EPA never implemented the Clean Water Act and Now Blames States

September 16, 2009

Opinion/Editorial by guest writer: Peter Maier, PhD, PE

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

Since “secondary treatment” of sewage was considered 85% treatment, the Act
initially demanded this type of treatment for all new treatment and when EPA
established treatment standards for its NPDES (National Pollution Discharge
Elimination System) permit program, it used the 85% treatment requirement for
two worldwide used pollution tests, the BOD5 (Biochemical Oxygen Demand after 5
days) test and the SS (Suspended Solids) test. 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
(85% of 200) 30 mg/l for both BOD5 and SS.

Sadly, what EPA and many others at that time, did not realize was that this 5
day reading of the BOD test only represents 60% 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 (85% of
40) 34% treatment, 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 seventies
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

EPA finally in 1983 acknowledged the problems with the test, but in stead 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% of all the plants violating their permits, got 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, while this waste
besides exerting an oxygen demand (N-BOD) in all its forms is a fertilizer for
algae. It also did not solve other problems that were caused by solely
measuring the BOD5 and SS tests, among them it still is impossible to evaluate
the true treatment efficiency of a sewage treatment plant and comparing the
different treatment processes, in order to establish what “best available
treatment” is. However, if tests had been performed correctly in the past, it
would have been known that not only much better sewage treatment (more than only
odor control) is possible but that such treatment can be achieved at lower cost.

In 1984 Utah State’s Science Council recommended that this test should be
corrected and applied as intended, but the governor rejected his council’s
recommendation, based on the misinformation that the State would have to repay
Uncle Sam all the money it received for all the engineering studies and would
delay the millions coming for the construction of two new sewage treatment

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

In 1995 EPA rejected the petition and this rejection was taken to the Tenth
District Federal Appeals Court in Denver.  The majority (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 the petition for certiorari in

The members of ASIWPCA (Association of State and Interstate Water Pollution
Control Administrators) are basically responsible for the implementation of the
Clean Water Act on November 26, 2007 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

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 enforced the CWA as it was intended, none
of these suits would be necessary.

For more information visit www.petermaier.net


One Response to “EPA never implemented the Clean Water Act and Now Blames States”

  1. cwa district 6 | U.S Trend Keywords on October 13th, 2009 5:16 pm

    […] EPA never implemented the Clean Water Act and Now Blames StatesOpinion/Editorial by guest writer: Peter Maier , PhD, PE (ChattahBox) ? When Congress passed the Clean Water Act in 1972, with its goal to eliminate all water pollution by 1985 and as interim go […]

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