1
Tuesday
April 19, 1994
Part VII
Environmental
Protection Agency
Combined Sewer Overflow (CSO) Control
Policy; Notice
-------
-------
18688
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-4732-7]
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 Overflow (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 SW., Washington,
DC 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.
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 groups including
cities and municipal groups,
environmental groups, States,
professional organizations and others.
All comments were considered as EPA
prepared the Final 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 Poh'cy are
as follows.
CSO permittees should immediately
undertake a process to accurately
characterize their CSS and CSO
discharges, demonstrate 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 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.
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. For
example, EPA is preparing guidance on
the nine minimum controls,
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,
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18689
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. Bract on Current CSO Control Efforts
D. Small System Considerations
E. Implementation Responsibilities
F. Policy Development
n. EPA Objectives for Permittees
A. Overview
B. Implementation of the Nine Minimum
Controls
C. Long-Term CSO Control Plan
1. Characterization, Monitoring, and
Modeling of the Combined Sewer
Systems
2. Public Participation
3. Consideration of Sensitive Areas
4. Evaluation of Alternatives
S. Cost/Performance Consideration
8. Operational Plan
7. Maximizing Treatment at the Existing
POTW Treatment Plant
8. Implementation Schedule
9. Post-Construction Compliance
Monitoring Program
III. 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 the Nine Minimum
Controls and Development of the Long-
Term CSO Control Plan
2. Phase n Permits—Requirements for
Implementation of a Long-Term CSO
Control Plan
3. Phasing Considerations
V. Enforcement and Compliance
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
etseq.
Dated: April 8,1994.
Carol M. Browner,
Administrator.
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 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
recognizes the site-specific nature of
CSOs and their impacts and provides
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
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
122.26(b)(13)). Discharges from CSSs
during dry weather are prohibited by
the CWA. Accordingly, the 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
-------
18690
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 /Notices
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 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 this
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 the criteria contained
in this 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 small system
considerations discussed in the
preceding paragraph, permittees are
encouraged to discuss the scope of their
long-term CSO 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 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
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18691
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
provisions.
U. 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
protreatment 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 systems, as well as contracts
and schedules for minor construction
programs for improving the existing
system's operation. The permittee
should also submit any information or
data on the degree to which the nine
minimum controls achieve compliance
with water quality standards. These data
and information should include results
made available through monitoring and
modeling activities done in conjunction
with the development of the long-term
CSO control plan described in this
Policy.
This documentation should be
submitted as soon as practicable, but no
later than two years after the
requirement to submit such
documentation is included in an NPDES
permit or other enforceable mechanism.
Implementation of the nine minimum
controls with appropriate
documentation should be completed as
soon as practicable but no later than
January 1,1997. These dates should be
included in an appropriate enforceable
mechanism.
Because the CWA requires immediate
compliance with technology-based
controls (section 301(b)), which on a
Best Professional Judgment basis should
include the nine minimum controls, a
compliance schedule for implementing
the nine minimum controls, if
necessary, should be included in an
appropriate enforceable mechanism.
C. Long-Term CSO Control Plan
Permittees with CSOs are responsible
for developing and implementing long-
term CSO control plans that will
ultimately result in compliance with the
requirements of the CWA. The long-
term plans should consider the site-
specific nature of CSOs and evaluate the
cost effectiveness of a range of control
options/strategies. The development of
the long-term CSO control plan and its
subsequent implementation should also
be coordinated with the NPDES
authority and the State authority
responsible for reviewing and revising
the State's WQS. The selected controls
should be designed to allow cost
effective expansion or cost effective
retrofitting if additional controls are
subsequently determined to be
necessary to meet WQS, including
existing and designated uses.
This policy identifies EPA's major'
objectives for the long-term CSO control
plan. Permittees should develop and
submit this long-term CSO control plan
as soon as practicable, but generally
within two years after the date of the
NPDES permit provision, Section 308
information request, or enforcement
action requiring the permittee to
develop the plan. NPDES 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 which
may influence the complexity of the
planning process. Once agreed upon,
these dates should he included in an
appropriate enforceable mechanism.
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
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
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 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.
-------
18692
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
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 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
measures 'the frequency, duration, flow
rate, volume and pollutant
concentration of CSO discharges and
assesses 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 sampling. Monitoring
parameters should include, for example,
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 the 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 the 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.
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.
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
n.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
iii. The elimination or removal of no
less than the mass of the pollutants,
identified as causing water quality
impairment through the sewer system
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18693
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 U.C.4.a.i or ii, should
receive a minimum of:
• 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.);
• Solids and floatables disposal; and
• 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 n.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;
iH. 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
the 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 H.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; 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 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
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, and 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 and 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 a permit to authorize a CSO-
related bypass of the secondary
treatment portion of the POTW
treatment plant for combined sewer
flows in certain identified
circumstances. This provision would
apply only to those situations where the
POTW would ordinarily meet the
requirements of 40 CFR 122.41(m) as
evaluated on 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 the requirements in
40 CFR 122.41(m)(4) for approval of ah
anticipated bypass.
For the purposes of applying this
regulation to CSO permittees, "severe
property damage" could include
-------
18694
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
situations where flows above a certain
level wash out the POTW's secondary
treatment system. EPA further believes
that the feasible alternatives
requirement of the regulation can be met
if the record shows that the secondary
treatment system is properly operated
and maintained, that the system has
been designed to meet 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 existing 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. Other bases
supporting a finding of no feasible
alternative may also be available on a
case-by-case basis. As part of its
consideration of possible adverse effects
resulting from the bypass, the
permitting authority should also ensure
that the bypass 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 for
implementation of CSO controls.
Schedules for implementation of the
CSO controls may be phased based on
the relative importance of adverse
impacts upon 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;
c. The permittee's financial capability
including consideration of such factors
as:
i. Median household income;
ii. Total annual wastewater and CSO
control 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,
commercial 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.
///. 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 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 301(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 appropriate,
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 particular pollutant if the
State determines that the site-specific
criteria fully protects the designated use
(40 CFR 131.11). In addition, the
regulations at 40 CFR 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
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18695
technology-based effluent limits
required under sections 301(b) and 306
of the CVVA and by implementing cost-
affective and reasonable best
management practices for nonpoint
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 not 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
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
Die-accumulation 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
docs 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
largo mouth bass). Explicitly defining
the type of fishery to be protected may
assist the permittee in enlisting the
support of citizens for a 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,
States, with their own statutory
authority, may grant a variance to a
specific discharger for a specific
pollutant. The justification for a
variance is similar to that required for
a permanent change in the standard,
although the showings needed are less
rigorous. Variances are also subject to
public participation requirements of the
water quality standards and permits
programs and are reviewable generally
every three years. A variance allows the
CSO permit to be-written'to meet the
"modified" water quality standard as
analyses .are conducted and as progress
is made to improve water quality.
Justifications for variances are the
same as those identified in 40 'CFR
131.10(g) for modifications in uses.
States must provide an opportunity for
public review and comment on all
variances. If States use the permit as the
vehicle to grant the variance, notice of
the permit must clearly state that the
variance modifies the State's water
quality standards. If the variance is
approved, the State appends the
variance to the State'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 including
both technology-based and water
quality-based requirements of the CWA.
CSOs are not subject to secondary
treatment regulations applicable to
publicly owned treatment works
(MontgomeryEnvironmental Coalition
vs. Costle, 646 F.2d 568 (D.C. Cir.
1980)).
All permits for CSOs should require
the nine minimum controls as a
minimum best available technology
economically achievable and best
conventional technology (BAT/BCT)
established on a best professional
judgment (BPJ) basis by the permitting
authority (40 CFR 125.3). Water quality-
based requirements are to be established
based on applicable water quality
standards.
This policy establishes a uniform,
nationally consistent approach to
developing and issuing NPDES permits
to permittees with CSOs. Permits for
CSOs should be developed and issued
expeditiously. A single, system-wide
permit generally should be issued for all
discharges, including CSOs, from a CSS
(operated by a single authority. When
different parts of a single CSS are
operated by more than one authority,
permits issued to each 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 and 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 for
informational 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.
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.
-------
18696
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
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;
D. Develop and submit a report
documenting the implementation of the
nine minimum controls within 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 n 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;
c. Water quality-based effluent limits
under 40 CFR 122.44(d)(l) and
122.44(k), requiring, at a minimum,
compliance with, no later than the date
allowed under the State's WQS, the
numeric performance standards for the
selected CSO controls, based on average
design conditions specifying at 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 n.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 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 n 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
-------
Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices
18697
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 CVVA. Priority for enforcement
actions should be set based on
environmental impacts or sensitive
areas affected by CSOs.
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 to CSOs 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 means.
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
bo 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 controls, 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.
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 n 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 administrative order, or other
enforceable mechanism requiring
compliance with the CWA and
imposing a compliance schedule with
appropriate milestone dates necessary to
implement the plan.
In general, a judicial order is the
appropriate mechanism for
incorporating the above provisions for
Phase n. Administrative orders,
however, may be appropriate for
permittees whose long-term control
, plans will take less 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, if
permittees have no discharges during
dry weather and meet the objectives and
schedules of this Policy.
Notwithstanding this, where a permittee
has other significant CWA 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 permittees that
fully comply with the Phase I permit or
enforceable order requiring compliance
with the Phase I permit. For permittees
that fail to comply, EPA will exercise its
enforcement discretion in determining
whether to seek penalties for the time
period for which the compliance
schedule was violated. If the milestone
dates of the enforceable schedule are not
achieved and penalties are sought,
penalties should be calculated from the
last milestone date that was met.
At the time of the judicial settlement
imposing a compliance schedule
implementing the Phase II permit
requirements, EPA will not seek
penalties for past CSO violations from
permittees that fully comply with the
enforceable order requiring compliance
with 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.
Paperwork Reduction Act
The information collection
requirements in this policy have been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 etseq
and have been assigned OMB control
number 2040-0170.
This collection of information has an
estimated reporting burden averaging
578 hours per response and an
estimated annual recordkeeping burden
averaging 25 hours per recordkeeper.
These estimates include time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden to
Chief, Information Policy Branch; EPA;
401 M Street SW. (Mail Code 2136);
Washington, DC 20460; and to the
Office of Information and Regulatory
Affairs, Office of Management and
-------
18698 Federal Register / Vol. 59, No. 75 / Tuesday, April 19,1994 / Notices
Budget, Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
[FR Doc. 94-9295 Filed 4-18-94; 8:45 ami
BILLING CODE 6SSO-50-P
-------
------- |