Clean Water Advocacy - Newsroom - AMSA in the News
Inside the EPA
Copyright 2005 Inside Washington Publishers
March 18, 2005
Section: 11
EPA PLANS TO IMPLEMENT PARTS OF DERAILED CLINTON-ERA SSO PROPOSAL
EPA may use its existing authority to implement key portions of a failed
Clinton-era proposal to regulate sanitary sewer overflows (SSOs) -- including
provisions requiring satellite sewage collection systems to obtain permits and
increasing administrative burdens for publicly owned treatment works (POTWs),
according to a draft EPA document obtained by Inside EPA.
Requiring permits for satellite systems would increase regulators' permitting
burdens by about 5,000 permits nationwide, sources say, at a time when EPA and
state regulators are struggling to address existing permit application backlogs.
SSOs are spills of untreated sewage from sanitary systems that are designed to
deal solely with wastewater, as opposed to combined sewer systems that handle
both wastewater and stormwater.
EPA's proposal appears to fall short of SSO policy recommendations proposed by
the Association of Metropolitan Sewerage Agencies (AMSA) earlier this year.
Specifically, EPA's draft document does not address long-standing industry
concerns over the agency's current zero-discharge standard that makes POTWs
liable in the event of any sewer overflow.
Municipal satellite collection systems collect and pump wastewater to POTWs, but
are not owned or operated by the wastewater treatment facilities themselves --
and therefore are not covered by the POTWs' NPDES permits. EPA first proposed
regulating satellite systems in a proposed rule signed by Clinton-era EPA
Administrator Carol Browner in January 2001. However, the Bush administration
withheld the proposal from publication in the Federal Register.
EPA is considering requiring permitting authorities to issue National Pollutant
Discharge Elimination System (NPDES) permits for municipal satellite collection
systems "that have a potential for an overflow . . . to waters of the United
States," according to a draft fact sheet distributed by EPA officials at a
Washington, DC, conference of the Association of State & Interstate Water
Pollution Control Administrators March 7. The draft document makes clear that
issuing permits for the satellite systems would be done under existing
regulatory authority, rather than through a new rulemaking. The document is
available on InsideEPA.com.
POTW and state sources say that while every collection system has the potential
to overflow, EPA's plan appears to conflict with a recent appellate ruling that
struck down portions of EPA's rule requiring permits for animal feedlots that
may have the potential to discharge. The U.S. Court of Appeals for the 2nd
Circuit ruled Feb. 28 in Waterkeeper Alliance Inc., et al. v. EPA that the
agency can only require permits under the Clean Water Act for facilities with
"actual" discharges (Inside EPA, March 4, p1).
A wide range of industry and state officials say this means facilities that do
not expect to discharge pollutants into waters of the United States will not
have to apply for clean water discharge permits, which impose regulatory
requirements on permittees. However, EPA and industry attorneys note that
discharging without a permit is still illegal, and can lead to significant
enforcement penalties.
One POTW source says top EPA water officials have said the agency plans to
unveil the new requirements in conjunction with the release of a controversial
guidance that allows "blending" wastewater streams. The source says guidance
addressing SSOs may be designed to deflect attention away from the guidance on
blending -- which critics charge is essentially a discharge of untreated sewage
into waterbodies.
EPA officials did not respond to requests for comment on the timing of the new
policy. An EPA source says the document is a draft fact sheet, not a guidance,
and the agency currently has no plans to move forward with guidance. The source
says the draft fact sheet outlines what EPA believes constitute the existing
requirements under the water law. The agency hopes the draft will lead to
discussion with state officials, the source says.
In addition to permitting satellite collection systems, the draft document calls
for permitting authorities to incorporate capacity, management, operation and
maintenance (CMOM) programs into treatment plants' clean water permits. CMOM
programs are designed to maximize the efficiency of those aspects of a POTW's
operations that involve collecting and storing wastewater. Other permit
requirements in the draft include immediate reporting of SSOs to permitting
authorities and recordkeeping of all overflows. All of these requirements were
included in the Clinton-era proposed rulemaking on SSOs.
POTW officials say they would support the CMOM language in the draft document --
but only if EPA would abandon its zero discharge standard regarding SSOs. POTW
officials have long called for EPA to incorporate CMOM requirements into water
permits as a way of ensuring that a facility is taking all necessary steps to
function at peak efficiency. However, POTWs want EPA to eliminate the zero
discharge language that says a facility is out of compliance if there is an SSO
-- even if the POTW has met its CMOM requirements and done everything it could
do to avoid an overflow.
In a Jan. 14 letter to EPA, AMSA called on the agency to develop a flexible SSO
policy, arguing that the agency's current enforcement policies requiring zero
discharges have POTWs spending large amounts of money with little return. The
letter suggested that the flexible policy include CMOM requirements and a
permitting program for satellite systems. While POTW sources support EPA's
decision to issue a guidance incorporating these elements into the permitting
program, one source says POTWs would not support the CMOM language if it does
not affect the existing zero discharge standard.
Another POTW source also says the requirements in the EPA draft document will
likely meet with opposition since they require treatment plants to take
significant steps to limit the likelihood of an SSO, but do not provide POTWs
with any affirmative defense in the event of an overflow despite a facility's
best efforts.
The POTW source notes that wastewater treatment officials have long favored a
CMOM approach as a means of decreasing the number of SSOs, but most POTWs have
not taken steps to develop a CMOM plan out of concern that they would expend
resources developing their own plan only to have EPA issue CMOM requirements
making their plan moot. The source explains that many POTWs feared they would
then have to develop a new CMOM plan, effectively expending resources to do the
same thing twice.
The wastewater industry source says language in the draft document calling for
permitting authorities to audit CMOM plans developed by POTWs would also create
a significant burden on permitting authorities.
It is not clear when the SSO and collection systems guidance may be released, or
if it will be released in conjunction with the blending guidance. The blending
guidance is controversial because it may allow POTWs to "blend" partially
treated wastewater with fully treated wastewater during severe wet weather
events -- which environmentalists and some lawmakers claim allows treatment
plants to discharge untreated sewage. However, POTWs point out that even blended
wastewater discharges are required to meet the water quality requirements
included in a facility's NPDES permit.