Lamont W. Curtis, P.E., DEE
The TAF Group
Virginia Beach, Virginia
Member, APWA Water Resources Management Committee
By the time this is published Tthe Sanitary Sewer Overflow (SSO) proposed rule should have be been published in the Federal Register in the spring of 2003 with a 120-day period for public comment. And there should be plenty. The SSO policy has been in the making for several years, since 1994, and it was drafted with input from a has received the benefit of being drafted under a Federal Advisory Committee. The draft regulations were to have been published in the Federal Register in January 2001, but they were withdrawn for further review by the incoming Bush administration. Many comments have already been submitted on the draft that contains four major categorical requirements: Capacity Assurance, Management, and Operations and Maintenance Programs; Public Notification; Reporting, Public Notification, and Record Keeping; Prohibition of Overflows; and Satellite System Permitting.
The most troublesome issue sto most Publicly Owned Treatment Works (POTW) is is the prohibition clause â€“ â€œwhich states that discharges to waters of the United States from a municipal sanitary sewer collection system from a municipal sanitary sewer collection system that occur prior to a POTW are prohibitedâ€ and public notification. The occasion of overflows is acknowledged to be unavoidable. The rule does provide language outlining defenses for overflows caused by severe natural conditions and unavoidable events. But these defenses are weak, difficult to quantify and very subjective. Most important, they do not alter the prohibition language, so the standard has been set as zero discharge. The current federal regulations allow for an affirmative defense for bypasses that occur at treatment facilities, but the draft SSO regulations do not extend this defense to collection systems except under extreme conditions. and by allowing enforcement discretion, Tthe fact remains that a Any violation puts a POTW in a difficult legal situation that is dependent upon enforcement discretion and judgment of enforcers with no clear-cut guidance. The current federal regulations allow for an affirmative defense for bypasses that occur at treatment facilities but the draft SSO regulations do not extend this defense to collection systems except under extreme condition such as tsunamis That guidance could come through by using the Capacity, Management, Operations and Maintenance (CMOM) development and implementation programs and using a toolbox of developed Best Management Practices as a method to define affirmative defense that could be consistently applied nationally by state and federal regulatory authorities. Public notification of every SSO will serve no useful purpose except to alarm the public and build a record to invite lawsuits. SSOâ€™s of a large amount or the have the potential to adversely effect public health should be reported to the public. Small, localized SSOâ€™s should not be reported to the public.
A second troublesome issue is Reporting, Public Notification, and Record Keeping. The draft states that all Sanitary Sewer Overflows of any size that reach the waters of the United States, that do not reach the waters of the United States, or cause wastewater backup into buildings caused by the public system need to be reported with substantial detail on the event including date, times, volumes, causes, and mitigation measures. POTWs see this as being a significant burden on their resources, and something that in all practicability may be impossible to accomplish. There is the fear that this level of public notification will serve no useful purpose except to alarm the public and to build a record for lawsuits. Certainly SSOs of large volumes which have the potential to adversely affect public health or pose an environmental threat should be reported; but small volume, localized SSOs should be treated differently. Another policy issue to review carefully is the expanded permit coverage to satellite system. A satellite system is one when the collection systems owner or operator is different than the owner or operator of the treatment facility.
The Capacity Assurance, Management, Operations and Maintenance program has been compared to the business plan for the sewer system. In the absence of a policy, EPA has targeted a percentage of chronic violators under the Section 308 of the Clean Water Act Provisions. The so-called feared Section 308 letter requests information on the system, operation and maintenance records and may result in a consent order. The consent order often encompasses many of the elements found in the CMOM portion of the proposed regulations. The CMOM program has several specified components including goals, the organization and legal authority, operations and maintenance activities description, design and performance provision, monitoring, an overflow emergency response plan, and a plan for evaluating capacity. The CMOM program has a requirement for a self-audit and an audit report to be submitted with each National Pollutant Discharge Elimination System (NPDES) permit application. These audit reports which also must be made available to the public upon request. Additionally, EPA has the potential to levy fines under the SSO regulation. Most sanitary sewer system operators think fines are counterproductive to eliminating SSOs in that fines remove scarce and valuable resources from solving the problem. When preparing this make sure your legal counsel has a voice.
Another issue to review carefully is the expanded permit coverage to satellite system. A satellite system is one where the collection systemâ€™s owner or operator is different than the owner or operator of the treatment facility. The rule will require NPDES permits for satellite collection systems that will include the prohibition, CMOM and reporting/recordkeeping requirements, as well as all other requirements generally applicable to NPDES permits. This is a broad expansion of the NPDES program, and may have a significant impact on POTWs.
Certainly an issue worthy of comment, but one which will not be satisfactorily resolved, is cost. Unfunded mandates are seldom welcomed by public agencies. Using a common sense approach to reporting the reporting of overflows that only pose a serious risk, developing programs other than for the sake of having a program, and creating well-defined regulations that prevent an array of interpretation by overzealous enforcers and can reduce costs and reduce contingent liabilities to the already burdened municipal governments. Additionally, EPA has the potential to levy fines under the SSO regulation. Fines are counter-productive to eliminating SSOâ€™s in that fines remove scarce and valuable resources from solving the problem.
For further information, go to http://cfpub.epa.gov/npdes/home.cfm?program_id=4 (EPA Sanitary Sewer Overflows Hotline); http://www.amsa-cleanwater.org; and http://www.cmom.net. Or contact Lamont â€œBudâ€ Curtis at (757) 340-5055 or at Bcurtis@tafgroup.com.