Wet Weather Issues
Browner Signs Stormwater Phase II Proposed Rule
Background: The stormwater permit program is a two-phase program enacted by Congress in 1987 under section 402(p) of the Clean Water Act. Under Phase I, NPDES permits are required to be issued for municipal separate storm sewers serving large or medium-sized populations (greater than 250,000 or 100,000 people, respectively) and for stormwater discharges associated with industrial activity. Permits are also to be issued, on a case-by-case basis, if EPA or a State determines that a stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. EPA published a rule implementing Phase I on November 16, 1990. Under Phase II, EPA was required to prepare two reports to Congress that assess the remaining stormwater discharges; determine to the maximum extent practicable, the nature and extent of pollutants in such discharges; and establish procedures to control stormwater discharges to the extent necessary to mitigate impacts on water quality. EPA was then to issue regulations that designate stormwater discharges, in addition to those addressed in Phase I, to be regulated to protect water quality, and EPA is to establish a comprehensive program to regulate those designated sources. These regulations were to have been issued by EPA not later than October 1, 1992. On April 6, 1995, EPA and the Natural Resources Defense Council (NRDC) entered into consent decree that requires EPA to propose supplemental rules for phase II sources by September 1, 1997 and finalize them by March 1999 (Natural Resource Defense Council, Inc. v. Browner, Civ. No. 95-634 PLF (D.D.C, April 6, 1995)). EPA convened a stormwater Phase II national policy dialogue with stakeholders through federal advisory committee meetings beginning in September 1995. AMSA has been actively involved in the Subcommittee which is expected to eventually guide EPA in stormwater phase II rulemaking activities.
Status: EPA's proposed stormwater phase II rule regulating stormwater discharges from small municipal separate sewer systems and small construction sites was signed on December 15, 1997 by EPA Administrator Carol Browner. The proposed rule would require smaller municipalities within urbanized areas to apply for NPDES permit coverage by May 31, 2002 and implement a mix of best management practices to "reduce the discharge of pollutants to the maximum extent practicable and protect water quality." EPA expects publication of the proposal in the Federal Register on January 4, 1998. The public comment period is expected to last 90 days, and will include six public hearings held across the country. AMSA will distribute the proposal to members for review and comment upon publication in the Federal Register. If you would like to receive an immediate copy of the proposal, please CONTACT: Mark Hoeke, AMSA at 202/833-9106.
Sanitary Sewer Overflow (SSO) Policy Framework
Background: EPA is developing a national SSO policy with stakeholder involvement through federal advisory committee meetings. AMSA has been actively involved in the Subcommittee discussions, which are expected to eventually guide EPA in policy-making activities regarding a sanitary sewer overflow policy or regulatory framework.
Status: EPA Headquarters, EPA Regional offices, and the Department of Justice are continuing internal discussions on several controversial issues such as boilerplate affirmative defense and wet weather facilities. EPA is currently drafting separate policy memoranda on public notification of SSOs, reporting of SSOs, and minimum operational requirements to control SSOs (affirmative defense and wet weather facilities are expected to be addressed in the minimum operational measures memorandum). Once these memoranda have "buy-in" from EPA's program office, its enforcement office, regional offices, and the U.S. Department of Justice, EPA will reconvene the FACA discussions. A draft of the memorandum on public notification was recently leaked to the trade press and is currently undergoing review by the operator caucus FACA workgroup. CONTACT: Kevin Weiss, EPA 202/260-9524, or Mark Hoeke, AMSA 202/833-9106.
EPA's UWWF Advisory Committee - Watershed Alternative Policy
Moves Forward
Background: EPA's Urban Wet Weather Flows Advisory Committee (UWWFAC), chartered in May 1995, is responsible for "developing recommendations to address cross-cutting issues associated with the human health and environmental impacts of urban wet weather discharges (including storm water, combined sewer overflows, and sanitary sewer overflows) in an innovative and cost-effective manner." The UWWFAC is composed of EPA, state regulatory, environmental, municipal government, industrial, business development, and local wastewater agency interest groups. AMSA has been actively involved in the Committee, and its workgroups.
Status: The Committee has been working for the past two years to develop a document titled, "A Watershed Alternative for the Management of Wet Weather Flows." The document is intended to express EPA's support for a process of pursuing a watershed approach as an alternative to the traditional NPDES permitting approach for meeting water quality standards through control of individual wet weather point sources, and builds upon EPA's previous watershed-related efforts. At an Oct. 27th meeting of the Committee's Watershed Workgroup, EPA indicated its intent to issue this policy document, whether or not the FACA reaches consensus. At the meeting, a small group of caucus representatives came to general agreement on a few remaining issues. AMSA's priority issue was the incorporation of "proportionate share principles" (i.e., assigning responsibility for loading reductions based on the proportion of current loading contributions) into the document. The final drafts of the policy to which everyone agreed included the following language: "...EPA urges participants, including regulatory authorities in a Watershed Alternative process to develop and implement management activities, including NPDES permit requirements, that are based on the principle of proportionate share responsibility." EPA plans to revise and recirculate the document to the full Committee for review and acceptance within the next few weeks. CONTACTS: Mark Hoeke, AMSA 202/833-9106 or Will Hall, EPA 202/260-1458.
Court Decision Regarding Atlanta CSOs
On November 17, 1997, a federal judge ruled that the City of Atlanta is liable for water quality standards violations due to discharges from its combined sewer overflow (CSO) treatment facilities. The facilities are designed to screen combined storm and sanitary wastewater and provide disinfection prior to discharge into tributaries of the Chattahoochee River. The decision is a culmination of a suit brought against the City of Atlanta by two environmental groups, the Upper Chattahoochee Riverkeeper Fund, and the Chattahoochee Riverkeeper, and several downstream cities and counties. The plaintiffs had asserted claims for trespass and public nuisance (both denied), and claimed violations of the Clean Water Act associated with the City's CSO permits. The major aspect of the case which AMSA members may wish to note is the judge's ruling that the open culverts into which the CSOs discharge prior to reaching the receiving streams, can be considered "waters of the State." This ruling, coupled with the City's CSO permit language which states that "the discharge must not cause violations of the water quality standards," effectively required the City to meet water quality standards at the end-of-pipe, which it could not demonstrate. The judge dismissed the plaintiff's claim that violations of metals standards in the receiving stream were caused by the treated CSO discharges, but did rule that the treated CSO discharges caused violations of fecal coliform limits in the receiving stream. Additionally, he ruled that the City was responsible for water quality standards violations of both fecal coliform and metals in the treated CSO discharge culverts. Though not detailed in the court decision, AMSA members should also note that the judge considered analytical results which were reported as numeric levels below detection, but above water quality standards as violations. The City reported numeric concentrations on monitoring reports instead of "BDL" or "less than..." when results were below analytical detection levels. In addition, the judge compared instantaneous total recoverable metals monitoring results with water quality standards based on chronic criteria.