OECA Summary of Responses to State Comments on Interim Significant Noncompliance (SNC) Policy for Clean Water Act Violations Associated with Combined Sewer Overflows (CSOs), Separate Sanitary Overflows (SSOs), Concentrated Animal Feeding Operations (CAFOs), and Storm Water Point Sources (i.e., Interim Wet Weather SNC Policy)


OECA Summary of Responses to State Comments on
Interim Significant Noncompliance (SNC) Policy for Clean Water
Act Violations Associated with Combined Sewer Overflows
(CSOs), Separate Sanitary Overflows (SSOs), Concentrated
Animal Feeding Operations (CAFOs), and Storm Water Point
Sources (i.e., Interim Wet Weather SNC Policy)
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Office of Compliance
Washington, DC 20460
October 2007

-------
Attachment 2
OECA Summary of Responses to State Comments on
Interim Significant Noncompliance (SNC) Policy for Clean Water Act Violations
Associated with Combined Sewer Overflows (CSOs), Separate Sanitary Overflows
(SSOs), Concentrated Animal Feeding Operations (CAFOs), and
Storm Water Point Sources
(i.e., Interim Wet Weather SNC Policy)
On April 30,2007, OECA sent three new draft National Pollutant Discharge
Elimination System (NPDES) compliance and enforcement program policies to the
Environmental Council of States (ECOS) and the Association of State and Interstate
Water Pollution Control Administrators (ASIWPCA) for State review and comment.
This document summarizes OECA's responses to key State comments received on the
draft Interim Wet Weather SNC Policy received during that review.
The major issue areas identified by the States during their recent review include;
state resource burden, expanded federal role, and the need for OMB review. Only a few
States submitted substantive comments on the policy approach and those comments
related to: the potential for inconsistent interpretations of the policy, some of the
definitions in the policy, and the applicability of CAFO section.
1. State Resource Burden and Expanded Federal Role
State Comments: Several States expressed concern that they do not have
adequate resources to comply with additional data entry, tracking, and reporting that is
required to implement this policy and that they need a transition period. Some States said
that the policy was expanding EPA's role in NPDES program implementation.
OECA Response: The Interim Wet Weather SNC Policy is a management tool
that was developed to focus enforcement resources on the most serious violations. It
does not in itself establish any specific data entry requirements. The policy will rely on
the ICIS-NPDES data elements and data entry requirements for full implementation.
OECA is issuing the policy as "interim" and for EPA Regional use only at first to allow
time for the ICIS-NPDES issues to be resolved. During this initial implementation
period, EPA Regions will work with any individual States that would like to begin using
the wet weather SNC approach immediately. OECA will use this initial period to
develop, in consultation with Regions and States, an EPA national tracking and reporting
approach for wet weather SNC information and to resolve implementation issues. States
should have ample transition time as EPA does not anticipate full implementation of this
policy until the ICIS-NPDES database and associated policies/guidance are implemented.
OECA does not believe that the Interim Wet Weather SNC Policy expands EPA's
role in NPDES implementation - the policy relies on long-standing relationships and
processes that exist between EPA Regions and States regarding annual work-share

-------
agreements. OECA hopes the policy will help expand the dialogue between Regions and
States on effective ways to leverage resources to identify and address the most serious
wet weather violations.
2. Need for OMB Review
State Comments: Several States commented that the policy is a "significant"
guidance document under Executive Orders 13422 and 12866 and had not been subjected
to the appropriate level of intra- and interagency and coordination and review. They
believe that additional consultation is warranted under OMB Bulletin No. 07-02 ("Final
Bulletin for Agency Good Guidance Practices") before it is finalized.
OECA Response: OECA believes that the Interim Wet Weather SNC Policy is
not subject to the "OMB Good Guidance Practices" review process because it does not
meet the definition of the kind of document that needs to be reviewed by OMB - i.e., it
does not set forth a policy on a statutory, regulatory, or technical issue or make new
statements as to the scope of the regulatory community's obligations. The Interim Wet
Weather SNC Policy is a targeting/prioritization and enforcement response policy on how
EPA exercises its enforcement discretion. It is a management tool that presumes a
violation or liability is present and provides guidelines to Regions and States on how to
identify, prioritize, and respond to the most serious wet weather violations.
3. Inconsistent Interpretations
State Comments: Some States expressed appreciation regarding the flexibility in
the Interim Wet Weather SNC Policy, others expressed concern that the flexibility in the
policy will lead to inconsistencies in interpretation. At least one State asked for more
flexibility in the time frame to respond to wet weather SNC violations. OGC suggested
several edits to clarify that the information in the policy is advisory and not required by
regulation.
OECA Response: The definitions, recommended steps, program-specific SNC
criteria, and response options and time frames are EPA guidelines - a frame work - not
regulatory requirements. At the request of the State-EPA NPDES Advisory Group that
developed the policy, existing EPA definitions and mechanisms were utilized as much as
possible. Because of the complex nature of wet weather violations, and variations in
conditions across the country, it would be very difficult to establish "bright line" criteria
for wet weather SNC violations. The recommended response times included in the policy
are guidelines based on typical cases. It is assumed that EPA and State staff will apply
best professional judgment and enforcement discretion in implementing the policy. Any
differences in SNC interpretations should be discussed between EPA Regions and
individual States during already established periodic meetings regarding compliance and
enforcement commitments.

-------
4. Policy Definitions
State Comments: A couple of States objected to including basement back-ups in
the definition of "significant overflow" as there is no nexus between those events and
waters of the U.S. One State said EPA should provide a better definition of what
constitutes a sanitary sewer overflow or "SSO," One State suggested that setting specific
thresholds instead of using terms such as "multiple unauthorized discharges" or "multiple
overflows" would be beneficial.
QECA Response: SSOs that do not reach waters of the U.S. may be indicative of
improper operation and maintenance of the sewer system, and thus may violate permit
conditions [per 40CFR 122.41(e)], Basement back-ups can be "significant" due to their
potential impact on human health, regardless of impacts to waters of the U.S. The
Interim Wet Weather SNC Policy does not attempt to list all existing wet weather
program definitions or to re-define them but rather relies on existing definitions as much
as possible. The definition of "SSO" in EPA's Report to Congress: Impacts and Control
of CSOs and SSOs, may better explain what constitutes a SSO. The State-EPA Advisory
Group that developed the policy could not agree on "bright line" thresholds due to the
variation in conditions across the country and decided that qualitative criteria
(implemented using best professional judgment) provided the flexibility needed to
address a range of circumstances.
5, Applicability of the CAFO Section
State Comment: One State questioned the wisdom of including CAFOs in the
guidance since EPA has not issued final revisions to the federal CAFO regulations yet.
QECA Response: To exclude CAFOs would inaccurately imply that all
violations at CAFOs are insignificant and currently unenforceable. In fact, federal CAFO
regulations have been in effect for over 30 years and are still enforceable. CAFOs have
been an EPA national Clean Water Act compliance and enforcement priority since 1998
and will continue to be a priority for the foreseeable future. The Interim Wet Weather
SNC Policy includes the caveat that EPA may need to revise the CAFO section when
EPA's final revisions to the CAFO regulations are issued.
3

-------