United States
Environmental Protection
Agency
Office of Enforcement
and Compliance
Assurance (2248A)
EPA 300-N-00-005
&EPA Enforcement Alert
Volume 3, Number 4
Office of Regulatory Enforcement
April 2000
Clean Water Act Prohibits Sewage 'Bypasses'
Recent Court Ruling Upholds Narrow Exceptions to Federal Rules
The Clean Water Act, Section 402,
prohibits wastewater dischargers
from "bypassing" untreated or partially
treated sewage (wastewater) prior to
treatment at a publicly owned treatment
works (POTW) facility.
The law defines a bypass as an
About
Enforcement Alert
"Enforcement Alert" i_
published periodically by the
Office of Regulatory
Enforcement to inform and
educate the public and
regulated community of
important environmental
enforcement issues, recent
trends and significant
enforcement actions.
This information should help
the regulated community
anticipate and prevent
violations of federal
environmental law that could
otherwise lead to enforcement
action. Reproduction and wide
dissemination of this newsletter
is encouraged.
See Page 2 for useful
compliance assistance
resources.
Eric V. Schaeffer
Director, Office of
Regulatory Enforcement
Editor: Virginia Bueno
(202) 564-8684
bueno.virginia@epa.gov
(Please Email all address and
name changes or subscription
requests for this newsletter.)
"intentional diversion of waste streams
from any portion of a treatment facil-
ity" (40 CFR 122.41(m)(l)).
Untreated wastewater contains
E. coli bacteria and other pathogens,
which can cause a variety of infections
in people who come in contact with
water that has been contaminated. Un-
treated wastewater also is harmful for
aquatic organisms and wildlife.
Only under exceptional and speci-
fied limitations do EPA's bypass regu-
lations allow for a facility to bypass
some or all of the flow from its treat-
ment process.
As explained later in this issue, these
limitations were recently upheld by a
federal district court opinion in United
States v. City of Toledo, Ohio, 63
F.Supp 2d 834 (N.D.
Ohio, 1999). In
short, the court rul-
ing requires con-
struction when
greater plant capac-
ity is needed to avoid
bypasses, and con-
struction is feasible.
The Clean Water
Act requires wastewa-
ter dischargers to have a National Pol-
lutant Discharge Elimination System
(NPDES) permit. NPDES permits typi-
cally establish pollution limits, compli-
ance monitoring and reporting require-
ments, and include bypass provisions.
Bypasses are prohibited by the Clean
Water Act unless a NPDES permittee
can meet all of the following criteria:
• The bypass was "unavoidable
to prevent loss of life, personal injury
or severe property damage";
• There were no "feasible alter-
natives" to the bypass, such as "the use
of auxiliary treatment facilities, reten-
tion of untreated wastes, or mainte-
nance during normal periods of equip-
ment downtime. This condition is not
satisfied if adequate backup equipment
should have been installed in the exer-
cise of reasonable engineering judgment
to prevent a bypass which occurred
during normal periods of equipment
downtime or preventive maintenance";
and finally,
• The permittee must have sub-
mitted notice of the bypass to the di-
rector of the permitting authority (nor-
mally the authorized State, an autho-
"Bypasses" of wastewater prior to
treatment at a publicly owned
treatment works (as shown above)
are prohibited (U.S. EPA photo).
rized Tribal authority or the applicable
EPA Region).
Under Section 309(d) of the Clean
Water Act, EPA is authorized to seek
civil penalties of up to $27,500 per day
Continued on page 2
on is found on the Internet at http://www. epa.gov/oeca/ore/enfalert/
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Environmental Protection Agency
Office of Regulatory Enforcement
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Washington, D.C. 20460
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'Enforcement Alert' newsletter
Continued from page 1
for each NPDES permit violation, and
may take other civil enforcement ac-
tions that may include mandatory in-
junctions.
"No Feasible Alternatives"
Criteria Challenged But
Upheld by Federal Court
Of the three bypass exception cri-
teria, the second one requiring that there
be "no feasible alternatives" (see page
1) to the bypass has been the most chal-
lenged.
However, a federal district court
recently ruled that a municipality can-
not claim that it had no feasible alterna-
tives to a bypass if it failed to take fea-
sible steps to construct adequate treat-
ment or storage capacity.
In the case of United States v. City
of Toledo, Ohio, 63 F.Supp 2d 834
(N.D. Ohio, 1999), EPA argued that
Toledo's frequent bypasses during rou-
tine wet weather events violated
Toledo's NPDES permit (which in-
cluded the bypass regulatory language)
and the Clean Water Act. Furthermore,
EPA argued that the City of Toledo had
"feasible alternatives" to the bypass by
simply constructing additional treatment
capacity or adding storage facilities.
Toledo argued that the "no feasible
alternatives" criteria to the bypasses
should be based on the system's cur-
rent capacity. Therefore, the court had
to determine the meaning of the "no fea-
sible alternatives" test for bypasses. As
noted, the City of Toledo argued that it
needed only to establish it had "no fea-
sible alternatives" to bypassing based
on existing treatment (and storage) ca-
pacity.
In its opinion, the court found that
"any bypass which occurs because of
inadequate plant capacity is
unauthorized...to the extent that there
are 'feasible alternatives,' including the
construction or installation of additional
treatment capacity." Simply put, the
court ruling requires construction when
greater plant capacity is needed to avoid
bypasses and construction is feasible.
As to the plain language of the regu-
lation, the court noted that the words
"use of auxiliary treatment facilities,"
suggest that the regulation contem-
plates development of "increased stor-
age capacity."
As to prior case law, the court found
that the bypass cases cited to the court
"construed the bypass exception nar-
rowly." (See 63 F.Supp 2d at 839).
Finally, the court noted that its opinion
is consistent with EPA interpretations,
particularly as found in EPA's Combined
Sewer Overflows: Guidance for Per-
mit Writers, published September 1995
(http://www.epa.gov/owm/sectstm.htm).
The Toledo opinion underscores the
importance to the regulated community
of assessing whether each sewage
system has adequate treatment and/or
storage capacity. If not, facilities must
take all feasible steps necessary to
secure the needed capacity to avoid
bypassing.
For more information, contact John
Lyon, Office of Regulatory Enforcement,
Water Enforcement Division, (202) 564-
4051, Email: fyon.john@spa.gov; or Alan
Morrissey, Office of Regulatory Enforce-
ment, Water Enforcement Division, (202)
564-4026, Email: morrissey.alan@2pa.gov.
Useful Conrmliance
Assistance Resources
Water Enforcement Division:
http://www.epa.gov/oeca/ore/water/
Office of Wastewater
Management:
http://www.epa.gov/OWM/
Audit Policy Update:
http://www.epa.gov/oeca/ore/auditupd.html
Compliance Assistance Centers:
http://www.epa.gov/oeca/main/compasst/
EPA's Small Business Gateway:
http://www.epa.gov/smallbusiness/
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