controlling stationary sources the NAAQS and state emission regulations. But by 1970, some persuasive arguments were being made for national stationary source emission standards. In particular, it was feared that the strategy based on ambient standards would encourage sources to locate in clean regions, giving these areas a competitive economic advantage over others and causing the further spread of pollution. It was also realized that there may be some harmful pollutants for which a NAAQS had not yet been or could not be promulgated for technical reasons, and some mechanism was required for controlling these. So the 1970 CAA provided for national emission standards for new sources and for hazardous pollutants.

Section 111 of the Clean Air Act requires the Administrator of EPA to publish a list of "categories of stationary sources" which, in his determination, "contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare.” He must then establish "standards of performance" for new sources in these categories, which reflect "the best system of emission reduction which (taking into account the cost...) the Administrator determines has been adequately demonstrated." The Administrator is also directed to extend these technology-based emission limitations to existing sources which are not otherwise controlled. Thus, after a simple determination that a category of sources "may contribute substantially to air pollution," and a determination that a specific emission standard reflects the best demonstrated system, "it shall be unlawful...to operate ... in violation" of that standard, and EPA can take direct enforcement action against any violator.

Similarly, Section 112 requires the Administrator to publish a list of "hazardous air pollutants," meaning pollutants which may "contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversable illness," but for which there is no national ambient air quality standard. He must then establish for each hazardous pollutant an "emission standard . . . at the level which in his judgment provides an ample margin of safety to protect the public health .. No new source may begin operation in violation of this emission standard, and existing sources have no more than two years to comply or shut down. The economic or technical feasibility of compliance is not to be a factor, except that the President of the United States may exempt any stationary source from compliance for renewable two-year periods if he finds that technology for compliance is unavailable and continued operation of the source "is required for reasons of national security." Thus, the Administrator need only determine that, "in his judgment," some specific emission level is necessary to provide "an ample margin of safety to protect the public health," and all sources unable to comply or get a Presidential waiver must close down in two years.

Nondeterioration

The CAA has as a purpose "to protect and enhance the quality of the Nation's air resources," 34 a rather ambiguous statement. Since the secondary NAAQs are supposed to eliminate all known or anticipated adverse effects of air pollution, if they are "properly" chosen it would

34 CAA, Sec. 101, (b) (1), emphasis added.

seem that getting and keeping the air as clean as the secondary NAAQS would accomplish about all the protecting and enhancing anybody could reasonably want. This interpretation is strengthened by the fact that the Administrator is directed to approve any SIP which provides for the attainment and maintenance of the NAAQS. Nonetheless, the courts quickly ruled that the reference to "enhance," when combined with the legislative history, required EPA to prevent "significant deterioration" of existing air quality in any portion of any state.35 Although the precise meaning and implications of this are still being debated, it became clear early in the history of the CAA that the policies to control air quality could be an important influence on the location of future national economic growth.

The 1972 Federal Water Pollution Control Act

The 1972 FWPCA maintained most of the provisions of the earlier legislation, but only in an effort not to disrupt those state programs which were accomplishing something. On the whole, the 1972 act took an entirely different philosophical tack, based on the uniform application of the best technology everywhere. To accomplish this it set ambitious goals and rigid deadlines, established complex bureaucratic processes, promised billions of dollars to pay for the bulk of the municipal cost of accomplishing the goal, and provided for "citizen suits" to force action.

The Objectives and Timetables

The 1972 FWPCA states two "national goals:" "that the discharge of pollutants into the navigable waters be eliminated by 1984;" and, "wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by 1 July 1983." 36 These ambitious national goals are to be pursued with a technology-based strategy. Section 301 of the Act requires that all point source discharges be using "best practicable control technology currently available" (BPT) by 1 July 1977, and "best available technology economically achievable" (BAT) 37 by 1 July 1983. Other sections of the Act require national effluent standards for new sources (Sec. 309), for sources which discharge to publicly owned treatment plants ("pretreatment" standards, Sec. 307 (b)), and for sources of toxic pollutants (Sec. 307(a)). In defining these effluent standards, EPA is to require levels attainable with "best" technology always, and zero discharge wherever possible. Thus, the 1972 FWPCA "clearly establish (es) that no one has the right to pollute-that pollution continues because of technological limits, not because of any inherent right to use the nation's waterways for the purpose of disposing of wastes." 38 The Act's objectives and deadlines are to be studied by a special National Commission on Water Quality and perhaps modified by Congress; but the Administrator has no authority to

relax them.

Sierra Club v. Ruckelshaus, 344 F. Supp. 253, and Fri v. Sierra Club, 412 U.S. 541. 1972 FWPCA, Section 101(a).

Or its enivalent. The FWPCA specifies performance standards, to be met any way the discharger chooses.

Senate Report on 1972 Amendments, S. Rep. No. 92-414; 92d Congress, 1st Sess., 42 1971). Cited in Zener, op. cit., p. 694.

National Pollution Discharge Elimination System

Under the 1972 FWPCA, EPA is required, with short deadlines, to begin producing the technical and economic information needed to establish all the effluent standards envisioned. "Effluent guidelines" are to be produced, to be used in establishing BPT and BAT effluent limitations for individual existing sources. In addition, pretreatment standards and toxic effluent standards are to be promulgated.

To translate these guidelines and standards into regulations enforceable on individual dischargers, the 1972 FWPCA introduced a permit system called the National Pollutant Discharge Elimination System (NPDES). This system required EPA (or the state, where a state has an EPA-approved program) to write a permit for each individual source, specifying (among other things) how and on what schedule the applicable effluent standards would be accomplished, in no case later than 1 July 1977 for BPT on existing sources. Where the national effluent standards were not sufficient to accomplish state water quality standards, more stringent requirements were to be imposed, based on an analysis of effluent limitations necessary to accomplish water quality standards. No point source could discharge without a permit. Once the permit was in place, the state, EPA or interested citizens could go to court to compel compliance with its conditions.

Municipal Pollution Control

The 1972 FWPCA makes municipal point source dischargers subject to the NPDES permit requirements, the same as industrial dischargers. EPA was to promulgate effluent guidelines defining "secondary treatment or its equivalent" to be met by 1977, and "best practicable waste treatment technology over the life of the works" to be met by 1983, and then to issue permits specifying how individual. municipal plants will come into compliance on time. It was obvious, however, that federal enforcement action against municipalities is not a realistic policy so long as the municipalities could claim that they could not afford treatment, and the FWPCA relies primarily on massive federal construction grants to bring about control of municipal pollution.

To see that these federal funds are well spent, Section 208 of the FWPCA requires states to develop areawide waste treatment plans as the basic long-term management plans for each area. These plans are to identify the best regional waste treatment systems, set priorities for construction, and, together with the facilities plans required by EPA regulations, find cost-effective solutions to area wide problems. The Section 208 plans are also to identify the principal "non-point" source 39 problems and develop strategies for dealing with these.

EPA's "1971 Needs Survey" had estimated that $18.2 billion of federal funds spent during fiscal years 1972 to 1976, on a 3 to 1 matching basis, would bring about significant progress toward the 1977 "secondary treatment" goal.40 Hence, the 1972 FWPCA authorized obligations of $5 billion in fiscal year 1973, $6 billion in fiscal year 1974, and $7 billion in fiscal year 1975, recognizing that this was probably inadequate to support full compliance with the 1977 requirement,

39 "Non-point" sources include agricultural lands, forests, city streets, etc. 40 Draft Staff Report, NCWQ, p. V-36.

but expecting that, carefully planned and managed, this much money could accomplish much by 1977. President Nixon explained his veto of the 1972 FWPCA in terms of the "inflationary impact" of this $15 billon, but apparently did not persuade Congress; the veto was promptly overridden.

GENERAL OBSERVATIONS ON THE 1970'S POLICY DIRECTIONS

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plicit in the environmental policies of the early 1970s are not likely to prove adequate in the long run.

EVALUATION OF THE 1970 CLEAN AIR ACT

Evaluation of a program as ambitious, complex, and unprecedented as that launched by the 1970 CAA is extremely difficult and cannot be expected to produce unambiguous conclusions. The easiest observation to make is that the literal goals of the Act have not been met or are unlikely to be met: national ambient air quality standards were not achieved everywhere by 1975 or by 1977, the latest fallback date envisioned in the 1970 CAA; automobile emissions were not reduced 90 percent by 1975 and will not be by 1980. In the sense of strictly accomplishing its literal goals, the federal air quality management program has clearly "failed."

This criterion, however, is neither fair to the drafters of the legislation nor useful to those trying to improve it. The specific goals and deadlines in the 1970 CAA-indeed, any very precise, quantitative statement of goals and timetables-do not reflect the needs of society and nature as much as they reflect the needs of administrative and legal processes, especially within a purely regulatory system, and one cannot criticize a program purely for failure to accomplish goals which might have served their administrative purposes without being accomplished. Instead, one must look at what the programs have actually accomplished as they have been amended over the years, make some judgment about what they are likely to accomplish in the future, and then compare this performance with what one could reasonably expect from any regulatory program or some non-regulatory alternatives.

IMPLEMENTATION OF THE 1970 CLEAN AIR ACT

The principal regulatory innovations of the 1970 Clean Air Amendments were the use of legislatively-set, uncompromisable, health-protection goals, and rigid deadlines to force action. And the principal fact of life since 1970 has been the periodic postponement of deadlines and revisions of timetables by Congress, the courts, and EPA. This observation by itself does not demonstrate that the CAA was necessarily unwise in setting these rigid deadlines; and it certainly does not suggest that it was unwise to relax the deadlines as it has become clear they would not or should not be met. But the experience so far with the CAA does suggest that setting rigid deadlines and constraining the regulatory authorities do not do much to overcome the basic problems with regulation in this area.

Mobile Source Emission Standards

The 1970 Amendments required that emissions of pollutants from new automobiles (on a gram per mile basis) should be reduced by ninety percent within five years. The Administrator was allowed to grant only a single, one-year extension, and then only if he found the manufacturers were making serious efforts but could not comply for technical reasons. The burden was to be on the manufacturers to find a solution and to bear the costs.