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January 2002 Legal Perspectives, Vol. 1, Issue 1

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Volume I, Issue 1

January 2002

"I'm prepared to move forward with the rule with the
understanding of its long and tortured history."

U.S. EPA Assistant Administrator for Water Tracy Mehan,
AMSA/EPA Pretreatment Coordinators Workshop, November 7, 2001, Nashville, TN

In January of last year, the U.S. Environmental Protection Agency (EPA) posted on its web site proposed regulations for federal sanitary sewer overflows (SSOs). The Bush Administration quickly prevented Federal Register publication of the package. AMSA just as quickly determined the proposal was completely unworkable for publicly owned treatment works (POTWs).

Throughout 2001, AMSA sent forceful letters to EPA detailing the wastewater treatment community's concerns with the regulatory language, and urging the Agency to work with affected entities to develop a more sensible, workable proposal. Environmental groups responded with their own letters, asserting that POTWs want SSO regulations that reward raw sewage discharges and offer free reign to violate the Clean Water Act (CWA).

On November 7, 2001, EPA Assistant Administrator for Water Tracy Mehan announced at the AMSA/EPA Pretreatment Coordinators Workshop that EPA would proceed to propose a SSO rule fully aware of "the serious differences groups have over the issue." Importantly, EPA plans to modify the proposal preamble to encourage comment on the rule's most contentious areas. EPA will not, however, change the controversial regulatory text before proposal because it was developed under a Federal Advisory Committee (FACA).

With the start of a new year, the January 2002 announcement of the first settlement under Region IV's wet weather "management, operations, and maintenance" program and EPA's plans to propose a SSO rule, it is an appropriate time to refocus on AMSA's SSO vision and the crux of our concerns. Without question, AMSA supports a national approach to SSO control. Balanced federal regulations for this important clean water challenge will give many public agencies needed guidance and a clear understanding of expectations. They also will provide POTWs with needed tools to propel satellite communities toward meaningful action to address essential infrastructure management, operations and maintenance issues.

The regulatory text that EPA is committed to propose, however, contains a troubling element which if left unresolved in a final SSO rule, will prevent POTWs from supporting the rule and likely lead to future legal challenges. The difficulty lies in EPA's prohibition on SSOs - "discharges to waters of the United States from a municipal sanitary sewer collection system that occur prior to a [POTW] are prohibited" - and acknowledgement that "some overflows are unavoidable, even at the best run systems." Preamble, 1/01 Draft SSO Proposal (hereinafter Draft Preamble).

The overflow prohibition stems directly from EPA's CWA interpretation, which is unnecessarily strict and blind to collection system realities. Simply put, EPA begins with the CWA §301(a) overall prohibition on discharges to waters of the United States except in compliance with other CWA provisions. EPA then notes that CWA §301(b)(1)(B) requires discharges from a separate sanitary sewer system to meet effluent limitations based upon secondary treatment as defined in EPA regulations. Since a discharge of municipal sewage cannot meet effluent limitations without treatment - and the collection system delivers sewage for that treatment - EPA concludes that collection system discharges prior to secondary treatment are prohibited. And, despite the Agency's recognition that some discharges at even the most sophisticated facilities are "beyond the control of the system operator", EPA goes on to express "serious legal concerns" about whether the CWA can be interpreted to support a "different legal framework by which [National Pollutant Discharge Elimination System] NPDES permits could 'authorize' discharges from separate sewer systems under a statutory theory other than secondary treatment" (Draft Preamble).

The Agency attempts to offer POTWs relief from this perplexing state of affairs by (1) providing defenses for severe natural or unavoidable conditions, and (2) using enforcement discretion. In reality, however, these protections are little help to POTWs given the extremely narrow set of circumstances under which they would apply. Further problematic is EPA's view that robust implementation of management, operations and maintenance procedures and long-term capacity assurance plans (CMOM) is merely another factor to be evaluated in the exercise of enforcement discretion.

In short, to date EPA has not shown POTWs a clear path to compliance with a zero overflow standard. There are no lines connecting CMOM implementation with a solid affirmative defense. In the end, EPA's CWA interpretation draws the Agency and POTWs into a legal box where SSOs are an incurable CWA violation.

AMSA believes there is a path out of this box. The CWA offers alternatives to an overflow prohibition that are both achievable and protective of water quality. To bring these alternatives into focus, we must question EPA's fundamental assumption that the collection system and the treatment works are one unit that cannot be treated differently. As a basic matter it is a legal fiction to hold the collection system hostage to the secondary treatment requirement - as no treatment of any kind occurs within the collection system leading to the POTW.

Notably, there is ample legal and regulatory precedent for treating the collection system as a separate entity. This body of precedent includes a federal court decision finding that overflow points in the collection system are separate from the treatment works (Montgomery Environmental Coalition v. Costle, 646 F.2d 568 (D.C. Cir. 1980); numerous CWA and EPA regulatory provisions distinguishing the collection system from the treatment works; and the precedent created by EPA and the SSO FACA in their plans to issue separate NPDES permits to satellite collection systems.

Once liberated of the assumption that the treatment works and the collection system are one, alternatives to the SSO prohibition become crystal clear. AMSA's preferred alternative is based on the development of collection system best management practices (BMPs) consisting of minimum operational practices designed to manage, operate and maintain a collection system in optimum condition and minimize potential overflows. Where repeated peak-flow overflows occur, capacity assurance measures would be developed and implemented. This approach builds on the successful combined sewer overflow policy, recognizes that capacity challenges often require longer term solutions, and makes a POTW's development and implementation of MOM and capacity assurance programs a real affirmative defense to SSO enforcement.

Other alternatives to a zero overflow standard exist. EPA does not have to start from ground zero to craft a SSO regulatory program that creates a successful, meaningful regulatory program for POTWs and satellite communities. The elements of an effective and environmentally beneficial SSO control program already exist, and are being implemented by communities across the nation. What is required, however, is a willingness to view the CWA, existing EPA regulations, and case law precedent though a lens that promotes compliance over incurable violations. AMSA is committed to working with EPA and all stakeholders to make this vision a reality.

© 2002 Association of Metropolitan Sewerage Agencies


Legal Perspectives is a monthly publication of the Association of Metropolitan Sewerage Agencies (AMSA).

Founded in 1970, AMSA represents the interests of over 270 of the nation's POTWs. AMSA members serve the majority of the sewered population in the United States and collectively treat and reclaim over 18 billion gallons of wastewater everyday.

We welcome your comments or questions on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, AMSA at adunn@amsa-cleanwater.org or 202/533-1803.