Clean Water Advocacy - Newsroom - AMSA in the News
No. 29
Tuesday, February 12, 2002 Page A-9
ISSN 1521-9402
News
Water Pollution
Agency Could Back POTWs on Challenges To Overflows if Maintenance Plans in Place
ORLANDO--An Atlanta-based Environmental Protection Agency official told
wastewater treatment plant operators Feb. 7 that his office might be willing to
intervene on their behalf in citizen suits for sewer overflows if treatment
facilities can show they have strong management, operation, and maintenance
plans.
The issue involves overflows from sanitary sewer systems, which operators of
publicly owned treatment works say are impossible to avoid even though they are
illegal. EPA has been trying to write a rule to regulate sanitary sewer
overflows with the help of an advisory committee that developed recommendations
to protect POTWs from liability if they establish plans for the proper
management, operation, and maintenance of their facilities.
However, a proposal signed by EPA in January 2001 but never published drew
opposition from POTWs because it contained an explicit prohibition against
sanitary sewer overflows. Agency officials have said their hands are tied on the
issue because the prohibition is contained in the Clean Water Act and they have
no way around it.
J. Scott Gordon, chief of the permits division in EPA's Region IV office in
Atlanta, told POTW officials that the National Pollutant Discharge Elimination
System permit can act as a shield against third-party lawsuits if the permit
holder is meeting certain obligations including having a demonstrated
management, operation, and maintenance plan, known as a MOM. He spoke at the
winter meeting of the Association of Metropolitan Sewerage Agencies.
EPA Seeks Innovative Solution
Region IV has taken the lead on trying to come up with an innovative and
workable way to regulate SSOs, although it was not clear if EPA nationwide would
back treatment works operators in challenges to their overflows as Gordon
indicated his office would.
The idea of using a MOM came from Region IV, and the unpublished proposed rule
incorporated it with a slight revision. It added the term "capacity" and called
the concept a CMOM for capacity, management, operation, and maintenance plan.
Gordon said, as a permit writer, he would be willing to support a permittee in
such a lawsuit if the permit contained a valid MOM.
However, several POTW operators remained skeptical, saying that such a policy is
not in writing and may not apply nationally. Further, some said the fact that
EPA may view the permit as a shield against prosecution for what may be an
unavoidable overflow does not mean a court will agree. Nor does it mean that the
agency's regional enforcement officials will offer the same deference.
"If there is no affirmative defense language in the regulation, what is there to
stand on?" one official asked. Gordon said the agency has filed an amicus brief
on behalf of one defendant, but he admitted such an action would not be an "iron
clad" protection against liability.
"The only absolute shield would be if the permit allows some overflows, which it
probably won't," Gordon said.
A federal advisory committee that met for several years to guide the agency in
developing the rule had agreed in principle to authorize some overflows if
certain conditions were met. However, when the agency developed the proposed
rule, a consulting engineer who has worked with several municipalities on the
issue said, enforcement officials in the agency's regional offices balked at the
idea, and it was never incorporated into the proposed rule.
Ban on Overflows Disputed
That the Clean Water Act specifically prohibits SSOs is a point some officials
say can be argued. The prohibition falls under the act's mandates barring any
discharge without a permit. POTW officials want to find a way to permit such
discharges. The problem is that any discharge must meet secondary treatment
standards. AMSA officials concede that SSOs, most of which occur during wet
weather events when stormwater seeps into breaks in the sanitary sewer line, do
not meet secondary limits.
One avenue AMSA wants to pursue in getting a workable SSO regulation is to have
it mirror a 1994 policy to control overflows from combined sewer systems where
sewage and stormwater run through one pipe. The 1994 CSO policy, which was
codified under the fiscal year 2001 Consolidated Appropriations Law, does not
ban overflows outright, but directs POTWs to implement a series of nine minimum
controls to reduce their frequency and severity. Because the system is designed
to overflow to prevent the treatment plant from being overwhelmed during wet
weather events, the discharge points of these CSOs generally have permits.
In a report submitted to Congress Feb. 4, AMSA officials said the agency should
use the CSO policy's basic framework "as a model for crafting similar rules"
applicable to SSOs and "as a precedent for recognizing the infeasibility of a
zero overflow standard" (25 DEN A-2, 2/6/02)
Framework for All Permitting Decisions
Gordon told the officials that he sees the developing SSO rule as the framework
"for all permitting decisions with municipalities." By that, he said he
envisions a permitting process that "embraces" the CMOM elements being developed
in that rulemaking.
"It's more about the implementation of a program to show long-term performance
improvement," Gordon said. EPA officials, he said, are most concerned about the
duration, volume, and frequency of sewer overflows and want to reduce them as
much as possible. According to environmental advocates, most of the 2,000 beach
closings annually in the United States result from water contaminated by sewage.
Roy Herwig, a consulting engineer with Brown & Caldwell in Atlanta, said at the
conference that some officials are "uncomfortable" because no standard exists to
demonstrate the adequacy of the CMOM.
Analysis of what makes a good CMOM "changes all the time," he said. "It's an
iterative process."
By Susan Bruninga