October 4, 1972

Page 33692


Mr. MUSKIE. Mr. President, I submit a report of the committee of conference on S. 2770, and ask for its immediate consideration.

The PRESIDING OFFICER (Mr. CANNON). The report will be stated by title.

The legislative clerk read as follows: The committee of conference on the disagreeing votes of the two Houses on the amendment of the House to the bill (S. 2770) to amend the Federal Water Pollution Control Act, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses this report, signed by all the conferees.

The PRESIDING OFFICER. Is there objection to the consideration of the conference report?

There being no objection, the Senate proceeded to consider the report.

(The conference report is printed in the House proceedings of the CONGRESSIONAL RECORD of September 28, 1972, at pages 32768-32796.)

Mr. MANSFIELD. Mr. President, I yield my 15 minutes to the distinguished Senator from Maine (Mr. MUSKIE).

Mr. MUSKIE. I thank the Senator from Montana.

Mr. President, I ask for the yeas and nays on the conference report.

The yeas and nays were ordered.

Mr. MUSKIE. Mr. President, I yield myself 5 minutes.

The PRESIDING OFFICER. The Senator from Maine is recognized for 5 minutes.

Mr. MUSKIE. Mr. President, I ask unanimous consent that during consideration of the conference report on S. 2770, the following members of the staff of the Committee on Public Works be permitted on the floor:

Leon G. Billings, M. Barry Meyer, Harold Brayman, Sally Walker, Philip T. Cummings, John Yago, Dick Hellman, and Bailey Guard.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. GRIFFIN. Mr. President, I ask unanimous consent that Mr. David Clanton be permitted the privilege of the floor during consideration of this conference report.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. MUSKIE. Mr. President, may I say to my colleagues that we have a 30-minute time agreement here and we should not be troubled by the size of the documentation before me as I shall not take more than 2 minutes to present the report and then there will be several colloquies on points in the report which are of interest to particular Senators. Thus, we should be able to cover the ground quickly in the next 30 minutes.

Mr. President, the conference report on the Federal Water Pollution Control Act Amendments of 1972 is the pending business of the Senate. The Senate approved this legislation on November 2, 1971; the House acted on March 29, and the conference committee began its deliberations on May 11 of this year. Since that first session, we have held 39 meetings of the conference, often starting early in the morning and running late into the evening.

I have been a Member of the Senate for 13 years, and I have never before participated in a conference which has consumed so many hours, been so arduous in its deliberations, or demanded so much attention to detail from the members. The difficulty in reaching agreement on this legislation has been matched only by the gravity of the problems with which it seeks to cope.

Our planet is beset with a cancer which threatens our very existence and which will not respond to the kind of treatment that has been prescribed in the past. The cancer of water pollution was engendered by our abuse of our lakes, streams, rivers, and oceans; it has thrived on our half- hearted attempts to control it; and like any other disease, it can kill us.

We have ignored this cancer for so long that the romance of environmental concern is already fading in the shadow of the grim realities of lakes, rivers, and bays where all forms of life have been smothered by untreated wastes, and oceans which no longer provide us with food.

The amount of time spent in conference on this legislation, Mr. President, should not indicate any disagreement among the Senate and the House Members over the gravity of the problem. No one can face the facts of water pollution day in and day out without fearing for our future. In fact, it has taken this much time to hammer out an agreement because the conferees agreed that our product must, finally, be legislation which provides the means, properly administered, to eliminate this cancer.

There were disagreements over the means to achieve this goal, and the conference agreement before the Senate today reflects accommodations made by both sides. In my own eyes, the conference agreement is not perfect; it does not retain everything from the Senate bill that we had hoped it would, but it was evident after review in the conference committee that there were aspects of the House-passed legislation that improved upon provisions of the Senate bill. This agreement, then, is the best of two proposals, not the lowest common denominator.

Senators will recall from the November debate on the Senate bill that there were three essential elements to it: uniformity, finality, and enforceability. Without these elements a new law would not constitute any improvement on the old; we would not bring a conference agreement to the floor without them.

As far as uniformity and finality are concerned, the conference agreement provides that each polluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on "best practicable" technology no later than July 1, 1977.

This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform, and that they will be final upon the issuance of a permit under section 402 of the bill.

Mr. President, the Senate bill established a deadline for the achievement of phase I by January 1, 1976. As I have noted, the conference agreement establishes a deadline of July 1, 1977. Since this legislation will not be signed into law until nearly 1 year after Senate action, the slippage in the timetable set forth in the Senate bill is, at most, only 6 months.

My colleagues will also recall that the Senate bill mandated requirements which would lead to the elimination of the discharge of pollutants or achieve effluent limitations based on the best available control technology by January 1, 1981. The Senate has maintained its position in that the goals of the Senate bill are intact. The requirement of the Senate bill as to the implementation of a no-discharge requirement where the technology is reasonably available is retained in the conference agreement, and the burden of justifying departure from the July 1, 1983, requirements remains on the polluter.

Phase II in the Senate bill was to have been implemented by January 1, 1981. The conferees agreed on a 6-year period rather than a 5-year period to move to this significant phase. But again because of the time in conference, the slippage in the Senate bill is no more than 18 months.

What does that slippage mean? It does not mean that polluters will be discharged from their responsibility to comply with the law. It only means that the requirement set forth in this act will be achieved in some cases at a date which is somewhat later than originally intended by the Senate. The Administrator retains the authority to require the application of these controls at an earlier date, and it is intended that he will require their application at the soonest practicable time.

The Administrator retains the authority to establish schedules and timetables of compliance which eliminate the discharges of pollutants whenever he determines that the technology is reasonably available. At the same time, the Administrator is given clear guidance in the law to press forward to achieve the goals of the act; to assure that reasonable effort is put forth to move from one phase to the other; to guarantee that there is real progress from best practicable technology to best available technology; and, above all, to require, whenever technology is reasonably available, that the discharge of all pollutants be eliminated.

I would like to point out to my colleagues that the bill as passed by the House did not provide enforceable effluent control requirements other than those to be achieved by January 1, 1976. The bill as passed by the House required a National Academy of Sciences' study to determine what, if any, requirements should be imposed beyond January 1, 1976. The bill as passed by the House required subsequent action of Congress in order to impose any future, more strict effluent control requirements.

The third critical element that concerned the Senate in its consideration of this legislation was enforceability. Enforceability is assured through the provisions of the permit program and through section 309, the enforcement section of the act. The Administrator has the responsibility to determine the effluent limitations to be applied to each category or class of polluter, to set forth those limitations in a permit issued pursuant to section 402 of the act, and to enforce those limitations through the provisions of section 309.

The Administrator must issue an abatement order whenever there is a violation of the terms or conditions of a permit, including the effluent limitations, time schedules, and monitoring requirements. Should he fail to issue an order, a citizen suit may be brought against him to direct the issuance of such an order. The Administrator's authority is not limited to those cases in which there is a continuing violation. Any discharge, intermittent or continuous, which the Administrator finds violates the terms of the permit, is to be enforced. The conferees expect that the Administrator will act as aggressively against those violations which only intermittently occur as he will act against those violations which occur on a continuous basis. Failure to take this kind of effective action will permit intermittent dumping of waste with impunity. Citizen suits can be brought to enforce against both continuous and intermittent violations.

Mr. President, I have prepared and wish to include in the RECORD as part of my remarks a discussion of each of the significant provisions of the bill. I do this because the complexities of the individual provisions are such that the legislative history will be important to those charged with the responsibility for administering the program. At the same time, however, I would like to call attention to the fact that we have tried in this legislation not to leave the final evaluation of the bill to legislative history, but instead to write into law as clearly as possible the intent of the Congress.

The PRESIDING OFFICER. Without objection, the material will be printed in the RECORD.

(See exhibit 1.)

Mr. MUSKIE: Before inserting that there discussion into the RECORD, however, and moving on to final consideration of the conference agreement, there is one other significant aspect of this legislation to which I would like to address a few remarks.

Mr. President, the question of adequate funding for the construction of waste treatment facilities has been a source of almost constant frustration for this Senator, members of the Public Works Committee, and the Senate since the grant program was expanded in 1966. It has been frustrating because in the face of facts which could not be more stark, in the face of a threat to life that could not be more real, in the face of cries from our cities and States that could not be more desperate – in the face of all these things, there are still those in high places who question whether we can afford to spend this money.

Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make possible life on this planet? Can we afford life itself? Those questions were never asked as we destroyed the waters of our Nation, and they deserve no answers as we finally move to restore and renew them. These questions answer themselves. And those who say that raising the amounts of money called for in this legislation may require higher taxes, or that spending this much money may contribute to inflation simply do not understand the language of this crisis.

The conferees spent hours and days studying the problem of financing the cleanup effort required by this new legislation. The members agreed in the end that a total of $18 billion had to be committed by the Federal Government in 75-percent grants to municipalities during fiscal years 1973-75. That is a great deal of money; but that is how much it will cost to begin to achieve the requirements set forth in the legislation. Because of the magnitude of this commitment, I would like to take a few moments of the Senators' time to explain briefly the basis for that figure.

The objective of the act, as set forth in section 101 (a) is:

To restore and maintain the chemical, physical and biological integrity of the nation’s waters. In order to achieve this objective ... it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.

These are not merely the pious declarations that Congress so often makes in passing its laws; on the contrary, this is literally a life or death proposition for the Nation. In order to achieve those objectives, the Administrator is directed in section 201(d) to assist in the construction of certain kinds of municipal waste treatment facilities:

(d) The Administrator shall encourage waste treatment management which results in the construction of revenue producing facilities providing for–

(1) the recycling of potential sewage pollutants through the production of agriculture, silviculture, or aquaculture products, or any combination thereof;

(2) the confined and contained disposal of pollutants not recycled;

(3) the reclamation of wastewater; and

(4) the ultimate disposal of sludge in a manner that will not result in environmental hazards.

These policies, together with the requirements to be applied to industrial and other point sources in phase I and phase II, simply mean that streams and rivers are no longer to be considered part of the waste treatment process. This fact has in turn meant that advanced waste treatment, a level of treatment not generally required under existing law and a level of treatment for which the technology in some respects may not yet exist for practicable application, will be required for every community in the Nation.

In testimony before the House Public Works Committee, Gov. Daniel Evans of Washington, an engineer by profession, suggested that:

Really what we need (to produce the technology required by the provisions of the bill) is a national commitment as to what we want to achieve ... If we do that, I would be disappointed if modern technology ... did not come up with the new and changed technology that may very well not cost more, but may very well cost less to achieve.


So there were two strong imperatives which worked together to convince the members of the conference that this much money was needed: first, the conviction that only a national commitment of this magnitude would produce the necessary technology; and second, the knowledge that a Federal commitment of $18 billion in 75-percent grants to the municipalities was the minimum amount needed to finance the construction of waste treatment facilities which will meet the standards imposed by this legislation.

Members will note that the original authorization of $14 billion for 3 fiscal years contained in the Senate bill has been increased to the $18 billion figure which I have been discussing. The increase of $4 billion is accounted for by changes in the bill since it was considered by the Senate:

First. The conferees decided that Federal assistance for the construction and reconstruction of collection systems and dealing with the problem of combined storm sewers in existing communities was necessary, given the new, more stringent requirements of the legislation.

Second. The conferees agreed on a Federal share of 75 percent for all grants, as opposed to lower Federal shares provided by the Senate.

Mr. President, to achieve the deadlines we are talking about in this bill we are going to need the strongest kind of evidence of the Federal Government's commitment to pick up its share of the load. We cannot back down, with any credibility, from the kind of investment in waste treatment facilities that is called for by this bill. And the conferees are convinced that the level of investment that is authorized is the minimum dose of medicine that will solve the problems we face.

Mr. President, the conferees attempted also to reduce the possibility that this legislation would be vetoed. In our last conference, the able and distinguished ranking minority member of the House Committee on Public Works offered two amendments which he indicated would reduce opposition to the bill from the White House and the Office of Management and Budget. These two amendments were accepted by your conferees and by other House conferees in order to remove the question of a veto on the basis of the money authorized by the legislation.

Under the amendments proposed by Congressman WILLIAM HARSHA and others, the authorizations for obligational authority are "not to exceed" $18 billion over the next 3 years.

Also, "all" sums authorized to be obligated need not be committed, though they must be allocated. These two provisions were suggested to give the administration some flexibility concerning the obligation of construction grant funds.

The conferees do not expect these provisions to be used as an excuse in not making the commitments necessary to achieve the goals set forth in the act. At the same time, there may be instances in which the obligation of funds to a particular project in a particular State may be contrary to other public policies such as the National Environmental Policy Act. In these cases the conferees would, of course, expect the administration to refuse to enter into contracts for construction.

Mr. President, with the approval of these amendments, it is clear that any decision by the President to veto this legislation would be based on the regulatory aspects of this legislation. The President's views on those provisions are well known. The President, the Council on Environmental Quality, and the Administrator of the Environmental Protection Agency vigorously opposed the regulatory provisions of the Senate-passed bill. The conference agreement does not represent a significant departure from those Senate regulatory provisions.

Thus, the President may choose to veto this legislation on the basis of the stringent regulations it would impose on industrial polluters.

We all know that if Congress holds to its scheduled date of adjournment, this legislation may become subject to a pocket veto by the President. By pursuing this course of inaction, the President could effectively ignore the action of the Congress; that is his prerogative. But he cannot ignore the problem; and all a pocket veto will mean is that before Congress can act again, more lakes and streams will die, more rivers and bays will drown in human and industrial wastes, and more precious time will be lost in a battle where time is running out on our future.

I urge the President to recognize that a congressional statement of public policy as clear and as definite as our action today deserves an affirmative response one way or the other. And I hope that the Senate will schedule the remainder of its activities so as to be in session, prepared to provide an appropriate and firm response, if the President decides to veto this bill.

Mr. President, I ask the Senate to approve the conference report, and to do so with such evidence of support for its goals that the President and the Nation will know the extent of our determination and the depth of our resolve.

The conferees in both Houses spent many hours on this legislation. The chairman of the full committee, Senator RANDOLPH, Senator EAGLETON, Senator BAYH, Senator COOPER, Senator BAKER, and Senator BOGGS, all participated conscientiously. They have been equally dedicated to enacting the best legislation possible.

In addition to the members of the conference, special credit must go to the staffs of both the Senate and the House Committees on Public Works. The complexity of this legislation, the interrelationship between its various provisions, and the need to establish, with precision in law, a clear statement of the intent of Congress, placed tremendous demands on the talent and time of the respective staffs. I would particularly like to take note of the work of chief counsel of the Committee on Public Works, Barry Meyer; minority clerk, Bailey Guard, assistant counsel, Phil Cummings, minority counsels Tom Jorling and Dick Hellman, Hal Brayman, Leon G. Billings, John Yago, and Richard Wilson of the professional staff, Sally Walker, Ann Garrabrant, and Charlene Sturbitts of the research staff, Jim Jordan with Senator BAKER, Bob Maynard with Senator EAGLETON, Mike Helfer with Senator BAYH, Frankie Williams and Peggy Nagel of the clerical staff. The House committee staff, including chief counsel, Richard Sullivan, minority counsel, Cliff Enfield, committee counsels, Les Edalman and Gordon Wood, and particularly Robert Mowson of the House Office of Legislative Counsel who did the technical work on the bill, deserve special recognition.



The Conference agreement specifically bans pollution dilution as an alternative to waste treatment. At the same time the agreement recognizes that stream flow augmentation may be useful as a means of reducing the environmental impact of runoff from nonpoint sources. The agreement also recognizes that stream flow augmentation may be useful for recreational, navigation and other purposes. Finally, section 102(b) of this Act requires that any calculation of the need for and value of stream flow augmentation to reduce the impact of pollution must be made by the Administrator of the Environmental Protection Agency.


The provision for removal of in place pollutants did not appear in either the Senate or the House bill. Its present form was included by the Conferees as part of an agreement which related to section 402 (m) of the Senate bill and section 404 of the House bill regarding the disposal of dredged spoil.

Because of the rigorous nature of the test to be applied to any application for a permit for the disposal of dredged spoil, the Conferees provided for a program to assure that the economic base of Great Lakes harbors would not be disrupted by environmental requirements. The Conferees intend that a major effort be put forth to remove in place pollutants, especially toxic pollutants, from harbors in the Great Lakes and that material be disposed of in a manner which shall assure minimal environmental impact.

The Conferees expect that the program initiated under Title II and III of this bill, which will require restrictive controls on effluent discharges from municipal industrial sources and effective regulation of non-point sources, will reduce the future accumulations of in place pollutants, thus easing the problems associated with dredged spoil disposal.


The Conference agreement authorizes $13 billion for fiscal years 1973-1975 for 75% Federal grants to communities through contract authority. The Senate Conferees acceded to the House authorization figure only after accepting a House provision which authorizes grants for the reconstruction of existing sewage collection systems (an activity which is essential to the integrity of waste treatment systems where excessive filtration of ground water is a problem) and the installation of new collection systems in existing communities. This new area of Federal assistance recognizes that adequate collection systems are essential to the integrity of waste treatment systems which must deal with excessive filtration of ground water, and that adequate systems will require a greater commitment of Federal and local funds.

The Conferees intend that priority on the distribution of funds made available by this Act be given to the construction of needed waste treatment facilities. The backlog of waste treatment plants has not declined substantially in the past five years, and our limited resources should be directed first to building waste treatment plants in communities with existing collection systems.

After these projects are funded, money should be obligated for the replacement of existing collection systems or the construction of new systems. Under no circumstances are these funds intended for the construction of sewage collection systems in new communities or in new subdivisions of existing communities.

The Conferees agreed on the 75% figure after extensive debate over the nature of state participation, if any, in the water treatment plant construction program. The Senate bill provided for a Federal grant of 70% if the state participated, by grant, in the amount of 10% of the project's cost. The House bill provided a Federal grant of 75% if the state participated by grant, loan or otherwise in the amount of 15% of the project's cost. The Conferees could not agree on the nature of state participation.

Therefore, the Conference agreement does not require state participation. However, the Conferees hope and expect that states with grant programs will continue to assist communities to meet the backlog of waste treatment facility needs.

The absence of a requirement that a state participate in each project in order to receive a higher level of Federal assistance should provide the states with more flexibility in the distribution of limited funds. State resources can be directed to communities with particularly severe pollution problems or particularly severe economic problems. State grants can be made to assist in the construction cost of advanced waste treatment facilities or in the construction cost of facilities to deal with storm water overflow.

The Conferees wish to emphasize the complete change in the grant program that is authorized under the Conference substitute. Under existing law and procedure, the Environmental Protection Agency makes its first payment to a municipality upon certification that 25 percent of the actual construction has been completed. The remaining Federal payments are also made in reference to the percentage of completion of the entire waste treatment facility. Grantees and applicants therefore absorb enormous interest expenses and other costs as they await the irregular flow of Federal funds.

Under the Conference substitute, which is a program modeled after the Federal-Aid Highway Act, each stage in the construction of a waste treatment facility is a separate project.

Consequently, the applicant for a grant furnishes plans, specifications, and estimates (PS&E) for each stage (or project) of the construction of the waste treatment facility, as defined by the term "construction" in section 212. Upon approval of the PS&E for any project, the United States is obligated to pay 75 percent of the costs of that project. For instance, the applicant may file a PS&E for a project to determine the feasibility of a treatment works, another PS&E for a project for engineering, architectural, legal, fiscal, or economic investigations, and another PS&E for actual building. This way the States and communities are assured an orderly flow of Federal payments. This should in turn result in substantial savings and efficiency.

The Conferees determined that utilization of a "needs" formula, together with the PS&E approach, would eliminate any need for special allocations for advanced waste treatment projects or other special cases. Projects such as the Blue Plains facility will receive adequate and timely funds under this provision so long as adequate funds are released for obligation.

It cannot be emphasized too strongly that the procedure adopted in the Conference substitute represents a complete and thorough departure from the present practice of making payments of the Federal share of treatment works. The Conferees urge the Administrator, the States, and local governments to draw from the experience of the highway program to improve the efficiency of the waste treatment grant program. When funding the construction of waste treatment plants, the Administrator, upon the request of a State, should encourage the use of a phased approach to the construction and funding of treatment works on a State's priority list. Such a phased program, which the Committee notes has been developed and approved in the State of Delaware, has enabled the State to accelerate the construction of sewage treatment facilities, and thus accelerate the attainment of clean water.

In providing for reimbursement to those agencies – including states, municipalities and inter-municipal agencies – which have continued with their water pollution control construction program but which did not receive the full amount of Federal contribution, it was the desire of the Conference to redeem the Federal pledge to make reimbursement payments and to provide the financial assistance necessary to enable such agencies to continue with their own water pollution control programs.

The $2.75 billion authorized for this purpose is intended to place all states and cities on an equal basis and to redress any discrimination that may have existed in prior programs against those larger municipal agencies which were unable to take full advantage of the Federal sharing programs in effect at various times since the inception of the program due to the lack of adequate appropriations, limitations on Federal contributions to individual projects, and allocations made by state agencies.

Projects constructed between 1966 and the present time should receive priority in funding under these reimbursement provisions. With regard to those projects constructed in the period 1956 through 1966, it was the desire of the Conference that the Administrator of EPA promulgate rules and regulations that will permit the objectives of equality and nondiscrimination to be achieved.

While there have been changing standards and criteria for Federal approval through the life of the Federal grant program, the common sense approach should be that any project, in order to be eligible for reimbursement under this Act, should not be an inadequate or inferior project, but should have been built in accordance with the requirements prevailing at the time that the Federal contribution would have been granted had there been adequate funds to supply the matching portion. It was for this reason that the Conferees modified the requirement that would have imposed an obligation for applicants for reimbursement to have demonstrated that projects constructed in the 1950's and early 1960's complied with requirements enacted in 1966 and subsequently.

We believed it was important to demonstrate to the cities across the United States that their responsiveness to a national program should not result in their being shortchanged because those communities that did not respond were permitted to have larger Federal contributions authorized by subsequent legislation. We believe the Administrator should regard this section of the Act as remedial in character and should administer it in a fashion that will put those communities that did get going on cleaning up their rivers and lakes on an equal footing with those that failed to do so. Inasmuch as the Act (Section 206(c)) requires applicants to file for assistance within one year from the effective date of the Act, the Administrator should give high priority to establishing the procedures for submitting and processing such applications.

Both the Senate bill and the House amendment provided that a State may proceed to construct projects in anticipation of future obligational authority. Under this provision, a State cannot anticipate funds in excess of the total portion of the authorization in the Act to which that State would be entitled. In other words, no States will be eligible for obligational authority in excess of the total amount for which that State would be eligible had the total allocation to that State been made available on the date of enactment of this Act.


The Senate bill and the House amendment both required the development of areawide waste management plans. The House amendment limited such areawide waste management plans to designated areas within a State, while the Senate bill required that regions be designated for the entire geographic area of each State. The Conferees have agreed to require State-wide planning, either through a regional process in a designated area or by the State for areas outside of designated regions.

The Senate bill required that areawide waste management plans be developed by July 1, 1974. The House bill provided that a waste management planning process had to be initiated within two years after enactment. The Conferees have agreed to the requirement that there be a waste management planning process within one year after enactment. An initial plan would be filed with the Administrator within two years after that process is initiated.

The Conferees also agreed that waste management agencies must be designated covering the entire area of the State. More than one management agency may be designated in any planning region, and existing entities, including local governments or the State itself, should be utilized where appropriate. Those agencies shall be subject to the disapproval of the Administrator if he finds that they do not meet the criteria set forth in the Act. As to the similarities in the provisions, the Conferees expect the Senate and House report to express the intent of the Conference.

The Senate bill authorized a percentage of the total construction grant authorization as contract authority for funding the regional waste management planning aspects of this legislation. The Conferees agreed on a separate authorization included in Section 208 but provided that the funds thereunder would be available in the form of contract authority so as to expedite implementation of this vital section. The degree to which the Administrator takes immediate action to implement this section will be convincing evidence of the commitment of the Environmental Protection Agency to early and effective implementation of the water quality management policies established by this legislation.


The Conference agreement establishes a two phase program for the application and enforcement of effluent limitations. The first phase requires point sources to achieve that level of effluent reduction identified as "best practicable control technology" no later than July 1, 1977. The Conferees attempted to clarify what was intended by the term "best practicable control technology".

It is the intention that pursuant to subsection 301 (b) (1) (A) and Section 304 (b), the Administrator will interpret the term "best practicable" when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by July 1, 1977. In defining "best practicable" for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size, the unit processes involved, and the cost of applying such controls.

The Administrator should establish the range of "best practicable" revers based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category. In those industrial categories where present practices are uniformly inadequate, the Administrator should interpret "best practicable" to require higher levels of control than any currently in place if he determines that the technology to achieve those higher levels can be practicably applied.

"Best practicable" can be interpreted as the equivalent of secondary treatment for industry, but this interpretation should not be construed to limit the authority of the Administrator.

The modification of subsection 304(b) (1) is intended to clarify what is meant by the term "practicable". The balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources.

The Conferees agreed upon this limited cost-benefit analysis in order to maintain uniformity within a class and category of point sources subject to effluent limitations, and to avoid imposing on the Administrator any requirement to consider the location of sources within a category or to ascertain water quality impact of effluent controls, or to determine the economic impact of controls on any individual plant in a single community.


It is assumed, in any event, that "best practicable technology" will be the minimal level of control imposed on all sources within a category or class during the period subsequent to enactment and prior to July 1, 1977.

The Conference agreement requires that implementation plans and compliance schedules in existing water quality standards be adhered to, to the extent that those plans and schedules require compliance no later than July 1, 1977, and to the extent that they call for a degree of pollution control no less stringent than that defined by "best practicable control technology.”

The Conference agreement applies a different test to the Administrator's determination of "best available demonstrated technology". In determining the degree of effluent reduction to be achieved for a category or class of sources by 1983, the Administrator may consider a broader range of technological alternatives and should, at a minimum, review capabilities which exist in operation or which can be applied as a result of public and private research efforts.

In making the determination of "best available" for a category or class, the Administrator is expected to apply the same principles involved in making the determination of "best practicable" (outlined above), except as to cost-benefit analysis. Also, rather than establishing the range of levels in reference to the average of the best performers in an industrial category, the range should, at a minimum, be established with reference to the best performer in any industrial category.

The distinction between "best practicable" and "best available" is intended to reflect the need to press toward increasingly higher levers of control in six-year stages. Through the research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, it is anticipated that it should be possible, taking into account the cost of controls, to achieve by 1983 levels of control which approach and achieve the elimination of the discharge of pollutants.

As to the cost of "best available" technology, the Conferees agreed upon the language of the Senate bill in Section 304(b) (2). While cost should be a factor in the Administrator's judgment, no balancing test will be required. The Administrator will be bound by a test of reasonableness.

In this case, the reasonableness of what is "economically achievable" should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology – without regard to cost.


The Conferees have included a provision, not in either bill, which relates to the disposal of sewage sludge from waste treatment plants. During the Conference it became apparent that, unless a regulatory mechanism was established to control the by-products of advanced waste treatment plants, the disposal of residual sludge could cause a serious problem. Present practices which permit sewage sludge to be hauled out to sea and dumped or placed in areas on land where it is washed into streams and lakes, without regard to the impact on health and welfare, recreation, fish and shellfish and wildlife, are unsatisfactory.

Under section 405, which was proposed by Senator Boggs, disposition of sewage sludge in any manner which might affect the inland or coastal navigable waters would be prohibited (either by dumping sludge on land in such a fashion as to run off into waters or dumping in the ocean in such a manner as would have it returned into territorial waters). Also, this provision, in combination with section 403 which regulates any ocean dumping inside the three mile limit, should provide adequate safeguards against immediate threats to the shorelines, beaches and fish, shellfish and wildlife and recreational resources in coastal areas.

The Conferees do not intend for the Administrator or a State to make a plant-by-plant determination of the economic impact of an effluent limitation unless an owner or operator petitions the Administrator for relief from the effluent limits based on best available technology.

In the event an owner or operator petitions for such relief, the burden will be on that owner to show both that modified requirements will represent the maximum use of technology within the economic capability of the owner or operator and will result in reasonable further progress toward the elimination of the discharge of pollutants.


The Conference agreement does not alter the Senate's original intent as regards authority to require implementation of water quality levels set forth in Section 302 of the Senate bill.


The Senate accepted a House amendment which extends and expands the water quality standards procedure initiated in the Water Quality Act of 1965. The procedures set forth in this provision primarily rely on State action and cannot be construed as limiting application of any other requirements under Title III of this Act.

In agreeing to continue a water quality standards program, we do not intend to duplicate or delay the new regulatory provisions of the legislation. The Administrator should assign secondary priority to this provision to the extent limited manpower and funding may require a choice between a water quality standards process and early and effective implementation of the effluent limitation-permit program.

To the extent the State may wish to continue an examination of water quality in order to determine if more restrictive effluent limits may be required, this section will be useful. It should be made clear, however, that it is not intended that precise treatment requirements and specific time schedules for each discharger to public waters within the state be set forth in the water quality standards, including implementation plans, provided for in Section 303. These specifics should be included as conditions in permits issued under Section 402 based upon the time elements of Section 301 and the guidelines of Section 304. If a State establishes more stringent limitations and/or time schedules pursuant to Section 303, they should be set forth in a certification under Section 401. Of course, any more stringent requirements imposed by a State pursuant to this section shall be enforced by the Administrator.

If a State has limited resources and Federal program funding is inadequate, the primary state effort should be devoted to effective implementation of the new program and, to the extent not inconsistent, existing water quality implementation plans rather than assigning needed personnel to the added functions required under Section 303.


Section 304(b), as agreed to by the Conferees, requires that the Administrator publish regulations which shall provide guidelines for the establishment of the effluent limitations to be achieved by categories and classes of point sources (other than publicly owned treatment works) pursuant to section 301(b) of the Act.

Section 304(b) identifies certain factors to be taken into account by the Administrator in determining the "best practicable" treatment and the "best available" treatment applicable to categories or classes of point sources. Among those factors are considerations of costs. In determining the "best practicable technology" for a particular class or category of point sources, the Administrator is directed to consider the relationship between the total cost of the application of such technology and the effluent reduction benefits to be achieved from such application within that category or class.

In determining the "best available technology" for a particular category or class of point sources, the Administrator is directed to consider the cost of achieving effluent reduction. The Conferees intend that the factors described in section 304(b) be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class.

Except as provided for in section 301 (c) of the Act, the intent is that effluent limitations applicable to individual point sources within a given category or class be as uniform as possible.

The Administrator is expected to be precise in his guidelines so as to assure that similar point sources with similar characteristics, regardless of their location or the nature of the water into which the discharge is made, will meet similar effluent limitations.

The Conferees have provided, however, a mechanism for individual point-source-by-source consideration in section 301(c). That section provides that the Administrator may modify any effluent limitation based on "best available technology" to be achieved by July 1, 1983, with respect to any point source, upon a showing by the owner or operator of such point source that an effluent limitation so modified will represent the maximum use of technology within the economic capability of the operator and will result in reasonable further progress toward the goal of the elimination of the discharge of pollutants.

In various places in section 304, and elsewhere in the bill, it is required that the Administrator of EPA publish guidelines on various aspects of the program. The Conferees expect that such guidelines will be subject to the normal requirements which apply to Federal regulations, such as publication in the Federal Register and availability for public comment, even though those requirements were not made explicit each separate time a guideline has been required by the bill.

The Conferees clearly contemplate that the decision-making responsibility, as in the Clean Air Act, on guidelines and regulations to be published under this Act rests, unless otherwise specified, with the Administrator of EPA and not such other agencies as the Office of Management and Budget and the National Industrial Pollution Control Council. EPA regulations and guidelines are not to be reviewed by these and other agencies prior to their promulgation except on the same basis as review and comment by members of the public. OMB comment and review should thus come in the form of comments available to the public, made during the period for public comment.


The Conference agreement on section 306 follows, for all practical purposes, the intent of the Senate bill. The Senate bill and the application of an economic test to the determination of what new source performance standards would be required, and the nature of the economic test.

In order to assure that a reasonable cost test is met, the Conference agreement clarifies the fact that the Administrator must take into account the cost of compliance with any new source performance standards as applied to any category or class of new sources. The Conferees would expect that this cost test would be considerably more restrictive than the test which would be applied to "best available technology" because pollution control alternatives are available to a new source which are not available to existing sources.

It may be that in most instances, the technology for elimination of discharge of pollutants from new sources can be achieved on a considerably more reasonable basis than for existing sources.

The Conferees intend that this alternative be examined carefully and each determination of standards applicable to any category of new sources be periodically re-examined by the Administrator to insure that any new source constructed does the best that can be done in terms of performance.

The Conference agreement requires establishment of a regulatory mechanism for new sources which anticipates not only that level of effluent reduction which can be achieved by the application of technology (including elimination of the discharge of pollutants), but also the achievement of levels of pollution control which are available through the use of improved production processes. This does not mean that the Administrator is to determine the kind of production processes or the technology to be used by a new source. It does mean that the Administrator is required to establish standards of performance which reflects the levels of control achievable through improved production processes, end of process technique, etc., leaving to the individual new source the responsibility to achieve that level of performance by the application of whatever techniques determined available and desirable to that individual owner or operator.

The Conferees deleted reference to the term "modification" when applied to new sources. The inclusion of this requirement in the Senate and the House bill was believed by the Conferees to be superfluous in light of the provisions which require existing sources (which might become subject to new source performance standards as a result of modification) to meet specific levels of effluent reduction by specific dates pursuant to section 301. To subject those sources to interim levels of control, simply because of a "modification" would be redundant with the requirements of effluent limitations based on "best practicable" and "best available" technology.

In any event, modification or changes in the operation of an existing source so as to alter the nature or amount of pollutants discharged, would be a violation of the conditions of an existing permit and subject to review by the permitting agency. Further action by the source could be required. The Conferees determined that the process established under section 306 for "modifications" would be burdensome and duplicative, and it was therefore deleted.


With regard to toxic pollutant control, the Senate bill and the House amendment differed in provisions for determining whether a pollutant would, in fact, be toxic. The House amendment proposed that there be an examination of the effect of a pollutant on receiving waters to determine toxicity. The Senate bill established a general test in order to assure a categorical determination as to which pollutants were toxic and which were not. The Conference agreement provides specific tests for toxicity as proposed by the House but retains the categorical determination established by the Senate.

Section 307(b) of the Senate bill and the House amendment were substantially similar. Under the Senate provision, compliance with pretreatment standards by industrial users of municipal waste treatment systems was to be enforced through permits under Section 402 and would have been enforceable directly by the Administrator. The House amendment did not so provide. Under the Conference agreement, individual industrial users of municipal waste treatment plants will not be required to obtain a permit under section 402. However, the Conferees agreed, in the alternative, that each municipal waste treatment plant permit must identify any industrial users (as defined in. Section 212) and the pretreatment standards applicable to each industrial user. The Conference agreement provides that a violation of pretreatment standards is enforceable directly against the industrial user by the Administrator.

The Conference agreement also provides that a municipal permit must include provision for notice to the Administrator whenever the conditions of industrial use of municipal waste treatment plant change. The Conferees intend that the Administrator have an opportunity (a) to identify any changes in the municipal permit; (b) to examine the impact on the municipal waste stream to determine if there will be a violation of the permit; and (c) to otherwise require the application of section 308 monitoring requirements to the applicable industrial user.

Finally, the Conference agreement provides that the Administrator establish pretreatment standards for new sources (subject to Section 306) simultaneously with the establishment of new source performance standards in order to assure that any new source industrial user of municipal waste treatment plants achieve the highest degree of internal effluent controls necessary to assure that such users' contribution to the publicly owned works will not cause a violation of the permit and to eliminate from such contribution any pollutants which might pass through, interfere with or otherwise be incompatible with the functioning of the municipal plant.


The requirements of section 308 on monitoring were identical in the Senate bill and the House amendment except as to delegation of authority to the state. It was intended that the Administrator's duty to require monitoring be a mandatory one. The Conferees expect that the Administrator will require the most complete and effective monitoring as he "reasonably" can, from a cost standpoint. Thus, where, for example, continuous monitoring is a reasonable requirement, the Administrator must require such monitoring.


In section 309, the Senate receded to the House in not making civil enforcement mandatory upon the Administrator despite the feeling of the Senate Conferees that, on its own merits, mandatory civil enforcement is far preferable to a discretionary responsibility. It is important to note, however, that the provisions requiring the Administrator to issue an abatement order whenever there is a violation were mandatory in both the Senate bill and the House amendment, and the Conference agreement contemplates that the Administrator's duty to issue an abatement order remains a mandatory one. The duty to issue such an order, under section 309 (a) (3), arises whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of enumerated regulatory requirements of the Act.

It is expected, of course, that upon receipt of information giving the Administrator reason to believe that a violation has occurred, he has an affirmative duty to take the steps necessary to determine whether a violation has occurred, including such investigation as may be necessary, and to make his finding as expeditiously as practicable.

It is intended that enforcement action be initiated against both continuous and intermittent violations of effluent limitations as well as against violations of compliance schedules. Because section 402 permits are expected to include precise compliance schedules, the Administrator must initiate enforcement action whenever there are delays in such actions as completion of plans and design, letting of contracts, initiation of construction, or the meeting of construction deadlines.


The Senate bill and the House amendment differed on oil pollution and hazardous substance liability in the following respects. The Senate bill established authority for the Administrator to set the limits on liability for hazardous substances discharged from vessels and onshore and offshore facilities which could not be cleaned up. The House bill established through a penalty procedure a limit of liability of $50,000 for such discharges.

The Conference agreement intends that the House penalty provision shall operate for two years, after which time a modified liability-penalty provision as proposed by the Senate will be implemented. The two-year period should provide the Administrator with ample opportunity to designate those substances which are hazardous and cannot be removed, and to establish a penalty level for each.

The Conference agreement intends that also during the two-year period in which the House penalty provision shall operate, the Administrator and affected parties also will examine any problem associated with administrative establishment of liability limits. This period will also permit examination of the need for legislation to improve the existing methods of storing, shipping and handling hazardous substances which cannot be removed from the water.

The Conferees intend that prior to the expiration of the two-year period under which the House provision is operative, and after the maritime industry, the insurance industry, the chemical industry, and appropriate Federal agencies have examined the implication of the Senate provision, legislative recommendations will be made to the appropriate Committees of Congress as to the needs to improve the capability of vessels to avoid hazardous substance spills. Should effective legislation be enacted, the Conferees agree that the liability provisions imposed will be reviewed and necessary changes proposed by the Committee on Public Works.


The House amendment provided a study by the National Academy of Sciences of social, economic and environmental implications of "best available demonstrated technology" and of any effluent limits which would require the "elimination of the discharge of pollutants." Under the House amendment, such a study would have been completed in two years and would have been a condition precedent to any requirements beyond January 1, 1976.

The Conference agreement does not require a subsequent action of Congress to trigger those aspects of the program which are commonly referred to as Phase II and beyond. The requirement to achieve effluent limitations based on best available technology and the elimination of discharge of pollutants are automatic on enactment. Compliance is required by the dates established in section 301.

However, the Conference agreement does provide for a study proposed by Senate Public Works Committee Chairman Randolph, of the implications of the requirements of this legislation. As a supplement to and independent of the water quality inventory study required under section 305, the Conferees determined that it would be useful for the Congress to have an independent evaluation of the economic, social and environmental implications of the regulatory aspects of the legislation.

As amended by the Conference agreement, Section 315 calls for the establishment of a 15-member commission composed of five members of each House appointed by the Speaker and the President of the Senate respectively and five members of the public to be appointed by the President. The public members may be Federal officials. The Conference agreement specifies that the funds for the study shall be made available from Legislative Appropriations Act.

The Conferees cannot underestimate the importance of the study to be performed. In order to evaluate effectively the long term implications of the requirements of this legislation in time to make any mid-course corrections that may be necessary, this study must be funded, staffed, and initiated with expedition. Because the study will require contractual arrangements with such organizations as the National Academy of Sciences, the Brookings Institute, the Ecological Institute, and others, funding must be made available as early as practicable.

The Conferees expect the Commission herein established to have an adequate independent staff to evaluate and report on findings of the contractual studies made in its behalf. At the same time, the Conferees do not expect the staff of the Commission to duplicate capabilities available to it through contract. Appropriations for the Commission should be made from the Legislative Appropriations Act.


The House amendment included a provision which treated "heat" discharges on a water quality basis rather than on an effluent control basis. Under the Senate bill "heat" was a "pollutant" subject to the technological requirements of Section 301 and Section 306.

Under the conference agreement thermal pollutants will be regulated as any other pollutant unless an owner or operator of a point source can prove that a modified thermal limitation can be applied which will assure "protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife". 

It is not the intent of this provision to permit modification of effluent limits required pursuant to Section 301 or Section 306 where existing or past pollution has eliminated or altered what would otherwise be an indigenous fish, shellfish and wildlife population. The owner or operator must show, to the satisfaction of the Administrator, that a "balanced indigenous population of fish, shellfish and wildlife" could exist even with a modified 301 or 306 effluent limit. Additionally, such owner or operator would have to show that elements of the aquatic ecosystems which are essential to support a "balanced indigenous population of fish, shellfish and wildlife" would be protected.

The language in section 316, permitting a State to make the determination "if appropriate" that heat discharge may be subject to less stringent controls under this section, is intended to permit the state, if it is delegated responsibility for administering the permit program under section 402, to make the final determination in those cases in which the Administrator does not exercise his veto authority under section 402. The Conferees do not intend that this language alter the basis for later court review of a decision by the Administrator. The question upon review is whether the Federal requirements set forth in section 316, that control of thermal discharges provide for the protection and propagation of fish, shellfish and wildlife, were properly supplied.

A ten year grace period would be granted under the language of this section only when the owner or operator of the point source from which the thermal component is discharged demonstrates to the satisfaction of the Administrator that an effluent limitation applicable to such thermal component will result in a standard of water quality which assures protection and propagation of a balanced, indigenous population of fish, shellfish and wildlife, and such owner or operator obtains a permit under section 402 which sets forth such limit.


The Conferees intend that the certification provision will assure a State water pollution control agency an opportunity to determine whether or not effluent limitations established for discharges subject to a section 402 permit will be at least as stringent as any applicable requirements of existing State program. Secondly, the Conferees agreed the State may attach to any Federally issued license or permit such conditions as may be necessary to assure compliance with water quality standards in that State. The Conferees do not intend that any such State conditions would be less strict than the requirements which would be otherwise required by Federal law.


The Conference agreement provides that the Administrator may review any permit issued pursuant to this Act as to its consistency with the guidelines and requirements of the Act. Should the Administrator find that a permit is proposed which does not conform to the guidelines issued under section 304 and other requirements of the Act, he shall notify the State of his determination, and the permit cannot issue until the Administrator determines that the necessary changes have been made to assure compliance with such guidelines and requirements. The Conferees have retained that portion of the Senate bill which permits the Administrator to waive entirely his authority to review permits for certain categories and classes of pollution sources to all States which receive a delegation. The Administrator is also permitted to specify categories and classes for which he will not review for specific States on the basis of the programs which are in existence in those States.

Additionally, the Conferees have retained the provision of the Senate bill which permits the Administrator to notify a State of intent not to review a specific permit within 90 days in order that the permit issuing process can be expedited. The Conferees also agreed that there should be no enforcement action taken for failure to have a permit until December 31, 1974, in order to provide an adequate opportunity for the Administrator to review and issue or not issue permits for the applications that are pending on date of enactment or will be pending as a result of expansion of the program.

Concern has been expressed that the "immunity" provision will cause dismissal of pending enforcement actions under the Refuse Act of 1899. Section 4 provides the following relevant words pertaining to the Refuse Act: "No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity . . . shall abate by reason of the taking effect of the amendment made by section 2 of this Act."

Without any question it was the intent of the Conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other Acts of Congress.

Additionally, it should be noted that the Administrator may immediately act on pending permit applications. Should he deny a permit to an applicant, the enforcement provisions of Section 809 also would be available immediately.

It was suggested to the Conferees that, if the Act's definition of "point source" is strictly and literally construed, it would subject discharges from marine engines on recreational vessels to the requirement for obtaining a permit under this Act. Since there are more than 6 million owners of recreational vessels which would be required to obtain permits if this interpretation were adopted, the Conferees believe that inclusion of recreational marine engines under the permit program would result in an unreasonable expenditure of administrative effort. It was further recognized that to require each and every boat owner to obtain a permit for his engine would be unreasonable.

We expect the Coast Guard and the Environmental Protection Agency to review the problems associated with regulation of marine engine discharges and to recommend to the Senate and House Public Works Committees any necessary legislation. Pending the submission of this report we would not expect the Administrator to require permits to be obtained for any discharges from properly functioning marine engines or to institute any prosecution for failure to obtain such a permit. This does not, of course, preclude the Administrator from taking action against the discharges from marine engines of harmful quantities of oil under Section 311 of the Act.

There may be other areas where similar problems are created and we would expect the concerned agencies to bring such problems to our attention at the earliest practicable date in order for us to begin working on a solution.


Section 403 of the Senate bill and the House amendment were substantially similar. The Senate bill provided authority for the Administrator to act to disapprove any discharge into the oceans prior to the promulgation of guidelines under this section.

The Conference agreement provides for the Administrator to review any proposed discharge into the oceans prior to the issuance of such guidelines and make a determination whether or not such discharges are in the public interest.

The Conferees intend that section 403 regulate the discharge of any pollutants subject to this Act from any outfall sewer regardless of where that sewer ends and from any vessel within the three mile limit, any other legislation to the contrary notwithstanding. Should the Administrator find that criteria regulating discharges into the territorial sea from vessels established by other legislation are in conflict with this legislation, the Conferees expect that this legislation shall prevail.


A major difference between the Senate bill and the House amendment related to the issue of dredging. The Senate Committee had reported a bill which treated the disposal of dredged spoil like any other pollutant. Pursuant to an amendment accepted on the Senate floor, dredged spoil disposal was made subject to a different set of criteria to determine any environmental effects.

The House bill not only established a different set of criteria to determine the environmental erects of dredged spoil disposal but also designated the Secretary of the Army rather than the Administrator of the Environmental Protection Agency as the permit issuing authority. The Conference agreement follows those aspects of the House bill which related to the Secretary of the Army's regulatory authority. However, consistent with the Senate provision, the Administrator of the Environmental Protection Agency has three clear responsibilities and authorities.

First, the Administrator has both responsibility and authority for failure to obtain a Section 404 permit or comply with the condition thereon. Section 309 authority is available because discharge of the "pollutant" dredge spoil without a permit or in violation of a permit would violate Section 301(a).

Second, the Environmental Protection Agency must determine whether or not a site to be used for the disposal of dredged spoil is acceptable when judged against the criteria established for fresh and ocean waters similar to that which is required under Section 403.

Third, prior to the issuance of any permit to dispose of spoil, the Administrator must determine that the material to be disposed of will not adversely affect municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife or recreational areas in the specified site. Should the Administrator so determine, no permit may issue.

The Conferees were uniquely aware of the process by which the dredge and fill permits are presently handled and did not wish to create a burdensome bureaucracy in light of the fact that a system to issue permits already existed. At the same time, the Committee did not believe there could be any justification for permitting the Secretary of the Army to make determination as to the environmental implications of either the site to be selected or the specific spoil to be disposed of in a site. Thus, the Conferees agreed that the Administrator of the Environmental Protection Agency should have the veto over the selection of the site for dredged spoil disposal and over any specific spoil to be disposed of in any selected site.

The decision is not duplicative or cumbersome because the permit application transmitted to the Administrator for review will set forth both the site to be used and the content of the matter of the spoil to be disposed. The Conferees expect the Administrator to be expeditious in his determination as to whether a site is acceptable or if specific spoil material can be disposed of at such site.

At the same time, the Committee expects the Administrator and the Secretary to move expeditiously to end the process of dumping dredged spoil in water to limit to the greatest extent possible the disposal of dredged spoil in the navigable inland waters of the United States including the Great Lakes, to identify land-based sites for the disposal of dredged spoil, and, where land-based disposal is not feasible, to establish diked areas for such disposal.

All of these alternatives are available. The only justification for continuing to utilize open water disposal is the cost of alternatives. The Conferees believe that the economic argument alone is not sufficient to override the environmental requirements of fresh water lakes and streams.

Therefore, early action should be taken by the Administrator to develop alternative sites and alternative methods of spoil disposal.


The term "discharge" is a word of art in the legislation. It refers to the actual discharge from a point source into the navigable waters, territorial seas or the oceans. It does not refer to the contribution of waste by a point source to a treatment facility. The Senate provision differed from the House amendment by including in the definition of "discharge" not only direct and indirect discharges into the navigable waters, but also discharges into municipal waste treatment plants.

The Conferees discussed at some length whether or not such contribution from discharges by point sources should be subject to section 306 or should be required to obtain a permit under section 402 as required by the Senate bill. The Conferees agreed that no specific permit would be required for any industrial users subject to sections 204, 307 or 308 contributing to a municipal waste treatment plant, but that the permit for the municipal waste treatment plant would set forth the requirements imposed on the industrial user. The elements of the requirements on the municipal plant are set forth in section 402.

The language of the House amendment as regards pollutants associated with oil and gas production was clarified to indicate that the process of injection and disposal of materials associated with oil and gas production from wells would be excluded only where a State regulatory program existed. The Conferees intend that this provision assure that no injection or disposal occur in such a manner as to present a potential hazard to ground water quality. At the same time the Conferees did not intend to place in the Environmental Protection Agency the responsibility for regulating the process of oil production known as "secondary recovery".

One matter of importance throughout the legislation is the meaning of the term "navigable waters of the United States."

The conference agreement does not define the term. The Conferees fully intend that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.

Based on the history of consideration of this legislation, it is obvious that its provisions and the extent of application should be construed broadly. It is intended that the term "navigable waters" include all water bodies, such as lakes, streams, and rivers, regarded as public navigable waters in law which are navigable in fact. It is further intended that such waters shall be considered to be navigable in fact when they form, in their ordinary condition by themselves or by uniting with other waters or other systems of transportation, such as highways or railroads, a continuing highway over which commerce is or may be carried on with other States or with foreign countries in the customary means of trade and travel in which commerce is conducted today. In such cases the commerce on such waters would have a substantial economic effect on interstate commerce.

The Conferees omitted as unnecessary Senate language expressly defining "State" to include certain types of interstate agencies. It is the Conferees' intent that an interstate agency authorized or approved by act of Congress having substantial water pollution control powers or duties within a particular interstate river basin shall be treated as a State for purposes of the Act.


Under the Conference agreement, the Administrator may seek an injunction against any discharge which presents an imminent substantial endangerment to the health of persons, to their economic well-being, or to fish and wildlife.

This provision is intended to be supplementary to and not a substitute for the regulatory provisions of the bill. The Conferees recognize that most pollutants will have an adverse erect on elements of the aquatic ecosystem but do not intend that the Administrator use the authority in this subsection to deal with more general problems. However, from time to time, continuous discharges occur which present an imminent substantial endangerment to fish and wildlife or to persons. These discharges should be abated through this authority and should be subject to the establishment of a standard of prohibition under section 307 in order to assure that a general regulator-program is initiated as opposed to reliance in injunctive relief.


The Conference agreed to define a citizen, for purposes of the citizen suit section of the water bill, as a "person or persons having an interest which is or may be adversely affected." It based this compromise language on Section 10 of the Administrative Procedures Act, U.S.C. §702, and the interpretation given to that section in Sierra Club v. Morton, 40 U.S.L.W. 4397 (1972).

 In Sierra Club, the Supreme Court held that under the A.P.A. the party seeking review must itself be among those injured by the action or inaction complained of. The Court also held that non-economic injury to an environmental interest is sufficient to meet the A.P.A. test, stating specifically that "the interest alleged to have been injured may reflect aesthetic, conservational, and recreational as well as economic values". The Court also emphasized that "aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our country, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." Thus under the language agreed to by the Conference a citizen suit may be brought only by those persons or groups which are among those whose interest (whether environmental or economic) is or may be injured by the violation of the Act which is the basis of the suit.

The Conferees accepted a provision requiring that citizens seeking to bring an action give appropriate notice and wait 60 days before filing suit to give the appropriate administrative agencies a chance to act.

This 60-day provision was not intended, however, to cut off the right of action a citizen may have to violations that took place 60 days earlier but which may not have been continuous. As in the original Senate bill, a citizen has a right under section 505 to bring an action for an appropriate remedy in the case of any person who is alleged to be, or to have been, in violation, whether the violation be a continuous one, or an occasional or sporadic one.


Section 511(c) (1) of the conference report is intended by the conferees to clarify the relationship between the Federal Water Pollution Control Act (FWPCA) and the National Environmental Policy Act (NEPA) and to extend the provisions of NEPA to two activities of the Administrator.

The relation of FWPCA and NEPA should not require clarification. It was clearly intended, at the time Congress enacted NEPA, that environmental regulatory agencies such as those authorized by FWPCA and the Clean Air Act would not be subject to NEPA's provisions.

The debate in the Senate and the House at the time of approval of the Conference Report on NEPA is abundantly clear.

In a summary of major changes adopted by the Conference Committee which Senator Jackson (primary sponsor and floor manager of NEPA) included in the Record, the following statement appears:

"Many existing agencies such as the National Park Service, the Federal Water Pollution Control Administration, and the National Air Pollution Control Administration already have important responsibilities in the area of environmental control. The provisions of Section 102 (as well as 103) are not designed to result in any change in the manner in which they carry out their environmental protection authority."

“It is not the intent of the Senate conferees that the review required by Section 103 would require existing environmental control agencies such as the Federal Water Pollution Control Administration and National Air Pollution Control Administration to review their statutory authority and regulatory policies which are related to maintaining and enhancing the quality of the environment. This section is aimed at those agencies which have little or no authority to consider environmental values." (S. 17458,12-20-69)

I made the following statement as regards Senator; Jackson's explanation:

"It is clear then, and this is the clear understanding of the Senator from Washington and his colleagues, and those of us who serve on the Public Works Committee, that the agencies having authority in the environmental improvement field will continue to operate under their legislative mandate as previously established, and that those legislative mandates are not changed in any way by section 102.” (P. 17458,12-20-69)

Also, in a colloquy with Senator Boggs, I extended my comments on the understanding of the Senate as regards the relationship between FWPCA and NEPA:

"Mr. BOGGS. Am I correct that the thrust of the direction contained in S. 1075 deals with what we might call the environmental impact agencies rather than the environmental enhancement agencies, such as the Federal Water Pollution Control Administration or National Air Pollution Control Administration.

Mr. MUSKIE. Yes. Sections 102 and 103, and, I think Section 105, contain language designed by the Senate Committee on Interior and Insular Affairs to apply strong pressures on those agencies that have an impact on the environment – the Bureau of Public Roads, for example, the Atomic Energy Commission, and others. This strong language in that section is intended to bring pressure on those agencies to become environment conscious, to bring pressure upon them to respond to the needs of environmental quality, to bring pressure upon them to develop legislation to deal with those cases where their legislative authority does not enable them to respond to these values effectively, and to reorient them toward a consciousness of and sensitivity to the environment.

Of course this legislation does not impose a responsibility or an obligation on those environmental-impact agencies to make final decisions with respect to the nature and extent of the environmental impact of their activities. Rather than performing self-policing functions, I understand that the nature and extent of environmental impact will be determined by the environmental control agencies.

With regard to the environmental improvement agencies such as the Federal Water Improvement Administration and the Air Quality Administration, it is clearly understood that those agencies will operate on the basis of the legislative charter that has been created and is not modified in any way by S.1075." (S.17460,12-20-69)

Finally during consideration of the NEPA Conference Report in the House of Representatives, the following exchange between Representatives George Fallon and House floor manager Representative John Dingell appears:

"What would be the effect of this legislation on the Federal Water Pollution Control Agency?

Answer: Many existing agencies such as the Federal Water Pollution Control Agency already have important responsibilities in the area of environmental control. The provisions of sections 102 and 103 are not designed to result in any change in the manner in which they carry out their environmental protection authority. This provision is primarily designed to assure consideration of environmental matters by agencies in their planning and decision-making – but most especially those agencies who now have little or no legislative authority to take environmental considerations into account." (H. 13093,12-23-69)

NEPA has proved to be a far-reaching and progressive statute. Prior to its enactment, few agencies, other than the Federal Water Pollution Control Administration and the National Air Pollution Control Administration, had specific mandates to consider the impact on the environment of the various activities under their control. In fact, many mission agencies asserted that they were not authorized to consider environmental values. As noted by Judge J. Skelley Wright in Calvert Cliffs' Coordinating Committee v. AEC (449 F.2d 1109), "Perhaps the greatest importance of NEPA is to require agencies to consider environmental issues just as they consider other matters within their mandates." By and large, NEPA has been successful in requiring mission agencies to take environmental considerations into account as an integral part of the decision-making process that previously excluded them.

But, as indicated above, Congress did not intend that the several provisions of NEPA should apply to the activities of the agencies which now comprise the Environmental Protection Agency.

Section 5(d) of the Council on Environmental Quality's NEPA guidelines of April 23, 1971 – which purport only to deal with a single provision of NEPA (the requirement of section 102(2) (C) that detailed statements be prepared) – accurately reflect the intent of the Congress with respect to 102(2) (C). But section 511 (c) of the Federal Water Pollution Control Act, as that Act is proposed to be amended by S. 2770, is not limited to section 102(2) (C) of NEPA.

I invite the attention of my colleagues to a recent decision of the Third Circuit Court of Appeals, Getty Oil Co. v. Ruckelshaus (__F. 2d.__, September 18, 1972), a case in which the Getty Oil Company sought to enjoin EPA from issuance of a compliance order under the Clean Air Act. A three judge panel rejected the arguments of the company, and Judge Rosen wrote the opinion of the Court. I quote from that opinion:

Appellant's remaining argument is that EPA's failure to file an environmental impact statement pursuant to section 102(2) (C) of the National Environmental Policy Act of 1969, 42 U.S.C. 4332(2) (C), renders the Administrator's compliance order ultra vires. Even if we were to agree in Getty's premise that EPA is subject to the NEPA requirement, such an issue is properly raised in a section 307 proceeding. To require an impact statement at the enforcement stage would do substantial harm to the Congressional purpose of obtaining expeditious compliance with primary and secondary air standards. Failure to utilize the 307 proceeding forecloses review in a civil or criminal proceeding for enforcement. 42 U.S.C. 1857h5(b) (2). Furthermore, both EPA regulations and the guidelines drafted by the Council on Environmental Quality exempt regulatory activities from the impact statement requirements.

The Court further noted in a footnote to the second sentence of the above-quoted passage: "The cases cited to us by appellant are not persuasive that EPA is bound by NEPA." There certainly is no doubt in my own mind that EPA is not bound by NEPA.

The Environmental Protection Agency is a Federal agency charged by Congress with statutory obligations to comply with, to ensure compliance with, and to institute civil and criminal proceedings in cases of the violation of specific criteria and standards of environmental quality. If there have been any doubts as to whether the various provisions of NEPA apply to the activities of EPA, section 511(c)(1) is expressly designed to still such doubts with finality.

The mandate of NEPA is very broad. The mandate to EPA is quite narrow. The Federal Water Pollution Control Act Amendments of 1972, for example, charge the Administrator of EPA with a direct mandate to regulate the discharge of pollutants into the waters of the United States. The sole purpose of the Act is to establish a detailed regulatory mechanism for restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters. The goal of the Act is to eliminate the discharge of pollutants into the Nation's waters by 1985.

In the administration of the Act, EPA will be required to establish numerous guidelines, standards, and effluent limitations. The Administrator will be required to apply those effluent limitations to thousands of point sources of pollution across this Nation. With respect to each of these actions, the Act seeks to provide Congressional guidance to the Administrator in as much detail and with as much specificity as the two Houses could contrive.

Nonetheless, virtually every action required of the Administrator will involve some degree of agency discretion – judgments involving a complex balancing analysis of factors that include economic, technical, and other considerations. The Act seeks to guide the Administrator, to the extent deemed humanly possible by the Congress, in the matter of assigning relative weight to the many factors that he must, under the Act, consider. For example, Sec. 304(b) sets forth precisely the factors to be considered in developing guidelines for effluent limits:

§ 304(b) (1)(B)specify factors to be taken into account in determining the control measures and practices to be applicable to point sources (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b) (1) of section 301 of this Act shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate;

§304(b) (2)(B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b) (2) of section 301 of this Act to be applicable to any point source (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate;"

If the general procedural or substantive reforms achieved in NEPA – however desirable and salutary they have proven to be when applied to mission agencies not charged with specific statutory environmental obligations – were permitted to override, supersede, broaden, or affect in any way the more specific environmental mandate of the FWPCA, the administration of the Act would be seriously impeded and the intent of the Congress in passing it frustrated.

The purpose of this bill is to set rapidly in motion an effective water pollution control program. The Act sets tight time limits within which the Administrator must take a multitude of actions, each heavily dependent on the other, that will, in the aggregate, produce a meaningful, effective, and truly workable program as quickly as possible. Should the Administrator find himself confronted with substantive or procedural requirements extraneous to this Act, the very program that the Act seeks to establish would be imperiled.

NEPA requires, in section 102(2) (B), for example, that agencies of the Federal government identify and develop methods and procedures "which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations." The ground rules for this kind of finely- tuned, systematic balancing analysis are explicitly set out repeatedly in the FWPCA.

This Act specifically identifies factors to be considered by the Administrator in making this kind of balancing analysis, and the conferees concluded that the substantive purposes and procedures of the Act fully satisfy and go far beyond what is required by 102(2) (B) and would be frustrated if other factors were to be injected into the decisions of the Administrator by NEPA. The actions of the Administrator with respect to various regulated activities under this Act should not be viewed as a "Federal handle" on those activities for the purpose of making those activities subject to a range of considerations that lie outside the ambit of the FWPCA.

Further, it should be pointed out that if the broad, somewhat vague balancing analysis that some courts have found in NEPA were to be super-imposed on the decisions of the Administrator taken pursuant to this Act, the owners or operators of sources of pollution which the Act seeks to regulate will use NEPA to delay the implementation of the Act on more general "cost-benefit" grounds. Such actions are pending presently against the Administrator in the federal courts, including a challenge to the validity of ambient air standards for sulfur oxides promulgated under the Clean Air Act.

There are other sections of NEPA which, if applicable to the Administrator, could impede implementation of the Act. Compliance with the "impact statement requirements" of section 102(2) (C) of NEPA, as one example, would increase unnecessarily the administrative burdens of EPA, which will be heavy enough as it is.

However, the conferees concluded that it would be sound public policy to extend the applicability of NEPA to two of the Administrator's regulatory responsibilities: the making of grants for the construction of publicly owned waste treatment works and the issuance of permits under section 402 of the FWPCA to "new sources" as defined in section 306.

The Conferees determined that it would be useful to apply, in the case of waste treatment grants, the requirement of NEPA included in sections 102(2) (C) and 102(2) (D). Application of these sections would cause the Administrator to consider "alternative" methods of waste treatment which may have the beneficial effect of decreasing blind reliance on "secondary treatment" and stimulate more innovative methods of waste treatment.

The Conferees believe that the owner or operator of what is to be a new source has a degree of flexibility in planning, design, construction, and location that is not available to the owner or operator of an existing source. The Conferees concluded, therefore, that it would be both appropriate and useful for the Administrator to consider the various "alternatives" described in sections 102(2) (C) and 102(2) (D) of NEPA in connection with the proposed issuance of a permit to a new source, whereas the Conferees concluded that the consideration of such "alternatives" in connection with the proposed issuance of a permit for existing sources, collectively or individually, would not be appropriate and consequently did not extend the various requirements of NEPA to Such permits.

Thus, it is the clear intent of section 501 (c) (1) of this bill that the only actions of the Administrator subject to any of the provisions of NEPA are the issuance of a permit to a new source and the making of a grant under section 201.

Because the language of 511 (c) (1) speaks of "major Federal actions significantly affecting the quality of the human environment" – a phrase which only appears in section 102(2) (C) of NEPA – some will argue that the conferees intended to limit their attention to section 102(2) (C) and that all of the other provisions are therefore meant to be applicable to actions of the Administrator. I address myself to those who would grasp at this slender straw. The term "major Federal action" and NEPA are synonymous in the minds of the conferees. It is the clear intent of conferees of both Houses – it was certainly the clear intent of the conferees when this provision was unanimously adopted – that all of the provisions of NEPA should apply to the making of grants under section 201 and the granting of a permit under section 402 for a new source and that none of the provisions of NEPA would apply to any other action of the Administrator.

At page 149 of Report No. 92-1236, in the joint statement of managers on the part of the House and the Senate, we state: "If the actions of the Administrator were subject to the requirements of NEPA, administration of the Act would be greatly impeded." We do not say "one of the requirements of NEPA." We do not say "some of the requirements of NEPA." We say "the requirements of NEPA." That is what we said, and that is what we meant.

Section 511 (c) (2) addresses itself to the authority of federal licensing and permitting agencies, other than EPA, as relates to effluent limitations and other requirements established pursuant to the FWPCA. EPA is the sole Federal agency specifically charged with comprehensive responsibility to regulate the discharge of pollutants into the waters of the United States, and section 511 (c) (2) will ensure that no source of discharge which is in lawful compliance with an effluent limitation established pursuant to the FWPCA will be required to meet a different. standard as a condition of a license or permit granted by another Federal agency, such as the Atomic Energy Commission. Such agencies shall accept as dispositive the determinations of EPA and the States (under section 401 and its predecessor, section 21 (b) of the FWPCA prior to the 1972 amendments).

However, it should be emphasized, as it was by Senator Baker when he first offered this amendment in its original form during Senate consideration of S. 2770 on November 21, 1971, that nothing in section 511(c) (2) should in any way be construed to discharge any federal licensing or permitting agency, other than EPA, from its full range of NEPA obligations to make a systematic balancing analysis of the activity proposed to be licensed or permitted. For example, if, in making a NEPA analysis in connection with the proposed issuance of a license or permit to a source that is or will be in lawful compliance with an EPA effluent limitation and a State water quality standard, such an agency were to conclude that the environmental impact of the source, including impact on water quality, exceeded the benefits to be derived, section 511 (c) (2) should not be construed as authorizing such an agency to ignore or fail to give full weight to any impact on water quality in making its final decision as to whether or not a license or permit should issue.


Section 3 of the Conference report contains a minor typographical error in two places. In each place the phrase "not to exceed" appears as "and to exceed." Very obviously the intention is that the phrase read "not to exceed." The statement of managers makes this clear.


The House amendment included a provision to establish an Environmental Financing Authority to assist communities unable to obtain adequate financing to fund the local share of the cost of waste treatment projects assisted by this Act. The Senate Conferees accepted the House provision with an amendment which will cause EFA to cease operation on July 1, 1975. This termination date was included to permit a complete re-evaluation of EFA at an early date.

It is obvious that the nature of the Conference agreement may alter the circumstances regarding community funding problems. With a guaranteed 75% Federal grant for the cost of projects, the effective rate of community obligation under the Federal Water Pollution Control Act will be reduced from a maximum of 70% to a maximum of 25%. This should reduce the need for an alternative assistance mechanism.

Because the conditions of local financing will have changed, the Conferees believe that a complete re-examination of the need for the Environmental Financing Authority should be submitted to the Congress within three years. If the Congress determines that this alternative financing mechanism is, in fact, needed by communities, then the Congress should re-enact the legislation.

The Conferees intend that should EFA be established, it should not come into competition with the private underwriting market. EFA should not become involved in any circumstances where a community can borrow money on the open market at reasonable rates. EFA should be the last resort for a community. It is not intended to interfere with the normal functioning of the private market. It is not intended to provide interest subsidies which would make EFA financing more attractive than private market financing. It is intended to assist those communities which, after a reasonable attempt to obtain financing in the private market, have been unable to obtain funds needed to construct waste treatment facilities at a reasonable cost.

While the Conferees do not expect communities will actually market test securities in order to become eligible for EFA, the Conferees expect, at minimum, a showing by a responsible broker (or brokers) that the community cannot obtain credit at the posted rate.

Mr. BENTSEN. Mr. President, will the Senator yield?

Mr. MUSKIE. Before yielding, I want to observe that the Senator from Texas (Mr. BENTSEN) is a member, and a very effective member, of the committee.

Mr. President, I yield 2 minutes to the Senator from Texas.

The PRESIDING OFFICER. The Senator from Texas is recognized for 2 minutes.

Mr. BENTSEN. Mr. President, I intend to vote for this conference report, but I would be less than candid if I failed to register my strong objection to section 205, which establishes a new allotment formula for grants to States for the construction of waste treatment plants.

Mr. President, I sat in on the great majority of the 42 executive sessions the Senate Public Works Committee held on this measure. I supported the bill as it came out of committee.

During our committee deliberations on this measure, my Senate colleagues agreed on a formula for distributing funds among the States largely on the basis of population, with reallocation of any funds not obligated to be made on a priority basis to States qualifying for 70 percent Federal assistance.

The House adopted a different formula. The House bill authorized the Administrator to allot construction on the basis of a State's needs, not on the basis of population.

Normally, Mr. President, Senate and House conferees make some attempt to reconcile differences in the two versions of the legislation before them by working out a compromise incorporating some provisions of each bill.

But the bill we are asked to improve today contains no such compromise; the Senate conferees adopted the essence of the House bill.

As a result my State stands to lose considerable funding over the next 3 years, possibly up to $500 million.

That, of course, is a severe blow, not only to the Texas Water Quality Improvement Board, but to all of the citizens of my State.

The irony of the compromise is that it punishes those States which have taken the initiative to establish adequate water pollution control programs in the past. The States which have been lax and delinquent in cleaning up their waters will be rewarded.

Mr. President, I fail to understand why the conferees did not adopt some features of both the House and Senate plans. One solution, for example, would have been to weigh population and needs together in a formula which would have encompassed the best features of both bills.

Instead, the Senate conferees opted to take the essence of the House plan. That, I am constrained to say, is a disappointment to committee members who worked long and hard to resolve the difficult problem of allocating funds among the States.

I am a realist. I know this conference report is going to pass. But I want the RECORD to show my objections to section 205.

I congratulate the distinguished Senator from Maine for the very fine work he has done throughout on this bill.

Mr. MUSKIE. Mr. President, I thank the Senator from Texas.

May I say briefly that this was one of the tough issues which we spent long hours on. We finally resolved it as we did and resolved it in the conviction that we are now prepared to do whatever is needed to do the job in every State. If Congress does this, then the means formula ought to produce the money to do the job. The Senator is assured of my commitment to that effect.