EPA not using all technology available to implement the Clean Water Act

Newton Creek Wastewater Treatment Plant - Brooklyn, NY. Photo: Tom Mische/CC on flickr

The Clean Water Act of 1972 promised to eliminate all water pollution by 1985, but the EPA required that only some fecal waste be treated and did not require treatment of urine and protein waste. Waste water treatment expert Maier asserts that untreated human waste is an unnecessary major cause of eutrophication of waterways, including an 8,000 square miles “dead zone” in the Gulf of Mexico.

by Peter Maier, PhD, PE

When Congress passed the Clean Water Act (CWA) in 1972 with its goal to eliminate all water pollution by 1985, and an interim goal of “swimmable and fishable” waters by 1983, it demanded a technology-based implementation program. Under the plan, all national permits would require the “best available treatment technology.” A water quality-based program (treatment based on the water quality of receiving waters) would be too easy to manipulate by local politicians and basically defeat the purpose of setting the national treatment standards of the Act.

"Since the initial passage of the Federal Water Pollution Control Act of 1972, water quality management has evolved significantly through technological advances in required treatment levels, the implementation of water quality based effluent limits and the widespread application of disinfection technology to point sources. By almost every measure, surface waters are closer than ever before to fully achieving the fishable, swimmable goals espoused by the Act.” -- ASIWPCA letter to EPA Office of Water and Office of Science and Technology

Since “secondary treatment” of sewage was considered 85 percent of treatment, the Act initially demanded this type of treatment for all new treatment programs. When EPA established treatment standards for its National Pollution Discharge Elimination System (NPDES) permit program, it used the 85 percent treatment requirement for two pollution tests: the BOD5 (Biochemical Oxygen Demand after 5 days) test and the SS (Suspended Solids) test, both used worldwide. Since the literature assumed that in raw sewage the medium concentrations of both tests to be 200 mg/l, EPA’s secondary treatment definition demanded that effluents contained less than 30 mg/l (85 percent of 200) for both BOD5 and SS.

Sadly, what EPA and many others at that time did not realize was that this five-day reading of the BOD test only represents 60 percent of the BOD (C-BOD) exerted by carbonaceous (fecal) waste and ignored all the BOD (N-BOD) exerted by nitrogenous (urine and protein) waste. Consequently, EPA only demanded 34 percent (85 percent of 40) treatment, which was clearly inadequate to meet any of the goals of the CWA and basically qualifying all types of sewage treatment systems to meet the “secondary treatment” standards, without the ability to know or compare their real treatment.

By solely using these two tests, it is impossible to evaluate the real performance of a sewage treatment plant and what its effluent waste loading is on receiving water bodies. Many sewage treatment plants in the 1970s violated their NPDES permits, by measuring higher than 30 mg. BOD5/l values in their effluents, while a lot of the reading represented N-BOD, which was not required to be treated. Many plants had to pay fines or were replaced, while in fact they treated the sewage better than was required by their NPDES permits.

In 1983, EPA finally acknowledged the problems with the test, but instead of correcting the test, it allowed the addition of a chemical to the test which selectively kills only those bacteria that feed on nitrogenous waste. It was estimated that 60 percent of all the plants violating their permits were brought into compliance by adding this chemical to their BOD5 test.

This administrative rule solved the NPDES permit violation problems, but did not address the pollution caused by nitrogenous waste which, by exerting an oxygen demand (N-BOD). Serves as a fertilizer for algae. The rule also failed to solve other problems that were caused by solely measuring the BOD5 and SS tests. As a result, it is still impossible to evaluate the true treatment efficiency of a sewage treatment plant and compare the different treatment processes in order to establish what the “best available treatment” is. However, if tests had been performed correctly in the past, we would now have much better sewage treatment at lower cost.

In 1984 Utah’s Science Council recommended that this test should be corrected and applied as intended, but the governor rejected his council’s recommendation. His decision was based on misinformation that the state would have to repay the federal government for costs associated with the engineering studies and that recommending a revised test would delay millions of federal dollars coming to Utah for construction of two new sewage treatment plants.

In 1993 environmental groups, mainly in Utah, petitioned the EPA to modify its definition of secondary treatment and establish effluent standards for the “best available treatment technology.” The proposed standards, possible according to EPA’s own documentation, would have corrected the BOD test and would have included effluents requirements for nitrogen and phosphorus (nutrients), now considered the major cause of eutrophication due to excessive algae growth.

In 1995 EPA rejected the petition. The rejection was appealed to the Tenth District Federal Appeals Court in Denver. Two judges sided with EPA and rejected the lawsuit, while the dissenting judge stated that the majority allowed EPA to return to pre-1972 conditions by basically allowing a water-quality based implementation program and also over-ruled an earlier Supreme Court decision. The Supreme Court denied a 1997 petition for certiorari.

The members of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) are responsible for the implementation of the Clean Water Act. On November 26, 2007, ASIWPCA wrote a letter to EPA’s Office of Water and Office of Science and Technology requesting effluent standards for nutrients, both nitrogen and phosphorus. In the letter these administrators state:

Since the initial passage of the Federal Water Pollution Control Act of 1972, water quality management has evolved significantly through technological advances in required treatment levels, the implementation of water quality based effluent limits and the widespread application of disinfection technology to point sources. By almost every measure, surface waters are closer than ever before to fully achieving the fishable, swimmable goals espoused by the Act.

First of all, the letter admits that even the 1983 interim goals of the Act, after 37 years, are not met, but also that the States are implementing a “water-quality” based program, a program specifically rejected by Congress in 1972. The letter also states that the States are struggling to further improve water quality when there are no national standards for nutrients and request the EPA to set treatment standards, based on “best available treatment technology”, which can be achieved.

What the letter does not states is the fact that EPA never established the treatment standards of “best available treatment technology” and again ignored such requirement under the CWA.

The incorrect use of this essential test, clearly not only interferes with the cleaning of our open waters, but also stifles a progress to find solutions to address problems related to pollutants, like herbicides, pesticides, PPCPs ( Pharmaceutical and Personal Care Products), carcinogenic industrial products, endocrine disputers, antibiotic resistant bacteria, to name a few, that now are mostly ignored and are starting to impact our public drinking water supplies.

While clearly EPA failed to implement the CWA, nobody is holding EPA accountable, not even state administrators, now responsible to implement the CWA. Some environmental groups are suing EPA for local situations, but they, too, fail to acknowledge that if EPA would be forced to implement the CWA as it was intended, none of these suits would be necessary.

Maier received a doctoral degree in civil engineering from the University of Delft in Holland, and has professional engineering licenses in New York and Utah. He worked for the State of New York, a large engineering consulting firm in Holland and an equipment manufacturing firm in Utah. He was involved in the design and R&D of municipal and industrial wastewater treatment plants in Europe, Brazil, Mexico and the United States. He can be reached at [email protected].