NACWA’s Board of Directors voted this week to support revised language for the Raw Sewage Overflow Community Right-to-Know Act (H.R. 2452), legislation to establish a national program for reporting and notification of sewer overflows.  The negotiated language is the product of several months of discussions with American Rivers and key staff from the House Transportation & Infrastructure (T&I) Committee and the office of Rep. Timothy Bishop (D-N.Y.).  A memorandum detailing changes to H.R. 2452 as a result of the NACWA/American Rivers negotiations was sent to the Board on March 20.  The Board then met through a conference call April 2 to discuss the revised bill and NACWA’s pending support.  The Board’s favorable vote allows American Rivers to reference the Association as a supporter of the bill but does not bind NACWA, or its members, to any advocacy on behalf of H.R. 2452.  NACWA and the Board recognize that even though the bill is not perfect, the negotiated language improves upon the original legislation.  Furthermore, it is vitally important for NACWA to be at the table in order to fully engage on this legislation as it moves forward.

The negotiated language will be included as a substitute amendment for the original bill during the T&I Committee markup expected in April.  The timetable for action in the Senate on the companion legislation, S. 2080, is not as clear.  However, Senate staff have said they would probably substitute S. 2080 with the language agreed upon by the House and could potentially make further changes to the bill.  The bill is not expected to move this year but will likely gain traction once reintroduced in the 111th Congress.  T&I Committee staff have also suggested that H.R. 2452 could be included along with other pending environmental legislation as part of a large infrastructure funding package in 2009.  NACWA continues to voice its long-standing view that the reporting and notification requirements would be better addressed through a comprehensive sanitary sewer overflow (SSO) rule, rather than through a piecemeal approach and worked with American Rivers to ensure the bill contains a finding noting the need for a comprehensive policy.

Background

The original version of the bill was introduced by Rep. Bishop in May 2007 and was intended to provide a uniform and national standard for notification and reporting of combined sewer overflows (CSOs) and SSOs.  Sen. Frank Lautenberg (D-N.J.) introduced S. 2080 in the Senate.  NACWA Treasurer and executive director of the Milwaukee Metropolitan Sewerage District, Kevin Shafer, testified during an Oct. 16, 2007, hearing in the T&I Subcommittee on Water Resources and Environment that many municipalities already exceed the requirements of H.R. 2452.  He also reiterated NACWA’s preference for a comprehensive policy on SSOs and raised several other concerns with the legislation.  American Rivers also testified at the hearing, and T&I staff requested that the two organizations resolve their differences to the best of their abilities and work with staff from the committee and Rep. Bishop’s office to improve the bill.

NACWA’s Legislative Policy, Legal Affairs, and Facility & Collections System Committees provided excellent input on both the original legislation and subsequent draft language.  American Rivers worked in good faith to address concerns raised by the committees and Board.  The revised language adds needed flexibility and promotes the preferable solution – a comprehensive SSO program that would also address satellite collection systems.  The bill also seeks to ensure stronger protections for public health without putting an unreasonable burden on municipalities.  A detailed analysis of changes to H.R. 2452 as a result of the negotiations follows.  The negotiated version of the bill is attached.

Bill Title and Findings

The title of the bill was changed to the “Sewage Overflow Community Right-To-Know Act” from the “Raw Sewage Overflow Community Right-To-Know Act,” removing what some members thought to be inflammatory language.  NACWA was able to have questionable statistics eliminated from the original Findings section of H.R. 2452 that discussed a “loss of swimming opportunities” and the “economic losses due to swimming related illnesses.”   H.R. 2452 inaccurately attributed these beach closings to sewer overflows, when the source of most pathogen contamination is wildlife waste from stormwater runoff.  The compromise language also adds a subsection praising sewage treatment operators for the “important job that . . .  helps protect the public; and is critical to achieving the goals of the Federal Water Pollution Control Act [Section 2(6)(A) & (B)].”  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 [Section 2 (7)].”

While NACWA continues to believe it inappropriate to discuss estimates of diseases that may or may not be caused by sewer overflows in the Findings section of the legislation, statistics from several sources estimating the number of waterborne illnesses are included in the revised bill.  NACWA was successful in having language added clarifying these statistics, however.  For example, the finding regarding the Center for Disease Control and Prevention’s findings on waterborne illnesses qualifies the statistics by stating “though exactly how many of these are attributable to sewer overflows remains uncertain [Section 2(1)].”  Other positive changes had to do with specific wording – replacing provocative phrases such as “sewage is filled with bacteria…” to read “inadequately treated sewage contains bacteria” [Section 2(2)].

Perhaps of greater importance is the fact that the Findings section was also amended to add a provision addressing both the need for a comprehensive sanitary sewer overflow rule and the importance of including satellite collection systems in such a program.  [Section 2(10)]  It also recognizes that the thousands of satellite collection systems around the country account for the majority of SSOs.

Definitions

Discussions with American Rivers and Rep. Bishop’s staff over the Definitions section of H.R. 2452 – and over the definition of an SSO specifically – proved to be the most difficult area of the negotiation.  Some NACWA Board members expressed their concern over language in the original bill that would amend the CWA Definitions section (33 U.S.C. 1362) by adding a definition of SSOs that includes basement backups.  Members felt that basement backups do not reach the “waters of the U.S.” and are beyond the reach of the CWA.

NACWA staff pushed hard to remove the basement backup language entirely from the definition of SSOs.  However, this issue was a non-starter for both American Rivers and staff for Reps. Bishop and Oberstar.  They preferred the definition from EPA’s 2001 proposed SSO rule, which included basement backups.  NACWA was, however, able to get excluded from the definition wastewater backups into buildings that are caused by “blockage or flow conditions of a building lateral” [Section 3 (25)].  American Rivers and congressional staff also agreed to remove the notification requirements for “wastewater backups into buildings of single-family residences” (including units in apartment buildings, condos, dormitories, etc.).  [Section 4 (r)(1)(B) & (D)].

Monitoring, Reporting, and Public Notification of Sewer Overflows

NACWA Board members also raised the issue of incidental releases of wastewater that occur during the normal operation and maintenance of wastewater treatment and transmission facilities.  NACWA staff were able to work with American Rivers on having these releases excluded from the monthly and yearly reporting requirements for overflows found in Section 4 (r)(1)(E) & (F) of the bill.  Specifically, the exemption is for “releases of wastewater in the course of maintenance of treatment and transmission facilities that are managed consistently with a facility’s Best Management Practices and are intended to prevent overflows.”  Language included in the bill also limits immediate notification of an overflow to the public health authorities only in those circumstances where such overflows “may imminently and substantially endanger human health” [Section 4 (r)(1)(D)], helping to ensure that incidental releases of small quantities of wastewater or solids are not subject to immediate notification requirements.   Language was also added in Section (4)(r)(3)(A) of the revised bill instructing EPA to establish criteria to guide POTWs in assessing whether an overflow has the potential to adversely affect human health and also to shed light on what is meant by an overflow that “may imminently and substantially endanger human health.”

NACWA also was successful in having language included ensuring that monitoring requirements in the bill be “feasible” and based on site-specific conditions.  Section 4(1)(A) of the negotiated bill requires POTWs  to “institute and utilize a feasible methodology, technology, or management program that will alert the owner or operator to the occurrence of a sewer overflow in a timely manner.”  This language allows for flexibility regarding the variability of wastewater flows and cost factors at the POTW in implementing a monitoring system and helps address concerns about the original bill’s potential to create a one-size-fits-all regime.

American Rivers also agreed to remove the 24 hour and five day reporting requirements found in the original legislation that NACWA deemed duplicative and burdensome.  However, the requirements for monthly overflow reports remain in the compromise legislation along with the yearly reporting requirements.  American Rivers felt that data might be lost or become less accurate if it was only compiled once a year as NACWA argued.  No NACWA Board members cited the inclusion of these monthly and yearly reporting requirements as a deal breaker, and the outright elimination of the 24 hour and five day reporting requirements is a large compromise on the part of American Rivers and Rep. Bishop.

If you have any questions regarding the revised legislation please contact Adam Krantz 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 .  NACWA will keep the full membership apprised of developments on this effort.  


Attachment:

• NACWA / American Rivers Negotiated Language (PDF)