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Member Pipeline - Regulatory - Alert (RA 01-02)

To: Members & Affiliates, Wet Weather Issues Committee
From: National Office
Date: January 11, 2001
Subject: EPA’S PROPOSED SANITARY SEWER OVERFLOW (SSO) RULE
Reference: RA 01-2

The U.S. Environmental Protection Agency (EPA) signed and released the long-delayed proposed rule on sanitary sewer overflows (SSOs) on January 5 (see January 5, 2001 AMSA FaxAlert). The proposed rule will be officially released to the public for review and comment in the Federal Register sometime in the next 10 days. EPA has released a "pre-publication" version of the proposed rule to AMSA and other key stakeholders to facilitate early review and comment. Due to its extreme length, the preamble was omitted in this Regulatory Alert. Copies of the entire rule, including the preamble, have been posted on AMSA’s website at http://www.amsa-cleanwater.org as an attachment to this Regulatory Alert within the Member Pipeline, and can also be found on EPA’s website at http://www.epa.gov/owm/rulmakef.htm. At this time, AMSA asks that you review the rule for preliminary issues and concerns. The National Office will distribute a more focused Alert and request for comments upon the rule’s publication in the Federal Register.

EPA's release of the proposed rule at this time is significant given the prolonged internal review by the Office of Management & Budget (OMB), and its proximity to the beginning of the new Administration. President Clinton had originally ordered a proposed rule to be issued by May 2000, but concerns raised by both OMB and the U.S. Department of Justice (DOJ) caused the deadline to be missed. AMSA met with OMB several times during the review period to discuss key issues of concern to the Association. We understand that OMB's major issues related to the anticipated cost impacts of this rule and the need to explore a regulatory structure more closely resembling the National Combined Sewer Overflow Control Policy. There has been no indication as to whether OMB's or DOJ's major concerns were addressed prior to EPA's release of the rule.

Proposed Rule Summary
Attached, please find copies of the proposed regulatory language. The first attachment (ATTACHMENT A) is the version which was distributed directly by EPA. The second attachment (ATTACHMENT B) is AMSA’s redline/strikeout version which illustrates how the rule has been revised over the past year since the October 1999 Williamsburg "consensus agreement" by the Subcom-mittee established under the Federal Advisory Committee Act. The rule has changed significantly in several areas since the "consensus agreement". However, relatively few changes were made since the last time AMSA reviewed the draft regulatory language (refer to Regulatory Alert RA 00-11, May 5, 2000).

The following is a section-by-section summary of the key components of the proposed rule. A brief discussion that highlights some of AMSA’s key issues and concerns is also included; however, this discussion is not comprehensive. AMSA’s final comments will depend entirely on the type of issues and concerns raised by the membership during the upcoming comment period.

Satellite Collection Systems1)
This section requires states to either issue a permit to each owner or operator of a satellite collection system, or issue a permit to the operator of the POTW treatment facility which receives wastewater from the satellite collection system (see §122.38(a)). This second option is available only "where the operator of the POTW treatment facility has adequate legal authority" (emphasis added). Permit applications must be submitted by each satellite collection system, except where the NPDES permit for the POTW already includes permit conditions that apply to the satellite systems (§122.38(c)(1)), in accordance with the outlined schedule (§122.38(c)(2)).

Current Issues and Concerns: AMSA has expressed concerns with the level of state discretion to choose the applicable permit approach in this section. During the negotiations, AMSA argued for requiring greater regulatory responsibility for satellite communities to adequately operate and maintain their systems, while emphasizing the need for flexibility on the type of control mechanism that was employed (i.e., permit, ordinance, memorandum of agreement, etc.). Several AMSA members have indicated that there would be no major objection to using individual or general NPDES permits for each connecting satellite system, but would oppose the state’s imposition of permit responsibility on the POTW treatment facility. EPA has attempted to modify the POTW permit approach by allowing it to be used only where the legal authority exists to control satellite collection systems. AMSA is interested in your comments on whether EPA’s permit options are acceptable, especially considering the potential for your facility assuming permit responsibility for your satellite collection systems.

Capacity, Management, Operation and Maintenance Programs (C-MOM)
This C-MOM program language represents the bulk of the regulatory changes being proposed. All permittees will now be required to develop and implement a C-MOM program to comply with certain "general standards" (§122.42(e)(2)). These standards include the requirement to (i) properly manage, operate and maintain all parts of the collection system, (ii) provide adequate capacity to convey base and peak flows; (iii) take all feasible steps to stop, and mitigate the impact of, SSOs in the collection systems; (iv) provide notification to parties with a reasonable potential for exposure to overflow pollutants; and (v) develop a written summary of the C-MOM program and make it available to the public (§122.42(e)(1)).

All C-MOM programs must include certain specified components, except to the extent to which the permittee has demonstrated that an individual component is inapplicable. The following is a summary list of the required components (§122.42(e)(2))(i - ix):

  1. Goals - Identification of major C-MOM goals consistent with general standards (see above).
  2. Organization - Identification of persons responsible for C-MOM implementation, and of the chain of communication for reporting SSOs.
  3. Legal Authority - Inclusion of legal authority to control infiltration and inflow (I/I), require sewers and connections to be properly designed and constructed, ensure proper installation, testing, and inspection of new and rehabilitated sewers, address flows from satellite collection systems, and implement the general and specific prohibitions of the national pretreatment program.
  4. Measures and Activities - Development of the following elements: (A) provide adequate maintenance facilities and equipment; (B) maintenance of a map of the collection system; (C) management of relevant information to prioritize C-MOM activities such as "the immediate elimination of dry weather overflows or overflows into sensitive waters such as public drinking water supplies and their source waters, swimming beaches ..."; (D) routine preventative operation and maintenance activities; (E) a program to assess the current capacity of the collection system and treatment facilities; (F) identification and prioritization of structural deficiencies and appropriate rehabilitation activities to address such deficiencies; (G) appropriate training; and (H) equipment and replacement parts inventories.
  5. Design and Performance Provisions - Establishment of requirements and standards for installation of new sewers and rehabilitation and repair projects, and procedures for inspecting and testing the installation of new sewers and for rehabilitation and repair projects.
  6. Monitoring, Measurement, and Program Modifications - Requirement to monitor the implementation of the C-MOM program, and update program elements as appropriate.
  7. Overflow Emergency Response Plan - Development and implementation of an overflow emergency response plan that identifies measures to protect public health and the environment, including procedures to ensure that overflows are appropriately responded to and that appropriate immediate notification to the local health and state NPDES authority is made.
  8. System Evaluation and Capacity Assurance Plan - Preparation and implementation of a plan for system evaluation and capacity assurance if peak flow conditions are contributing to an SSO discharge or to noncompliance at a treatment plant, unless steps have already been taken to correct the hydraulic deficiency or the discharge is caused by "severe natural conditions".
  9. C-MOM Program Audits - Performance of an audit of the C-MOM program in association with the permit application and submittal of a report summarizing performance and steps to respond to deficiencies.

The C-MOM program is not reviewed by the state permit authority for approval. Rather, the permittee is expected to develop a program that satisfies the components and to later conduct "C-MOM program audits" as part of the NPDES permit application and submit reports specifying "deficiencies and steps to respond to them" (§122.42(e)(2)(ix)). Dates for implementation of the various C-MOM components were not included in the proposed rule. However, a series of recommended deadlines are proposed in the preamble (see Section III.L of the preamble). The C-MOM provisions also contain certain exceptions for "small collection systems" (systems with average daily flow of 1.0 MGD or less, or 2.5 MGD or less) (§122.42(e)(4)).

Current Issues and Concerns: AMSA devoted considerable energy to the negotiation of the C-MOM provisions. As a result, the existing language is one area of the proposed rule that has received considerable support from AMSA. One major outstanding concern of AMSA’s is the relatively weak linkage between a POTW’s implementation of its C-MOM program and the level of enforcement discretion given the state in the case of an SSO discharge. It is clear that EPA’s Office of Enforcement & Compliance Assurance (OECA) is continuing to prioritize communities experiencing SSOs for enforcement action. AMSA has argued that the primary mechanism for potentially offsetting an enforcement action is the development and implementation of a C-MOM program. AMSA encourages the membership to closely review the C-MOM provisions, evaluate the extent to which your system has implemented these protocols, and consider prompt action to implement any parts of the program where your system is lacking.

AMSA is concerned, however, that EPA is sending mixed signals about the linkage between C-MOM implementation and the exercise of enforcement discretion of SSO discharges. The proposed rule indicates that "the Director will consider the quality of the CMOM program, its implementation and effectiveness in any relevant enforcement action, including but not limited to any enforcement action for violation of the prohibition" of SSO discharges (§122.42(e)(2)). At the same time, the preamble indicates that "compliance with CMOM permit requirements generally would not limit liability for SSO discharges" (Section III.O of the preamble). This discrepancy needs to be removed, and a stronger statement regarding C-MOM implementation and enforcement discretion is needed. In that regard, the National Office encourages the membership to offer recommendation on specific language that AMSA could advocate.

Prohibition of SSO Discharges
The proposed rule contains a general prohibition of SSO discharges to "water of the United States that occur prior to a POTW treatment facility" (§122.42(f)(1)). The rule also proposes the use of enforcement discretion for SSOs caused by "severe natural conditions" and affirmative defenses for discharges caused by "other factors", based on a modified version of the existing "bypass" and "upset" provisions of §122.42(m) and (n). The proposed rule also clarifies that the burden of proof rests with the permittee to establish compliance with these provisions (§122.42(f)(4)).

The proposed rule authorizes the use of enforcement unless the permittee can demonstrate through relevant evidence that "the discharge was caused by severe natural conditions", such as hurricanes, tornados, widespread flooding, earthquakes, tsunamis, and other similar natural conditions (§122.42(f)(2)(i)). The permittee must also demonstrate that "there was no feasible alternatives to the discharge". This demonstration is not satisfied if "the permittee should have installed auxiliary or additional collection system components, wastewater retention or treatment facilities, adequate back-up equipment or should have reduced inflow and infiltration" (§122.42(f)(2)(ii)). A claim must be submitted to the permit authority within 10 days of the date of discharge.

Alternatively, the proposed rule enables the permittee to establish an "affirmative defense" to an enforcement action for noncompliance with its technology-based effluent limitations (§122.42(f)(3)). In order to qualify for such a defense, the permittee must demonstrate through relevant evidence that the cause of the discharge event can be identified, the discharge was "exceptional, unintentional, temporary and caused by factors beyond the reasonable control of the permittee", the discharge could not have been prevented by "the exercise of reasonable control ..., preventative maintenance, or installation of adequate backup equipment", and the permittee "took all reasonable steps to stop, and mitigate the impact of, the discharge as soon as possible" (§122.42(f)(3)(i, ii, iii and v)). A claim must be submitted to the permit authority within 10 days of the date of discharge.

Current Issues and Concerns: AMSA remains concerned that the proposed prohibition standard does not give POTWs the appropriate liability protection for SSO discharges that are essentially uncontrollable. AMSA became involved in this debate over the concern that enforcement authorities were reading the requirements of the Clean Water Act too literally to mean "no overflows ever". While POTWs can work to minimize overflows, AMSA’s members have uniformly indicated that the "zero overflow" standard is impossible to meet. Even EPA recognizes that "some overflows are unavoidable, even at the best run systems" (Section IV.B of the preamble). At every step in the negotiations, AMSA pushed the concept of an "unavoidable overflow" which the POTW would not be responsible for controlling (i.e., unanticipated blockages, wet weather events that exceed capacity ...). AMSA will continue to push for a stronger linkage between the C-MOM program and liability protection for SSO discharges as a way to reflect the realities of SSO occurrences. The National Office encourages members to indicate how the current proposed provision may play out in specific states and regions.

In addition, EPA is requesting comments on a prohibition alternative that would authorize SSO discharges at less than secondary treatment from "peak excess flow treatment facilities" based on a BAT / BCT model, similar to the CSO Policy framework (Section IV.C of the preamble). Refer to ATTACHMENT C for a copy of the preamble discussion of this alternative approach. Using this approach, the C-MOM program would be modified to resemble the nine minimum controls of the CSO Policy. It appears clear from EPA’s own interpretation of this approach that the Agency is uncomfortable with this level of flexibility. Under this alternative, EPA proposes establishing "screening criteria" for permit authorities to use in issuing permits to systems that wish to install "peak excess flow treatment facilities". AMSA has not taken a position on this alternative approach. AMSA encourages the membership to consider whether this alternative offers a better option for complying with effluent limits than the current proposed prohibition approach.

Reporting, Public Notification and Recordkeeping
This section (§122.42(g)) establishes procedures for reporting and public notification of SSO discharges, and for keeping records on discharge events. EPA proposes the use of a new definition of SSO for use in reporting and public notice. The proposed definition indicates that an SSO is "an overflow, spill, release, or diversion of wastewater from a sanitary sewer system", which does not include combined sewer overflows (CSOs) or other discharges from the combined portions of a combined system (§122.42(g)(1)). The definition clarifies that SSOs include: (i) overflows that reach waters of the U.S.; (ii) overflows that do not reach waters of the U.S.; and (iii) wastewater backups caused by blockages or flow conditions, with the exception of such occurrences in privately owned building laterals.

The permittee is required to notify relevant agencies of all SSOs that may "imminently and substantially endanger human health" (§122.42(g)(2)). Immediate notification of the public, health agencies, and other affected entities is required for such SSOs in accordance with the C-MOM "overflow emergency response plan". In addition, the NPDES permit authority must be notified by oral or electronic report within 24 hours of when the permittee becomes aware of the overflow. Within 5 days of the time the permittee is made aware of the overflow, a written report must be filed with the NPDES permit authority which describes the location of the SSO, the specific receiving water, an estimate of the overflow volume, a description of the system component from which the discharge arose, the estimated date and time of the overflow, the cause or suspected cause, and steps taken or planned to reduce, eliminate, prevent reoccurrence, or mitigate the impacts of the overflow.

This section also contains requirements for reporting SSO information on "discharge monitoring reports" (DMR) and "annual reports". The permittee is required to report SSOs that discharge to waters of the U.S. on the DMR (§122.42(g)(3)). The following information is required for SSOs to waters of the U.S. that occurred during the reporting period: (i) the total number of system overflows; (ii) the number of locations at which SSOs occurred that resulted from flows exceeding system capacity; (iii) the number of SSOs that are unrelated to system capacity; and (iv) number of locations at which SSOs occurred that are unrelated to system capacity. The permittee is also required to prepare an annual report of all overflows in the sewer system, including overflows that do not reach waters of the U.S. (§122.42(g)(4)). The report must include the date, location of overflow, any potentially affected receiving water, and estimated overflow volume.

The permittee is required to maintain and record SSO information for at least 3 years from the date of the overflow (§122.42(g)(5)). Detailed information must be kept for all SSOs, including overflows that do not reach waters of the U.S..

Current Issues and Concerns: During the FACA negotiations, AMSA was generally supportive of improved reporting and notification as a trade-off for liability protection for unavoidable overflows and the allowance of peak excess flow treatment facilities. However, AMSA maintained that required procedures should address only overflows reaching waters of the U.S.. This proposed rule extends EPA’s jurisdiction beyond waters of the U.S., as is apparent from the proposed SSO definition. The National Office is interested in member comments on the issues surrounding reporting and notification of SSOs not reaching waters of the U.S..

Watershed Management
EPA did not include regulatory language on the use of watershed management in the proposed rule. Rather, the Agency discusses the use of watershed management in the preamble (Section III.M of the preamble) to phase certain long-term C-MOM activities and to prioritize the control of certain SSOs. However, EPA clearly indicates that "a watershed plan does not provide any additional liability protection or change the legal status of discharges to waters of the U.S., but could affect the timing of remedies."

Current Issues and Concerns: During the FACA negotiations, AMSA consistently advocated for a stronger endorsement of watershed management in controlling SSOs. The "SSO Management Flow Chart", developed by AMSA and other stakeholders, embraced watershed management as the central principle for controlling overflows. At one time, the SSO Subcommittee endorsed the flow chart as a consensus framework. However, EPA moved away from this approach after its two and one-half year hiatus in the negotiations because of disagreements with OECA and the Regions. AMSA remains concerned that the use of watershed management principles to prioritize control actions will not be encouraged if the language remains isolated in the preamble. The National Office encourages comment on EPA’s discussion of watershed management in the preamble, and on specific recommendations on how the Agency might incorporate watershed management into the rule itself. Refer to ATTACHMENT D for a copy of the preamble discussion of watershed management principles.

For Further Information
Please contact Greg Schaner at 202/296-9836 or by email at gschaner@amsa-cleanwater.org if you have any questions or would like to discuss any aspect of the proposed rule.

*1)
Satellite collection systems are defined (§122.38(b)) as "any device or system that meets each of the following criteria: (1) is owned or operated by a ‘state’ or ‘municipality’ ...; (2) is used to convey municipal sewage or industrial waste to a POTW treatment facility that has an NPDES permit or is required to apply for a permit ...; and (3) the owner or operator is not the owner or operator of the POTW treatment facility that has an NPDES permit or has applied for an NPDES permit."

Attachments:

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