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[Federal Register Volume 83, Number 5 (Monday, January 8, 2018)]
[Rules and Regulations]
[Pages 712-732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27948]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 123

[EPA-HQ-OW-2016-0376; FRL-9972-51-OW]
RIN 2040-AF67

Public Notification Requirements for Combined Sewer Overflows to 
the Great Lakes Basin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a rule 
to implement section 425 of the Consolidated Appropriations Act of 
2016, which requires EPA to work with the Great Lakes States to 
establish public notification requirements for combined sewer overflow 
(CSO) discharges to the Great Lakes. The requirements address signage, 
notification of local public health departments and other potentially 
affected public entities, notification to the public, and annual 
notice. The rule includes a two-stage approach with requirements that 
apply directly to existing National Pollutant Discharge Elimination 
System (NPDES) permittees authorized to discharge from a CSO to the 
Great Lakes Basin, beginning on August 7, 2018 and a requirement that 
the public notification provisions be incorporated into NPDES permits 
when these permits are issued or reissued after February 7, 2018, 
unless the permit has been proposed prior to February 7, 2018 in which 
case the requirements would be incorporated into the next permit 
renewal. This rule protects public health by ensuring timely 
notification to the public and to public health departments, public 
drinking

[[Page 713]]

water facilities and other potentially affected public entities, 
including Indian tribes. It provides additional specificity beyond 
existing public notification requirements to ensure timely and 
consistent communication to the public regarding CSO discharges to the 
Great Lakes Basin. Timely notice may allow the public and affected 
public entities to take steps to reduce the public's potential exposure 
to pathogens associated with human sewage, which can cause a wide 
variety of health effects, including gastrointestinal, skin, ear, 
respiratory, eye, neurologic, and wound infections.

DATES: The final rule is effective on February 7, 2018. In accordance 
with 40 CFR part 23, this regulation shall be considered issued for 
purposes of judicial review at 1 p.m. Eastern time on January 22, 2018. 
Under section 509(b) of the Clean Water Act, judicial review of this 
regulation can only be had by filing a petition for review in the U.S. 
Court of Appeals within 120 days after the regulation is considered 
issued for purposes of judicial review.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2016-0376. All documents in the docket are listed on the 
Federal eRulemaking Portal: http://www.regulations.gov. Certain 
materials, such as copyrighted material, is not placed on the internet 
and will be publicly available only in Hard copy form. Publicly 
available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jenelle Hill, Office of Wastewater 
Management, Water Permits Division (MC4203), Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone 
number: (202) 566-1893; email address: [email protected].

SUPPLEMENTARY INFORMATION: The Federal Register published EPA's 
proposed rule on January 13, 2017 (82 FR 4233).

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
II. Background
    A. Combined Sewer Overflows From Municipal Wastewater Collection 
Systems
    B. Combined Sewer Overflows to the Great Lakes Basin
    C. The CSO Control Policy and Clean Water Act Framework for 
Reducing and Controlling Combined Sewer Overflows
    D. NPDES Regulations Addressing CSO Reporting
    E. Section 425 of the Consolidated Appropriations Act of 2016--
Requirements for Public Notification of CSO Discharges to the Great 
Lakes Basin
    F. Working with the Great Lakes States and Requesting Public 
Input
III. Summary of the Proposed Rule and Comments Received
    A. Overview of Proposed Rule
    B. Summary of Comments Received
IV. Revisions to the Final Rule
    A. Revisions To Ensure Consistent Terminology
    B. Revisions to Wording To Clarify That Consolidated Reporting 
Option Applies to Discharges During the Same Precipitation-Related 
Event
    C. Revisions To Extend the Timeframe for the Supplemental Notice 
From 24-Hours to Seven Days
    D. Revisions To Allow Greater Flexibility Regarding Signage
    E. Revisions To Provide Greater Flexibility in the Annual Notice 
Requirements
    F. Revisions To Provide More Flexibility Regarding Model Re-
Calibration
    G. Revisions To Ensure Consultation With Public Health 
Departments Regarding Community-Specific Potentially Impacted Public 
Access Areas
    H. Revisions to the Implementation Schedule To Ensure Plans Are 
Completed Prior to Beginning Implementation of the Public 
Notification Requirements
    I. Revisions To Add Flexibility for Small Permittees Who 
Manually Operate CSO Discharge Controls
V. Final Rule Implementation
    A. Final Rule Requirements
    B. Implementation Considerations
VI. Incremental Benefits and Costs of the Rule
    A. Benefits of the Rule
    B. Costs of the Rule
VII. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

    Section 425 of the Consolidated Appropriations Act of 2016 (Pub. L. 
114-113) (hereafter referred to as ``Section 425'') specifies in Sub-
Section (a)(4) that the term ``Great Lakes'' means ``any of the waters 
as defined in the Section 118(a)(3) of the Federal Water Pollution 
Control Act (33 U.S.C. 1292).'' This, therefore, includes Section 
118(a)(3)(B), which defines ``Great Lakes'' as ``Lake Ontario, Lake 
Erie, Lake Huron (including Lake St. Clair), Lake Michigan, and Lake 
Superior, and the connecting channels (Saint Mary's River, Saint Clair 
River, Detroit River, Niagara River, and Saint Lawrence River to the 
Canadian Border);'' and Section 118(a)(3)(C), which defines ``Great 
Lakes System'' as ``all the streams, rivers, lakes, and other bodies of 
water within the drainage basin of the Great Lakes.'' Collectively, EPA 
is referring to the Great Lakes and the Great Lakes System as the 
``Great Lakes Basin.'' Entities within the Great Lakes Basin 
potentially regulated by this action are shown in Table 1.

         Table 1--Entities Potentially Regulated by This Action
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                                                         North American
                                                            industry
           Category             Examples of regulated    classification
                                       entities          system (NAICS)
                                                              code
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Federal and State government..  EPA or State NPDES                924110
                                 permit authorities.
Local governments.............  NPDES permittees with             221320
                                 a CSO discharge to
                                 the Great Lakes
                                 Basin.
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[[Page 714]]

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated or otherwise affected by this action. 
Other types of entities not listed in the table could also be 
regulated. In addition, this rule is not intended to change the 
conditions under which a NPDES permit is required but, rather, modify a 
specific requirement applicable to certain permittees. To determine 
whether your entity is regulated by this action, you should carefully 
examine the applicability criteria described above and found in Sec.  
122.32, and the discussion in the preamble. As Section II.B explains, 
States in the Great Lakes Basin include New York, Pennsylvania, Ohio, 
Michigan, Illinois, Indiana, Wisconsin, and Minnesota. As of September 
2015, all but one of those States (Minnesota) had active NPDES permits 
for CSO discharges within the Great Lakes Basin subject to the 
requirements of this rule. EPA has included a list of Great Lakes Basin 
CSO permittees, which was compiled in concert with state permitting 
authorities in 2017, in the rulemaking docket (see ``Table of Great 
Lakes Basin CSO Permittees (as of 2017)''). If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

B. What action is the Agency taking?

    EPA is issuing a final rule to establish public notification 
requirements for CSOs to the Great Lakes Basin. The rule implements 
Section 425, which requires EPA to ``work with the affected States 
having publicly owned treatment works that discharge to the Great Lakes 
to create public notice requirements for a combined sewer overflow 
discharge to the Great Lakes'' and prescribes minimum requirements for 
such notice. EPA incorporated existing State approaches for public 
notification in developing these requirements. EPA sought and 
considered Great Lakes States and public input during the development 
of the rule.
    This rule requires CSO permittees \1\ in the Great Lakes Basin, as 
defined, to provide public notification of CSO discharges and specifies 
the minimum content of such notification. The rule's requirements 
include signage at CSO discharge locations and potentially affected 
public access areas, methods of providing public notice of CSO 
discharges, initial and supplemental notice to potentially affected 
public entities and to the public, and an annual notice. The rule 
requires that the annual notice summarize the permittee's CSO 
discharges from the previous year and the CSO permittee's plans for CSO 
controls.
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    \1\ Throughout this preamble the owner or operator of a combined 
sewer system (CSS) is referred to as the ``CSO permittee.''
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    In addition, the rule includes requirements for Great Lakes Basin 
CSO permittees to develop a public notification plan that reflects 
community-specific details (e.g., proposed monitoring locations, means 
for disseminating information to the public) as to how the permittee 
would implement the public notification requirements. Permittees are 
required to seek and consider input on these plans from local public 
health departments and other potentially affected entities whose waters 
may be impacted by their CSO discharges. The rule requires that Great 
Lakes Basin CSO permittees submit the public notification plan to the 
NPDES permitting authority (``Director'') by August 7, 2018. The public 
notification plan provides a means of public engagement on the details 
of implementation of the notification requirements.
    This rule protects public health by:
     Ensuring timely notice to the public of CSO discharges. 
This notice is intended to alert members of the public to CSO 
discharges which may allow them to take steps, such as avoiding 
activities on the water, to reduce their potential exposure to 
pathogens associated with human sewage, which can cause a wide variety 
of health effects, including gastrointestinal, skin, ear, respiratory, 
eye, neurologic, and wound infections.
     Ensuring timely notice to local public health departments, 
public drinking water facilities and other potentially affected public 
entities, including Indian tribes, of CSO discharges. This notice is 
intended to alert these entities to specific CSO discharges and support 
the development of appropriate responses to the discharges, such as 
ensuring that beach and waterbody closures and advisories reflect the 
most accurate and up-to-date information or adjusting the intake or 
treatment regime of drinking water treatment facilities that have 
intakes from surface waters impacted by CSO discharges.
     Providing the community and interested stakeholders with 
effective and meaningful follow-up notification that summarizes the 
permittee's CSO discharges from the previous year and provides 
stakeholders with information on the CSO permittee's plans to control 
CSO discharges. This information is intended to help the community 
understand the current performance of their collection system and how 
the community's ongoing investment to reduce overflows would address 
the impacts of CSOs.
    The public notification requirements, including the requirement to 
develop a public notification plan, are implemented through two 
regulatory mechanisms: Requirements that apply directly to existing 
NPDES permittees and conditions for permits renewed or issued in the 
future. This two-stage implementation approach ensures that the 
requirements of Section 425 are implemented promptly as the 
Appropriations Act directed EPA to do and also ensures that the 
benefits of the rule can begin to accrue as quickly as possible, rather 
than delaying these public health benefits until future permit 
renewals, which for some permittees could be as long as five or more 
years away.
    First, EPA is adding a new section to the NPDES permit regulations, 
codified at Sec.  122.38, establishing the public notification 
requirements for Great Lakes Basin CSO permittees. The requirements in 
Sec.  122.38 apply directly to existing Great Lakes Basin CSO 
permittees until their NPDES permits are next reissued after February 
7, 2018, unless the permit has been proposed prior to February 7, 2018, 
in which case the requirements would be incorporated into the next 
permit renewal.
    The public notification plan requirements apply directly to CSO 
permittees discharging to the Great Lakes Basin beginning August 7, 
2018 and the notification methods (other than the annual notice) apply 
directly beginning November 7, 2018. The annual notice requirements 
apply beginning in February 7, 2019 (or an alternative date specified 
by the Director), which allows permittees time to collect data for the 
first year.\2\ In keeping with Section 425, the Director may extend the 
compliance dates for notification and/or submittal of the public 
notification plan for individual communities if the Director determines 
the community needs additional time to comply in order to avoid undue 
economic hardship.
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    \2\ EPA expects the first annual notice will only contain a 
partial year of data because the reporting period is for a calendar 
year and the permittee will not have begun implementing the 
notification requirements on January 1 of the first year.
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    Second, the public notification requirements for CSO discharges to 
the Great Lakes Basin shall be implemented as a condition in NPDES 
permits when they are next reissued after February 7,

[[Page 715]]

2018, unless the permit has been proposed prior to February 7, 2018 in 
which case the requirements would be incorporated into the next permit 
renewal. When the permittee's CSO NPDES permit is reissued, the permit 
is required to include a permit condition addressing public 
notification of CSO discharges to the Great Lakes Basin. The permit 
condition incorporates the requirements in Sec.  122.38 for signage, 
methods of notification and annual notice, as well as requirements to 
provide specific information relevant to the permittee's implementation 
of the notification requirements.

C. What is the Agency's authority for taking this action?

    This rule is authorized by Section 425 of the Consolidated 
Appropriations Act of 2016 (Pub. L. 114-113) and the Federal Water 
Pollution Control Act, 33 U.S.C. 1251 et seq., including sections 
1314(i), 1318, 1342 and 1361(a). Section 425 requires EPA to ``work 
with the affected States having publicly owned treatment works that 
discharge to the Great Lakes to create public notice requirements for a 
combined sewer overflow discharge to the Great Lakes.'' While this rule 
is called for by an appropriations bill, EPA has independent authority 
under the Clean Water Act to require these public notification 
provisions. Specifically, EPA is promulgating this rule under CWA 
sections 304(i), 308, 402, and 501. Section 304(i) authorizes EPA to 
establish minimum procedural and other elements of State programs under 
section 402, including reporting requirements and procedures to make 
information available to the public. In addition, EPA is promulgating 
this rule under section 308, which authorizes EPA to require access to 
information necessary to carry out the objectives of the CWA. Section 
402 establishes the NPDES permit program for the control of the 
discharge of pollutants into the nation's waters. EPA is promulgating 
this rule under section 402(a)(2), which authorizes the Administrator 
to prescribe conditions in permits, including conditions on data and 
information collection, reporting and other requirements he deems 
appropriate and 402(b) and (c), which require each authorized State, 
tribe, or territory to ensure that permits meet certain substantive 
requirements. Section 402(q) requires NPDES permits for discharges from 
combined sewers to ``conform'' to the 1994 CSO Control Policy. Finally, 
EPA is promulgating this rule under the authority of section 501, which 
authorizes EPA to prescribe such regulations as are necessary to carry 
out provisions of the CWA.

II. Background

A. Combined Sewer Overflows From Municipal Wastewater Collection 
Systems

    Municipal wastewater collection systems collect domestic sewage and 
other wastewater from homes and other buildings and convey it to 
wastewater treatment plants for treatment and disposal. The collection 
and treatment of municipal sewage and wastewater is vital to the public 
health in our cities and towns. In the United States, municipalities 
historically have used two major types of sewer systems--separate 
sanitary sewer systems and CSSs.
    Municipalities with separate sanitary sewer systems use that system 
solely to collect domestic sewage and convey it to a publicly owned 
treatment works (POTW) treatment plant for treatment. These 
municipalities also have separate sewer systems to collect surface 
drainage and stormwater, known as ``municipal separate storm sewer 
systems'' (MS4s). Separate sanitary sewer systems are not designed to 
collect large amounts of runoff from rain or snowmelt or provide 
widespread surface drainage, although they typically are built with 
additional allowance for some amount of stormwater or groundwater that 
enters the system as a result of storm events.
    The other type of sewer system, CSSs, is designed to collect both 
sanitary sewage and stormwater runoff in a single-pipe system. This 
type of sewer system provides the primary means of surface drainage by 
carrying rain and snowmelt away from streets, roofs, and other 
impervious surfaces. CSSs were among the earliest sewer systems 
constructed in the United States and were built until the first part of 
the 20th century. While some municipalities have undertaken projects to 
replace CSSs with separate sanitary sewer systems, such projects can be 
very expensive so many CSSs still exist in the United States.
    Under normal, dry weather conditions, combined sewers transport all 
of the wastewater collected to a sewage treatment plant for treatment. 
However, under wet weather conditions, when the volume of wastewater 
and stormwater exceeds the capacity of the CSS or treatment plant, 
these systems are designed to divert some of the combined flow prior to 
reaching the POTW treatment plant and to discharge combined stormwater 
and sewage directly to nearby streams, rivers and other water bodies. 
These discharges of sewage from a CSS that occur prior to the POTW 
treatment plant are referred to as combined sewer overflows or CSOs. 
Depending on the CSS infrastructure design, CSO discharges may be 
untreated or may receive some level of treatment, such as solids 
settling in a retention basin and disinfection, prior to discharge.
    CSO discharges contain human and industrial waste, toxic materials, 
and debris as well as stormwater. CSO discharges can be harmful to 
human health and the environment because they introduce pathogens 
(e.g., bacteria, viruses, protozoa) and other pollutants to receiving 
waters, causing beach closures, impairing water quality, and 
contaminating drinking water supplies and shellfish beds. CSOs can also 
cause depleted oxygen levels in receiving waters which can impact fish 
and other aquatic populations. (See EPA-HQ-OW-2016-0376-0043, -0056, -
0057, and -0070.)
    CSSs serve a total population of about 40 million people 
nationwide. Most communities with CSSs are located in the Northeast and 
Great Lakes regions, particularly in Illinois, Indiana, Maine, 
Michigan, New York, Ohio, Pennsylvania, and West Virginia. Although 
large cities like Chicago, Cleveland, and Detroit have CSSs, most 
communities with CSSs have fewer than 50,000 people. Most CSSs have 
multiple CSO discharge locations (also referred to as outfalls), with 
some larger communities with CSSs having hundreds of CSO discharge 
locations.

B. Combined Sewer Overflows to the Great Lakes Basin

    As of September 2015, 859 active NPDES permits for CSO discharges 
had been issued in 30 States plus the District of Columbia and Puerto 
Rico. Of these 859 permits, 162 permits \3\ are for CSO discharges to 
waters located in the watershed for the Great Lakes and the Great Lakes 
System (``Great Lakes Basin,'' as explained in Section I.A). The 162 
permits for CSO discharges to

[[Page 716]]

the Great Lakes Basin have been issued to 158 communities \4\ or 
permittees. These permittees are located in the States of New York, 
Pennsylvania, Ohio, Michigan, Illinois, Indiana, and Wisconsin. See 
``Table of Great Lakes Basin CSO Permittees (as of 2017)'' in the 
rulemaking docket for a list of Great Lakes Basin CSO permittees that 
was compiled in 2017; this list will serve as a starting point for 
State permitting authorities as they evaluate the applicability of this 
rule to their permittees. CSO communities are scattered across the 
Great Lakes Basin, with the greatest concentration in Ohio, 
southeastern Michigan and northeastern Indiana discharging to Lake 
Erie, and in northern Indiana and southwestern Michigan discharging to 
Lake Michigan (see Figure 1).
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    \3\ EPA identified 184 CSO permits in the Great Lakes Basin in 
the 2016 Report to Congress: Combined Sewer Overflows into the Great 
Lakes Basin (EPA 833R-16-006) (EPA-HQ-OW-2016-0376-0043). EPA has 
adjusted that estimate to reflect additional information. First, 32 
CSO permittees identified in the Report to Congress were subtracted; 
31 CSO permittees because their permit coverage had been terminated 
due to sewer separation or other reasons and one CSO permittee 
because they do not discharge to the Great Lakes Basin. Second, EPA 
conducted a GIS analysis and verified with States that 10 permits 
for CSO discharges to the Great Lakes Basin were not identified in 
the 2016 Great Lakes CSO Report to Congress. A list of these 42 
permits is available in the docket for this rulemaking.
    \4\ The number of CSO communities in the Great Lakes Basin is 
different than the number of CSO permits. Two CSO communities have 
more than one CSO NPDES permit. These include Metropolitan Water 
Reclamation District of Greater Chicago (MWRDGC) (4 permits) and the 
City of Oswego, NY (2 permits). For the purposes of counting 
communities, communities with multiple CSO permits are counted as 
one CSO community.
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    The majority of the CSO discharges in the Great Lakes Basin are 
into waterbodies that are tributary to one of the Great Lakes, while a 
small number of those discharges are directly into one of the Great 
Lakes. In compiling the list of permittees subject to the requirements 
of this rule included in the rulemaking docket (``Table of Great Lakes 
Basin CSO Permittees (as of 2017)''), EPA consulted with State 
permitting authorities and drainage basin maps for the Great Lakes to 
confirm that these discharges have the potential to impact the Great 
Lakes. Because the water in streams and rivers within the drainage 
basin for a Great Lake has the potential to reach the Great Lakes, EPA 
has concluded that this rulemaking should apply to all permittees 
authorized to discharge CSOs in the Great Lakes Basin, consistent with 
the goal of providing public notification of CSO discharges affecting 
the Great Lakes.
[GRAPHIC] [TIFF OMITTED] TR08JA18.004

    EPA recently summarized available information on the occurrence and 
volume of discharges from CSOs to the Great Lakes Basin during 2014 
(see EPA-HQ-OW-2016-0376-0043), contained in the public docket for this 
rulemaking. As summarized in this report, seven States reported 1,482 
events where untreated sewage was discharged from CSOs to the Great 
Lakes Basin in 2014 and an additional 187 CSO events where partially 
treated sewage was discharged. For the purposes of the Report, 
partially treated discharges referred to CSO discharges that received 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 floatable disposal; and
     Disinfection of effluent, if necessary to meet water 
quality standards and protect human health, including removal of 
harmful disinfection chemical residuals, where necessary.
    Additional information regarding CSO discharges to the Great Lakes 
Basin, including the Report to Congress, is available at https://www.epa.gov/npdes/combined-sewer-overflows-great-lakes-basin. Table 2 
provides the size distribution of the 158 CSO communities in the Great 
Lakes Basin.

[[Page 717]]

                       Table 2--Great Lakes Basin CSO Communities by Community Population
----------------------------------------------------------------------------------------------------------------
                                                     Community population
                                 ------------------------------------------------------------        Total
                                      Over 50,000        10,000-49,999       Under 10,000
----------------------------------------------------------------------------------------------------------------
Number of CSO Communities.......                 35                  69                  54                 158
----------------------------------------------------------------------------------------------------------------
Permits issued to Metropolitan Water Reclamation District of Greater Chicago and Wayne County used the
  population for Chicago and Wayne County, respectively.

    As stated above, CSOs can cause human health and environmental 
impacts (see EPA-HQ-OW-2016-0376-0043, -0056, -0057, and -0070). CSOs 
often discharge simultaneously with other wet weather sources of water 
pollution, including stormwater discharges from various sources 
including municipal separate storm sewers, wet weather sanitary sewer 
overflows (SSOs) from separate sanitary sewer systems, and nonpoint 
sources of pollution. The cumulative effects of wet weather pollution 
from point and nonpoint sources can make it difficult to identify and 
assign specific cause-and-effect relationships between CSOs and 
observed water quality problems. The environmental impacts of CSOs are 
most apparent at the local level (see EPA-HQ-OW-2016-0376-0043, -0056, 
-0057, and -0070).

C. The CSO Control Policy and Clean Water Act Framework for Reducing 
and Controlling Combined Sewer Overflows

    The CWA establishes national goals and requirements for maintaining 
and restoring the nation's waters. CSO discharges are point sources 
subject to the technology-based and water quality-based requirements of 
the CWA under NPDES permits. Technology-based effluent limitations for 
CSO discharges are based on the application of best available 
technology economically achievable (BAT) for toxic and nonconventional 
pollutants and best conventional pollutant control technology (BCT) for 
conventional pollutants. BAT and BCT effluent limitations for CSO 
discharges are determined based on ``best professional judgment.'' CSO 
discharges are not subject to permit limits based on secondary 
treatment requirements that are applicable to discharges from POTWs.\5\ 
Permits authorizing discharges from CSO discharge points must include 
more stringent water quality-based requirements, when necessary, to 
meet water quality standards (WQS).
---------------------------------------------------------------------------

    \5\ Montgomery Environmental Coalition et al. v. Costle, 646 
F.2d 568, 592 (D.C. Cir. 1980).
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    EPA issued the CSO Control Policy on April 19, 1994 (59 FR 18688). 
The 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 effort to achieve cost-effective CSO controls that 
ultimately meet appropriate health and environmental objectives.'' (59 
FR 18688). The policy assigns primary responsibility for implementation 
and enforcement to NPDES permitting authorities (generally referred to 
as the ``Director'' in the NPDES regulations) and water quality 
standards authorities.
    The policy also established objectives for CSO permittees to: (1) 
Implement ``nine minimum controls'' and submit documentation on their 
implementation; and (2) develop and implement a long-term CSO control 
plan (LTCP) to ultimately result in compliance with the CWA, including 
water quality-based requirements. In describing NPDES permit 
requirements for CSO discharges, the CSO Control Policy states that the 
BAT/BCT technology-based effluent limitations ``at a minimum include 
the nine minimum controls'' (59 FR 18696). One of the nine minimum 
controls is ``Public notification to ensure that the public receives 
adequate notification of CSO occurrences and CSO impacts.''
    In December 2000, as part of the Consolidated Appropriations Act 
for Fiscal Year 2001 (Pub. L. 106-554), Congress amended the CWA by 
adding Section 402(q). This amendment is commonly referred to as the 
``Wet Weather Water Quality Act of 2000.'' It requires that each 
permit, order, or decree issued pursuant to the CWA after the date of 
enactment for a discharge from a municipal combined sewer system shall 
conform to the CSO Control Policy.

D. NPDES Regulations Addressing CSO Reporting

    The NPDES regulations require NPDES permits to include requirements 
for monitoring discharges, including CSO discharges, and reporting the 
results to the permitting authority with a reporting frequency 
dependent on the nature and effect of the discharge, but in no case 
less than once a year. See Sec.  122.44(i)(2). In addition, NPDES 
permits must require permittees to report noncompliance, including CSO 
discharges, to their permitting authority. Permit noncompliance that 
may endanger health or the environment must be reported by the 
permittee to their permitting authority both orally and through a 
report submission. See Sec.  122.41(l)(6). All other noncompliance must 
be reported when other monitoring reports are submitted (e.g., 
Discharge Monitoring Reports (DMRs)). See Sec.  122.41(l)(7).

E. Section 425 of the Consolidated Appropriations Act of 2016--
Requirements for Public Notification of CSO Discharges to the Great 
Lakes Basin

    Section 425 was enacted as part of the 2016 Consolidated 
Appropriations Act and did not amend the CWA. Section 425(b)(1) 
requires EPA to work with the Great Lakes States to establish public 
notice requirements for CSO discharges to the Great Lakes Basin. 
Section 425(b)(2) provides that the notice requirements are to address 
the method of the notice, the contents of the notice, and requirements 
for public availability of the notice. Section 425(b)(3)(A) provides 
that, at a minimum, the contents of the notice are to include the dates 
and times of the applicable discharge; the volume of the discharge; and 
a description of any public access areas impacted by the discharge. 
Section 425(b)(3)(B) provides that the minimum content requirements are 
to be consistent for all affected States.
    Section 425(b)(4)(A) calls for follow-up notice requirements that 
provide a description of each applicable discharge; the cause of the 
discharge; and plans to prevent a reoccurrence of a CSO discharge to 
the Great Lakes Basin consistent with section 402 of the Federal Water 
Pollution Control Act (33 U.S.C. 1342) or an administrative order or 
consent decree under such Act. Section 425(b)(4)(B) provides for annual 
publication requirements that list each treatment works from which the 
Administrator or the affected State receive a follow-up notice.
    Section 425(b)(5) requires that the notice and publication 
requirements described in Section 425 shall be implemented within two 
years. The

[[Page 718]]

Administrator of the EPA, however, may extend the implementation 
deadline for individual communities if the Administrator determines the 
community needs additional time to comply in order to avoid undue 
economic hardship. Finally, Section 425(b)(6) clarifies that 
``[n]othing in this subsection prohibits an affected State from 
establishing a State notice requirement in the event of a discharge 
that is more stringent than the requirements described in this 
subsection.''

F. Working With the Great Lakes States and Requesting Public Input

    As called for in the legislation, EPA worked with the Great Lakes 
States in developing the rule to implement section 425 of the 2016 
Consolidated Appropriations Act. In discussions with EPA, NPDES program 
officials in each State with CSO discharges to the Great Lakes Basin 
described existing State notification requirements, shared insights on 
implementation issues and provided individual perspectives during the 
development of the proposed rule.
    On August 1, 2016, EPA published a notice in the Federal Register 
requesting stakeholder input on potential approaches for developing 
public notice requirements for CSO discharges to the Great Lakes Basin 
under section 425. As part of this effort, EPA held a public 
``listening session'' on September 14, 2016, in Chicago, Illinois, 
which provided stakeholders and other members of the public an 
opportunity to share their views regarding potential new public 
notification requirements for CSO discharges to the Great Lakes Basin. 
A summary of the oral comments made at the public listening session is 
included in the docket for this rulemaking.\6\ In addition, the Agency 
requested written comments. EPA received a total of 787 written 
comments, all of which were submitted to the docket (see EPA-HQ-OW-
2016-0376-0002 through EPA-HQ-OW-2016-0376-0041). These comments 
informed the development of the proposed rule and were discussed 
throughout the preamble to the proposed rule.
---------------------------------------------------------------------------

    \6\ See Docket ID No. EPA-HQ-OW-2016-0376 at http://www.regulations.gov.
---------------------------------------------------------------------------

    On January 13, 2017, EPA published the proposed rule requesting 
comments on Public Notification Requirements for Combined Sewer 
Overflows to the Great Lakes Basin (82 FR 4236). The comment period for 
the proposed rule closed on March 14, 2017. EPA received a total of 
1,300 written comments, which were submitted to the docket (see EPA-HQ-
OW-2016-0376-0129 through EPA-HQ-OW-2016-0376-0176). EPA briefed NPDES 
program officials in the Great Lakes States on the comments EPA 
received, and the officials engaged in discussions with EPA about 
possible revisions to the proposed rule to address the public comments. 
Comments received on the proposed rule are discussed further in Section 
III.

III. Summary of the Proposed Rule and Comments Received

    The proposed requirements to implement Section 425 were based on an 
evaluation of current notification requirements and practices in the 
Great Lakes Basin and elsewhere, and input from officials in the Great 
Lakes States and the public, including input received in response to 
EPA's August 1, 2016 request. The proposal explained EPA's expectations 
for CSO permittees discharging to the Great Lakes Basin to ensure that 
the public receives adequate notification of CSO occurrences and CSO 
impacts. The proposed requirements aligned with the CSO Control Policy, 
which includes public notification as one of the nine minimum controls 
for CSO permittees.

A. Overview of Proposed Rule

    The Federal Register published EPA's proposed rule on January 13, 
2017 (82 FR 4233). EPA proposed requirements for public notification of 
CSO discharges to the Great Lakes Basin to be codified at Sec.  122.38. 
The proposed requirements addressed signage, initial and supplemental 
notification of local public health departments and other potentially 
affected public entities (which may include neighboring municipalities, 
public drinking water utilities, State and county parks and recreation 
departments and Indian tribes) whose waters may be potentially 
impacted, initial and supplemental notification of the public and 
annual notice to the public and the Director.
    EPA further proposed to require NPDES permittees authorized to 
discharge CSOs to the Great Lakes Basin to develop a public 
notification plan that would provide community-specific details as to 
how they would implement the notification requirements. Under the 
proposal, CSO permittees in the Great Lakes Basin would seek and 
consider input from local public health departments, any potentially 
affected public entities and Indian tribes whose waters may be impacted 
by the permittee's CSO discharges in developing the public notification 
plan that would be submitted to the Director. Under the proposed rule, 
the plan would be made available to the public and submitted to the 
Director within six months of the publication date of the final rule.
    Under the proposed rule, the requirement to provide public notice 
of CSO discharges would initially apply by regulation to all existing 
CSO permittees. Then, as the NPDES permit for each CSO permittee is 
reissued, the proposed rule at Sec.  122.42(f) would require that the 
public notice condition be incorporated into all such permits.

B. Summary of Comments Received

    EPA received about 45 unique comments on the proposed rule from 
States, municipalities, environmental stakeholders, trade associations, 
and other members of the public. Many commenters expressed support for 
required public notification of CSO discharges in the Great Lakes 
Basin, while other commenters suggested that aspects of the proposed 
rule were too burdensome. Many commenters supported some aspects of the 
proposed rule while suggesting revisions to other parts. Below is a 
summary of some of the key topics on which EPA received comments. For a 
full account of comments received, see the rulemaking docket.
     ``Great Lakes'' versus ``Great Lakes Basin''--Several 
commenters asserted that Section 425 was only intended to address CSO 
discharges directly into the Great Lakes, rather than CSO discharges 
into waters in the Great Lakes Basin as proposed while others supported 
the scope of the proposed rule. For discussion of EPA's rationale for 
retaining the scope of the rulemaking to cover the Great Lakes Basin 
see Section II.B. EPA also received comments which recommended that the 
rulemaking should be applied nationally and not just limited to the 
Great Lakes region. Given the short two-year implementation timeframe 
in Section 425 and the specific statutory intent, EPA chose to limit 
the scope of this rulemaking to the Great Lakes region.
     Untreated CSOs versus All CSOs (untreated and partially 
treated)--Some commenters suggested that the requirements of the rule 
should only apply to untreated CSOs, while several others agreed with 
the approach in the proposed rule. For discussion of EPA's decision to 
apply the requirements to all CSO discharges see Sections II.B and 
V.B.3.
     Initial notice timing--Some commenters suggested that the 
proposed time window of four hours for the initial notice was too long, 
while some felt it was an appropriate length, and others suggested 
longer time windows. For discussion of EPA's decision to retain

[[Page 719]]

the four-hour time frame see Section V.B.5; also see Section IV.I.
     Supplemental notice timing--Many commenters suggested that 
the time period in which the supplemental notice must be provided 
should be longer than the proposed 24 hours. Many commenters suggested 
timeframes of five or seven days. For discussion of changes EPA has 
made to the supplemental notice timing see Section IV.C.
     Annual notice requirements--Some commenters supported the 
annual notice requirements in the proposed rule. Others said the annual 
notice is duplicative of other requirements (e.g., the proposed 
supplemental notice requirements, existing permit requirements). Some 
commenters suggested that instead of permittees, States should be 
required to compile the annual notice and make it publicly available. 
For discussion of EPA's rationale for retaining the annual notice 
requirements, as well as changes that EPA has made in the final rule in 
response to comments on the annual notice requirements, see Sections 
IV.E, V.B.2, and VI.A.
     Implementation timeline--Many commenters agreed with the 
implementation timeline and two-stage approach with the flexibility for 
the Director to extend the compliance dates on a case-by-case basis. 
Some commenters preferred that EPA delay implementation of the 
requirements until the next permit renewal. Other commenters suggested 
12 months rather than 6 months be allowed for some or all communities 
to initially implement the new requirements. For discussion of EPA's 
rationale for the final rule compliance timeline, two-stage approach, 
as well as the flexibility in the final rule for the Director to extend 
that timeline, see Sections II.E, IV.H, V.B.7, and VI.A.
    The next section (Summary of Revisions Made in the Final Rule) 
includes an explanation of all of the revisions EPA has made in the 
final rule in response to the public comments received on the proposed 
rule. In addition, EPA has prepared a response to comments document, 
which can be found in the docket for this rulemaking.

IV. Revisions to the Final Rule

    EPA reviewed and considered public comments received on the 
proposed rule and made several modifications to the regulatory 
requirements in response to those comments. Below is a summary of those 
revisions, some of which involve clarifying language to better convey 
the intent of the requirement, while others address the substance of 
the requirement. The list of regulatory changes in each sub-section 
below is organized by references to the proposed rule (see 82 FR 4233) 
sections and numbering, references within the summary of the change 
include citations to the final rule. The revisions EPA has made are 
intended to respond to the comments, increase flexibility for States, 
and ease implementation.

A. Revisions To Ensure Consistent Terminology

    Edits were made to the following proposed regulatory text to 
improve clarity and consistency of language used:
     Sec.  122.21(j)(8)(iii)--``Each applicant that 
discharges'' revised to ``Each permittee authorized to discharge.'' 
Edit made to be consistent with terminology in: Sec.  122.38(a) and 
(b).
     Sec.  122.38(d)(4)--``that may be affected'' revised to 
``that may be impacted.'' Edit made to be consistent with terminology 
in: Sec.  122.38(a)(1)(i) and (iii), (a)(2)(i)(B), (a)(3)(ii)(B), and 
(b)(5).
    [cir] Conforming edits were also made at: Sec.  122.38 (a)(2)(i), 
(c)(6), and (d)(2) (from ``whose waters may be affected'' to ``whose 
waters may be impacted'').
     Sec.  122.38(b)(6)--``public access areas impacted by each 
CSO discharge'' revised to ``public access areas potentially impacted 
by each CSO discharge.'' This ensures consistency with the above 
mentioned sections where the word ``potentially'' is used with 
``impacted'' to make clear that the permittee does not need to verify 
if the area was impacted, but rather to consider if there is potential 
for the area to be impacted by the CSO discharge.
     Sec.  122.42(f)--``Any permit issued for combined sewer 
overflow (CSO) discharges to the Great Lakes Basin'' revised to ``Any 
permit issued authorizing the discharge of a combined sewer overflow 
(CSO) to the Great Lakes Basin.'' Edit made to be consistent with 
terminology in: Sec.  122.38(a) and (b), as well as the revision to 
Sec.  122.21(j)(8)(iii) above.
     Sec.  122.38(a)(1)(i)(A)--Revisions to replace the word 
``outfall'' with ``discharge point,'' to use consistent terminology 
with the CSO Policy.
    [cir] Conforming edits were also made at Sec. Sec.  
122.38(a)(1)(ii)(C), (a)(1)(iv), (a)(3)(i), (b) introductory text, 
(b)(1), and (c)(1), (8), and (9) and 122.42(f)(2) and (3).

B. Revisions to Wording To Clarify That Consolidated Reporting Option 
Applies to Discharges During the Same Precipitation-Related Event

    It is EPA's intention that if multiple CSO discharges occur on the 
same water body from multiple CSO discharge locations during the same 
precipitation event, that the permittee has the flexibility to provide 
one public notification to cover the multiple discharges. Some 
commenters pointed out that the wording EPA used in the proposed rule, 
``at the same time,'' was unclear and might imply that the discharges 
had to occur simultaneously, rather than simply as a result of the same 
storm event. Because of this potential lack of clarity, some commenters 
raised questions as to whether multiple CSO discharges that start and 
stop during the same precipitation event would require multiple, 
separate public notices. EPA intends that only one notification be 
required under these circumstances. In addition, EPA has included a 
provision in the rule that allows permittees to provide one notice when 
there are discharges from multiple CSO discharge points as a result of 
the same precipitation event. These notices can describe broader areas 
likely to be impacted by discharges during the precipitation event, 
eliminating the need to provide separate initial notifications every 
time the permittee becomes aware of a new discharge associated with the 
same event. Some commenters questioned whether these discharges had to 
have occurred at exactly the same time in order to be grouped together. 
EPA intends that multiple discharges that result from the same 
precipitation event, even if they are not occurring at exactly the same 
time, may be grouped together in one public notification. EPA has 
revised the wording in the final rule to make this clearer by changing 
the proposed rule's description of discharges occurring ``at the same 
time'' to discharges occurring ``during the same precipitation-related 
event.'' It is EPA's expectation that the initial notification would be 
made within four hours of the permittee becoming aware of the first CSO 
discharge in the group of discharges that are being reported together; 
therefore, grouping multiple discharges into one notification is 
intended to reduce burden but would not provide a community additional 
time beyond the four-hour period.
    EPA is using the terminology ``precipitation-related'' to include 
rainfall, snowfall, and snowmelt. This is consistent with the CSO 
Policy, which states that it applies ``to all CSSs that overflow as a 
result of storm water flow, including snow melt runoff (40 CFR Section 
122.26(b)(13)).''
    EPA has made the following revisions to the wording in the final 
rule to address this:

[[Page 720]]

     Sec.  122.38(a)(2)(i)(B)--revised ``Where CSO discharges 
from the same system occur at multiple locations at the same time'' to 
``Where CSO discharges from the same system occur at multiple locations 
during the same precipitation-related event.''
    [cir] Conforming edits were also made at: Sec.  
122.38(a)(2)(ii)(A), (a)(3)(ii)(B), (a)(3)(iii)(A), and (b)(2).

C. Revisions To Extend the Timeframe for the Supplemental Notice From 
24 Hours to Seven Days

    The final rule requires supplemental information to be provided to 
the public, public health department and other affected public entities 
and Indian Tribes within seven days of the permittee becoming aware 
that the CSO discharge(s) has ended. The proposed rule would have 
required this information to be provided within 24 hours. Many 
commenters indicated that this was too short of a timeframe, and 
suggested that a longer window of five or seven days would be more 
appropriate. Some commenters pointed out that running models and 
validating the estimated discharge volume and duration takes time and 
resources that are not available on nights, weekends, and holidays. 
Other commenters also noted that CSO discharges can be discontinuous, 
so communities need more than 24-hours to determine if the discharge 
has actually ended. In response to these concerns, EPA contemplated 
revising the timeframe to either five or seven days. Some of the State 
permit writers pointed out that five days is consistent with other 
requirements that CSO communities already have, so aligning the 
timeframe would reduce confusion and burden that could be caused by 
multiple reporting requirements.\7\ Because of this, EPA anticipates 
that some States will use five days for the supplemental notice 
requirements in permits to be consistent with this and other reporting 
timeframes. EPA has not precluded this; however, to allow for greater 
flexibility for those circumstances where seven days may make more 
sense, EPA has revised the requirement to allow a maximum of seven days 
for the supplemental notice. Accordingly, EPA has made the following 
revisions in the final rule:
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    \7\ One example that was raised by a NPDES permitting authority 
was an existing NPDES permit condition at Sec.  122.41(l)(6)(i), 
which is a reporting requirement that involves a written report that 
must ``be provided within 5 days of the time the permittee becomes 
aware of the circumstances.''
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     Sec.  122.38(a)(2)(ii)--revised ``Within twenty-four (24) 
hours'' to ``Within seven (7) days.''
    [cir] Conforming edits were also made at: Sec.  122.38(a)(3)(iii).

D. Revisions To Allow Greater Flexibility Regarding Signage

    EPA received several comments regarding the burden of the signage 
requirement in the proposed rule. Specifically, commenters indicated 
that the burden estimate did not adequately account for the high 
replacement rate that would occur if the signs need to be replaced when 
they were next reset. EPA's intention was that signs would be updated 
to reflect the required information when they need to be replaced due 
to normal wear or damage. Based on this reasoning, EPA estimated that 
signs would need to be replaced once every 10 years. It is now EPA's 
understanding that in some communities' signs are reset at a much 
higher rate (for example some signs are located in an area where they 
fall down regularly and the community frequently stands the sign back 
up and re-secures it in the ground (i.e., resets the sign)). In order 
to better represent EPA's intentions for this requirement, EPA has 
deleted ``or reset'' from the final regulation as follows:
     Sec.  122.38(a)(1)(iii)--deleted ``or reset'' from ``the 
sign is not required to meet the minimum requirements specified in 
paragraph (i) until the sign is replaced or reset.''
    Some commenters also indicated that there are certain circumstances 
under which signage at a CSO discharge point is not warranted because 
there is no means for public access of the receiving water in the 
vicinity of the discharge point. Because one of the drivers behind this 
rulemaking is to reduce the public's exposure to CSO discharges, EPA 
has decided to add some flexibility for those instances where it is not 
expected that the public will be able to access the area or come into 
contact with the receiving water and therefore would not benefit from 
the notification that the signage would have provided. EPA has added 
language to the final rule to allow the Director to waive the signage 
requirement if such conditions have been demonstrated by the permittee 
to the Director's satisfaction. EPA has made the following change to 
the final rule to reflect this:
     Sec.  122.38(a)(1)(i)--added ``(unless the permittee 
demonstrates to the Director that no public access of, or public 
contact with, the receiving water is expected)'' after CSO discharge 
point. EPA has also made some minor formatting edits to this part of 
the provision to improve clarity.

E. Revisions To Provide Greater Flexibility in the Annual Notice 
Requirements

    EPA received several comments on the annual notice requirements in 
the proposed rule. Some commenters suggested that the requirements were 
redundant of other current reporting requirements in CSO permits. Some 
commenters asserted that the annual notice requirements were overly 
burdensome. The annual notice requirements are intended to ensure that 
the statutory requirements in Section 425 are addressed by the rule, 
including requirements outlined in Section 425(b)(4) for: Follow-up 
notice that provides a ``description of each applicable discharge,'' 
``the cause of the discharge,'' and ``plans to prevent a reoccurrence 
of a combined sewer overflow discharge to the Great Lakes''; as well as 
annual publication ``that list each treatment works from which the 
Administrator or the affected State receive a follow-up notice.''
    The final rule is responsive to these components of Section 425 by 
requiring:
     A description of each applicable discharge, including: 
Location, receiving water, any treatment provided (if applicable), 
date, location, duration, volume, and a description of any public 
access areas that were potentially impacted by the CSO discharge, and a 
summary of any monitoring data for CSO discharges (if available).
     Information on the cause of each discharge, and when that 
cause is precipitation, information on the amount of precipitation that 
caused the discharge.
     Information on plans to prevent a reoccurrence of CSO 
discharges in the form of a concise summary of implementation of the 
nine minimum controls and the status of implementation of the CSO long-
term control plan (or a similar plan that explains how the permittee is 
addressing CSO discharges).
    Providing annual notice improves transparency and accountability to 
the public about the presence and magnitude of CSO discharges in their 
community. It also highlights progress that is being made by permittees 
to reduce CSO discharges and highlights the value of investments that 
are being made in the infrastructure.
    The final rule also includes several revisions to the annual notice 
requirements to improve clarity and allow more flexibility. The added 
flexibilities are intended to allow Great Lakes Basin CSO permittees 
that are already subject to existing State or local reporting 
requirements, which contain

[[Page 721]]

the same information as required in this rule's annual notice 
requirement, to use these reports to meet this rule's requirements. The 
flexibilities also allow a permittee, whose State permitting authority 
publishes an annual CSO report that contains the same information for a 
Great Lakes Basin CSO permittee as is required in this rule's annual 
notice requirement, to use the State report to meet the rule's 
requirements. Revisions to the final rule to add these flexibilities 
include:
     Sec.  122.38(b)--Revised ``(or an earlier date specified 
by the Director)'' to ``(or an alternative date specified by the 
Director)'' to allow the Director the flexibility to specify an 
alternative due date for the annual notice to be made available to the 
public. This allows the Director to specify an alternative due date to 
coincide with an existing reporting requirement, where one exists.
     Sec.  122.38(b)--Added a sentence to the end of the 
introductory text of Sec.  122.38(b) pertaining to permittees whose 
State permitting authority has published or will publish an annual 
report containing all of the required minimum information about the 
Permittee, that allows the Permittee to make available the State-issued 
annual report in order to meet this requirement. This addresses 
scenarios like that in Michigan, described in Section V.B.2 below.
     Sec.  122.38(b)--Added a sentence to the end of the 
introductory text of Sec.  122.38(b) to allow permittees that have 
existing report(s) that are written annually that collectively contain 
all of the required minimum information to make that/those report(s) 
publicly available in order to meet the requirement. This gives 
Permittees the flexibility to use existing CSO reports, if they contain 
all of the minimum information required by the final rule, to meet the 
annual notice requirement.
     Sec.  122.38(b)(1) and (d)(11)--Deleted the minimum 
requirement to include ``Information on the availability of the 
permittee's public notification plan and a summary of significant 
modifications to the plan that were made in the past year.'' EPA 
concluded that this proposed requirement was somewhat duplicative of 
another requirement in the rule, under the public notification plan 
requirements at final rule Sec.  122.38(c). In addition, to ensure that 
a summary of significant \8\ modifications to the public notification 
plan is made available, EPA added language to the final rule at Sec.  
122.38(c)(11) stating that the public notification plan must include a 
description of significant modifications to the plan that were made 
since it was last updated.''
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    \8\ EPA has not defined ``significant'' in the final rule in 
order to give communities discretion to highlight what they consider 
to be significant in their community-specific context. Some examples 
of the types of changes that EPA expects will be described in the 
summary include: Addition or removal of potentially affected public 
entities and Indian Tribes whose waters may be impacted by a CSO 
discharge, changes to the list of potentially impacted public access 
areas, changes to the method of notice to the public, changes to the 
protocols for notification to the public health department or other 
potentially affected public entities and Indian Tribes, or changes 
to the list of CSO discharge points for which notification is 
provided.
---------------------------------------------------------------------------

     Sec.  122.38(b)(2)--Revised from ``A description of the 
location, treatment provided and receiving water for each CSO outfall'' 
to ``A description of the location and receiving water for each CSO 
discharge point, and, if applicable, any treatment provided.'' This 
change is intended to make clear that treatment information does not 
have to be provided if the CSO discharge does not receive treatment. 
This revision also includes replacing the word ``outfall'' with 
``discharge point,'' which is explained above in Section IV.A.
     Sec.  122.38(b)(3)--Revised ``The date, location, 
duration, and volume of each wet weather CSO discharge'' to ``The date, 
location, approximate duration, measured or estimated volume, and cause 
(e.g., rainfall, snowmelt) of each wet weather CSO discharge.''
    [cir] By adding the words ``approximate'' and ``measured or 
estimated,'' the rule now clarifies that the same level of accuracy 
needed for the supplemental notice will suffice for the annual notice. 
It is EPA's expectation that the permittee will be able to simply 
summarize the date, location, duration, and volume information from the 
initial and supplemental notice in the annual notice.
    [cir] This edit also includes the addition of the ``cause'' of the 
discharge to the information required for the annual notice. EPA 
intended that the requirement of Section 425(b)(4)(A)(ii) to describe 
the cause of the discharge would be addressed by the requirement to 
include rainfall data for each CSO discharge listed in the annual 
notice. However, commenters pointed out that wet weather CSO discharges 
may also be caused by snowmelt, and the inclusion of daily 
precipitation data would not explain the cause of those discharges. EPA 
has therefore added ``cause (e.g., rainfall, snowmelt)'' to the list of 
required information.
     Sec.  122.38(b)(4)--Added ``cause'' to the list of 
required information for each dry weather CSO discharge. Similar to the 
explanation above, this revision ensures the final rule is consistent 
with the requirement of Section 425(b)(4)(A)(ii) to describe the cause 
of the discharge.
     Sec.  122.38(b)(7)--Revised from ``Representative rain 
gauge data in total inches to the nearest 0.1 inch that resulted in a 
CSO discharge'' to ``Representative precipitation data in total inches 
to the nearest 0.1 inch that resulted in a CSO discharge, if 
precipitation was the cause of the discharge identified in (Sec.  
122.38(b)(2)).''
    [cir] EPA replaced ``rain gauge data'' with ``precipitation data'' 
because commenters pointed out that rain gauge data may not be 
available for every CSO discharge, or in every community. By using 
broader terminology, EPA intends to allow communities the flexibility 
to use various data sources to meet this requirement. For example, some 
communities may choose to simply download daily precipitation data for 
their area from a publicly available source (e.g., National Oceanic and 
Atmospheric Administration's (NOAA's) National Centers for 
Environmental Information's Climate Data Online Search (https://www.ncdc.noaa.gov/cdo-web/search)).
    [cir] As discussed above, one commenter pointed out that wet 
weather CSO discharges may be caused by snowmelt, and in those 
circumstances it would not be appropriate to be required to report on 
rainfall data since it was not affiliated with the discharge. EPA, 
therefore, added the qualifier at the end of the sentence ``if 
precipitation was the cause of the discharge.''
     Sec.  122.38(b)(8)--Revised from ``A point of contact'' to 
``Permittee contact information, if not listed elsewhere on the website 
where this annual notice is provided.'' Some commenters pointed out 
that the term ``A point of contact'' sounded like an individual 
person's name and contact information, and that that information 
changes too frequently to be appropriate. This was reworded to be clear 
that the contact information requirement is not for an individual 
person's contact information, but rather the permittee's contact 
information, so that the public has the information necessary to call 
the municipality with questions about the annual notice information. 
EPA added the latter part of the requirement to provide permittees the 
flexibility to provide this information elsewhere on their website, if 
it is not already included in an existing annual report that is being 
used to meet this annual notice requirement.
    In addition to the above revisions, EPA made one additional 
revision to the

[[Page 722]]

annual notice requirement to ensure the final rule was responsive to 
the Section 425 requirement to include ``annual publication 
requirements that list each treatment works from which the 
Administrator or the affected State receive a follow-up notice'' 
(425(b)(4)(B)). In the proposal, EPA included a requirement for 
electronic reporting at Sec.  122.38(c). EPA received several comments 
that this requirement was inconsistent with the timing of the NPDES 
Electronic Reporting rule and also would be redundant with reporting 
requirements of the Electronic Reporting rule. The proposed electronic 
reporting at Sec.  122.38(c) would have enabled EPA to query the 
database to generate summary level information about the Great Lakes 
Basin CSO permittees and publish that information on EPA's website. 
Rather than using electronic reporting to satisfy this requirement, EPA 
is requiring that Great Lakes Basin CSO permittees notify EPA annually 
of the availability of their annual notice. EPA can then use the 
information from the annual notice to update the list of Great Lakes 
Basin CSO permittees on its website to satisfy the requirements of 
Section 425(b)(4)(B). EPA has also required the contact information for 
the person responsible for maintaining the website (where the annual 
notice is posted) so that any issues with web links that do not work 
can be easily resolved. These revisions to the final rule are described 
in detail below:
     Sec.  122.38(b)--Revised ``and shall provide the Director 
with notice of how the annual notice is available'' to ``and shall 
provide the Director and EPA with notice of how the annual notice is 
available.'' Also added a new sentence to follow that phrase in order 
to provide an email address by which the permittee may provide the 
notice to EPA.
     Sec.  122.38(c)--Deleted the proposed rule electronic 
reporting requirement in full.

F. Revisions To Provide More Flexibility Regarding Model Re-Calibration

    The proposed public notification plan requirements required larger 
communities (permittees with a population of 75,000 or more) that were 
using a model to estimate discharge volumes and durations to calibrate 
their models at least once every five years. Some commenters raised 
concern about the burden of requiring calibration of models at least 
once every five years. Since models do not necessarily require 
calibration if nothing changes in the system, the final rule will 
instead require that permittees with a population of 75,000 or more 
assess whether recalibration is necessary at least once every 5 years, 
and to recalibrate if it is determined that it is necessary. It is 
important for models to be accurately calibrated in order to determine 
when overflows are happening. However, EPA does not intend to 
unnecessarily burden municipalities if their models do not need to be 
calibrated every five years. EPA has therefore made the following 
revision:
     Sec.  122.38(d)(9)--Revised ``must calibrate their model 
at least once every 5 years'' to ``must assess whether re-calibration 
of their model is necessary, and recalibrate if necessary, at least 
once every 5 years'' in final rule Sec.  122.38(c)(9).

G. Revisions To Ensure Consultation With Public Health Departments 
Regarding Community-Specific Potentially Impacted Public Access Areas

    In the final rule, EPA is requiring permittees to seek input from 
the public health department on what areas would be considered 
``potentially impacted public access areas'' prior to submitting the 
public notification plan. This requirement addresses comments on the 
proposal suggesting that EPA define ``potentially affected public 
access areas.'' This terminology is used in rule sections on signage, 
notification of local public health department and other potentially 
affected public entities, notification of the public, and annual 
notice. Public access area types vary between communities and may 
depend on factors such as local ordinances, local culture, and 
geographic features. For instance, in one community, the public access 
areas may be defined to include swimming beaches and boat launches, 
while in another community they may include fishing streams, 
campgrounds, or marinas. Given this potential variability, it is more 
appropriate for each community to evaluate its own local circumstances 
and determine how best to define these public access areas for their 
CSO public notification plan, rather than for EPA to prescribe a 
general definition in the final rule to apply to all the Great Lakes 
Basin CSO communities. This is the type of information EPA expected 
would be discussed with public health departments when consulting with 
them on the public notification plan development (as would have been 
required in the proposed rule, and is required in the final rule), and 
this change explicitly calls this out to ensure it is discussed. The 
final rule provides:
     Sec.  122.38(e)(1)(iii)--``Develop recommendations for 
areas that would be considered ``potentially impacted public access 
areas'' as referenced in 122.38(a)(1), (2), and (3).''

H. Revisions to the Implementation Schedule To Ensure Plans Are 
Completed Prior to Beginning Implementation of the Public Notification 
Requirements

    In the final rule, EPA is requiring the public notification plan to 
be completed within six months and that the notification requirements 
be implemented within nine months. The three-month window between plan 
completion and implementation of the notification requirements allows 
communities time to ramp up for implementation of their notification 
plans after the plans have been fully developed, which includes all the 
outreach to seek input on the plan from local public health departments 
and other potentially affected public entities and Indian Tribes. In 
the proposed rule, plan implementation would have begun immediately at 
six months, when the plan was completed. Commenters indicated that 
additional time may be needed to ramp up implementation after plan 
completion, therefore EPA has made these changes in the final rule. EPA 
also added clarifying language to the annual notice provision to ensure 
the compliance date (which is the year following the effective date of 
the rule) is clear. EPA has therefore made the following revision:
     Sec.  122.38(a)--Changed the implementation language from 
``provide public notification of CSO discharges as described in this 
paragraph after August 7, 2018'' to ``provide public notification of 
CSO discharges as described in this paragraph after November 7, 2018.''
     Sec.  122.38(b)--Inserted ``Starting in February 7, 
2019,'' prior to ``By May 1 of each calendar year''.

I. Revisions To Add Flexibility for Small Permittees Who Manually 
Operate CSO Discharge Controls

    EPA received comments identifying circumstances under which actions 
in small communities, to limit the impacts of the actual CSO discharge, 
may consume all available staff resources. Under these circumstances 
EPA wants to provide clarity that the permittee may take the necessary 
actions to address the CSO discharge prior to initiating the start of 
the four-hour notification window. To allow for such circumstances, EPA 
has revised the requirements as follows:
     Sec.  122.38(a)(3)(i)--At the end of the provision, 
inserted a sentence that allows a permittee to identify in its public 
notification plan circumstances and physical action needed to limit the

[[Page 723]]

public health impacts of the CSO discharge by controlling the CSO 
discharge (including continuing to implement its existing practice of 
conducting inspections of CSO discharge points during the discharge), 
and if they identify that all available staff are required to complete 
this action, the four-hour notification window will commence upon 
completion of that action.
     Sec.  122.38(c)(8)--Inserted, at the end of the provision, 
language that the plan shall include a description of circumstances 
under which the initial notification of the public may be delayed 
beyond four hours of the permittee becoming aware of the discharge, if 
the circumstances described above are met.

V. Final Rule Implementation

    The public notification provisions are directly required regulatory 
requirements (independent of being implemented by permit conditions) 
until these conditions are incorporated into the NPDES permit of the 
Great Lakes Basin CSO permittee. EPA is using these two regulatory 
mechanisms to respond to Section 425(b)(5) of the 2016 Consolidated 
Appropriations Act direction that the notice and publication 
requirements described in the Act are to be implemented by ``not later 
than 2 years after the date of enactment'' of the Act.\9\ The Agency 
recognizes that if NPDES permits were the only means of implementing 
these requirements, permits would have to be reissued with these 
requirements before they would take effect. Given the current status of 
CSO permits in the Great Lakes Basin, it would take over five years for 
the public notification requirements to be incorporated into all 
permits, far beyond the timeframe specified in Section 425. Making the 
public notification requirements directly applicable at first, followed 
by incorporating them into NPDES permits as they are issued, will 
enable all Great Lakes Basin CSO permittees to establish their public 
notification system within the same timeframe, and within the timeframe 
specified by Section 425(b)(5)(A).
---------------------------------------------------------------------------

    \9\ The Consolidated Appropriations Act, 2016 was enacted on 
December 18, 2015.
---------------------------------------------------------------------------

    The requirements of Sec.  122.38(a) (signage and notification 
requirements) and Sec.  122.38(b) (annual notice) are enforceable under 
the CWA prior to incorporation into a permit under CWA section 308 by 
operation of this rule. The requirement to develop a public 
notification plan consistent with Sec.  122.38(c) and (d) is 
enforceable under CWA section 308. Once public notification 
requirements are incorporated into an NPDES permit, they are 
enforceable as a permit condition issued under CWA section 402.
    The details and content of the public notification plan, however, 
are not enforceable under Sec.  122.38(c) or as effluent limitations of 
the permit, unless the document or the specific details of the plan are 
specifically incorporated into the permit. Under the final rule, the 
contents of the public notification plan are instead intended to 
provide a road map for how the permittee would comply with the 
requirements of the permit (or with the requirements of Sec.  122.38(a) 
and (b) prior to inclusion in the permit as a permit condition). Once 
the public notification requirements are incorporated into the permit 
as a permit condition, the plan may be changed based on adaptions made 
during the course of the permit term, thereby allowing the permittee to 
react to new technologies, circumstances and experiences gained during 
implementation and to make adjustments to its program as necessary to 
provide better public notification and better comply with the permit. 
This approach will allow the CSO permittee to modify and continually 
improve its approach during the course of the permit term without 
requiring the permitting authority to review each change as a permit 
modification.

A. Final Rule Requirements

1. Section 122.38 Requirements
    As discussed in detail above, Sec.  122.38 sets forth requirements 
that apply to all permittees with CSO discharges to the Great Lakes 
Basin. Under this rule, Great Lakes Basin CSO permittees are required 
to develop a public notification plan, after seeking and considering 
input from public health departments and other potentially affected 
public entities. The plan must be submitted to the Director and made 
available to the public by August 7, 2018. Section 122.38 also requires 
implementation of the signage requirements and notice to affected 
public entities and the public by November 7, 2018. The annual notice 
requirements apply beginning in February 7, 2019 (or an alternative 
date specified by the Director), which allows permittees time to 
collect data for the first year. As described in Section V.B.7, the 
Director may extend the compliance dates for notification and/or 
submittal of the public notification plan for individual communities if 
the Director determines the community needs additional time to comply 
in order to avoid undue economic hardship.
2. Required Permit Condition
    EPA's rule will require the incorporation of public notice 
requirements into NPDES permits for CSO discharges to the Great Lakes 
Basin over time as they are issued and renewed. To effectuate this 
requirement, EPA is revising the permit application regulation 
requirements in Sec.  122.21(j). EPA is adding Sec.  122.21(j)(8)(iii), 
which requires the CSO permittees in the Great Lakes Basin to submit a 
public notification plan to the Director with its permit application 
(and any updates to its plan that may have occurred since the last plan 
submission). EPA is also adding a new standard condition at Sec.  
122.42(f) that applies to CSO permits, ensuring that CSO public 
notification requirements are incorporated into the NPDES permits for 
discharges to the Great Lakes Basin and updated over time as 
appropriate with each permit cycle. Public notification plans, 
submitted with subsequent permit applications, will reflect changes in 
collection systems and technology, as well as public notice practices. 
By requiring the Great Lakes Basin CSO permittee to include its updated 
public notice plan with its permit application, the Director will have 
the information he/she needs for including requirements for public 
notification in the permit when it is reissued.
    While the rule requires that permits for CSO discharges to the 
Great Lakes Basin henceforth include public notification requirements, 
it also provides flexibility to allow NPDES permit writers to address 
the particular circumstances of each community (e.g., size of 
community, differences in public access areas potentially impacted by a 
CSO discharge) in a manner that addresses local considerations. At the 
same time, however, this provision preserves the authority of the Great 
Lakes States to establish more stringent public notification 
requirements (see Section 425(b)(6) of the 2016 Consolidated 
Appropriations Act) and section 510 of the Clean Water Act. As outlined 
in Sec.  122.42(f) of the rule, permits for CSO discharges within the 
Great Lakes Basin, at a minimum, will:
     Require implementation of the public notification 
requirements in Sec.  122.38(a);
     Specify the information that must be included on discharge 
point signage;
     Specify discharge points and public access areas where 
signs are required;
     Specify the timing and minimum information for providing 
initial notification to local public health departments and other 
potentially affected entities, and the public;

[[Page 724]]

     Specify the location of CSO discharges that must be 
monitored for volume and discharge duration and the location of CSO 
discharges where CSO volume and duration may be estimated;
     Require submittal of an annual notice in accordance with 
Sec.  122.38(b); and
     Specify protocols for making the annual notice available 
to the public.
    Section 402(q) of the CWA requires NPDES permits for discharges 
from combined sewers to ``conform'' to the 1994 CSO Control Policy. One 
of the ``Nine Minimum Controls'' identified in the Policy is that NPDES 
permits for CSO discharges require public notification to ensure that 
the public receives adequate notification of CSO occurrences and CSO 
impacts. The permit condition required by this rule conforms to the 
1994 CSO Control Policy's minimum control to provide the public with 
``adequate notification'' and further provides specificity to better 
implement the public notification provision identified in the Policy. 
Including this provision in permits gives the Great Lakes States an 
opportunity to update and fine-tune public notice requirements to 
reflect continued development of the permittee's public notice 
approach, ensure consistency with State legislative and regulatory 
requirements for public notification, consider new technologies and be 
informed by public input. In addition, when public notification becomes 
a permit condition, the public will have the opportunity to comment on 
the public notification requirements during the permit process.

B. Implementation Considerations

1. Public Notification Plan Development
    The final rule requires that Great Lakes Basin CSO permittees 
develop and submit to the Director a public notification plan by August 
7, 2018 and again subsequently when the permittee files an application 
for permit renewal. In addition, prior to submitting the public 
notification plan, CSO permittees must seek and consider input from the 
local public health department (or if there is no local health 
department, the State health department) and potentially affected 
public entities and Indian tribes whose waters may be impacted by CSO 
discharges.
    The public notification plans are intended to provide system-
specific detail (e.g., proposed monitoring locations, means for 
disseminating information to the public) describing the discharger's 
public notification efforts. Having a public notification plan in place 
will enhance communication with public health departments and other 
potentially affected public entities and Indian tribes whose waters may 
be impacted by the CSO discharge. The details within the plan will also 
assist NPDES permit writers in establishing corresponding public 
notification permit conditions. In addition, the plan will provide the 
public with a better understanding of the permittee's public 
notification efforts.
    Section 425(b)(3)(A)(iii) of the 2016 Consolidated Appropriations 
Act provides that public notice for CSO discharges is to include a 
description of any public access areas impacted by the discharge. This 
rule requires that public notification plans identify which 
municipalities and other public entities may be affected by the 
permittee's CSO discharges. Potentially affected public entities whose 
waters may be impacted by the CSO discharge could include adjoining 
municipalities, public drinking water utilities, State and county parks 
and recreation departments. Such areas may have already been identified 
in the CSO permittee's LTCP, which should identify CSO discharges to 
sensitive areas.\10\ In deciding which public entities and Indian 
tribes are ``potentially affected'' and should be contacted for their 
input, the Great Lakes Basin CSO permittee should evaluate:
---------------------------------------------------------------------------

    \10\ The CSO Policy clarifies EPA's expectation that a 
permittee's LTCP give the highest priority to controlling overflows 
to sensitive areas. The Policy provides that 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. (59 FR 18692).
---------------------------------------------------------------------------

     The location of the CSO discharge point and what users of 
that waterbody may exist in the surrounding region;
     The direction of flow in the receiving water and uses of 
that waterbody, or connected waterbodies, downstream of the CSO 
discharge point;
     The presence of public access areas near, or downstream 
of, the discharge point;
     The presence of drinking water supply systems near, or 
downstream of, the discharge point; and
     The presence of municipal entities, Indian tribes, and/or 
parks and recreation department lands near, or downstream of, the 
discharge point.
    Local public health departments, public entities, and Indian tribes 
whose waters may be impacted by a CSO discharge are in a unique 
position to provide input on the timing, means and content of the 
public notification requirements addressed in this rule. Seeking input 
from these entities allows the permittee to reflect in the public 
notification plan the needs and preferences of these entities. Also, 
these groups can help inform decisions regarding the most appropriate 
means of communicating information to the public, taking into 
consideration specific populations in the community and their access to 
various electronic communication methods and social media. For example, 
if there is a segment of the population without access to cell phones 
or computers, or that would incur costs by receiving text 
notifications, the consulted entities may suggest other methods of 
communication that would be more appropriate to reach these groups 
(e.g., radio broadcast, postings in public places, announcements 
through community flyers).
    The plan will also describe how the volume and duration of CSO 
discharges will be either measured or estimated. If the Great Lakes 
Basin CSO permittee intends to use a model to estimate discharge 
volumes and durations, the plan is required to summarize the model and 
describe how the model was or would be calibrated. CSO permittees that 
are a municipality or sewer district with a population of 75,000 or 
more are required to assess whether re-calibration of their model is 
necessary, and recalibrate if necessary, at least once every 5 years.
2. Annual Notice
    The final rule includes revisions to improve clarity and allow more 
flexibility regarding the annual notice requirements. The added 
flexibilities are intended to allow Great Lakes Basin CSO permittees 
that are already subject to existing State or local reporting 
requirements, which contain the same information as required in this 
rule's annual notice requirement, to use these reports to meet this 
rule's requirements. For example, New York State requires a Combined 
Sewer Overflow Annual Report which contains several of the components 
in the rule's annual notice requirements. Great Lakes Basin CSO 
permittees in New York may choose to provide a copy of this Annual 
Report along with a supplemental report or appendix that addresses the 
remaining components.
    The flexibilities also allow a permittee, whose State permitting 
authority publishes an annual CSO report that contains the same 
information for a Great Lakes Basin CSO permittee as is required in 
this rule's annual notice requirement, to use the

[[Page 725]]

State report to meet the rule's requirements. For example, in addition 
to existing annual reports permittees may be preparing, in at least one 
of the Great Lakes States (Michigan), the State prepares an annual CSO 
report summarizing information on all the Great Lakes Basin (and other) 
CSO permittees. Michigan's annual report provides the majority of the 
information that the final rule requires, and after discussions with 
the State, EPA anticipates that Michigan will make some minor 
adjustments to the data presented in its annual report to ensure it 
addresses all of the requirements for annual notice and thus enable 
Great Lakes Basin CSO permittees in Michigan to simply provide a link 
to the State annual report to meet their annual notice requirements.
3. Coverage of Partially Treated CSOs
    The rule includes definitions of ``Combined Sewer System'' and 
``Combined Sewer Overflows'' at Sec.  122.2. The definition of combined 
sewer system is based on the description of combined sewer system found 
in the 1994 CSO Policy. The Policy provides that ``A combined sewer 
system (CSS) is a wastewater collection system owned by a State or 
municipality (as defined by Sec.  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 Sec.  
403.3(p)).'' (59 FR 18689) The definition of combined sewer overflow 
also conforms to the description of CSO in the CSO Policy, which 
specifies that a ``CSO is the discharge from a CSS at a point prior to 
the POTW Treatment Plant.''
    In the proposed rule preamble, EPA requested comment on whether it 
would be appropriate to establish alternative public notice 
requirements for CSO discharges that are treated to a specified level 
(e.g., primary treatment plus disinfection). EPA also requested comment 
on whether the final regulations should provide additional flexibility 
for Great Lakes Basin CSO permittees to recommend in their public 
notification plan different public notification procedures for treated 
CSO discharges as compared to untreated CSO discharges. Some commenters 
(including the Indiana Department of Environmental Management (IDEM)) 
recommended that the final rule requirements only apply to untreated 
CSO discharges. However, many other commenters (including the New York 
State Department of Environmental Conservation (NYDEC) and Ohio EPA) 
supported the approach in the proposed rule where the requirements 
would apply to all CSO discharges. EPA decided to finalize the 
definition and scope of the rule as proposed, which treats untreated 
and partially treated CSOs alike for the purpose of public notice. As 
the preamble to the proposed rule explained (82 FR 4249), CSO 
discharges that only receive primary treatment prior to disinfection 
may have levels of viruses and other pathogens that are higher than 
discharges of wastewater that are treated by secondary treatment 
processes prior to disinfection, and they may also have higher levels 
of trihalomethanes and other disinfection byproducts.\11\ There is no 
indication that Section 425 contemplated lesser notification to the 
public for partially treated discharges, and the CSO Policy treats 
untreated and partially treated discharges alike.
---------------------------------------------------------------------------

    \11\ As EPA noted in the preamble to the proposed rule, 
traditional bacteria indicators that are used in State water quality 
standards may not be the best indicators of viral and other 
pathogens associated with fecal contamination. CSO discharges that 
only receive primary treatment prior to disinfection and that meet 
water quality standards based on indicator bacteria may have levels 
of viruses and other pathogens that are higher than discharges of 
wastewater that are treated by secondary treatment processes prior 
to disinfection. This is because bacteria respond to water treatment 
processes and environmental degradation processes differently than 
viruses. In addition, particles in wastewater may shield pathogens 
from disinfection. CSO discharges that only receive primary 
treatment prior to disinfection may also have higher levels of 
trihalomethanes and other disinfection byproducts due to the higher 
concentration of chlorine needed to disinfect and potential 
interactions with particles in the wastewater.
---------------------------------------------------------------------------

4. Precipitation-Related Events and Grouping CSO Notifications for 
Multiple Discharges
    EPA intends that multiple discharges that result from the same 
precipitation-related event, even if they are not occurring at exactly 
the same time, may be grouped together in one public notification. EPA 
has revised the wording in the final rule to make this clearer, as is 
described in Section IV.B. EPA also revised the wording in the final 
rule to clarify that snowfall and snowmelt may also be the cause of a 
wet weather CSO discharge by changing ``precipitation event'' to 
``precipitation-related event'', as described in Section IV.B.
    EPA has not further defined ``event'' in this rule. Because 
permittees have been tracking and reporting CSO discharge data for many 
years to meet permit requirements and commitments made in long-term 
control plan and related documents, EPA expects that the Director and 
the permittee have already established what constitutes separate CSO 
events and precipitation events for reporting purposes. It is not EPA's 
intention to change that approach with this rulemaking; rather, the 
purpose of this rulemaking is to ensure information about CSO 
discharges is provided to the public, public health departments, and 
other affected entities.
5. Initial Notification Timing
    The rule requires that an initial notice be provided to the local 
public health departments and other potentially affected entities as 
well as the public ``as soon as possible, but no later than four (4) 
hours after becoming aware by monitoring, modeling or other means that 
a CSO discharge has occurred.'' EPA selected four hours because it is 
prompt enough to allow the public to make informed decisions regarding 
areas where they would visit and recreate before doing so; while it is 
also a long enough amount of time to allow permittees to initiate 
notification processes.
    By using language that combines a definitive deadline (i.e., no 
later than four (4) hours after becoming aware) with language that 
requires notification ``as soon as possible,'' EPA provides flexibility 
to minimize the increased burden of the requirement as much as 
possible. One important consideration was the existing staffing hours 
at some POTWs. From speaking to State Directors and hearing from 
permittees in comment letters and the public listening session, EPA is 
aware that not all permittees have staff monitoring for combined sewer 
overflows at all hours. While EPA is accounting for some additional 
burden on permittees because of this rule (including in the form of 
staff resources), it is not EPA's intention for permittees to 
significantly change staff hours, or hire new staff, in order to 
increase monitoring for CSO discharge. Rather, EPA expects that the 
initial notification would begin at the time that the permittee becomes 
aware of the CSO discharge. EPA therefore used the wording ``after 
becoming aware'' to trigger the beginning of the four-hour timeframe. 
For example, if a CSO discharge occurred on a Sunday evening at 8:00 
p.m. but the permittee did not become aware of the discharge until 
staff reported to work at 7:00 a.m. on Monday morning, the four-hour 
timeframe would begin at 7:00 a.m. on Monday and the permittee would 
need to provide the initial notice as soon as possible but no later 
than 11 a.m. on Monday.
    In consideration of circumstances in which a small community has 
limited staff (e.g., one person is required to

[[Page 726]]

handle all response activities), and that staff member must take a 
physical action to limit the public health impacts of a CSO discharge 
(including continuing to implement its existing practice of conducting 
inspections of CSO discharge points during the discharge), EPA has 
added a flexibility to the final rule to ensure that the permittee is 
able to complete that physical action before focusing on sending out 
the public notification. This change is described in Section IV.I.
6. CSO Discharge Modeling/Monitoring
    EPA expects that most permittees already have a system in place by 
which they monitor, model, or otherwise estimate when CSO discharges 
have occurred. This approach is often established in the LTCP or other 
planning or operational document. EPA expects that most communities 
would use that same approach and/or data to inform the notification 
provided in response to this rule. The rule does not specifically 
require additional monitoring beyond what the CSO permittee already has 
in place for compliance with the current CSO Policy and other existing 
regulations; therefore, permittees would not need to purchase 
additional monitoring equipment or establish an expensive model.
    As noted in the preamble to the proposed rule (82 FR 4233), EPA 
anticipates that some communities may choose to estimate when CSO 
discharges may occur based on weather forecasts and provide 
notification in advance of a precipitation-related event. From a review 
of State-issued permits and additional State requirements pertaining to 
CSOs, EPA found that all seven States within the Great Lakes Basin 
require permittees to report the occurrence of a CSO discharge. Some 
States also require permittees to report CSO discharge duration, CSO 
discharge start and end times, and precipitation data associated with 
each CSO discharge. By using historic CSO discharge and precipitation 
data, along with certain system and service area characteristics that 
are already known and readily available, a predictive approach provides 
a simplified method to estimate a precipitation threshold that can be 
expected to cause a CSO discharge on a per discharge point basis. This 
method can be used to provide timely notification to the public, local 
public health departments, and other potentially affected public 
entities. EPA considered that there may be smaller communities that 
would like to provide public notification using a predictive approach, 
but they may not know the precipitation threshold at which they should 
trigger the advanced notice. For these communities, EPA has included a 
memo to the record describing how one might establish a precipitation 
threshold that can be used to meet the initial public notification 
requirements of the rule (see the ``Predictive Approach Memo for the 
Great Lakes Basin'' in the rulemaking docket). EPA's memo suggests 
correlating historic CSO occurrence data with precipitation data 
obtained from rain gauges near CSO discharge points, if available, or 
readily available data from the National Oceanic and Atmospheric 
Administration's National Centers for Environmental Information Climate 
Data Online Search (https://www.ncdc.noaa.gov/cdo-web/search) to 
determine a reasonable precipitation threshold that would be expected 
to cause a CSO discharge.
7. Extending Compliance To Avoid Economic Hardship
    Section 425(b)(5)(A) of the 2016 Appropriations Act provides that 
the notice and publication requirements of the provision must be 
implemented within two years, unless the EPA Administrator determines 
the community needs additional time to comply in order to avoid undue 
economic hardship. All of the Great Lakes States are authorized to 
administer the NPDES program. Because EPA is implementing Section 425 
as part of the NPDES permit program, this determination may be made by 
the Director or by the Administrator. In EPA's view, the State as the 
NPDES authority is in a better position to evaluate the economic 
conditions and financial capability of the permittee as they have 
worked with individual communities to ensure implementation of their 
LTCPs.
    The rule requires that the Great Lakes Basin CSO permittee must 
submit a public notification plan to the Director of the NPDES program 
by August 7, 2018. The Great Lakes Basin CSO permittee is required to 
comply with the public notice requirements of Sec.  122.38 within nine 
months, and in the next calendar year in the case of annual 
notification, unless the Director specifies a later date to avoid 
economic hardship. Under Sec.  122.38(e), the Director may extend the 
compliance dates for public notification under Sec.  122.38(a), annual 
notice under Sec.  122.38(b), and/or public notification plan submittal 
under Sec.  122.38(c) for individual communities if the Director 
determines the community needs additional time to comply in order to 
avoid undue economic hardship. The rule requires the Director to notify 
the Regional Administrator of the extension and the reason for the 
extension. In addition, the Director is required to post on its website 
a notice that includes the name of the community and the new compliance 
date(s).
    The requirement to post this information on the Director's website 
provides the public with information on any exceptions that have been 
made to the compliance date. Because financial resources will vary 
among communities due to community size, annual revenue, staffing and 
consultant resources, other program expenses (e.g., existing long-term 
control plan commitments) and other factors, EPA is not establishing 
specific criteria to define economic hardship in the final rule. 
Instead, EPA is providing the Director with the flexibility to evaluate 
each community's specific circumstances to decide if an extension to 
the compliance date is needed.

VI. Incremental Benefits and Costs of the Rule

    EPA anticipates there will likely be public health benefits from 
decreased bodily exposure to sewer overflows but did not quantify these 
benefits. EPA views these new notification requirements as a minimal 
increase in existing costs that permittees are already incurring due to 
existing permit requirements that conform to the CSO Control Policy 
codified in CWA 402(q).

A. Benefits of the Rule

    This rule is expected to protect public health by ensuring timely 
notification to the public and to public health departments, public 
drinking water facilities and other potentially affected public 
entities, including Indian tribes. It provides additional specificity 
beyond existing public notification requirements to ensure timely and 
consistent communication to the public regarding combined sewer 
overflows in the Great Lakes Basin. It also acknowledges the 
significant technology changes that have occurred since the original 
requirements were developed in 1994 which allow direct public access to 
real-time information. Timely notice may allow the public and affected 
public entities to take steps to reduce the public's potential exposure 
to pathogens associated with human sewage, which can cause a wide 
variety of health effects, including gastrointestinal, skin, ear, 
respiratory, eye, neurologic, and wound infections. Although EPA has 
not quantified these benefits, the expected reduction in human exposure 
to pathogens may provide a net public health benefit from this rule. 
See ``Benefits of Abating

[[Page 727]]

Sanitary Sewer Overflows (SSOs)'' in the rulemaking docket for a 
discussion of some of the many potential benefits that can be expected 
from reducing exposure to raw sewage discharges.
    Because of these expected public health benefits, EPA has chosen to 
implement the requirements with a two-stage approach which ensures that 
the benefits of the rule can begin to accrue as quickly as possible, 
rather than delaying these public health benefits until future permit 
renewals which for some permittees could be as long as five years away 
(or even more if a permit is administratively continued by the 
permitting authority).
    The rule also improves transparency and accountability to the 
public about the presence and magnitude of CSO discharges in their 
community. Many permittees already report to their Director on the 
occurrence, duration, volume, and cause of CSO discharges; however, 
that information is often difficult for communities to find and 
interpret. Through a complete, consistent, and easily accessible annual 
notice that is shared with the public, community members can gain 
perspective on this important water pollution issue and they are able 
to see progress that is being made to reduce discharges.

B. Costs of the Rule

    The ``Analysis of Costs and Executive Orders'' (available in the 
rulemaking docket) estimates the incremental costs of requiring CSO 
permittees that discharge to the Great Lakes Basin to provide public 
notification of CSO discharges. Table 3 summarizes the estimated 
incremental costs for the rule.

                                        Table 3--Annual Incremental Costs
                                         [Average of first three years]
----------------------------------------------------------------------------------------------------------------
                                                     Number of
                    Category                       entities per     Labor costs   Capital/start-       Total
                                                     category                      up/O&M costs
----------------------------------------------------------------------------------------------------------------
CSO permittees with a population of less than                 54        $110,000         $30,600        $140,000
 10,000.........................................
CSO permittees with a population of between                   69         140,000          26,600         167,000
 10,000 and 50,000..............................
CSO permittees with a population of more than                 35         130,000          13,300         143,000
 50,000.........................................
States..........................................               7           7,000               0           7,000
                                                 ---------------------------------------------------------------
    Totals......................................             165         387,000          70,500         457,000
----------------------------------------------------------------------------------------------------------------
Note: Cost values in table are rounded to three significant figures.

    The average incremental cost per CSO permittee is about $2,850 per 
year and the total annual incremental cost on all CSO permittees is 
about $450,000.
    The cost analysis assumes that costs will be borne by Great Lakes 
Basin CSO permittees in the form of one-time implementation activities 
that would occur within one to two years, once-per-year activities 
including an annual notice, and ongoing activities that would occur 
during and after CSO discharges. The cost analysis also accounts for 
costs to State agencies, mainly in the review of CSO permittee plans 
and reports.

VII. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any revisions 
made in response to interagency review have been documented in the 
docket for this action. In addition, EPA prepared an analysis of the 
potential costs associated with this action. This analysis, ``Analysis 
of Costs and Executive Orders,'' is summarized in Section VI and is 
available in the docket.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 regulatory 
action. Details on the estimated costs of this final rule can be found 
in EPA's ``Analysis of Costs and Executive Orders,'' which is available 
in the docket. Also see Section VI.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 2562.01. The ICR is 
summarized here; a complete copy can be found in the docket. The 
information collection requirements are not enforceable until OMB 
approves them.
    As discussed in section V.A of this document, NPDES permits for CSO 
discharges to the Great Lakes Basin will require permittees to provide 
public notification to ensure that the public receives adequate notice 
of CSO occurrences and CSO impacts. The information burden associated 
with this provision is approved in ``Information Collection Request for 
NPDES Program (Renewal),'' OMB Control No. 2040-0004, EPA ICR No. 
0229.21. EPA has developed an additional analysis to provide a better, 
updated estimate of the public notification requirements. The analysis 
used to develop these estimates is described in ``ICR Supporting 
Statement, Information Collection Request: Public Notification 
Requirements for CSOs in the Great Lakes Basin,'' EPA ICR number 
2562.01. Key estimates and assumptions in the analysis include:
     69% percent of existing discharge points (outfalls) for 
all CSO permittees have already installed signs and they are being 
maintained;
     Over 60% of the CSO permittees already have a system for 
developing estimates of the occurrence and volume of discharges from 
CSO discharge points;
     Each Great Lakes Basin CSO permittee already operates a 
website that can be modified to provide the public with notification of 
a CSO event;
     Larger CSO communities may have access to listserv 
technology;
     Electronic technology significantly reduces the burden of 
providing initial and supplemental notification to the public and to 
local public health departments and other affected public entities;
     Much of the effort in developing public notification plans 
is included in burden estimates for the individual public notification 
components in the proposal. The activities attributed to the

[[Page 728]]

burden for the public notification plan include preparation of the 
document describing the public notification activities.
     The burdens on the NPDES authority for permit renewals are 
applied to one-fifth of all Great Lakes Basin CSO permits within each 
State beginning in year 2 of the ICR to account for the five year 
permit term.
    The public notification requirements in this rule are designed to 
alert the public and public health departments, and other potentially 
affected entities of CSO discharges in a more wide-spread and timely 
manner than is currently practiced. The notification requirements which 
involve distribution of CSO discharge related information (e.g., CSO 
discharge location, receiving waterbody, time started, time ended, 
volume) to the public and affected local governmental agencies would 
enable potentially affected parties to take action that may help 
prevent serious health effects that may otherwise occur if they were to 
remain unaware of the occurrence of CSO discharges.
    Respondents/affected entities: The ICR covers information that must 
be provided by operators of combined sewer systems (Great Lakes Basin 
CSO permittees) that discharge within the watershed of the Great Lakes 
Basin. In addition, the ICR covers information burdens of the seven 
NPDES authorized States that are implementing the program and the 
estimated 158 public health departments that are consulting on the 
public notification plan.
    Respondent's obligation to respond: Compliance with the 
notification requirements would be mandatory. Requirements for public 
notification of CSO discharge are part of the ``nine minimum controls'' 
established as part of EPA's CSO Control Policy. Section 425 of the 
Consolidated Appropriations Act of 2016 (Pub. L. 114-113) requires EPA 
to work with the Great Lakes States to establish these public notice 
requirements.
    Estimated number of respondents: EPA has identified 158 CSO 
communities that discharge to the Great Lakes Basin, seven State NPDES 
permitting authorities, and 158 public health departments.
    Frequency of response: Responses include one-time implementation 
activities, such as signage, activities that occur once per year, such 
as providing annual notice, and ongoing activities that would occur 
during and after CSO discharge events.
    Total estimated burden: EPA estimates that the burden of 
implementing the rule would be 10,301 hours per year. Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: EPA estimates that the rule would cost 
$457,000 per year during the three year ICR period. This is the total 
annual incremental cost for all 158 Great Lakes Basin CSO permittees 
and seven State NPDES authorities. The average incremental cost per CSO 
permittee is about $2,850 per year and the average incremental cost per 
State NPDES authority is about $1,000.
    EPA may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number. The OMB control numbers for the EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves 
this ICR, the Agency will announce that approval in the Federal 
Register and publish a technical amendment to 40 CFR part 9 to display 
the OMB control number for the approved information collection 
activities contained in this final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. The 
small entities subject to the requirements of this action are small 
governmental jurisdictions. The Agency has determined that 123 (78%) of 
the 158 communities discharging CSOs to the Great Lakes Basin are 
governmental jurisdictions with a population of less than 50,000 and 
thus can be classified as small entities. EPA evaluated the potential 
impact on annual revenue that these small entities may experience. 
Nearly all of the small communities (121 of 123 communities) are 
expected to experience an impact of less than 1% of annual revenue. Two 
communities may experience an impact of greater than 1% of annual 
revenue (one potentially experiencing an impact slightly over 1% and 
the other approximately 2%). Details of this analysis are presented in 
the Analysis of Costs and Executive Orders which is available in the 
docket.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538. EPA has conducted a cost 
analysis examining the potential burden to State, tribal and local 
governments. Details of this analysis are presented in the Analysis of 
Costs and Executive Orders which is available in the docket. EPA 
estimates that the costs of the rule to States, tribes and local 
governments will be well below $100 million per year. In addition, EPA 
compared the estimated annualized cost of the rule and revenue 
estimates for small local governments using four estimates of revenue 
data. The annualized compliance cost as a percentage of annual 
government revenues is below 1%. EPA concludes that the impact of the 
rule is very unlikely to reach or exceed 1% of small local government 
revenue.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.
    The rule includes a requirement for CSO permittees to notify the 
public of CSO discharges. This requirement includes the development of 
a public notification plan and the release of an annual notice that 
includes monitoring data. The incremental impact to State permitting 
authorities is estimated to be approximately $1,000 annually per State. 
The incremental impact to local permittees may range from a total of 
$1,000 to $4,000 annually per CSO permittee, depending on the number of 
CSO events and preparation time for the annual notice. Details of this 
analysis are presented in ``Analysis of Costs and Executive Orders,'' 
which is available in the docket (Docket ID No. EPA-HQ-OW-2016-0376 
http://www.regulations.gov).
    Keeping with the spirit of E.O. 13132 and consistent with EPA's 
policy to promote communications between EPA and State and local 
governments, and Section 425's direction to work with the States, EPA 
met with State and local officials throughout the process of developing 
the proposed rule and received feedback on how potential new regulatory 
requirements would affect them. EPA engaged in extensive outreach via 
conference calls to affected States to enable officials of affected 
States to have meaningful and timely input into the development of the 
proposed and final rule. EPA also held a public listening session and 
solicited written comments from the public and impacted stakeholder 
groups, including affected municipalities, to inform the development of 
the public notice proposed requirements. See Docket ID No. EPA-HQ-OW-
2016-0376 to the Federal eRulemaking Portal: http://www.regulations.gov.

[[Page 729]]

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 since it does not have a direct substantial 
impact on one or more federally recognized tribes. No tribal 
governments are authorized NPDES permitting authorities and none of the 
combined sewer systems subject to this rule are located on Indian 
nation lands.
    The rule would address the way in which municipalities share 
information with the public, public health departments, and potentially 
impacted communities (including Indian tribes) about CSOs in the Great 
Lakes Basin. EPA therefore evaluated the proximity of CSSs that would 
be subject to the rule in relation to Indian lands. EPA identified six 
CSO permittees with the potential to affect waters near four Indian 
nations in New York State:
     Seneca Nation of Indians (SNI): The Dunkirk WWTP is 
located south of the Cattaraugus Reservation. The Buffalo Sewer 
Authority and Niagara Falls WWTP are located close to SNI lands within 
the city of Niagara Falls, NY and Buffalo, NY (where the Seneca casinos 
are located).
     Tuscarora Nation (TN): The Tuscarora Nation lands are 
located directly between the Niagara Falls WWTP and Lockport WWTP but 
not on the Niagara River or Eighteen Mile Creek.
     Tonawanda Seneca Nation (TSN): The Medina WWTP is located 
10 miles north of the Tonawanda Seneca Nation lands.
     St. Regis Mohawk Tribe (SRMT): Any of the three WWTP 
plants along the St. Lawrence River would be of concern to the Mohawks 
at Akwesasne. SRMT is directly impacted by the Massena WWTP as the St. 
Lawrence River goes directly thru the heart of Akwesasne, the St. Regis 
Mohawk Tribe's reservation lands.
    Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes,\12\ EPA conducted outreach to tribal officials 
during the development of this action. EPA contacted the above 
mentioned tribes through outreach conducted by EPA's Office of 
Environmental Justice to ensure they were aware of the opportunity to 
provide public comments on the proposed rule. In addition, when EPA 
held the public listening session while the proposed rule was under 
development, EPA conducted outreach to tribes to ensure awareness of 
the public listening session, and the associated opportunity to provide 
written comments to the Agency. In addition, the rule requires Great 
Lakes Basin CSO permittees to consult with potentially affected Indian 
Tribes whose waters may be impacted by a CSO discharge prior to 
submitting the public notification plan. This requirement ensures that 
needs of tribes using potentially impacted waters are considered in 
terms of timing of notification, the type of information that is 
provided, and the means by which public notification is communicated.
---------------------------------------------------------------------------

    \12\ https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf.
---------------------------------------------------------------------------

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. The rule would, in some cases, increase public awareness of 
CSO discharges to the Great Lakes Basin, including information about 
public use areas such as beaches that may be impacted by contaminated 
CSO discharges, and by doing so could decrease health risks for 
children, infants, and adults.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. The rule requires CSO permittees to 
notify the public of CSO discharges.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA determined that the human health or environmental risk 
addressed by this action would not have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income, or indigenous populations, as specified in Executive Order 
12898 (59 FR 7629, February 16, 1994). This action affects the way in 
which Great Lakes Basin CSO permittees communicate information 
regarding CSO discharges to the public. It does not change any current 
human health or environmental risk standards.
    However, because the rule would address the way in which 
information about CSO discharges is communicated to the public, EPA did 
reach out to environmental justice organizations to specifically 
solicit input on what may be the best approaches to reaching 
environmental justice communities with this information. Prior to the 
public listening session on September 14, 2016, EPA contacted over 800 
environmental justice stakeholders through the Office of Environmental 
Justice Listserv, to ensure they were aware of the listening session 
and the opportunity to provide written input to the Agency through the 
public docket. EPA again reached out via this Listserv to ensure 
environmental justice stakeholders were aware of the public comment 
period for the proposed rule.
    In addition, the rule requires the Great Lakes Basin CSO permittee 
to consult with local public health departments and potentially 
affected public entities when developing the public notification plan. 
These consultations may alert the Great Lakes Basin CSO permittee to 
specific environmental justice community considerations regarding the 
best ways to effectively communicate this information.

L. Congressional Review Act

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects

40 CFR Part 122

    Environmental protection, Combined sewer overflow, Public 
notification, Reporting, Water pollution.

40 CFR Part 123

    Environmental protection, Combined sewer overflow, Public 
notification, Reporting, Water pollution.

    Dated: December 18, 2017.
E. Scott Pruitt,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR parts 
122 and 123 as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

[[Page 730]]

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
2. In Sec.  122.2, add the definitions ``Combined sewer overflow 
(CSO)'', ``Combined sewer system (CSS)'', and ``Great Lakes Basin'' in 
alphabetical order to read as follows:

 Sec.  122.2  Definitions.

* * * * *
    Combined sewer overflow (CSO) means a discharge from a combined 
sewer system (CSS) at a point prior to the Publicly Owned Treatment 
Works (POTW) Treatment Plant (defined at Sec.  403.3(r) of this 
chapter).
    Combined sewer system (CSS) means 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 at 
Sec.  403.3(r) of this chapter).
* * * * *
    Great Lakes Basin means the waters defined as ``Great Lakes'' and 
``Great Lakes System'' as those terms are defined in Sec.  132.2 of 
this chapter.
* * * * *

0
3. In Sec.  122.21, add paragraph (j)(8)(iii) to read as follows:

Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25).

* * * * *
    (j) * * *
    (8) * * *
    (iii) Public notification plan for CSO discharges to the Great 
Lakes Basin. Each permittee authorized to discharge a combined sewer 
overflow to the Great Lakes Basin as defined in Sec.  122.2 must submit 
a public notification plan developed in accordance with Sec.  122.38 as 
part of its permit application. The public notification plan shall 
describe any significant updates to the plan that may have occurred 
since the last plan submission.
* * * * *

0
 4. Add Sec.  122.38 to read as follows:

Sec.  122.38  Public notification requirements for CSO discharges to 
the Great Lakes Basin.

    (a) All permittees authorized to discharge a combined sewer 
overflow (CSO) to the Great Lakes Basin (``Great Lakes Basin CSO 
permittee'') must provide public notification of CSO discharges as 
described in this paragraph (a) after November 7, 2018. Public 
notification shall consist of:
    (1) Signage. (i) The Great Lakes Basin CSO permittee shall ensure 
that there is adequate signage where signage is feasible at:
    (A) CSO discharge points (unless the permittee demonstrates to the 
Director that no public access of, or public contact with, the 
receiving water is expected); and
    (B) Potentially impacted public access areas.
    (ii) At a minimum, signs shall include:
    (A) The name of the Great Lakes Basin CSO permittee;
    (B) A description of the discharge (e.g., untreated human sewage, 
treated wastewater) and notice that sewage may be present in the water; 
and
    (C) The Great Lakes Basin CSO permittee contact information, 
including a telephone number, NPDES permit number and CSO discharge 
point number as identified in the NPDES permit.
    (iii) The Great Lakes Basin CSO permittee shall perform periodic 
maintenance of signs to ensure that they are legible, visible and 
factually correct.
    (iv) Where a permittee has before August 7, 2018 installed a sign 
at a CSO discharge point or potentially impacted public access area 
that is consistent with State requirements, the sign is not required to 
meet the minimum requirements specified in paragraph (a)(1)(ii) of this 
section until the sign is replaced.
    (2) Notification of local public health department and other 
potentially affected public entities. (i) As soon as possible, but no 
later than four (4) hours after becoming aware by monitoring, modeling 
or other means that a CSO discharge has occurred, the Great Lakes Basin 
CSO permittee shall provide initial notice of the CSO discharge to the 
local public health department (or if there is no local health 
department, to the State health department), any potentially affected 
public entities (such as municipalities, public drinking water 
utilities, State and county parks and recreation departments), and 
Indian Tribes whose waters may be impacted. Such initial notice shall, 
at a minimum, include the following information:
    (A) The water body that received the discharge(s);
    (B) The location of the discharge(s) and identification of the 
public access areas potentially impacted by the discharge. Where CSO 
discharges from the same system occur at multiple locations during the 
same precipitation-related event, the Great Lakes Basin CSO permittee 
may provide a description of the area in the waterbody where discharges 
are occurring and identification of the public access areas potentially 
impacted by the discharge, and the permittee is not required to 
identify the specific location of each discharge;
    (C) The date(s) and time(s) that the discharge(s) commenced or the 
time the permittee became aware of the discharge(s) or when discharges 
are expected to occur;
    (D) Whether, at the time of the notification, the discharge(s) is 
continuing or has ended. If the discharge(s) has ended, the approximate 
time that the discharge ended; and
    (E) A point of contact for the CSO permittee.
    (ii) Within seven (7) days after becoming aware by monitoring, 
modeling or other means that the CSO discharge(s) has ended, the Great 
Lakes Basin CSO permittee shall provide the following supplemental 
information to the public health department and affected public 
entities and Indian Tribes receiving the initial notice under paragraph 
(a)(2)(i) of this section unless the information had been provided in 
an earlier notice:
    (A) The measured or estimated volume of the discharge(s). Where CSO 
discharges from the same system occur at multiple locations during the 
same precipitation-related event, the Great Lakes Basin CSO permittee 
may provide an estimate of the cumulative volume discharged to a given 
waterbody; and
    (B) The approximate time that the discharge(s) ended.
    (3) Notification of the public. (i) As soon as possible, but no 
later than four (4) hours after becoming aware by monitoring, modeling 
or other means that a CSO discharge has occurred, the Great Lakes Basin 
CSO permittee shall provide public notification of CSO discharges. The 
Great Lakes Basin CSO permittee shall provide public notification of 
CSO discharges electronically, such as by text, email, social media 
alerts to subscribers or by posting a notice on its public access 
website, and, if appropriate, by other means (e.g., newspaper, radio, 
television). If a permittee's public notification plan identifies 
circumstances and physical action needed to limit the public health 
impacts of the CSO discharge by controlling the CSO discharge 
(including continuing to implement its existing practice of conducting 
inspections of CSO discharge points during the discharge), and all 
available staff are required to complete this action, the four-hour 
notification window will commence upon completion of that action.
    (ii) At a minimum, the notice shall include:

[[Page 731]]

    (A) The water body that received the discharge(s);
    (B) The location of the discharge(s) and identification of the 
public access areas potentially impacted by the discharge. Where CSO 
discharges from the same system occur at multiple locations during the 
same precipitation-related event, the Great Lakes Basin CSO permittee 
may provide a description of the area in the waterbody where discharges 
are occurring and identification of the public access areas potentially 
impacted by the discharge, and the permittee is not required to 
identify the specific location of each discharge;
    (C) The date(s) and time(s) that the discharge(s) commenced or the 
time the permittee became aware of the discharge(s); and
    (D) Whether, at the time of the notification, the discharge(s) is 
continuing or has ended. If the discharge(s) has ended, the approximate 
time that the discharge(s) ended.
    (iii) Within seven (7) days after becoming aware by monitoring, 
modeling or other means that the CSO discharge(s) has ended, the Great 
Lakes Basin CSO permittee shall update the electronic notice with the 
following information unless the information had been provided in an 
earlier notice:
    (A) The measured or estimated volume of the discharge(s). Where CSO 
discharges from the same system occur at multiple locations during the 
same precipitation-related event, the Great Lakes Basin CSO permittee 
may provide an estimate of the cumulative volume discharged to a given 
waterbody; and
    (B) The approximate time that the discharge(s) ended, unless this 
information was provided in an earlier notice.
    (b) Annual notice. Starting in February 7, 2019, by May 1 of each 
calendar year (or an alternative date specified by the Director), any 
permittees authorized to discharge a CSO to the Great Lakes Basin shall 
make available to the public an annual notice describing the CSO 
discharges from its discharge point(s) that occurred in the previous 
calendar year and shall provide the Director and EPA with notice of how 
the annual notice is available. Notice to EPA shall be in the form of 
an email to [email protected] containing a link to the annual notice 
and the contact information (name, title, phone number, email) of the 
person responsible for maintaining the website, or alternative 
information about how the annual notice is available if it is not on a 
website; if the permittee is emailing the Director with this 
information, the permittee may copy EPA on that email to meet this 
requirement. Permittees that are owners or operators of a satellite 
collection system with one or more CSO discharge points shall provide 
the annual notice to the public and a copy of the annual notice to the 
operator of the POTW treatment plant providing treatment for its 
wastewater. For permittees whose State permitting authority has 
published or will publish an annual report containing all of the below 
minimum information (listed at paragraphs (b)(1) through (8) of this 
section) about the Permittee, the Permittee may choose to make 
available the State-issued annual report in order to meet this 
requirement. If permittees have existing report(s) that are written 
annually that collectively contain all of the below minimum information 
(listed at paragraphs (b)(1) through (8) of this section), then the 
Permittee may choose to make that/those report(s) publicly available in 
order to meet this requirement. At a minimum, the annual notice shall 
include:
    (1) A description of the location and receiving water for each CSO 
discharge point, and, if applicable, any treatment provided;
    (2) The date, location, approximate duration, measured or estimated 
volume, and cause (e.g., rainfall, snowmelt) of each wet weather CSO 
discharge that occurred during the past calendar year. Where CSO 
discharges from the same system occur at multiple locations during the 
same precipitation-related event, the Great Lakes Basin CSO permittee 
may provide an estimate of the cumulative volume discharged to a given 
waterbody;
    (3) The date, location, duration, volume, and cause of each dry 
weather CSO discharge that occurred during the past calendar year;
    (4) A summary of available monitoring data for CSO discharges from 
the past calendar year;
    (5) A description of any public access areas potentially impacted 
by each CSO discharge;
    (6) Representative precipitation data in total inches to the 
nearest 0.1 inch that resulted in a CSO discharge, if precipitation was 
the cause of the discharge identified in (Sec.  122.38(b)(2));
    (7) Permittee contact information, if not listed elsewhere on the 
website where this annual notice is provided; and
    (8) A concise summary of implementation of the nine minimum 
controls and the status of implementation of the long-term CSO control 
plan (or other plans to reduce or prevent CSO discharges), including:
    (i) A description of key milestones remaining to complete 
implementation of the plan; and
    (ii) A description of the average annual number of CSO discharges 
anticipated after implementation of the long-term control plan (or 
other plan relevant to reduction of CSO overflows) is completed.
    (c) Public notification plan. The Great Lakes Basin CSO permittee 
shall develop a public notification plan that describes how the Great 
Lakes Basin CSO permittee will ensure that the public receives adequate 
notification of CSO occurrences and CSO impacts. The Great Lakes Basin 
CSO permittee must provide notice of the availability of the plan, for 
instance on the permittee's website (if it has a website), and 
periodically provide information on how to view the notification plan, 
such as in bill mailings and by other appropriate means. The Great 
Lakes Basin CSO permittee must submit its public notification plan to 
the Director by August 7, 2018 and as part of a permit application 
under Sec.  122.21(j)(8)(iii). The plan must:
    (1) Identify the location of signs required under paragraph (a)(1) 
of this section and the location of any CSO discharge point where a 
sign is not provided. Where a sign has not been provided at a CSO 
discharge point, the plan shall explain why a sign at that location is 
not feasible or was otherwise determined to not be necessary.
    (2) Describe the message used on signs required under paragraph 
(a)(1) of this section;
    (3) Describe protocols for maintaining signage (e.g., inspections 
at set intervals);
    (4) Identify (with points of contact) the municipalities, public 
drinking water supplies, public parks with water access, Indian 
Tribe(s), and describe other sensitive area(s) identified in the 
permittee's long-term CSO control plan, that may be impacted by the 
permittee's CSO discharges;
    (5) Summarize significant comments and recommendations raised by 
the local public health department under paragraph (d) of this section;
    (6) Identify other affected public entities and Indian Tribes whose 
waters may be impacted by a CSO discharge that were contacted under 
paragraph (d) of this section and provide a summary of their 
significant comments and recommendations;
    (7) Describe protocols for the initial and supplemental notice to 
public health departments and other public entities;
    (8) Describe protocols for the initial and supplemental notice to 
the public;

[[Page 732]]

this shall include a description of circumstances under which the 
initial notification of the public may be delayed beyond four hours of 
the permittee becoming aware of the discharge, which shall only include 
circumstances where a physical action is needed to limit the public 
health impacts of a CSO discharge by controlling the CSO discharge 
(including continuing to implement its existing practice of conducting 
inspections of CSO discharge points during the discharge), and all 
available staff are required to complete this action, and, therefore, 
are not available to initiate the initial notification until this 
action is complete;
    (9) Describe, for each CSO discharge point, how the volume and 
duration of CSO discharges shall be either measured or estimated for 
the purposes of complying with paragraphs (a)(2)(ii)(A), (a)(3)(iii)(A) 
and (b)(2) and (3) of this section. If the Great Lakes Basin CSO 
permittee intends to use a model to estimate discharge volumes and 
durations, the plan must summarize the model and describe how the model 
was or will be calibrated. CSO permittees that are a municipality or 
sewer district with a population of 75,000 or more must assess whether 
re-calibration of their model is necessary, and recalibrate if 
necessary, at least once every 5 years;
    (10) Describe protocols for making the annual notice described in 
paragraph (b) of this section available to the public and to the 
Director; and
    (11) Describe significant modifications to the plan that were made 
since it was last updated.
    (d) Seek input on public notification plan. Prior to submitting the 
public notification plan, or resubmitting under Sec.  
122.21(j)(8)(iii), the Great Lakes Basin CSO permittee must:
    (1) Seek input from the local public health department (or if there 
is no local health department, the State health department), to:
    (i) Develop recommended protocols for providing notification of CSO 
discharges to the public health department. The protocols will specify 
which CSO discharges are subject to notification, the means of 
notification, timing of notification and other relevant factors.
    (ii) Develop recommendations for providing notice to the general 
public of CSO discharges electronically and by other appropriate means.
    (iii) Develop recommendations for areas that would be considered 
``potentially impacted public access areas'' as referenced in Sec.  
122.38(a)(1), (2), and (3).
    (2) Seek input from other potentially affected public entities and 
Indian Tribes whose waters may be impacted by a CSO discharge.
    (3) Consider the recommendations of the public health department 
and other potentially affected entities in developing protocols in its 
public notification plan for providing notification of CSO discharges 
to the public health department and potentially affected public 
entities and Indian Tribes.
    (e) Extending compliance to avoid undue economic hardship. The 
Director may extend the compliance dates in paragraphs (a), (b), and 
(c) of this section for individual communities if the Director 
determines the community needs additional time to comply in order to 
avoid undue economic hardship. Where the Director extends the 
compliance date of any of these requirements for a community, the 
Director shall notify the Regional Administrator of the extension and 
the reason for the extension. The Director shall post on its website a 
notice that includes the name of the community and the new compliance 
date(s). The notice shall remain on the Director's website until the 
new compliance date.

0
5. In Sec.  122.42, add paragraph (f) to read as follows:

Sec.  122.42  Additional conditions applicable to specified categories 
of NPDES permits (applicable to State NPDES programs, see Sec.  
123.25).

* * * * *
    (f) Public notification requirements for CSO discharges to the 
Great Lakes Basin. Any permit issued authorizing the discharge of a 
combined sewer overflow (CSO) to the Great Lakes Basin must:
    (1) Require implementation of the public notification requirements 
in Sec.  122.38(a);
    (2) Specify the information that must be included on discharge 
point signage, which, at a minimum, must include those elements in 
Sec.  122.38(a)(1)(ii);
    (3) Specify discharge points and public access areas where signs 
are required pursuant to Sec.  122.38(a)(1)(i);
    (4) Specify the timing and minimum information required for 
providing initial and supplemental notification to:
    (i) Local public health department and other potentially affected 
entities under Sec.  122.38(a)(2); and
    (ii) The public under Sec.  122.38(a)(3).
    (5) Specify the location of CSO discharges that must be monitored 
for volume and discharge duration and the location of CSO discharges 
where CSO volume and duration may be estimated; and
    (6) Require submittal of an annual notice in accordance with Sec.  
122.38(b);
    (7) Specify protocols for making the annual notice under Sec.  
122.38(b) available to the public.

PART 123--STATE PROGRAM REQUIREMENTS

0
 6. The authority citation for part 123 continues to read as follows:

    Authority:  Clean Water Act, 33 U.S.C. 1251 et seq.

0
7. In Sec.  123.25, add paragraph (a)(47) to read as follows:

Sec.  123.25  Requirements for permitting.

    (a) * * *
    (47) For a Great Lakes State, Sec.  122.38.
* * * * *
[FR Doc. 2017-27948 Filed 1-5-18; 8:45 am]
 BILLING CODE 6560-50-P
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