The Meaning of the 1977 Clean Water Act
by Senator Edmund S. Muskie (D-Me.)
[EPA Journal - July/August 1978]
When Congress debated the 1972 Amendments to the Federal Water Pollution Control Act, mid-course corrections were promised.
The Clean Water Act of 1977 has fulfilled that promise--and it also maintains the original promise of the clean water for the American people.
More than seventy changes were made in the existing law. Most enhance the ability of the Administrator of the Environmental Protection Agency to deal with complex water pollution problems. We made some requirements more flexible, but we have not strayed from our basic goals.
We have maintained our goal to eliminate the discharge of pollutants by 1985.
We have maintained the policy that the public must be protected from cancer-causing pollutants and other toxic poisons.
We have maintained the concept that industry must use the best available technology to control pollution.
We have renewed our commitment to provide adequate funding to publicly-owned treatment plants.
The new law reflects needed compromise without diminishing our overall pollution control capability. As an example, the Administrator is given flexibility in determining treatment levels for well known conventional pollutants but is given little leeway in the enforcement of controls on the thousands of toxic chemicals that are dumped daily into America's rivers and lakes.
The success of the Federal Clean Water Law has been uneven. Programs affecting municipalities faltered because of uncertain funding and excessive red-tape. But the programs aimed at industrial compliance fared much better.
An estimated 90 percent of the Nation's industries met the July 1, 1977, deadline for use of best practicable technology. My home State of Maine was one of only three States where industry achieved total compliance with requirements to use the best practicable clean-up technology last July, and the improvement in water quality has been noticeable.
Despite this success, however, the 1977 Act makes some changes in the 1983 industrial requirements.
First, the concept of uniform application of the requirement to install the best available technology by 1983 was broadened by the creation of the three categories of pollutants--conventional, non-conventional, and toxic pollutants. Best available technology requirements in existing law will still generally apply to toxic and non-conventional pollutants, while a new level of treatment called "best conventional technology" is created to deal with conventional pollutants.
In creating this new level of treatment, which is somewhere between best practicable and best available treatment, Congress determined that for conventional pollutant discharges, best available control may require an unreasonable degree of treatment. In order to reduce the 1983 requirements in these cases, effluent guidelines for specified conventional pollutants are to be written to reflect a new level of treatment reflecting continued progress beyond what has already been achieved.
Congress has recognized that toxic substances have become the most serious water pollution problem in recent years. The 1977 Act strengthens EPA's authority to control toxic pollutants by:
requiring industry to meet best available technology standards for specified toxic pollutants by July 1, 1984. This action codifies EPA's existing toxics policy;
requiring compliance with best available technology standards for newly listed toxics within three years. The process of adding a toxic pollutant to the toxics list has been simplified.
The new non-conventional pollutant category created by the 1977 Act will include all those pollutants which have yet to be determined either toxic or conventional. Industry has been given until 1987 to comply with the best available technology requirement for non-conventional pollutants. However, waivers from best available technology can be obtained if industry can provide proof that such non-conventional pollutants will not interfere with the attainment or maintenance of the national water quality standard, that is, water quality assuring protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities, in and on the water. Congress has given the Environmental Protection Agency further control over non-conventional pollutants suspected of toxicity by recognizing its responsibility to assure that such pollutants do not pose an "unacceptable risk to human health or the environment..."
The second major change affecting industrial compliance within the Clean Water Act of 1977 is the additional time given to meet the 1977 requirements for best practicable technology.
An extended deadline of April 1, 1979, is established for those industries acting in "good faith" in trying to comply with a July 1, 1977, deadline. However, as many as half of those who have failed to comply with pollution requirements may have done so because of a lack of good faith or a lack of interest in the success of the program. In these instances, the Agency should continue its enforcement policy of seeking court-imposed penalties for non-compliance in amounts related to the benefits of delayed compliance.
Third, the industrial pretreatment program established in the 1972 Act has been made more workable. This program has been designed to protect our municipal treatment plants from non-compatible industrial discharges and to keep our municipal sludge free of harmful toxic pollutants.
Congress applauds the success to date of a majority of our Nation's major industries for achieving the requirements of the 1972 Clean Water law. Through the enactment of the 1977 Amendments, we have effort to comply, and we have realistically adjusted certain industrial regulations accordingly.
The 1977 Act also addressed several other important provisions:
The Environmental Protection Agency, through Section 404, is mandated to develop an effective program for controlling the pollution of the Nation's 76 million acres of wetlands. The Agency is also required to monitor the protection of these water areas in coordination with other Federal agencies and the States through a permit program. Federal jurisdiction over the wetlands ha been retained, and I am hopeful this means the fragile wetlands environment will truly be protected.
Federal authority to clean up oil and hazardous substance pollution has been extended to 200 miles from the shoreline. The liability limits on tankers and facilities for spill clean-up have been raised. These amendments provide interim assurance that adequate authority exists to clean up most spills of oil and hazardous substances until separate legislation to create a "superfund" through a fee on oil transportation can be enacted.
Federal facilities now must comply with both procedural and substantive provisions of the clean water law.
The 1977 Clean Water Act continues the national goal of eliminating the discharge of pollutants into our water. It was not easy legislation to enact. The amendments to the Act took two years of hard work by Congress to develop.
But we have reached an important turning point in our struggle for clean water. Our emphasis must now shift from legislation to the implementation of regulations. We have a law capable of achieving our goals. We now must work toward regulations to match.
Six and a half years ago, I made the following remarks which I think are as relevant today as then in describing the nature of our environmental challenge:
"It is imperative that we attempt to stop pollution and to restore the quality of our environment. I suggest that we begin by adding to our approach some humble ideas about ourselves and our place upon the planet.
"It may be, as some argue, that man is the most adaptable of Earth's creatures. It may be that he can remain essentially the same, changing only slightly as he adjusts to higher levels of pollution.
"But what we do not know, and what we cannot predict accurately, are the long-range effects upon man of prolonged exposure to bigger and bigger doses of pollution. Man, no less than the peregrine falcon and the mountain lion, is an endangered species.
"He is also the principal danger to himself, the principal polluter of his environment. Foul air, dirty water, ravaged land, are more than complex problems in resource management. What must be managed, and properly managed for our own protection, are our activities within our environment.
"There is another humble idea that should be added to our approach: We live today in what an engineer might call a closed system. Some of our resources, once used, cannot be replaced. Others of our resources are renewable, but finite. No one is likely to invent more clean water, more clean air, more arable land."