» Advocacy Alerts Archive

ACTION PLEASE BY:
June 25, 2010

On June 1, 2010, the U.S. Environmental Protection Agency (EPA or Agency) announced in a Federal Register (June 1, 2010; 75 Fed. Reg. 30395) Notice that it is seeking public input on several sanitary sewer collection system issues, including sanitary sewer overflows (SSOs), system operation and maintenance, and blending “to help the Agency shape any possible future regulatory proposals.” The Notice states that the Agency is considering “whether to propose to modify the National Pollutant Discharge Elimination System (NPDES) regulations as they apply to municipal sanitary sewer collection systems and sanitary sewer overflows” and seeks comment on whether EPA should develop broad-based SSO regulations under the NPDES program, whether to require satellite collection systems to obtain a permit, and how to address blending, among other issues.

NACWA has long-advocated for the development of a more holistic and integrated approach to addressing SSOs and managing collection systems, and believes this Notice is an important step in the right direction. This Advocacy Alert provides a brief summary of the Notice and the key issues on which EPA is seeking comment.

EPA will begin holding public listening sessions in June (details below) on these issues and is providing a 60-day period for submission of written comments that closes on August 2. NACWA is working to prepare comments on the Notice and will participate in the listening session planned for July 13 in Washington, D.C. NACWA is soliciting input from its members on the proposal and will be seeking to coordinate member participation in the listening sessions to ensure the voice of the clean water community is heard throughout this process. Please provide any input to NACWA by June 25 to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA Seeks Input on Regulatory Changes for SSOs, Blending

EPA’s Notice provides background on the Nation’s wastewater collection system infrastructure and an overview of the regulatory history of the SSO and blending issues. On SSOs, EPA summarizes the framework for addressing overflows developed with unanimous support by the SSO Subcommittee of the Urban Wet Weather Flows Federal Advisory Committee (in which NACWA was an active participant) in 1999 and EPA’s attempt to propose a rule based in part on the Subcommittee framework in 2001, which was withdrawn by the incoming Bush Administration before it could be published.

On the issue of peak flow blending, EPA provides a brief overview of the history of that issue since the early 2000s, acknowledging that in 2003, the Agency proposed a policy under which peak flows routed around secondary treatment units and recombined with the effluent from the secondary units before discharge “would not have been considered to constitute a prohibited bypass if certain criteria were met.” EPA goes on to describe the negative reactions the 2003 proposed policy received, primarily from the environmental activist community, and the Congressional pressure for the Agency to abandon such an approach. These events eventually led to the negotiations between NACWA and the Natural Resources Defense Council and the 2005 proposed peak flows policy.

In Section III of the proposal, EPA states that it is “considering whether to develop a more specific broad-based regulatory framework for sanitary sewer collection systems under the NPDES program.” Included within that framework, EPA is considering adding standard permit conditions for publicly owned treatment works (POTWs) and collection systems for: reporting, public right to know, notice of public health officials and recordkeeping requirements for SSOs, capacity assurance, management, operation and maintenance requirements for collection systems, and possible regulatory requirements or provisions for SSOs that are caused by “exceptional circumstances.” EPA is also seeking comment on peak excess flow treatment facilities in the collection system and at the treatment plant (i.e., blending).For satellite collection systems, EPA is considering clarifying and modifying the existing NPDES framework to apply the standard permit conditions to municipal satellite collection systems. EPA is also considering when satellites would be required to obtain an NPDES permit.

The notice asks for input on specific questions related to SSOs and blending. Input is being solicited by EPA on the following issues:

1. Should EPA propose to clarify its standard permit conditions for SSO reporting, recordkeeping and public notification?

EPA provides an overview of the existing standard permit conditions in the NPDES regulations and how they apply to SSOs. EPA notes that the existing conditions do not establish monitoring or public notification requirements and lists several questions it is seeking input on as it considers whether to develop a comprehensive framework for monitoring, reporting, public notification, and recordkeeping, including:

• Which SSO events should be reported?
• Should such SSO requirements also apply to basement backups?
• What are the appropriate methods, technologies or management programs for monitoring SSOs?

NACWA anticipates that EPA will likely consider the Sewer Overflow Community Right to Know Act (HR 2452), which passed the U.S. House of Representatives in 2009, that addresses many of these same issues.

 

2. Should EPA propose to develop a standard permit condition with requirements for capacity, management, operations and maintenance (CMOM) programs based on asset management principles?

EPA again explains the scope of the existing standard permit conditions in the NPDES regulations for proper operation and maintenance and their applicability to SSOs. EPA indicates that it is considering clarifying EPA’s expectations for appropriate CMOM program requirements. EPA notes that CMOM could include a general requirement to develop and implement a CMOM program and documentation requirements, including a written summary of the program, an overflow emergency response plan, a system evaluation and capacity assurance plan, and the results of a program audit. The Notice solicits comment on the appropriate elements of CMOM and the potential nexus with utility asset management programs.

 

3. Should EPA propose to require permit coverage for municipal satellite collection systems?

EPA provides an overview of the relationship between satellites and treatment authorities and notes that poor performance in the satellite systems can often be a major contributor to peak flow problems in interceptor systems and at regional treatment authorities. EPA is considering “clarification of the framework for regulating municipal satellite collection systems under the NPDES permit program.” EPA solicits input on which satellite systems should receive an NPDES permit and whether these systems should be required to meet the standard permit conditions.

 

4. What is the appropriate role of NPDES permits in addressing unauthorized SSOs that are caused by exceptional circumstances?

EPA acknowledges that even collection systems that are managed in an exemplary fashion may experience an overflow under “exceptional circumstances” and solicits input on the role of the NPDES permit in addressing such events. The Agency is “considering developing a standard permit condition that would provide a framework for evaluating the specific circumstances of overflows from a municipal sanitary sewer collection system that result in a discharge to waters of the U.S. and consideration of those circumstances to excuse those discharges, either through the exercise of enforcement discretion or through establishment of an affirmative defense.” NACWA has long advocated for the establishment of an affirmative defense for addressing SSOs in lieu of EPA’s current prohibition or an enforcement discretion-based approach.

5. How should EPA address peak flows at POTW treatment plants?

EPA is considering two main options for moving forward on the peak flows issue. EPA is considering and seeking comment on whether to embrace the approach explained in the 2005 draft peak flows policy (blending would be handled under the existing bypass regulations) and/or to propose to address these issues in an SSO rulemaking. What remains unclear is how EPA will address blending in NPDES permits in the interim.

EPA is also asking for information regarding the costs and benefits of CMOM and asset management programs for sanitary sewers, as well as input on any other considerations related to the topics addressed in this notice.

Notice Presumable First Step in New Regulatory Development Process

In its press release announcing the Notice, EPA states that the Agency is considering these issues because it “is initiating a rulemaking to better protect the environment and public health” from SSOs and basement backups. However, the final published Notice indicates that EPA is only seeking input for possible future regulatory action. NACWA will meet with EPA later this month to discuss the Notice and get additional details on the Agency’s planned next steps for potential rulemaking and their overall timetable.

Oral and written comments on the Notice will be accepted during the following listening sessions and stakeholders may also submit written comments directly to EPA by August 2. The Notice has additional details on how to participate in these sessions and on how to submit comments.

• June 24, 10:00 am to 3:00 pm at EPA Region 10 Office, 1200 Sixth Avenue, Seattle, WA
• June 28, 10:00 am to 3:00 pm at EPA Region 4 Office, 61 Forsyth Street, SW, Atlanta, GA
• June 30, 10:00 am to 3:00 pm at EPA Region 7 Office, 901 N. 5th Street, Kansas City, KS
• July 13, 10:00 am to 3:00 pm at EPA Headquarters, Ariel Rios Building, 1200 Pennsylvania Ave, NW, Washington, DC
• July 14 – Virtual Listening Session via webcast from 12:00 to 4:00 pm Eastern.

NACWA Next Steps

NACWA is now considering how EPA’s Notice and potential rulemaking affect the Association’s positions and current activities regarding SSOs and blending. A workgroup of NACWA members has been working on an initial draft of a possible petition to EPA to develop a comprehensive SSO policy, and the group will now discuss how to potentially transform the draft petition into a white paper or position statement on the issues outlined in the Notice and how an SSO policy should be formulated. The appropriate NACWA Committees will also be discussing the proposal and helping the Association to develop comments by the August 2 deadline.