Background

On Sept. 20, Sen. Frank Lautenberg (D-N.J.), chair of the Senate Environment and Public Works Subcommittee on Transportation Safety, Infrastructure Security, and Water Quality, and Sen. George Voinovich (R-Ohio) introduced the Sewage Overflow Right-To-Know Act of 2007 (S. 2080).  This is the Senate companion to the Raw Sewage Overflow Community Right to Know Act (H.R. 2452), introduced in the House on May 23.  The House Subcommittee on Water Resources and Environment will hold a hearing Oct. 16 to discuss the bill.  NACWA Treasurer Kevin L. Shafer, executive director of the Milwaukee Metropolitan Sewerage District, will testify on behalf of the clean water community.

This Legislative Alert provides a comparison of the bills.  Some members have already submitted comments on the House bill and NACWA has voiced their concerns while meeting with key Congressional staff prior to the introduction of S. 2080.  The Natural Resources Defense Council (NRDC) and American Rivers support the legislation and characterize it as a common-sense measure that will allow the public to avoid unnecessary exposure to harmful untreated sewage.  NACWA has not taken a formal position on the bill to date, but has preferred instead to obtain comments from its members on what impact the legislation could have on their operations — particularly how expensive the monitoring aspect of the legislation would be for its public agency members.  Overall, members have supported the concept of monitoring and notification while at the same time questioning the way it is handled in these particular bills.

Summary and Analysis of Provisions for House and Senate Bills

Both S. 2080 and H.R. 2452 would amend Section 402 of the Clean Water Act to require that publicly owned treatment works (POTWs) implement an effective monitoring and notification program for sewage overflows that includes public notification within 24 hours of discharge into waterways.  These monitoring and notification provisions apply to all sewer overflows, defined by these bills as all combined sewer overflows (CSOs) and all sanitary sewer overflows (SSOs) except basement backups caused by a building lateral that is privately owned. The monitoring provision, within the Bills is brief and yet potentially very broad in scope as it requires POTWs, within one year of enactment, to institute a methodology, technology, or management program that will alert the owner or operator to the occurrence of a sewer overflow in a timely manner.

The costs that POTWs would incur as a result of the monitoring regulation could be unreasonably high, particularly as the legislation currently includes no new source of federal funding to help defray the expense.  The bills only state that funds to implement it would be eligible for funding via the Clean Water State Revolving Fund (CWSRF) which has been dwindling for years.  NACWA member agencies have reported that the technology now available for monitoring would be prohibitively expensive to implement in the manner required by the bill, which could, depending upon how EPA interprets the legislative language in forming a monitoring and notification rule, mandate placement of overflow detection devices in every manhole and along the entire length of every pipe, including collection systems.

NACWA members have an important environmental mandate to protect the American public from potential water-borne illness, and ensuring proper public notice of any potential human health risk from sewer overflows is a critical component of that mission.  However, efforts to report overflows must not be duplicative and should remain flexible due to many differing and fluid local situations.  This monitoring provision has been drafted with good intentions, but its implementation (if done to the letter) could pose severe challenges for sewer service providers.

NACWA members have also expressed that some consideration should be given to a threshold (e.g. 100 gallons) beyond which a spill is required to be reported by the legislation.  As the legislation is currently written, every aspect of operations in the sewer lines, when measured against the threshold of zero, would need to be reported.

Both bills would require POTW operators, within one year of enactment to:

• Notify the public of a sewer overflow in any area where the overflow has the potential to affect human health;
• Notify the public as soon as practicable but not later than 24 hours of the time the owner or operator becomes aware of the overflow;
• Immediately notify public health authorities and other affected entities, such as public water systems, of any sewer overflow that may imminently and substantially endanger human health;
• Provide to the Administrator or the State in the case of a State that has a permit program approved under this section either an oral or electronic report as soon as practicable within 24 hours of the time the owner or operator becomes aware of the overflow;
• Provide to the Administrator or the State, within 5 days of the time the owner or operator becomes aware of the overflow, a written report describing the: magnitude, duration, and suspected cause of the overflow, steps taken or planned to reduce, eliminate, and prevent recurrence of the overflow, and steps taken or planned to mitigate the impact of the overflow;
• Report all sewer overflows to waters of the United States on its monthly discharge monitoring report to the Administrator or the State, and
• Report to the Administrator or the State the total number of sewer overflows (including sewer overflows that do not reach any waters of the U.S.) in a calendar year, including the details of how much wastewater was released per incident, the duration of each sewer overflow, the location of the overflow and any potentially affected receiving waters, the responses taken to clean up the overflow, and the actions taken to mitigate impacts and avoid further sewer overflows at the site.

The enactment of these reporting requirements could serve to complicate state reporting efforts already in place, and though the need to expand and streamline capabilities to notify the public in the event of a sewer overflow that may pose human health risks is evident and warranted, the multiple reporting requirements to various state and federal agencies that these bills create could place an unnecessary administrative burden on our member agencies.  Although NACWA members understand and generally support both the purpose of these bills and the need to protect the American public from potential waterborne illness by ensuring proper public notice of any potential human health risk from sewer overflows, any efforts to report overflows must not be duplicative and should remain flexible due to many differing and fluid local situations.

The provisions in these bills requiring POTWs to report all overflows directly to the public regardless of the circumstances regarding the spill could also lead to unnecessary panic.  A one size fits all approach does not work well when dealing with overflows.  As an example, small spills in unpopulated areas that pose a relatively low risk to public health would be on equal footing with larger spills in areas or times of year that would indeed pose a significant health risk.  It has traditionally been the role of public health and regulatory authorities to evaluate a spill report and determine if public safety is at risk before reporting the spill to the general public.  This remains the best course of action and the provisions in S. 2080 and H.R. 2452 could eliminate the existing flexibility to review and determine the consequences and potential health threats of these spills to the public.

Differences Between the House and Senate Bills

NACWA discussed concerns members had with the House bill during meetings with Sen. Lautenberg’s (D-N.J.) staff prior to the introduction of S. 2080.  As a result, some changes were made to the bill before introduction in the Senate.  The title was changed to the “Sewage Overflow Right-To-Know Act” from the “Raw Sewage Community Right-To-Know Act.”  The Findings section of S. 2080 did not include the questionable statistics on the “loss of swimming opportunities” and “economic losses due to swimming related illnesses.”  The findings, as they appeared in the House bill included: “the loss of swimming opportunities (beach closings) due to pathogen contamination valued at $1,000,000,000 to $2,000,000,000 annually in the United States,” and “economic losses due to swimming-related illnesses estimated at $28,000,000,000 annually.”  The House bill inaccurately attributes these beach closings to sewer overflows, when the source of most pathogen contamination is pet and wildlife waste from stormwater runoff.

The Senate version of the legislation also adds language praising sewage treatment operators for the work they do to protect the public health and achieve the fundamental goals of the Clean Water Act.  The bill recognizes that “the wastewater systems of the United States are aging and require significant investment in traditional and green infrastructure to prevent the occurrence of sewer overflows,” and that “public notification of sewer overflows that threaten public health will protect the public health and increase recognition and support for needed investment in infrastructure to address contaminated stormwater and sewer overflows.”

Other differences had to do with specific wording – replacing provocative phrases such as “sewage is filled with bacteria…” to read “sewage contains bacteria…” and that “monitoring and reporting would save millions from getting sick…” to “could prevent millions from getting sick.”  While these alterations improve somewhat the findings in S. 2080, NACWA still strongly disagrees with many of the remaining findings.  Specifically, the allegation that 1.8 to 3.5 million Americans become ill every year from swimming in water contaminated by sewer overflows is false.  The U. S. EPA’s Report to Congress in August 2004 on the impacts of sewer overflows found no such connection and stated “the estimated number of annual illnesses attributable to exposure to CSO and SSO contaminated waters at state-recognized beaches is between 3,448 and 5,576.”  Even if that number is low and not comprehensive, it is still miniscule when compared to those used in the two bills.

NACWA thanks our member agencies for their perspectives and we look forward to any additional input and thoughts on the Senate bill, S. 2080, which has been included with this Alert.  The groups supporting the bill have sought NACWA’s support, but are open to the Association providing input on our issues or concerns with the legislation.  Accordingly, please submit any comments to Susan Bruninga, of NACWA’s Government Affairs staff, by October 12, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or by phone at (202) 833-3280.