[Federal Register: June 1, 2010 (Volume 75, Number 104)]
[Notices]
[Page 30395-30401]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn10-67]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2010-0464; FRL-9156-7]
Stakeholder Input; National Pollutant Discharge Elimination
System (NPDES) Permit Requirements for Municipal Sanitary Sewer
Collection Systems, Municipal Satellite Collection Systems, Sanitary
Sewer Overflows, and Peak Wet Weather Discharges From Publicly Owned
Treatment Works Treatment Plants Serving Separate Sanitary Sewer
Collection Systems
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Environmental Protection Agency is announcing plans to
hold several ``listening sessions'' beginning in June 2010 to obtain
information from the public on certain issues EPA is considering. EPA
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 (SSOs) in order to better protect the environment and public
health from the harmful effects of sanitary sewer overflows and
basement back ups. The Agency is considering whether to propose
possible modifications to the NPDES regulations, including establishing
standard permit conditions for publicly owned treatment works (POTW)
permits that specifically address sanitary sewer collection systems and
SSOs, and clarifying the regulatory framework for applying NPDES permit
conditions to municipal satellite collection systems. The Agency is
also considering whether and how it should resolve several longstanding
issues that are the subject of the December 22, 2005 draft Peak Flows
Policy. This draft Policy attempted to clarify EPA's interpretation
that the existing ``bypass'' provision of the NPDES regulations applies
to peak wet weather diversions at POTW treatment plants that are
recombined with the flows from the secondary treatment units prior to
discharge. The Agency is considering whether to adopt this or a revised
Policy and/or address questions about peak flow as part of an SSO
rulemaking to allow for a holistic and integrated approach to reducing
SSOs while at the same time addressing peak flows at the POTW treatment
plant.
In addition to submitting information at the listening sessions,
the public may also provide input to the Agency directly through e-
mail, fax or mail in order to help the Agency shape any possible future
regulatory proposals. The Agency is undertaking this outreach to help
advance the Clean Water Act objective to restore and maintain the
chemical, physical and biological integrity of the nation's waters
(CWA, Section 101(a)).
DATES: EPA is asking for statements and input from the interested
public on or before August 2, 2010.
ADDRESSES: Submit your statements or input, identified by Docket ID No.
EPA-HQ-OW-2010-0464, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting input.
E-mail: OW-Docket@epa.gov, Attention Docket ID No. EPA-HQ-
OW-2010-0464.
Fax: 202-566-9744.
Mail: Water Docket, U.S. Environmental Protection Agency,
Mail code: 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Attention Docket ID No. EPA-HQ-OW-2010-0464.
Hand Delivery: Water Docket, EPA Docket Center, EPA West
Building Room 3334, 1301 Constitution Ave., NW., Washington, DC,
Attention Docket ID No. EPA-HQ-OW-2010-0464. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your input to Docket ID No. EPA-HQ-OW-2010-
0464. EPA's policy is that all input received will be included in the
public docket without change and may be made available online at http:/
/www.regulations.gov, including any personal information provided,
unless the input includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your input. If you
send an e-mail with input directly to EPA without going through http://
www.regulations.gov your e-mail address will be automatically captured
and included as part of the input that is placed in the public docket
and made available on the Internet. If you submit an electronic input,
EPA recommends that you include your name and other contact information
in the body of your input and with any disk or CD-ROM you submit. If
EPA cannot read your input due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
input. Electronic files should avoid the use of special characters, any
form of encryption, and be free of any defects or viruses. For
additional information about EPA's public docket visit the EPA Docket
Center homepage at http://www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: For further information about this
notice, contact Charles Glass, EPA Headquarters, Office of Water,
Office of Wastewater Management at tel.: 202-564-0418 or e-mail:
glass.charles@epa.gov.
[[Page 30396]]
Public Listening Sessions: EPA will hold several informal public
listening sessions to gather input on actions that EPA is considering.
The public listening sessions will include a brief background on SSOs
and peak flows that will be followed by an opportunity for the public
to provide input on possible paths forward. Written and oral statements
will be accepted at the public listening sessions. Input generated from
what was learned at a public listening session will be compiled and
archived. The information gathered at these sessions, will be available
on the Internet at http://www.epa.gov/npdes/sanitaryseweroverflows.
Brief oral statements (three minutes or less) will be accepted at the
sessions, and written statements will be accepted.
The dates and locations of the listening sessions are as follows:
[dec222] June 24, 2010, 10 a.m. to 3 p.m. at EPA Region 10 Office,
1200 Sixth Avenue, Seattle, WA 98101.
[dec222] June 28, 2010, 10 a.m. to 3 p.m. at EPA Region 4 Office,
61 Forsyth Street, SW., Atlanta, GA 30303.
[dec222] June 30, 2010, 10 a.m. to 3 p.m. at EPA Region 7 Office,
901 N. 5th Street, Kansas City, KS 66101.
[dec222] July 13, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, Ariel
Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20004.
In addition to the listening sessions held throughout the country, EPA
will hold a ``virtual'' listening session via a webcast on July 14,
2010, from Noon-4 p.m. EST. The same format will be followed as the in-
person listening sessions. After a presentation from EPA, members of
the public may call in and give brief (three-minute) statements.
Audience members will be able to listen to the webcast and all public
statements through their computer speakers.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How can I get copies of this document and other related information?
1. Docket. EPA has established an official public docket for this
matter under Docket ID No. EPA-HQ-OW-2010-0464. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave., Washington, DC. Although all
documents in the docket are listed in an index, some information is not
publicly available, i.e., CBI or other information whose disclosure is
restricted by statute. Publicly available docket materials are
available in hard copy at the EPA Docket Center Public Reading Room,
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Water Docket is (202)
566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
Electronic versions of this notice and other SSO documents are
available at EPA's SSO Web site http://www.epa.gov/npdes/
sanitaryseweroverflows.
An electronic version of the public docket is available through
EPA's electronic public docket and input system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
input, access the index listing of the contents of the official public
docket, and to access those documents in the public docket that are
available electronically. Once in the system, select ``search'', then
key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in Section I.A.1.
Submitting CBI. Do not submit this information to EPA though
regulations.gov or e-mail. Clearly mark all of the information that you
claim to be CBI. For CBI information on computer discs mailed to EPA,
mark the surface of the disc as CBI. Also identify electronically the
specific information contained in the disc or that you claim is CBI. In
addition to one complete version of the specific information claimed as
CBI, you must submit a copy that does not contain the information
claimed as CBI for inclusion in the public document. Information so
marked will not be disclosed except in accordance with procedures set
forth in 40 CFR Part 2.
It is important to note that EPA's policy is that public input,
whether submitted electronically or in paper, will be made available
for public viewing in EPA's electronic public docket as EPA receives
them and without change, unless the input contains copyrighted
material, CBI, or other information whose disclosure is restricted by
statute. When EPA identifies any input containing copyrighted material,
EPA will provide a reference to that material in the version of the
document that is placed in EPA's electronic public docket. The entire
printed submittal, including the copyrighted material, will be
available in the public docket.
Documents submitted on computer disks that are mailed or delivered
to the docket will be transferred to EPA's electronic public docket.
Input that is mailed or delivered to the Docket will be scanned and
placed in EPA's electronic public docket. Where practical, physical
objects will be photographed, and the photograph will be placed in
EPA's electronic public docket along with a brief description written
by the docket staff.
B. How and to whom do I submit input?
You may submit input electronically, by mail, through hand
delivery/courier, or in person by attending one of the 5 listening
sessions. To ensure proper receipt by EPA, identify the appropriate
docket identification number in the subject line on the first page of
your input. Please ensure that your input is submitted within the
specified input period.
1. Electronically. If you submit electronic input as prescribed
below, EPA recommends that you include your name, mailing address, and
an e-mail address or other contact information in the body of your
input. Also include this contact information on the outside of any disk
or CD-ROM you submit, and in any cover letter accompanying the disk or
CD-ROM. This ensures that you can be identified as the submitter of the
input and allows EPA to contact you in case EPA cannot read your
submittal due to technical difficulties or needs further information on
the substance of your input. EPA's policy is that EPA will not edit
your input, and any identifying or contact information provided in the
body of the text will be included as part of the input that is placed
in the official public docket, and made available in EPA's electronic
public docket. If EPA cannot read your submittal due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your input.
[[Page 30397]]
i. EPA Dockets. Your use of EPA's electronic public docket to
provide input to EPA electronically is EPA's preferred method for
receiving input. Go directly to EPA Dockets at http://www.epa.gov/
edocket, and follow the online instructions for submitting input. Once
in the system, select ``search'', and then key in Docket ID No. EPA-HQ-
OW-2010-0464. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it.
ii. E-mail. Input may be sent by electronic mail (e-mail) to ow-
docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2010-0464. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail directly to the
Docket without going through EPA's electronic public docket, EPA's e-
mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the submittal that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD-ROM. You may submit input on a disk or CD-ROM that
you mail to the mailing address identified in this section. These
electronic submissions will be accepted in Microsoft Word or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send the original and three copies of your input to:
Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No.
EPA-HQ-OW-2010-0464.
3. By Hand Delivery or Courier. Deliver your input to: Public
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue,
NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2010-0464.
Such deliveries are only accepted during the Docket's normal hours of
operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays).
II. Background
In order to help the public prepare for the listening sessions, the
following background information is provided.
Wastewater collection systems collect domestic sewage and other
wastewater from homes and other buildings and convey it to wastewater
sewage treatment plants for proper treatment and disposal. The
collection and treatment of municipal sewage and wastewater is vital to
the public health in our cities and towns.
The efficiency of treatment at a wastewater treatment plant depends
strongly on the performance of the collection system. When the
structural integrity of a sanitary sewer collection system
deteriorates, high volumes of infiltration (including rainfall-induced
infiltration) and inflow can enter the sewer system. High levels of
inflow and infiltration (I/I) increase the hydraulic load on treatment
plants, which can reduce treatment efficiency, lead to bypassing a
portion of the treatment process, or in extreme situations make
biological treatment facilities inoperable (e.g., wash out the
biological organisms that treat the waste).
In the United States, municipalities historically have used two
major types of sewer systems. One type, combined sewers, is designed to
collect both sanitary sewage and storm water runoff in a single-pipe
system. Sewer builders designed this type of sewer system to provide
the primary means of surface drainage and drain precipitation flows
away from streets, roofs, and other impervious surfaces. State and
local authorities generally have not allowed the construction of new
combined sewers since the first half of the 20th century. The other
major type of domestic sewer design is sanitary sewers (also known as
separate sanitary sewers). Sanitary sewers are not installed to collect
large amounts of runoff from precipitation events or provide widespread
drainage, although they typically are built with some allowance for
higher flows that occur during storm events for handling minor and non-
excessive amounts of I/I that enter the system.
SSOs, which are releases of raw sewage, can result when there is a
failure in a sanitary sewer collection system. EPA generally uses the
term SSO to describe releases of sewage that result in a discharge to
waters of the United States, as well as releases that do not result in
a discharge to U.S. waters, including sewage backups into buildings. A
number of factors can cause or contribute to an SSO, including high
levels of I/I; blockages caused by roots, grease, sediment or other
materials; structural, mechanical or electrical failure; and third
party actions or activities.
Municipal sanitary sewer collection systems are an extensive,
valuable, and complex part of the nation's infrastructure. The
collection system of a single large municipality can include thousands
of miles of pipe and represent an investment worth billions of dollars.
The underlying challenges affecting the performance of collection
systems are influenced by a number of factors including the following:
Much of the nation's sanitary sewer infrastructure is old;
some parts of this infrastructure date back over 100 years. Over the
time period associated with building these systems, a wide variety of
materials, design and installation practices, and maintenance/repair
procedures have been used, many of which are inferior to those
available today;
Infrastructure has deteriorated with time and continues to
age;
Investment in infrastructure maintenance and repair has
often been inadequate;
The location of problems (e.g., roots, debris) and other
variables may continually change throughout a system;
Systems may fail to provide capacity to accommodate
increased sewage delivery and treatment demand from increasing
populations; and
Institutional arrangements relating to the operation of
sewers may present a barrier to effective operation and maintenance of
sewer systems. Almost all building laterals in a municipal system are
privately owned. In many municipal systems, a high percentage of
collector sewers are owned by private entities or municipal entities
other than the entity operating the major interceptor sewers.
The proper operation and maintenance of collection system assets is
critical to minimizing the frequency and volume of SSOs. Municipalities
need to manage their assets effectively and ensure adequate and
sustainable funding to support appropriate investments.
The main concern regarding raw sewage releases associated with SSOs
is typically pathogens, including bacteria, viruses, and protozoa. SSOs
can contain other pollutants, including nutrients, toxics from
industrial, commercial and residential sources, and wastewater solids
and debris. SSOs are of special concern to public health because they
may expose citizens to bacteria, viruses, intestinal parasites, and
other microorganisms that can cause serious illness such as
gastroenteritis, hepatitis, cryptosporidiosis, and giardiasis.
Sensitive populations, children, the elderly and those with weakened
immune systems, can be at a higher risk of illness from exposure to
sewage from SSOs.
The discharge of untreated sewage in SSOs can contaminate waters,
in some cases causing water quality problems and threats to public
health. SSOs may also cause raw sewage to flow into basements, parks,
recreational streams,
[[Page 30398]]
beaches, on city streets and backyards, and other areas where people
are in close contact with the overflow. The public can be exposed to
raw sewage from SSOs through street flooding, recreational contact such
as swimming and fishing, drinking contaminated water and collection
system back-ups into homes. The threat to public health and the
environment posed by SSOs is not necessarily limited to large volume or
extended-duration overflows. Some of the greatest threats from SSOs
stem from viruses and pathogens which can present a public health
threat even in small volume, intermittent overflows.
Statutory and Regulatory Overview
SSOs that reach waters of the United States are point source
discharges and, like other point source discharges, are generally
prohibited unless authorized by an NPDES permit. Sanitary sewers are
part of the treatment works under the Clean Water Act and discharges
from sanitary sewers have historically been viewed as required to
achieve secondary treatment in order to be eligible to receive an NPDES
permit. Moreover, SSOs, including those that do not reach waters of the
United States, may be indicative of improper operation and maintenance
of the sewer system, and thus may violate other NPDES permit
conditions. The NPDES regulations establish standard permit conditions
which must be included in all NPDES permits, as well as additional
standard permit conditions to be included in all NPDES permits for
publicly owned treatment works (POTWs) (see 40 CFR 122.41 and 122.42).
Standard permit conditions in a permit for a POTW apply to all portions
of the collection system for which the permittee has ownership or has
operational control. Standard permit conditions that have particular
application to SSOs and municipal sanitary sewer collection systems
include provisions that address a duty to mitigate (Sec. 122.41(d));
proper operation and maintenance (Sec. 122.41(e)); noncompliance
reporting (Sec. 122.41(l)(6) and (7)); recordkeeping (Sec.
122.41(j)(2))
Previous Activities To Address SSO Requirements
In 1994, a number of municipalities asked EPA to establish a
Federal Advisory Committee (FAC) of key stakeholders to make
recommendations on how the NPDES program should address SSOs. This
request came soon after EPA had published the Combined Sewer Overflow
Control Policy in 1994, which was designed to provide greater national
clarity and consistency in the way NPDES requirements apply to combined
sewer overflows (CSOs). In part, the municipalities indicated a desire
for greater national clarity and consistency in the way NPDES
requirements apply to SSOs. The municipalities indicated that they
believed that eliminating all SSO discharges was technically infeasible
and, as a result, municipalities tasked with the responsibility of
operating these systems could not comply with an absolute prohibition
on SSOs. The municipalities suggested a need for a workable regulatory
framework which allowed EPA and NPDES authorities to define compliance
endpoints in a manner that was consistent with engineering realities
and the health and environmental risks of SSOs.
EPA then convened a national ``SSO policy dialogue'' among a
balanced group of representatives from key stakeholder organizations.
EPA asked the individual stakeholders to provide input on how best to
meet the SSO policy challenge. In 1995, EPA chartered an Urban Wet
Weather Flows Federal Advisory Committee (FAC) with the goal of
developing specific recommendations addressing cross-cutting wet
weather issues and to improve the effectiveness of the Agency's efforts
to address wet weather pollutant sources under the NPDES program. The
Urban Wet Weather Flows Federal Advisory Committee reconvened the SSO
policy dialogue group as its SSO Subcommittee.
The SSO Subcommittee met twelve times to develop a draft paper and
on October 20, 1999, with unanimous support from the members, completed
a framework to address SSOs. In the draft paper the Subcommittee
supported basic principles with the following suggested NPDES permit
requirements:
(1) Capacity, management, operation and maintenance (CMOM) programs
for municipal sanitary sewer collection systems;
(2) A prohibition on SSOs, which includes a framework for raising a
defense for unavoidable discharges;
(3) Reporting, public notification, and recordkeeping requirements
for municipal sanitary sewer collection systems and SSOs; and
(4) The interim use of remote treatment facilities (or peak excess
flow treatment facilities).
In addition, the Subcommittee unanimously supported a set of
principles for municipal satellite collection systems and watershed
management, although members did not develop detailed language
addressing these topics.
EPA prepared a Notice of Proposed Rulemaking (NPRM) to reflect the
work achieved by the FAC. The NPRM was never formally released to the
public or sent to the Federal Register for publication, but instead was
withdrawn in January 2001 for further review. The draft NPRM would have
proposed NPDES standard permit conditions for municipal sanitary sewer
collection systems that were aimed at providing a more efficient
approach to controlling SSOs through better management, increased
public notice, and a focus on system planning.
In August 2004 the Agency presented to Congress the ``Report to
Congress: Impacts and Control of CSOs and SSOs''. The report found that
CSOs and SSOs can have impacts on human health and the environment at
the local watershed level. The report identified a broad range of
technologies available to municipalities to control the impacts of CSOs
and SSOs, documented the extent of the problem, and provided a baseline
for future policy actions. In the Report to Congress, EPA estimated
that between 23,000 and 75,000 SSOs occur each year in the United
States, resulting in releases of between 3 billion and 10 billion
gallons of untreated wastewater.
Previous Activities To Address Peak Flow Requirements
One standard permit condition in the NPDES regulations is the
bypass provision at 40 CFR 122.41(m). The provision defines bypass to
mean the ``intentional diversion of waste streams from any portion of a
treatment facility.'' The regulation prohibits bypasses except where
necessary for essential maintenance to assure efficient operation and
where effluent limitations are not exceeded. For all other bypasses,
the Director of the NPDES program may take enforcement action against a
permittee for a bypass, unless:
(A) The bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage;
(B) There were no feasible alternatives to the bypass, such as the
use of auxiliary treatment facilities, retention of untreated wastes,
or maintenance during normal periods of equipment downtime; and
(C) The permittee submitted the notices required by the regulation.
The bypass regulation provides that the Director of the NPDES
authority may approve an anticipated bypass, after considering its
adverse effects, if the Director determines that the bypass will meet
the criteria identified in the regulation and listed above. Approval of
an anticipated bypass does not ``authorize'' the bypass, rather an
[[Page 30399]]
approval of an anticipated bypass describes the circumstances in which
the NPDES authority will not take an enforcement action against the
permittee for a prohibited bypass. The bypass provision was promulgated
in 1979, and has remained in effect since that time.
On November 7, 2003, in response to requests from many
stakeholders, EPA requested public comment on a draft policy to address
the issue of NPDES requirements for discharges from POTWs serving
separate sanitary sewers where peak wet weather flow is routed around
biological treatment units and then blended with the effluent from the
biological units prior to discharge. Under the November 7, 2003,
approach, a wet weather diversion around biological treatment units
that was blended with the wastewater from the biological units prior to
discharge would not have been considered to constitute a prohibited
bypass if certain criteria were met.
EPA received significant public comment on the 2003 document,
including over 98,000 comments opposing adoption of such a policy due
to concerns about potential human health risks of diverting a portion
of the flow around secondary treatment units during wet weather events.
EPA also received a letter signed by 73 members of Congress asking that
EPA not move forward with finalizing the policy. On May 19, 2005, EPA
indicated that, after consideration of the comments, the Agency did not
intend to finalize the 2003 proposal. On July 26, 2005, Congress
enacted the FY 2006 Department of the Interior, Environment, and
Related Agencies Appropriations Act (Pub. L. 109-54). Section 203 of
this Act provides that none of the funds made available in the Act
could be used to finalize, implement or enforce the November 7, 2003,
proposed blending policy.
In October 2005, the Natural Resources Defense Council (NRDC) and
the National Association of Clean Water Agencies (NACWA) provided EPA
with their joint proposal recommending further action that the Agency
should take regarding peak flows. The NRDC/NACWA recommended approach
includes an interpretation of the bypass regulation that is
significantly different from the November 7, 2003, document in that it
would clarify that the bypass provision applies to wet weather
diversions at POTW treatment plants serving separate sanitary sewers
including those in which the diverted stream is blended with the
secondary effluent before discharge.
On December 22, 2005, EPA requested public comment on a draft Peak
Flows Policy that reflects the approach of the NRDC/NACWA
recommendation. The 2005 draft Policy explains how the NPDES authority
should determine whether requests for approval of anticipated peak wet
weather flow diversions at POTW treatment plants serving separate
sanitary sewer collection systems, which are recombined with flow from
the secondary treatment units prior to discharge, should be approved or
denied under 40 CFR 122.41(m)(4)(ii). The approach in the draft Policy
is based on language in the bypass regulation that provides that if the
NPDES authority determines that the criteria of Sec. 122.41(m)(4)(i)
will be met, the NPDES authority may approve an anticipated bypass of
peak wet weather flow diversions around secondary treatment units. EPA
has not, to date, finalized the draft Policy.
III. Input on Issues That EPA Is Considering
EPA is considering whether to develop a more specific broad-based
regulatory framework for sanitary sewer collection systems under the
NPDES program. The Agency is considering proposing standard permit
conditions for inclusion in permits for publicly owned treatment works
(POTWs) and municipal sanitary sewer collection systems. The permit
conditions EPA is considering would address the following areas:
reporting, overflow right-to-know, notice of public health officials
and recordkeeping requirements for SSOs, capacity assurance,
management, operation and maintenance requirements for municipal
sanitary sewer collection systems; and possible regulatory requirements
or provisions for SSOs that are caused by exceptional circumstances.
EPA is also seeking the views of the interested public on the
implications for peak excess flow treatment facilities in the municipal
sanitary collection system and the treatment of peak flows that reach
POTWs. The Agency is considering clarifying and modifying the
regulatory framework for applying NPDES permit conditions, including
applicable standard permit conditions, to municipal satellite
collection systems. Municipal satellite collection systems are sewer
systems owned or operated by a municipality that conveys wastewater to
a POTW operated by a different municipality.
In addition, the Agency is considering clarifying when municipal
satellite collection systems must obtain a permit.
With today's notice of the scheduled public meetings, EPA is asking
for public input on the following preliminary considerations that will
inform EPA's thinking on the issues that will be the subject of these
meetings.
1. Should EPA propose to clarify its standard permit conditions for SSO
reporting, recordkeeping and public notification?
Current requirements require all NPDES permits to contain the
standard permit conditions at 40 CFR 122.41(l)(6) and (7) for
noncompliance reporting. When incorporated into a permit, these
standard conditions require permittees to report any instance of
noncompliance to the NPDES authority. SSOs that result in discharges to
waters of the United States or result from improper operation and
maintenance of the collection system constitute noncompliance, which
the permittee must report under these provisions. The existing
requirements in 40 CFR 122.41(l)(6) and (7) require the permittee to
report orally to the NPDES authority within 24 hours of becoming aware
of the event if the noncompliance may endanger health or the
environment. A written submission must follow within 5 days of the time
the permittee becomes aware of the noncompliance, unless the Director
waives the written report. The standard permit condition at 40 CFR
122.41(l)(7) requires the permittee to report all other instances of
noncompliance in writing at the time discharge monitoring reports are
submitted.
At a minimum, all NPDES permits must contain the standard permit
condition at 40 CFR 122.41(j)(2) for recordkeeping. When incorporated
into a permit, this provision, among other things, requires permittees
to retain copies of all reports required by the permit for a period of
at least 3 years from the date of the report. This requirement includes
retaining records of the required noncompliance reports of SSO events
that result in discharges to waters of the U.S. Additional reporting
and recordkeeping requirements may have been included in a permit on a
case-by-case basis.
The existing NPDES standard permit conditions do not establish
monitoring or public notification requirements for SSOs.
The Agency is considering proposing to clarify and expand standard
permit requirements to establish a comprehensive framework for
monitoring, reporting, public notification, and recordkeeping for SSOs
from municipal sanitary sewer collection systems. EPA requests input on
the following types of questions:
[[Page 30400]]
Is there a need for establishing this framework and, if
so, which SSO events should be subject to reporting, recordkeeping and
public notice requirements?
Should EPA clarify that such requirements apply to SSOs
that do not result in a discharge to waters of the United States,
including sewage backups into buildings?
Which SSO events should be reported immediately?
What criteria should be used to determine if notice of
public health officials is appropriate for an SSO event?
Should EPA establish minimum requirements for monitoring
SSOs to alert the municipal operator in a timely manner? If so, what
are appropriate methods, technologies or management programs for
monitoring SSOs?
Should EPA require immediate notification to the public of
SSOs? If so, for which SSOs and how and when should the public be
notified?
The potential changes are authorized by, and would implement, CWA
sections 304(i), 308 and 402(a).
2. Should EPA propose to develop a standard permit condition with
requirements for capacity, management, operations and maintenance
programs based on asset management principles?
Under existing regulations at 40 CFR 122.41, all NPDES permits must
contain two standard conditions addressing operation and maintenance:
proper operation and maintenance requirements at 40 CFR 122.41(e) and
duty to mitigate at 40 CFR 122.41(d). These provisions require the
permittee to properly operate and maintain its collection system as
well as take all reasonable steps to minimize or prevent SSO discharges
to waters of the United States that have a reasonable likelihood of
adversely affecting human health or the environment. In addition, these
provisions, along with a prohibition on SSOs to waters of the U.S., are
the basis for requiring permittees to provide adequate sanitary sewer
collection system capacity.
EPA is considering proposing to add a new standard condition that
would clarify EPA's expectations for appropriate capacity, management,
operation and maintenance (CMOM) program requirements. The major
components of such a CMOM standard permit condition could include
general conditions; 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 concept of CMOM also has a significant nexus with Asset
Management approaches, which are becoming an industry standard for
infrastructure management. The CMOM may present an appropriate
framework or context for a possible permit condition.
EPA requests information on successful programs that have been
implemented to manage, operate, and maintain their systems. In
addition, EPA requests input on:
What is the need for a CMOM standard permit condition?
What are the appropriate components and core attributes of
a CMOM standard permit condition and what is their nexus with Asset
Management practices?
If adopted, how should a CMOM provision be tailored for
small municipalities?
Would integrating system evaluation and capacity assurance
planning efforts for the collection system with planning efforts to
address peak flow issues at the treatment plant encourage more holistic
approaches?
3. Should EPA propose to require permit coverage for municipal
satellite collection systems?
Many municipal sanitary sewer collection systems are not entirely
owned or operated by a single municipal entity. A municipal entity that
operates a treatment plant may be responsible for conveying and/or
treating wastewater from sewers of other municipalities. The term
``municipal satellite collection system'' refers to a collection system
that is owned or operated by a municipality other than the municipality
that provides treatment for wastewater added throughout the system. The
term ``regional collection system operator'' refers to a collection
system operator who is responsible for the treatment plant(s) that
receives wastewater from municipal satellite collection systems.
Regional municipal collection system operators who provide wastewater
treatment may only operate a relatively small portion of the collection
system, such as major interceptors or collector sewers in certain
areas. In extreme cases, the regional authority or district (and
traditional NPDES permit holder) does not own or operate any part of
the collection system, only the treatment plant.
Poorly performing municipal satellite collection systems can be
major contributors to peak flow problems in regional collection
systems. In addition, investment in maintenance, repair and enhanced
capacity of municipal satellite collection systems has often lagged
behind that for regional municipal collection systems. This lag in
investment is generally due to institutional issues such as lack of
responsibility by municipal satellite collection system operators for
problems downstream in the collection system or at a treatment plant,
even where the municipal satellite collection system may have been a
significant source of capacity problems downstream. In addition, direct
oversight by EPA and NPDES States has been limited.
Municipal satellite collection systems can also experience
overflows. The Agency believes it may be important to clarify who is
required to report these events to the NPDES authority and how they
should be reported, in order to protect human health and the
environment.
EPA is considering clarification of the framework for regulating
municipal satellite collection systems under the NPDES permit program.
EPA welcomes input on the questions whether (and which) municipal
satellite collection system should be required to obtain an NPDES
permit, and whether EPA should require these systems to meet standard
permit conditions related to reporting, public notification, and
recordkeeping; CMOM requirements; and prohibition along with other
standard permit conditions throughout municipal collection systems
including satellite portions.
4. What is the appropriate role of NPDES permits in addressing
unauthorized SSOS that are caused by exceptional circumstances?
Even municipal collection systems that are operated in an exemplary
fashion may experience unauthorized discharges under exceptional
circumstances. EPA requests input on the appropriate role of NPDES
permits in addressing such exceptional events. The current NPDES
standard permit conditions provide two provisions, the bypass provision
at 40 CFR 122.41(m) and the upset provision at 40 CFR 122.41(n), that
were designed to address violations that occur under exceptional
circumstances. The bypass provision generally prohibits bypasses, but
also provides criteria for when the NPDES authority may excuse a bypass
by exercising enforcement discretion and not bring an enforcement
action for a violation. The upset provision allows a permittee to raise
an affirmative defense to a violation of a technology-based effluent
limitation. The Agency is considering developing a standard permit
condition that would provide a
[[Page 30401]]
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. The
Agency requests input on the appropriate criteria that should be used
in such a provision.
5. How should EPA address peak flows at POTW treatment plants?
The Agency is considering the direction to take to resolve several
long standing issues that are the subject of the December 22, 2005
draft Peak Flows Policy. This draft Policy attempted to clarify EPA's
interpretation that the existing ``bypass'' provision of the NPDES
regulations applies to peak wet weather diversions at POTW treatment
plants that are recombined with the flows from the secondary treatment
units prior to discharge. The Agency is considering whether to embrace
the approach explained in the draft Policy and/or to propose to address
these issues in any SSO rulemaking. Addressing the issues in the
context of possible SSO rulemaking would allow for a holistic and
integrated approach to reducing SSOs while at the same time addressing
peak flows at the POTW treatment plant. In addition, EPA would like to
receive public input on the limited number of cases where infrequent
discharges from wet weather treatment facilities located in sanitary
sewer collection systems have been authorized or approved and issued a
permit by an NPDES authority. The Agency would like to receive feedback
from the public on the need for requirements for these facilities and
any technologies that are utilized in the sanitary sewer system to
treat discharges.
6. What are the costs and benefits of CMOM programs and asset
management of sanitary sewers?
EPA is soliciting input from the general public concerning the
impact of the proposed rule in terms of costs on covered entities and
benefits of proposed rule requirements. Specifically, EPA is seeking
information on asset management approaches, integrated utility
planning, or other mechanisms that are used to ensure the
sustainability and cost effectiveness of investments and enhance public
health and environmental benefits. The Agency is seeking input on the
potential incorporation of these techniques or others that are similar
in any proposed modifications to the NPDES regulations.
In addition, examples of other information that is needed from the
public include: the number of municipalities currently implementing
CMOM and the components of their CMOM programs; information on costs
incurred by basement backups as well as the frequency that they occur;
and the number and location of municipal satellite systems and the cost
effectiveness of extending permitting requirements to them.
7. Are there other considerations?
EPA requests input on other considerations, such as environmental
justice issues associated with this Notice. In particular, EPA requests
input on environmental justice considerations associated with
establishing requirements for municipal satellite collection systems.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: May 26, 2010.
Peter S. Silva,
Assistant Administrator, Office of Water.
[FR Doc. 2010-13098 Filed 5-28-10; 8:45 am]
BILLING CODE 6560-50-P