United States
Environmental Protection Office of Water EPA 830-B-94-001
Agency (4201) April! 994
&EPA COMBINED SEWER OVERFLOW
(CSO) CONTROL POLICY
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ENVIRONMENTAL PROTECTION AGENCY
40 £FR Part 122
[FRL - ]
Combined Sewer Overflow (CSO) Control Policy
AGENCY; Environmental Protection Agency (EPA) ;
ACTION; Final Policy
SUMMARY; EPA has issued a national policy statement entitled
"Combined Sewer *bverflow (CSO) Control Policy." This policy
establishes a consistent national approach for controlling
discharges from CSOs to the Nation's waters through the National
Pollutant Discharge Elimination System (NPDES) permit program.
FOR FURTHER INFORMATION CONTACT; Jeffrey Lape, Office of
Wastewater Enforcement and Compliance, MC-4201, U.S.
Environmental Protection Agency, 401 M Street S.W., Washington,
D.Cl 20460, (202) 260-7361.
SUPPLEMENTARY INFORMATION; The main purposes of the CSO Control
Policy are to elaborate on the Environmental Protection Agency's
(EPA's) National (CSO) Control Strategy published on September 8,.
1989, at 54 FR 37370, and to expedite compliance with the
requirements of the Clean Water Act (CWA). While implementation
of the 1989 Strategy has resulted in progress toward controlling
CSOs, significant public health and water quality risks remain.
This Policy provides guidance to permittees with CSOs, NPDES
authorities and State water quality standards authorities on
coordinating the planning, selection, and implementation of CSO
controls that meet the requirements of the CWA and allow for
public involvement during the decision-making process.
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Contained in the Policy are provisions for developing
appropriate, site-specific NPDES permit requirements for all
combined sewer systems (CSS) that overflow as a result of wet
weather events. For example, the Policy lays out two alternative
approaches ~ the "demonstration" and the "presumption"
approaches — that provide communities with targets for CSO
controls that achieve compliance with the Act, particularly
protection of water quality and designated uses. The Policy also
includes enforcement initiatives to require the immediate
elimination of overflows that occur during dry weather and to
ensure that the remaining CWA requirements are complied with as
soon as practicable.
The permitting provisions of the Policy were developed as a
result of extensive input received from key stakeholders during a
negotiated policy dialogue. The CSO stakeholders included
representatives from States, environmental groups, municipal
organizations and others. The negotiated dialogue was conducted
during the Summer of 1992 by the Office of Water and the Office
of Water's Management Advisory Group. The enforcement
initiatives, including one which is underway to address CSOs
during dry weather, were developed by EPA's Office of Water and
Office of Enforcement.
EPA issued a Notice of Availability on the draft CSO Control
Policy on January 19, 1993, (58 FR 4994) and requested comments
on the draft Policy by March 22, 1993. Approximately forty-one
sets of written comments were submitted by a variety of interest
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groups including cities and municipal groups, environmental
groups, States, professional organizations and others. All
comments were considered as EPA prepared the Fineil Policy. The
public comments were largely supportive of the draft Policy. EPA
received broad endorsement of and support for the key principles
and provisions from most commenters.- Thus, this final Policy
does not include significant changes to the major- provisions of
the draft Policy, but rather, it includes clarification and
better explanation of the elements of the Policy to address
several of the questions that were raised in the comments.
Persons wishing to obtain copies of the public comments or EPA's
summary analysis of the comments may write or call the EPA
contact person.
The CSO Policy represents a comprehensive national strategy
to ensure that municipalities, permitting authorities, water
quality standards authorities and the public engage in a
comprehensive and coordinated planning effort to achieve cost
effective CSO controls that ultimately meet appropriate health'
and environmental objectives. The Policy recognizes the site-
specific nature of CSOs and their impacts and provides the
necessary flexibility to tailor controls to local situations.
Major elements of the Policy ensure that CSO controls are cost
effective and meet the objectives and requirements of the CWA.
The major provisions of the Policy are as follows.
CSO permittees should immediately undertake a process to
accurately characterize their CSS and CSO discharges, demonstrate
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implementation of minimum technology-based controls identified in
the Policy, and develop long-term CSO control plans which
evaluate alternatives for attaining compliance with the CWA,
including compliance with water quality standards and protection
of designated uses. Once the long-term CSO control plans are
completed, permittees will be responsible to implement the plans'
recommendations as soon as practicable.
State water* quality standards authorities will be involved ^
in the long-term CSO control planning effort as well. The water
quality standards authorities will help ensure that development
of the CSO permittees' long-term CSO control plans are
coordinated with the review and possible revision of water
quality standards on CSO-impacted waters.
NPDES authorities will issue/reissue or modify permits, as
appropriate, to require compliance with the technology-based and
water quality-based requirements of the CWA. After completion of
the long-term CSO control plan, NPDES permits will be reissued
or modified to incorporate the additional requirements specified
in the Policy, such as performance standards for the selected
controls based on average design conditions, a post-construction
water quality assessment program, monitoring for compliance with
water quality standards, and a reopener clause authorizing the
NPDES authority to reopen and modify the permit if it is
determined that the CSO controls fail to meet water quality
standards or protect designated uses.
NPDES authorities should commence enforcement actions
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against permittees that have CWA violations due to CSO discharges
during dry weather. In addition, NPDES authorities should ensure
the implementation of the minimum technology-based controls and
incorporate a schedule into an appropriate enforceable mechanism,
with appropriate milestone dates, to implement the required long-
term CSO control plan. Schedules for implementation of the long-
term CSO control plan may be phased based on the relative
importance of adverse impacts upon water quality standards and
designated uses, and on a permittee's financial capability.
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EPA is developing extensive guidance to support the Policy
and will announce the availability of the guidances and other
outreach efforts through various means, as they become available.
Fpr example, EPA is preparing guidance on the nine minimum
cbntrols, characterization and monitoring of CSOs, development of
long-term CSO control plans, and financial capability.
Permittees will be expected to comply with any existing CSO-
related requirements in NPDES permits, consent decrees or court
orders unless revised to be consistent with this Policy.
The policy is organized as follows:
I. INTRODUCTION
A. Purpose and Principles
B. Application of Policy
C. Effect on Current CSO Control Efforts
D. Small System Considerations
E. implementation Responsibilities
F. Policy Development
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II. EPA OBJECTIVES FOR PERMITTEES
A. Overview
B. implementation of the Nine-Minimum Controls
C. Long-Term CSO Control Plan/Controls
1. characterization, Monitoring and Modeling of
Combined Sewer Systems
2. Public Participation
3. consideration of Sensitive Areas
4. Evaluation of Alternatives
5. cost/Performance Consideration
6. Operational Plan
7. Maximizing Treatment at the POTW Treatment
Plant
8. Implementation Schedule
9. Post-Construction Compliance Monitoring Program
HI. COORDINATION WITH STATE WATER QUALITY STANDARDS
A. overview
B. Water Quality Standards Reviews
IV. EXPECTATIONS FOR PERMITTING AUTHORITIES
A. overview
B. NPDES Permit Requirements
1.Phase I Permits - Requirements for Demonstration
of Nine Minimum Controls and Development of
the Long-Term CSO Control Plan
2. Phase II Permits - Requirements for
implementation of a Long-Term CSO Control Plan
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1 3. Phasing Considerations
! V. ENFORCEMENT AND COMPLIANCE
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A. Overview
B. Enforcement of CSO Dry Weather Discharge Prohibition
C. Enforcement of Wet Weather CSO Requirements
1. Enforcement for Compliance with Phase I Permits
2. Enforcement for Compliance with
Phase II Permits
D. Penalties
List of Subjects in 40 CFR Part 122: Water Pollution Control
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
f
.w
Carol M. Browner
Administrator
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COMBINED SEWER OVERFLOW (CSO) CONTROL POLICY
I.INTRODUCTION
A.Purpose and Principles
The main purposes of this Policy are to elaborate on EPA's
National Combined Sewer Overflow (CSO) Control Strategy published
on September 8, 1989 at 54 FR 37370 (1989 Strategy) and to
expedite compliance with the requirements of the Clean Water Act
(CWA). While implementation of the 1989 Strategy has resulted in
progress toward controlling CSOs, significant water quality risks
remain.
A combined sewer system (CSS) is a wastewater collection
system owned by a State or municipality (as defined by Section
502(4) of the CWA) which conveys sanitary wastewaters (domestic,
commercial and industrial wastewaters) and storm water through a
single-pipe system to a Publicly Owned Treatment Works (POTW)
Treatment Plant (as defined in 40 CFR 403.3(p)). A CSO is the
discharge from a CSS at a point prior to the POTW Treatment
Plant. CSOs are point sources subject to NPDES permit
requirements including.both technology-based and water quality-
based requirements of the CWA. CSOs are not subject to secondary
treatment requirements applicable to POTWs.
CSOs consist of mixtures of domestic sewage, industrial and
commercial wastewaters, and storm water runoff. CSOs often
contain high levels of suspended solids, pathogenic
microorganisms, toxic pollutants, floatables, nutrients, oxygen-
demanding organic compounds, oil and grease, and other-
pollutants. CSOs can cause exceedances of water quality
standards (WQS). Such exceedances may pose risks to. human
health, threaten aquatic life and its habitat, and impair the use
and enjoyment of the Nation's waterways.
This Policy is intended to provide guidance to permittees
with CSOs, National Pollutant Discharge Elimination System
(NPDES) permitting authorities, State water quality standards
authorities and enforcement authorities. The purpose of the
Policy is to coordinate the planning, selection, design and
implementation of CSO management practices and controls to meet
the requirements of the CWA and to involve the public fully
during the decision making process.
This Policy reiterates the objectives of the 1989 Strategy:
1. To ensure that if CSOs occur, they are only as a result
of wet weather;
2 To bring all wet weather CSO discharge points into
compliance with the technology-based and water quality-based
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requirements of the CWA; and
3. To minimize water quality, aquatic biota, and human
health impacts from CSOs.
: This CSO Control Policy represents a comprehensive national
strategy to ensure that municipalities, permitting authorities,
water quality standards authorities and the public engage in a
comprehensive and coordinated planning effort to achieve cost-
effective CSO controls that ultimately meet appropriate health
and environmental objectives and requirements. The Policy
recpgnizes the site-specific nature of CSOs and their impacts and
prqvides the necessary flexibility to tailor controls to local
situations. Four key principles of the Policy ensure that CSO
controls are cost-effective and meet the objectives of the CWA.
The key principles are:
1) " providing clear levels of control that would be
[ presumed to meet appropriate health and environmental
; objectives;
2) providing sufficient flexibility to municipalities,
especially financially disadvantaged communities, to
consider the site-specific nature of CSOs and to
; determine the most cost-effective means of reducing
pollutants and meeting CWA objectives and requirements;
3) allowing a phased approach to implementation of CSO
controls considering a community's financial
i capability; and
4) review and revision, as appropriate, of water quality
standards and their implementation procedures when
developing CSO control plans to reflect the site-
specific wet weather impacts of CSOs.
, This Policy is being issued in support of EPA's regulations
and policy initiatives. This Policy is Agency guidance only and
does not establish or affect legal rights or obligations. It
does not establish a binding norm and is not finally
determinative of the issues addressed. Agency decisions in any
particular case will be made by applying the law and regulations
on the basis of specific facts when permits are issued. The
Administration has recommended that the 1994 amendments to the
CWA endorse this final Policy.
B. Application of Policy
The permitting provisions of this Policy apply to all CSSs
that overflow as a result of storm water flow, including snow
melt runoff (40 CFR Section 122.26(b)(13)). Discharges from CSSs
during dry weather are prohibited by the CWA. Accordingly, the
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permitting provisions of this Policy do not apply to CSOs during
dry weather. Dry weather flow is the flow in a combined sewer
that results from domestic sewage, groundwater infiltration,
commercial and industrial wastewaters, and any other non-
precipitation related flows (e.g., tidal infiltration). In
addition to the permitting provisions, the Enforcement and
Compliance section of this Policy describes an enforcement
initiative being developed for overflows that occur during dry
weather.
Consistent with the 1989 Strategy, 30 States that submitted
CSO permitting strategies have received EPA approval or, in the
case of one State, conditional approval of its strategy. States
and EPA Regional Offices should review these strategies and
negotiate appropriate revisions to them to implement this Policy.
Permitting authorities are encouraged to evaluate water pollution
control needs on a watershed management basis and coordinate CSO
control efforts with other point and nonpoint source control
activities.
C. Effect on Current CSO Control Efforts
EPA recognizes that extensive work has been done by many
Regions, States, and municipalities to abate CSOs. As such,
portions of this Policy may already have been addressed by
permittees' previous efforts to control CSOs. Therefore,
portions of this Policy may not apply, as determined by the
permitting authority on a case-by-case basis, under the following
circumstances:
1. Any permittee that, on the date of publication of this
final Policy, has completed or substantially completed
construction of CSO control facilities that are designed to
meet WQS and protect designated uses, and where it has been
determined that WQS are being or will be attained, is not
covered by the initial planning and construction provisions
in this Policy; however, the operational plan and post-
construction monitoring provisions continue to apply. If,
after monitoring, it is determined that WQS are not being
attained, the permittee should be required to submit a
revised CSO control plan that, once implemented, will attain
WQS.
2. Any permittee that, on the date of publication of this
final Policy, has substantially developed or is implementing
a CSO control program pursuant to an existing permit or
enforcement order, and such program is considered by the
NPDES permitting authority to be adequate to meet WQS and
protect designated uses and is reasonably equivalent to the
treatment objectives of this Policy, should complete those
facilities without further planning activities otherwise
expected by this Policy. Such programs, however, should be
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reviewed and modified to be consistent with the sensitive
area, financial capability, and post-construction monitoring
provisions of this Policy.
3. Any permittee that has previously constructed CSO
control facilities in an effort to comply with WQS but has
failed to meet such applicable standards or to protect
designated uses due to remaining CSOs may receive
consideration for such efforts in future permits or
enforceable orders for long-term CSO control planning,
design and implementation.
In the case of any ongoing or substantially completed CSO
control effort, the NPDES permit or other enforceable mechanism,
as ;appropriate, should be revised to include all appropriate
permit requirements consistent with Section IV.B. of this Policy.
D. Small System Considerations
The scope of the long-term CSO control plan, including the
characterization, monitoring and modeling, and evaluation of
alternatives portions of this Policy may be difficult for some
small CSSs. At the discretion of the NPDES Authority,
jurisdictions with populations under 75,000 may not need to
complete each of the formal steps outlined in Section II.c. of •
thdjs Policy, but should be required through their permits or
other enforceable mechanisms to comply with the nine minimum
controls (II.B), public participation (II.C.2), and sensitive
areas (II.c.3) portions of this Policy. In addition, the
permittee may propose, to implement any of t'he criteria contained
in jthis Policy for evaluation of alternatives described in
II.;C.4. Following approval of the proposed plan, such
jurisdictions should construct the control projects and propose a
monitoring program sufficient to determine whether WQS are
attained and designated uses are protected.
, In developing long-term CSO control plans based on the
sma!ll system considerations discussed in the preceding paragraph,
permittees are encouraged to discuss the scope of their long-term
CSC- control plan with the WQS authority and the NPDES authority.
These discussions will ensure that the plan includes sufficient
information to enable the permitting authority to identify the
appropriate CSO controls.
E. Implementation Responsibilities
NPDES authorities (authorized States or EPA Regional
Offices, as appropriate) are responsible for implementing this
Policy. It is their responsibility to assure that CSO permittees
develop long-term CSO control plans and that NPDES permits meet
the requirements of the CWA. Further, they are responsible for
coordinating the review of the long-term CSO control plan and the
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development of the permit with the WQS authority to determine if
revisions to the WQS are appropriate. In addition, they should
determine the appropriate vehicle (i.e., permit reissuance,
information request under CWA Section 308 or State equivalent or
enforcement action) to ensure that compliance with the CWA is
achieved as soon as practicable.
Permittees are responsible for documenting the
implementation of the nine minimum controls and developing and
implementing a long-term CSO control plan, as described in this
Policy. EPA recognizes that financial considerations are a major
factor affecting the implementation of CSO controls. For that
reason, this Policy allows consideration of a permittee's
financial capability in connection with the long-term CSO control
planning effort, WQS review, and negotiation of enforceable
schedules. However, each permittee is ultimately responsible for
aggressively pursuing financial arrangements for the
implementation of its long-term CSO control plan. As part of
this effort, communities should apply to their State Revolving
Fund program, or other assistance programs as appropriate, for
financial assistance.
EPA and the States will undertake action to assure that all
permittees with CSSs are subject to a consistent review in the
permit development process, have permit requirements that achieve
compliance with the CWA, and are subject to enforceable schedules
that require the earliest practicable compliance date considering
physical and financial feasibility.
F. Policy Development
This Policy devotes a separate section to each step
involved in developing and implementing CSO controls. This is
not to imply that each function occurs separately. Rather, the
entire process surrounding CSO controls, community planning, WQS
and permit development/revision, enforcement/compliance actions
and public participation must be coordinated to control CSOs
effectively. Permittees and permitting authorities are
encouraged to consider innovative and alternative approaches and
technologies that achieve the objectives of this Policy and the
CWA.
In developing this Policy, EPA has included information on
what responsible parties are expected to accomplish. Subsequent
documents will provide additional guidance on how the objectives
of this Policy should be met. These documents will provide
further guidance on: CSO permit writing, the nine minimum
controls, long-term CSO control plans, financial capability,
sewer system characterization and receiving water monitoring and
modeling, and application of WQS to CSO-impacted waters. For
most CSO control efforts however, sufficient detail has been
included in this Policy to begin immediate implementation of its
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provisions.
II. EPA OBJECTIVES FOR PERMITTEES
A. Overview
Permittees with CSSs that have CSOs should immediately
undertake a process to accurately characterize their sewer
systems, to demonstrate implementation of the nine minimum
controls, and to develop a long-term CSO control plan.
B. Implementation of the Nine Minimum Controls
Permittees with CSOs should submit appropriate documentation
demonstrating implementation of the nine minimum controls,
including any proposed schedules for completing minor
construction activities. The nine minimum controls are:
; 1. proper operation and"regular maintenance programs for
•^ the sewer system and the CSOs;
2. maximum use of the collection system for storage;
3. review and modification of pretreatment requirements to
assure CSO impacts are minimized;
4. maximization of flow to the POTW for treatment;
5. prohibition of CSOs during dry weather;
6. control of solid and floatable materials in CSOs;
7. pollution prevention;
8. public notification to ensure that the public receives
adequate notification of CSO occurrences and CSO impacts;
and
9. monitoring to effectively characterize CSO impacts and
the efficacy of CSO controls. '*
Selection and implementation of actual control measures
should be based on site-specific considerations including the
specific CSS's characteristics discussed under the sewer system
characterization and monitoring portions of this Policy.
Documentation of the nine minimum controls may include operation
and maintenance plans, revised sewer use ordinances for
industrial users, sewer system inspection reports;,
infiltration/inflow studies, pollution prevention programs,
public notification plans, and facility plans for maximizing the
capacities of the existing collection, storage and treatment
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Policy.
enforceable mechanism.
C. Long-Term cso control Plan
designated uses.
This policy identifies «£. -.Jar ^^^^.S^'Su
^rm ^rmCSsorcon?rol'plan as soon aS practicable, but generally
long-term CSO control Pf*" the NPDES permit provision,
iSI^E-lS" a.-ss'is.-s essa „ -
appropriate enforceable mechanism.
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EPA expects each long-term CSO control plan to utilize
appropriate information to address the following minimum
elements. The Plan should also include both fixed-date project
implementation schedules (which may be phased) and a financing
plan to design and construct the project as soon as practicable.
The minimum elements of the long-term CSO control plan are
described below.
1. Characterization, Monitoring, and Modeling of the
Combined Sewer System
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In order to design a CSO control plan adequate to meet
, the requirements of the CWA, a permittee should have a
thorough understanding of its sewer system, the response of
the system to various precipitation events, the
: characteristics of the overflows, and the water quality
impacts that result from CSOs. The permittee should
adequately characterize through monitoring, modeling, and
' other means as appropriate, for a range of storm events, the
response of its sewer system to wet weather events including
the number, location and frequency of CSOs, volume,
concentration and mass of pollutants discharged and the
impacts of the CSOs on the receiving waters and their
designated uses. The permittee may need to consider
information on the contribution and importance of other
pollution sources in order to develop a final plan designed
to meet water quality standards. The purpose of the system
! characterization, monitoring and modeling program initially
is to assist the permittee in developing appropriate
measures to implement the nine minimum controls and, if
I necessary, to support development of the long-term CSO
; control plan. The monitoring and modeling data also will be
used to evaluate the expected effectiveness of both the nine
; minimum controls and, if necessary, the long-term CSO
1 controls, to meet WQS.
; The major elements of a sewer system characterization
are described below.
a. Rainfall Records - The permittee should examine
the complete rainfall record for the geographic area of
its existing CSS using sound statistical procedures and
best available data. The permittee should evaluate
flow variations in the receiving water body to
correlate between CSOs and receiving water conditions.
b. Combined Sewer System Characterization - The
permittee should evaluate the nature and extent of its
sewer system through evaluation of available sewer
', system records, field inspections and other activities
necessary to understand the number, location and
frequency of overflows and their location relative to
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sensitive areas and to pollution sources in the
collection system, such as indirect significant
industrial users.
c CSO Monitoring - The permittee should develop a
comprehensive, representative monitoring program that
the impact of the CSOs on the receiving waters The
monitoring program should include necessary CSO
effluent and ambient in-stream monitoring and, where
appropriate, other monitoring protocols such as
biological assessment, toxicity testing - and sediment
saitmllnci. Monitoring parameters should include, for^
exampS? oxygen demanding pollutants nutrients, toxic
pollutants, sediment contaminants, pathogens,
bacteriological indicators (e.g., Enterococcus
E. Coli), and toxicity. A representative sample of
overflow points can be selected that is sufficient to
allow characterization of CSO discharges and their
water quality impacts and to facilitate evaluation of
control plan alternatives.
d Modeling - Modeling of a sewer system is
recognized as a valuable tool for predicting sewer
system response to various wet weather events and
assessing water quality impacts when evaluating
different control strategies and alternatives. EPA
supports the proper and effective use of models, where
Appropriate, in the evaluation of the nine minimum
controls and the development of ^e long-term CSO
control plan. It is also recognized that there are
many models which may be used to do this. These models
range from simple to complex. Having decided to use a
model, the permittee should base its choice of a model
on the characteristics of its , sewer system the number
and location of overflow points, and the sensitivity of
?he receiving water body to the CSO discharges Use of
models should include appropriate calibration and
verification with field measurements. The
sophistication of the model should relate to the
complexity of the system to be modeled and to the
information needs associated with evaluation of CSO
control options and water quality impacts. EPA
believes that continuous simulation models, using
historical rainfall data, may be the best way to model
sewer systems, CSOs, and their impacts Because of the
iterative nature of modeling sewer systems CSOs and
their impacts, monitoring and modeling efforts are
complementary and should be coordinated.
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2. Public Participation
In developing its long-term CSO control plan, the
permittee will employ a public participation process that
actively involves the affected public in the decision-making
to select the long-term CSO controls. The affected public
includes rate payers, industrial users of the sewer system,
persons who reside downstream from the CSOs, persons who use
and enjoy these downstream waters, and any other interested
persons.
3. Consideration of. Sensitive Areas ]
EPA expects a permittee's long-term CSO control plan to
give the highest priority to controlling overflows to
sensitive areas. Sensitive areas, as determined by the NPDES
authority in coordination with State and Federal agencies,
as appropriate, include designated Outstanding National
Resource Waters, National Marine Sanctuaries, waters with
threatened or endangered species and their habitat, waters
with primary contact recreation, public drinking water
intakes or their designated protection areas, and shellfish
beds. For such areas, the long-term CSO control plan
should:
a. prohibit new or significantly increased overflows;
b. i. eliminate or relocate overflows that discharge
to sensitive areas wherever physically possible
and economically achievable, except where
elimination or relocation would provide less
environmental protection than additional
treatment; or
ii. where elimination or relocation is not
physically possible and economically achievable,
or would provide less environmental protection
than additional treatment, provide the level of
treatment for remaining overflows deemed necessary
to meet WQS for full protection of existing and
designated uses. In any event, the level of
control should not be less than those described in
Evaluation of Alternatives below; and
c. Where elimination or relocation has been proven
not to be physically possible and economically
achievable, permitting authorities should require, for
each subsequent permit term, a reassessment based on
new or improved techniques to eliminate or relocate, or
on changed circumstances that influence economic
achievability.
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4. Evaluation of Alternatives
EPA expects the long-term CSO control plan to consider
a reasonable range of alternatives. The plan should, for
example, evaluate controls that would be necessary to
achieve zero overflow events per year, an average of one to
three,-four to seven, and eight to twelve overflow events
per year. Alternatively, the long-term plan could evaluate
controls that achieve 100% capture, 90% capture, 85%
capture, 80% capture, and 75% capture for treatment. The
long-term control plan should also consider expansion of
POTW secondary and primary capacity in the CSO abatement
alternative analysis. The analysis of alternatives should
be sufficient to make a reasonable assessment of cost and
performance as described in Section II.C.5. Because the
final long-term CSO control plan will become the basis for -
NPDES permit limits and requirements, the selected controls
should be sufficient to meet CWA requirements.
In addition to considering sensitive areas, the long-
term CSO control plan should adopt one of the following
approaches:
a. "Presumption" Approach
A program that meets any of the criteria listed
below would be presumed to provide an adequate level of
control to meet the water quality-based requirements of
the CWA, provided the permitting authority determines
that such presumption is reasonable in light of the
data and analysis conducted in the characterization,
monitoring, and modeling of the system and the
consideration of sensitive areas described above. These
criteria are provided because data and modeling of wet
weather events often do not give a clear picture of the
level of CSO controls necessary to protect WQS.
i. no more than an average of four overflow
events per year, provided that the permitting
authority may allow up to two additional overflow
events per year. For the purpose of this
criterion, an overflow event is one or more
overflows from a CSS as the result of a
precipitation event that does not receive the
minimum treatment specified below; or
ii. the elimination or the capture for treatment
of no less than 85% by volume of the combined
sewage collected in the CSS during precipitation
events on a system-wide annual average basis; or
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iii. the elimination or removal of no less than
the mass of the pollutants, identified as causing
water quality impairment through the sewer system
characterization, monitoring, and modeling effort,
for the volumes that would be eliminated or
captured for treatment under paragraph ii. above.
Combined sewer flows remaining after implementation of
the nine minimum controls and within the criteria
specified at II.C.4.a.i or ii, should receive a minimum
of:
o Primary clarification (Removal of floatables
and settleable solids may be. achieved by any
combination of treatment technologies or
methods that are shown to be equivalent to
primary clarification.)/
o Solids and floatables disposal; and
o Disinfection of effluent, if necessary, to
meet WQS, protect designated uses and protect
human .health, including removal of harmful
disinfection chemical residuals, where
necessary.
b. "Demonstration" Approach
A permittee may demonstrate that a selected
control program, though not meeting the criteria
specified in II.C.4.a. above is adequate to meet the
water quality-based requirements of the CWA. To be a
successful demonstration, the permittee should
demonstrate each of the following:
i. the planned control program is adequate to
meet WQS and protect designated uses, unless WQS
or uses cannot be met as a result of natural
background conditions or pollution sources other
than CSOs;
ii. the CSO discharges remaining after
implementation of the planned control program will
not preclude the attainment of WQS or the
receiving waters' designated uses or contribute to
their impairment. Where WQS and designated uses
are not met in part because of natural background
conditions or pollution sources other than CSOs,
a total maximum daily load, including a wasteload
allocation and a load allocation, or other means
should be used to apportion pollutant loads;
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iii. the planned control program will provide the
maximum pollution reduction benefits reasonably
attainable; and
iv. the planned control program is designed to
allow cost effective expansion or cost effective
retrofitting if additional controls are
subsequently determined to be necessary to meet
WQS or designated uses.
5. cost/Performance Considerations
The permittee should develop appropriate
cost/performance curves to demonstrate the relationships
among a comprehensive set of reasonable control alternatives
that correspond to the different ranges specified in
Section II.C.4. This should include an analysis to
determine where the increment of pollution reduction
achieved in the receiving water diminishes compared to tne
increased costs. This analysis, often known as knee of the
curve, should be among the considerations used to help guide
selection of controls.
6. Operational Plan
After agreement between the permittee and NPDES
authority on the necessary CSO controls to be implemented
under the long-term CSO control plan, the permittee should
revise the operation and maintenance program developed as
part of the nine minimum controls to include the agreed-upon
long-term CSO controls. The revised operation and
maintenance program should maximize the removal of
pollutants during and after each precipitation event using
all available facilities within the collection and treatment
system. For any flows in excess of the criteria specified
at II.C.4.a.i., ii. or iii and not receiving the treatment
specified in II.C.4.a, the operational plan should ensure
that such flows receive treatment to the greatest extent
practicable.
7. Maximizing Treatment at the Existing POTW Treatment
Plant
In some communities, POTW- treatment plants may have
primary treatment capacity in excess of their secondary
treatment capacity. One effective strategy to abate
pollution resulting from CSOs is to maximize the delivery of
flows during wet weather to the POTW treatment plant for
treatment. Delivering these flows can have two significant
water quality benefits: first, increased flows during wet
weather to the POTW treatment plant may enable the permittee
to eliminate or minimize overflows to sensitive areas;
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second, this would maximize the use of available POTW
facilities for wet weather flows and would ensure that
combined sewer flows receive at least primary treatment
prior to discharge.
Under EPA regulations, the intentional diversion of
waste streams from any portion of a treatment facility,
including secondary treatment, is a bypass.. EPA bypass
regulations at 40 CFR Section 122.41(m) allow for a facility
to bypass some or all the flow from its treatment process
under specified limited circumstances. Under the
regulation, the permittee must show that the bypass was
unavoidable to prevent loss of life, personal injury or
severe property damage, that there was no feasible
alternative to the bypass and that the permittee submitted
the required notices. In addition, the regulation provides
that a bypass may be approved only after consideration of
adverse effects.
Normally, it is the responsibility of the permittee to
document, on a case-by-base basis, compliance with 40 CFR
Section 122.41(m) in order to bypass flows legally. For
some CSO-related permits, the study of feasible alternatives
in the control plan may provide sufficient support for the
permit record and for approval of a CSO-related bypass in
the permit itself, and to define the specific parameters
under which a bypass can legally occur. For approval of a
CSO-related bypass, the long-term CSO control plan, at a
minimum, should provide justification for the cut-off point
at which the -flow will be diverted from the secondary
treatment portion of the treatment plant, sind provide a
benefit-cost analysis demonstrating that conveyance of wet
weather flow to the POTW for primary treatment is more
beneficial than other CSO abatement alternatives such as
storage and pump back for secondary treatment, sewer
separation, or satellite treatment. Such a permit must
define under what specific wet weather conditions a CSO-
related bypass is allowed and also specify what treatment or
what monitoring, and effluent limitations aind requirements
apply to the bypass flow. The permit should also provide
that approval for the CSO-related bypass will be reviewed
and may be modified or terminated if there is a substantial
increase in the volume or character of pollutants being
introduced to the POTW. The CSO-related bypass provision in
the permit should also make it clear that all wet weather
flows passing the headworks of the POTW treatment plant will
receive at least primary clarification and solids and
floatables removal and disposal, and disinfection, where
necessary, and any other treatment that can reasonably be
provided.
Under this approach, EPA would allow ci permit to
authorize a CSO-related bypass of the secondary treatment
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portion of the POTW treatment plant for combined sewer flows
in certain identified circumstances. This provision would
aSplv only to those situations where the POTW would
ordinarily meet the requirements of 40 CFR 122.41(m) as
evaSKedon a case-by-case basis. Therefore there must be
Sufficient data in the administrative record (reflected in
the permit fact sheet or statement of basis) supporting all
th! requirements in 40 CFR Section 122.41(m)(4) for approval
of an anticipated bypass.
For the purposes of applying this regulation to CSO
permittees, "severe property damage" could i™^6
Situations where flows above a certain level wash out the
POTW's secondary treatment system. EPA further believes
S£t !he feasible alternatives requirement of the regulation
can be met if the record shows that the secondary treatment
svstem is properly operated and maintained, that the system
hal Ken designedtomeet secondary limits for flows greater
than the peak dry weather flow, plus an appropriate quantity
of wet weather flow, and that it is either technically or
financially infeasible to provide secondary treatment at the
JSSSng facilities for greater amounts of wet weather flow.
The feasible alternative analysis should include, for
example, consideration of enhanced primary treatment (e.g.,
chemical addition) and non-biological secondary treatment.
SSS Sases supporting a finding of no feasible alternative
may also be available on a case-by-case basis. AB part of
its consideration of possible adverse effects resulting from
the! byplss? the permitting authority should also ensure that
the bvpass will not cause exceedances of WQS.
This Policy does not address the appropriateness of
approving anticipated bypasses through NPDES permits in
advance outside the CSO context.
8. Implementation Schedule
The permittee should include all pertinent information
in the long term control plan necessary to develop the
construction and financing schedule *?' implementation of
CSO controls. ' Schedules for implementation of the CSO
controls may be phased based on the relative importance of
adverse impacts Spon WQS and designated uses priority
projects identified in the long-term plan, and on a
permittee's financial capability.
Construction phasing should consider:
a. Eliminating overflows that discharge to sensitive
areas as the highest priority;
b. Use impairment;
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c. The permittee's financial capability including
consideration of such factors as:
: i. Median household income;
ii. Total annual wastewater and CSO contrpl costs
per household as a percent of median household
income;
iii. Overall net debt as a percent of full
market property value;
; iv. Property tax revenues as a percent of full
market property value;
v. Property tax collection rate;
vi. Unemployment; and
vii. Bond rating;
d. Grant and loan availability;
e. Previous and current residential, bornmercial and
; industrial sewer user fees and rate structures; and
f. Other viable funding mechanisms and sources of
financing.
; 9. Post-Construction Compliance Monitoring Program
The selected CSO controls should include a post-
construction water quality monitoring program adequate to
verify compliance with water quality standards and
protection of designated uses as well as to ascertain the
effectiveness of CSO controls. This water quality
compliance monitoring program should include a plan to be
approved by the NPDES authority that details the monitoring
protocols to be followed, including the necessary effluent
and ambient monitoring and, where appropriate, other
monitoring protocols such as biological assessments, whole
effluent toxicity testing, and sediment sampling.
III. COORDINATION WITH STATE WATER QUALITY STANDARDS
A. Overview
WQS are State adopted, or Federally promulgated rules which
serve as the goals for the water body and the legal basis for the
water quality-based NPDES permit requirements under the CWA. WQS
consist of uses which States designate for their water bodies,
criteria to protect the uses, an anti-degradation policy to
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protect the water quality improvements gained and other policies
affecting the implementation of the standards. A primary
objective of the long-term CSO control plan is to meet WQS,
including the designated uses through reducing risks to human
health and the environment by eliminating, relocating or
controlling CSOs to the affected waters.
State WQS authorities, NPDES authorities, EPA regional
offices, permittees, and the public should meet early and
frequently throughout the long-term CSO control planning process.
Development of the long-term plan should be coordinated with the
review and appropriate revision of WQS and implementation
procedures on CSO-impacted waters to ensure that the long-term
controls will be sufficient to meet water quality standards. As
part of these meetings, participants should agree on the data,
information and analyses needed to support the development of the
long-term CSO control plan and the review of applicable WQS, and
implementation procedures, if appropriate. Agreements should be
reached on the monitoring protocols and models that will be used
to evaluate the water quality impacts of the overflows, to
analyze the attainability of the WQS and to determine the water
quality-based requirements for the permit. Many opportunities
exist for permittees and States to share information as control
programs are developed and as WQS are reviewed. Such information
should assist States in determining the need for revisions to WQS
and implementation procedures to better reflect the site-specific
wet weather impacts of CSOs. Coordinating the development of the
long-term CSO control plan and the review of the WQS and
implementation procedures provides greater assurance that the
long-term control plan selected and the limits and requirements
included in the NPDES permit will be sufficient to meet WQS and
to comply with Sections 30l(b)(l)(C) and 402(a)(2) of the CWA.
EPA encourages States and permittees jointly to sponsor
workshops for the affected public in the development of the long-
term CSO control plan and during the development of appropriate
revisions to WQS for CSO-impacted waters. Workshops provide a
forum for including the public in discussions of the implications
of the proposed long-term CSO control plan on the water quality
and uses for the receiving water.
B-. Water Quality Standards Reviews
The CWA requires States to periodically, but at least once
every three years, hold public hearings for the purpose of
reviewing applicable water quality standards and, as ,aPP^°P^^e;
modifying and adopting standards. States must provide the public
an opportunity to comment on any proposed revision to water
quality standards and all revisions must be submitted to EPA for
review and approval.
EPA regulations and guidance provide States with the
flexibility to adapt their WQS, and implementation procedures to
reflect site-specific conditions including those related to CSOs.
For example, a State may adopt site-specific criteria for a
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particular pollutant if the State determines thcit the site-
specific criteria fully protects the designated-use (40 CFR
Section 131.11). In addition, the regulations at 40 CFR Section
131.10(g), (h), and (j) specify when and how a designated use may
be 'modified. A State may remove a designated use from its water
quality standards only if the designated use is not an existing
use. An existing use is a use actually attained in the water
body on or after November 28, 1975. Furthermore, a State may not
remove a designated use that will be attained by implementing the
technology-based effluent limits required under Sections 301(b)
and 306 of the CWA and by implementing cost-effective and
reasonable best management practices for nonpoimt source
controls. Thus, if a State has a reasonable basis to determine
that the current designated use could be attained after
implementation of the technology-based controls of the CWA, then
the use could nost be removed.
In determining whether a use is attainable and prior to
removing a designated use, States must conduct and submit to EPA
a use attainability analysis. A use attainability analysis is a
structured scientific assessment of the factors affecting the
use, including the physical, chemical, biological, and economic
factors described in 40 CFR Section 131.10(g). As part of the
analysis, States should evaluate whether the designated use could
be attained if CSO controls were implemented. For example,
States should examine if sediment loadings from CSOs could be
reduced so as not to bury spawning beds, or if biochemical oxygen
demanding material in the effluent or the toxicity of the
effluent could be corrected so as to reduce the acute or chronic
physiological stress on or bioaccumulation potential of aquatic
organisms.
In reviewing the attainability of their WQS and the
applicability of their implementation procedures to CSO-impacted
waters, States are encouraged to define more explicitly their
recreational and aquatic life uses and then, if appropriate,
modify the criteria accordingly to protect the designated uses.
Another option is for States to adopt partial uses by
defining when primary contact recreation such as swimming does
not exist, such as during certain seasons of the year in northern
climates or during a particular type of storm event. In making
such adjustments to their uses, States must ensure that
downstream uses are protected, and that during other seasons or
after the storm event has passed, the use is fully protected.
In addition to defining recreational uses with greater
specificity, States are also encouraged to define the aquatic
uses more precisely. Rather than "aquatic life use protection,"
States should consider defining the type of fishery to be
protected such as a cold water fishery (e.g., trout or salmon) or
a warm weather fishery (e.g., bluegill or large mouth bass).
Explicitly defining the type of fishery to be protected may
assist the permittee in enlisting the support of citizens for a
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CSO control plan.
A water quality standard variance may be appropriate, in
limited circumstances on CSO-impacted waters where the State is
uncertain as to whether a standard can be attained and time is
needed for the State to conduct additional analyses on the
attainability of the standard. Variances are short-term .
modifications in water quality standards. Subject to EPA
approval SStiS, with their own statutory authority ^y grant a
variance to a specific discharger for a specific pollutant. The
Justification Sor a variance is similar to that required for a
d althouh the showings needed
ustifcaton or a va
ne^manent change in the standard, although the showings needed
Sre leS rigorous. Variances are also subject to public
coned ana
re le rigorous. Variances are aso suec
as progress is made to improve water quality
Tustifications for variances are the same as those
?faP -S? tppe io .
S Standards and reviews the variance every three years.
IV. EXPECTATIONS FOR PERMITTING AUTHORITIES
A. overview
CSOs are point sources subject to NPDES permit requirements
g^V" {Son+gninerv Env.i i-nninental Position VS. Costle, 646 F.2d
568 (D.C. Cir. 1980) ) .
All oermits for CSOs should require the nine minimum
= L^^
Sil Vssrs&rss, i^sus-s-a^srs"^
?eqS?riments are to be established based on applicable water
quality standards.
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authority should generally require joint preparation and
implementation of the elements of this Policy and should
specifically define the responsibilities and duties of each
authority. Permittees should be required to coordinate system-
wide implementation of the nine minimum controls arid the
development and implementation of the long-term CSO control plan.
The,individual authorities are responsible for their own
discharges and should cooperate with the permittee for the POTW
receiving the flows from the CSS. When a CSO is permitted
separately from the POTW, both permits should be cross-referenced
foriinformational purposes.
, EPA Regions and States should review the CSO permitting
priorities established in the State CSO Permitting Strategies
developed in response to the 1989 Strategy. Regions and States
may;elect to revise these previous priorities. In setting
permitting priorities, Regions and States should not just focus "
on those permittees that have initiated monitoring programs.
When setting priorities, Regions and States should consider, for
example, the known or potential impact of CSOs on sensitive
areas, and the extent of upstream industrial user discharges to
the CSS.
I During the permittee's development of the long-term CSO
control plan, the permit writer should promote coordination
between the permittee and State WQS authority in connection with
possible WQS revisions. Once the permittee has completed
development of the long-term CSO control plan and has coordinated
with the permitting authority the selection of the controls
necessary to meet the requirements of the CWA, the permitting
authority should include in an appropriate enforceable mechanism,
requirements for implementation of the long-term CSO control
plan, including conditions for water quality monitoring and
operation and maintenance.
B. NPDES Permit Requirements
; Following are the major elements of NPDES permits to
implement this Policy and ensure protection of water quality.
1, Phase I Permits - Requirements for Demonstration of
Implementation of the Nine Minimum Controls,and Development
of the Long-Term CSO Control Plan.
In the Phase I permit issued/modified to reflect this
Policy, the NPDES authority should at least require
permittees to:
! a. immediately implement BAT/BCT, which at a minimum
includes the nine, minimum controls, as determined on a
BPJ basis by the permitting authority;
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b. develop and submit a report documenting the _
implementation of the nine minimum controls withzn two
years of permit issuance/modification;
c. comply with applicable WQS, no later than the date
allowed under the State's WQS, expressed in the form of
a narrative limitation; and
d. develop and submit, consistent with this Policy and
based on a schedule in an appropriate enforceable
mechanism, a long-term CSO control plan as soon as
practicable, but generally within two years after the
effective date of the permit issuance/ modification.
However, permitting authorities may establish a longer
timetable for completion of the long-term CSO control
plan on a case-by-case basis to account for site-
specific factors that may influence the complexity of
the planning process.
The NPDES authority should include, compliance dates on
the fastest practicable schedule for each of the nine
minimum controls in an appropriate enforceable mechanism
issued in conjunction with the Phase I permit. The use of
enforceable orders is necessary unless Congress amends the
CWA. All orders should require compliance with the nine
minimum controls no later than January 1, 1997.
2. Phase II Permits - Requirements for Implementation of a
Long-Term CSO Control Plan
Once the permittee has completed development of the
long-term CSO control plan and the selection of the controls
necessary to meet CWA requirements has been coordinated with
the permitting and WQS authorities, the permitting authority
should include, in an appropriate enforceable mechanism,
requirements for implementation of the long-term CSO control
plan as soon as practicable. Where the permittee has ,
selected controls based on the "presumption" approach
described in Section II.C.4, the permitting authority must
have determined that the presumption that such level .of
treatment will achieve water quality standards is reasonable
in light of the data and analysis conducted under this
Policy. The Phase II permit should contain:
a Requirements to implement the technology-based
controls including the nine minimum controls determined
on a BPJ basis;
b Narrative requirements which insure that the
selected CSO controls are implemented, operated and
maintained as described in the long-term CSO control
plan;
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c. Water quality-based effluent limits under 40 CFR
Sections 122.44(d)(1) and 122.44(k), requiring, at a
minimum, compliance with, no later tham the date
allowed under the State's WQS, the numeric performance
standards for the selected CSO controls, based on
average design conditions specifying ait least one of
the following:
i. A maximum number of overflow events per year
for specified design conditions consistent with
II.C.4.a.i; or
ii. A minimum percentage capture of combined
sewage by volume for treatment under specified
design conditions consistent with II.C.4.a.ii; or
iii. A minimum removal of the mass of pollutants
discharged for specified design conditions
consistent with II.C.4.a.iii; or
iv. performance standards and requirements that
are consistent with II.C.4.b. of the Policy.
d. A requirement to implement, with an established
schedule, the approved post-construction water quality
assessment program including requirements to monitor
and collect sufficient information to demonstrate
compliance with WQS and protection of designated uses
as well as to determine the effectiveness of CSO
controls.
e. A requirement to reassess overflows to sensitive
areas in those cases where elimination or relocation of
the overflows is not physically possible and
economically achievable. The reassessment should be
based on consideration of new or improved techniques to
eliminate or relocate overflows or changed
circumstances that influence economic achievability;
f. Conditions establishing requirements for maximizing
the treatment of wet weather flows at the POTW
treatment plant, as appropriate, consistent with
Section II.C.7. of this Policy;
g. A reopener clause authorizing the NPDES authority
to reopen and modify the permit upon determination that
the CSO controls fail to meet WQS or protect designated
uses. Upon such determination, the NPDES authority
should promptly notify the permittee and proceed to
modify or reissue the permit. The permittee should be
required to develop, submit and implement, as soon as
practicable, a revised CSO control plan which contains
additional controls to meet WQS and designated uses.
If the initial CSO control plan was approved under the
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demonstration provision of Section II.C.4.b., the
revised plan, at a minimum, should provide for controls
that satisfy one of the criteria in Section II.C.4.a.
unless the permittee demonstrates that the revised plan
is clearly adequate to meet WQS at a lower cost and it
is shown that the additional controls resulting from
the criteria in Section II.C.4.a will not result in a
greater overall improvement in water quality.
Unless the permittee can comply with all of the
requirements of the Phase II permit, the NPDES authority
should include, in an enforceable mechanism, compliance
dates on the fastest practicable schedule for those
activities directly related to meeting the requirements of
the CWA. For major permittees, the compliance schedule
should be placed in a judicial order. Proper compliance
with the schedule for implementing the controls recommended
in the long-term CSO control plan constitutes compliance
with the elements of this Policy concerning planning and
implementation of a long term CSO remedy.
3. Phasing Considerations
Implementation of CSO controls may be phased based on
the relative importance of and adverse impacts upon WQS and
designated uses, as well as the permittee's financial
capability and its previous efforts to control CSOs. The
NPDES authority should evaluate the proposed implementation
schedule and construction phasing discussed in Section
II.C.8. of this Policy. The permit should require
compliance with the controls proposed in the long-term CSO
control plan no later than the applicable deadline(s) under
the CWA or State law. If compliance with the Phase II
permit is not possible, an enforceable schedule, consistent
with the Enforcement and Compliance Section of this Policy,
should be issued in conjunction with the Phase II permit
which specifies the schedule and milestones for
implementation of the long-term CSO control plan.
V. ENFORCEMENT AND COMPLIANCE
A. Overview
It is important that permittees act immediately to take the
necessary steps to comply with the CWA. The CSO enforcement
effort will commence with an initiative to address CSOs that
discharge during dry weather, followed by an enforcement effort
in conjunction with permitting CSOs discussed earlier in this
Policy. Success of the enforcement effort will depend in large
part upon expeditious action by NPDES authorities in issuing
enforceable permits that include requirements both for the nine
minimum controls and for compliance with all other requirements
of the CWA. Priority for enforcement actions should be set based
on environmental impacts or sensitive areas affected by CSOs.
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As a further inducement for permittees to cooperate with
this process, EPA is prepared to exercise its enforcement
discretion in determining whether or not to seek civil penalties
for past CSO violations if permittees meet the objectives and
schedules of this Policy and do not have CSOs during dry weather.
B. Enforcement of CSO Dry Weather Discharge Prohibition
' EPA intends to commence immediately an enforcement
initiative against CSO permittees which have CWA violations due
toiCSOs during dry weather. Discharges during dry weather have
always been prohibited by the NPDES program. Such discharges can
create serious public health and water quality problems. EPA
will use its CWA Section 308 monitoring, reporting, and
inspection authorities, together with NPDES State authorities, to
locate these violations, and to determine their causes.
Appropriate remedies and penalties will be sought for CSOs during
dry weather. EPA will provide NPDES authorities more specific
guidance on this enforcement initiative separately.
C. Enforcement of Wet Weather CSO Requirements
Under the CWA, EPA can use several enforcement options to
address permittees with CSOs. Those options directly applicable
to this Policy are Section 308 Information Requests, Section 309
(a) Administrative Orders, Section 309(g) Administrative Penalty
Orders*, Section 309(b) and (d) Civil Judicial Actions, and
Section 504 Emergency Powers. NPDES States should use comparable
me;ans.
NPDES authorities should set priorities for enforcement
based on environmental impacts or sensitive areas affected by
CSOs. Permittees that have voluntarily initiated monitoring and
are progressing expeditiously toward appropriate CSO controls
should be given due consideration for their efforts.
1. Enforcement for Compliance with Phase I Permits
Enforcement for compliance with Phase-. I permits will
'• focus on requirements to implement at least the nine minimum
cpntrols, and develop the long-term CSO control plan leading
to compliance with the requirements of the CWA. Where
immediate compliance with the Phase I permit is infeasible,
the NPDES authority should issue an enforceable schedule, in
concert with the Phase I permit, requiring compliance with
the CWA and imposing compliance schedules with dates for
each of the nine minimum controls as soon as practicable.
All enforcement authorities should require compliance with
the nine minimum controls no later than January 1, 1997.
Where the NPDES authority is issuing an order with a
compliance schedule for the nine minimum controls, this
order should also include a schedule for development of the
long-term CSO control plan.
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If a CSO permittee fails to meet the final compliance
date of the schedule, the NPDES authority should initiate
appropriate judicial action.
2. Enforcement for Compliance with Phase II Permits
The main focus for enforcing compliance with Phase II
permits will be to incorporate the long-term CSO control
plan through a civil judicial action, an adl^nis^^Y®
order, or other enforceable mechanism requiring compliance
with the CWA and imposing a comPliancevsch^UiLnt the olan
appropriate milestone dates necessary to implement the plan.
in general, a judicial order is the appropriate
mechanism for incorporating the above Pr°;:is^!j£F *£*?*,.
II. Administrative orders, however, may ^appropriate for
permittees whose long-term control P1^5."^ *akeless than
five years to complete, and for minors that have complied
with the final date of the enforceable, order for Compliance
with their Phase I permit. If necessary, any of the nine
minimum controls that have not been implemented by this time
should be included in the terms of the judicial order.
D. Penalties
EPA is prepared not to seek civil penalties for past CSO
violations', !f permittees have no di-^H *£g* <** wath*r
and meet the objectives and schedules of this Policy.
No?wi?hstaSdingDthis, where a permittee has °^erud^a^c£o£
violations for which EPA or the State is taking judicial action,
penalties may be considered as part of that action for the
following:
1. CSOs during dry weather;
2 violations of CSO-related requirements in NPDES permits;
consent decrees or court orders which predate this policy;
or
3. other CWA violations,
EPA will not seek penalties for past CSO violations from
remittees that fully comply with the Phase I permit or
SnfSceableorder requiring compliance with the Phase I permit.
?Sr permittees that fail to comply, EPA will exercise its
en1o?cement discretion in determining whether to seek Penalties
for the time period for which the compliance schedule was
vTolated If the milestone dates of the enforceable schedule
Ire no? thieved and penalties are sought P-alties should be
calculated from the last milestone date that was met.
At the time of the judicial settlement imposing a compliance
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the Phase I permit and if the terms of the judicial order are
expeditiously agreed to on consent. However, stipulated
penalties for violation of the judicial order generally should be
included in the order, consistent with existing Agency policies.
Additional guidance on stipulated penalties concerning long-term
CSO controls and attainment of WQS will be issued.
(Approved by the Office of Management and Budget, under Control
Number 2040-0170)
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