Secondary Treatment Guidelines Issued Under FWPCA

One of Aesop's fables tells of a wolf and a lamb who were drinking from the same stream. The wolf snarled at the lamb that it was muddying his drinking water, and that as punishment it would be eaten. "But," the lamb protested, "I can't be muddying your water, I'm downstream from you." The lamb was promptly eaten as a punishment for insolence.

Though told with a different moral in mind, the story illustrates a problem that has created discord since antiquity: users of rivers are notoriously unconcerned with the state of the water reaching their downstream neighbors. In the United States, the issue has been the subject of frequent controversy between the states. In 1965, Congress passed the Water Quality Act, under which states were to prepare implementation plans for improving water quality and submit them to federal authorities for approval. This proved unsatisfactory, however, and in the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), Congress shifted the responsibility for establishing water quality criteria from state officials to the EPA Administrator, whom may impose them on the states. Issued recently in the form of guidelines, these criteria must be given a mixed review.

Section 301 (b) (I) (B) of the Act provides that publicly owned treatment works in existence by July 1, 1977, or approved for a construction grant prior to June 30, 1974, must comply with "effluent limitations based upon secondary treatment as defined by the Administrator pursuant tosection 304 (d) (1) …" The latter section states that the Administrator must define "… the degree of effluent reduction attainable through the application of secondary treatment."

On August 17, 1973, the Administrator issued compulsory guidelines establishing the minimum level of effluent quality with which publicly owned treatment works must comply by July 1, 1977. The guidelines describe effluent quality in terms of biochemical oxygen demand (BOD), suspended solids, fecal coliform bacteria, and pH. The setting of numerical limits on these criteria and their imposition on a uniform basis nationwide raises a number of questions some of which do not appear to have been adequately answered.

Since the natural conditions that affect water quality — climate, geology, and geography — vary, it would not necessarily be feasible or desirable to demand uniform effluent quality nationwide by means of secondary treatment. Efforts to achieve national uniformity would be further complicated by such man-made conditions as runoffs from non-point sources and industrial waste discharges, which may or may not contribute significantly to the contamination of the waters into which publicly owned treatment works discharge their effluent. Other factors, such as the quantity and quality of industrial wastes treated by publicly owned treatment works, and the degree of contamination and the intended uses of the receiving waters are all relevant factors which do not appear to have been fully considered in the guidelines. Moreover, the effluent quality to be achieved is based on the performance data of adequate secondary treatment works and does not take into account variation in local conditions and needs. The use of the "performance data" test by the guidelines is further alarming in that it does not appear to provide flexibility where effluents discharged after secondary treatment processes might infringe upon quality criteria established for receiving waters. Instead, it is emphasized that adjustments made at the local level will be based on the capabilities of secondary treatment technology "because the Act and its legislative history clearly show that the regulation is to be based on the capabilities of secondary treatment technology and not ambient water quality effects."²

While this interpretation may spare local officials additional burdens, it would appear to fly in the face of a broader analysis of the Act and the intent of its drafters. Section 301 (b) (1) (C) provides that "In order to carry out the objective of this Act there shall be achieved … not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards …" Further, the intent of the drafters was to enact legislation capable of providing suitable water for such uses as recreation and public consumption, not merely to ensure that treatment works would be operated in accordance with secondary treatment technology.³

In contrast to these negative considerations, other factors would appear to justify federally imposed guidelines on effluent quality. For example state officials often failed to consider adequately available technical data when submitting standards for federal approval under the Water Quality Act, an omission especially apparent when the fecal coliform limits which were established are evaluated.

After reviewing a detailed study on water quality criteria,⁴ the Interior Department recommended a limit of 200 fecal coliforms per 100 milliliters of water tested for receiving waters which were to be used for primary contact recreational purposes.⁵ The criteria recommended for [4 ELR 10012] surface waters used for public water supplies ranged from a "permissible" level of 2,000 fecal coliforms per 100 milliters to a "desirable" level of 20 per 100 milliliters.⁶ These non-compulsory guidelines were based on findings which demonstrated that if the recommended limits were not adhered to, public health could be jeopardized and the availability of water for the recreational and public water supply uses could be curtailed.⁷ Nearly five years after the guidelines were made available to the states, only about half of them had fully complied with the fecal coliform limit recommended for primary contact recreational waters.⁸ Additionally, some states failed to adopt fecal coliform bacteria as an indicator of the sanitary quality of surface waters used for public water supplies,⁹ relying instead on total coliform counts, which are not an adequate indicator of dangerous contamination.¹⁰ Still other states adopted fecal coliforms as indicators of contamination, but did not abide by the maximum 2,000/100 milliliter limit.¹¹

The new compulsory EPA guidelines provide that the fecal coliform content of publicly owned waste treatment plant effluents may not exceed 200 fecal coliforms per 100 milliliters.¹² If natural and man-made local factors are not considered, this compulsory limitation would clearly be adequate to maintain receiving waters on a condition suitable for primary contact recreation. On the other hand, the uniform limit set forth in new guidelines would appear to be unnecessarily strict for treatment works which discharge their effluents into receiving waters which are utilized for other water-related uses such as secondary water contact recreation (2,000/100 ml.)¹³ or public water supply (2,000/100 ml. before processing).

The new EPA guidelines do provide some flexibility to meet varying local conditions. For example, the BOD and suspended solids parameters may be adjusted upwards at publicly owned treatment works which treat substantial quantities of high strength industrial waters. Allowances are also made for "wet weather" local conditions during which treatment works that receive excessive flows from combined sewers may not be capable of meeting the percentage removal requirements for BOD and suspended solids. Moreover, the guidelines provide that the effluent quality levels established for BOD, pH, suspended solids, and fecal coliform bacteria are minimum levels to be met by July 1, 1977, except under the special circumstances outlined above. Where, however, secondary treatment processes attain a higher level of effluent quality than specified in the guidelines, the standard for the treatment works involved will be adjusted upward if the treatment works' performance supports this.

On balance, the new compulsory guidelines appear to have placed adequate controls on the harmful pollutants discharged by publicly owned treatment works. However, the guidelines fail to take into account some of the varying conditions at the local level and the possible need to impose more stringent limitations in order to render receiving waters suitable for the water-related uses contemplated by the FWPCA.

2. 38 Fed. Reg. 22298 (1973).

3. See Pub. L. No. 92-500, Act of Oct. 18, 1972, 86 Stat. 816 at sec. 101 (a) (2).

4. Report of the National Technical Advisory Committee to the Secretary of the Interior, Water Quality Criteria (1968).

5. Id. at 12.

6. Id. at 20.

7. Id. at 11-12, 21-22.

8. See EPA Division of Water Quality Standards, Bacteria Criteria 1-18 (1972).

9. See e.g., Maryland Department of Natural Resources, Water Quality Standards Summary 47 (1972).

10. Report of the National Technical Advisory Committee to the Secretary of the Interior, Water Quality Criteria 21-22 (1968). See also E. Geldreich, Sanitary Significance of Fecal Coliforms in the Environment (1966).

11. See e.g., Pennsylvania Department of Environmental Resources, Water Quality Standards Summary 6 (1972).

12. 38 Fed. Reg. 22298 (1973).

13. See Report of the National Technical Advisory Committee to the Secretary of the Interior, Water Quality Criteria 8-9 (1968).