[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Notices]
[Pages 30395-30401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13098]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2010-0464; FRL-9156-7]


Stakeholder Input; National Pollutant Discharge Elimination 
System (NPDES) Permit Requirements for Municipal Sanitary Sewer 
Collection Systems, Municipal Satellite Collection Systems, Sanitary 
Sewer Overflows, and Peak Wet Weather Discharges From Publicly Owned 
Treatment Works Treatment Plants Serving Separate Sanitary Sewer 
Collection Systems

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency is announcing plans to 
hold several ``listening sessions'' beginning in June 2010 to obtain 
information from the public on certain issues EPA is considering. EPA 
is considering whether to propose to modify the National Pollutant 
Discharge Elimination System (NPDES) regulations as they apply to 
municipal sanitary sewer collection systems and sanitary sewer 
overflows (SSOs) in order to better protect the environment and public 
health from the harmful effects of sanitary sewer overflows and 
basement back ups. The Agency is considering whether to propose 
possible modifications to the NPDES regulations, including establishing 
standard permit conditions for publicly owned treatment works (POTW) 
permits that specifically address sanitary sewer collection systems and 
SSOs, and clarifying the regulatory framework for applying NPDES permit 
conditions to municipal satellite collection systems. The Agency is 
also considering whether and how it should resolve several longstanding 
issues that are the subject of the December 22, 2005 draft Peak Flows 
Policy. This draft Policy attempted to clarify EPA's interpretation 
that the existing ``bypass'' provision of the NPDES regulations applies 
to peak wet weather diversions at POTW treatment plants that are 
recombined with the flows from the secondary treatment units prior to 
discharge. The Agency is considering whether to adopt this or a revised 
Policy and/or address questions about peak flow as part of an SSO 
rulemaking to allow for a holistic and integrated approach to reducing 
SSOs while at the same time addressing peak flows at the POTW treatment 
plant.
    In addition to submitting information at the listening sessions, 
the public may also provide input to the Agency directly through e-
mail, fax or mail in order to help the Agency shape any possible future 
regulatory proposals. The Agency is undertaking this outreach to help 
advance the Clean Water Act objective to restore and maintain the 
chemical, physical and biological integrity of the nation's waters 
(CWA, Section 101(a)).

DATES: EPA is asking for statements and input from the interested 
public on or before August 2, 2010.

ADDRESSES: Submit your statements or input, identified by Docket ID No. 
EPA-HQ-OW-2010-0464, by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting input.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#9fd0c8b2dbf0fcf4faebdffaeffeb1f8f0e9"><span class="__cf_email__" data-cfemail="cc839be188a3afa7a9b88ca9bcade2aba3ba">[email protected]</span></a>, Attention Docket ID No. EPA-HQ-
OW-2010-0464.
    <bullet> Fax: 202-566-9744.
    <bullet> Mail: Water Docket, U.S. Environmental Protection Agency, 
Mail code: 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Attention Docket ID No. EPA-HQ-OW-2010-0464.
    <bullet> Hand Delivery: Water Docket, EPA Docket Center, EPA West 
Building Room 3334, 1301 Constitution Ave., NW., Washington, DC, 
Attention Docket ID No. EPA-HQ-OW-2010-0464. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your input to Docket ID No. EPA-HQ-OW-2010-
0464. EPA's policy is that all input received will be included in the 
public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the input includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your input. If you 
send an e-mail with input directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured 
and included as part of the input that is placed in the public docket 
and made available on the Internet. If you submit an electronic input, 
EPA recommends that you include your name and other contact information 
in the body of your input and with any disk or CD-ROM you submit. If 
EPA cannot read your input due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
input. Electronic files should avoid the use of special characters, any 
form of encryption, and be free of any defects or viruses. For 
additional information about EPA's public docket visit the EPA Docket 
Center homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further information about this 
notice, contact Charles Glass, EPA Headquarters, Office of Water, 
Office of Wastewater Management at tel.: 202-564-0418 or e-mail: 
<a href="/cdn-cgi/l/email-protection#cbaca7aab8b8e5a8a3aab9a7aeb88baebbaae5aca4bd"><span class="__cf_email__" data-cfemail="9dfaf1fceeeeb3fef5fceff1f8eeddf8edfcb3faf2eb">[email protected]</span></a>.

[[Page 30396]]

    Public Listening Sessions: EPA will hold several informal public 
listening sessions to gather input on actions that EPA is considering. 
The public listening sessions will include a brief background on SSOs 
and peak flows that will be followed by an opportunity for the public 
to provide input on possible paths forward. Written and oral statements 
will be accepted at the public listening sessions. Input generated from 
what was learned at a public listening session will be compiled and 
archived. The information gathered at these sessions, will be available 
on the Internet at http://www.epa.gov/npdes/sanitaryseweroverflows. 
Brief oral statements (three minutes or less) will be accepted at the 
sessions, and written statements will be accepted.
    The dates and locations of the listening sessions are as follows:
    [dec222] June 24, 2010, 10 a.m. to 3 p.m. at EPA Region 10 Office, 
1200 Sixth Avenue, Seattle, WA 98101.
    [dec222] June 28, 2010, 10 a.m. to 3 p.m. at EPA Region 4 Office, 
61 Forsyth Street, SW., Atlanta, GA 30303.
    [dec222] June 30, 2010, 10 a.m. to 3 p.m. at EPA Region 7 Office, 
901 N. 5th Street, Kansas City, KS 66101.
    [dec222] July 13, 2010, 10 a.m. to 3 p.m. at EPA HQ Office, Ariel 
Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20004.

In addition to the listening sessions held throughout the country, EPA 
will hold a ``virtual'' listening session via a webcast on July 14, 
2010, from Noon-4 p.m. EST. The same format will be followed as the in-
person listening sessions. After a presentation from EPA, members of 
the public may call in and give brief (three-minute) statements. 
Audience members will be able to listen to the webcast and all public 
statements through their computer speakers.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
matter under Docket ID No. EPA-HQ-OW-2010-0464. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., Washington, DC. Although all 
documents in the docket are listed in an index, some information is not 
publicly available, i.e., CBI or other information whose disclosure is 
restricted by statute. Publicly available docket materials are 
available in hard copy at the EPA Docket Center Public Reading Room, 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    Electronic versions of this notice and other SSO documents are 
available at EPA's SSO Web site http://www.epa.gov/npdes/sanitaryseweroverflows.
    An electronic version of the public docket is available through 
EPA's electronic public docket and input system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
input, access the index listing of the contents of the official public 
docket, and to access those documents in the public docket that are 
available electronically. Once in the system, select ``search'', then 
key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.A.1.
    Submitting CBI. Do not submit this information to EPA though 
regulations.gov or e-mail. Clearly mark all of the information that you 
claim to be CBI. For CBI information on computer discs mailed to EPA, 
mark the surface of the disc as CBI. Also identify electronically the 
specific information contained in the disc or that you claim is CBI. In 
addition to one complete version of the specific information claimed as 
CBI, you must submit a copy that does not contain the information 
claimed as CBI for inclusion in the public document. Information so 
marked will not be disclosed except in accordance with procedures set 
forth in 40 CFR Part 2.
    It is important to note that EPA's policy is that public input, 
whether submitted electronically or in paper, will be made available 
for public viewing in EPA's electronic public docket as EPA receives 
them and without change, unless the input contains copyrighted 
material, CBI, or other information whose disclosure is restricted by 
statute. When EPA identifies any input containing copyrighted material, 
EPA will provide a reference to that material in the version of the 
document that is placed in EPA's electronic public docket. The entire 
printed submittal, including the copyrighted material, will be 
available in the public docket.
    Documents submitted on computer disks that are mailed or delivered 
to the docket will be transferred to EPA's electronic public docket. 
Input that is mailed or delivered to the Docket will be scanned and 
placed in EPA's electronic public docket. Where practical, physical 
objects will be photographed, and the photograph will be placed in 
EPA's electronic public docket along with a brief description written 
by the docket staff.

B. How and to whom do I submit input?

    You may submit input electronically, by mail, through hand 
delivery/courier, or in person by attending one of the 5 listening 
sessions. To ensure proper receipt by EPA, identify the appropriate 
docket identification number in the subject line on the first page of 
your input. Please ensure that your input is submitted within the 
specified input period.
    1. Electronically. If you submit electronic input as prescribed 
below, EPA recommends that you include your name, mailing address, and 
an e-mail address or other contact information in the body of your 
input. Also include this contact information on the outside of any disk 
or CD-ROM you submit, and in any cover letter accompanying the disk or 
CD-ROM. This ensures that you can be identified as the submitter of the 
input and allows EPA to contact you in case EPA cannot read your 
submittal due to technical difficulties or needs further information on 
the substance of your input. EPA's policy is that EPA will not edit 
your input, and any identifying or contact information provided in the 
body of the text will be included as part of the input that is placed 
in the official public docket, and made available in EPA's electronic 
public docket. If EPA cannot read your submittal due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your input.

[[Page 30397]]

    i. EPA Dockets. Your use of EPA's electronic public docket to 
provide input to EPA electronically is EPA's preferred method for 
receiving input. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting input. Once 
in the system, select ``search'', and then key in Docket ID No. EPA-HQ-
OW-2010-0464. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it.
    ii. E-mail. Input may be sent by electronic mail (e-mail) to ow-
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="91f5fef2faf4e5d1f4e1f0bff6fee7">[email protected]</a>, Attention Docket ID No. EPA-HQ-OW-2010-0464. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail directly to the 
Docket without going through EPA's electronic public docket, EPA's e-
mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the submittal that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD-ROM. You may submit input on a disk or CD-ROM that 
you mail to the mailing address identified in this section. These 
electronic submissions will be accepted in Microsoft Word or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send the original and three copies of your input to: 
Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
EPA-HQ-OW-2010-0464.
    3. By Hand Delivery or Courier. Deliver your input to: Public 
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, 
NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2010-0464. 
Such deliveries are only accepted during the Docket's normal hours of 
operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays).

II. Background

    In order to help the public prepare for the listening sessions, the 
following background information is provided.
    Wastewater collection systems collect domestic sewage and other 
wastewater from homes and other buildings and convey it to wastewater 
sewage treatment plants for proper treatment and disposal. The 
collection and treatment of municipal sewage and wastewater is vital to 
the public health in our cities and towns.
    The efficiency of treatment at a wastewater treatment plant depends 
strongly on the performance of the collection system. When the 
structural integrity of a sanitary sewer collection system 
deteriorates, high volumes of infiltration (including rainfall-induced 
infiltration) and inflow can enter the sewer system. High levels of 
inflow and infiltration (I/I) increase the hydraulic load on treatment 
plants, which can reduce treatment efficiency, lead to bypassing a 
portion of the treatment process, or in extreme situations make 
biological treatment facilities inoperable (e.g., wash out the 
biological organisms that treat the waste).
    In the United States, municipalities historically have used two 
major types of sewer systems. One type, combined sewers, is designed to 
collect both sanitary sewage and storm water runoff in a single-pipe 
system. Sewer builders designed this type of sewer system to provide 
the primary means of surface drainage and drain precipitation flows 
away from streets, roofs, and other impervious surfaces. State and 
local authorities generally have not allowed the construction of new 
combined sewers since the first half of the 20th century. The other 
major type of domestic sewer design is sanitary sewers (also known as 
separate sanitary sewers). Sanitary sewers are not installed to collect 
large amounts of runoff from precipitation events or provide widespread 
drainage, although they typically are built with some allowance for 
higher flows that occur during storm events for handling minor and non-
excessive amounts of I/I that enter the system.
    SSOs, which are releases of raw sewage, can result when there is a 
failure in a sanitary sewer collection system. EPA generally uses the 
term SSO to describe releases of sewage that result in a discharge to 
waters of the United States, as well as releases that do not result in 
a discharge to U.S. waters, including sewage backups into buildings. A 
number of factors can cause or contribute to an SSO, including high 
levels of I/I; blockages caused by roots, grease, sediment or other 
materials; structural, mechanical or electrical failure; and third 
party actions or activities.
    Municipal sanitary sewer collection systems are an extensive, 
valuable, and complex part of the nation's infrastructure. The 
collection system of a single large municipality can include thousands 
of miles of pipe and represent an investment worth billions of dollars. 
The underlying challenges affecting the performance of collection 
systems are influenced by a number of factors including the following:
    <bullet> Much of the nation's sanitary sewer infrastructure is old; 
some parts of this infrastructure date back over 100 years. Over the 
time period associated with building these systems, a wide variety of 
materials, design and installation practices, and maintenance/repair 
procedures have been used, many of which are inferior to those 
available today;
    <bullet> Infrastructure has deteriorated with time and continues to 
age;
    <bullet> Investment in infrastructure maintenance and repair has 
often been inadequate;
    <bullet> The location of problems (e.g., roots, debris) and other 
variables may continually change throughout a system;
    <bullet> Systems may fail to provide capacity to accommodate 
increased sewage delivery and treatment demand from increasing 
populations; and
    <bullet> Institutional arrangements relating to the operation of 
sewers may present a barrier to effective operation and maintenance of 
sewer systems. Almost all building laterals in a municipal system are 
privately owned. In many municipal systems, a high percentage of 
collector sewers are owned by private entities or municipal entities 
other than the entity operating the major interceptor sewers.
    The proper operation and maintenance of collection system assets is 
critical to minimizing the frequency and volume of SSOs. Municipalities 
need to manage their assets effectively and ensure adequate and 
sustainable funding to support appropriate investments.
    The main concern regarding raw sewage releases associated with SSOs 
is typically pathogens, including bacteria, viruses, and protozoa. SSOs 
can contain other pollutants, including nutrients, toxics from 
industrial, commercial and residential sources, and wastewater solids 
and debris. SSOs are of special concern to public health because they 
may expose citizens to bacteria, viruses, intestinal parasites, and 
other microorganisms that can cause serious illness such as 
gastroenteritis, hepatitis, cryptosporidiosis, and giardiasis. 
Sensitive populations, children, the elderly and those with weakened 
immune systems, can be at a higher risk of illness from exposure to 
sewage from SSOs.
    The discharge of untreated sewage in SSOs can contaminate waters, 
in some cases causing water quality problems and threats to public 
health. SSOs may also cause raw sewage to flow into basements, parks, 
recreational streams,

[[Page 30398]]

beaches, on city streets and backyards, and other areas where people 
are in close contact with the overflow. The public can be exposed to 
raw sewage from SSOs through street flooding, recreational contact such 
as swimming and fishing, drinking contaminated water and collection 
system back-ups into homes. The threat to public health and the 
environment posed by SSOs is not necessarily limited to large volume or 
extended-duration overflows. Some of the greatest threats from SSOs 
stem from viruses and pathogens which can present a public health 
threat even in small volume, intermittent overflows.

Statutory and Regulatory Overview

    SSOs that reach waters of the United States are point source 
discharges and, like other point source discharges, are generally 
prohibited unless authorized by an NPDES permit. Sanitary sewers are 
part of the treatment works under the Clean Water Act and discharges 
from sanitary sewers have historically been viewed as required to 
achieve secondary treatment in order to be eligible to receive an NPDES 
permit. Moreover, SSOs, including those that do not reach waters of the 
United States, may be indicative of improper operation and maintenance 
of the sewer system, and thus may violate other NPDES permit 
conditions. The NPDES regulations establish standard permit conditions 
which must be included in all NPDES permits, as well as additional 
standard permit conditions to be included in all NPDES permits for 
publicly owned treatment works (POTWs) (see 40 CFR 122.41 and 122.42). 
Standard permit conditions in a permit for a POTW apply to all portions 
of the collection system for which the permittee has ownership or has 
operational control. Standard permit conditions that have particular 
application to SSOs and municipal sanitary sewer collection systems 
include provisions that address a duty to mitigate (Sec.  122.41(d)); 
proper operation and maintenance (Sec.  122.41(e)); noncompliance 
reporting (Sec.  122.41(l)(6) and (7)); recordkeeping (Sec.  
122.41(j)(2))

Previous Activities To Address SSO Requirements

    In 1994, a number of municipalities asked EPA to establish a 
Federal Advisory Committee (FAC) of key stakeholders to make 
recommendations on how the NPDES program should address SSOs. This 
request came soon after EPA had published the Combined Sewer Overflow 
Control Policy in 1994, which was designed to provide greater national 
clarity and consistency in the way NPDES requirements apply to combined 
sewer overflows (CSOs). In part, the municipalities indicated a desire 
for greater national clarity and consistency in the way NPDES 
requirements apply to SSOs. The municipalities indicated that they 
believed that eliminating all SSO discharges was technically infeasible 
and, as a result, municipalities tasked with the responsibility of 
operating these systems could not comply with an absolute prohibition 
on SSOs. The municipalities suggested a need for a workable regulatory 
framework which allowed EPA and NPDES authorities to define compliance 
endpoints in a manner that was consistent with engineering realities 
and the health and environmental risks of SSOs.
    EPA then convened a national ``SSO policy dialogue'' among a 
balanced group of representatives from key stakeholder organizations. 
EPA asked the individual stakeholders to provide input on how best to 
meet the SSO policy challenge. In 1995, EPA chartered an Urban Wet 
Weather Flows Federal Advisory Committee (FAC) with the goal of 
developing specific recommendations addressing cross-cutting wet 
weather issues and to improve the effectiveness of the Agency's efforts 
to address wet weather pollutant sources under the NPDES program. The 
Urban Wet Weather Flows Federal Advisory Committee reconvened the SSO 
policy dialogue group as its SSO Subcommittee.
    The SSO Subcommittee met twelve times to develop a draft paper and 
on October 20, 1999, with unanimous support from the members, completed 
a framework to address SSOs. In the draft paper the Subcommittee 
supported basic principles with the following suggested NPDES permit 
requirements:
    (1) Capacity, management, operation and maintenance (CMOM) programs 
for municipal sanitary sewer collection systems;
    (2) A prohibition on SSOs, which includes a framework for raising a 
defense for unavoidable discharges;
    (3) Reporting, public notification, and recordkeeping requirements 
for municipal sanitary sewer collection systems and SSOs; and
    (4) The interim use of remote treatment facilities (or peak excess 
flow treatment facilities).
    In addition, the Subcommittee unanimously supported a set of 
principles for municipal satellite collection systems and watershed 
management, although members did not develop detailed language 
addressing these topics.
    EPA prepared a Notice of Proposed Rulemaking (NPRM) to reflect the 
work achieved by the FAC. The NPRM was never formally released to the 
public or sent to the Federal Register for publication, but instead was 
withdrawn in January 2001 for further review. The draft NPRM would have 
proposed NPDES standard permit conditions for municipal sanitary sewer 
collection systems that were aimed at providing a more efficient 
approach to controlling SSOs through better management, increased 
public notice, and a focus on system planning.
    In August 2004 the Agency presented to Congress the ``Report to 
Congress: Impacts and Control of CSOs and SSOs''. The report found that 
CSOs and SSOs can have impacts on human health and the environment at 
the local watershed level. The report identified a broad range of 
technologies available to municipalities to control the impacts of CSOs 
and SSOs, documented the extent of the problem, and provided a baseline 
for future policy actions. In the Report to Congress, EPA estimated 
that between 23,000 and 75,000 SSOs occur each year in the United 
States, resulting in releases of between 3 billion and 10 billion 
gallons of untreated wastewater.

Previous Activities To Address Peak Flow Requirements

    One standard permit condition in the NPDES regulations is the 
bypass provision at 40 CFR 122.41(m). The provision defines bypass to 
mean the ``intentional diversion of waste streams from any portion of a 
treatment facility.'' The regulation prohibits bypasses except where 
necessary for essential maintenance to assure efficient operation and 
where effluent limitations are not exceeded. For all other bypasses, 
the Director of the NPDES program may take enforcement action against a 
permittee for a bypass, unless:
    (A) The bypass was unavoidable to prevent loss of life, personal 
injury, or severe property damage;
    (B) There were no feasible alternatives to the bypass, such as the 
use of auxiliary treatment facilities, retention of untreated wastes, 
or maintenance during normal periods of equipment downtime; and
    (C) The permittee submitted the notices required by the regulation.
    The bypass regulation provides that the Director of the NPDES 
authority may approve an anticipated bypass, after considering its 
adverse effects, if the Director determines that the bypass will meet 
the criteria identified in the regulation and listed above. Approval of 
an anticipated bypass does not ``authorize'' the bypass, rather an

[[Page 30399]]

approval of an anticipated bypass describes the circumstances in which 
the NPDES authority will not take an enforcement action against the 
permittee for a prohibited bypass. The bypass provision was promulgated 
in 1979, and has remained in effect since that time.
    On November 7, 2003, in response to requests from many 
stakeholders, EPA requested public comment on a draft policy to address 
the issue of NPDES requirements for discharges from POTWs serving 
separate sanitary sewers where peak wet weather flow is routed around 
biological treatment units and then blended with the effluent from the 
biological units prior to discharge. Under the November 7, 2003, 
approach, a wet weather diversion around biological treatment units 
that was blended with the wastewater from the biological units prior to 
discharge would not have been considered to constitute a prohibited 
bypass if certain criteria were met.
    EPA received significant public comment on the 2003 document, 
including over 98,000 comments opposing adoption of such a policy due 
to concerns about potential human health risks of diverting a portion 
of the flow around secondary treatment units during wet weather events. 
EPA also received a letter signed by 73 members of Congress asking that 
EPA not move forward with finalizing the policy. On May 19, 2005, EPA 
indicated that, after consideration of the comments, the Agency did not 
intend to finalize the 2003 proposal. On July 26, 2005, Congress 
enacted the FY 2006 Department of the Interior, Environment, and 
Related Agencies Appropriations Act (Pub. L. 109-54). Section 203 of 
this Act provides that none of the funds made available in the Act 
could be used to finalize, implement or enforce the November 7, 2003, 
proposed blending policy.
    In October 2005, the Natural Resources Defense Council (NRDC) and 
the National Association of Clean Water Agencies (NACWA) provided EPA 
with their joint proposal recommending further action that the Agency 
should take regarding peak flows. The NRDC/NACWA recommended approach 
includes an interpretation of the bypass regulation that is 
significantly different from the November 7, 2003, document in that it 
would clarify that the bypass provision applies to wet weather 
diversions at POTW treatment plants serving separate sanitary sewers 
including those in which the diverted stream is blended with the 
secondary effluent before discharge.
    On December 22, 2005, EPA requested public comment on a draft Peak 
Flows Policy that reflects the approach of the NRDC/NACWA 
recommendation. The 2005 draft Policy explains how the NPDES authority 
should determine whether requests for approval of anticipated peak wet 
weather flow diversions at POTW treatment plants serving separate 
sanitary sewer collection systems, which are recombined with flow from 
the secondary treatment units prior to discharge, should be approved or 
denied under 40 CFR 122.41(m)(4)(ii). The approach in the draft Policy 
is based on language in the bypass regulation that provides that if the 
NPDES authority determines that the criteria of Sec.  122.41(m)(4)(i) 
will be met, the NPDES authority may approve an anticipated bypass of 
peak wet weather flow diversions around secondary treatment units. EPA 
has not, to date, finalized the draft Policy.

III. Input on Issues That EPA Is Considering

    EPA is considering whether to develop a more specific broad-based 
regulatory framework for sanitary sewer collection systems under the 
NPDES program. The Agency is considering proposing standard permit 
conditions for inclusion in permits for publicly owned treatment works 
(POTWs) and municipal sanitary sewer collection systems. The permit 
conditions EPA is considering would address the following areas: 
reporting, overflow right-to-know, notice of public health officials 
and recordkeeping requirements for SSOs, capacity assurance, 
management, operation and maintenance requirements for municipal 
sanitary sewer collection systems; and possible regulatory requirements 
or provisions for SSOs that are caused by exceptional circumstances.
    EPA is also seeking the views of the interested public on the 
implications for peak excess flow treatment facilities in the municipal 
sanitary collection system and the treatment of peak flows that reach 
POTWs. The Agency is considering clarifying and modifying the 
regulatory framework for applying NPDES permit conditions, including 
applicable standard permit conditions, to municipal satellite 
collection systems. Municipal satellite collection systems are sewer 
systems owned or operated by a municipality that conveys wastewater to 
a POTW operated by a different municipality.
    In addition, the Agency is considering clarifying when municipal 
satellite collection systems must obtain a permit.
    With today's notice of the scheduled public meetings, EPA is asking 
for public input on the following preliminary considerations that will 
inform EPA's thinking on the issues that will be the subject of these 
meetings.

1. Should EPA propose to clarify its standard permit conditions for SSO 
reporting, recordkeeping and public notification?

    Current requirements require all NPDES permits to contain the 
standard permit conditions at 40 CFR 122.41(l)(6) and (7) for 
noncompliance reporting. When incorporated into a permit, these 
standard conditions require permittees to report any instance of 
noncompliance to the NPDES authority. SSOs that result in discharges to 
waters of the United States or result from improper operation and 
maintenance of the collection system constitute noncompliance, which 
the permittee must report under these provisions. The existing 
requirements in 40 CFR 122.41(l)(6) and (7) require the permittee to 
report orally to the NPDES authority within 24 hours of becoming aware 
of the event if the noncompliance may endanger health or the 
environment. A written submission must follow within 5 days of the time 
the permittee becomes aware of the noncompliance, unless the Director 
waives the written report. The standard permit condition at 40 CFR 
122.41(l)(7) requires the permittee to report all other instances of 
noncompliance in writing at the time discharge monitoring reports are 
submitted.
    At a minimum, all NPDES permits must contain the standard permit 
condition at 40 CFR 122.41(j)(2) for recordkeeping. When incorporated 
into a permit, this provision, among other things, requires permittees 
to retain copies of all reports required by the permit for a period of 
at least 3 years from the date of the report. This requirement includes 
retaining records of the required noncompliance reports of SSO events 
that result in discharges to waters of the U.S. Additional reporting 
and recordkeeping requirements may have been included in a permit on a 
case-by-case basis.
    The existing NPDES standard permit conditions do not establish 
monitoring or public notification requirements for SSOs.
    The Agency is considering proposing to clarify and expand standard 
permit requirements to establish a comprehensive framework for 
monitoring, reporting, public notification, and recordkeeping for SSOs 
from municipal sanitary sewer collection systems. EPA requests input on 
the following types of questions:

[[Page 30400]]

    <bullet> Is there a need for establishing this framework and, if 
so, which SSO events should be subject to reporting, recordkeeping and 
public notice requirements?
    <bullet> Should EPA clarify that such requirements apply to SSOs 
that do not result in a discharge to waters of the United States, 
including sewage backups into buildings?
    <bullet> Which SSO events should be reported immediately?
    <bullet> What criteria should be used to determine if notice of 
public health officials is appropriate for an SSO event?
    <bullet> Should EPA establish minimum requirements for monitoring 
SSOs to alert the municipal operator in a timely manner? If so, what 
are appropriate methods, technologies or management programs for 
monitoring SSOs?
    <bullet> Should EPA require immediate notification to the public of 
SSOs? If so, for which SSOs and how and when should the public be 
notified?
    The potential changes are authorized by, and would implement, CWA 
sections 304(i), 308 and 402(a).

2. Should EPA propose to develop a standard permit condition with 
requirements for capacity, management, operations and maintenance 
programs based on asset management principles?

    Under existing regulations at 40 CFR 122.41, all NPDES permits must 
contain two standard conditions addressing operation and maintenance: 
proper operation and maintenance requirements at 40 CFR 122.41(e) and 
duty to mitigate at 40 CFR 122.41(d). These provisions require the 
permittee to properly operate and maintain its collection system as 
well as take all reasonable steps to minimize or prevent SSO discharges 
to waters of the United States that have a reasonable likelihood of 
adversely affecting human health or the environment. In addition, these 
provisions, along with a prohibition on SSOs to waters of the U.S., are 
the basis for requiring permittees to provide adequate sanitary sewer 
collection system capacity.
    EPA is considering proposing to add a new standard condition that 
would clarify EPA's expectations for appropriate capacity, management, 
operation and maintenance (CMOM) program requirements. The major 
components of such a CMOM standard permit condition could include 
general conditions; a general requirement to develop and implement a 
CMOM program; and documentation requirements, including a written 
summary of the program, an overflow emergency response plan, a system 
evaluation and capacity assurance plan, and the results of a program 
audit. The concept of CMOM also has a significant nexus with Asset 
Management approaches, which are becoming an industry standard for 
infrastructure management. The CMOM may present an appropriate 
framework or context for a possible permit condition.
    EPA requests information on successful programs that have been 
implemented to manage, operate, and maintain their systems. In 
addition, EPA requests input on:
    <bullet> What is the need for a CMOM standard permit condition?
    <bullet> What are the appropriate components and core attributes of 
a CMOM standard permit condition and what is their nexus with Asset 
Management practices?
    <bullet> If adopted, how should a CMOM provision be tailored for 
small municipalities?
    <bullet> Would integrating system evaluation and capacity assurance 
planning efforts for the collection system with planning efforts to 
address peak flow issues at the treatment plant encourage more holistic 
approaches?

3. Should EPA propose to require permit coverage for municipal 
satellite collection systems?

    Many municipal sanitary sewer collection systems are not entirely 
owned or operated by a single municipal entity. A municipal entity that 
operates a treatment plant may be responsible for conveying and/or 
treating wastewater from sewers of other municipalities. The term 
``municipal satellite collection system'' refers to a collection system 
that is owned or operated by a municipality other than the municipality 
that provides treatment for wastewater added throughout the system. The 
term ``regional collection system operator'' refers to a collection 
system operator who is responsible for the treatment plant(s) that 
receives wastewater from municipal satellite collection systems. 
Regional municipal collection system operators who provide wastewater 
treatment may only operate a relatively small portion of the collection 
system, such as major interceptors or collector sewers in certain 
areas. In extreme cases, the regional authority or district (and 
traditional NPDES permit holder) does not own or operate any part of 
the collection system, only the treatment plant.
    Poorly performing municipal satellite collection systems can be 
major contributors to peak flow problems in regional collection 
systems. In addition, investment in maintenance, repair and enhanced 
capacity of municipal satellite collection systems has often lagged 
behind that for regional municipal collection systems. This lag in 
investment is generally due to institutional issues such as lack of 
responsibility by municipal satellite collection system operators for 
problems downstream in the collection system or at a treatment plant, 
even where the municipal satellite collection system may have been a 
significant source of capacity problems downstream. In addition, direct 
oversight by EPA and NPDES States has been limited.
    Municipal satellite collection systems can also experience 
overflows. The Agency believes it may be important to clarify who is 
required to report these events to the NPDES authority and how they 
should be reported, in order to protect human health and the 
environment.
    EPA is considering clarification of the framework for regulating 
municipal satellite collection systems under the NPDES permit program. 
EPA welcomes input on the questions whether (and which) municipal 
satellite collection system should be required to obtain an NPDES 
permit, and whether EPA should require these systems to meet standard 
permit conditions related to reporting, public notification, and 
recordkeeping; CMOM requirements; and prohibition along with other 
standard permit conditions throughout municipal collection systems 
including satellite portions.

4. What is the appropriate role of NPDES permits in addressing 
unauthorized SSOS that are caused by exceptional circumstances?

    Even municipal collection systems that are operated in an exemplary 
fashion may experience unauthorized discharges under exceptional 
circumstances. EPA requests input on the appropriate role of NPDES 
permits in addressing such exceptional events. The current NPDES 
standard permit conditions provide two provisions, the bypass provision 
at 40 CFR 122.41(m) and the upset provision at 40 CFR 122.41(n), that 
were designed to address violations that occur under exceptional 
circumstances. The bypass provision generally prohibits bypasses, but 
also provides criteria for when the NPDES authority may excuse a bypass 
by exercising enforcement discretion and not bring an enforcement 
action for a violation. The upset provision allows a permittee to raise 
an affirmative defense to a violation of a technology-based effluent 
limitation. The Agency is considering developing a standard permit 
condition that would provide a

[[Page 30401]]

framework for evaluating the specific circumstances of overflows from a 
municipal sanitary sewer collection system that result in a discharge 
to waters of the U.S. and consideration of those circumstances to 
excuse those discharges, either through the exercise of enforcement 
discretion or through establishment of an affirmative defense. The 
Agency requests input on the appropriate criteria that should be used 
in such a provision.

5. How should EPA address peak flows at POTW treatment plants?

    The Agency is considering the direction to take to resolve several 
long standing issues that are the subject of the December 22, 2005 
draft Peak Flows Policy. This draft Policy attempted to clarify EPA's 
interpretation that the existing ``bypass'' provision of the NPDES 
regulations applies to peak wet weather diversions at POTW treatment 
plants that are recombined with the flows from the secondary treatment 
units prior to discharge. The Agency is considering whether to embrace 
the approach explained in the draft Policy and/or to propose to address 
these issues in any SSO rulemaking. Addressing the issues in the 
context of possible SSO rulemaking would allow for a holistic and 
integrated approach to reducing SSOs while at the same time addressing 
peak flows at the POTW treatment plant. In addition, EPA would like to 
receive public input on the limited number of cases where infrequent 
discharges from wet weather treatment facilities located in sanitary 
sewer collection systems have been authorized or approved and issued a 
permit by an NPDES authority. The Agency would like to receive feedback 
from the public on the need for requirements for these facilities and 
any technologies that are utilized in the sanitary sewer system to 
treat discharges.

6. What are the costs and benefits of CMOM programs and asset 
management of sanitary sewers?

    EPA is soliciting input from the general public concerning the 
impact of the proposed rule in terms of costs on covered entities and 
benefits of proposed rule requirements. Specifically, EPA is seeking 
information on asset management approaches, integrated utility 
planning, or other mechanisms that are used to ensure the 
sustainability and cost effectiveness of investments and enhance public 
health and environmental benefits. The Agency is seeking input on the 
potential incorporation of these techniques or others that are similar 
in any proposed modifications to the NPDES regulations.
    In addition, examples of other information that is needed from the 
public include: the number of municipalities currently implementing 
CMOM and the components of their CMOM programs; information on costs 
incurred by basement backups as well as the frequency that they occur; 
and the number and location of municipal satellite systems and the cost 
effectiveness of extending permitting requirements to them.

7. Are there other considerations?

    EPA requests input on other considerations, such as environmental 
justice issues associated with this Notice. In particular, EPA requests 
input on environmental justice considerations associated with 
establishing requirements for municipal satellite collection systems.

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

    Dated: May 26, 2010.
Peter S. Silva,
Assistant Administrator, Office of Water.
[FR Doc. 2010-13098 Filed 5-28-10; 8:45 am]
BILLING CODE 6560-50-P


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