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Eleventh Hour Amendment to FWPCA Resuscitates EPA's Hazardous Substance Discharge Program

November 1978

Citation: ELR 10229

In a classic legislative "quick fix," the 95th Congress on the next to last day of its second session rushed through to passage an amendment to §311 of the Federal Water Pollution Control Act (FWPCA)1 that breathes new life into the federal program for the regulation of hazardous substances spills into the nation's waters. The program had been plunged into a state of suspended animation by a recent federal district court decision in Manufacturing Chemists Association v. Costle2 which invalidated as inconsistent with the explicit requirements of §311 the Environmental Protection Agency's (EPA's) regulations governing spills or discharges of hazardous chemicals. The last-minute congressional removal of this judicial roadblock saved the Agency from the unpleasant choice between an uncertain and time-consuming appeal and the lengthy process of demonstrating the harmfulness of particular discharge amounts in various receiving waters.

By dramatically reducing the maximum civil penalty that can be levied against violators, these changes to §311 diluted the strength of the provision as a deterrent to hazardous substances discharges. More importantly, however, the amendments finally clear the way for implementation of this long-delayed but environmentally crucial program. From a broad perspective, the episode also illustrates the difficulties inherent in attempting to administer a statutory formulation that requires a determination of actual ecological harm prior to regulation or prohibition.

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