HomeMy Public PortalAboutExhibit MSD 11Y Federal Requirements as of 041994 Combined-Sewer-Overflow-PolicyTuesday
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 baa 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
he 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.
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
EPA issued a Notice of Availability on
the draft CSO Control Policy on January
19, 1993, (58 FR 4994) and
comments on the draft Policy by March
22, 1993. Approximately forty-one sets
ofwritten 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 Policy are
as follows.
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
reissue 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
oermit 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 controIs
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,
Feds& Re&tet / Vol. 59. No. 75 / Tuesdav. April 19. 1994 / Notices 18889
msent d8cm8s or court ordem urdwa
evised lo he consistent with this Policy
The POtiCy is ~r@IliWd 88 fOkJWs:
1. Introduction
A. Purpom and Rinciplsr
B. Application of Policy
C Effect on Curmnt CSO Control Efforts
D. Small System Considsmtionr
E. fmplamentatioa Rasponsibilitiar
P. Policy Devdopment
Ix. EPA objactive8 for Permittser
A. Overview
B.gzzantation of the Nine Miiimum
C Long-T- CSCI Conhol Plan
I. ~hamctariution. Monitoring. and
Modeling of the Combined Sawer
Syrtem8
2. Public PutidPation
3. Ccmridamtion of Sensitive Areas
4. Evaluation of Alternatives
S. Coat/Performance tinsidemtion
6. Ommtiond Plan
7. h&&king Treatment at the Existing
POTW Treatment Plant
8. fmplsmentation schedule
9. Post-Construction Compliance
Monitoring v
Ill. EE$,on Wltb State Water Quality
A. Overview
B. Water Quality Standarda Reviewa
IV. Erwartions for Permitting Autbotitiar
A. &&view
B. NFDES Permit Rsquirnmenu
I. Phase [ Psrmits-Gquiramsnts for
Demonstration of the Nine Minimum
Conwb and Development of the Long
Term CSO Control Plan
2. Phase II 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
Dixherge Prohibition
C. Enforcement of Wet Weather CSO
Requirementa
1. Enforcement for Compliance With Phase
1 Permits
2. Enforcement for Compliance With Phasa
11 Permits
D. Penalties
List of Subjects in 40 CFR Part 122
Water pollution control.
Authority: Clean Water Act. 33 L.S:C 17.51
et seq.
Dated: April 8. 1994.
Carol hi. Brownar.
Adminbtiator.
A. purpose and Principles
The main purposes of this Policy tUe
to elaborate on EPA’s National
Combined Sewer Overflow (CSO)
Control Strategy published on
September 8. 1989 at 54 i% 37370 (lQ89
Strategy] and to expedite compliance
with the requirements of the Clean
Water Act &WA). while
implementation of the 1989 Strategy has
resuhd in progmsa toward controlling
CSOs, signi5cant water quality risks
remain.
A combined s8wer system (CSS) is a
wast8water collecrion system owned by
a Star8 or municipality (as defined by
section 502(r) of the CWA) which
conveys sanitary wastewaters (dome&c,
commercial and industrial warrtewaters)
and storm water thmugb a single-pipe
system to a Publicly Owned Tmatment
Works (YOTW) Treatment Plant (as
dehwd in 40 CFft 403.3(p)). A Cso is
the discharga from a CSS at a point prior
to the POTW Treatment Plant. CSOs am
point sowws subject to NPDES permit
uimments including both
2hn ology-based and water quality
&wd requirements of the CWA. CSOs
are not subject to secondary tmatment
requirements applicable to KITWs.
Coos consist of mixtures of domestic
sewage. industrial and commercial
wastewaters. and storm water runoff.
CSCh often contain high levels of
suspended solids, pathogenic
microorganisms, toxic pollutants,
Iloatables, 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 Poliutant Discharge
Elimination System (NPDES) permitting
authorities, State water quality
standards authorities and enforcement
authoritiqs. 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 publk 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
&e technology-based and water
quality-hsed requirements of the
CWA; and
3. To minimize water quality, aquatic
biota, and human health impacts from
csch.
T&S CSO Control Policy represents a
comprehensive national strategy to
enauro that municipalities, permitting
authorities, water quality standards
authOriti8s and the public engage in a
comprehensive and coordinated
Qlhg effort to achieve coat-eff@ztive
CSO controls that ultimat8ly meet
qpqn-iate health and environmental
objectiva and requirements. The Policy
xwmgkm the sitaspeci5c nature of
- and their impacts and provides
the necessary ilexibility to tailor
controls to local situations. Four key
QIiIXiplaS of the Policy ensure that CSO
controls am cost-effective and meet the
objectives of the CWA. The key
principles am:
1. Rovidhg clear levels of control that
would b8 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
CSOa and to determine the most cost-
effective means of reducing pollutants
and meeting WA objectives and
uirements;
3. Al “t owing 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 pobcy
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
SQ8&C 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&1)(13)). Disch~ from CSSf
during dry weather are prohibited hy
the CWA. Accordingly. the permitting
provisions of this Policy do not apply to
c!Z& 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
18890 Fe&d Register I Vol. 59, No. 75 / Tuesday, April 19, 19% / Notices
l he pmmMing provisions, the
nforcement and Compliance section of
nis Policy describes an enforcement
initiative being developed for overflows
that occur durin dry weather.
4 Consistent w1 the 1989 Strategy, 30
States that submitted CSO permitting
strategies have mceived 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 am
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 ahate CSOs. As
such, portions of this Policy may
already have been addressed by
permittees’ previous efforts to cofltrO1
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
ublication of this final Policy, has
.ompleted 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 a.m not being
attained, the permittee should be
required to submit a r+ed CSO
control plan that, once implemented,
will attain WQS.
2. Anv permittee that, on the date of
publicaiion of this final Policy, has
substantially developed or is ’
implementing a CSO control program
pursuant to an existing permit or
enforcement order. and such prog.ra~~~ is
considered by the NPDES permitting
authority to be adequate to meet WQS
and Protect designated uses and is
reasonably equivalent to tie treatment
objeaives of this Policy, should
compiete those facilities without tier
planning activities otherwise expected
by this Policy. Such programs, however,
should he reviewed and modified to be
onsistent with the sensitive area.
iinancial capability, and post-
construction monitorihg provisions of
this Policy.
3. hy perraittw that has previously
conetmctd CSO control facilities in an
effort to comply with WQS hut has
failed to meet such applicable standards
or to protect designated uses due to
remaining CSOs may receive
consideration for such efforts in futum
permits or enforceable orders for long-
term CSO control planning, design and
im lementation.
I!! the cm0 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 requiremi3nts
consistent with Section lV.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 he 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 KC. 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.Z), and sensitive areas
(II.C.3) potions 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 appmval of the proposed
plan, such jurisdictions should
construct the control projects and
propose a monitoring program sufficient
to determine whether WQS am attained
and designated uses are protected.
In developing long-term CSO control
plans baJed 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 contro!s.
E. Implementation Responsibilities
coordinating the review of the long-term
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
GO control plans and that NPDES
permits meet the requirements of the
CWA. Further, they are responsible for
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 compbnce 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
ap
&
mpriate, for financial assistance.
A and the States will undertake
action to assure that all pennittees 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
ths CWA.
-
In developing this Policy, EPA has
included information on what
responsible parties am expected to
accomplish. Subsequent documents will
provide additional guidance on how the
objectives of this Policy should be met.
These documents will provide further
@dance on: CSO permit writing. the
nine minimum controls, lona-term CSO
F&d Reg&ter I Vol. 59, No. 75 / Tuesday, Aprii 19, 1994 / Notices 18891
control plans, financial ca@bty,
sewer ryswm cl~aracterhtion and
receiving water monitoring and
modeling, and application of WQS to
CSO-impacted waters. For most CXI
control efforts however, suffident dstali
has been included in this PoLicy to
beein immedfate implementation of its
provisions.
Il. EPA Objectives for Permittees
A. Overview
Permittew with CSSs that have CSOs
should immediately undertalre a process
to accurately characteri 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:
I. Proper operation and mgular
maintenance programs for the sewer
system and the CSUs;
2. Maximum use of the collection
system for storage;
3. Review and modification of
pretr8atment r8quirements to assure
CSO impacts are minimized;
4. Maximization of flow to the POTW
for treatment;
5. wTaI$frt.ion of CSOs during dry
6. Controlof solid and floatable
materials in CSOs;
7. Pollution prevention:
8. Public notification to ensum that the
public receives adequate notification
of CSO occurrences and C!Xl impact%
and
9. Monitoring to effectively characteri
CSO impacts and the efficacy of (233
controb.
Selection and implementation of
actual control measures should be bassd
on site-sp&fic considerations including
the specific CSS’S chataCtariStiCS
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 ordinance8 for
industrial users, sBwer system
hqection reports, inEltmtion/inflow
studies. pollution pnrvention 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
progrmns for improving the existing
ntem’r
Tl
operation. The permittee
s ould also submit any information or
data on the degree to which the nine
minimum controls achieve mmpliancs
with water quahty standard8 Thew data
and information should include results
made available through monitoring and
modeling activities done in conjunctton
with the development of the long-term
CSO control plan described in this
Policy.
7%~ documentation should be
submitt8d as soon as practicable, hut no
later than two years after the
requirament to submft such
documentation is included in an WDES
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
incIuded in an appropriate enforceable
mechanism.
Beaum the CWA requires immedtate
compliance with technology-based
COntrOla (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. shoufd be included in an
appropriate enforceable mechanism.
C. Long-Term Cso Control Plan
Permittees with CSOs are responsible
for developing and implementing long-
term CSC conk-01 pIans that will
ukimately result in compliance with the
requirements of the CWA. The long
term plans should consider the sita
specific nature of CSCs and evaluate the
cost effectiveness of a range of control
options/strategies. The development of
the long-tern 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 sdected controls
should be designed to allow cost
effective expansion or cost effective
mtrofitting if additional controls are
subsequently determined to be
necessary to meet WQS. including
existing and designated uses.
This policy identifies EPA’s major
obj8ctives for the long-term CSO control
plan. Permittees should develop and
submit this long-term CSC 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 r8quiring the permittee to
develop the plan. NPDES authorities
may establish a longer timetable for
completion of the long-term CSO
mn-1 ph on a w00-by-cars baas to
accoult for site-spsdflc faaorr $&j&
may infbm0 the oompleldty 0f the
PhmmWpmceu. Qnc8agnYed upon
these date8 should bs included fn an’
appropriate enforceable m8&smsm.
EPA expects each long-term cso
mntrul plan to utilize appropriate
information to address the following
minimum elements. The Plan should
also include both fixed-date pro#ct
implementation schsdules (which may
he phased) and a financing plan to
design and construct the pro)ect as soon
as pmctk8ble. The minimum elements
of the long-term CSQ control plan are
described b8low.
1. Characterization. Monitoring, and
hdding of the Combined Sewer
System
In order to design a CSO control plan
adequate to meet the requirements of
the WA. e permittee should have a
thorough understanding of its sewer
system, the response of the system to
various precipitation events, the
cbaracterlstiw of the overflows. and the
water quality impacts that r8sult from
CSOs. The permittee should adequately
characterize though monitoring,
modeling, and other means as
appropriate, for a rsnge of storm events.
the response of its sewer system to wet
weather events including the number.
location and frequency of CSCs,
vohm8. conc8ntration 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
weter quality standards. The p~upose of
the system characterization, monitoring
and modeling program initially is to
assist the permtttee in developing
appropriate measums to tm lement the
nine minimum controls an B , 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
efktiven8ss of both the nine minimum
controls and, if nBc8ssary. the long-term
CSO controls, to meet WQS.
The major elements of a sewer system
characterization am described below.
a. Rainfall Records-The permittee
should eXiUlin8 the complete rainfall
mrd for the geographic area of its
elCi&lfJ C%i using sound statistid
procedures and beat available data. The
petittee should evaluate flow
variations in the receiving water body to
correlate between CSCs and receiving
water conditions.
18692 F&oral Regbter / Vol. 59, No. 75 I Tuesday, April 19, 1994 / Notices
b. Combined Sewer System
-haracteriution-The permittee should
dvaluate the nature and extent of its
sewer system through evaluation of
available sewer system ~otd~, field
inspections and other activities
necessary to understand the number,
lourtion and kquency of overflows and
their location relative to sensitive areaa
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
ooints can be selected that is sufficient
.o 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 overtlow points,
and the sensitivity of the receiving
water body to the CSO discharges. Use
of models should include appropriate
calib&ion and verification with field
measurements. The sophistication of the
model shouid 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 wwer 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 Marina
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
idluenca economic achievability.
4. Evaluation of Alternatives
EPA expects the long-term CSQ
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, 40% capture. 85% capture,
80% capture. and 75% capture for
treatment. The long-term control plan
should alao consider expansion of
KITW 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 aa described in Section
U.C.5. Because the final long-term CSO
control plan will become the basis for
IUPDES permit limits and requirements,
the selected controls should be
sufficient to meet CWA requirements.
Ln 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 kom 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 Iie@s!er ! Vol. 59, No. 75 / Tuesday, April 19, 1994 ! Notices 18693
brncterizetion, monitoring. and
deling effort. for the VoIumeS that
would be eliminated or captured for
treatment under paragraph ii. ahove.
Combined Sewer flows remaining after
implementation of the nine minimum
controls and within the criteria
specified at fI.C.4.a.i or ii, should
receive a minimum of:
l Primary clarification (Removal of
floatables and settieablw solids may bw
achieved by any combination of
treatment technologies or methods that
are shown to be 8qnivnl8nt to primnry
clarification.);
l Solids and ff oatables disposal; and
l Disinfeclion of effluent, tf
necesaary, to meet WQS, protect
designated uses and protect human
health, including removal of harmful
disinfection chemical residuals, where
nwcessaly.
b. “Demonstration” Approach
A pwrmittww may demonstrate that a
selected control program, though not
meeting the criteria spwcifkd in Il.C.4.a.
above is adequate to meet the water
quality-based requirements of the CWA.
To be a succwssfut demonstration, the
permittww should demonstrate each of
the following:
i. The planned control pmgram is
Adequate to meet WQS and protect
designated usws. unless WQS or uses
cannot be met as a result of natural
background conditions or polhrtion
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
bwcnusw of natural background
conditions or pollution sources other
than Coos. a total maximum daily load.
including a wasteload allocation and a
load allocation, or other means should
be used to apportion pollutant loads;
iii. The planned control program will
provide the msximum pollution
reduction benefits reasonably attainable;
and
iv. The planned control program is
designed to allow cost effeaive
expansion or cost effective retrofitting if
ndditional controls arw subsequently
determined to be necessary to meet
WQS or designated uses.
5. Cost/?‘erform~ce Considerations
The pwrmittww should develop
appropriate cost/performancw curves to
demonstrate the relationships among a
comprwhwnsivw 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 fncrement of
pollution reduction achieved in the
receiving water diminishes compared to
the imXwswd Costs. This analysis, often
known as knee of the curve, should be
among the considerations used to h81p
guide selwction of controls.
6. Opwrritional Plan
After agreement between the
pennittee and NPDES authority on the
necessary CSO controls to ba
implemented under the long-term CSO
control plan, the permittww 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 maximizw the removal
of pollutants during and after each
I?
recipitation event using all available
acilitiws within the collection and
treatment system. For any flows in
excess of the criteria specified at
ILC.4.a.i., ii. or iii and not receiving the
treatment specified in II.C.4.a. the
operntior~~l plan should ensure that
such flows receive treatment to the
greatest extent practicable.
7. Maximizing Treatment at the Existing
POTS Treatment Plant
In some communities, POTW
treatment plants may have primary
treatment capacity in excess of their
secondary treatment capacity. One
effective stratwgy to abate pollution
resulting from CSOs is to mtiize the
delivery of flows during wet weather to
the PDlW treatment plant for treatment.
Delivering thwsw flows can have two
significant water quality benefits: First,
incrwsed flows during wet weather to
the POTW treatment plant may enable
the pwrmjttww 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.
requirwd notices. [n addition, the
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 Row from its
treatment process under specified
limited circumstancws. 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
regulation provides that a bypass may
be approved only after consideration of
adverse effwcts.
normally, it is the responsibility of
Ch Wmittm to document, on a case-by-
base basis, compliance with 40 CFR
122.41lm) in order to bypass flows
legally. For some CSO-related permits,
the study of feasible alternatives b he
control plan may provide sufficient
support fOr the permit record and for
approval of a CSO-related bypass in &e
permit itself. and to define the specific
P
ammeters under which a bypass can
egally occur. For a pmval of a CSO-
related bypass, the ong-term CSO P
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
swparation, or satellite treatment. Such a
permit must define under what specific l
wet wwatber conditions a CSO-related
bypass is allowed and also specify what
treatment or what monitoring, and
efff uent 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-
refated bypass provision in the permit
should also make it clear that all wet
weather flows passing the headworks of
the FOTW treatment plant will receive
at least primary chrification and solids
and floatables removal and disposal,
and disinfection. where n-ssaq. and
any other treatment that can reasonably
be rovidwd.
rp nder this approach, EPA would
allow a permit to authorize a CSO-
related bypass of the secondary
treatment potion of the POTW
trwatment plant for combined sewer
flows in certain identified
-stances. This provision would
apply only to those situations where the
PCITW would ordinarily meet the
requirements of 40 CR? 122.4 l(ml as
evaluated on a case-by- basis.
Thwrwfore, there must he sufkient data
b be administrative record [reflected in
the permit fact shwet or statement of
basis) supporting all the recpiements in
40 CFR 12241(m)(4) for approval of an
anticipated bypass.
property damage” could include
For the purposes of applying this
regulation to CSO permittees. “Severe
18694 Federal Regi&er / Vol. 59, No. 75 / Tuesday, April 19, 19% I Notices
situations where flows above a certain
level wash Out the POTW’S WC0l.d~
mament system. EPA tier believes
that the feasible alternatives
quirement 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
exceedan& of WQS.
This Rolicv does not address the
appropriate&s5 of approving
anticipated bypasses through NPDES
permits in advance outside the CSQ
sontext.
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
hi
%hUse impairment;
est priority:
c. The permittee’s financial capability
including consideration of such facton
as:
i. Median household income;
ii. Total annual wastewater and CSO
conuol costs per household as a percent
of median household income;
iii. &era11 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. Unemplovment; and
vii. Bond ratbg;
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-Ccnstruction 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 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,
reiocating 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 ~111 be sufficient to
meet water quality standards. As part of
these meetings, participants should
agree on the data. information and
analyses needed to support Ihe
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 assursnce
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
zzeti$Ans 301fb)(l)fC) and 402fa)(21
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
ap roval.
EP A 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 pol)uta.nt 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), fh), and
[j) specify when and how a designated
use may be mod&d. 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 f Tuesday, April 19, 19% I Notices 18895
Mchnology-based effluent Jimits
quid under sections 301(b) and 306
,f the CWA and by im lementing coet-
effective and masonab P e best
management practices for nonpoint
saurc8 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
hysiological stress on or
E. ioaccumulation potential of aquatic
anisms. TIl reviewing the attainabilitv of their
WQS and the ipplicability of iheir
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 trpe of storm
event. III 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
w3s more precisely. Rather than
“aquatic life use protection.” States
should consider defining the type of
lisherv 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
he 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 C!304mpacted 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(s) 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 am not subject to secondary
treatment regulations applicable to
publicly owned treatment works
(Montgomery Environmentaf Coalition
vs. Code, 646 F.Zd 568 [DC. Cir.
l=m.
All permits for CSOs should require
the nine minimum controls as a
minimum best available technology
economically achievable and best
conventional technology (BATIBCTI
established on a best professional
judgment (BPJ) basis by the permitting
authority (40 CFR 125.3). Water qualily-
based requirements are to be established
zo;sapplicable water quality
This poky establishes a uniform.
nationally consistent approach to
developing and issuing NPDES permits --- - _ to permittees with CSCk. Permits !or
CSOs should be developed and issued
expeditiously. A single, system-wide
Permit generally should be issued for all
~xharges, bduding CSOS, from a CSS
opented by a single authority. #en
different parts of a single CSS are
opented by mom than one authority,
permits issued to each authority should
genemlly 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
industrtal user discharges to the CSS.
During the permit&s development
of the long-term CSO controJ 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 ens-. protection of water
quality.
18896 FedaA R&&or / Vol. 59. No. 75 / Tuesday, April 19, 1994 / Notices
1. phase I Permits-Requirements for
~monstrstion of Implementation of the
Nine h-finimum Controls and
Develo f ment of the Long-Term CSQ
Contm Ph
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
b. Develop an I!
ermitting authority;
submit a report
documenting the implementation of the
nine minumim 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 saon 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 caseby-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 1 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 CSQ
Control Plan
Once the permittee has completed
development of the long-term CSC
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 ha8
sekcted controls based on the
“presumption” approach described in
Section B.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 uirements which
insure that the “t se ected CSQ controls are
implemented, operated and maintained
as described in the 1ong:term CSQ
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 conditf ons consistent with
II.C.Q.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 ta 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
economicallv achievable. The .
reassessment should IX based on
consideration of new or improved
techniques to eliminate or relocate
overflows or changed circumstarice,~
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 authorily
should promptly notify the permittee
and proceed to modify 0; reissue the
permit. The permittee should be
required to develop, submit and
Implement. as soon as practicable, a
revised CSCI control plan which
contains additional controls to meet
WQS and designated uses. If the hitid
(30 control plan was approved under
the demonstration provision of Section
U.C.4.b.. the revised plan, at a
minimum, should rovide for controls
that satisfy one of tg e 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 Born the criteria in
Section II.C.4.8. 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
Ihe 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
Feded Register / Vol. 59, NO. 75 i Tuesday, April 19, 1994 ! Notices 16697
z11 initiative to address CSOs that
hchaqe during dry weather, followed
oy an enforcement effort in conjunction
with permitting CSOa 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.
As a fu&er 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
~eLc~yend do not have CSOs during dry
8. 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
\ave always been prohibited by the
GDES 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 Poticy are
section 308 Information Requests.
section 309(a) Administrative order%
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
envimnmental 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. Enfonxrment 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
NPDFS 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 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 administrative order, or other
enforceable mechanism requiring
compliance with the CWA and
imposing a compiiance 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 II. Administrative orders,
however, may be appropriate for
permittees whose long-term control
plans will take !ess thsn five yean 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
pnnlties 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 signtficant CWA violations for
which EPA or the State is taking judicial
action,
part of %
nalties may be considered as
at sction for the following:
1. CsoI during dry weather;
2. Violations of CSGrelated
requirements in NPDES permits;
consent decrees or court orders which
predate this policy; or
3. Other CWA violations.
EPA will not seek penalties for pati
CSO violations from permittees that
fully comply with the Phase I permit or
enforceable order requiring compliance
with the Phase 1 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 he 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 et seq
and have been assigned OMB control
number 20404170.
This collection of information has an
estimated reporting burden averaging
s 78 hours per response and an
estimated annual recordkeeping burden
averaging 25 hours per recordkeeper.
These estimates include time for
reviewin instructions, searching
existing Ja ta sourcas. gathering and
maintaining the data needed. and
completing and reviewing the collection
of informstion.
Send comments mgarding 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 Regu1at-y
Affairs. Offka of Management &nd
Fedaml Register / Vol. 59, No. 75 1 Tuesday, April 19. 19M / Notices
Budget. Washington. DC 20503, marked
-Attention: hdc Of&x for PA.”
[FR Dot. 94-9295 Filed 4-16’34; 8:45 am]
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