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NACWA Legal Alert (Leg06-09)

Member Pipeline - Legal - Alert (Leg 06-09)

To: Members & Affiliates,
Legal Affairs Committee
From: National Office
Date: October 4, 2006
Subject: MEMBER INPUT SOUGHT ON EPA DRAFT WET WEATHER SIGNIFICANT NONCOMPLIANCE (SNC) POLICY
Reference: Legal Alert 06-09 (re-indexed from 06-11)

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ACTION REQUESTED BY:
October 20, 2006

The Environmental Protection Agency (EPA or Agency) is updating its Clean Water Act (CWA) significant noncompliance (SNC) policy to include information relating to wet weather sources such as combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and stormwater. This Alert examines the draft Wet Weather SNC Policy and areas of potential concern for NACWA members.

EPA’s draft Wet Weather SNC Policy is not being released for formal public comment. Nonetheless, NACWA believes it is important to provide the Agency with input from the clean water community on the draft policy. Accordingly, NACWA is soliciting the views of the membership on EPA’s draft Wet Weather SNC Policy (draft Policy) (http://www.nacwa.org/getfile.cfm?fn=2006-08sncdraft.pdf). The National Office will compile this information and present it to the Agency in the coming weeks. We look forward to the membership’s input on this key issue by e-mail to NACWA’s Nathan Gardner-Andrews at ngardner-andrews@nacwa.org on or before October 20.

The National Office will keep you informed of the input we receive and on further developments as EPA continues to refine its draft Wet Weather SNC Policy. As always, if you have any questions regarding EPA’s draft Wet Weather SNC Policy or NACWA’s other legal issues, please feel free to contact NACWA’s General Counsel Alexandra Dunn at adunn@nacwa.org or by telephone at 202/533-1803.

I. Background

Significant noncompliance occurs when a clean water agency operating under a National Pollutant Discharge Elimination System (NPDES) permit has alleged violations of the permit that the NPDES authority, using best professional judgment and criteria set forth by EPA, determines to be severe violations. The penalties for being found in SNC can vary, including fines and revocation of certain state permits. EPA last released a comprehensive memorandum defining SNC in 1986, with a revision made to the SNC criteria in 1995. When finalized, EPA’s new draft Policy will supplement the 1986 SNC Policy for National Pollutant Discharge Elimination System (NPDES) major facilities “to reflect the importance of wet weather sources in managing, evaluating, and reporting on the effectiveness of the national NPDES compliance and enforcement program.” EPA acknowledges in the draft Policy that wet weather point sources differ from traditional NPDES major facilities, and that “these differences will influence both the manner in which SNC violations are defined, as well as in the approach the NPDES authority takes to respond to SNC violations.” While the titled name suggests that the draft Policy applies only to wet weather scenarios, in fact the draft Policy applies to both wet and dry weather incidents. The stated intent of the draft Policy is to provide NPDES enforcement authorities with guidelines “to identify the most egregious violations that rise to the priority level for prompt follow-up action, in order to better manage the current NPDES program and to improve accountability.” The scope of the draft Policy is limited “to the universe of wet weather sources selected by the NPDES authority for compliance evaluation, including inspections, file reviews, and evaluation of self-monitoring and reporting results.”

II. Draft Policy Summary

The draft Policy outlines four recommended steps for implementation by NPDES enforcement authorities:

1. Conduct compliance monitoring/evaluation activities and determine whether an alleged violation occurred or was reported;
2. Determine SNC;
3. Identify and undertake a timely and appropriate response; and
4. Document resolution of noncompliance.

Of the four steps, the determination of SNC receives the most attention in the policy, and is also the step with the most potential impact on NACWA members.

A. SNC Criteria Under the draft Policy

The draft Policy applies different SNC criteria to CSOs, SSOs, and stormwater point sources, and establishes a “Discretionary Wet Weather SNC” criteria, as discussed below.

1. CSOs

Under the draft Wet Weather SNC Policy, any one of these criteria is enough for a finding of SNC for CSOs:

  • Multiple significant unauthorized discharges or multiple unauthorized significant overflows;
  • Substantial failure to implement the nine minimum controls (NMCs) as required in a permit or in an administrative or judicial order;
  • Failure to report unauthorized overflow(s) or discharge(s) as required;
  • Failure to submit an approvable long-term control plan (LTCP), as required in a permit or in an administrative or judicial order, or the submittal is late by 90 days or more;
  • Failure to meet the major milestones (including LTCP milestones) required in an administrative or judicial order or in a permit (where expressly allowed by state water quality standards) by 90 days or more; or
  • Failure to submit required report or report is late by 30 days or more.

Several aspects of these criteria are potentially problematic for NACWA member agencies. First, in a footnote, the draft policy notes that while “multiple” significant unauthorized discharges or overflows can establish SNC, “it may be appropriate for the regulatory authority to designate an isolated discharge or overflow as SNC if it involves a substantial volume, or has a significant adverse impact on human health or the environment.” The footnote also states that “an isolated discharge or overflow generally does not elevate noncompliance to the level of SNC unless indicative of a broader problem;” however, despite this qualifier, the suggestion that one isolated discharge or overflow could be considered SNC is inappropriate and needs to be addressed before the policy becomes final. NACWA recognizes that the language of this footnote requires revision, and welcomes member input on suggested changes. Additionally, the use of the word “approvable” when talking about the submission of a LTCP raises concerns as there is no clear definition of what “approvable” means. Given that many submitted LTCPs await approval by state authorities for long periods of time, clean water agencies that have submitted their plans should not risk a SNC finding based solely on the pending LTCP. Similarly, because “approvable” is a subjective concept, a public agency should not be subject to SNC simply because its submitted LTCP is not considered “approvable” by the NPDES authority.

2. SSOs

The SNC criteria in the draft Policy for SSOs are:

The SSO criteria also include a footnote suggesting that isolated discharges or overflows may result in SNC if there is a substantial volume, or a significant adverse impact on human health or the environment. Despite qualifying language that an isolated discharge or overflow will generally not rise to the level of SNC, the overall language of the footnote undermines the main criteria language requiring multiple events for a finding of SNC. As with CSOs, the language of the footnote requires revision.

3. SNC Criteria for Stormwater Point Sources

The SNC criteria for Stormwater Point Sources in the draft Policy are:

Under the draft Policy, any one of these criteria is enough to find SNC. In evaluating potential SNC under these criteria, the policy also instructs that “the regulatory authority should make a SNC determination using best professional judgment by assessing available information and evaluating the significance of noncompliance, and the associated potential significant impacts to the environment and/or human health.” The stormwater criteria allow for a finding of SNC based on a single incident or discharge.

4. Discretionary Wet Weather SNC

The draft Policy also directs that the NPDES authority has the discretion “to designate any alleged wet weather violation of concern, whether or not it meets any of the specific criteria above, as SNC.” For example, the NPDES authority has discretion to determine for alleged CSO and SSO violations how many violations constitute “multiple” significant overflows. Similarly, for alleged stormwater violations, the NPDES authority has discretion to determine the number of violations that constitute “significant violations of permit requirements.” However, the draft Policy does state that the NPDES authority also has the discretion “to not designate alleged wet weather violations that meet the above SNC criteria to account for unusual circumstances that result in SNC violations beyond a facility’s control.”

III. SNC Enforcement under the draft Policy

The draft Policy suggests both a formal and informal approach to dealing with SNC violations. A formal approach may be necessary for a particularly egregious violation or for a facility with a history of noncompliance or uncooperative behavior. Under the formal enforcement method, an NPDES authority is directed to refer to existing national guidance (such as found in the NPDES Enforcement Management System) and/or program specific guidance for recommendations of enforcement options and possible penalties.

Alternatively, the draft Policy suggests that an informal approach may be appropriate when the NPDES authority “determines that prompt and timely compliance is likely to be achieved and that the violator has a good compliance record.” Examples of informal enforcement action include written notices of violation, letters of warning, sewer moratoriums, stop work orders, and schedules of compliance within permits. The draft Policy also provides that NPDES authorities may issue an administrative consent order or consent agreement that is not equivalent to EPA’s definition of a formal enforcement action in the NPDES program. If the informal enforcement is not effective in making progress towards compliance, the draft Policy directs that the NPDES authority take formal enforcement action with an appropriate penalty.

IV. NACWA’s Next Steps

As stated above, NACWA is seeking the membership’s input on the draft Policy and plans to provide our membership’s perspective to the Agency enforcement staff responsible for finalization of the draft Policy. We appreciate the membership’s attention to this important issue in the coming weeks.