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Water - The Challenge of the Environment: A Primer on EPA's Statutory Authority
[EPA publication "The Challenge of the Environment: A Primer on EPA's Statutory Authority" - December 1972]
"Our water resources, more perhaps than any other, illustrate the interaction of all parts of the environment and particularly, the recycling process that characterizes every resource of the ecosystem... Everything that man himself injects into the biosphere - chemical, biological or physical - can ultimately find its way into the earth's water. And these contaminants must be removed, by nature or by man, before that water is again potable."
Three out of every four people in the United States get their drinking water from public supply systems. In 1969, a Federal study found half of these systems substandard. Health specialists are increasingly concerned about neutralizing toxic substances and viruses when natural water purification fails. We are finally realizing that there are limits to natural purification--that our nation's waters cannot indefinitely absorb an endless avalanche of waste.
Federal water legislation dates back to the nineteenth century, when Congress enacted the River and Harbor Act of 1886, recodified in the Rivers and Harbors Act of 1899. It is only within the last seven years, however, that major water pollution legislation has been passed.
Recognizing the threat that dirty water posed to the public health and welfare, Congress enacted the Federal Water Pollution Control Act (FWPCA), in order to "enhance the quality and value of our water resources and to establish a national policy for the prevention, control and abatement of water pollution." FWPCA and its several amendments set out the basic legal authority for Federal regulation of water quality.
The original Act was passed in 1948. Its amendments broadened the Federal government's authority in water pollution control. The Water Pollution Control Act Amendments of 1956 strengthened enforcement provisions by providing for an abatement suit at the request of a State pollution control agency; where health was being endangered, the Federal government no longer had to receive the consent of all States involved. The Federal role was further expanded under the Water Quality Act of 1965. That act provided for the setting of water quality standards which are State and Federally enforceable; it became the basis for interstate water quality standards. The Clean Water Restoration Act of 1966 imposed a $100 per day fine on a polluter who failed to submit a required report. The Water Quality Improvement Act of 1970, again expanded Federal authority, and established a State certification procedure to prevent degradation of water below applicable standards.
Despite the improvements achieved by each amendment to the original Act, the result of this sporadic legislation was a hodgepodge of law. Eleven reorganizations and restructurings of Federal agency responsibility compounded the difficulty of effectively implementing the law. To solve these problems, the 1972 amendments to the FWPCA restructured the authority for water pollution control and consolidated authority in the Administrator of the Environmental Protection Agency.
Goals and Policy
The objective of the Act is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. In order to achieve this objective, the Act sets two goals. The first national goal is the elimination of the discharge of all pollutants into the navigable waters of the United States by 1985. The second national goal is an interim level of water quality that provides for the protection of fish, shellfish, and wildlife and recreation by July 1, 1983. In this framework, Congress gave the Administrator the legal tools necessary to make inroads into the problems of water pollution control, while continuing to recognize the primary rights and responsibilities of the States to prevent, reduce, and eliminate pollution.
Effluent Limitations *
The 1972 amendments changed the thrust of enforcement from water quality standards, regulating the amount of pollutants in a given body of water, to effluent limitations, regulating the amount of pollutants being discharged from particular point sources.** Ambient water quality requirements can still dictate the amount of pollutants permitted for a discharge. The Administrator is directed to publish regulations by October 18, 1973, establishing guidelines for effluent limitations. These regulations shall identify the best practicable control technology available for various industrial categories. Factors for consideration are the cost-benefit of applying such technology, the age of equipment and facilities involved, and the process employed. Industrial dischargers must meet these standards by July 1, 1977. Public treatment works must meet effluent limitations based on secondary treatment*** by this same date.
In addition, the Administrator shall identify the best available technology for preventing and reducing pollution. He is also responsible for identifying technology which would achieve the elimination of the discharge of pollutants. In both cases, he must take into account the factors enumerated above. Industrial dischargers are obliged to meet these standards by July 1, 1983, the same date given for achieving the second national goal designed to protect fish, shellfish, wildlife and recreation. They must meet zero-discharge requirements if the Administrator determines that such a requirement is economically and technologically feasible. By July 1, 1983, public treatment works must use the best practicable waste treatment technology over the life of the works. New sources of discharge are required to use the best available technology as determined by the Administrator and published in the regulations. Zero-discharge by 1985 is a goal, not a requirement under the law.
* The Act defines "effluent limitations" as any restriction by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources.
** The Act defines "point sources" as any discernible, confined, and discrete conveyance from which pollutants are or may be discharged.
*** The second step in most waste treatment systems in which bacteria consume the organic parts of the wastes.
Water Quality Standards and Implementation Plans
Reflecting the basic State responsibility for water pollution control, FWPCA requires the States to submit to EPA water quality standards for all interstate and intrastate navigable waters.
These State standards spell out water use classifications, such as recreation, fish and wildlife propagations, public water supplies, and industrial and agricultural uses. States are then required to set our the quality of water required to achieve these uses and detailed plans for maintaining the desired levels of quality. Under this procedure, 90 percent of all interstate waters have already been classified for either recreational use or fish and wildlife propagation uses.
Of the fifty-four jurisdictions covered by the water pollution control program, virtually all have fully approved interstate standards; EPA has the power to reject State standards that fail to meet the legal requirements. EPA's rejection of all or part of a State's proposal forces the State to draft an acceptable alternative; failure to revise a proposal will result in EPA setting a standard. In the initial review standards will be weighed against their conformity to the old Act. This review and any required revision can include implementation schedules. Future revision of standards, after the initial review, will be limited to use classifications and criteria.
If the Administrator determines that application of the technology required by 1983 will not 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 activities, he may impose such additional controls as he finds necessary to meet such standards.
In addition to setting water quality standards, where effluent limitations will not be stringent enough to meet water quality standards, the States are required to establish maximum daily loads of pollutants permitted in the waters that will allow the propagation of fish and wildlife. A similar assessment must be made for thermal discharges. States are also required to develop a continuing planning process which is able to deal with the changing patterns of water pollution within the State. Beginning in 1975, the States must submit to Congress and EPA annual reports with an inventory of all point sources of discharge, an assessment of existing water quality and projected goals, and proposals of programs for nonpoint source control. EPA must submit a similar report to Congress on January 1, 1974.
New Source Performance Standards
In addition to setting effluent standards for existing point sources, EPA also sets standards for new industrial point sources. EPA must determine the best available demonstrated control technology, and require its installation for at least twenty-seven named categories of sources. If the Administrator determines that a zero-discharge standard is practicable, he may set such a standard.
Toxic and Pretreatment Effluent Standards
As part of the comprehensive authority vested in the Administrator, he is directed to publish a list of toxic pollutants* and effluent limitations for these substances. Such limitations may constitute an absolute prohibition against discharging. Additionally, the Administrator must publish pretreatment standards requiring any industry discharging into a municipal sewage treatment plant to pretreat its effluent so that it does not interfere with the operation of the plant or pass through the plant untreated or without adequate treatment.
* Those pollutants which after discharge and upon contact with any organism, either directly from the environment or indirectly by ingestion through food chains, will cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions or physical deformities, in such organism or their offspring.
Marine Sanitation Devices
To curb pollution of coastal and navigable waters, EPA in 1970 was given authority to set performance standards for marine sanitation devices, which were published in June 1972. The 1972 amendments to the FWPCA permit the States to prohibit all discharges of sewage from marine vessels if they determine that such limitation is necessary for greater environmental protection of the waters within the State. This may be done only where the Administrator has determined that there are adequate facilities for the safe and sanitary removal and treatment of that sewage.
Thermal discharges* are subject to the best practicable and best available control technology requirements, as are other pollutants. However, if a thermal discharger can demonstrate to the Administrator than an EPA standard is more stringent than that necessary to protect the propagation of fish, shellfish, and wildlife, then the Administrator may set a less stringent standard.
* Thermal discharges are defined by Congress as the introduction of water from a point source at a temperature different from the ambient temperature of the receiving waters.
The FWPCA was amended in 1970 to insure that the activities of all Federal agencies meet applicable State standards. The law and its recent amendment impose a new requirement on all applicants for a Federal license or permit. If a licensed or permitted activity may result in a discharge into navigable waters, a certificate must be obtained from the affected State, which assures that the activity will not violate the effluent limitations, guidelines, and other requirements of the 1972 amendments. Through this certification process, harmful pollution can be stopped before it begins. This is a significant milestone, a departure from the idea of abatement to one of prevention.
State Permit Programs
While the Rivers and Harbors Act of 1899 had provided for the issuance of permits by the Corps of Engineers, the 1972 amendments to the FWPCA have instituted a new permit program under EPA guidance and assistance that has shifted administration and enforcement to State governments. Under the new law, no discharge is permitted except as authorized by a discharge permit. This new amendment extends to previously exempt municipal discharges, so that all potential pollutants are now covered. While EPA issues guidelines for State permit programs, it retains a right to review a State-issued permit affecting another State's water resources.
Discharge permits must be consistent with effluent limitations, guidelines, and other requirements of the statute. They must be for periods no longer than five years, and may be terminated when there is a violation of a condition of the permit or when changed conditions dictate the need for further reduction of the permitted discharge. Similarly, EPA may withdraw approval of a State permit program if the agency determines the State has failed to fulfill the requirements of the Act.
Permits affecting discharges into oceans waters under this section must be consistent with criteria set by EPA parallel to the criteria established under the Marine Protection, Research, and Sanctuaries Act of 1972 for ocean dumping permits. By this process, States may not certify discharges which would be potential violations of Federal regulations under the ocean dumping law.
The Corps of Engineers, the administering agency under the 1899 Act, continues to issue dredge and fill permits under the new law in accordance with criteria comparable to EPA ocean discharge criteria. As noted later, an additional permit is required for disposal of sewage sludge into navigable waters.
EPA has the authority to enforce the provisions of the law through both administrative and judicial channels. When the Administrator finds a person to be in violation of a permit condition or other provision of the law, he must notify the polluter, and shall either issue an administrative order prohibiting further violation or pursue a judicial remedy for appropriate relief.
If the Administrator finds that violations within a State are widespread due to State inaction, he may so notify the State, and the Federal Government will assume enforcement responsibilities until the State can satisfy the Administrator that it will enforce the law.
In order to insure compliance with the law, EPA has been given broad inspection and monitoring powers. The agency has a right of entry to all effluent sources and authority to inspect records, data and information, monitoring equipment, and effluents. If a State develops similar procedures, the Administrator may transfer this authority to the State.
The Administrator may also bring suit if he finds that a particular pollution source presents an imminent and substantial danger to human health or danger to an individual's livelihood, such as the inability to market shellfish.
The law specifically provides for citizen participation in the enforcement of Federal standards. Aggrieved private citizens my seek judicial relief against any polluter for violations of an effluent standard or limitation, or administrative order issued under the Act. Citizens may also institute proceedings against the Administrator if he fails to perform an act required of him under the law.
Evidencing a firm commitment to the idea of citizen involvement in enforcement of the FWPCA, the law prohibits the firing of, or discrimination against any person who instigates or testifies in any proceeding under the FWPCA.
Research and Related Areas
The 1972 amendments give the Administrator a broad mandate to establish research programs for the prevention, reduction, and elimination of pollution in navigable waters of the United States. The agency is directed to establish, in cooperation with all pertinent Federal, State, and private parties, comprehensive local and national programs for water pollution control. Specifically, the agency must render technical advice, and conduct research, investigations, experiments, training, demonstrations, surveys, and studies; establish advisory commissions to evaluate research progress and proposals; establish a water quality surveillance system to monitor the quality of navigable waters and initiate and promote studies measuring the social and economic costs and benefits of water pollution control activities. The Administrator must also investigate the harmful effects of pollutants on the health and welfare of persons. He must establish field laboratories and research facilities, make a comprehensive study of the pollution of the Great Lakes and finance pilot treatment works programs. Furthermore, he must investigate the problems of pollution by eutrophication, oil spill, pesticides in water, and thermal discharge.
Since the basic responsibility for cleaning up the nation's waters is retained by State governments, Congress authorized numerous grants to aid the States' pollution abatement efforts. These provide assistance to States for research and development, manpower training, water quality planning, monitoring and enforcement. Grants are also available to institutions of higher education for programs designed to bring students into professions that deal with water pollution control.
The major thrust of the Federal grant effort is directed towards municipalities for the construction of sewage treatment plants. More than 1300 local communities have sewer systems that discharge untreated waste. An equal number of communities provide merely primary treatment, which removes only 30% of some pollutants. The Administrator is authorized to make grants of $18 billion to the States according to need for construction of new treatment works during the fiscal years 1973-1975. The Federal share for these projects is 75% with the remainder to be divided between State and local governments and industrial users. Municipalities are further eligible for grants for demonstration projects that utilize new methods for treating sewage, joint systems for municipal and industrial waste, and new water purification techniques.
Oil Spills & Hazardous Substances *
Another area of national concern, the widely publicized oil spill problem, has produced Federal legislation to protect water quality. In 1970 the Federal Government was given broad authority to clean up oil spills, to make the polluter pay the cost of clean-up, and to levy fines and penalties against him. EPA cooperated with the Coast Guard and other agencies in administering the law and in drafting the National Contingency Plan for removal of oil spills. The 1972 amendments extended these provisions to the discharge of hazardous substances.
* The Act defines "hazardous substances" as an element or compound, designated by the Administrator, which when discharged in any quantity presents an imminent and substantial danger to the public health or welfare.
In order to facilitate the implementation of the new law, the 1972 amendments specifically exempt EPA in most instances from the environmental impact statement requirement of the National Environmental Policy Act (NEPA) of 1969. EPA is still required to file an environmental impact statement when (1) supplying financial assistance for the construction of public treatment works, and (2) issuing a permit for a new point source when these activities have a major impact on the environment. Congress, recognizing the enormous scope and complexity of the Administrator's task, has provided detailed guidance within the Act for the setting of guidelines, standards, and limitations. This guidance allows for a balancing of many complex factors while removing the administrative burden of filing NEPA statements for numerous agency actions whose goals are to protect the enhance the environment.
An additional approach under the Act encourages cooperation between the States by Congressional consent to interstate compacts, and the encouragement of uniform State laws relating to the prevention, reduction, and elimination of pollution. These agreements for solving regional problems have been approved by Congress for many years as a kind of middle ground between purely State action on the one hand, and exclusive Federal control of regional problems on the other.
The compacts are administered by interstate commissions. While earlier commissions were limited to studies of regional pollution problems, recently formed commissions have been given authority to issue legally binding pollution abatement orders throughout a multi-State region.
There have been other innovations: the Federal Government has entered into several Federal-interstate compacts, reflecting the need to protect national interests in those regions. EPA involves itself in this area by encouraging effective river basin planning, providing expert technical assistance, and supporting manpower training.
Drinking Water Quality
EPA also inherited responsibilities for drinking water quality from the Bureau of Water Hygiene of the Department of Health, Education, and Welfare, including authority to set interstate quarantine regulations and duties during emergencies and natural disasters.
Other legislation expands EPA's role in the fight against water pollution. The Water Resources Planning Act gives the Administrator of EPA a seat on the Water Resources Council. The Council studies and assesses policies and programs regarding regional or river basin plans. By Executive Order, EPA has been appointed a member of various river basin commissions. Additionally, under the Appalachian Regional Development Act, the Administrator can make grants in that region for the construction of sewage treatment plants without considering FWPCA ceilings or allotments to States. Under the Ports and Waterways Safety Act of 1972, the Agency consults with the Secretary of Transportation on the setting of rules and regulations for vessels to insure the protection of the marine environment.
We have known for a long time that the oceans are vast; but it is only recently that we have realized that they are also fragile. The oceans are finite: there are limits to the amount of sludge waste and junk they can safely absorb. The new ocean dumping legislation, the Marine Protection, Research and Sanctuaries Act of 1972, passed by the 92nd Congress and signed into law by the President on October 27, 1972, declares it to be the national policy "to regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare or amenities, or the marine environment, ecological systems or economic potentialities." The Congress found that the previous law was inadequate and imprecise, and the strict new regulation was required.
The new law prohibits the transportation from the United States for the purpose of dumping into territorial seas or the contiguous zone, any radiological, chemical, or biological warfare agent or any high-level radioactive waste into ocean waters. Additionally, no officer, employee, agent, department, agency or instrumentality of the Federal Government shall transport these materials from any location outside the United States for the purpose of dumping into ocean waters.
The most sweeping prohibition is that no person may transport any material for the purpose of dumping into ocean waters without a permit.
The new law provides for two types of permits for activities potentially threatening the ocean environment. One type of permit is issued by the Secretary of the Army for dumping dredged material. The dumping of this material is subject to the approval of the Administrator of EPA for compliance with stated criteria, as well as compliance with the designated critical areas established by EPA.
For all other classes of materials--whether it be sewage sludge, garbage, chemical wastes or construction debris--a new permit system has been established under the direct control of the Administrator of the Environmental Protection Agency. The Administrator shall issue a permit only after he determines that dumping in a particular instance "will not unreasonably degrade or endanger human health, welfare or amenities, or the marine environment, ecological systems, or economic potentialities."
In establishing the criteria for future ocean dumping, the Congress directed the Administrator to consider several points:
- The need for the proposed dumping.
- The effect of such dumping on human health, and welfare, including economic, esthetic, and recreational values.
- The effect of such dumping on fisheries resources, plankton, fish, shellfish, wildlife, shore lines, and beaches.
- The effect of such dumping on marine ecosystems, particularly with respect to--
- the transfer, concentration, and dispersion of such material and its byproducts through biological, physical, and chemical processes.
- potential changes in marine ecosystem diversity, productivity, and stability, and
- species and community population dynamics.
- The persistence and permanence of the effects of the dumping.
- The effect of dumping particular volumes and concentrations of such materials.
- Appropriate locations and methods of disposal or recycling, including land-based alternatives and the probable impact of requiring use of such alternate locations or methods upon considerations affecting the public interest.
- The effect on alternate uses of oceans, such as scientific study, fishing, and other living resource exploitation, and non-living resource exploitation.
- In designating recommended sites, the Administrator shall utilize wherever feasible locations beyond the edge of the Continental Shelf.
The Administrator is also required to consult with other Federal officials, and before issuing permits he must provide notice to interested parties and opportunity for public hearing. No permit may be issued which would violate applicable water quality standards.
While the States are prohibited from regulating ocean dumping activities covered by the Federal legislation, they may submit proposed criteria consistent with the system established by the Administrator to be applied to waters within their jurisdiction. Submission of criteria by a State is subject to a full public hearing and final determination within 120 days.
Penalties and Enforcement
The new statute provides for civil penalties for violation; up to $50,000 for each violation to be assessed by the Administrator. In addition, there are specific criminal penalties: an individual convicted of violating the law or regulations issued pursuant to it or violating a permit may be fined up to $50,000 or imprisoned for one year, or both. The penalties do not apply when material is dumped at sea during emergency conditions. The overall responsibility for the monitoring and surveillance of dumping practices is given to the U.S. Coast Guard.
The Attorney General is authorized to seek relief against any violation of the statute in the appropriate United States District Court. Where a violation persists and no action has been taken to enjoin or penalize the violator, citizens may bring civil suits to enjoin violation or prohibitions, limitations, criteria, or permits established or issued under the statute. However, no suit may commence until the end of a 60-day period after notice to the Administrator or Secretary and the violator. Citizens may also recover the costs of litigation. The injunctive relief provided citizens by this provision does not affect or in any way preempt other legal remedies otherwise available to them.
The new law gives significant new responsibilities to the National Oceanographic and Atmospheric Administration of the Department of Commerce. It directs NOAA to begin a comprehensive research and monitoring program on ocean dumping within six months and to report to Congress at least annually thereafter. Because we really know so little about the long-term consequences of ocean pollution, the law directs NOAA to conduct research on pollution, overfishing and man-induced changes of ocean ecosystems, and ways in which the oceans may best be preserved for the benefit of succeeding generations.
While the Secretary of Commerce bears the responsibility of reporting annually on both short-term and long-term research to Congress, other departments are expected to cooperate with NOAA's efforts by sharing information and facilities where necessary through interagency agreements. This provision will undoubtedly involve EPA in the ocean research program. In addition to governmental cooperation, funds are authorized to encourage public and private research and experimentation in this field.
The Act also directs that marine sanctuaries be established to preserve or restore parts of the ocean for recreation, conservation, and ecological needs. The Secretary of Commerce, after consultation with other agencies including EPA, may designate territorial waters for this purpose. Whether territorial waters lie within State boundaries, the governor may after consultation certify a designation as unacceptable. The Act authorizes the Secretary of State to enter into negotiations with other governments with a view toward making international agreements for the creation of marine sanctuaries in international waters.
Relationship to Other Laws
The Marine Protection, Research, and Sanctuaries Act of 1972 supplements laws already in effect for protection of our water resources. Oil spill prevention and basic water quality standards are dealt with in other legislation and by treaty, and are not affected by the Act. With the exception to Rivers and Harbors Act permits (Refuse Act of 1899), all permits and licenses purporting to authorize any activity covered by the Marine Protection Act were rendered void by the new law.