States
mental Protection
Office of
Public Awareness (A-1Q?)
Washington DC 20460
Novenmar 1978
OPA 129/8
_ *. '
A Guide
to the*Clean Water
Amendments
*
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Contents
Introduction i
Background 1
Why Amend the 1972 Law? 2
Technology Related
Amendments
Pollutant Classification and
Control System 5
Municipal Pollution 5
A New Classification System for
Industrial Pollution 6
Toxic Pollutants and Hazardous
Substances 7
Innovative and Alternative
Technology 8
What is Alternative and
Innovative? 8
Major 1977 provisions for
Innovative and Alternative
Technology 9
Innovative and Alternative
Technology Related Provisions 10
Cost Effectiveness 1 0
Pretreatment 10
Sludge Management 1 1
Institutional
Amendments 13
State Role 1 3
Needs of .Small Communities and
Rural Areas 1 4
Agricultural Pollution Provisions 1 5
Dredge and Fill Program 16
Sewer Policy 1 6
Treatment Deadlines 1 6
Areawide Waste Treatment
Management (208)
Amendments 17
Federal Facility Compliance 17
Additional Amendments 19
User Charges/Industrial Cost
Recovery 19
Buy American 1 9
Clean Lakes 1 9
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Introduction
This guide explains the major 1977 amendments to the Federal Water Pollution Control Act,
known as the Clean Water Act. Congress first approved national water quality legislation in
1948, and has updated it periodically since that time. The 1972 Act (PL 92-500) represented a
major course change in Federal water pollution control law. In contrast, the 1977 legislation
provides adjustments commonly referred to as "mid-course corrections" to an on-going
program.
Background: The 1972 Prior to 1972, the central national strategy for controlling water pollution was to base clean-up
Amendments requirements on the desired uses of effluent-receiving waters (drinking water, body-contact
recreation, fishing, navigation, etc.) as determined by State governments, and the water quali-
ty conditions necessary to support those uses. Accordingly, the state water pollution control
agency applied a "water quality standard" to each stream or portion of a stream, and where
this water quality standard was not being met, sought to determine the responsible
discharger(s) for enforcement action. As increased or new discharges were introduced, it was
intended that treatment capabilities be upgraded in order to maintain the quality of the receiv-
ing waters. This strategy was generally ineffective due to a number of political, technical, and
legal weaknesses: stream use designations tailored to protect or attract industrial development,
inadequate information on the cause and effect links between discharges and water quality, in-
adequate consideration of the health of aquatic ecosystems, problems of equity between old
and new pollution sources, and general inattention to pollution emanating from sources other
than a pipe.
These problems were attacked head-on in 1972 by P.L. 92-500. This sweeping revision of
the Federal Water Pollution Control Act was predicated on the philosophy, as set forth in the
Senate committee report, "that no one has the right to pollute and that pollution con-
tinues because of technological limits, not because of any inherent right to use the Nation's
waterways for the purpose of disposing of waste." The Act established a national goal of
eliminating pollutant discharges by 1985, and directed "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 July 1, 1983."
While the 1972 amendments retained and strengthened the previous system of water
quality standards, they more importantly changed the course of the whole national clean water
effort by:
requiring three phases of nationally uniform industrial effluent limitations"; these limitations
are developed by EPA based upon the economic and technological capabilities of each in-
dustry;
*BPT: best practicable technology, to be achieved by 1977
BAT: best available technology, to be achieved by 1383 (changed to 1334 in the 1977 amer,drncn:si
NSPS" new source performance standards, to be achieved when a new source commences operation Thid
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requiring special controls over severely toxic pollutants (a pollutant-specific approach requir-
ing a great amount of information for proof of toxicity see Toxic Pollutants and Hazardous
Substances section below);
requiring National Pollutant Discharge Elimination System (NPDES) permits for all point
sources of pollution, providing the first major direct enforcement procedure against polluters;
these permits are to be renewed, and upgraded, at least every five years;
requiring national effluent limitations for municipal dischargers, and providing for an ex-
panded Federal program of financial assistance to local governments for planning and con-
struction of wastewater treatment works;
requiring comprehensive river basin and regional water quality planning for both point
sources and nonpoint sources of pollution a provision which set in motion major planning
initiatives in all states.
Why Amend the 1972 Law? Congress has periodically improved the Federal Water Pollution Control Act. Indeed, even as it
adopted P.L. 92-500, Congress clearly anticipated that review, course-correction, and fine tun-
ing would be required soon after 1972. EPA was directed to report to Congress annually on
the measures taken toward implementing the objective of the Act; additionally EPA was
directed to submit biennially a detailed estimate the costs of carrying out the provisions of the
Act and "... 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 1972 amendments also established the
National Commission on Water Quality which was instructed to conduct a three-year com-
prehensive study of the economic, social, technological and environmental effects of achieving
or not achieving the 1983 goals of the Act. In short, Congress well recognizes that the water
quality field is changing rapidly; new problems emerge, new technology is developed, overall
knowledge improves apace. And the law must be adjusted in response.
A practical but especially compelling motivation for the 1977 amendments lay in the fact that
the financial authorizations of P.L. 92-500 applied only until June 30, 1975, with short term
funding extensions voted after that date. The 1977 amendments provide long-term authoriza-
tions, generally to September 30, 1980. Authorizations for the construction grants program ex-
tend until September 30, 1982, generally at $5 billion annually.
The 1977 amendments were shaped in part by what might be described as "institutional
forces." For instance, though recognizing a continuing and important state role in water quali-
ty planning and management, P.L. 92-500 had defined the Federal interest to be both broad
and, in some areas, pre-eminent. Implementation of the 1972 law thus led to some conflicting
interpretations of the division of authorities and responsibilities between Federal and state
agencies. The 1977 amendments respond to this problem by more explicitly defining the roles
of the different levels of government.
Similarly, priority and program decisions by state agencies in response to the 1972 law
tended understandably to focus on urban areas, where problems loomed largest and needs
were found greatest an emphasis which aroused frustrations in some rural communities. At
the same time, agricultural interests began to voice concern about difficulties potentially in-
herent in the Act's language governing nonpoint source pollution and disposition of
dredge-and-fill materials. Accordingly, several of the 1977 amendments deal directly with the
needs and problems of small communities, rural areas, and agriculture.
A third "institutional force" stemmed from findings that lack of compliance with the 1972
law could in a great many cases be traced to failures of the Federal Government to adhere to
its own policies or to follow through on promised actions. Major industry, it was noted in the
Congressional hearings to amend the Act, was better than 85% in compliance; municipalities
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were complying at only 33% level. And, in the words of the Chairman of the Subcommittee
on Water Resources of the Senate Committee on Environment and Public Works, "in many
areas the prime violator of environmental laws has been the Federal Government itself." Most
of the municipal and industrial (facilities waiting to discharge into municipal facilities) failure to
comply was attributed to delays in Federal funding as well as procedural delays (the time it
takes to plan and build facilities for large communities); the President had impounded con-
struction grant appropriations in the early days of P.L. 92-500, and the drafting of regulations
to implement the new law became an extended and uncertain process. In adopting the 1977
amendments, Congress formally noted several Federal shortcomings, and attempted to correct
them.
Probably the most important of the 1977 amendments, however, are those which might be
described as based upon "technological forces" emerging public philosophies and ex-
pressed concerns about chemical pollution, materials recycling, and environmentally compati-
ble technical systems.
The 1977 amendments reflect Congressional recognition that dangerous toxic pollution was
going unabated while much attention was focused on less serious forms of pollution. Major oil
spills on the open seas, carbon tetrachloride contamination of the Ohio River, the Kepone
disaster in Virginia, PCB's in the Great Lakes, and growing concern about the chemical con-
tamination of drinking water supplies nationwide, have driven home the fact that there are dif-
ferent kinds of pollution, and that some kinds pose a greater threat to public health than
others. This recognition, combined with emerging questions about the cost effectiveness of
applying our more stringent technology-based limitations on "ordinary" wastes, led in 1977 to
a new classification of pollutant types, with different requirements specified for each category.
These changes result in a much greater emphasis on the control of toxic pollutants.
Finally, a number of the 1977 amendments reflect a strong Congressional desire to en-
courage deployment of new waste treatment technology in part because it may in some
cases cost less than conventional technology, and in part because it offers substantial en-
vironmental benefits. Beyond that, the 1977 legislation promotes recycling and reuse of pollu-
tion control by-products (effluent, sludge, nutrients), energy conservation, and multiple use of
lands and waters which are components of wastewater treatment systems.
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Technology Related
Amendments of 1977
Pollutant Classification
and Control System
In effect, P.L. 92-500 divided effluent limitations into three categories: municipal (domestic
waste), industrial, and toxic. Unless the quality of the receiving waters dictated more stringent
limitations, different general controls were applied to each category. Municipal discharges were
to meet secondary treatment requirements by July 1, 1977, and municipal best practicable
waste treatment technology (BPWTT) by July 1, 1983. Industrial discharges were subject to in-
dustrial best practicable technology currently available (BPT) by July 1, 1977, and best
available technology economically achievable (BAT) by July 1, 1983. Toxic effluent standards
(including prohibition of discharges) were to be set by EPA in accordance with formal rulemak-
ing procedures, for pollutants placed on a toxic pollutant list.
Problems quickly developed. Provisions of the Act relating to toxic pollutants were cumber-
some (putting a great burden of proof upon EPA to show toxicity) and so subject to varying
interpretation that EPA experienced great difficulty in speeding their implementation. And a
special variance for thermal pollution allowing relaxation of effluent limitations where the
discharger could demonstrate the less stringent controls would not mean damage to fisheries
and wildlife resources quickly turned into a major stumbling block. EPA found itself in court
in both areas.
Meanwhile, national public concern had been growing with respect to pollution of water
supplies, toxic chemicals in the environment, oil spills, and accidential discharges of hazardous
substances. Congress approved the Safe Drinking Water Act in 1974 and the Toxic
Substances Control Act and the Resource Conservation and Recovery Act in 1976. On the
other hand, treatment of conventional industrial wastes was fairly well on schedule (although
compliance by municipalities was lagging).
All of this led Congress to establish in the 1977 amendments a new pollutant classification
system, with different deadlines and treatments requirements for each class. The Chairman of
the Subcommittee on Water Resources of the Public Works and Transportation Committee of
the House put it this way: "The highlight of the bill the most important and far-reaching
amendments are contained in a package of provisions responding to the most critical deficien-
cies of P. L 92-500, dealing with toxic pollutants and the 1983 requirements in the Act for
treatment of industrial discharges. Taken together, they will result in a major redirection and
refinement of the Environmental Protection Agency's regulatory program and immeasurably
improve its capability to achieve the purposes and objectives of the Act."
Municipal Pollution:
Requirements for municipal treatment remain basically as they were established by the 1972
law, except that the 1977 secondary treatment deadline may be extended in some cases
(where construction cannot be completed in time or Federal financial assistance was not
available in time to achieve compliance with the 1977 deadline) to no later than July 1, 1983
which is also the deadline for attainment of municipal BPWTT. In fact, however, there is no
real conflict here, for the standards which EPA has approved for secondary treatment are
closely akin to those it has established for municipal BPWTT.
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A New Classification System Under the 1977 amendments, there are essentially three categories of industrial pollutants:
for Industrial Pollution:
Conventional BOD (biological oxygen demand), suspended solids, fecal coliforms, pH
(acidity), and other pollutants so designated by EPA.
Treatment required best conventional technology (BCT)
Deadline - July 1, 1984
Variances allowed none
Toxic (also see Toxic Pollutants and Hazardous Substances section below) the 1977
amendments specify an "initial list" of toxic substances, to which EPA may add or from which
it may subtract.
Treatment required best available technology (BAT)
Deadline July 1, 1984, or not later than three years after a substance is placed on the
toxics pollutant list.
Variances allowed none
The 1977 amendments leave in force the original pollutant-specific approach.
Treatment required Not applicable (These are effluent restrictions or prohibitions for each
chemical which apply to all dischargers, regardless of treatment technologies.)
Deadline Not later than three years after effluent standard is established
Variances None
Nonconventional "gray area" or "all other" pollutants, those not classified by EPA as
either conventional or toxic
Treatment required best available technology (BAT)
Deadline July 1, 1984, or within three years of the date EPA established effluent limita-
tions, but not later than July 1, 1987.
Variances allowed EPA may permit treatment levels below BAT, but no lower than BPT,
if the discharger demonstrates that either 1) such lower level represents the maximum level
economically feasible and that such level will result in "reasonable further progress" toward
elimination of the discharge, or 2) such lower level is environmentally acceptable.
Some specialized departures from these requirements should be kept in mind:
The 1977 amendments do allow EPA, in lieu of enforcement proceedings where an industrial
polluter has acted in good faith but has not met the 1977 BPT deadline, to extend the BPT
deadline to no later than April 1, 1979.
The 1977 BPT deadline may be extended to July 1, 1983, in cases where the industrial
discharger has contracted to discharge to a publicly owned treatment system, but the public
system is not yet ready to accept the discharge (see later section on extension of municipal
deadlines due to lack of Federal funds).
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The 1984 BAT deadline for nonconventional and toxic pollutant discharges may be extended
to July 1, 1987, to allow replacement of existing production capacity with an innovative pro-
duction process which will result in greater pollution reduction or lower cost, and which has
potential for industry-wide application (see later section on innovative technology).
The 1977 amendments leave intact a 1972 provision for review and upgrading of effluent
limitations every five years. The 1977 legislative history indicates that Congress intends that
guidelines for both BCT and BAT be upgraded on a regular basis.
Toxic Pollutants and |n the 1972 law. Congress attacked the problems of pollution by toxic and hazardous
Hazardous Substances: substances but found it necessary to deal with both issues again in 1977.
P.L. 92-500 had established a formal rulemaking process under which EPA was to identify
toxic pollutants and issue effluent standards (including prohibition of discharge) for control of
those substances on a pollutant-by-pollutant basis rather than by industrial categories.
However, the procedural requirements set forth in 1972 led to a tangle of legal debates
clouded by scarcity of toxicological data as to what was and wasn't "toxic," how much of
a toxic substance was "safe," how much regulation Congress really intended, and so on.
Under these circumstances, EPA proceeded slowly to identify and regulate six chemicals.
The Natural Resources Defense Council (NRDC) and several other citizens groups took the
toxics question to court in a series of cases these resulted in a June 1976 Consent Decree
issued by the U.S. District Court in Washington, D.C. The court decree (NRDC Consent
Decree) mandated that effluent limitations for 21 major industrial categories based on BAT be
established for 65 specified toxic pollutants by December 31, 1979, and implemented by the
July 1, 1983, deadline of P.L. 92-500.
In 1977, Congress rewrote the toxic pollutants portion of the Federal Water Pollution Control
Act, in effect codifying the NRDC Consent Decree though extending the court-imposed
deadlines, and empowering EPA to add to and subtract from the court's list of 65 toxic
pollutants. (Note: the court's list of 65 included some categories and families of substances;
these were refined by EPA to an "initial list" of 129 specific pollutants referenced by the 1977
amendments.) The amendments retain the original pollutant-by-pollutant approach as an alter-
native control technique for particularly pervasive toxic pollutants, but simplify and clarify the
regulatory procedure, with the intent of precluding another administrative impasse.
Under the new legislation, EPA has until July 1, 1980, to promulgate BAT toxic effluent
guidelines, on an industry-by-industry basis, for the Consent Decree pollutants industry be-
ing required to comply by July 1, 1984. For substances later added to the initial list, industry
will have a three year period following promulgation of effluent guidelines within which to
comply with effluent guidelines.
In the 1977 amendments Congress also approved language regulating industrial management
of toxic and hazardous materials which might enter the environment other than through ef-
fluent discharges. EPA is authorized to establish "best management practices" (BMP's) to be
implemented as provisions of NPDES permits, for the control of plant site runoff, leaks,
spillages, sludge and other waste disposal, and drainage from raw material storage sites.
The BMP provision of the 1977 amendments is a key link in the Nation's defenses against
toxic substances in the environment. Under the Toxic Substances Control Act, EPA is inven-
torying chemicals produced or used in the United States, and setting the stage to prohibit
manufacture or distribution of those found unreasonably dangerous to human or environ-
mental health. The Clean Water Act, with the new toxics provisions of 1977, provides controls
over dispersal into the Nation's waters of those toxic substances which continue in use and
the Resource Conservation and Recovery Act of 1976 provides similar controls over disposition
of toxics-laden solid wastes, including municipal sewage sludge. Thus, BMP requirements
close a potential gap between laws.
Looking to a broader range of materials than those classified as "toxic," section 311 of P.L.
92-500 declared a national policy of seeking to prevent discharge of oil or hazardous sub-
stances (to be defined by EPA) into U.S. waters, and established procedures by which EPA
could act to prevent or respond to spills and other non-routine releases of such substances.
Regulations pursuant to this section were not finalized due in part to conflicting interpretations
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of key subsections. The amendments clarify the situation in one respect by broadening the
definition of "costs of removal" to specifically include costs incurred by Federal and state
government in restoring or replacing natural resources damaged or destroyed by a discharge.
Furthermore, section 311 now authorizes EPA to mitigate the damage caused by discharges of
substances deemed not actually removable, and to assess the mitigation costs against the
discharger (in addition to penalties established in 1972); mitigation includes such measures as
containment of the discharge, public warnings, monitoring water supplies and the environ-
ment, and raising of sunken ships leaking hazardous substances. The 1977 amendments
strengthen section 311 in several other respects primarily by making those responsible for
spills and releases potentially subject to increased costs. Liability limits for costs incurred by
the Federal Government in removing oil or hazardous substances are raised to $50 million
(from $8 million) for discharges from onshore and offshore facilities; new liability formulas are
established to cover discharges from ships and barges. Finally, section 311 was broadened to
cover activities carried out in connection with the Outer Continental Shelf Lands and Deep-
water Port Acts.
In a related action, Congress added extensive language to the "emergency powers" section
of P.L. 92-500, requiring EPA to prepare a plan, and establishing a special fund, for emergency
assistance to persons and communities in cases of pollutant and contaminant discharges. This
new program is not limited to water pollution emergencies, but covers all "releases into the
environment." It also applies to "any pollutant or other contaminant" thus not being limited
to toxics, or oil and hazardous substances as defined in accordance with the law.
Innovative and Alternative
Technology
What is Alternative and
Innovative
The 1977 amendments to P.L. 92-500 enunciate a major policy of promoting the utilization of
innovative and alternative waste management techniques, with special focus on the municipal
waste treatment program. Though mentioned only briefly, innovative and alternative
technology was explicitly encouraged in the 1972 law but few projects (10%) applied such
technology, largely because of perceived greater risks and higher costs on the part of
water quality administrators, public health officers, and consulting engineers. However, several
other factors were also involved: engineering orientation toward conventional technology;
public health laws, and the focus of EPA resources on other activities required by the Act. So
Congress used the 1977 amendments to require every community seeking Federal grants for
construction of wastewater facilities to consider innovative and alternative options in order, in
the words of the Chairman of the Subcommittee on Environmental Pollution of the Senate
Committee on Environment and Public Works, "to force technology so that new and better
alternatives which have not been demonstrated can become available."
The Chairman summed up the Congressional intent, "to underscore the requirements of
(P.L. 92-500) that all those involved in implementing the program the Environmental Protec-
tion Agency, states, communities, and consulting engineers direct the program away from
the conventional collection and secondary treatment approach and toward the use of alter-
native technologies, especially those which rely on controlled natural processes, such as land
or lagoons or marshes, in order to make use of the nutrients in the waste waters. More than
any other issue concerning the construction grant program, (Congress is) concerned with the
need to encourage alternative and innovative systems."
Innovative and alternative techniques, taken together, foster three central objectives: recycling
and reuse of water and waste materials (nutrients, sludge), energy conservation and recovery,
and cost reduction. In this context, EPA has defined innovative and alternative.
"Innovative" refers to new and promising technology which is not yet fully proven under the
circumstances of its contemplated use. In conventional treatment systems, "innovative"
describes technology which reduces costs by 15% or more, or reduces the amount of energy
required for waste treatment by at least 20%. "Innovative" could also refer to new technology
which advances the state of the waste treatment art in terms of cost reduction, energy con-
servation or recovery, recycling and conservation of water resources, pollutant containment,
reclamation and reuse of effluents, treatment efficiency or reliability, beneficial use of sludge,
better management of toxics, and increased environmental benefits.
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Major 1977 Provisions for
Innovative and Alternative
Technology:
"Alternative" technology is better known than innovative, offering treatment approaches
which are clearly alternate to conventional secondary and advanced waste treatment pro-
cesses. Included in this category are such techniques as land treatment, aquifer recharge,
water reclamation, use of nutrients, aquacuiture, silviculture, direct industrial reuse of ef-
fluents, composting and land application of sludges, burning sludge to produce energy, and
anaerobic digestion to produce methane.
Among the 1977 amendments are requirements that EPA publish guidelines for identifying
and evaluating innovative and alternative wastewater treatment processes and technologies,
and that EPA establish a national clearinghouse for information about such technologies. Fur-
thermore, EPA must develop and operate a public information program concerning recycling
and reuse of wastewater and sludge, land treatment, and methods of reducing wastewater
volumes.
Sewer construction and rehabilitation are specifically excluded from these categories by the
amendments.
The keystone amendment in this area is straight forward: "(EPA) shall not make grants . .
to any state, municipality, or intermunicipal or interstate agency for the erection, building, ac-
quisition, alteration, remodeling, improvement, or extension of treatment works unless the
grant applicant has satisfactorily demonstrated to (EPA) that innovative and alternative
wastewater treatment processes and techniques have been fully studied and
evaluated
Federal grants for innovative and alternative facilities will provide 85% of construction costs
rather than the normal 75%.
To provide funds for the increase from 75% to 85% grants, two percent (1979-1980) of con-
struction grant funds allocated to each state (three percent in fiscal 1981) must be set aside for
innovative and alternative facilities with at least one-half of one percent earmarked for in-
novative facilities.
To help speed deployment of innovative and alternative technology, projects using alternative
or innovative techniques are to be given preference and qualify for the 85% grant if their life
cycle cost under a cost effectiveness analysis does not exceed the life cycle cost of the most
cost effective conventional alternative by more than 15%.
The amendments provide an "insurance policy" EPA will pay 100% of the costs of modi-
fying or replacing any innovative or alternative facility which does not meet design perfor-
mance standards, and shows significantly increased operation and maintenance costs. (One
hundred percent grants are also available for technical evaluation and dissemination of infor-
mation.)
States are empowered to modify their priority systems for allocating Federal grant funds to
give higher priority ratings to innovative and alternative facilities.
Four percent of grant funds allotted to each state with a rural population of 25% or greater
"shall be available only for alternatives to conventional sewage treatment works for
municipalities having a population of 3,500 or less, or for the highly dispersed sections of
larger municipalities." (See small communities section below.)
The Federal Government is to play a leadership role in utilizing innovative and alternative
technologies. After September 30, 1978, construction may not be initiated on any wastewater
treatment works at a Federal property or facility unless innovative or alternative techniques are
utilized; this requirement does not apply, however, if the costs of innovative and alternative
techniques are more than 15% above the most cost effective alternative.
On the industrial side, the 1983 BAT deadline may be extended until July 1, 1987, for an in-
dustry installing an innovative pollution control system (see pollution classification section
above.)
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Cost Effectiveness
Two amendments specifically prohibit EPA from granting funds for construction of municipal
wastewater facilities unless the applicant dejnonstrates that it has considered methods, pro-
cesses and techniques to reduce total energy consumption, and has analyzed the open space
and public recreation potential of lands, waters, and rights-of-way which are parts of the pro-
posed project.
EPA is instructed to study and report by October 1978 upon the use of effluents and sludges
for agricultural and other processes that utilize nutrients, and to advise Congress whether or
not further legislation is desirable to "encourage or require" the use of sludge for agricultural
and other beneficial purposes.
In 1977, Congress amended P.L. 92-500 in three important ways to reflect its desire not to
waste money in waste treatment and yet to assure that economic criteria point the way to
desired treatment systems.
Congressional dissatisfaction with the amount of land treatment or reuse systems led to an
amendment which provides a 15% "cost effective bonus" as an incentive to application of in-
novative or alternative technology. EPA was also required to republish the cost effectiveness
guidelines, emphasizing in them the identification and selection of cost effective alternatives
which provide for recycling and reuse of effluents, pollutants, and sludges. (Cost effectiveness
guidelines describe procedures for identifying the least cost treatment alternative that will pro-
duce effluent of required quality.)
The Chairman of the House Subcommittee on Water Resources of the Public Works and
Transportation Committee, offered a context for attention to economic considerations in set-
ting industrial best conventional technology (BCT) guidelines: "Progress to date and justifiable
anticipation of further progress in the conventional pollutant area militates against preserving
the requirements in existing law that BAT be required across-the-board for all conventional
pollutants. The result would be treatment for treatment's sake." So Congress amended the
Act to direct that "factors to be taken into account in determining (BCT measures and prac-
tices) shall include consideration of the reasonableness of the relationship between the costs of
attaining a reduction in effluents and the effluent reduction benefits desired." Furthermore, in
approving this language, Congress instructed EPA to "review every (existing) effluent
guideline which applies to (conventional) pollutants," with adjustments favored wherever
necessary to reflect the concern about cost-effectiveness.
Concern about reasonable costs is also reflected in the 1977 provisions which modify the
1972 philosophy that all municipal discharges should be subject to uniform requirements. The
National Commission on Water Quality had found that application of the 1977 secondary treat-
ment standard to certain ocean discharges might not be required to protect water quality.
After consideration of this and information submitted by coastal municipal dischargers. Con-
gress amended the law to allow waiver or modification of the secondary treatment requirement
for certain municipal discharges into deep marine waters with currents that provide rapid
dispersal, if specified conditions can be met. Such waivers are subject to the normal NPDES
five-year review, require special monitoring of discharge impacts on the marine ecosystem,
allow no new or substantially increased discharges, and require compliance with industrial
pretreatment regulations, and removal of toxics from the discharge.
Pretreatment
"Pretreatment" refers to treatment provided by an industrial facility which discharges to a
publicly owned treatment works (POTW). The purpose of pretreatment is to remove those in-
dustrial wastes which might create problems in sewers (fire, corrosion, explosion), inhibit
municipal sewage treatment processes, or pass untreated into waterways or the POTW's sludge
rendering it unfit for beneficial use or disposal. As observed by the Chairman of the Sub-
committee on Environmental Pollution of the Senate Committee on Enviornment and Public
Works, "often sludge is so contaminated by the chemicals and metals which find their way in-
to municipal waste treatment systems, that it is useless." Pollutants which cause the above
problems are said to be "incompatible" with a POTW and thus require some form of pretreat-
ment prior to their discharge to a municipal sewer system.
The 1972 legislation directs EPA to establish pollutant discharge limits or national pretreat-
ment standards on an industry-by-industry basis for toxic pollutants determined to be "incom-
patible" with POTW's. The 1977 amendments required discharge limits set forth in pretreat-
10
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ment standards to be based upon the application of BAT to "indirect dischargers" (those in-
dustries that discharge to POTW's). State and local government may set pretreatment re-
quirements for substances not regulated by standards and more stringent limits for toxic
pollutants which are regulated by national standards. Indeed, as municipal NPDES permits are
revised, EPA is to require development of a local pretreatment program through which the
POTW will govern industrial use of public waste treatment facilities. Such programs are to
establish limits for specific pollutants contained in industrial discharges, enforce the national
toxic pretreatment standards, and provide for compliance monitoring and adequate revenue to
run the local enforcement program.
Subject to state and EPA approval, the municipality may also provide at least partial treat-
ment for industrial toxic wastes in a way which allows the industry to reduce its pretreatment
costs. Thus, if the municipal facility consistently removes a certain percentage of an industrial
toxic pollutant, the discharge limit set forth in any national pretreatment standard for discharges
of that pollutant may be relaxed accordingly, permitting industrial cost-saving. Authority to
modify the discharge limits in national pretreatment standards will be granted for specific
pollutants on a case-by-case basis. To be authorized to revise pretreatment standards the
POTW must demonstrate that the subject pollutant is removed in absolute terms; simple dilu-
tion of industrial wastes with municipal sewage does not qualify as removal. Revisions will be
further conditioned upon EPA or NPDES state approval of the POTW's local pretreatment pro-
gram and the POTW's municipal sludge meeting any applicable EPA criteria for the disposal
method used by the POTW.
If a municipal (or state) government does not enforce violations of national pretreatment
standards EPA will do so including going into court against the municipality. POTW pollu-
tant removals that justified revisions to national pretreatment standards as well as the revised
limits themselves will be included in the POTW's permit and will be enforceable against the
municipality.
Sludge Management The 1977 Clean Water Act's provisions for sludge management clearly indicate Congressional
support for properly managed utilization of the increasing volumes of sludge generated by the
Nation's municipal wastewater treatment plants. The objectives of the 1977 amendments for
sewage sludge management are two-fold:
(1) To assure adequate protection of public health and the environment by promulgation of
minimum Federal standards for sludge disposal and utilization;
(2) To maximize encouragement of beneficial uses of sludge which conform with Federal stan-
dards.
Provisions regulating the management of sewage sludge under the 1972 Act were limited to
conditions where disposal "would result" in pollution of navigable waters. The 1977 amend-
ments make two major changes to the regulation of sludge disposal requirements: the 1972
Act's provisions for controlling sludge disposal were tied to the NPDES permit program, and
regulatory authority was expanded to include any disposal or utilization of sludge from
POTW's.
The beneficial utilization of sludge is encouraged by the amendments' emphasis upon and
increased funding for alternative and innovative technology. Also, the 1977 amendments re-
quire EPA to submit to Congress a report on the use of sludge in agriculture and other ac-
tivities that utilize its nutrient content. This report must include a discussion of EPA's research
and development programs and grants regarding alternatives to conventional disposal options
and an analysis of current sludge utilization technologies and impediments to implementation
of these technologies. EPA must also make recommendations, in this report, for future legisla-
tion which will encourage or require greater utilization of sludge. The report is to be submitted
to Congress by October 1, 1978.
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"Institutional"
Amendments of 1977
Separating the amendments in the institutional category from those which are related to tech-
nology is difficult because of the interrelationships among them. The "institutional" amend-
ments, however, tend to deal more with the process than the technical substance of water
quality management. By and large, they are intended to recognize the responsibility of state
and local governments in reaching national water quality goals.
State Role The Clean Water Act is designed to encourage Federal/State cooperation to achieve clean
water. Even while outlining broad new Federal authority, the Act stated: "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." In ensuing years, however, as new powers and pro-
grams were implemented, concern was voiced in several quarters that the Federal Government
was preempting state authority in areas related to water quality, that the Federal Government
held the authorities granted in P.L. 92-500 too closely, and that there was overlap and duplica-
tion of activity between Federal and state levels.
So, in the 1977 amendments, Congress made its feelings very clear: "It is the policy of Con-
gress that the states manage the construction grant program under this Act and implement the
permit programs under sections 402 (NPDES permits) and 404 (dredge and fill permits) of this
Act." State, local and the Federal governments each have water pollution control respon-
sibilities, the nature of which varies from program to program. A major thrust of the 1977
amendments is to shift toward the exercise of more authority by the states.
To support the states in implementing this policy, the 1977 amendments authorize (but do
not require) EPA to reserve 2% of each state's allotment of construction grant money or
$400,000, whichever is greater to be used as "state management assistance funds." Top
priority expenditure of such funds is to underwrite state operation of the construction grant
program, but they may also be applied to administration of the NPDES and dredge and fill per-
mit programs, as well as to management of the section 208 statewide water quality planning
program (if requisite construction grant activities have been taken over by the state). The
legislative history underscores Congressional intent that these funds result in additional person-
nel and expanded activities and that they not simply replace funds from some other source.
Management assistance grants will be based on assessments of state capabilities to use them
as intended by Congress.
In other 1977 actions to clarify the state role, Congress:
amended the law to provide that "the determination of the priority to be given each
category of projects for construction of publicly owned treatment works within each state shall
be made solely by that state" where category refers to such functional descriptions such as
secondary treatment, advanced waste treatment, and new collector sewers. The amendment,
however, also allows EPA to remove a specific project from the priority list if it is not
necessary to comply with enforceable requirements of the Act, such as municipal and in-
dustrial effluent limitations. And there was guidance to the states from the Senate Subcom-
mittee Chairman: "The states are expected to continue to give priority to projects within each
category . . on the basis of the severity of the pollution problem to be corrected and related
factors such as the size of the existing population to be served."
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amended the Act to assure that it would not interfere with state water rights and water
allocation systems.
used the legislative history to emphasize Congressional intent in approving P.L. 92-500 that
"the provisions of this Act with respect to any pollutant ... are not preemptive of any (more
stringent) applicable state or local requirement, standard, limitation, or deadline."
Such language, of course, should be read in the context of EPA's overall authority to over-
see the national water quality program. As explained here. Congress clarified the state role in
determining priorities and at the same time emphasized EPA's authority to challenge a
specific project. And Congress combined its intention that states administer the permit pro-
grams with EPA authority to veto a state permit (where the limitations and requirements of a
state permit are contrary to the provisions of Federal law), and with the requirement that the
state certify that each permit is in compliance with state water quality standards.
Needs of Small Communities As mentioned above because of the magnitude of pollution problems, state priority policies,
and Rum! Areas: and the economics of conventional waste treatment technology the national clean water
program has historically tended to focus on the needs of metropolitan areas. Small com-
munities have often been either overlooked altogether, or subjected to pressures to build
highly expensive, growth-inducing conventional treatment facilities.
The Chairman of the Subcommittee on Environmental Pollution of the Senate Committee on
Environment and Public Works offered one example of the problem: "In a county neighboring
Washington, D.C., the state and county had proposed to construct a $400 million advanced
waste treatment facility whose capacity was at least four times that needed by the existing
population. Meanwhile, 43 other (communities) in that same state which would have gone
without funds to construct needed secondary treatment facilities are potentially subject to en-
forcement action for failure to comply with minimum treatment standards."
The 1977 amendments included a series of provisions designed to assist rural and other small
communities:
no state shall receive less than one-half of one percent of the total construction grant funds
available each year (may require special appropriations).
four percent of the construction grant funds available each year to any state with a rural
population of 25% or greater or in any other state where the Governor so requests
"shall be available only for alternatives to conventional sewage treatment works for
municipalities having a population of 3,500 or less, or for the highly dispersed sections of
larger municipalities."
in order to save money, reduce project delays, and remove certain planning uncertainties
facing small cities and towns, communities of 25,000 or less in population may combine proj-
ect design and construction phases (steps 2 and 3) for federally-assisted waste treatment proj-
ects having an estimated cost of $2 million or less ($3 million in states with unusually high con-
struction costs).
the state management assistance grant amendment pointedly mentions state assistance to
small communities, and the Chairman of the Subcommittee on Environmental Pollution of the
Senate Committee on Environment and Public Works specified during floor discussion that "it
is understood that no grant would be made under this provision until the state has
demonstrated a commitment to acquiring the capability to manage grant awards in small com-
munities."
at community request, EPA is authorized to provide technical and legal assistance in ad-
ministration and enforcement of any contract for planning, design, or construction of treat-
ment facilities.
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"A grant may be made ... to construct a privately owned treatment works serving one or
more principal residences or small commercial establishments constructed prior to, and in-
habited on (December 27, 1977), when (EPA) finds that 1) a public body . . . eligible for a
grant . . . has applied on behalf of a number of such units and certified that public ownership
of such works is not feasible; 2) such public body has entered into an agreement with (EPA)
which guarantees that such treatment works will be properly operated and maintained and
. . . includes a system of charges to assure that each recipient of waste treatment services
under such a grant will pay its proportionate share of the cost of operation and maintenance
(including replacement) and; 3) the total cost and environmental impact of providing waste
treatment services to such residences or commercial establishments will be less than the cost
of providing a system of collection and central treatment of such wastes." (Recreation
residences or "second homes" are not eligible.)
EPA is to work with other Federal agencies and the state to "develop a comprehensive pro-
gram for achieving adequate sanitation services in Alaska villages."
Agricultural Pollution Agricultural interests had pointed out that certain provisions of P.L. 92-500 might prove dif-
Provisions: ficult for farmers to meet. Specific concern was voiced about potential farm-related re-
quirements of the nonpoint source pollution provisions of section 208, dredge and fill permit
requirements, and whether or not irrigation return flow conduits constituted point sources sub-
ject to NPDES permit requirements. Congress amended the law in all three areas:
irrigation return flows are specifically exempted from the definition of "point source" and
from NPDES permit procedures. Instead, irrigation return flows will be treated as nonpoint
sources subject to section 208 planning and control.
normal farming, ranching, and forestry activities plowing, harvesting, soil and crop
management, stock pond and farm road construction (in accord with best management prac-
tices) are explicitly exempt from NPDES and section 404 dredge and fill permit re-
quirements.
to help ease the potential financial burden of implementing required BMP's (best manage-
ment practices) on farms, a major amendment to section 208 establishes a rural landowner
assistance program with annual authorizations as high as $400 million to be administered by
the Department of Agriculture. This program involves long term contracts for installation of
BMP's by landowners, under Federal cost sharing up to 50%. To be eligible for cost sharing
assistance, an area must: (1) have a critical water quality problem that results from agricultural
nonpoint source pollution (2) be included in an approved agricultural portion of a 208 plan, and
(3) be able to ensure an adequate level of participation by rural landowners. Participation will
be considered adequate when 75 percent of the critical acreage or source of the pollutant
problem are under contract. This may vary in those areas where the approved agricultural por-
tion of the 208 plan provides data and analysis which indicate that a greater or lesser percen-
tage of the acreage or source of the pollutant must be treated to attain water quality standards
or water quality goals. BMP's eligible for cost sharing are those that reduce agricultural non-
point source pollution and which are included in the approved agricultural portion of the 208
plan. The function of this program is to reduce nonpoint source pollution, not to augment
other agricultural support efforts administered by the Department of Agriculture. Indeed, as
pointed out by the Chairman of the Subcommittee on Resource Protection of the Senate
Committee on the Environment and Public Works, "Existing soil conservation programs have
simply not addressed the problem of nonpoint source pollution and, frankly, have contributed
to poor water quality in several instances."
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Dredge and Fill Program
Sewer Policy
Treatment deadlines
The Clean Water Act of 1977 made substantial changes in EPA's role in the section 404
dredged or fill permit program. Perhaps the most important of these is EPA's responsibility for
reviewing and approving State permit programs. Such programs will operate in lieu of the per-
mitting responsibilities of the Corps of Engineers in certain waters of the United states (in
general, those waters traditionally considered to be non-navigable.) EPA's role both in approv-
ing and overseeing these State programs is to be similar to its approval and oversight of State
NPDES programs. The touchstone of the section 404 permit process is compliance with EPA's
environmental guidelines, which describe the evaluations necessary to ascertain the en-
vironmental damage potential of both the dredged or fill material composition and the pro-
posed disposal site, the value of ecosystems at the site, and measures to protect such values.
The 1977 amendments also identify a number of activities which do not require 404 permits in-
cluding several farming and forestry activities. The basic purpose of these exclusions and ex-
emptions is to make both the Corps and the States permit programs operate more efficiently
by alleviating the necessity for case-by-case review of activities which are not major sources of
pollution of the aquatic ecosystem. Federal dredge and fill activities in connection with a proj-
ect specifically authorized by Congress do not require a 404 permit so long as an en-
vironmental impact statement is submitted to Congress in timely fashion which includes con-
sideration of the environmental guidelines.
The net effect of the 1977 amendments has been to increase EPA's responsibility for ensur-
ing the success of the 404 program even though EPA does not issue 404 permits. The EPA 404
environmental guidelines, which under prior law were applicable only to Corps-issued permits,
will now serve a variety of functions. They will limit the issuance of State-issued 404 permits,
the approval of Best Management Practices promulgated by Statewide 208(b)(4) regulatory
programs, and the operation of the exemption for particular Federal projects. Additionally, EPA
now has the responsibility for publishing procedures and standards governing the approval and
operation of state programs.
Since its inception in the 1960's, the central purpose of the Federal program of grants for plan-
ning and construction of wastewater facilities has been to catch up with the Nation's
municipal pollution backlog, not to subsidize new local growth. Because of that policy, and as
facilities have been installed in the areas of greatest need, debate has arisen in recent years
over the extent to which Federal funds should continue to be used for sewer construction and
rehabilitation activities which are viewed as growth supporting or inducing.
The 1977 amendments in this area provide that not less than 25% of construction grant
funds available to each state in any year shall be obligated for sewer construction and
rehabilitation, if such projects are on the state priority list and are otherwise eligible for fund-
ing. However, the 1977 amendments did not change the requirement of the 1972 law that col-
lector funding be limited to communities in existence on October 18, 1972.
The most significant of these actions is extension until July 1, 1983, of the original 1977
deadline for municipal secondary treatment in those cases where construction was already
underway, or Federal financial assistance has not been available. An application for such ex-
tension must be filed by June 25, 1978.
The 1977 BPT deadline is extended for an industrial facility which has a permit issued prior
to July 1, 1977, allowing connection to a municipal facility where that facility is not yet able to
accept industrial wastes. EPA must determine that the industry involved is otherwise acting in
good faith. An industrial extension will not be granted if the municipal facility will not be
available prior to July 1, 1983. The industrial facility may be required to meet any applicable
pretreatment requirements.
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Areawide Waste Treatment
Management (208)
Amendments
The 1977 Clean Water Act Amendments provide for extending the planning period for develop-
ment of initial water quality management plans, pending the EPA Regional Administrator's ap-
proval. Agencies designated after 1975 will have three years from the time of their first grant
award to complete their initial plan. The amendments further state that all future grants will
not exceed a 75% Federal share. In addition, a provision is added which requires that 208
plans identify open space and recreation opportunities that can be expected to result from im-
proved water quality.
It should be noted that the 1977 amendments do not reflect the extent of interest in non-
point source pollution indicated in the legislative history. This is because Congress regarded
the provisions of PL 92-500 as sufficient to achieve nonpoint source pollution control, but re-
quire greater implementation by EPA and the states.
Federal Facility
Compliance:
Many Federal waste treatment facilities do not meet Federal pollution control requirements
as well as state standards. Congress has now directed Federal agencies to take the lead in
utilizing innovative and alternative treatment methods. In addition, the 1977 amendments pro-
vide that all Federal facilities and activities comply with all substantive, procedural, and ad-
ministrative clean water requirements of Federal, state, interstate or local agencies (including
permitting and enforcement). The President may exempt military facilities from this provision.
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Additional
Amendments
"User Charges/Industrial Cost
jftfteovary'
There were a number of amendments to P.L. 92-500 not discussed in detail. Most of these
amendments make minor administrative changes, but a few are significant.
A central concept of P.L. 92-500 was that local water quality programs had to pay for
themselves, with the clear implication that the Federal construction grants program would be
terminated when the municipal pollution backlog was eradicated. Accordingly, the Act re-
quired establishment of systems both to charge domestic users of Federally financed
wastewater systems for operations and maintenance (0 and M), and to recover Federal costs
attributable to the capacity needs of industrial users. Objections were raised to both charge
systems. The 1977 amendments remove one problem by allowing ad valorem taxes, rather
than metering, as the basis of charges to residential users for 0 and M, under certain conditions.
And they declare an 18-month moratorium on industrial cost recovery charge collection while
EPA conducts a study of their efficiency and necessity.
Buy American
Clean Lakes
Waste treatment facilities assisted by Federal grants must use materials which come substan-
tially from U.S. sources (unless American materials are significantly more expensive).
Section 314(a)(1) requires states to identify publicly owned lakes and classify them according
to their state of eutrophication. This is done in conjunction with grant applications for lake
restoration projects funded under this section. The 1977 amendments make funding available
for the inventory requirements in 314 (a)(1).
The 1977 Clean Water Act amendments, while not a major change in direction, do represent
extensive modifications to the existing law. Implementation of these amendments will result
from many varied activities by various levels of government, private industry, and the public.
For example, the amendment will give rise to many new or revised regulations from EPA or
state or local agencies; additionally, the amendments will likely result in the states assuming
more of the authority and responsibility for administering the Clean Water Act. It is, of course,
anticipated that they will result in improved quality of the Nation's waters.
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ir U.S. GOVERNMENT PRINTING OFFICE : 1978 O - 275-392
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