Launching the Clean Water Act in the Mid-‘70s
By: Ridge Hall
The mid-1970s was a fabulous time to be at the Environmental Protection Agency (“EPA”), especially if you were, as I was, Associate General Counsel for Water. We had a brand new law to implement, an inspiring Administrator in Russell Train, plus bright and energetic staff in the offices of Water, Research and Development, Planning and Management, Toxic Substances, and Enforcement. We also had a general public that was fed up with severely polluted water that in many places was not drinkable, fishable, or even swimmable. They wanted that mess cleaned up.
The comprehensive Federal Water Pollution Control Act as it was then known, until Congress renamed it the Clean Water Act in 1977, was remarkably well designed, with one big exception. It upgraded the nation’s public sewer treatment works to “secondary treatment” through a new “construction grants” program – the biggest public works program in the nation’s history. It created a nationwide permit program requiring all point source discharges to have a permit with effluent limitations. Perhaps most ambitiously, it transformed our strategy for protecting water quality from ineffective and uneven local water quality standards to national, uniform, technology-based standards, which would be applied to each discharger via the permits.
Right from the start, questions about legal interpretation poured into the Office of General Counsel from the program offices, the Regions, and the States. We responded quickly, often making it up on the fly. We began issuing “Opinions of the General Counsel,” which were widely distributed and eventually published by the Bureau of National Affairs.
The one big flaw was ironically in Congress’ most urgent priority: the provisions for regulating toxics in Section 307(a). That section specified that within 90 days of enactment of the law, EPA must publish a list of toxic pollutants to be regulated based on the toxicity, mobility, persistence in the environment, and known or likely effects on human and ecological receptors. Within 180 days after that, or any update, EPA was to propose “toxic pollutant effluent standards” for each pollutant which provided “an ample margin of safety,” conduct trial-type hearings with live witnesses and cross-examination, and then finalize the standards within 6 months after proposal. Every affected industry had just one year to get into compliance. There was no authority to consider technical feasibility, costs, or overall economic impacts.
Section 307(a) proved to be unworkable. EPA lacked a database on which industries were discharging which toxic pollutants in what amounts, or what control technology might be available to reduce those discharges. Analytical capabilities did not exist to measure many of them at the low parts per billion level that initial research indicated would be required. The requirement that the standards be met within one year gave industries no time to develop and install the needed control technology. Finally, requiring the standards to be developed on a pollutant-by-pollutant basis instead of an industry-by-industry basis required EPA to repeatedly visit facilities to sample their effluent as each pollutant was listed. EPA proposed an initial list of 9 toxic pollutants in 1973, held hearings on them in 1974, and concluded that if it were to set standards at the low levels needed to provide “an ample margin of safety,” this would shut down major sectors of the U.S. economy due to a widespread inability to comply – probably not a result Congress intended. The effort was abandoned.
When I arrived at EPA in May 1975, the General Counsel told me to “fix this problem.” By then environmental groups had sued EPA to force us to publish and regulate a long list of pollutants that they claimed were toxic. Faced with four such lawsuits and an unworkable statute, we set about devising an alternative strategy. Under the leadership of Chris Beck, Deputy Assistant Administrator for Water Planning and Standards, we set up a multi-office work group that brought together the best and brightest of EPA’s experts on toxicity, technology, exposure and risk assessment, cost analysis, and the law. We decided that if toxics were to be effectively regulated we needed a legal framework that allowed for consideration of technical feasibility and costs, and a longer time for compliance than the one-year requirement of Section 307(a). We chose the “best available technology” (“BAT”) framework of sections 301 and 304, which allowed consideration of costs and technology and had a 1983 deadline.
Before we could implement this program, which would require a massive commitment of EPA’s resources, we needed to settle the lawsuits so that a court would not order us to do something different from the BAT approach. The environmental groups were led by Gus Speth of NRDC, who would later become Chair of the Council on Environmental Quality under President Carter. They wanted regulation of a large number of pollutants using the fast timetable of 307(a). We said that was unworkable, and if they really wanted to get toxics regulated nationally, BAT was the only effective tool to accomplish that. To his credit, Gus agreed, though he pressed us hard to regulate a lot of pollutants from a lot of industries. We agreed that whatever we could agree on in this regard would need to be embodied in a consent decree approved by a federal district court.
Which toxics should be regulated? We set up a task force to review all the data we could find on which industries discharged which metals, organics, and other toxic substances. They came up with a list of 65 toxics that were being discharged by many major industrial sectors.
Which industries should EPA commit to regulating? By then EPA had issued effluent limitations regulations for some 43 industrial sectors. Gus wanted all of them regulated for toxics, but EPA lacked the resources to do that. We agreed to regulate the 21 industries where the greatest volumes of toxics were being discharged. Specifically, we agreed to set effluent limitations regulations, new source performance standards, and pretreatment standards for toxic pollutants on our list of 65 for all 21 industries over a 3-year timetable.
The resulting settlement agreement was approved by Judge Thomas Flannery of the U.S. District Court for the District of Columbia on June 9, 1976, after extensive public comment, thereby settling the pending lawsuits and setting the course for EPA’s regulation of toxic pollutants under the Clean Water Act for the foreseeable future. Sometimes referred to as the “Flannery Decree” or the “BAT/Toxics Settlement,” the deadlines were extended several times, but the Agency got the job done. To finance the gathering of current effluent data from each of the 21 industries, with the Office of Management and Budget’s approval, we secured a special $21 million in supplemental funding from Congress. Because some of the pollutants on our list of 65 were in fact families of pollutants, like “chromium and compounds” or “cyanides,” we broke out the most toxic members of those families to create a new list of 129 “priority pollutants” on which regulatory attention was focused. Both lists are still used by EPA today.
We realized that by regulating toxics under the BAT provisions instead of Section 307(a), we had pushed the boundaries of the law. We decided to ask Congress to amend Section 307(a) to make clear that EPA was on solid ground using BAT as the main tool to regulate toxics going forward. So Russ Train, Chris Beck, and I met with the Republican and Democratic members of the Senate Environment and Public Works Committee and the House Committees on Public Works and Transportation to describe the problem we had faced, how we had addressed it, and the need for clarifying statutory language. Their reaction was “The approach you took makes sense. Just give us the language you need and we’ll amend the law.” At Russ’ and Chris’ direction, I drafted some amendments to Sections 307 and 301(b) and Congress passed them as part of the Clean Water Act Amendments of 1977.
Interestingly, Congress liked our industry-by-industry approach to the regulation of toxics so much that they adopted the same framework for regulating airborne toxics in the Clean Air Act Amendments of 1990. After Congress enacted our requested amendments in 1977, I thought to myself, “Isn’t it wonderful the way Congress works together to get things done.” How naïve that seems 45 years later.
Ridge Hall is CLA’s Vice Chair. He was Associate General Counsel for Water at EPA during 1975-77 and was a founding partner of the law firm Crowell & Moring, where he started that firm’s environmental practice.