standards on the one hand nor en-
tirely on the availability of technology on the other. To attempt to
base limitations entirely on ambient water qualit}- considerations as-
sumes an ability to relate accurately ambient water quality with efflu-
ents. But we are not able to do that with sufficient precision at this
time. It does not follow, however, that all effluent limits be based en-
tirely on the availability of control technology as the bills would pro-
vide. Both ambient wrater quality considerations and available control
technology must be taken into account.
Section 301 (b) (1) calls for the achievement of the following point
source effluent controls:
(1) for industrial point sources: by January 1. 1976, the best
practicable control technology currently available, as defined by the
Administrator of EPA.
(2) for discharges into publicly owned treatment works: by Jan-
uary 1, 1976, compliance with applicable pretreatment requirements.
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360 LEGAL COMPILATION—SUPPLEMENT I
(3) for publicly owned treatment works: secondary treatment as
defined by the Administrator if the project is in existence on Janu-
ary 1,1976 or is approved prior to June 30,1974.
(4) any more stringent controls required under State law or pres-
ent Federal law.
We favor the requirement of "best practicable treatment" for in-
dustrial sources, pretreatment requirements for industrial discharges
into municipal systems, and secondary treatment for municipal sources
for which Federal grants will be made available.
However, we are convinced that a 2-year extension from the 1976
deadline will be necessary for some industrial sources. Similarly, we
are of the view that all municipal sources in existence in 1976 cannot
achieve secondary treatment; the secondary treatment requirement
should only apply to projects for which new Federal grants are
provided.
Section 301 (b) (2) calls for the achievement, by January 1, 1981,
of the following point source effluent controls:
(1) for industrial point sources: elimination of discharge of all
pollutants, unless on the basis of information supplied by the dis-
charger it is determined that compliance is not attainable at a reason-
able cost, in which event application of the best available technology
will be required, taking its cost into account:
(2) for discharges into publicly owned treatment works: same as
under section 301 (b) (1) above:
(3) for publicly owned treatment works: compliance with Section
201 (d) (i.e., best practicable waste treatment technology including
provision for recycling as appropriate).
Wee see no valid basis to move from ''best practicable treatment" to
"best available treatment" for industrial sources simply to move closer
to the goal of "no discharge of pollutants." We believe that "best prac-
ticable treatment" representing a range of technology should continue
as a base. It is to be expected that the base or threshold of that range
will be higher in 1976 than it is today.
However, for existing sources we believe that levels of treatment
beyond "best practicable" can only be validly required if necessary to
support water quality standards.
We are also of the view that effluent limitations requirements after
1976 should emerge from new State implementation plans which iden-
tify beneficial uses and potentials, and which take regional and basin-
wide factors into account.
We believe that "best practicable treatment" should be required
of municipal sources based on water quality standards.
EPA would also point out that by couching its requirements in terras
of a "not later than" date, this section could produce a hiatus in en-
forcement activities until January 1, 1976. An additional hiatus could
occur between 1976 and 1981 with respect to the more stringent stand-
ards of Section 3()9(b)(2). To avoid any such implication, Section
309(b) should be redrafted to require compliance "as soon as possible
but in no event no later than January 1, 1976." Without this amend-
ment there will be a strong tendency on the part of industry, and per-
haps a Court, to view the 1976 and 1981 dates as deadlines not requir-
ing earlier compliance with the standards of treatment required by
Section 301 (b). if that is possible.
[p. 156]
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WATER—STATUTES AND LEGISLATIVE HISTORY 361
EPA further believes that the present language requiring "compli-
ance with any application pretreatment requirements and any require-
ments under section 307 of this Act" is unclear as to whether it includes
the toxic pollutant effluent standards of Section 307(a) in referring
generally to requirements under Section 307, since Section 307(a)
would seem not to apply to discharges into publicly owned treatment
works. (Section 307(b) pretreatment standards would pick up dis-
charges of toxic pollutants into treatment works.) However, to refer
to Section 307 in its entirety in Section 301 may cause confusion in
view of the variant time schedules and hearing procedures set out in
Section 307(a) for toxic pollutants as opposed to substances subject
to pretreatment (Section 307(b)). The above difficulties can be, avoided
by amending Section 301 (b) (1) (A) (ii) and (b) _(2) (A) (ii) to read:
". . . compliance Avith any pretreatment requirements under sub-
section (b) of Section 307 of this Act.v
Finally, in Section 301 (b) (1) (C) (ii), the words for "intrastate
waters" should be deleted. Otherwise, the section will not cover State
water quality standards for interstate waters which have not been
approved under the Federal Water Pollution Control Act.
Section 301 (d). Effluent limitations required by Section 301 would
be established and applied to all point sources of discharges covered
by the Act by means of the permits issued under Title IV.
We favor the approach whereby effluent limitations would be ap-
plied to dischargers through a permit mechanism. However, we do
have serious difficulties with some of the permit provisions of Title IV,
which will be addressed in relation to the various sections of that Title.
We would also point out that it is unclear whether the provisions of
Section 301 would become effective immediately. We assume that it is
the intention of the Committee that, except as otherwise provided in
the bill, the existing system of regulation will continue until the reg-
ulations called for by the bill come into effect.
Section 302 provides that EPA or, as appropriate, a State, would
have authority to set more stringent effluent limitations for point
sources whenever such action is considered necessary to attain or main-
tain the level of water quality necessary to protect public water sup-
plies and agricultural and industrial uses, to assure a balanced popula-
tion of shellfish, fish and wildlife, and to allow recreational activities
in and on the water. Xo such effluent limitation could be established
without a public hearing to determine the relationship between the
economic and social costs of achieving such limitation, and the social
and economic benefits to be obtained. If the person affected demon-
strates that, irrespective of the availability of the necessary technol-
ogy, there is no reasonable relationship between such benefits and costs.
such effluent limitation shall not become effective.
We do not favor the provisions of Section 302 since it is premised on
a requirement of "best available technology" as a base. As we have
indicated above, we are opposed to the approach whereby effluent limi-
tations in the post-1976 period would be based on best available
technology.
However, with respect to the specific language of Section 302 we
have the following comments. Section 302 mixes into its area-wide
approach a procedure focusing on individual discharges, with inade-
quate mechanisms for coordination among State and Federal agen-
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362 LEGAL COMPILATION—SUPPLEMENT I
cies. In particular. Section 302 ignores the possibility that specific wa-
ters to which the Section 302 limitations will apply may cover more
than OIK; State jurisdiction. In addition, some of the discharges within
the area may be subject to exclusive State jurisdiction under an ap-
proved Section 402 permit program, while others may be subject to
Federal overview. For these reasons, a multiplicity of jurisdictions
could well apply to discharges within the area as to which Section 302
limitations may be sought. This situation will give rise to at least
two problems.
First, there is no guidance as to how such hearing shall be run. Sec-
ond, and more importantly, what would happen under the bill if EPA
believes a more stringent standard is necessary in a particular area but
the State disagrees? Apparently, Section 402 permits under exclusive
State jurisdiction would incorporate the less restrictive standard while
other permits issued by EPA would applv the more stringent condi-
tion. The same sort of conflict could occur between States. These con-
flicts are inevitable and would obviously undermine the area plan-
ning so necessary to make Section 302 more than a dead letter.
Section 303 provides that the Administrator is authorized to permit
the discharge of specific pollutants under controlled conditions asso-
ciated with approved "acquacultiire/' projects.
EPA has no objection to this provision.
Section 304. For the ptirpose of assisting the States. EPA would be
required to publish (1) criteria of water quality; (2) guidelines for
effluent limitations; (3) information on treatment methods; (4) in-
formation on alternative waste treatment management techniques;
(5) information on methods to control pollution from non-point
sources; (6) guidelines for pretreatment standards for pollutants
which are not susceptible to treatment in treatment works; (7) guide-
lines for analysis of pollutants; and (8) guidelines concerning moni-
toring and reporting requirements, enforcement provisions, and acqui-
sition of information by the States.
EPA generally favors these information requirements. We would,
however, suggest amending Section 304 (c) to require that the national
standards of performance guidelines be issued at the same time as the
initial publication under Section 306(b)(l)(B) of the standards to
which the information relates. We would also suggest that the last
sentence of Section 304(f) (1) so as to conform with Section 307, to
which it relates, be amended as follows: "Guidelines under this sub-
section shall be established to control and prevent the discharge into
publicly owned treatment works of any pollutant which interferes
with, passes through, or otherwise is incompatible with such works."
We recommend that Section 304(b) (2) (B) be amended by adding
the following language after the word "competition": "the results
of stream modeling and sampling technology taking into account the
hydrology, climate, influence of other discharger's, documented stream
quality specifications, natural, physical, chemical and biological or
aesthetic values of the stream under the conditions of one year in ten
probable low flows and extremes of recorded temperature for the area
of discharge."
We also recommend that the performance time in Section 304(d) (1)
and 304(h) (1) be extended to 90 days; that the performance times in
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WATER—STATUTES AND LEGISLATIVE HISTORY 363
Sections 304(d) (2) and 304(i) be extended to one year; that the per-
formance times in Section 304(f) (1) and 304(h) (2) be extended to
six months.
Under Section 305, EPA would be required to prepare a report by
July 1, 1973, describing the quality of the Nation's waters, including
an inventory and analysis of all point sources. On July 1, 1974, and
each year thereafter, each State, would be required to submit a water
quality progress report.
EPA does not object to this provision. However, it should be noted
that the time constraints are very stringent for a report of this detail.
Section 306. EPA would establish Federal standards of performance
for new sources within specified categories of water pollution sources:
Twenty-eight such categories—primarily various manufacturing proc-
esses—are enumerated in the section. The required standard of per-
formance for these new sources would incorporate the greatest degree
of effluent reduction which the Administrator determines to be
achievable through application of the best available technology, and
would include, where appropriate, a standard permitting no discharge
of pollutants.
EPA generally favors this provision. We would point out, however,
that the procedure for delegating to the States the authority to en-
force new source performance standards should not be read to run
counter to any procedures under the Section 402 permit program.
Under Section 307, EPA would establish Federal effluent stand-
ards and prohibitions for toxic substances, and regulations estab-
lishing pretreatment standards for discharges of polhitants into pub-
licly owned treatment works.
Although we favor the control of toxic and hazardous materials, we
do not endorse the provisions of Section 307 relating to toxic sub-
stances. We believe toxic substances should be dealt with under H.R.
5276, an Administration proposal to amend the Federal Hazardous
Substances Act and Section 12 of the Federal Water Pollution Control
Act.
We favor the pretreatment provisions of Section 307, but recom-
mend that the performance time of Section 307(b) (1) be extended to
six months.
Section 308. Certain authorities are conferred upon EPA concern-
ing inspections, monitoring and entry.
EPA generally favors these provisions. We would, however, sug-
gest that Section 308(c) is confusing, since it states that only trade
secrets are entitled to confidentiality, but then refers to the "purpose
of Section 1905 of title 18." 18 U.S.C. 1905 covers much more than
trade secrets—it covers "trade secrets, processes, operations, style or
work, or apparatus or ... the identity, confidential statistical data,
amounts of source of any income, profits, losses, or expenditures . . ."
We urge that the bill be amended to extend confidentiality to "trade
secrets of such persons and all other information entitled to protection
under 18 U.S.C. 1905."
Section 309 provides a system of administrative orders, civil and
criminal actions, and civil and criminal penalties to redress violations
of effluent limitations, permits, discharge prohibitions, and standards
of performance under Titles III and IV. Under normal circumstances,
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364 LEGAL COMPILATION—SUPPLEMENT I
EPA is not for instituting enforcement actions unless the State con-
cerned fails to hike appropriate action: however, there is a provision
authorizing EPA to take direct enforcement action in a State during
any period in which State enforcement is ineffective.
EPA is in general agreement with this section but would suggest
the following technical changes:
Section 30!)(a) (2), relating to periods of federally assumed en-
forcement, points out a problem by referring (in line 17, page 92)
to the "failure of the State to enforce such permit conditions," includ-
ing Section 306 or Section 307 requirements, or just to those permits
embodying a Section 301 or 302 effluent limitations? The latter sec-
tions appear to be the only ones intended to be covered. If so, Section
309(a) (2), line 17, page 92, should be amended to cover "failure of
the State to enforce such limitations or permit conditions applying
such limitations effectively . . ."
It should be recognized that a State can, notwithstanding action by
the Administrator under Section 309(a)(2), continue to operate a
permit program approved under Section 402, including any cate-
gories or point sources as to which the requirement for Federal con-
currence has been waived. In any event, the EPA summary takeover
procedure under Section 309(a) (2) could conflict with that provided
in Section 402(c)(3), requiting a public hearing, at least when a
State was operating its own 402 program (which is to include en-
forcement—see Section 4-02(b) (7)). Indeed, other than with respect
to existing "more stringent" State standards incorporated into Section
301 (via Section 301 (b) (1) (€)), it is unclear whether Section 309(a)
(2) could ever come into play without a State Section 402 program
operating, since until that time presumably only EPA would be en-
forcing Section 301 or 302 through the Section 402 permit program.
To avoid conflict with Section 402(c) (3) hearing procedures, the
following new section (3) should be added to Section 309(a) as
follows:
"(3) If, prior to action taken by the Administrator under para-
graph (2) of this subsection, effluent limitations under Sections 301 or
302 of this Act are being applied by a State, under a program approved
under subsection (b) of Section 402 of this Act, then the procedure
provided in subsection (c) (3) of that section shall be followed by
. the Administrator in "acting to assume enforcement, under paragraph
(2) of this subsection."
Section 309(a) (3) requiring the Administrator to either issue an
order of compliance or sue whenever he finds a violation of Section
301 or 302 effluent limitations or Section 306, 308, or 402 of the Act
makes no mention of the 30-day notice required by Section 309 (a) (1)
with respect to Section 301 or 302 effluent limitations. In order to avoid
conflict with Section 309(a) (1), Section 309(a) (3) should be revised
as follows: "Whenever, on the basis of any information available to
him, the Administrator finds that any person is in violation of Section
301 or 302 of this Act... (etc.) he shall, subject to the requirements of
paragraph (1) of this subsection as to a violation of an effluent limita-
tion under Sections 301 and 302 of this Act, issue an order requiring
such person to comply with such section . . ."
With respect to Section 309(a) (4), the Senate Report states (at
page 63) that if a violation ". . . involves Section 308, the order will
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WATER—STATUTES AND LEGISLATIVE HISTORY 365
not take effect until the polluter has an opportunity to confer with
EPA.'' To avoid unnecessary confusion, the list of exceptions to the
"conferring" requirement presently set forth in the first sentence of
subsection 309(a) (4) should be replaced with a single reference to
Section 308 as the section for which a violation order must be preceded
by an opportunity to confer. Section 309(a) (4) would then read as
follows:
" (4) An order issued under this subsection relating to a violation of
any requirement of Section 308 of this Act shall not take effect until
the person to whom it is issued has had an opportunity to confer with
the Administrator or his delegate concerning the alleged violation."
As presently drafted, Sections 309 (b), (c) and (d) make no refer-
ence to enforcement of orders issued by the Administrator under the
emergency power granted him by Section 504 (a) of the Act. Nor is
there any provision for enforcement of such orders made in Section
504. Enforcement sanctions, including criminal and civil penalties,
should be available in order to make the Administrator's emergency
powers meaningful. Therefore, we suggest adding a reference to Sec-
tion 504(a) orders to the enforcement provisions of Section 309 as
follows:
"(b) The Administrator shall commence a civil action for appropri-
ate relief, including a permanent or temporary injunction whenever
any person—(1) violates or fails or refuses to comply with any order
issued under subsection (a) of this section or any order issued under
subsection (2) of Section 504 of this Act."
A similar reference to Section 504(a) should be made in the list of
violations in Sections 309 (c) and (d) providing for criminal and civil
penalties (as will be discussed below, these sanctions should, in any
event, be patterned more closely after subsection (b)).
In addition to inclusion of Section 504(a) orders. Section 309(b),
(c) and (d) should be made to conform to each other as much as possi-
ble to avoid any unintended distinctions being drawn between viola-
tions subject to injunctive relief, criminal and civil penalties. Looking
first at Section 309(b), subparagraph (b) refers to violations of Sec-
tion 301, 302, 306 and 307 which have already been listed in subpara-
oraphs (2) ;i?)d (3) of Section 309(b). This is unnecessarv and confus-
ing, and might be read to nullify the restrictions on enforcement of
Section 301 and 302. Subparagraph (6) should be amended as follows:
"(6) violates a permit, or condition thereof, under Section 402
of this Act."
Section 309(b) (5) exempts no-permit discharge violations from en-
forcement until July 1, 1973. This is intended to encourage prompt
action by EPA in processing permit applications (see Senate Report,
]). 64). ITovt-evor. omitting the exemption from the criminal and civil
penalties in Section 309(c) and (d) certainlv does not reinforce the
pre~siire on EPA to process applications and also will not encourage
industry to file early since they can get prosecuted anyway. Therefore,
this exemption should be included in Section 309(c) and (d).
An additional inconsistency among these provisions appears in Sec-
tion 309(d) where the violations subject to penalty are listed in more
abbreviated form and some differences can be discerned as to Sections
301, 302 (reference to federally-assumed enforcement omitted) and
307 (reference to pretreatment .standards omitted).
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366 LEGAL COMPILATION—SUPPLEMENT I
In sum, Section 309(b) should be rewritten to delete the portion of
Section 309(b)(6) referred to above, and Section 309(c) and (d)
should then be made to conform to subsection (b) unless different
treatment is specifically intended.
Section '511 reenacts, with some modifications, present Section 11
dealing with oil pollution. It also includes within its ambit, hazardous
substances now dealt with in Section 1'2 of this Act. The latter is de-
fined to mean any substance designated by the Administrator of 10PA,
other than oil, which may present an imminent and substantial danger
to the public health or welfare (including fish, shellfish, wildlife, shore-
linos and beaches) when discharged uin any quantity" into applicable
waters.
We generally favor the provisions of Section .'111.
We do, however, have the following comments and recommenda-
tions :
/. Section, -ill (a) (3)
The question of whether this section applies to continuous discharges,
or only to spills, should be clarified. The intent appears to be to apply
it only to spills. Otherwise, the regulation of hazardous substances
under this section, and toxic substances under Section 307(a), overlap
and conflict. Thus, for example, a heavy fine is established for any
discharge of certain hazardous substances (Section 311 (b) (2) (C) j,
although under Section 307(a) the same substance might be classified
as "toxic" and subject to an effluent limitation which permits some con-
tinuous discharge.
We believe this section should apply only to spills and that the pres-
ent definition of "discharge" in 311 (a) (2) should be changed as
follows: " 'discharge' includes, but is not limited to, any spilling, leak-
ing, pumping, pouring, emitting, emptying or dumping, but shall not
include any discharge that is in substantial compliance with an effluent
limitation established under Sections .'501, 302, '506 or 307, or is in
substantial compliance with the conditions of a permit issued under
Section 402 of this Act."'
£. Section JU(b) (2)
Section 311 (b) (2) rests on a misconception as to the nature of
"removal" of hazardous substances. The section requires EPA to deter-
mine whether any listed hazardous substance "is subject to removal
under this section.'1 The term "removal'' is defined in an extremely
broad fashion by 311 (a) (9) to include not only removal in the ordi-
nary sense, but also "the taking of such other actions as may be, neces-
sary to minimize or mitigate damage to the public health or wel-
fare. ..." This would include, for example, evacuation of a population,
or closing down a public water supply system. Tinder this definition
of removal, every "hazardous substance" would be "subject to removal"
under many, if not most circumstances. Indeed, even under a more, re-
stricted concept of "removal," if the circumstances are, right just about
any hazardous substance can be removed. Witness, for example, the
case of the small lake in Ohio into which a quantity of endrin was
dumped; removal was accomplished by filtering the entire water vol-
ume through a carbon filter. Or in the case of some spills, "removal''
might be accomplished bv diking.
[p. 162]
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WATER—STATUTES AND LEGISLATIVE HISTORY 367
In light of these considerations, 311 (b) (2) (B) commits a basic
error in assuming that there can be a general determination for each
hazardous substance as to whether it is "subject to removal." Removal
must depend on the particular circumstances of the spill, as well as
on the type of substance involved. Accordingly, 311 (b) (2) should be
amended to make the penalty which it imposes dependent on the degree
to which the substance was removed or removable in the circumstances
of the particular spill for which the penalty is imposed.
There is another problem with 311 (b) (2) as drafted. It imposes a
maximum penalty not to exceed $100 per gross ton or $14,000,000 for
vessels and $8,000,000 for onshore and offshore facilities regardless of
the amount discharged. Yet 311 (b) (4) requires the President to issue
regulations which would determine that certain amounts of hazardous
substances are not harmful. It would make no sense to impose fines for
a discharge of an amount which EPA regulations said was not harm-
ful. In addition, the maximum penalties proposed are unrealistic and
would be more meaningful if they followed those proposed in S, 2770.
In view of this problem and that relating to removability, we would
suggest amending Section 311 (b) (2) (ii) to read as follows:
"(B) The Administrator shall, as part of any determination under
subparagraph (A) of this paragraph, establish the rate of penalty,
not to exceed $5,000 per barrel (or equivalent unit established by regu-
lation by the Administrator) of discharge, to be imposed under sub-
paragraph (C) of this paragraph, for each hazardous substance desig-
nated. He shall establish such penalty based on the toxicity, degrad-
ability, and disposal characteristics of such substance.
"(C) The owner or operator of any vessel, onshore facility or off-
shore facility from which there is discharged any hazardous substance
designated under subparagraph (A) of this paragraph, shall be liable
subject to the defenses to liability provided under subsection (f) of this
section, to the United States for the penalty per barrel of such sub-
stance discharged established under subparagraph (B) of this para-
graph, or $50,000 per discharge, whichever is greater. Such penalty
shall be subject to reduction to the degree that the owner or operator
can prove to the satisfaction of the Administrator that the hazardous
substance discharged was in fact removed or appropriate restoration
actions were taken, and 110 such penalty shall be imposed for any dis-
charge of an amount determined not to be harmful under regulations
issued pursuant to paragraph (4) of this subsection."
3. Section 311(1) (6)
Following the provisions of the present Act, this provision assigns
to the Coast Guard responsibility for assessing a civil penalty of up to
$10,000 for discharges of oil and hazardous substances. The present
Act, however, only covers discharges of oil. Expansion of the section
to hazardous substances may make it desirable for EPA to be the
agency with authority to impose a fine in certain cases, as, for example,
discharges of hazardous substances from various industrial facilities.
The Coast Guard, of course, would remain the most qualified agency
where there are discharges from vessels or terminals. Section 311 (b)
(6) should be amended to give the President authority to allocate the
authority among EPA and the Coast Guard, as follows:
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368 LEGAL COMPILATION—SUPPLEMENT I
"(6) Any owner or operator of any vessel, onshore facility, or off-
shore facility from which oil or a hazardous substance is willfully or
negligently discharged in violation of paragraph (2) of this subsec-
tion shall be, assessed a civil penalty by the appropriate agency of the
United States Government as determined by the, President of not
more than $10,000 for each offense. No penalty shall be assessed unless
the owner or operator charged shall have been given notice and oppor-
tunity for a hearing on such charge. Each violation is a separate
offense. Any such civil penalty may be compromised by such agency.
In determining the amount of the penalty, or the, amount agreed upon
in compromise, the appropriateness of such penalty to the size of the
business of the, owner or operator charged, the effect on the owner or
operator's ability to continue in business, and the gravity of the viola-
tion, shall be considered by such agency. The Secretary of the Treas-
ury shall withhold at the request of such agency the clearance re-
quired by section 4197 of the Revised Statutes of the United States,
as amended (4(> U.S.C. !)1). of any vessel the owner or operator of
which is subject to the foregoing penalty. Clearance may be granted
in such cases upon the filing of a bond or other surety satisfactory to
such agency."
.'f. Section .lll(d)
Section 811 (d) provides the President with authority to take sum-
mary action in the event of a marine disaster involving a substantial
threat to the public health or welfare. This section is brought into
play if there is an actual or imminent discharge of "large, quantities''
of oil or hazardous substances from a vessel. The word "significant"'
should be substituted for the word "large" (line 1(5) to insure appli-
cation of the section to hazardous substances which may present a
substantial threat to the public health or welfare even in small
quantities.
r>. Section .ill (p)
Section 311 (p), which requires vessels to carry evidence of financial
responsibility for liabilities under 311, is made effective by 311 (p) (2)
one year after the effective date of the Water Quality Improvement
Act, of 1970. This makes sense with respect to liability for oil spills,
which was established by the 1970 Act, but it does not make sense with
respect to liability for hazardous substance spills, which would be
established by the present legislation. Accordingly, the, first sentence
of 311(p) (2) should be, amended to read as follows: "The provisions
of paragraph (1) of this subsection shall be effective one year after
the effective date of the Water Quality Improvement Act of 1970 with
respect to liability for discharges of oil, and one year after the effec-
tive date of this section with respect to liability for discharges of
hazardous substances.''
Section 311 (p) (4-) should be deleted as this study was conducted
in accordance with the Water Quality Improvement Act of 1970 and
submitted to Congress in April 1971.
Section 312 continues present Section 13 dealing with control of
sewage from vessels, with an amendment under which Federal pre-
emption of State regulations would apply to vessels which achieve
compliance with Federal standards and regulations for marine sani-
[p. 164]
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WATER—STATUTES AND LEGISLATIVE HISTORY 369
tation devices after their promulgation but prior to their effective date,
and an amendment whereby all discharges may be prohibited if neces-
sary for "the protection and enhancement of the quality" of any
water.
We support these amendments.
Section 313 amends present section 21 (a) dealing with control of
pollution from Federal activities to require compliance with applica-
ble Federal, State and local requirements (except as exempted by the
President).
We support these amendments.
Under Section 314, States would be required to prepare special
plans for controlling and abating pollution of publicly owned fresh
water lakes; $300 million would be authorized over a three-year pe-
riod for grants to States for such purposes.
We strongly oppose these provisions. We can see no valid reason
to separate from the national program bodies of water or categories
-of water, such as fresh water lakes. Those lakes, just as other bodies
of water can be more effectively addressed under our comprehensive
programs of grants, research, demonstrations, technical assistance.
planning and regulations. There is no separate technology unique to
pollution control in fresh water lakes to justify the separate address
to these problems Section 314 would authorize.
We recommend these provisions be deleted.
Section 315. The National Academies of Sciences and Engineering
are directed to study and report on all aspects of the total social and
economic effects of either achieving or not achieving the effluent limi-
tations and goals for 1981.
EPA agrees that the social and economic effects of achieving or
failing to achieve the limits and goals set by the bill should be studied
and ascertained. However, we would suggest that the National Acad-
emies of Sciences and Engineering are not, by themselves, the appro-
priate bodies to address all of the broad social questions involved.
H.R. 11896 calls for the submission of the report of such study to
the Congress not later than two years after the date of enactment.
It is EPA's view that any such studies conducted should in their final
analysis appropriately include the maximum information and data
that will be developed pursuant to planning and other activities the
bill would authorize during the period 1971-1976. Although a pre-
liminary report might be appropriate by such date, it is our view that
the final report should not be required prior to 1975.
Title IV—Permits and Licenses
Section 401 is essentially the same as the present section 21 (b).
However, the grandfather clause—Section 401 (a) (7)—has been
amended to achieve a result exactly the opposite of what was intended
by the Senate Committee. The Senate Committee report explains that
the intent of the amendment was to exempt Refuse Act permits (or
equivalent permits under the new Act) from the grace period, where
construction of the facility started before April 3, 1970. The Report
explains (at p. 69) : "Certification will be required for all such permits
from the date of enactment on, regardless of the time construction of
the facility began."
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370 LEGAL COMPILATION—SUPPLEMENT I
However, as drafted the new Section 407(a) (7) does not exempt
Kefuse Act or equivalent permits from the grace period. Instead, it in-
cludes such permits in the grace period, and then exempts them from
the requirement that the permit expires on April 'A, 197:? unless a wa-
ter quality certification is obtained.
.Section 401 (a) (7) should be amended to delete the parenthetical
phrase following the word "permit" in line 9 (p. 142 of the bill), and
insert the same parenthetical phrase in line 7 (p. 142 of the bill) fol-
lowing the word "permit."
Section 401 (d) certification under Section 401 are to assure com-
pliance with Sections 301 and .'502 and "any other applicable water
quality requirement in such State." The scope of the catehall phrase is
not defined in Section 401. and the question arises as to whether certifi-
cation by the State is to include certification with respect to discharges
from point sources to meet the provisions of Section 306 or 307. Sec-
tion 401 (d) provides that any certification is to set forth the effluent
limitations necessary to assure that the applicant for a Federal license
will comply not only with Sections 301 or 302 but also Sections 30(i
or 307 or any more stringent requirement under State law as provided
for in Section 510 of the Act. Therefore, the intent of the drafters ap-
parently was to allow the States to certify as to Section 306 or 307 re-
quirements or any applicable State requirement saved under Section
510. This intention would be more clearly expressed if the term "ap-
plicable water quality requirement'' was defined in a new subsection
(f) which would track the present language of subsection (d) as
follows:
"(f) The term 'applicable water quality requirement' as used in this
section means any applicable effluent limitations under Section 301 or
302 of this Act, or prohibition, effluent standard, or pretreatment
standard under Section 307 of this Act, or any more stringent water
quality requirement under State law as provided in Section 510 of this
Act."'
Present subsection (d) should then be shortened to read as follows:
"(d) Any certification provided under this section shall set forth
any effluent limitations and monitoring requirements necessary to
assure that any applicant for any Federal license or permit will comply
with any applicable water quality requirement and shall become a
condition on any Federal license or permit subject to the provisions of
this section."
Section 402, entitled "National Pollutant Discharge Elimination
System," directs the Administrator to issue permits for the discharge
of pollutants into navigable waters, the territorial sea, the waters of the
contiguous /one, or the oceans, provided such discharges meet appli-
cable requirements under the Act (in particular, the requirements of
Sections 301 and 302 dealing with effluent limitations, and the require-
ments of Sections 306 and 3<>7 dealing with new source stand-
ards uii'l toxic substances). Section 4(12 in effect continues the Permit
Program heretofore carried out under the Refuse Act of 185)!), except
that permits would be issued by EPA (under the Federal Water Pollu-
tion Control Act) rather than by the Corps of Engineers. There is :i
savings clause for any permits issued under the Kefuse Act after
June 30,1971.
[p. 166]
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WATER—STATUTES AND LEGISLATIVE HISTORY 371
permit-issuing authority under Section 402 applies to all dis-
ss of pollutants into navigable waters of the United States, the,
The
charges ^ ^
contiguous zone and the ocean, except discharges from vessels and
other floating craft into the contiguous zone and the oceans. The ex-
cepted class of discharges would be regulated by a separate piece of
legislation.
Any application for a permit for the discharge of dredged spoil into
navigable waters would be required to be accompanied by a certificate
from the Secretary of the Army that the chosen disposal area is the
only reasonably available alternative. The permit would be required
to be issued unless the Administrator of EPA finds that the matter to
be disposed of will adversely affect municipal water supplies, shellfish
beds, wildlife, fisheries, or recreation areas.
The Administrator would be required to promulgate guidelines es-
tablishing minimum monitoring, reporting, and enforcement provi-
sions for State permit programs; thereafter any State desiring to es-
tablish its own permit program as part of the National System would
be required to submit a complete description of its proposed program
for the Administrator's approval. The Administrator would be re-
quired to approve each State program provided certain conditions are
met designed to ensure the integrity of the national program; upon ap-
proval of a State program, the Administrator would suspend the issu-
ance of permits for discharges into the waters of that State. There-
after, the Administrator would be authorized to withdraw approval
of the State program if he determines that the State it not administer-
ing it in accordance with applicable requirements and if, after notice,
appropriate corrective action is not taken. In addition, each State hav-
ing an approved program would be required to transmit to the Admin-
istrator copies of all permit applications received by it. The Admin-
istrator may veto the issuance of any permit if he objects Avithin 60
days; however, the Administrator would be authorized to waive this
overview function (for permits for discharges into inland navigable
waters) with respect to categories of point source discharges desig-
nated by him at the time of his approval of a State program. Approval
of a State permit program would not preclude the Administrator from
initiating enforcement actions with respect to permits and effluent lim-
itations within the preview of such State program.
EPA favors most aspects of the permit program which would be
provided by section 402. We believe that this section preserves the mo-
mentum of the Federal permit program already underway. It provides
an effective mechanism whereby effluent limitations and other limita-
tions and requirements can be applied in a clear, direct and orderly
way to municipal and industrial dischargers. We do have problems
with some of the provisions of section 402, which are described below.
We agree that Federal overview of State permit programs is es-
sential after permit issuing authority has been delegated to the States.
However, we question whether the delegation and review procedure
provided in the bills would be effective and whether it would allow
for a meaningful delegation of authority and responsibility to the
States.
We recommend that the Federal overview after permit-issuing
authority has passed to a State consist of Federal authority to with-
[p. 167]
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372 LEGAL COMPILATION—SUPPLEMENT I
draw the permit issuing authority in whole- or in part, as appropriate
Partial withdrawal shemlel be* authorized with ivspeet to categories
e>r classes of sources, in terms of industrial or other groupings
river basin or area classes, or types of discharges considered in
terms of volumes eir any other appropriate' class e>r category.
Sue'h Federal overvie-w would alleiw an appropriate1 Federal re-
sponse' and bae'kup. without the' necessity for total withdrawal of
State-issuing authority on the one hand or permit-bv-permit review
e>n the' other.
We' woulel also rce-ommeMiel that section 402 be amendeel to authorize'
the Feeleral government, in cases involving revocation of State pcr-
mit programs, to review any permits within the revoked category tin*'
have bee'n issuenl during the' !>0 days preceeding the invocation. This
woulel assure' op])ortunitv to correct anv pe'rmit e'e>nelitie)iis if nee'es-
sary. but woulel alse> assure industry that there woulel be- a e-ut-off point
regarding any possible1 review of newly issued permits.
See'tiem 402 of the' bill, dealing with permits, does not have a pro-
vision at present fe>r an administrative1 review of permit issuance
Without such a provision, whenever permit conditions are challenged
the1 e'ourts will take tie noro revie-w. It is essential that permits issue'ei
by EPA have behind them the1 presumptions establisheel by a full ad-
ministrative1 re'VH'w proe'edure when teste'd in court.
Ae'cordingly, it is re-e^ommeneled tliat provision be> included whereby
an a])])licant for a permit is afforde-d an opportunity for an admin-
istrative' he-aring in the State1 where the source is locatenl. The record
of sue'h hearing we>ulel provide1 the appropriate basis for judie'ial re-
view, without the necessity for d<> noro review. Provision should alse)
l>e made for issuanev and e'ontinusition of a temporary permit, Avhere
a])propriate, during hearings ami judie'ial ivview.
See-tion 402(1) requires that e-opies e>f the permit application be
made public. Nothing is said as te> pre>te'e'tion of trade se'crets or confi-
dential e'ominercial or financial information. It woulel see'in appropri-
ate te> accord tlie1 same de-gree1 of confidentiality to permit application
elata as is accordeel by se'ction ;'>OS(c) to information obtaineel by in-
spections and reports.
Section 40.') provieles that no pe'rmit under seetiem 402 for elischarges
inte) the1 territorial se'a. contiguous zone1 or oevan may be' issueel except
in compliance with guideline's for determining the' degradation of such
waters. These guidelines would take1 mte> aeveiunt the e'ffevt of pol-
lutant disposal, in partiYular volumes and e-oncentrations, on human
health and welfare1, marine life, ami esthe'tic, re'creational and economic
values.
We1 generally favor this provision.
See-tion 404, ''Pe'rmits for Direlged or Fill Material," woulel let the
Corps issue permits for dreelge or (ill in navigable wate'rs subject to
EPA e'riteria and review, but im rece>mmenelation e>f EPA need be1
follenveel whe're- the1 See-retary e>f the Army eletermines "there is no
economically feasible1 a lie1 rnativc reasonabl v a\'ailable." The bill woulel
allow the Secretary to govern Feeleral elreelge- ami fill projects by regu-
lations rather than permits.
We are strongly oppewel te> this section. We be'lieve' that all permits
for dise-harges into navigable wateM's or the oce-nns should e'ither be1
| p. 1P.81
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WATER—STATUTES AND LEGISLATIVE HISTORY 373
issued by EPA or subject to EPA review and concurrence with respect
to environmental considerations. Moreover, we believe that it is overly
complex and would be very difficult to administer.
Title V—General Provisions
Section 501 contains the administrative provisions formerly con-
tained in Section 22; Section 502 contains an expanded series of defini-
tions; Section 503 continues the Water Pollution Control Advisory
Board formerly provided for in Section 9.
Section 504, entitled "Emergency Powers,'' provides that upon re-
ceipt of evidence that a pollution source is presenting an imminent or
substantial cndangerment to the health or welfare of persons or to
the marketability of shellfish products, the Administrator shall issue
orders requiring immediate abatement of such pollution source.
Although we generally favor the objectives of Section 504, requir-
ing the Administrator to act simply on receipt of evidence "that human
health or welfare or economic well-being is endangered" is an unwise
and unnecessary step that does not afford the due process of law to
the parties involved. We would recommend the following language in
substitution for the language .of Section 504 of the bill:
"Section 504. Notwithstanding any other provision of this Act, the
Administrator, upon his determination that any discharge or com-
bination of discharges into any of the waters specified in Section
304(a) presents an imminent and substantial danger to the health or
welfare of any person or persons, or to water quality, may request the
Attorney General to bring a suit on behalf of the United States in the
appropriate United States district court to enjoin immediately any
person contributing to the alleged pollution from further discharges
causing such danger and to take such other action as may be
necessary.
Section 505, entitled "Citizen Suits," provides that any person may
commence a civil action (1) against any person alleged to be in viola-
tion of an effluent standard, limitation or administrative order issued
under the Act, or (2) against the Administrator when it is alleged that
he has failed to perform any non-discretionary act or duty under the
Act. Safeguards are provided to prevent unnecessary or frivolous
actions.
We generally agree with the provisions of Section 505. However, we
would recommend that provisions allowing unlimited public interven-
tion in all government litigation Section 505(b) (B) be deleted.
Section 5Q7, entitled "Employees Protection," provides that no per-
son shall discharge or in any other way discriminate against any em-
ployee of an alleged violator by reason of the fact that such employee
has instituted a proceeding under the Act, or has testified or is about
to testify in any proceeding under the Act. Alleged violators of this
Section would be investigated by the Secretary of Labor.
Section 508, entitled "Federal Procurement," provides generally
that no Federal agency may enter into any contract for the procure-
ment of goods, materials or services with any person who is convicted
of an offense under the Act, when such contract is to be performed at
any facility at which the violation giving rise to the conviction
occurred.
Section 510. The Act would preserve the authority of States and
their political subdivisions to adopt and enforce their own water pol-
[p. 169]
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374 LEGAL COMPILATION—SUPPLEMENT I
lution control standards, limitations, requirements and prohibitions,
except those which are less stringent than those established under the
Act.
We generally support these provisions.
Section 511 deals with the effect of the bill on other existing statutes.
In two respects the language of the section presents difficulties.
First, Section 511 (b) would, in effect, waive the applicability of the
Fish and Wildlife Coordination Act to activities covered by the Fed-
eral Water Pollution Control Act, except for three limited provisions
specifically set out in the subsection. We are unaware of any special
difficulties to which the Fish and Wildlife Coordination Act require-
ments have arisen and accordingly we recommend that Section 511 (b)
be deleted from the bill.
Second, Section 511 (d) (2) overlooks the fact that many States, for
various reasons, may waive the certification. The effect of 511 (d) (2)
as drafted would probably be to require compliance with NEPA for
Kefuse Act or Section 402 permits, wherever State certification was
waived.
In addition, EPA concurrence in a State-issued permit could be
regarded as a significant Federal action requiring compliance with
NEPA, unless 511 (d) is drafted to cover such action.
Section 511 (d) (2) should be amended to read as follows:
"(2) by the issuance of a permit under Section 402 of this Act, or
any license of permit pursuant to Section 13 of the Act of March 10,
1899, for the operation of any activity which may result in any dis-
charge into the navigable waters of the United States."
Section 514 provides for the appointment of an Effluent Standards
and Water Quality Information Advisory Committee, which would
be required to advise the Administrator regarding standards and
information.
We do not favor the legislative establishment of such an advisory
committee. We would prefer administrative flexibility in obtaining
advice from scientists, economists, environmentalists, and representa-
tives of other disciplines.
Section 515 calls for an annual report to the Congress on the meas-
ures taken in implementing the Act and of the costs involved in carry-
ing out the Act, including an assessment of waste treatment construc-
tion needs.
We support these provisions.
Section 516 provides for general authorizations.
In this regard, we would point out that EPA has not made a detailed
estimate of the costs necessary to implement the provisions covered by
this Section.
Section 517 provides for short title, "Federal Water Pollution Con-
trol Act".
Section 3 calls for an oversight study by the Comptroller General.
We have no objection.
[p-
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WATER—STATUTES AND LEGISLATIVE HISTORY 375
Section 4 calls for an international trade study by the Secretary of
Commerce.
We feel that such a study should include EPA as a joint participant.
Section 5 calls upon the President to enter international agreements
to apply uniform standards and controls over pollutants.
We support this provision.
Section 6 would amend the Small Business Act to provide for loans
to small businesses to assist in the purchase of treatment control equip-
ment needed to comply with standards and requirements. $800 million
is authorized to be appropriated for this purpose.
We oppose this provision.
Section 7. The President acting through the Attorney General is
to study the feasibility of establishing an Environmental Court.
We see no need for such a court system.
Section 8 authorizes a study by the President of the relationships
between various national goals being set by statutes and otherwise, and
requests as recommendation as to how these should be reconciled.
We support the concept of periodic reviews of the relationships of
the various national goals. We would point out that the review of
relationships and weighing of priorities among competing national
goals are already being carried out. Eesults emerge in the form of
the President's legislative program, the annual budget, and special
messages to the Congress. Accordingly, we see no necessity for addi-
tional authorization for such studies.
Section 9 calls upon the President to conduct a study to determine
how the resources of the Federal Government can best be used to
carry out the purposes of this Act.
We have no objection to this provision.
Section 10 provides for the establishment of the Environmental
Financing Authority corresponding to the Administration's proposal
inthis.regard (H.E. 5970).
We fully support this provision. It would permit municipalities
which would otherwise be unable to market bonds on the open market,
to obtain financing through the mechanism of EPA and thus be able
to provide its non-Federal share of the cost of construction of needed
waste treatment plants.
Conclusion
Although we endorse many of the purposes of the bill, we neverthe-
less have numerous difficulties and objections described above. Ac-
cordingly, we would not recommend that the bill be enacted unless it
is amended in accordance with the views and recommendations above.
The Office of Management and Budget advises that it concurs in
the views set forth in this letter and that enactment of H.R. 11896
is recommended if amended as suggested herein.
Sincerely,
WILLIAM D. EUCKELSHATJS,
Administrator.
[p- 171]
-------
376 LEGAL COMPILATION^SUPPLEMENT I
EXECUTIVE OFFICE OF THE PRESIDENT,
OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., December 13, 1971.
Hon. JOHN A. BLATNIK,
Chairman, Committee on Public Works,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : This is in response to your letter of Novem-
ber 23, 1971 requesting the views of the Office of Management and
Budget 011 H.K. 11895 and H.R. 11896, identical bills to amend the
Federal Water Pollution Control Act.
We sincerely appreciate the opportunity you have provided the
Administration, as well as other interested parties, to comment upon
this very important legislation. This Administration is fully com-
mitted to the development of a vigorous and effective water quality
protection program, and we strongly urge the- Committee to give
careful consideration to the broad policy objectives and considerations
set out in the December 7, 1971 testimony of Chairman Train, Chair-
man McCrackcn, and Administrator Ruckelshaus.
The Environmental Protection Agency also has submitted to your
Committee a report (copy enclosed), outlining the Administration's
specific recommendations with respect to the detailed provisions of
the legislation. The Office of Management and Budget fully concurs
in the views set forth in that report. Accordingly, before the legisla-
tion is reported by your Committee, we strongly recommend that it
be amended to reflect the recommendations of the Environmental
Protection Agency. If the bill is so amended, we would support its
enactment.
Sincerely,
GEORGE P. SHULTZ, Director.
Enclosure.
[p- 172]
-------
WATER — STATUTES AND LEGISLATIVE HISTORY
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EXISTING LAW
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the prevention and control of water pollution; and en-
courage compacts between States for the prevention and
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(b) the consent of the Congress is hereby given to two
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compacts, not in conflict with any law or treaty of the
United States, for (1) cooperative effort and mutual as-
sistance for the prevention and control of water pollu-
tion and the enforcement of their respective laws relating
thereto, and (2) the establishment of such agencies, joint
or otherwise, as they may deem desirable for making ef-
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agencies, and institutions, private agencies and institutions,
and individuals in the conduct of, and promote the coordi-
nation of, research, investigations, experiments, demon-
strations, and studies relating to the causes, control, and
prevention of water pollution. In carrying out the fore-
going, the Administrator is authorized to —
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problem of water pollution confront
jtate agency, community, municipality
with a view of recommending a solu
i.
itrator shall, in cooperation with othe
local agencies having related responsi
disseminate basic data on chemical
ical water quality and other informa
h data or other information relate t'
i the prevention and control thereoi
out the provisions of this section th
CP i" ^ C
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amounts of physical, chemical, an
utants in order to restore and maintai
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[p. 182]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
387
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e « ?»>
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[p. 183]
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388
LEGAL COMPILATION—SUPPLEMENT I
.5 s o-<= <3 "S.o ° £fo 5
.2-2 o^'S S.2
slH'P^lllMF
|S.S^^'OS«^ ^^
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[p. 184]
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WATER—STATUTES AND LEGISLATIVE HISTORY
389
[p. 185]
-------
390
LEGAL COMPILATION—SUPPLEMENT I
S
fc
I
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a
for such
j ^j
3 £
|l B
g-B ft
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f* ^ -"->
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and
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specifications an
e va i
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•'(A) enge in such research
and demonstrations as he deems
to the removal of oil from any w
vention and control of oil pollut
"(B) publish from time to tim
activities; and
"(C) from tim
Federal Register
formation on
as dispersants
S'-H S -
^ -'
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on, th Ad
ake gra
s and in
ll enga
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to r
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ate r
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l repo
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ve date
p
r
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enter
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(j)
studi
prop
boar
disc
and
wast
stall
shall
studi
fecti
[p. 186]
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WATER—STATUTES AND LEGISLATIVE HISTORY
391
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[p. 187]
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392
LEGAL COMPILATION—SUPPLEMENT I
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g^j^ s,» o.
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[p. 188]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
393
plement existing information in representative estuaries
and estuarine zones; and identify the problems and areas
where further research and study are required.
(3) The Secretary shall submit to the Congress a final
report of the study authorized by this subsection not later
than three years after the date of enactment of this sub-
section. Copies of the report shall be made available to all
interested parties, public and private. The report shall in-
clude, but not be limited to —
(A) an analysis of the importance of estuaries to
the economic and social well-being of the people of
the United States and of the effects of pollution upon
the use and enjoyment of such estuaries ;
(B) a discussion of the major economic, social, and
ecological trends occurring in the estuarine zones of
the Nation ;
(C) recommendations for a comprehensive nation-
al program for the preservation, study, use, and de-
velopment of estuaries of the Nation, and the respec-
tive responsibilities which should be assumed by
Federal, State, and local governments and by public
and private interests.
(4) There is authorized to be appropriated the sum of
$1,000,000 per fiscal year for the fiscal years ending June
30, 1967, June 30, 1968, June 30, 1969, June 30, 1970, and
June 30, 1971 to carry out the purposes of this subsection.
(5) For the purpose of this subsection, the term "es-
tuarine zones" means an environmental system consisting
of an estuary and those transitional areas which are
consistently influenced or affected by water from an es-
tuary such as, but not limited to, salt marshes, coastal and
[p. 189]
-------
394
LEGAL COMPILATION—SUPPLEMENT I
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WATER-—STATUTES AND LEGISLATIVE HISTORY
395
[p. 191]
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396
LEGAL COMPILATION—SUPPLEMENT I
i
HH
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00
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WATER—STATUTES AND LEGISLATIVE HISTORY
397
!£•*
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LEGAL COMPILATION—SUPPLEMENT I
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[p. 194]
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WATER—STATUTES AND LEGISLATIVE HISTORY
399
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LEGAL COMPILATION—SUPPLEMENT I
S3 55
40 -5*.
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[p. 196]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
401
-------
402
LEGAL COMPILATION—SUPPLEMENT
lltiii
— ^
EXISTING
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5O 03 J_, - -,
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WATER—STATUTES AND LEGISLATIVE HISTORY
403
. .
[p. 199]
-------
404
LEGAL COMPILATION—SUPPLEMENT
*!§!e
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[p. 200]
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WATER—STATUTES AND LEGISLATIVE HISTORY
LS'3S-9.S3S >** a
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[p. 201]
525-310 O - 73 - 27
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406
I-H1
*»&*
EXISTING LAW
O 2 ~ «H
«H-« p^
rj r^3 ° •"
tri H
Administrator shall approve an;
and control of water pollution
;he State water pollution control
an interstate agency, by such a
•3 § Vs
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WATER—STATUTES AND LEGISLATIVE HISTORY
407
I
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[p. 203]
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408
LEGAL COMPILATION—SUPPLEMENT I
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[p. 204]
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WATER—STATUTES AND LEGISLATIVE HISTORY
409
£~ a
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LEGAL COMPILATION—SUPPLEMENT I
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WATER—STATUTES AND LEGISLATIVE HISTORY
411
03 p.-, O 4> I 4> M
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[p. 207]
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412
LEGAL COMPILATION—SUPPLEMENT I
£
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WATER—STATUTES AND LEGISLATIVE HISTORY
413
§ S e ' § I 8
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414
LEGAL COMPILATION—SUPPLEMENT I
§
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[p. 210]
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WATER—STATUTES AND LEGISLATIVE HISTORY
415
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416
LEGAL COMPILATION—SUPPLEMENT I
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[p. 212]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
417
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[p. 213]
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418
LEGAL COMPILATION—SUPPLEMENT I
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[p. 214]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
419
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[p. 215]
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420
LEGAL COMPILATION—SUPPLEMENT I
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[p. 216]
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WATER—STATUTES AND LEGISLATIVE HISTORY
421
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LEGAL COMPILATION—SUPPLEMENT I
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[p. 218]
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WATER—STATUTES AND LEGISLATIVE HISTORY
423
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LEGAL COMPILATION—SUPPLEMENT I
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WATER—STATUTES AND LEGISLATIVE HISTORY
425
O £> .£! +> 14 i h ' L '.
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LEGAL COMPILATION—SUPPLEMENT I
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WATER—STATUTES AND LEGISLATIVE HISTORY 427
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LEGAL COMPILATION—SUPPLEMENT
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WATER—STATUTES AND LEGISLATIVE HISTORY
429
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WATER—STATUTES AND LEGISLATIVE HISTORY
431
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(9) "contiguous zone" means the en
lished or to be established by the Umt(
article 24 of the Convention on the len
the Contiguous Zone ;
(10) "onshore facility' means any i
ing but not limited to, motor vehic
stock) of any kind located in, on, or i
within the United States other than si
(11) "offshore facility" means any
kind located in, on, or under, any o
waters of the United States other tni
public vessel ;
( 12) "act of God" means an act occa
anticipated grave natural disaster ;
(13) "barrel" means 42 United hta
degrees Fahrenheit.
«
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-------
WATER—STATUTES AND LEGISLATIVE HISTORY
501
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[p. 297]
525-310 O - 73 - 33
-------
502
LEGAL COMPILATION—SUPPLEMENT I
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[p. 298]
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WATER—STATUTES AND LEGISLATIVE HISTORY
503
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504
LEGAL COMPILATION - SUPPLEMENT I
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[p. 300]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
505
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[p. 301]
-------
506
LEGAL COMPILATION SUPPLEMENT I
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-------
WATER — STATUTES AND LEGISLATIVE HISTORY
507
5 £3^48 S-
IJ
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n -
fare of the United States, includin
fish, shellfish, and wildlife and th
shorelines and beaches of the Unite
discharge, or an imminent discharj
of oil from a vessel the United State
and direct all public and private <
removal or elimination of such tl
marily remove, and, if necessary, c
whatever means are available withe
vision of law governing the employ
the expenditures of appropriated fi
curred under this subsection shall be
United States Government for the
(f ) in the removal of oil.
(e) In addition to any other ac
or local government, when the Pres
is an imminent and substantial thre
or welfare of the United States, inc;
to, fish, shellfish, and wildlife an
property, shorelines, and beaches wi
because of an actual or threatened
or upon the navigable wyaters of tl
an onshore or offshore facility, the
the United States attorney of the
threat occurs to secure such relief i
abate such threat, and the district
States shall have jurisdiction to gi
public interest and the equities of tl
fpli^till
to ^ ' .
^£ « 1
^ §§
-^i^b|
!§& §»!;!-*
l t
[p. 303]
-------
508
LEGAL COMPILATION—SUPPLEMENT I
s
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[p. 304]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
509
^i ri-5
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-------
510
LEGAL COMPILATION—SUPPLEMENT I
3 2^3
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[p. 306]
-------
WATER — STATUTES AND LEGISLATIVE HISTORY
511
33*1.3
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512
LEGAL COMPILATION SUPPLEMENT I
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(2) The
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WATER—STATUTES AND LEGISLATIVE HISTORY
513
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[p. 309]
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LEGAL COMPILATION—SUPPLEMENT I
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"[p. 310]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
515
-2 33 |V £ g g£
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-------
516
LEGAL COMPILATION—SUPPLEMENT I
1
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[p. 312]
-------
WATER — STATUTES AND LEGISLATIVE HISTORY
517
egul
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525-310 O - 73 - 34
-------
518
LEGAL COMPILATION — SUPPLEMENT I
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[p. 314]
-------
WATER— STATUTES AND LEGISLATIVE HISTORY 519
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[p. 315]
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520 LEGAL COMPILATION—SUPPLEMENT I
1* ^"i^ljlfl
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[p. 316]
-------
WATER—STATUTES AND LEGISLATIVE HISTORY
521
mrements. In preparing this
conduct an accelerated study
be limited to, the method and
sardous substances to prevent
appropriate measures for (1)
imposition of civil and crimi-
md for failure to notify) and
red by the United States if
ie United States. In carrying
; shall consult with the inter-
various public and private
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522
LEGAL COMPILATION—SUPPLEMENT I
EXISTING
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WATER—STATUTES AND LEGISLATIVE HISTORY
523
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WATER — STATUTES AND LEGISLATIVE HISTORY 527
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WATER—STATUTES AND LEGISLATIVE HISTORY 529
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530 LEGAL COMPILATION—SUPPLEMENT I
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
535
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
541
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542
LEGAL COMPILATION—SUPPLEMENT I
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
545
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WATER—STATUTES AND LEGISLATIVE HISTORY
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548
LEGAL COMPILATION—SUPPLEMENT I
[p. 344]
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WATER—STATUTES AND LEGISLATIVE HISTORY
549
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WATER—STATUTES AND LEGISLATIVE HISTORY
551
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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[p. 362]
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WATER—STATUTES AND LEGISLATIVE HISTORY
567
[p. 363]
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568
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
571
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WATER—STATUTES AND LEGISLATIVE HISTORY
573
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WATER—STATUTES AND LEGISLATIVE HISTORY
575
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER—STATUTES AND LEGISLATIVE HISTORY
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WATER — STATUTES AND LEGISLATIVE HISTORY 587
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[p. 385]
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590
LEGAL COMPILATION—SUPPLEMENT I
g
i
^^llflll
[p. 386]
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WATER—STATUTES AND LEGISLATIVE HISTORY 591
Additional changes in existing law made by the bill, as reported,
are shown as follows (existing law proposed to be omitted is en-
closed in black brackets, new matter is printed in italics, existing
law in which no change is proposed is shown in roman):
SECTION 4 OF THE SMALL BUSINESS ACT
SEC. 4. (a) * * *
(c) (1) There are hereby established in the Treasury the following
revolving funds: (A) a disaster loan fund which shall be available
for financing functions performed under sections 7(b)(l), 7(b)(2),
7(b) (4), 7(b) (5), 7(b) (6), [and 7(c) (2)3 7(c) (2), and 7(g) of this
Act, including administrative expenses in connection with such func-
tions; and (B) a business loan and investment fund which shall be
available for financing functions performed under sections 7(a), 7(b)
(3), 7(e), and 8(a) of this Act, titles III and V of the Small Busi-
ness Investment Act of 1958, and title IV of the Economic Oppor-
tunity Act of 1964, including administrative expenses in connection
with such functions.
SEC. 7. (a)
* * *
(g) (1) The Administration also is empowered to make loans (either
directly or in cooperation with banks or other lenders through agree-
ments to participate on an immediate or deferred basis) to assist any
small business concern in affecting additions to or alterations in the
equipment, facilities (including the construction, of pretreatment fa-
cilities and interceptor sewers), or methods of operation of such concern
to meet water pollution control requirements established under the
Federal Water Pollution Control Act, if the Administratio-n deter-
mines that such concern is likely to suffer substantial economic injury
without assistance under this subsection.
(2) Any such loan—
(^4) '#hall be m-ade in accordance with provision* applicable to
loans made pursuant to subsection (b) (5) of this section, except
as otherwise provided in this subsection;
(B) shall be m-ade only if the applicant furnishes the Admini-
stration with a statement in writing from the En vironmental Pro-
tection Agency or, if appropriate, the State, that such additions or
alterations are necessary and adequate to comply with require-
ments established under the Federal Water Pollution Control Act.
(3) The Administrator of the Environmental Protection Agency
xhall, as soon as practicable after the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972 and not later than
one hundred and eighty days thereafter, promulgate regulations estab-
lishing uniform rules for the issuance of statements for the purpose of
paragraph (2)(B) of this subsection.
[p. 387]
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592 LEGAL COMPILATION—SUPPLEMENT I
(4) There is authorized to &e appropriated to the disaster loan fund
established pursuant to section 4(c) of this Act not to exceed $800,000,-
000 solely for the purpose of carrying out this subsection.
SECTIONS 3689 AND 5136 or THE REVISED STATUTES OF THE
UNITED STATES
SEC. 3689. There are appropriated, out of any moneys in the Treas-
ury not otherwise appropriated, for the purposes hereinafter speci-
fied, such sums as may be necessary for the same respectively; and
such appropriations shall be deemed permanent annual appropria-
tions.
EXECUTIVE
UNDER THE TREASURY DEPARTMENT
Consular receipts:
For the proceeds of the personal estates of American citizens who
die abroad, to be paid to the legal representatives of the said deceased
party upon proper demand and proof.
Interest on the public debt:
For payment of interest on the public debt, under the several acts
authorizing the same.
Refunding moneys erroneously received and covered:
To refund moneys received and covered into the Treasury before
the payment of legal and just charges against the same.
Payment to the Environmental Financing Authority: For payment
to the Environmental Financing Authority under subsection (h) of
the Environmental Financing Act of 1972.
*******
SEC. 5136. Upon duly making and filing articles of association and
an organization certificate, the association shall become, as from the
date of the execution of its organization certificate, a body corporate.
and as such, and in the name designated in the organization certifi-
cate, it shall have power—
First. To adopt and use a corporate seal.
*******
Seventh. To exercise by its board of directors or duly authorized
officers or agents, subject to law, all such incidental powers as shall be
necessary to carry on the business of banking; by discounting and
negotiating promissory notes, drafts, bills of exchange, and other evi-
dences of debt; by receiving deposits; by buying and selling exchange,
coin, and bullion; by loaning money on personl security; and by
obtaining, issuing, and circulating notes according to the provisions
of this title. The business of dealing in securities and stock by the
association shall be limited to purchasing and selling such securities
and stock without recourse, solely upon the order, and for the account
of, customers, and in no case for its own account, and the association
shall not underwrite any issue of securities or stock: Provided, That
the association may purchase for its own account investment securities
[p. 388]
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WATER—STATUTES AND LEGISLATIVE HISTORY 593
under such limitations and restrictions as the Comptroller of the Cur-
rency may by regulation prescribe. In no event shall the total amount
of the investment securities of any one obligor or maker, held by the
association for its own account, exceed at any time 10 per centum of its
capital stock actually paid in and unimpaired and 10 per centum of its
unimpaired surplus fund, except that this limitation shall not require
any association to dispose of any securities lawfully held by it on the
date of enactment of the Banking Act of 1935. As used in this section
the term "investment securities" shall mean marketable obligations
evidencing indebtedness of any person, copartnership, association, or
corporation in the form of bonds, notes and/or debentures commonly
known as investment securities under such further definition of the
term "investment securities" as may by regulation be prescribed by the
Comptroller of the Currency. Except as hereinafter provided or other-
wise permitted by law, nothing herein contained shall authorize the
purchase by the association for its own account of any shares of stock
of any corporation. The limitations and restrictions herein contained
as to dealing in, underwriting and purchasing for its own account,
investment securities shall not apply to obligations of the United
States, or general obligations of any State or of any political subdivi-
sion thereof, or obligations issued under authority of the Federal Farm
Loan Act, as amended, or issued by the thirteen banks for cooperatives
or any of them or the Federal Home Loan Banks, or obligations which
are insured by the Secretary of Housing and Urban Development
under title XI of the National Housing Act or obligations which are
insured by the Secretary of Housing and Urban Development (here-
after in this sentence referred to as the "Secretary") pursuant to sec-
tion 207 of the National Housing Act, if the debentures to be issued
in payment of such insured obligations are guaranteed as to principal
-and interest by the United States, or obligations, participations, or
other instruments of or issued by the Federal National Mortgage As-
sociation or the Government National Mortgage Association or obli-
gations of the Environmental Financing Authority or such obligations
of any local public agency (as defined in section 110 (h) of the Housing
Act of 1949) as are secured by an agreement between the local public
agency and the Secretary in which the local public agency agrees to
borrow from said Secretary, and said Secretary agrees to lend to said
local public agency, prior to the maturity of such obligations (which
obligations shall have a maturity of not more than eighteen months),
monies in an amount which (together with any other monies irrevoca-
bly committed to the payment of interest on such obligations) will suf-
fice to pay the principal of such obligations with interest to maturity
thereon, which monies under the terms of said agreement are required
to be used for the purpose of paying the principal of and the interest on
such obligations at their maturity, or such obligations of a public
housing agency (as defined in the United States Housing Act of 1937,
as amended) as are secured either (1) by an agreement between the
public housing agency and the Secretary in which the public housing-
agency agrees to borrow from the Public Housing Administration, and
the Secretary agrees to lend to the public housing agency, monies in an
aggregate amount which (together with any other monies irrevocably
committed to the payment of interest on such obligations) will suffice
to pay, when due, the interest on and all installments (including the
[p. 389]
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594 LEGAL COMPILATION—SUPPLEMENT I
final installment) of the principal of such obligations, which monies
under the terms of said agreement are required to be used for such
payments, or (2) by a pledge of annual contributions under an annual
contributions contract between such public housing agency and the
Secretary if such contract shall contain the covenant by the Secretary
which is authorized by subsection (b) of section 22 of the United
States Housing Act of 1937, as amended, and if the maximum sum and
the maximum period specified in such contract pursuant to said sub-
section 22 (b) shall not be less than the annual amount and the period
for payment which are requisite to provide for the payment when due
of all installments of principal and interest on such obligations: Pro-
vided, That in carrying on the business commonly known as the safe-
deposit business the association shall not invest in the capital stock of
a corporation organized under the law of any State to conduct a safe-
deposit business in an amount in excess of 15 per centum of the capital
stock of the association actually paid in and unimpaired and 15 per
centum of its unimpaired surplus. The limitations and restrictions
herein contained as to dealing in and underwriting investment secu-
rities shall not apply to obligations issued by the International Bank
for Reconstruction and Development, the Inter-American Develop-
ment Bank or the Asian Development Bank, or obligations issued by
any State or political subdivision or any agency of a State or political
subdivision for housing, university, or dormitory purposes, which are
at the time eligible for purchase by a national bank for its own ac-
count, nor to bonds, notes and other obligations issued by the Tennes-
see Valley Authority or by the United States Postal Service: Pro-
vided, That no association shall hold obligations issued by any of said
organizations as a result of underwriting, dealing, or purchasing for
its own account (and for this purpose obligations as to which it is
under commitment shall be deemed to be held by it) in a total amount
exceeding at any one time 10 per centum of its capital stock actually
paid in and unimpaired and 10 per centum of its unimpaired surplus
fund. Notwithstanding any other provision in this paragraph, the
association may purchase for its own account shares of stock issued by
a corporation authorized to be created pursuant to title IX of the
Housing and Urban Development Act of 1968, and may make invest-
ments in a partnership, limited partnership, or joint venture formed
pursuant to section 907 (a) or 907 (c) of that Act.
[p. 390]
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WATER—STATUTES AND LEGISLATIVE HISTORY 595
SEPAKATE ADDITIONAL VIEWS OF TENO RONCALIO
ON H.R. 11896
I believe that a serious, if not fatal, omission of H.R. 11896 is its
failure to specifically exempt irrigated agriculture from the federal
discharge permit system until adequate technology is developed to
meet proper requirements. My concern is with Sections 208(b) (2) (F),
304(e), 306(b) (1) (B) and particularly Section 301 which states that
unless otherwise authorized, "the discharge of any pollutant by any
person shall be unlawful."
Accordingly, I shall at the proper time encourage an amendment
to Section 302 to the effect that:
The provisions of this Act prohibiting the discharge of
pollutants and requiring a permit to disclaarge shall not be
applicable to discharges resulting from agricultural irriga-
tion. The purpose of this exclusion is to permit the develop-
ment of an adequate technology and feasible methodology
which will enable irrigation dischargers to meet the discharge
and permit requirements of this Act.
I think it is common knowledge that the type of salinity problems
created by irrigation wastes—even in the arid upper Colorado states
which may well contribute to the overall salinity problem 1500 miles
to the southwest—are simply not as alarming as the more common
pollutants discharged by industrial and municipal facilities. Sub-
stantial salinity concentrations have little effect on recreational use
of water or its suitability for the propagation of fish.
Moreover, the technology to control salinity resulting from irriga-
tion use is not availably. There is no feasible method of treating irriga-
tion wastes in those cases when irrigation discharges can be isolated
from natural sources of runoff. Usually it is impossible to locate a
particular discharge and match it to the proper irrigator before it
percolates into a ground water reservoir, or returns to the original
stream.
The most insurmountable difficulties encountered, however, could
be the administrative problems. The number of federal applications
for all irrigation discharges would be staggering. In Wyoming alone,
between 35,000 and 40,000 permits would be required. When applying
for a federal discharge permit the burden of proof would be on the
water user to show that the environment would not be harmed. For
those who were not granted a permit, valuable property rights would
be lost without compensation, and this involves serious implications
for the courts.
Moreover, the massive bureaucracy needed to process the permit
applications would have uncertain jurisdiction. Would it have to
[p. 391]
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596 LEGAL COMPILATION—SUPPLEMENT I
completely supercede functioning state water right mechanisms in
order to operate effectively? If so, the prior appropriation doctrine
would be reduced to an unrecognizable shambles. This could cause
disastrous instability throughput the West among current water right
holders. The effect on investment incentives and property values is
incalculable. At best, a phenomenal paper work logjam could be
created with negligible improvement in water quality.
Even though effluent control may be chosen as the best method of
controlling pollution contributed by industrial and municipal wastes,
it does not appear at present to be a practical method of controlling
non-point sources of salinity associated with irrigation. A better
method of handling these problems may well be regional or basin-wide
management of water resources. I believe the above amendment there-
fore would serve the best interests of improving the overall water
quality throughout the nation, without imposing regulations that are
necessary in one area, but will do irreparable harm in another.
TENO RONCALIO, Wyoming.
[p. 392]
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WATER—STATUTES AND LEGISLATIVE HISTORY 597
ADDITIONAL VIEWS OF HON. BELLA S. ABZUG AND
CHAELES B. EANGEL
Be House Public Works Committee Eeport on H.E. 11896—The Fed-
eral Water Pollution Control Act Amendments of 1972
A. GENERAL COMMENTS
Our Nation's waters—our most precious natural resource—are rap-
idly being transformed into a vast, rancid sewer. Scarcely an uncon-
taminated body of water remains in the United States. A constant tor-
rent of waste, mostly untreated, pours into our waterways from farms,
factories, and cities. And despite Administration claims of progress,
the situation is getting worse. Present Government programs are hope-
lessly inadequate.
Most of us assume that the sewage we flush down our plumbing
pipes is being properly treated by some unknown, unseen plant at the
other end. In fact, however, much of the human, industrial, and other
wastes produced by Americans is dumped into our waterways with
little or no treatment.
For example, more than 400 million gallons of human waste .are
dumped into the Hudson Eiver every day after some chlorine has been
added to kill the odor. Samples taken there recently showed the in-
testinal bacteria concentration to be 170 times the "safe" limit set by
the Environmental Protection Agency (EPA).
Similar horror stories can be told about almost every other major
American waterway. One midwestern river is so loaded with indus-
trial wastes and oil that it is actually combustible. EPA has warned
that touching or being splashed by water from the Potomac Eiver is
a health hazard.
In the case of many lakes, the damage is already almost irreversible.
Much of Lake Erie, once the source of a thriving fishing industry, is
now considered nearly "dead". Efforts to revive it have been thwarted
by the Administration's recent reversal of policy on phosphates in de-
tergents and its failure to budget adequate funds to restore it to
health.
In every part of our country, industries and municipalities have
used our waterways as cheap dumping grounds in which to unload
their wastes. Some 12,000 potentially toxic chemicals are in industrial
use today. Little information is available to the public on the dangers
posed by these chemicals when they are improperly dispersed.
In a recent survey, one out of every three samples of drinking water
taken by the Department of Health, Education, and Welfare's Bureau
of Water Hygiene was found to be unsafe.
We do have a choice about all this. We can continue on our reckless
way, or we can take steps—and they must be giant steps—to arrest the
deterioration and to begin the job of cleaning up. It will not be cheap,
because our efforts up to now have been almost completely ineffective.
[p. 393]
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598 LEGAL COMPILATION—SUPPLEMENT I
A recent study by the General Accounting Office concluded that the $2
billion spent since 1956 oh pollution control have merely slowed the
deterioration of water quality.
Wastes discharged into a waterway—albeit with some treatment-
are pollutants. Wastes recycled or discharged on land can be a bene-
ficial resource. We must halt the use of our waterways as a waste treat-
ment system. The theory that our waterways can assimilate wastes is
archaic and it should be abandoned.
The Federal Water Pollution Control Act, when enacted in 1956
through the efforts of our able and distinguished Chairman, John A.
Blatnik of Minnesota, was a significant beginning toward pollution
control in the fifties and early sixties. It repealed an earlier, ineffective
1948 law. But for the seventies and eighties it is clearly too weak and
ineffective.
It has resulted in little or no reduction of water pollution in the
late sixties. This has been due in large measure to a lack of adequate
funding for the construction of waste treatment works, to various
restrictions on the scope of the law and enforcement powers, most of
which were carried over from the 1948 law, and inept administration.
Even the water quality standards program enacted in 1965 has proven
to be of little value. More than half of the States unilaterally extended
time-tables for achieving the standards.
In 1969 and 1970, Congress began a slow process of rejuvenating
the program to make it an effective anti-pollution tool with enactment
of more realistic appropriations for municipal waste treatment grants
and of the Water Quality Improvement Act of 1970. In 1970, the
executive branch, too, began a more vigorous enforcement program,
not under the Federal Water Pollution Control Act, but under the
Kefuse Act of 1899. In December 1970, EPA was established and the
program transferred to it.
For nearly a year, the 92nd Congress has been working on a sig-
nificant and complete revision of the 1956 law. The Senate, after much
deliberation, passed a strong bill last November (S. 2770). Our Com-
mittee held twenty-two days of public hearings between July and
November of last year. At the urging of the Administration, further
hearings were held in December. After three days of executive sessions
(December 14-16), the Committee ordered H.R. 11896 reported with
amendments.
We voted to report this bill to the House with a favorable recom-
mendation because we believe that, taken as a whole, it represents an
improvement over the present Federal Water Pollution Control
Act.1
It shifts the primary focus of water pollution control from water
quality standards to effluent limitations. This significant change is
necessary because of the great difficulty in establishing precisely who
is responsible for polluting our waterways, and in setting discharge
standards which will enable the waterway involved to improve in
quality.
It institutes a system of user charges under which industries will
pay for their use of water treatment facilities in proportion to the
volume and strength of the waste products which they discharge.
1We note that these views are being written on the basis of a Committee Print of the
bill dated Mar. 3, 1972. Consequently, thev may not reflect with absolute accuracy the
exact language of the measure as reported. We understand, however, that all language
changes, if any, since that date are purely technical.
[p. 394]
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WATER—STATUTES AND LEGISLATIVE HISTORY 599
It authorizes massive outlays of capital for the construction of new
waste treatment plants.
It provides funds to reimburse those progressive States and locali-
ties which have been in the forefront of pollution control efforts and
have spent billions of dollars in reliance upon Federal promises of
financial assistance.
It authorizes, in some circumstances, citizens' lawsuits to compel
compliance with pollution standards and requirements.
It repeals the 1948 restrictions on enforcement of the law, and sub-
stitutes some better enforcement powers.
But there are also a number of provisions in the bill which are less
progressive, and, if enacted, will stop, and even set back, our anti-
pollution effort. They will result in protracted litigation and delays,
cause many citizens to further doubt the credibility of Government,
and, most important, adversely affect workers whose employers move
their operations to States with weak anti-pollution laws.
We cannot support those provisions, most of which were identified
in a letter from eleven Congressmen, dated February 24, 1972, to our
Committee. The eleven Congressmen who signed that letter are:
Representative Henry S. Representative John D.
Reuss .Dingell
Representative Thomas M. Representative John P.
Pelly Saylor
Representative John E. Moss Representative Lucien N.
Representative Gilbert Gude Nedzi
Representative John H. Dent Representative Dante Fascell
Representative Silvio O. Representative Floyd V.
Conte Hicks
The principal provisions of the bill which we object to are discussed
and our recommendations thereon are set forth below:
B. H.R. 11896 INITIALLY SETS FORTH WATER QUALITY NATIONAL
GOALS AND EFFLUENT LIMITATIONS FOR 1981 AND 1985, BUT THEN
DECLARES THEM NULL AND VOID UNTIL CONGRESS PASSES A NEW
LAW, SOMETIME IN THE FUTURE, TO REACTIVATE THEM.
The opening pages of H.R. 11896 state with great flourish:
(1) it is the national goal that the discharge of pollutants
into the navigable waters be eliminated by 1985, and
(2) it 'is the national goal that ivhatever attainable, an
interim goal of water quality which provides for the protec-
tion and propagation of fisk, shellfish, and wildlife and pro-
vides for recreation in and on the ivater be achieved by 1981.
[Italic supplied]
These are high sounding phrases. True, they are only "goals" and
not a legislative mandate by the Congress. But even an expression of
"goals" is a step in the right direction.
Later, in section 301 of the bill, the 1981 effluent goals are trans-
formed from goals into statutory limitations, except as provided in
section 315.
But our hopes are short-lived, for when we turn to section 315 of
the bill, we find that the above quoted words no longer have even the
status of goals.
[p. 395]
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600 LEGAL COMPILATION—SUPPLEMENT I
stated, section 315 of the bill (a) calls for a study by the
National Academy of Sciences (NAS) and the National Academy of
Engineering (NAE) "of the technological aspects of achieving, and
all aspects of the total economic, social, and environmental effects of
achieving or not achieving the effluent limitations and goals" for 1981.
A report on the study must be sent to Congress within two years after
enactment, probably in late 1973 or in 1974.
We support such a study of the "economic, social, and environ-
mental effects" of achieving or not achieving the 1981 goals and efflu-
ent limitations under this bill. The more information we have, the bet-
ter. We need to know as much as we possibly can about all of these
matters.
But section 315 does not stop there. It then provides that until and
unless (a) the study is completed and reported to Congress, and (b)
Congress enacts a new law after receipt of that study and report, the
1981 limitations will never apply to any discharge source.
We take issue with this provision in section 315, because it renders
effluent limitations ineffective. Putting off the establishment of these
goals and requirements will
(1) impede our efforts to achieve clean water,
(2) make the clean-up program more costly than it would other-
wise be,
(3) inhibit the development of the accurate information that we
seek about the costs of pollution control, and
(4) reduce the credibility of the water pollution control program
in the public's eyes.
The most obvious effect for industry of not establishing the 1985
"no-discharge" goals and the 1981 effluent limitations is that we are
still relying on the old water quality standards approach to water pol-
lution control. Under this approach, streams are given different use
classifications which are then supposed to be reflected in the amount of
pollution that is permitted.
We have seen a great deal of evidence indicating that this water
quality standards system of regulation assumes more knowledge about
our complex ecosystem than we actually have. The numerical criteria
themselves are often largely arbitrary and serve mainly to fool the
public into thinking everything is "safe". Also, the history of our
water pollution control program suggests that State and Federal gov-
ernments will continue to founder on the staggering complexity of
this control system, which requires working mathematically back
from the permitted pollution levels in a waterway to the effluent limi-
tations at the point source needed to achieve them.
Up to now, this task has been difficult at best, impossible at worst.
This complexity has the practical effect of shutting out the general
public from meaningful, involvement in the program. Citizens and
citizen groups are too often ill-equipped to field the technical exper-
tise it takes to effectively counter the assertions of polluters and to
monitor the government's performance.
We are not necessarily critical of some retention of water quality
standards program as revised in section 303 of the bill. Stream stand-
ards can provide a necessary floor to our control requirements and
also a check on their effectiveness. But water quality standards should
not represent the limit of our aspirations.
As we said earlier, this Nation needs to get away from the archaic
[p. 396]
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WATER—STATUTES AND LEGISLATIVE HISTORY 601
notion that our public waterways can and should continue to be used
as private sewers, with an 'assimilative capacity" to be exploited. The
water quality standards program tends to perpetuate that notion. The
way to protect our lakes, rivers, streams, and estuaries is to make pol-
lutors return any water they borrow from the public in the same clean
condition they found it. This is why we believe the 1985 "no-dis-
charge" goal and the 1981 effluent limitations are such a vital part of
this bill.
Criticism of these provisions has focused on the steeply rising mar-
ginal cost of conventional waste treatment at high removal percent-
ages. These cost criticisms are unjustified since the 1981 requirements
have a built-in safety valve against exorbitant costs. They specifically
direct that industries are to eliminate their discharges of pollutants
only when it can be done at a "reasonable cost". They also provide that
the fallback requirement—best available technology—is to be imple-
mented by "taking into account the cost of such controls".
Section 302's high water quality requirements go into effect only
after a balancing of costs and benefits. We shouldn't add to the effect
of these loopholes, which already look dangerously large, by remov-
ing the basic requirements altogether.
In addition, the debate over costs has completely missed the point,
because the aim of the "no discharge" goal is to force us to turn away
from the expensive conventional treatment systems (to which critics
looked in making their cost estimates) wherever possible, and to look
instead for ways to recycle our wastes and waste water for beneficial
purposes. Available low-cost recycling methodology, such as land dis-
posal and industrial closed-loop systems, were ignored by the Admin-
istration and other critics of the "no discharge" goal in making their
cost estimates.
Putting off the establishment of the 1981 and 1985 goals and re-
quirements will not save money; rather it will end up costing more in
the long run. The technology which polluters install to comply with
the bill's earlier 1976 requirements may not be compatible with the
better methodology they will have to use later, when the more strin-
gent requirements go into effect. Also, research on recycling tech-
niques which could facilitate less costly achievement of the "no dis-
charge" goal will not begin to take place with full vigor until we
make those later goals and requirements definite. Industry has a right
to know what will be asked of them later on.
By relaxing controls on industry in the post-1976 period, we may
also be forcing higher costs on municipalities. Industries, that would
normally join with municipalities to form large regional treatment
systems if they are faced with having to comply with the 1981 re-
quirements, will, without such requirements, be encouraged to meet
the lower control requirements more cheaply on their own. If indus-
tries stay out of these regional systems, economies of scale will be lost
and the participating municipalities will face higher costs.
Postponing the establishment of the bill's later goals and require-
ments may, we fear, also make it more difficult to get the kind of accu-
rate information about control costs that we need to make final de-
cisions about where the program should be heading. By putting off
their establishment until after the KAS/NAE study, the public will
[p. 397]
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602 LEGAL COMPILATION SUPPLEMENT I
have the burden of proving that polluters can afford to eliminate their
pollution before we make them do it. But the polluters have all the
information we need to make that judgment. Unless we give them
some incentive to produce accurate information about costs, we will
get only exaggerated estimates which cannot be verified.
Section 315 should be modeled on a presumption that polluters must
install the most pollution-free systems. They, not the public, should
bear the burden of demonstrating that the goals or requirements
should be modified in some way. In other words, we should establish
the goals and requirements now and let the information we get from
the study modify them, if necessary.
Finally, by setting goals and requirements in one section of the bill
and taking them back in another, we will appear to the public to be
talking out of both sides of our mouths. As it stands, section 315 looks
too much like the fine print on the classic marine insurance contract.
We think we owe the public a forthright statement of what we are
doing.
Is Congress so near-sighted that we cannot realize that constantly
changing the ground rules for water pollution control leads only to
uncertainty and chaos? Let us legislate for longer than three to five
years. Certainly, a decade is not today a long period of time.
If the NAS/NEA study should show that the 1981 requirements
and the 1985 goals need to be changed in some way, we are certain
that Congress will take the necessary steps. Let the public know that
we are not simply studying the problem. We are going ahead with
our commitment to clean water.
We recommend appropriate amendments to the bill to make effec-
tive what we promise in section 102 of the bill.
C. THE BILL WOULD EEPEAL PRESIDENT NIXON'S PERMIT PROGRAM AND
HAND IT OVER TO STATE CONTROL AFTER ENACTMENT WITH No GUAR-
ANTEED FEDERAL REVIEW OF PERMITS ISSUED BY STATES AND No NA-
TIONAL MINIMUM EFFLUENT REQUIREMENTS FOR EACH STATE PERMIT.
THIS WILL SURELY RESULT IN SOME COMPANIES HAVING A COM-
PETITIVE ADVANTAGE OVER OTHERS AND Loss OF JOBS.
I.
On December 23, 1970, President Nixon issued Executive Order
11574 establishing, under the Refuse Act of 1899, a mandatory permit
systems for all industries discharging toxic and other wastes into the
Nation's waterways. Under the order, the Corps of Engineers manages
the program, but EPA is given final authority over whether a permit
shall issue from a water quality standpoint.
Since July 1, 1971, when the program began, more than 20,000
permit applications have been received by the Corps of Engineers.
13,543 of these are now being reviewed by the Environmental Protec-
tion Agency. The program has already had some excellent results.
It has caused industrial plant officials to learn—some for the first
time—about the composition and quantity of wastes poured daily into
our waterways in a partially treated or untreated form.
It has led these same officials to take immediate steps to curtail these
discharges and to plan and install better treatment, including, in some
cases systems that recycle the wastes.
[p. 398]
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WATER—STATUTES AND LEGISLATIVE HISTORY 603
It has given EPA an opportunity to learn more about what and
where wastes are discharged into waterways.
It has identified and is limiting toxic constituents in treated water
which were previously uncontrolled.
It has encouraged some industries to connect to municipal treat-
ment systems for treatment of wastes.
Some specific examples of the positive aspects of the permit pro-
gram are set forth at the conclusion of these views.
Most important, the permit program has created a climate in which
local and State agencies can become more stern in their enforcement
policies. Industry, to its great credit, has shown a new willingness to
cooperate and to get the job done.
In a Wall Street Journal article of November 4,1971, Kansas City's
water pollution control director commented on the effect of the pro-
gram as follows: "The Federal permit program helped me do my polic-
ing job." [Italics supplied.]
Mr. John Quarles, EPA's Assistant Administrator and General
Counsel, summarized this on November 5, 1971, when he said: (Hear-
ings, House Conservation and Natural Resources Subcommittee, p.
1147) :
There have already been many positive results flowing from
the permit program. Industries not previously aware of the
exact nature or extent of their discharge have been required
to examine and report on the permit application much infor-
mation not previously known or reported. Many companies
have discovered hazardous and toxic materials in their dis-
charges whose presence was previously unsuspected.
By studying the water quality characteristics of their pres-
ent installations, some companies have been able to apply
their experience in planning new facilities. Also, in review-
ing plant processes, companies have turned up pipes and out-
falls whose existence was previously unsuspected. Laboratory
analyses of discharges have shown in some cases that treat-
ment systems were not operating as effectively as was believed.
Certain companies, as a result of the permit program, have
been induced to take corrective measures to reduce or elimi-
nate discharges on their own initiative prior to any specific
permit requirements being imposed—e.g., connecting to mu-
nicipal treatment systems; installing aeration lagoons; plan-
ning for pretreatment, recycling, and/or heavy metals re-
covery.
But H.E. 11896 would abandon all these successes for a much weaker,
program.
H.E. 11896 would eliminate President Nixon's permit program. In
its place, a new EPA permit program would be established which
would subsume the Refuse Act permit program, but this new program
would be a mere shadow of the current one.
To be sure, EPA will be authorized—on paper to issue permits to
discharge wastes, but it will have this power only with regard to States
.which do not want to issue permits.
The bill provides that the program will not rest at EPA. The musi-
[p. 399]
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604 LEGAL COMPILATION SUPPLEMENT I
cal chairs will continue. It will be dispersed to all 50 States, and be
subject to little or no Federal control. In short, the bill dismantles the
Federal Refuse Act permit program established by President Nixon
and scatters the pieces to the States.
The result will be chaos and delay.
We heard loud laments from those who opposed the Eefuse Act per-
mit program. They said there would be from 100,000 to 300,000 appli-
cations which would bury EPA in paperwork. But these astronomical
figures have not materialized.
In. point of fact, there have been about 20,000 applications, a figure
which EPA assures us represents 95 percent of the discharges into
navigable waterways. EPA has been processing these applications
with considerable vigor and is well on the way to completing the task
of establishing the Refuse Act permit program.
The bill will delay the issuance of permits to industry, which will in
turn delay installing effective treatment systems. The result: continued
pollution of our waterways. Indeed, under this bill, it will be at least
1973 before the States can begin to handle this permit program. Can
we afford to wait that long?
If continued, the Refuse Act permit program can insure a national
approach to water quality. It will, as EPA states, avoid "giving some
companies an advantage .over others, depending on the State in which
they are located." It will protect workers whose jobs are threatened
by employers who move their production to avoid the strict anti-pol-
lution standards and requirements of certain States.
A typical example of this sort of ecological blackmail is that of the
Weyerhaeuser Corporation, which cited strict Washington State pol-
lution standards as the reason for the recent closing of one of its an-
cient plants in the Puget Sound area. As a result, 300 workers, some of
whom had been with the company for many years, were laid off, and
the plant's production was moved to a newer facility in North
Carolina.
This bill will encourage more such job losses, we fear.
Ill
Under the bill, EPA is merely a conduit. The States, not EPA will
run the program.
Section 402(a) (5) of H.R. 11896 lets EPA, for 180 days after the
bill becomes law, "authorize a State, which . . . has the capability of
administering a permit program" to issue permits. To be sure, EPA
must publish "guidelines establishing the minimum procedural and
other elements" involved in the transfer of the permit program, but the
bill offers only vague and indefinite examples of what is to be included
in those guidelines, such as monitoring and reporting requirements
and "enforcement provisions".
After this 180 day period, a State wishing to continue to issue per-
mits must provide a better description of its permit program, but
once that program has been approved, EPA's control over it and the
permits issued under it will be almost non-existent.
EPA will have virtually no control over permits—
On the one hand (section 402(d)(l)) the bill tells the States to
"transmit" to EPA a copy of each permit application and to keep
[p. 400]
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WATER—STATUTES AND LEGISLATIVE HISTORY 605
EPA apprised of each stage of the application proceedings. But on
the other hand (section 402(e)), authorizes EPA "to waive" this re-
quirement, as to "any category of point sources", when the State per-
mit program has been approved.
Even if such a waiver is not given, EPA cannot "object" to the
issuance of the permit unless the waters of a second State will be
affected by such issuance and such second State "objects in writing" to
its issuance (section 402(d)(2)). But even this shadow of Federal
authority can be waived by EPA at the time the State receives ap-
proval of its permit program.
EPA's inadequate control over the State program—
Once a State permit program is approved by EPA, it can "with-
draw approval" of the program only after notice, a public hearing,
and a waiting period of at least 90 days. Even then, the bill does not
require EPA to initiate withdrawal proceedings against a State that
fails to comply with its approval conditions. Indeed, it is quite pos-
sible that any Administration would find it politically distasteful to
compell a State to comply with the law.
Later, we will discuss the citizen suit provisions of this bill. We
point out, however, that those provisions give citizens the right to
sue EPA's Administrator to require EPA to perform any "duty"
other than a "discretionary duty". However, the withdrawal au-
thority of section 402(c)(3) of the bill is "discretionary". Until a
public hearing is held, EPA is not required to "determine" that with-
drawal is or is not appropriate. EPA's Administrator has total dis-
cretion as to whether or not a hearing shall be called.
Thus, under the bill, once EPA approves a State permit program
(the EPA Administrator must act on it 90 days after receiving it from
the State), all Federal ties to the permit program are severed. The
State is not EPA's delegate. Even the policies and requirements of the
National Environmental Policy Act of 1969 will not apply to the
State permit program and environmental impact statements will
therefore not be required.
EPA's powers to act against a discharger who violates the law will
also be cut off. The bill, in section 402 (1), specifically states that "com-
pliance with a permit issued * * * shall be deemed compliance" with
all other provisions of the bill, except those relating to toxic pol-
lutants. Thus, once the State issues a permit to a polluter, EPA cannot
abate his pollution unless it is toxic pollution. This is true even when
EPA fully knows that the permit is hardly worth the paper it is
written on.
IV.
We cannot support this almost total abdication of Federal responsi-
bility for preventing the pollution of the Nation's navigable water-
ways, many of which cross State boundaries.
A permit program run by 50 different governments without any
meaningful Federal control will become an environmental nightmare.
It will encourage industries that dislike the tough permit administra-
tion of one State to relocate to a less progressive one. The result will
be economic hardship for workers in States which effectively enforce
their anti-pollution laws.
We recommend that section 402 be eliminated from the bill, and
[p- 401]
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606 LEGAL COMPILATION—SUPPLEMENT I
that the present Federal permit program, established by Executive
Order 11574, be retained.
If this is not done, and the States are allowed to issue permits, then,
at the very least, the bill should give EPA authority
(a) to review all permit applications; and
(b) to prevent the issuance of any permit to which it objects
Further, the bill should require that EPA withdraw approval of
any State permit program which is not being administered in accord-
ance with the law and conditions of approval.
Congress should not be weaker than the President in this regard, but
if we pass H.R. 11896 with section 402 as presently drafted, it will be.
D. THE BILL GIVES THE POLLUTER WHO FILES AN APPLICATION FOR
A PERMIT IMMUNITY UNTIL 1976 FROM ANY ENFORCEMENT ACTION
BY EPA OR A UNITED STATES ATTORNEY UNDER THE BILL OR THE
1899 REFUSE ACT. THIS EFFECTIVELY REPEALS THE REFUSE ACT AS
AN ANTI-POLLUTION TOOL AGAINST CONTINUING WASTE DISCHARGES
Section 4.02(1) of the bill provides that if a polluter files an applica-
tion for a permit to discharge wastes into a waterway, that discharge
"shall not be a violation'' of (he bill or the Refuse Act of 1899 until
January 1,1976, unless EPA or a State has acted finally on the applica-
tion.
This may give many polluters complete immunity from prosecution,
either civilly or criminally, for the next 4 years under the new bill and
under the Refuse Act. The polluter can discharge such wastes as
metals, salts, acids, cyanides, brines, grease, food product wastes, ani-
mal wastes, and textile and pulp and paper mill wastes in violation
of the law with impunity.
This is folly.
President Xixon's regulations for enforcement of the Refuse Act
permit program (33 CFR sec. 209.131 (d) (4)) clearly state:
All discharges or deposits to which the Refuse Act is ap-
plicable * * * are unlawful unless authorized by an appro-
priate permit * * *. Any such discharges or deposits not au-
thorized by an appropriate permit may result in the institu-
tion of legal proceedings in appropriate cases for violation of
the provisions of the Refuse Act. * * * the mere -filing of an
application requesting permission to discharge or deposit
[wastes] into navigable waters or tributaries thereof will not
preclude legal action in appropriate cases for violation of the
provisions of the Refuse Act. [Italics supplied.]
Even with President Nixon's quite proper regulation, EPA or the
Corps has not initiated a wholesale program of prosecuting those who
filed for permits. There is no reason to expect that EPA will do so in
the future. But the mere threat of such civil or criminal action is quite
helpful to EPA and the Corps in insuring prompt compliance with
the law.
The bill does not expressly repeal the Refuse Act of 1899, but this
immunity provision has much the same effect—repeal of the 1899 law
as an anti-pollution tool. The Government will be able to prosecute
only the accidental, occasional polluter, but the egregious polluter will
[p. 402]
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WATER—STATUTES AND LEGISLATIVE HISTORY 607
go scot-free for four years if he applies for a permit and it is not
acted upon quickly.
On September 24,1971, our colleague, Congressman Henry, S. Reuss
of Wisconsin, testified before our committee and urged that the Refuse
Act not be repealed or modified by H.R. 11896. He said (Hearings,
pp. 2236-2237):
I would not be here today but for the fact that in recent .
days witnesses for both the National Association of Manufac-
turers and the Administration testified before this committee
and recommended amendments to the 1899 Refuse Act.
The NAM witness, Dr. William Haun, recommended on
September 13 that the Refuse Act be amended "so as to limit
it to consideration of anchorage and navigation" only.
If the NAM amendment were to be adopted, the Refuse
Act would be "gutted" as an effective anti-pollution tool. Not
even an empty shell would be left.
The NAM amendment would take away an effective tool
for citizen participation. The Refuse Act has become widely
known, mainly because of its provision that an informer who
gives information which "leads to a conviction" is entitled
to one-half the fine. I myself have used this law to inform
U.S. Attorneys in Wisconsin of scores of cases of polluting
discharges by industry into our waterways. I have collected
half the fine in several of the cases prosecuted thus far, and
I have donated my share of the fines to help municipalities
cure their municipal water pollution.
Other citizens have also helped U.S. Attorneys throughout
the Nation in providing information on polluting discharges.
Under the permit program, they will be able to review permit
applications and make their views known on them to the
Corps and EPA at public hearings. When a discharger fails
to file an application, the citizen can inform the U.S. Attor-
ney who, according to a very recent report, is on the Corps'
"backs every day" anxious to file actions against such dis-
chargers. If a permit is issued, the citizen can monitor com-
pliance and inform the Government of any violation.
Thus, the Refuse'Act is a law that has stirred citizen inter-
est and participation. It has also stirred the ire of many
polluters. They are feeling the pinch of this simple one-para-
graph law. One State witness who complained about its use
recently said that "invoking of the 1899 Refuse Act . . . over-
night, placed the Federal Government with boots and helmets
in the front office of nearly every waste-discharging industry
in the nation".
I for one cannot think of a better place for the Federal
Government to be if we are to halt the degradation of our
waters. It is time—indeed, long overdue—that the industrial
polluters of this nation felt the hot breath of the Govern-
ment'"s army of enforcers, meek as they are.
The NAM recommendation would also result in abandoning
the "No Polluting Discharge" standard of the 1899 law. The
[p. 403]
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608 LEGAL COMPILATION—SUPPLEMENT I
old "assimilative" capacity theory under which our waters
are simply private sewers of the polluters would then con-
tinue to reign supreme.
Only three days after the NAM urged this gutting amend-
ment, the Administration, following the NAM line, also
testified before this Committee. The Administration witness
began by extolling the virtues of the 1899 law and ended up
by urging that it be emasculated.
Lefs listen, not just to industry-oriented spokesmen, but to
the public. I detect no great clamor 'from the public that the
Refuse Act be amended or repealed, or that the Refuse Act
permit program be transferred to the States. On the con-
trary, there is widespread public support for this law as it
is because it is effective.
The League of Women Voters testified before this Com-
mittee on September 16 that the "Refuse Act permit system
... be used to its fullest to help curb the sources of
pollltion".
The Izaak Walton League of America also testified before
this Committee on that same day, urging "retention of the
Eef use Act permit system now in effect".
The Friends of the Earth also testified last August that it
would "consider any language in new legislation unacceptable
which relinquishes Federal authority for water pollution con-
trol under the 1899 Refuse Act to the States", and urged that
Congress "not mitigate in whole or in part" the 1899 permit
program.
Unlike the Federal Water Pollution Control Act, which
has never been tested in court, the Refuse Act has been ividely
reviewed and interpreted by many courts. These judicial
interpretations, including those of the Supreme Court, have
enhanced its effectiveness as an anti-pollution tool. The courts
have upheld injunctions to compel a polluter to stop polluting
and to remove the wastes discharged, and judgments com-
pelling the polluter to reimburse the United States for its
expenses in removing refuse deposited by the polluter.
No one urges that the judicial interpretations are wrong.
Yes, I have heard it said, by some lawyers representing in-
dustrial polluters, that the Refuse Act "was not intended by
Congress to function as a pollution control device", but only
to protect navigation because in 1899 "every municipality and
industry dumped its raw wastes into the nearest stream".
I marvel at the hindsight of these lawyers and their knowl-
edge of the intent of Congress in 1899.
Every first year law student knows that legislative history
has a bearing on the intent and meaning of a law only when
the law itself is ambiguous. But the Refuse Act of 1899 is
far from being ambiguous. Certainly, the courts have had
no difficulty in this regard. They have uniformly held that
the 1899 law applies to the polluting discharges of today.
[p. 404]
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WATER—STATUTES AND LEGISLATIVE HISTORY 609
Since this is so, I cannot perceive any reason to repeal or
amend the law, except to achieve the negative objective of
the NAM to cripple the law.
Instead, Congress should applaud the Administration for
adopting, after much prodding, the unanimous recommenda-
tions of the House Committee on Government Operations
for vigorous enforcement of the 1899 law.
Without the Refuse Act, the Administration would still be
bogged down in lengthy procedures under the FWPC Act
trying to stop the 10 mercury polluters from discharging that
toxic material into our waterways. Similarly, the Justice
Department would not have had an effective enforcement tool
to halt the discharge of cyanide by the Armco Company into
the Houston Ship Channel, or to control thermal heat dis-
charges planned by a Florida power company into Biscayne
Bay. In the latter case, the Government asserted that such
discharges would have turned this national monument estab-
lished by Congress into a "biological desert". [Italics sup-
plied.]
Even more recently, the eleven Congressmen, including Mr. Reuss,
who on February 24, 1972, wrote to our committee about this bill
said:
On January 29,1972, an Assistant United States Attorney
in New York told the New York State Bar Association that
the 1899 law "has emerged as the primary pollution abate-
ment statute for the simple reason that it, alone, has proven
enforcible [and] that the Refuse Act has developed into a
superior enforcement tool for the betterment of our environ-
ment." In grading the Refuse Act, he said (Cong. Record,
Feb. 24,1972, p. E1632) : '
It has and is creating a climate in which industry—the
potential defendants—now feels a growing certainty that it
can no longer pollute with impunity, and;
"It has and is creating a climate in which local and state
agencies can become more stern in their enforcement policies.
"Much remains to be done. But in my opinion, there could
not be a more explicit mandate than is now found in the Refuse
Act; nor could that be a more workable scheme of enforce-
ment than has evolved under the present statute."
We concur with his remarks.
The 1899 law has given concerned citizens and citizen groups an
opportunity to participate with their Government in halting the pol-
lution of our waters. If Congress effectively repeals the Refuse Act as
an anti-pollution tool, the credibility of the Governments anti-pollu-
tion effort will be severely strained. [Italics supplied.]
We share our colleagues views.
We recommend (a) that section 402(1) of H.R. 11896 be deleted,
and (b) that the Refuse Act not be repealed or modified as an anti-
pollution tool.
The Senate-passed bill, S. 2770, does not contain a provision similar
to section 402(1), nor does it repeal or modify the Refuse Act in this
way.
[p. 405]
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610 LEGAL COMPILATION—SUPPLEMENT I
E. THE BILL, SEEKS To WEAKEN THE NATIONAL ENVIRONMENTAL
POLICY ACT OF 1969
Both H.R. 11896 and the Senate-passed bill, S. 2770, amend the
National Environmental Policy Act of 1969. The language of both
(Sec. 511 (d)) differs in some measure.
The Senate version—itself far-reaching and the subject of a great
debate over its meaning (See National Journal, Feb. 26, 1972, p. 342
et seq.)—weakens NEPA only in the cases involving "the construction
of any activity which may result in any discharge into'' navigable
waterways. But H.E. 11896 contains no such limitation. Thus, it applies"
to dams licensed by the Federal Power Commission, and permits
issued to strip coal on Indian and public lands, as well as discharges.
There is no justification for this further weakening of NEPA.
Section 511 (d) of H.R. 1LS96, even without this further expansion,
provides that the "requirements" of NEPA "as to water quality con-
siderations shall be deemed to be satisfied" by a certification issued by a
State with respect to Federal licenses or permits for the construction
of "any activity" [whatever that means]. This would include licenses
or permits issued by the Corps of P^ngineers, Environmental Protec-
tion Agency, Atomic Energy Commission, Federal Power Commis-
sion, and other agencies.
The eleven Congressmen, in their recent letter to our committee,
commented on this provision, as follows:
We are concerned about the meaning and scope of this pro-
vision. First, the wTord "requirements" includes the directives
in section 102(1) of NEPA that all "policies, regulations, and
public laws of the United States shall be interpreted and ad-
ministered in accordance with the policies" of NEPA. Sec-
ond, it includes the directives in section 102(2) of NEPA that
all agencies "utilize a systematic, interdisciplinary approach"
in planning and decision making "which may have an impact
on man's environment." Third, this word includes the direc-
tives in section 102(2) (C) that a detailed environmental im-
pact statement be prepared in the case of actions that "sig-
nificantly" affect the quality of the environment. Such an
amendment would result in a serious weakening of NEPA
and be disastrous for our environment. [Italics supplied.]
We are in full agreement with their views and recommend that sec-
tion 511 (d) of the bill be deleted.
Secretary of the Interior Morton, at joint hearings before the Sen-
ate Interior and Public Works Committee on March 9, 1972, testified
that he didn't think the law [NEPA1 needs changing. We have got to
learn to administrate under it. I think -we haven't given it a- fair
chanced (Italics supplied.)
We concur with the Secretary. His comments are sound.
After all, the law is just two years old. Many agencies only recently-
have established procedures for complying with it.
In the vast majority of agency actions, the agencies have prepared
their draft and final environmental impact statements in accord with
the law and if the project was environmentally sound then proceed
with the projects. In only a relatively few instances, where the agency
egreliously violated or failed to comply with the law, have courts
[p. 406]
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WATER STATUTES AND LEGISLATIVE HISTORY 611
found it necessary to require the agencies to defer project action until
they complied with the, Act.
If there may be a need to clarify some of NEPA's provisions, we
urge that this not be done hastily. Certainly, it should not be done in
this heavy meat-ax manner.
The House Merchant Marine Committee, which has jurisdiction over
NEPA will be holding hearings on it in the near future. Let that Com-
mittee consider that need and reocemmend the proper changes, after
full public hearings.
F. H.R. 11896, UNLIKE S. 2770, LETS THE CORPS AND THE BUREAU or
RECLAMATION, NOT EPA, MAKE WATER QUALITY DECISIONS
Section 102 (b) of the bill quite properly discourages the "inclusion
of storage" water at a Corps or Reclamation Bureau reservoir project
to regulate "streamflow for the purpose of water quality control."
The bill, also like present law, lets the Corps and the Bureau deter-
mine, with the advice of EPA, whether there is the "need for and the
value of storage" for regulating streamflow for the purpose of water
quality control.
But we believe that this determination should be made by EPA,
rather than the other agencies. Only EPA is steeped in water quality
knowledge.
The Senate bill recognizes this and gives EPA this responsibility.
It is interesting to note also that section 102(b) (5) of the bill spe-
cifically precludes the Federal Power Commission from including
storage for that purpose in projects licensed by the FPC, unless such
storage is recommended by EPA. Moreover, the stated purpose of the
NEPA amendment referred to above is to let EPA and not other Fed-
eral agencies, make all water quality decisions.
We generally concur in that philosophy. Certainly, all Federal
agencies should be aware of, and should consider, water quality mat-
ters, but undoubtedly EPA is best equipped to make final water qual-
ity determinations based on a complete record.
We recommend that section 102(b) (2) of H.R. 11896 be amended
to require that EPA determine whether a Corps or Reclamation proj-
ect should include storage of water for regulation of streamflow for
the purpose of water quality control.
G. THE BILL UNNECESSARILY LIMITS THE CITIZEN'S ABILITY TO PAR-
TICIPATE IN CIVIL SUITS TO HALT POLLUTION AND TO REQUIRE EPA
To ENFORCE THE LAW
Section 505 of the bill provides that citizens may institute suits
against polluters for the purpose of halting that pollution, and against
the Administrator of EPA where he fails to perform "any act or duty
. . . which is not discretionary." But section 505 (g) of the bill largely
curtails this power through the device of defining the term "citizen"
so as to affect adversely a citizen's standing to sue.
First, a citizen must be "of the geographic area" and must have "a
direct interest which is or may be affected" to initiate the suit.
The bill does not, however, define, either for the citizen or for the
courts, what "geographic area" is involved, or what is the "direct in-
terest ... affected".
[p. 407]
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612 LEGAL COMPILATION SUPPLEMENT I
Congress should not enact such vague and ambiguous language.
Even if the committee's report, or debate on the floor, might be re-
sorted to in order to explain these vague terms, Congress should not
enact such ambiguous statutory language. Very few citizens have easy
access to legislative history. They should be able to know their rights
on the basis of the statutory language. Furthermore, even with the
best legislative history, the enactment of vague statutory language is
simply an invitation to the courts to disregard the intention of Con-
gress and devise their own interpretations.
Under this definition, a citizen living in Ohio or Alabama, but own-
ing recreational property along the shores of a waterway in another
State, which such person uses from time to time, probably would not
have standing to sue even though that citizen's property is "affected".
Even if that citizen is "of the geographic area", the right to sue is
further curtailed by the additional requirement that the citizen must
have a "direct interest which is or may be affected". Such language
may be construed as authorizing suits only by persons owning prop-
erty which is directly affected by the pollution, and as not including
those members of the public who use or may use and enjoy a waterway.
Second, another major defect in section 505(g) is that it also defines
a "citizen" as including "any group of persons". That normally would
be fine. But the definition does not stop there. It goes on to limit the
"group of citizens" which may sue to prevent pollution by specifying
that the group must have been "actively engaged in the administrative
process and has thereby shown a special interest in the geographic area
in controversy". Thus, to prove its standing to go into court a group
must not only show a "special interest" in the particular "geographic
area", but must also prove that special interest by one particular
method—namely—by having "actively engaged in the administrative
process".
There are at least three grave deficiencies in this requirement:
(a) Suppose a hunting club, or any company for that matter, owns
property which is being "directly affected" by the pollution or by
EPA's violation of law or regulation. That club, or company, not being
a "citizen", would not be included in the first definition, even though
its property is directly affected. The only way it could preserve its
right to go into court would be to "actively engage in the administra-
tive process".
Such discrimination between the individual property owner and a
group which owns property is unjustifiable and probably unconstitu-
tional.
(b) But there is even a greater defect in the requirement of having
"actively enagegd in the administrative process." The February 24
letter of the eleven members of Congress, pithily pointed out:
All too often the administrative process is either clothed
in secrecy, or affords so little time that citizen groups cannot
adequately prepare to challenge a permit, or a polluting dis-
charge, in the hurried administrative procedure. Then, having
been edged out of the administrative proceeding, they will,
under this bill, find themselves foreclosed from "standing"
for seeking judicial relief.
[p. 408]
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WATER—STATUTES AND LEGISLATIVE HISTORY 613
We are confident that the courts would be alert to invoke the doctrine
of laches in the rare case where a group, despite ample notice and
opportunity to prepare and participate in adequate administrative pro-
ceedings, nevertheless deliberately stayed out of those proceedings
and intentionally endeavored to use the judicial process for purposes
of delay. The bill need and should not limit the right of all citi-
zens and groups to-obtain judicial relief, merely in order to deal with
this remote problem, if it, indeed, exists.
-3ztoavmwotrspordg5 yfihan-ufidh
(c) The words "actively engaged", special interest", and "geo-
graphic area in controversy" boggle the mind. What do they really
mean? What criteria will be applied by the courts to determine (i)
how much the group must do in the administrative proceeding to dem-
onstrate that hVwas "actively engaged" therein; or (ii) whether the
group's interest is "special" or not sufficiently "special"; or (iii) what
is the extent of the "geographic area in controversy"? "
These are all undefined and vague terms which will breed unneces-
sary and collateral controversy. They will unjustifiably hinder the
right of citizen groups to obtain judicial relief from unlawful acts by
polluters and by EPA.
Third, section 505 (g) is a drastic departure from the pattern and
policy which the Congress has already adopted to enable citizens to go
to court to protect the environment.
The Clean Air Act amendments of 1970 (Public Law 91-604) pro-
vide for citizen suits. Its provisions on citizen suits were virtually
copied into the Water Pollution Control bill passed by the Senate
(S. 2770) last November. And just this February, the House passed
the Noise Control bill (H.R. 11021) which contained virtually iden-
tical citizen suit provisions. None of them had the restrictions that
would be imposed by section 505 (g) of H.R. 11896 which we are now
considering. There is no reason or justification for a different rule in
this bill.
The fundamental principle which is here relevant was concisely
stated in the February 24 letter of the eleven Congressmen, as follows:
The question of "standing" is peculiarly a judicial princi-
ple. It ought to be left to the courts to determine who has
"standing" sufficient to complain about a substantive viola-
tion of law.
We recommend that section 505 (g) of H.R. 11896 be deleted and
that the entire section follow the pattern already adopted in the Clean
Air Act and the noise control bill.
H. THE BILL WOULD EMASCULATE THE FISH AND WILDLIFE
COORDINATION ACT
Section 511 (b) of the bill with one stroke of the pen broadens the
scope of the Fish and Wildlife Coordination Act and .with another
drastically restricts that law.
The bill specifically establishes that the policies and requirements
of the Fish and Wildlife Coordination Act "shall apply only to the
provisions" of the bill relating to (a) national standards of perform-
ance (sec. 306), (b) the publication of information (sec. 304), and
[p. 409]
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614 LEGAL COMPILATION—SUPPLEMENT I
(c) the establishment of guidelines (sec. 403). [Italic supplied.] It
will not apply to:
(a) permits issued by EPA under section 402 of the bill; or
(b) permits issued by the Corps for dredged or fill material.
With this amendment, the Interior Department's Bureau of Sport
Fisheries and Wildlife and the State fish and game agencies will no
longer have statutory authority to review and comment on permit
applications to discharge wastes or dredge and fill materials into the
navigable waterways. There is no justification for eliminating such
review and comment by these agencies.
We recommend the deletion of the word "only" in section 511 (b).
With this change, the Coordination Act will apply, as it does today,
to those permits.
I. THE BILL STRANGLES PROGRESSIVE STATES Ix REGARD TO SEWAGE
DISCHARGE FROM VESSELS
The dumping of human wastes from boats—particularly small and
medium-sized pleasure craft—has become an increasingly acute prob-
lem in recent years. Individual States have differed as to whether to
require merely a certain degree of treatment before such wastes are
dumped into the water or to prohibit such dumping altogether and
require the installation of onboard holding tanks which are pumped
into shoreside facilities. A sizeable number of States, including the
State of New York, have taken the latter course.
Section 13 of the Federal Water Pollution Control Act (33 U.S.C.
1163) directs the Secretary of the Interior to promulgate Federal
standards of performance for marine sanitation devices. These
standards—
* * * shall be designed to prevent the discharge of untreated
or inadequately treated sewage into or upon the navigable
waters of the, United States * * *
But they may permit dumping of such wastes into the water so long
as there is some treatment.
The initial standards and regulations under the section are to be-
come effective for new vessels two years after promulgation and for
existing vessels five years after promulgation; in addition, the Secre-
tary of the department in which the Coast Guard is operating (pres-
ently the Department of Transportation) may waive the applicability
of the standards and regulations for individual vessels or classes of
vessels.
Subsection (f) of section 13 preempts the existing role of the States
in this area once the initial standards and regulations take effect,
though it does allow them to seek from EPA prohibitions on dis-
charges for specific waters within their borders.
EPA published proposed regulations pursuant to section 13 in the
Federal Register on May 12, 1971, but they have not been officially
promulgated. The proposal would not prohibit all discharges, but only
those— r .., „-,
[p. 410]
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WATER—STATUTES AND LEGISLATIVE HISTORY 61 5
* * * containing visible floating or settleable solids; and * * *
which * * * without dilution other than that normally used
for flushing purposes, [do] not contain:
(1) Total coliform bacteria in excess of 240 per ml.;
(2) Biochemical Oxygen Demand in excess of 100
mg./l; and
(3) Suspended solids in excess of 150 mg./l.
As was mentioned previously, the existing law provides that the
initial standards and regulations relating to marine sanitation devices
are to take, effect two years after promulgation for new vessels and five
years after promulgation for existing vessels. Until those effective
dates, boats are subject to regulation by the States.
The pending bill, in addition to renumbering section 13 as section
312, would amend subsection (f) to provide that once the initial stand-
ards and regulations are promulgated, they will be immediately appli-
cable to any vessel which complies with them. There can be no doubt
that this amendment further limits and strangles what little authority
the States have in this field.
The preemption feature of section 13 was, in our opinion, a mistake
from the beginning. It is most disappointing that a bill which declares
it to be;—
* * * the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of the States
to prevent and abate pollution * * * (sec. 101 (b)).
further weakens the power of the States relative to marine sanitation
devices instead of strengthening it.
The legislation should amend this section of the law to permit any
State to prohibit completely the discharge of sewage from vessels
where it determines that the protection and enhancement of the qual-
ity of some or all of its waters requires such a prohibition. The Federal
standards would then represent the minimum, rather than the maxi-
mum degree of purity of marine sanitation discharges, and the "States'
rights'' policy uo eloquently expressed in section 101 (b) of the bill
would also be effectuated as a matter of substance.
J. THE DEFINITION OF POLLUTION GIVES THE OIL INDUSTRY AN UNAC-
CEPTABLE AND IMPROPER EXCEPTION FROM POLLUTION CONTROL
The definition of a ''pollutant'' in section 502(6) specifically
exempts "water, gas, or other material which is injected into a well to
facilitate production of oil or gas, or water derived in association
with oil or gas production and disposed of in a well . . . ." Under
this exemption, pollution of ground water by the oil industry will
not be deemed pollution, while pollution resulting from poor well-
disposal practices by any other industry is pollution.
This exemption has the effect of preventing the EPA from even
studying or publishing information on, or making plans to control,
pollution of ground water from the oil industry's injection wells.
There is no reason why the oil industry should qualify for a special
exemption. Since injection well disposals are not covered by the permit
system under section 402, the net effect of eliminating this exemption
would be to permit the Administrator to conduct planning for the
[p. 411]
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616 LEGAL COMPILATION—SUPPLEMENT I
safe handling of well disposal and to gather and publish information
on the subject.
We should not shut our eyes to possible contamination of our
groundwater resources.
K. THE TWO-YEAR EXTENSION IN SECTION 301 OF THE BILL ENCOUR-
AGES DELAY IN INSTALLING THE BEST PRACTICABLE TECHNOLOGY
Section 301 (b) (3) of the bill provides that EPA may grant an
extension of up to two years for polluters who have not installed the
best practicable technology (in the case of private sources), or tech-
nology providing for secondary treatment (in the case of publicly
owned sources) by January 1,1976.
All that a source need demonstrate to get this two-year free ride
is that it "is not possible either physically or legally to complete the
necessary construction within the statutory time limit." There is ab-
solutely no requirement that the failure to comply be the fault of a
third party, act of God, or like cause.
This provision encourages polluters to delay compliance and in
fact places a premium on their doing so. A corporation which can
delay for two years the expenditure of capital funds has the use of
that money for that length of time and can invest it elsewhere for
profit-making purposes.
At the very least, the granting of any extension of time should be
contingent upon a strong showing that the applicant made aggres-
sive, good faith efforts to comply and was prevented from doing so
through no fault of its own.
L. THE BILL DOES NOT PROVIDE ANY CRIMINAL SANCTIONS AGAINST
POLLUTERS WHO WILLFULLY OR NEGLIGENTLY VIOLATE AN EPA
ORDER To ABATE THEIR POLLUTION
Section 301 of the bill provides that "the discharge of any pollutant"
is "unlawful", except in compliance with a permit or certain other
sections of the bill.
Section 309 of the bill contains the enforcement sections of the bill.
However, it is garbled and defective in several respects.
Section 309 provides three types of enforcement action against a
violator:
(1) EPA can issue an administrative order requiring the vio-
lator to comply with the law (pars, (a) (1) and (a) (3)). If the
violator does not comply, he is subject to a civil penalty up to
$10,000 per day (par. (d)).
(2) EPA can bring a civil action for injunction (par. (b)).
(3) Any person who willfully or negligently violates certain
sections of the act, or the permit conditions implementing those
sections, may be punished criminally by fine ($2500-$25,000 per
day) or imprisonment (not more than 1 year) or both (par. (c)).
But these apparently good enforcement tools are impaired by what
mav be drafting defects:
First, both paragraphs (a) (1) and (a) (3) of section 309 sav that
the Administrator "shall issue an order or shall bring a civi1 notion."
Although a violation of an order may lead to the civil penalty of up
[P- 412]
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WATER—STATUTES AND LEGISLATIVE HISTORY 617
to $10,000 per day, it is unclear whether the EPA, having elected to
issue an order, may then seek civil injunctive relief under para-
graph (b).
Second, although section 309 (c) provides criminal penalties for
willful or negligent violation of the law or permit conditions, it does
not impose criminal penalties for violation of the EPA order, no
matter how "willfully or negligently'' the violation occurs.
Certainly, in these respects, the House bill is weaker than the Sen-
ate-passed bill (S. 2770) which does not have these defects.
An order—administrative or judicial—should not be treated lightly.
Failure of compliance should be a grave offense. Even more serious,
however, is the case where the offender "willfully or negligently" fails
to comply with an order. Certainly, such unlawful actions deserve
criminal as well as civil sanctions. The Senate bill provides them and
the House bill should also.
M. THERE FOLLOWS THE FULL TEXT OF THE LETTER FROM ELEVEN or
OUR COLLEAGUES TO THE PUBLIC WORKS COMMITTEE
HOUSE OF REPRESENTATIVES,
Washington, D.C. February 24,1972.
Hon. JOHN A. BLATNIK,
(Chairman, Committee on Public Works, House of Representatives.
Washington, D.C.
DEAR MR. CHAIRMAN : We understand that your committee will soon
- report out H.R. 11896, with amendments, consistent with the policies
and goals that your committee announced last December 15. Several
features of the legislation, as we understand it, give us some concern.
We take this opportunity to indicate which ones they are and to make
some suggestions about them.
1. The Fish and Wildlife Coordination Act.—Section 511 (b) of
H.R. 11896 makes the Coordination Act specifically applicable to the
sections of the bill on national standards of performance, the publica-
tion of information and guidelines regarding water quality, and the
establishment of ocean discharge criteria. We support this broadened
application of that Act. But, in broadening the Act, the bill also weak-
ens the Coordination Act by making it inapplicable to the new permit
program established under section 402 of the bill.
The Senate bill includes this same limitation.
When President Nixon issued Executive Order 11574 establishing
the Refuse Act permit program, the then proposed Corps of Engi-
neers regulations also limited the Coordination Act in regard to its
applicability to Refuse Act permit applications. After joint hearings
by the House Conservation and Natural Resources Subcommittee and
the Senate Subcommittee on the Environment in February 1971, at
which many of us spoke out against such a limitation, the Corps agreed
it was inappropriate and dropped it in promulgating its final regula-
tions last April.
We urge that section 511 (b) of H.R. 11896 be amended so that the
Coordination Act is applicable to the new permit program. This will
insure that State fish and game agencies, N.O.A.A., and the Fish and
Wildlife Service will have the same opportunity to review and com-
ment on these permit applications as they now have in the case of all
permit applications filed under the River and Harbor Act of 1899.
[p. 413]
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618 LEGAL COMPILATION—SUPPLEMENT I
We think that such review and comment by these agencies is essen-
tial for the protection of the Nation's fish and wildlife resources.
2. The Refuse Act of 1889.—Neither H.R. 11896 nor the Senate bill
(S. 2770) repealed the Eefuse Act of 1899 or amended it so as to make
it ineffective as an anti-pollution tool. Your committee's announcement
on the bill stated that "no new permits" would be issued "under the
Refuse Act." Presumably that did not mean that the law itself would
be affected. However, a number of suggestions recently have been
made to repeal, in effect, the 1899 law as an anti-pollution tool.
We think such a step would be disastrous and urge that you not do
so.
On January 29, 1972, an Assistant United States Attorney in New
York told the New York State Bar Association that the 1899 law "has
emerged as the primary pollution abatement statute . . . for the sim-
ple reason that it, alone, has proven enforcible . . . (and) that the
Refuse Act has developed into a superior enforcement tool for the bet-
terment of our environment." In grading the Refuse Act, he said:
"It has and is creating a climate in which industry—the potential
defendants—now feels a growing certainty that it can no longer pol-
lue with impunity, and;
"It has and is creating a climate in which local and state agencies
can become more stern in their enforcement policies.
"Much remains to be done. But in my opinion, there could not be a
more explicit mandate than is now found in the Refuse Act; nor
could that be a more workable scheme of enforcement than has evolved
under the present statute."
We concur with his remarks.
The 1899 law has given concerned citizens and citizen groups an
opportunity to participate with their Government in halting the
pollution of our waters. If Congress effectively repeals the Refuse
Act. as an anti-pollution tool, the credibility of the Government's
anti-pollution effort will be severely strained.
We urge that you retain the 1899 law as a "pollution abatment
statute."
3. The National Environmental Policy Act of 1969.—Section 511
(d) of H.R. 11896 provides that the "requirements" of NEPA "as
to water quality considerations shall be deemed to be satisfied" by
a certification issued by a State with respect to Federal licenses or
permits involving a discharge into navigable waterways. This would
include licenses or permits issued by the Corps, Environmental Pro-
tection Agency, Atomic Energy Commission, Federal Power Com-
mission, and other agencies.
We are concerned about the meaning and scope of this provision.
First, the word "requirements" includes the directives in section
102(1) of NEPA that all "policies, regulations, and public laws of
the United States shall be interpreted and administered in accord-
ance with the policies'' of NEPA. Second, it includes the directives
in section 102(2) of NEPA that all agencies "utilize a systematic,
interdisciplinary approach" in planning and decision making "which
may have an impact on man's environment." Third, this word in-
cludes the directives in section 102(2) (C) that a detailed environ-
mental impact statement be prepared in the case of actions that
"significantly" affect the quality of the environment. Such an amend-
[p. 414]
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WATER—STATUTES AND LEGISLATIVE HISTORY 619
ment would result in a serious weakening of NEPA and be disastrous
for our environment.
Since enactment NEPA has caused needed revisions of Federal
agency procedures which are enabling the public to have a more sub-
stantial input into agency decisions. It has broadened the opportunities
of Federal, State and local agencies to express their views on the en-
vironmental effects of Government actions. Federal agencies have
given greater attention to the environmental effects of their pro-
posed actions.
The requirement that Federal agencies prepare environmental im-
pact statements has given Federal agencies an opportunity to face
the problems of pollution early. They look at them while they are
still of manageable proportions and while alternative solutions are
still available, rather than wait until it may be too late,
We feel certain that your committee does not want to make changes
in NEPA that would weaken its effectiveness. At the same time, we
recognize your committee's desire to insure that water quality deter-
minations, in the case of discharges, are made only by EPA and not
by a multitude of agencies. We could support a provision in the bill
that makes that clear, so long as other environmental considerations,
not solely in EPA's province or expertise, such as the location of the
discharge facility or plant and fish and wildlife considerations, are
not circumscribed by such a provision. We think they would be if
the current language of H.R. 11896 was adopted.
Some suggestions have recently been made that the environmental
impact statements requirement of NEPA be waived in the case of
-permits issued under section 402 of the bill or the Refuse Act. The
fear expressed is that, if such statements are required, the permit
program will be bogged down.
The Government, in the Kalur case, is contending that such state-
ments are not required for Refuse Act permits. In that case, the
Federal district court held that they are required. The Government
has appealed. We think that Congress should await the outcome of
that decision and not act hastily by amending NEPA. In the mean-
time, the House Merchant Marine and Fisheries Committee will hold
hearings in a few weeks on NEPA, at which time we are sure that
better evidence about the seriousness of the problem will develop.
4. Employee Protection.—We are deeply concerned about the prob-
lem of industrial plant closings, with the resultant loss of jobs and
economic disruption to communities. All too often, the reasons as-
cribed by industry for such closings are governmental requirements
established to protect and enhance our environment. We have seen
examples of plant closings in one State and the production of that
plant shifted to another State. In some cases, governmental anti-
pollution reqiiirements may result in such closings, but more often
than not, other factors, such as age and size of the plant, are the
root cause.
This is a serious problem; one, that could seriously undermine
efforts to improve water quality.
We think that H.R. 11896 must provide the means for resolving
this problem and protecting the Nation's work force.
We think this problem could be helped if EPA is given an oppor-
tunity to review permit applications, and, where appropriate, reject
[p. 415]
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620 LEGAL COMPILATION—SUPPLEMENT I
those not environmentally sound, and if EPA establishes minimum
effluent requirements on an industry-wide basis. With these two
measures, there would be better assurance that a company would
not "shop around" to locate a plant in a State with less strict anti-
pollution requirements.
We also urge the following as a solution to this problem:
First, there should be a continuous detailed Federal investigation,
including hearings, of industry to determine potential employment
loss from enforcement of the Federal Water Pollution Control Act,
particularly where the employer alleges the closure is due to such
enforcement.
Second, where a closure does occur, prompt economic assistance
should be provided to laid-off workers and, if necessary, the community
affected.
We note that representatives of labor have furnished your commit-
tee with proposals relating to these matters. We urge sympathetic
consideration of these.
5. National Academies Study.—Section 315 of the bill calls for
a study by the National Academy of Science and the National Academy
of Engineering "of all aspects of the total social and economic effects
of achieving or not achieving'' the 1981 requirements and 1985 goals
set forth in the bill. We think that such a study will be quite useful.
However, we do not think the study should delay implementation of
them.
The NAS-NAE study will take two years to complete. Thus, it
will be 1974 before Congress could even begin to evaluate the study
results and act. We think this is too long a period to wait.
By establishing these requirements and goals now, we will be
encouraging long-term "planning by industry, and, most importantly,
the development of technology to achieve them. On the other hand,
by postponing their establishment, we will be increasing the costs
of eventually cleaning up. Polluters will install technology to meet
the bill's earlier 1976 requirements which may be incompatible with
the control methodology needed to meet the later stronger require-
ments; if industry knew this earlier, it could act responsibly and in-
stall the needed technology. Industry deserves to know now what
will be expected down the road. Establishment of these requirements
and goals will also make industries see. that it is to their advantage
to join with municipalities in regional treatment systems. If industries
see only low control requirements on the horizon, many of them will
believe they can do the job more cheaply by themselves, thus forcing
our municipalities to go it alone in these systems and sacrificing sav-
ings that would come with larger scale operation. The 1981 require-
ments specifically provide for "taking into account the cost of such
controls," direct that the requirements only be implemented when
they can be carried out at a "reasonable cost," and, in another section,
require a balancing of costs and benefits before imposing high controls.
If the NAS-NAE study shows that the 1981 requirements and
1985 goals are unrealistic,'we feel sure that Congress will respond.
But we should not, in one part of the bill, tell the public we are
establishing goals and then, in another part of the bill, tell the public
that the goals are ineffective until Congress passes a new law several
vears later.
[p. 416]
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WATER—STATUTES AND LEGISLATIVE HISTORY 621
We urge that these goals be established now.
6. Citizen* Standing to Sue.—The bill provides for citizen par-
ticipation through citizen suits, but adds restrictions and limitations
concerning the citizens'1 standing to sue.
The question of "standing"' is peculiarly a judicial principle. It
ought to be left to the courts to determine who has "standing" suf-
ficient to complain about a substantive violation of law. But the bill
proposes to limit such "standing" by at least two devices:
First, it would allow only those "citizens of the area where the
direct interests are affected" to initiate suit. It does not define what
"area" is involved, or what is a "direct interest." Presumably, how-
ever, a citizen of Texas, no matter how much property he might
have around San Francisco Bay, would be ineligible to complain about
pollution of the Bay, because he is not "a citizen of the area." Even if
he is a citizen of the San Francisco Bay area, the addition of the
words "where the direct interests are affected" in conjunction with the
matter of the citizen's "standing" seems to imply (or at least may lead
to the interpretation) that the interest affected must be that citizen's
"direct interest." This, in effect, would allow only owners of property
which is "directly affected" to challenge the violation of anti-pollution
controls, and would exclude the citizen concerned over degradation of
esthetics, scenic view, and water recreational opportunities.
The second device, by which the bill would limit citizen participa-
tion, is that only those groups which have participated in the adminis-
trative process will have standing to initiate any litigation. All too
often the administrative process is either clothed in secrecy, or affords
so little time that citizen groups cannot adequately prepare to chal-
lenge a permit, or a polluting discharge, in the hurried administra-
tive procedure. Then, having been edged out of the administrative
proceeding, they will, under this bill, find themselves foreclosed from
"standing" for seeking judicial relief.
We urge that these limitations be stricken from the bill.
We appreciate this opportunity to present our views and comments
to you. We stand ready to provide to you appropriate amendments
to carry out our recommendations. We have the support of a broad
spectrum of labor, environmental, consumer, professional, and other
organizations in regard to all of these matters.
With every good wish,
Sincerely yours,
Henry S. Reuss, Thomas M. Pelly, John E. Moss, Gilbert
Gude, John H. Dent, Silvio O. Conte, John D. Dingell,
John P. Saylor, Lucien X. Nedzi. Dante Fascell, Floyd
V. Hicks.
N. THERE FOLLOWS EPA's SUMMARY OF NOVEMBER 1, 1971, OF THE
"POSITIVE ASPECTS" or THE REFUSE ACT PERMIT PROGRAM
POSITIVE ASPECTS, OFFICE OF REFUSE ACT PROGRAMS, ENVIRONMENTAL
PROTECTION AGENCY
In recent months we have seen positive action, on the part of in-
dustry as a result of the Permit Program. The following are a few posi-
tive aspects; more are available on request.
[p. 417]
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622 LEGAL COMPILATION—SUPPLEMENT I
1. The Fairfax Drainage District near Kansas City had a storm
sewer that received industrial discharges from 65 companies and
dumped them into the Missouri River. The Kansas City Sewage Dis-
trict had agreed to accept this discharge of industrial waste and to treat
it, but a connecting valve had not been installed, even though the trans-
mission lines were complete. Because of the Refuse Act Permit Pro-
gram, and a 180-day notice, the valve lias been installed and the waste
is being treated.
2. It was agreed upon at the Beet-Sugar Conference held in Den-
ver that the industry should completely recycle process water within
two years which will reduce the amount of pollutants entering streams
from this industry.
3. CPC, International Corporation, in Kansas City, Missouri became
aware of fecal cpliform and fecal strep in its discharge as a result of
the Refuse Act Permit Program application. The company lias agreed
to find the source of this discharge.
4. Bancroft Dairy of Marquette, Mich., installed a lagoon in Octo-
ber to completely halt any discharges from its dairy operations.
5. Benton Harbor Malleable Ind., Benton Harbor, Mich., discharged
its wastes via a sunken outfall to waters which flowed directly into
Lake Michigan. The Company has now connected to a municipal treat-
ment system for treatment of its wastes.
6. Sunstrand, Corp. contacted the EPA Permit Branch in Denver
requesting information on effluent guidelines, chromium treatment and
new legislation. They indicated that pre-treatment, recycle and chro-
mium recovery will be included in their next capital budget.
7. Crown Prince Pet Foods of North Platte, Nebraska applied for
a permit to discharge from holding ponds. A permit review found a
discharge to a combined sewer, hence to the North Platte River. The
access to the combined sewer had been ineffectively plugged with sand-
bags. Nebraska directed the city of North Platte to plug the access
with concrete, which they did.
8. Midwest Rendering of Belleville, Kansas has been discharging
into the Salt Creek, a tributary of the Republic River, without treat-
ment for 15 years. They have now agreed to construct temporary
facilities by January 1, 1972 and permanent facilities by January 1,
1973.
9. Instrument companies, such as the Beckman Company, which
manufactures laboratory testing equipment, have reported that their
sales have increased considerably due to the Refuse Act Permit
Program.
10. A new England Power Company applied for a State permit,
but the State refused to issue one on the basis that the Company's
discharge had high heat content. The company started negotiations
with the State and with EPA in order to reach an agreement on the
discharge. The Company has now begun to cooperate by gathering
data on its waste and, working in its labs, to develop a new means of
discharging in order to diminish the heat and its effects.
11. States set overall implementation dates for discharges, whereas
EPA may set a schedule for each parameter. For instance, EPA met
with GAF, a New Jersey Chemical Company, to discuss specific
parameters and implementation schedules for mercury and other
constituents.
[p. 418]
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WATER—STATUTES AND LEGISLATIVE HISTORY 623
12. GAF also claims that it has benefited from meetings with the
Permit staff because, by studying one installation, it has been able to
review plans for future facilities and discharges.
13. Many companies have expressed the problem of contending with
the variety of State water quality standards, hence giving some com-
panies an advantage over others, depending on the State in which
they are located. The Refuse Act Permit Program can help in creat-
ing national water quality standards.
14. The Program has identified and is limiting toxic constituents
in process water which were previously uncontrolled by the industry.
O. CONCLUSION
We strongly urge other Members to join with our eleven colleagues
in support of strengthening amendments to this very important water
pollution bill.
CHARLES B. KANGEL.
BELLA S. ABZUG.
[p. 419]
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624 LEGAL COMPILATION—SUPPLEMENT I
SUPPLEMENTAL VIEWS ON H.R. 11896
THE FEDERAL WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1972
We support the objective of H.R. 11896, the Federal Water Pollu-
tion Control Act Amendments of 1972. The pollution of our Nation's-
waterways, streams, lakes and coastline must be arrested, and we must
reverse the degradation of our once pure and pristine waters. While
supporting this comprehensive and encompassing piece of legislation,
we view with apprehension the long-range economic impact the bill
may bring to the Nation.
H.R. 11896 sets very high target levels for reduction or elimination
of discharge into water bodies. While high target levels are desirable,
the incremental cost of achieving the successively higher levels of dis-
charge removal accelerate rapidly. During the limited hearings held
in connection with H.R. 11896, Governor Rockefeller of New York
testified that to implement the zero discharge approach the bill con-
tained in New York State alone would cost a whopping $239 billion
for capital investment, operation and maintenance for municipal and
industrial pollution control over the next 25 years. Extrapolating on
this figure by a factor of ten, we can reasonably estimate the cost for
the Nation as a whole to be a staggering $2.34 trillion. Equally sig-
nificant is the lesser increase in benefits associated with this hisih level
of pollution control. As studies have shown, the index of costs can
rise five times while, approaching a high level of discharge removal
while the index of benefits rises only .28 times for the same increase.
Clearly, these figures indicate the caution Congress must exercise
in setting a goal as rigorous as zero discharge These programs are
decisions to use a part of the economy's productive capacity in a cer-
tain way. They cannot but affect our ability to produce.
Embodied in the cost estimates is the cost to industry. If industry
were to undertake massive construction of waste treatment plants, pro-
ductivity will diminish and the prices consumers pay will rise. While
no reliable estimates exist for these price rises, they nevertheless will
certainly occur. Our international competitive position, our domestic
national income and our employment levels will suffer. Estimates do
oxist for price increases resulting from total compliance with the
Clean Air Act of 1967. They range from .1 percent to 16.8 percent for
the thirty industries studied, and, while many increases are under
1 percent, international trade responds promptly to price diffpi-PMtials
of a small size. Congress simply cannot ask labor and industry, the
backbone of our economy, to accept these inevitable consequences for
inordinately high levels of discharge removal.
Municipal costs will be borne by the taxpayer. While H.R. 11896
authorizes $18 billion over the next three years for Federal ^participa-
tion in construction of waste treatment plants, localities will have to
[p. 421]
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WATER—STATUTES AND LEGISLATIVE HISTORY 625
maintain and operate these plants. High levels of removal require
skilled operators with highly technical backgrounds. The sheer num-
bers of employees needed to successfully operate these plants will cost
money, and local taxes are the only means by which localities can pay.
In addition, we question what burden this enormous program will im-
pose on the present employees of the Environmental Protection
Agency. We fear a vast expansion of Federal employment to process
the huge amount of permits, applications, and other necessary paper-
work. To meet the projected costs for high levels of discharge removal
clearly goes beyond' the means of the treasuries of local, State and
Federal governments. Only if the citizens of our Nation are willing to
tax themselves much more than they presently do will governments be
able to finance the demand for discharge removal costs.
Last year, the projected Federal budget margin, or expected reve-
nues not yet specifically committed, for fiscal year 1975 was $22 bil-
lion. The projected margin for fiscal year 1975 now stands at $12
billion, or a little more than half of what it was a year ago. Present
programs are eating away at projected available funds. Either higher
taxes or reduced program activities is the only way to provide the
vast commitment of funds necessary for the pollution control program
envisioned.
Our Nation is facing serious electrical energy shortages. Yet, in this
legislation we would impose additional electrical energy demands.
Both municipal and industrial waste treatment facilities for high
levels of discharge removal would require a great deal of energy. The
additional numbers of treatment plants will also act as a drain on our
critical electrical supplies. We question whether these demands can be
met. We also question whether or not this energy requirement would
be self-defeating for the more electrical energy one generates, the
more pollution one produces.
Although some information exists concerning the economic impact
of H.K. 11896. we are still not satisfied that information is complete.
The four days of hearings held in December dealt with all major
issues of this comprehensive piece of legislation. Economic impact Avas
but one issue among many covered. We need more detailed informa-
tion on potential price increases, employment impacts, balance of
trade effects and budget commitments which will result from passage
of this legislation so that sound decisions can be made on the course
we wish to follow. If these decisions are made with a clear awareness
of the magnitude of future claims on our economic resources, they
can contribute to orderly fiscal and economic planning. If new pro-
grams are taken 011 without seeing clearly the magnitude and char-
acter of future commitments, they may adversely affect our capability
in the future to produce efficiently, thereby imposing severe strains
and distortions on the economy. We have a duty of candor to the
American people. We have a responsibility to legislate a realistic pro-
gram rather than legislate one which offers more promise than per-
formance.
ROGER H. ZION.
JOHN H. TERRY.
[P. 4:22]
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626 LEGAL COMPILATION—SUPPLEMENT I
ADDITIONAL SUPPLEMENTAL VIEWS BY
JOHN H. TERRY
I have joined my colleague, Mr. Zion, in the preceding views. In
addition, I am vitally concerned that the role of the States has, under
the provisions of this bill, been eroded relative to their initiative in the
area of water pollution abatement.
While the legislation makes it the policy of the Congress to recog-
nize, preserve and protect the primary responsibilities and rights of
the State to prevent and abate pollution, I firmly believe that these
responsibilities and rights have been usurped by the extraordinarily
detailed and tremendously broad areas of responsibility that have
been given to the Administrator of the Environmental Protection
Agency. To paraphrase one of our esteemed colleagues, the Honorable
Jamie L. Whitten of Mississippi, concerning the Senate version of this
legislation, it would give a good administrator more power than he
would want and a bad administrator more power than he should have.
I am wTell acquainted with the administrative prowess of William
Ruekelshaus.
Our bill also conveys considerable power into the hands of the
Administrator, including responsibility over the most minute details
of the programs of the States. To quote from the views expressed by
the esteemed junior Senator from New York, James Buckley, ". . .
the Administrator must stipulate the elements which a state program
must include, he is required to judge the acceptability of the system
of charges which each and every applicant will impose upon all users
of waste treatment services as a condition of receiving a grant; he
must determine the capability of 50 states to qualify for delegation
of authority for a waste discharge permit system; he must approve
waste treatment management plans for each State and each regional
agency created within each State; and he must, once he has disposed
of all these duties, continue to be responsible, as the ultimate enforcer.
for the maintenance of every last provision imposed upon him and
upon the States by this Act, whether or not these minutiae actually
affect the achievement of water quality standards."
I submit that this awesome task we have set forth to accomplish
in this bill cannot be quickly or efficiently carried out in the time frame
provided for in the legislation. There is simply too much to be done
and not enough people to do it.
In response to my question at the House hearings in December, the
EPA Administrator testified that six months was the earliest that he
would expect to approve any State permit program; and during that
period he would expect to have 90% of the Nation's waste discharges
(represented by 10% of the sources) under permit. In many States
this would be an extremely confusing (to the dischargers) duplication
of State permit issuance. Not only would it be wasteful of manpower,
[p. 423]
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WATER—STATUTES AND LEGISLATIVE HISTORY 627
but it would place dischargers under possible double jeopardy, and
undoubtedly delay abatement due to a great increase in appeals for
judicial review and a clogging of the courts. Some administrative re-
view procedure for proposed EPA guidelines and EPA actions, with
regard to approval of State permit programs seems essential to avoid
such consequences as well as assure a meaningful State role and
rational guidelines.
In addition to this, the States are essentially without any review
procedure other than by the U.S. District Courts. Section 509, which
deals with administrative review procedures, requires an application
to U.S. District Court within 30 days of EPA determinations subject
to review. Here administrative reviews is possible, but the time allowed
is much too short. It is my feeling that the time allowed should be
doubled. Many other significant areas in the legislation where the ad-
ministrator has a great deal of discretionary action are, however, with-
out such review. These include Section 204, the construction grant lim-
itations and conditions, Section 303, the water quality standards and
implementation plans, Section 304, the Federal guidelines, and Sec-
tion 402, the permit program.
Since the permit program is fundamental to implementation of the
Act, and guidelines~promulgated by EPA under Section 304 are key
to the pollution control conditions for discharge under the permits,
whether issued by EPA or by a state after EPA approval of a State
program, an administrative review procedure of Section 304 guide-
lines, prior to their promulgation, and EPA approval or disapproval
- of State permit programs is essential. Otherwise, the so-called primary
State role is not meaningful.
Finally, a few comments on the reimbursement and advance con-
struction provisions of the House bill.
Post 1966 projects eligible for only a 30% Federal share would not
be eligible for 50% (i.e., retroactive grants to provide an additional
20% in Federal funds), as in the Senate bill, unless 25% State grants
have previously been made or are made retroactively. New York would
gain only 4.1 million from this provision.
I think the House requirement of a 25% retroactive State grant, to
be made by many States, would be patently unfair, particularly due to
the provision for a greater Federal share and lesser State share for
future projects.
The $2 billion authorization in Section 206 needs to be increased to
$3 billion if reimbursements include retroactive grants to increase the
Federal share from 30% to 50% for all States. Otherwise, no State
will receive more than two-thirds of the funds for which they are or
would be eligible.
In conclusion, I would again like to stress that I support the objec-
tive of this legislation. We must stop the pollution of this nation's
waterways, streams, lakes and coastlines and arrest their future de-
gradation. This bill will do much in this fight to clean up our country's
navigable waterways.
JOHN H. TERRY.
U. S. GOVERNMENT PRINTING OFFICE • 1973 O - 525-310 I_P' 424J
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US Environmental Protection
XtiSS** s
Chicago, minois 60604
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