1994 EPA CSO Policy

8/6/2019 1994 EPA CSO Policy

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Tuesday

April 19, 1994

Part VII

Environmental

Protection Agency

Combined Sewer Overflow (CSO) Control

Policy; Notice



18688 Federal Register / Vol. 59, No. 75 / Tuesday, April 19, 1994 / Notices

ENVIRONMENTAL PROTECTION

AGENCY

[FRL-4732-7]

Combined Sewer Overflow (CSO)Control Policy

AGENCY: nvironmental ProtectionAgency (EPA).ACTION: inal policy.

SUMMARY: PA has issued a nationalpolicy statement entitled “CombinedSewer Overflow (CSO) Control Policy.”This policy establishes a consistentnational approach for controllingdischarges from CSOs to the Nation'swaters through the National Pollutant

Discharge Elimination System (NPDES)

permit program.FORFURTHERNFORMATIONONTACT:Jeffrey Lape, Office of Wastewater

Enforcement and Compliance. MC-4201, U.S. Environmental ProtectionAgency, 401 M Street SW., Washington.DC 20460, (202) 260-7361.SUPPLEMENTARYNFORMATION:he mainpurposes of the CSO Control Policy are

to elaborate on the EnvironmentalProtection Agency’s (EPA’s) NationalCSO Control Strategy published onSeptember 8, 1989, at 54 FR 37370, andto expedite compliance with therequirements of the Clean Water Act(CWA). While implementation of the1989 Strategy baa resulted in progresstoward controlling CSOs, significantpublic health and water quality risks

remain.This Policy provides guidance topermittees with CSOs. NPDESauthorities and State water qualitystandards authorities on coordinatingthe planning. selection, andimplementation of CSO controls thatmeet the requirements of the CWA andallow for public involvement during thedecision-making process.

Contained in the Policy are provisionsfor developing appropriate, site-specificNPDES permit requirements for allcombined sewer systems (CSS) thatoverflow as a result of wet weatherevents. For example, the Policy lays out

two alternative approaches--the“demonstration” and the“presumption” approaches--thatprovide communities with targets forCSO controls that achieve compliancewith the Act, particularly protection ofwater quality and designated uses. ThePolicy also includes enforcementinitiatives to require the immed iateelimination of overflows that occurduring dry weather and to ensure thathe remaining CWA requirements are

complied with as soon as practicable.The permitting provisions of the

Policy were developed as a result of

extensive input received from keystakeholders during a negotiated policydialogue. The CSO stakeholdersincluded representatives from States,environmental groups, municipalorganizations and others. The negotiated

dialogue was conducted during theSummer of 1992 by the Office of Waterand the Office of Water’s ManagementAdvisory Group. The enforcementinitiatives, including one which isunderway to address CSOs during dryweather, were developed by EPA’sOffice of Water and Office ofEnforcement.

CSO permittees should immediatelyundertake a process to accuratelycharacterize their CSS and CSOdischarges, demonstrate implementationof minimum technology-based controlsidentified in the Policy, and developlong-term CSO control plans whichevaluate alternatives for attaining

EPA issued a Notice of Availability onthe draft CSO Control Policy on January19, 1993, (58 FR 4994) andcomments on the draft Policy y March22, 1993. Approximately forty-one setsofwritten comments were submitted bya variety of interest groups including

cities and municipal groups,environmental groups, States,professional organizations and others.All comments were considered as EPAprepared the Final Policy. The publiccomments were largely supportive ofthe draft Policy. EPA received broadendorsement of and support for the keyprinciples and provisions from mostcommenters. Thus, this final Policydoes not include significant changes tothe majo r provisions of the draft Policy,but rather, it includes clarification andbetter explanation of the elements of thePolicy to address several of thequestions that were raised in the

comments. Persons wishing to obtaincopies of the public comments or EPA’ssummary analysis of the comments maywrite or call the EPA contact person.

The CSO Policy represents acomprehensive national s trategy toensure that municipalities, permittingauthorities, water quality standardsauthorities and the public engage in acomprehensive and coordinatedplanning effort to achieve cost effectiveCSO controls that ultimately meetappropriate health and environmentalobjectives. The Policy recognizes thesite-specific nature of CSOs and theirimpacts and provides the necessary

flexibility to tailor controls to localsituations. Major elements of the Policyensure that CSO controls are costeffective and meet the objectives and

requirementsf the CWA.The majorrovisions of the Policy are

as follows.

compliance with the CWA, includingcompliance with water qualitystandards and protection of designateduses. Once the long-term CSO controlplans are comple ted, perm ittees will beresponsible to implement the plans’

recommendations as soon aspracticable.State water quality standards

authorities will be involved in the long-term CSO control planning effort aswell. The water quality standardsauthorities will help ensure thatdevelopment of the CSO permittees’long-term CSO control plans arecoordinated with the review andpossible revision of water qualitystandards on CSO-impacted waters.

NPDES authorities will issue/reissueor modify permits, as appropriate, torequire compliance with the technologybased and water quality-based

requirements of the CWA. Aftercompletion of the long-term CSOcontrol plan,NPDES permits will bereissue or modified to incorporate theadditional requirements specified in thePolicy, such as performance standardsfor the selected controls based onaverage design conditions, a post-construction water quality assessmentprogram, monitoring for compliancewith water quality standards. and areopener clause authorizing the NPDESauthority to reopen and modify theoermit if it is determined that the CSOcontrols fail to meet water qualitystandards or protect designated uses.

NPDES authorities should commenceenforcement actions against permitteesthat have CWA violations due to CSOdischarges during dry weather. Inaddition, NPDES authorities shouldensure the implementation of theminimum technology-based controIsand incorporate a schedule into anappropriate enforceable mechanism,with appropriate milestone dates, to.implement the required long-term CSOcontrol plan. Schedules forimplementation of the long-term CSOcontrol plan may be phased based onthe relative importance of adverseimpacts upon water quality standardsand designated uses, and on apermittee ’s financial capability.

EPA is developing extensive guidanceto support the Policy and will announcethe availability of the guidances andother outreach efforts through variousmeans. as they becom e available. Forexample, EPA is preparing guidance onthe nine minimum controls,characterization and monitoring ofCSOs, development of long-term CSOcontrol plans, and financial capability.

Permittees will be expected to complywith any existing CSO-relatedrequirements in NPDES permits,



Feds& Re&tet / Vol. 59. No. 75 / Tuesdav. April 19. 1994 / Notices 18889

msent d8cm8s or court ordem urdwaevised lo he consistent with this Policy

The POtiCy is ~r@IliWd 88 fOkJWs:

1. ntroduction

A. Purpom and RinciplsrB. Application of PolicyC Effect on Curmnt CSOControl EffortsD. Small SystemConsidsmtionrE. fmplamentatioa RasponsibilitiarP. Policy Devdopment

Ix. EPA objactive8 for PermittserA. OverviewB.gzzantation of the Nine Miiimum

C Long-T- CSCIConhol PlanI. ~hamctariution. Monitoring. and

Modeling of the Combined SawerSyrtem8

2. Public PutidPation3. Ccmridamtionof Sensitive Areas4. Evaluation of AlternativesS. Coat/Performanceinsidemtion6. Ommtiond Plan

7. h&&king Treatment at the ExistingPOTWTreatmentPlant

8. fmplsmentation schedule9. Post-ConstructionCompliance

Monitoring vIll. EE$,on Wltb StateWater Quality

A. OverviewB. WaterQuality Standarda Reviewa

IV. Erwartions for Permitting AutbotitiarA. &&viewB. NFDESPermit RsquirnmenuI. Phase Psrmits-Gquiramsnts for

Demonstrationof the Nine MinimumConwb and Developmentof the LongTerm CSO Control Plan

2. Phase I Permits-Requirements forImplementation of a Long-Term Cso

Control Plan3. PhasingConsiderationsV. Enforcement nd Compliance

A. OverviewB. Enforcement f CSODry Weather

Dixherge ProhibitionC. Enforcement f Wet WeatherCSO

Requirementa1. Enforcement for Compliance With Phase

1 Permits2. Enforcement or Compliance With Phasa

11PermitsD. Penalties

List of Subjects in 40 CFR Part 122

Water pollution control.

Authority: Clean Water Act. 33 L.S:C 17.51et seq.

Dated: April 8. 1994.Carol hi. Brownar.Adminbtiator.

A. purpose and Principles

The main purposes of this Policy tUeto elaborate on EPA’s NationalCombined Sewer Overflow (CSO)Control Strategy published onSeptember 8. 1989 at 54 i% 37370 (lQ89

Strategy] and to expedite compliancewith the requirements of the CleanWater Act &WA). whileimplementation of the 1989 Strategy hasresuhd in progmsa toward controllingCSOs, signi5cant water quality risksremain.

A combined s8wer system (CSS) is awast8water collecrion system owned bya Star8 or municipality (as defined bysection 502(r) of the CWA) whichconveys sanitary wastewaters (dome&c,commercial and industrial warrtewaters)and storm water thmugb a single-pipesystem to a Publicly Owned TmatmentWorks (YOTW) Treatment Plant (asdehwd in 40 CFft 403.3(p )). A Cso isthe discharga from a CSS at a point priorto the POTW Treatment Plant. CSOs ampoint sowws subject to NPDES permit

uimments including both

2hn ology-based and water quality&wd requirements of the CWA. CSOsare not subject to secondary tmatmentrequirements applicable to KITWs.

Coos consist of mixtures of domesticsewage. industrial and commercialwastewaters. and storm water runoff.CSCh often contain high levels ofsuspended solids, pathogenicmicroorganisms, toxic pollutants,Iloatables, nutrients. oxygen-demandingorganic compounds, oil and grease. andother pollutants. CSOs can causeexceedances of water quality standards(WQS). Such exceedances may poserisks to human health, threaten aquaticlife and its habitat, and impair the use

and enjoyment of the Nation’swaterways.

This Policy is intended to provideguidance to permittees with CsOs.National Poliutant DischargeElimination System (NPDES) permittingauthorities, State water qualitystandards authorities and enforcementauthoritiqs. The purpose of the Policy isto coordinate the planning, selection.design and implementation of CSOmanagement practices and controls tomeet the requirements of the CWA andto involve the publk fully during thedecision making process.

This Policy reiterates the objectives ofthe 1989 Strategy:1. To ensure that if CSOs occur. they are

only as a result of wet weather;2. To bring all wet weather CSO

discharge points into compliance with&e technology-based and waterquality-hsed requirements of theCWA; and

3. To minimize water quality, aquaticbiota, and human health impacts fromcsch.T&S CSO Control Policy represents a

comprehensive national strategy toenauro that municipalities, permitting

authorities, water quality standardsauthOriti8s and the public engage in acomprehensive and coordinated

Qlhg effort to achieve coat-eff@ztive

CSO controls that ultimat8ly meetqpqn-iate health and environmentalobjectiva and requirements. The Policyxwmgkm the sitaspeci5c nature of- and their impacts and providesthe necessary ilexibility to tailorcontrols to local situations. Four keyQIiIXiplaS of the Policy ensure that CSOcontrols am cost-effective and meet theobjectives of the CWA. The keyprinciples am:

1. Rovidhg clear levels of control thatwould b8 presumed to meetappropriate health and environmentalobjectives;

2. providing sufficient flexibility tomunicipalities, especially financially

disadvantaged communities. toconsider the site-specific nature ofCSOa and to determine the most cost-effective means of reducing pollutantsand meeting WA objectives and

uirements;3. Alt owing a phased approach to

implementation of CSO controlsconsidering a community’s financialcapability; and

4. Review and revision, as appropriate.of water quality standards and theirimplementation procedures whendeveloping CSO control plans toreflect the site-specific wet weatherimpacts of CSOs.This Policy is being issued in support

of EPA’s regulations and pobcyinitiatives. This Policy is Agencyguidance only and does not establish oraffect legal rights or obligations. It doesnot establish a binding norm and is notfinally determinative of the issuesaddressed. Agency decisions in anyparticular case will be made by applyingthe law and regulations on the basis ofSQ8&C facts when permits are issued.The Administration has recommendedthat the 1994 amendments to the CWAendorse this final Policy.

B. Application of policy

The permitting provisions of thisPolicy apply to all CSSs hat overflowas a result of storm water flow.including snow melt runoff (40 CFR122.26&1)(13)).Disch~ from CSSfduring d ry weather are prohibited hythe CWA. Accordingly. the permittingprovisions of this Policy do not apply toc!Z& during dry weather. Dry weatherflow is the flow in a combined sewerthat results from domestic sewage.groundwater infiltration. commercialand industrial wastewaters. and anyother non-precipitation related flows[e.g. , tidal infiltration). In addition to



18890 Fe&d Register I Vol. 59, No. 75 / Tuesday, April 19, 19% / Notices

l he pmmMing provisions, thenforcement and Compliance section of

nis Policy describes an enforcementinitiative being developed for overflowsthat occur durin dry weather.

4onsistent w1 the 1989 Strategy, 30

States that submitted CSO permittingstrategies have mceived EPA approvalor. in the case of one State, conditionalapproval of its strategy. States and EPARegional Offices should review thesestrategies and negotiate appropriaterevisions to them to implement thisPolicy. Permitting authorities amencouraged to evaluate water pOllUtiOncontrol needs on a watershedmanagement basis and coordinate CSOcontrol efforts with other point andnonpoint source control activities.

C. Effect on Current CSO Control Efforts

EPA recognizes that extensive work

has been done by many Regions, States,and municipalities to ahate CSOs. Assuch, portions of this Policy mayalready have been addressed bypermittees’ previous efforts to cofltrO1CSOs. Therefore, portions of this Policymay not apply, as determined by thepermitting authority on a case-by-casebasis, under the followingcircumstances:

1. Any perm ittee that, on the date ofublication of this final Policy, has

.ompleted or substantially completedconstruction of CSO control facilitiesthat are designed to meet WQS andprotect designated uses, and where it

has been determined that WQ S arebeing or will be attained, is not coveredby the initial planning and constructionprovisions in this Policy: however, theoperational plan and post-constructionmonitoring provisions continue toapply. If, after monitoring. it isdetermined that WQS a.m not beingattained, the permittee should berequired to submit a r+ed CSOcontrol plan that, once implemented,will attain WQS.

2. Anv permittee that, on the date ofpublicaiion of this final Policy, hassubstantially developed or is ’implementing a CSO control program

pursuant to an existing permit orenforcement order. and such prog.ra~~~sconsidered by the NPDES permittingauthority to be adequate to meet WQSand Protect designated uses and isreasonably equivalent to tie treatmentobjeaives of this Policy, shouldcompiete those facilities without tierplanning activities otherwise expectedby this Policy. Such programs, however,should he reviewed and modified to beonsistent with the sensitive area.

iinancial capability, and post-construction monitorihg provisions ofthis Policy.

3. hy perraittw that has previouslyconetmctd CSO control facilities in aneffort to comply with WQS hut hasfailed to meet such applicable standardsor to protect designated uses due toremaining CSOs may receive

consideration for such efforts in futumpermits or enforceable orders for long-term CSO control planning, design andim lementation.

I!! the cm0 of any ongoing orsubstantially completed CSO controleffort, the NPDES permit or otherenforceable mechanism, as appropriate,should be revised to include allappropriate permit requiremi3ntsconsistent with Section lV.B. of thisPolicy.

D. Small System Considerations

The scope of the long-term CSOcontrol plan, including the

characterization. monitoring andmodeling, and evaluation of alternativesportions of this Policy may he difficultfor some small CSSs. At the discretionof the NPDES Authority, jurisdictionswith populations under 75.000 may notneed to complete each of the formalsteps outlined in Section KC. of thisPolicy, but should be required throughtheir permits or other enforceablemechanisms to comply with the nineminimum controls (II.B], publicparticipation (II.C.Z), and sensitive areas(II.C.3) potions of this Policy. Inaddition, the permittee may propose toimplement any of the criteria contained

in this Policy for evaluation ofalternatives described in II.C.4.Following appmval of the proposedplan, such jurisdictions shouldconstruct the control projects andpropose a monitoring program sufficientto determine whether WQS am attainedand designated uses are protected.

In developing long-term CSO controlplans baJed on the small systemconsiderations discussed in thepreceding paragraph, permittees areencouraged to discuss the scope of theirlong-term CSO control plan with theWQS authority and the NPDESauthority. These discussions will ensure

that the plan includes sufficientinformation to enable the permittingauthority to identify the appropriateCSO contro!s.

E. Implementation Responsibilities

coordinating the review of the long-term

NPDES authorities (authorized Statesor EPA Regional Offices, as appropriate)are responsible for implementing thisPolicy. It is their responsibility to assurethat CSO permittees develop long-termGO control plans and that NPDESpermits meet the requirements of theCWA. Further, they are responsible for

CSO control plan and the developmentof the permit with the WQS authority todetermine if revisions to the WQS areappropriate. In addition, they shoulddetermine the appropriate vehicle {i.e.,permit reissuance, information request

under CWA section 308 or Stateequivalent or enforcement action) toensure that compbnce with the CWA isachieved as soon as practicable.

Permittees are responsible fordocumenting the implementation of thenine minimum controls and developingand implementing a long-term CSOcontrol plan, as described in this Policy.EPA recognizes that financialconsiderations are a major factoraffecting the implementation of CSOcontrols. For that reason, this Policyallows consideration of a permittee’sfinancial capability in connection withthe long-term CSO control planning

effort, WQS review, and negotiation ofenforceable schedules. However, eachpermittee is ultimately responsible foraggressively pursuing financialarrangements for the implementation ofits long-term CSO control plan. As partof this effort, communities should applyto their State Revolving Fund program.or other assistance programs asap

&mpriate, fo r financial assistance.

A and the States will undertakeaction to assure that all pennittees withCSSs are subject to a consistent reviewin the permit development process,have permit requirements that achievecompliance with the CWA. and are

subject to enforceable schedules thatrequire the earliest practicablecompliance date considering physicaland financial feasibility.

F. Policy Development

This Policy devotes a separate sectionto each step involved in developing andimplementing CSO controls. This is notto imply that each function occursseparately. Rather, the entire processsurrounding CSO controls, communityplanning, WQS and permitdevelopment/revision, enforcement/compliance actions and publicparticipation must be coordinated to

control CSOs effectively. Permittees andpermitting authorities are encouraged toconsider innovative and alternativeapproaches and technologies thatachieve the objectives of this Policy andths CWA.

-

In developing this Policy, EPA hasincluded information on whatresponsible parties am expected toaccomplish. Subsequent documents willprovide additional guidance on how theobjectives of this Policy should be met.These documents will provide further@dance on: CSO permit writing. thenine minimum controls, lona-term CSO



F&d Reg&ter I Vol. 59, No. 75 / Tuesday, Aprii 19, 1994 / Notices18891

control plans, financial ca@bty,sewer ryswm cl~aracterhtion andreceiving water monitoring andmodeling, and application of WQS toCSO-impacted waters. For most CXIcontrol efforts however, suffident dstalihas been included in this PoLicy tobeein immedfate implementation of itsprovisions.

Il. EPA Objectives for Permittees

A. Overview

Permittew with CSSs that have CSOsshould immediately undertalre a processto accurately characteri their sewersystems, to demonstrate implementationof the nine minimum controls. and todevelop a long-term CSO control plan.

B. Implementation of the NineMinimum Controls

Permittees with CSOs should submitappropriate documentationdemonstrating implementation of thenine minimum controls. including anyproposed schedules for completingminor construction activities. The nineminimum controls are:I. Proper operation and mgular

maintenance programs for the sewersystem and the CSUs;

2. Maximum use of the collectionsystem for storage;

3. Review and modification ofpretr8atment r8quirements to assureCSO impacts are minimized;

4. Maximization of flow to the POTW

for treatment;5. wTaI$frt.ion o f CSOs during dry

6. Controlof solid and floatablematerials in CSOs;

7. Pollution prevention:8. Public notification to ensum that the

public receives adequate notificationof CSO occurrences and C!Xl impact%and

9. Monitoring to effectively characteriCSO impacts and the efficacy of (233controb.Selection and implementation of

actual control measures should be bassdon site-sp&fic considerations includingthe specific CSS’SchataCtariStiCS

discussed under the sewer systemcharacterization and monitoringportions of this Policy. Documentationof the nine minimum controls mayinclude operation and maintenanceplans, revised sewer use ordinance8 forindustrial users, sBwer systemhqection reports, inEltmtion/inflowstudies. pollution pnrvention program s,public notification plans, and facilityplans for maximizing the capacities ofthe existing collection, storage andtreatment systems, as well as contractsand schedules for minor construction

progrmns for improving the existingntem’r

Tloperation. The permittee

s ould also submit any information ordata on the degree to which the nineminimum controls achieve mmpliancswith water quahty standard8 Thew dataand information should include resultsmade available through mon itoring andmodeling activities done in conjuncttonwith the development of the long-termCSO control plan desc ribed in thisPolicy.

7%~ documentation should besubmitt8d as soon as practicable, hut nolater than two years after therequirament to submft suchdocumentation is included in an WDESpermit or other enforceable mechanism.Implementation of the nine minimumcontrols with appropriatedocumentation should be completed as

soon as practicable but no later thanJanuary 1.1997. These dates should beincIuded in an appropriate enforceablemechanism.

Beaum the CWA requires immedtatecompliance with technology-basedCOntrOla section 301(b)), which on aBest Professional Judgment basis shouldinclude the nine minimum controls. acompliance schedule for implementingthe nine minimum controls. ifnecessary. shoufd be included in anappropriate enforceable mechanism.

C. Long-Term Cso Control Plan

Permittees with CSOs are responsiblefor developing and implementing long-

term CSC conk-01 pIans that willukimately result in compliance with therequirements of the CWA. The longterm plans should consider the sitaspecific nature of CSCs and evaluate thecost effectiveness of a range of controloptions/strategies. The development ofthe long-tern CSO control plan and itssubsequent implementation should alsobe coordinated with the NPDESauthority and the State authorityresponsible for reviewing and revisingthe State’s WQS. The sdected controlsshould be designed to allow costeffective expansion or cost effectivemtrofitting if additional controls aresubsequently determined to be

necessary to meet WQS. includingexisting and designated uses.

This policy identifies EPA’s majorobj8ctives for the long-term CSO controlplan. Permittees should develop andsubmit this long-term CSC control planas soon as practicable, but generallywithin two years after the date of theNPDES permit provision. Section 308information request, or enforcementaction r8quiring the permittee todevelop the plan. NPDES authoritiesmay establish a longer timetab le forcompletion of the long-term CSO

mn-1 ph on a w00-by-cars baas toaccoult fo r site-spsdflc faaorr $&j&may infbm0 the oompleldty 0f thePhmmWpmceu. Qnc8agnYed upon

these date8 should bs included fn an’appropriate enforceable m8&smsm.EPA expects each long-term cso

mntrul plan to utilize appropriateinformation to address the followingminimum elements. The Plan shouldalso include both fixed-date pro#ctimplementation schsdules (which mayhe phased) and a financing plan todesign and construct the pro)ect as soonas pmctk8b le. The minimum elementsof the long-term CSQ control plan aredescribed b8low.

1. Characterization. Monitoring, andhdding of the Combined SewerSystem

In order to design a CSO control planadequate to meet the requirements ofthe WA. e permittee should have athorough understanding of its sewersystem, the response of the system tovarious precipitation events, thecbaracterlstiw of the overflows. and thewater quality impacts that r8sult fromCSOs. The permittee should adequatelycharacterize though monitoring,modeling, and other means asappropriate, for a rsnge of storm events.the response of its sewer system to wetweather events including the number.location and frequency of CSCs,vohm8. conc8ntration and mass ofpollutants discharged and the impactsof the CSOs on the receiving waters andtheir designated uses. The permitteemay need to consider information onthe contribution and importance ofother pollution sources in order todevelop a final plan designed to meetweter quality standards. The p~upose ofthe system characterization, monitoringand modeling program initially is toassist the permtttee in developingappropriate measums to tm lement thenine minimum controls anB ifnecessary, to support development ofthe long-term CSO control plan. Themonitoring and modeling data also willbe used to evaluate the expected

efktiven8ss of both the nine minimumcontrols and, if nBc8ssary. the long-termCSO controls, to meet WQS.

The major elements of a sewer systemcharacterization am described below.

a. Rainfall Records-The permitteeshould eXiUlin8 the complete rainfallmrd for the geographic area of itselCi&lfJ C%i using sound statistidprocedures and beat available data. Thepetittee should evaluate flowvariations in the receiving water body tocorrelate between CSCs and receivingwater conditions.



18692 F&oral Regbter / Vol. 59, No. 75 I Tuesday, April 19, 1994 / Notices

b. Combined Sewer System-haracteriution-The permittee shoulddvaluate the nature and extent of itssewer system through evaluation ofavailable sewer system ~otd~, fieldinspections and other activities

necessary to understand the number,lourtion and kquency of overflows and

their location relative to sensitive areaaand to pollution sources in thecollection system, such as indirectsignificant industrial users.

c. CSO Monitoring-The permitteeshould develop a comprehensive,representative monitoring program thatmeasures the frequency. duration, flowrate, volume and pollutantconcentration of CSO discharges andassesses he impact of the CSOs on thereceiving waters. The monitoringprogram should include necessary CSOeffluent and ambient in-stream

monitoring and. where appropriate,other monitoring protocols such asbiological assessment, toxicity testingand sediment sampling. Monitoringparameters should include, for example,oxygen demanding pollutants, nutrients,toxic pollutants, sedimentcontaminants, pathogens,bacteriological indicators (e.g.,Enterococcus, E. Coli). and toxicity. Arepresentative sample of overflowooints can be selected that is sufficient.o allow characterization of CSOdischarges and their water qualityimpacts and to facilitate evaluation ofcontrol plan alternatives.

d. Modeling-Modeling of a sewersystem is recognized as a valuable toolfor predicting sewer system response tovarious wet weather events andassessing water quality impacts whenevaluating different control strategiesand alternatives. EPA supports theproper and effective use of models,where appropriate, in the evaluation ofthe nine minimum controls and thedevelopment of the long-term CSOcontrol plan. It is also recognized thatthere are many models which may beused to do this. These models rangefrom simple to complex. Havingdecided to use a model, the permittee

should base its choice of a model on thecharacteristics of its sewer system, thenumber and location of overtlow points,and the sensitivity of the receivingwater body to the CSO discharges. Useof models should include appropriatecalib&ion and verification with fieldmeasurements. The sophistication of themodel shouid relate to the complexity of

the system to be modeled and to theinformation needs associated withevaluation of CSO control options andwater quality impacts. EPA believes thatcontinuous simulation mode ls, usinghistorical rainfall data. may be the best

way to model sewer systems, CSOs. andtheir impacts. Because of the iterativenature of modeling sewer systems,CSOs. and their impacts, monitoringand modeling efforts are complementaryand should be coordinated.

2. Public ParticipationIn developing its long-term CSO

control plan, the permittee will employa public participation process thatactively involves the affected public inthe decision-making to select the long-term CSO controls. The affected publicincludes rate payers, industrial users ofthe wwer system. persons who residedownstream from the CSOs, personswho use and enjoy these downstreamwaters, and any other interestedpersons.

3. Consideration of Sensitive Areas

EPA expects a permittee’s long-termCSO control plan to give the highestpriority to controlling overflows tosensitive areas Sensitive areas, asdetermined by the NPDES authority incoordination with State and Federalagencies, as appropriate, includedesignated Outstanding NationalResource Waters, National MarinaSanctuaries, waters with threatened orendangered species and their habitat,waters with primary contact recreation.public drinking water intakes or theirdesignated protection areas, andshellfish beds. For such areas, the long-term CSO control plan should:

a. Prohibit new o r significantlyincreased overflows;

b. i. Eliminate or relocate overflowsthat discharge to sensitive areaswherever physically possible andeconomically achievable. except whereelimination or relocation would provideless environmental protection thanadditional treatment: or

ii. Where elimination or relocation isnot physically possible andeconomically achievable, or wouldprovide less environmental protectionthan additional treatment. provide thelevel of treatment for remainingoverflows deemed necessary to meetWQS for full protection of existing anddesignated uses. In any event, the levelof control should not be less than thosedescribed in Evaluation of Alternativesbelow: and

c. Where elimination or relocation hasbeen proven not to be physicallypossible and economically achievable.permitting authorities should require,for each subsequent permit term. areassessment based on new or improvedtechniques to eliminate or relocate. oron changed circumstances thatidluenca economic achievability.

4. Evaluation of Alternatives

EPA expects the long-term CSQcontrol plan to consider a reasonablerange of alternatives. The plan should,for example, evaluate controls thatwould be necessary to achieve zero

overflow events per year, an average ofone to three, four to seven, and eight totwelve overflow events per year.Alternatively. the long-term plan couldevaluate controls that achieve 100%capture, 40% capture. 85% capture,80% capture. and 75% capture fortreatment. The long-term control planshould alao consider expansion ofKITW secondary and primary capacityin the CSO abatement alternativeanalysis. The analysis of alternativesshould be sufficient to make areasonable assessment of cost andperformance aa described in SectionU.C.5. Because the final long-term CSOcontrol plan will become the basis forIUPDESpermit limits and requirements,the selected controls should besufficient to meet CWA requirements.

Ln addition to considering sensitiveareas, the long-term CSO control planshould adopt one of the followingapproaches:

a. “Presumption” Approach

A program that meets any of thecriteria listed below would be presumedto provide an adequate level of controlto meet the water quality-basedrequirements of the CWA. provided thepermitting authority determines that

such presumption is reasonable in lightof the data and analysis conducted inthe characterization, monitoring. andmodeling of the system and theconsideration of sensitive areasdescribed above. These criteria areprovided because data and modeling ofwet weather events often do not give aclear picture of the level of CSO controlsnecessary to protect WQS.

i. No more than an average of fouroverflow events per year, provided thatthe permitting authority may allow upto two additional overflow events peryear. For the purpose of this criterion.an overflow event is one or moreoverflows kom a CSS as the result of aprecipitation event that does not receivethe minimum treatment specifiedbelow; or

ii. The elimination or the capture fortreatment of no less than 85% byvolume of the combined sewagecollected in the CSS duringprecipitation events on a system-wideannual average basis; or

iii. The elimination or removal Of noless than the mass of the pollutants.identified as causing water qualityimpairment through the sewer system



Federal Iie@s!er ! Vol. 59 , No. 75 / Tuesday, April 19, 1994 ! Notices18693

brncterizetion, monitoring. anddeling effort. for the VoIumeS that

would be eliminated or captured fortreatment under paragraph ii. ahove.Combined Sewer flows remaining afterimplementation of the nine minimum

controls and within the criteriaspecified at fI.C.4.a.i or ii, shouldreceive a minimum of:

l Primary clarification (Removal offloatables and settieablw solids may bwachieved by any combination oftreatment technologies or methods thatare shown to be 8qnivnl8nt to primnryclarification.);

l Solids and ff oatables disposal; andl Disinfeclion of effluent, tf

necesaary, to m eet WQS, protectdesignated uses and protect humanhealth, including removal of harmfuldisinfection chemical residuals, wherenwcessaly.

b. “Demonstration” ApproachA pwrmittww may demonstrate that a

selected control program, though notmeeting the criteria spwcifkd in Il.C.4.a.above is adequate to meet the waterquality-based requirements of the CWA.To be a succwssfut demonstration, thepermittww should demonstrate each ofthe following:

i. The planned control pmgram isAdequate to mee t WQS and protectdesignated usws. unless WQS or usescannot be met as a result of naturalbackground conditions or polhrtionsources other than CSOs;

ii. The CSO discharges remaining

after implementation of the plannedcontrol program will not preclude theattainment of WQS or the receivingwaters’ designated uses or contribute totheir impairment. Where WQS anddesignated uses are not m et in partbwcnusw of natural backgroundconditions or pollution sources otherthan Coos. a total maximum daily load.including a wasteload allocation and aload allocation, or other means shouldbe used to apportion pollutant loads;

iii. The planned control program willprovide the msximum pollutionreduction benefits reasonably attainable;and

iv. The planned control program isdesigned to allow cost effeaiveexpansion or cost effective retrofitting ifndditional controls arw subsequentlydetermined to be necessary to meetWQS or designated uses.

5. Cost/?‘erfo rm~ce Considerations

The pwrmittww should developappropriate cost/performancw curves todemonstrate the relationships among acomprwhwnsivw set of reasonable controlalternatives that correspond to thedifferent ranges specified in Section

II.C.4. This should include an analysisto determine where the fncrement ofpollution reduction achieved in thereceiving water diminishes compared tothe imXwswd Costs. This analysis, oftenknown as knee of the curve, should be

among the considerations used to h81pguide selwction of controls.

6. Opwrritional Plan

After agreement between thepennittee and NPDES authority on thenecessary CSO controls to baimplemented under the long-term CSOcontrol plan, the permittww shouldrevise the operation and maintenanceprogram developed as part of the nineminimum controls to include theagreed-upon long-term CSO controls.The revised operation and maintenanceprogram should maximizw the removalof pollutants during and after each

I?recipitation event using all availableacilitiws within the collection and

treatment system. For any flows inexcess of the criteria specified atILC.4.a.i., ii. o r iii and not receiving thetreatment specified in II.C.4.a. theoperntior~~l plan should ensure thatsuch flows receive treatment to thegreatest extent practicable.

7. Maximizing Treatment at the ExistingPOTS Treatment Plant

In some communities, POTWtreatment plants may have primarytreatment capacity in excess of theirsecondary treatment capacity. Oneeffective stratwgy to abate pollution

resulting from CSOs is to mtiize thedelivery of flows during wet weather tothe PDlW treatment plant for treatment.Delivering thwsw flows can have twosignificant water quality benefits: First,incrwsed flows during wet weather tothe POTW treatment plant may enablethe pwrmjttww to eliminate or minimizeoverflows to sensitive areas; second. thiswould maximize the use of availablePOTW facilities for wet weather flowsand would ensure that combined sewerflows receive at least primary treatmentprior to discharge.

requirwd notices. [n addition, the

Under EPA regulations, theintentional diversion of waste streamsfrom any portion of a treatment facility,including secondary treatment, is abypass, EPA bypass regulations at 40CFR 122.41(m) allow for a facility tobypass some or all the Row from itstreatment process under specifiedlimited circumstancws. Under theregulation, the permittee must show thatthe bypass was unavoidable to preventloss of life. personal injury or severeproperty damage. that there was nofeasible alternative to the bypass andthat the permittee submitted the

regulation provides that a bypass may

be approved only after consideration ofadverse effwcts.

normally, it is the responsibility ofCh Wmittm to document, on a case-by-base basis, compliance with 40 CFR

122.41lm) in order to bypass flowslegally. For some CSO-related permits,the study of feasible alternatives b hecontrol plan may provide sufficientsupport fOr the permit record and forapproval of a CSO-related bypass in &e

permit itself. and to define the specific

Pammeters under which a bypass can

egally occur. For a pmval of a CSO-related bypass, the ong-term CSOcontrol plan, at a minimum, shouldprovide justification for the cut-off pointat which the flow will be diverted fromthe secondary treatment portion of thetreatment plant. and provide a benefit-cost analysis demonstrating that

conveyanceof

wet weather flow to thePOTW for primary treatment is morebeneficial than other CSO abatementalternatives such as storage and pumpback for secondary treatment, sewerswparation, or satellite treatment. Such a

permit must define under what specific l

wet wwatber conditions a CSO-relatedbypass is allowed and also specify whattreatment or what monitoring, andefff uent limitations and requirementsapply to the bypass flow. The permitshould also provide that approval forthe CSO-related bypass will be reviewedand may be modified or terminated ifthere is a substantial increase in thevolume or character of pollutants being

introduced to the POTW. The CSO-refated bypass provision in the permitshould also make it clear that all wetweather flows passing the headworks ofthe FOTW treatment plant will receiveat least primary chrification and solidsand floatables removal and disposal,and disinfection. where n-ssaq. andany other treatment that can reasonablybe rovidwd.

rpnder this approach, EPA wouldallow a permit to authorize a CSO-related bypass of the secondarytreatment potion of the POTWtrwatment plant for combined sewer

flows in certain identified-stances. This provision wouldapply only to those situations where thePCITW would ordinarily meet therequirements of 40 CR? 122.4 (ml as

evaluated on a case-by- basis.Thwrwfore, there must he sufkient datab be administrative record [reflected inthe permit fact shwet or statement ofbasis) supporting all the recpiements n40 CFR 12241(m)(4) for approval of ananticipated bypass.

property damage” could include

For the purposes of applying thisregulation to CSO permittees. “Severe



18694 Federal Regi&er / Vol. 59, No. 75 / Tuesday, April 19, 19% I Notices

situations where flows above a certainlevel wash Out the POTW’S WC0l.d~

mament system. EPA tier believesthat the feasible alternativesquirement of the regulation can be metif the record shows that the secondarytreatment system is properly operatedand maintained. that the system hasbeen designed to meet secondary limitsfor flows greater than the peak dryweather flow, plus an appropriatequantity of wet weather flow, and thatit is either technically or financiallyinfeasible to provide secondarytreatment at the existing facilities forgreater amounts of wet weather flow.

The feasible alternative analysis shouldinclude, for example, consideration of

enhanced primary treatment (e.g.,chemical addition) and non-biologicalsecondary treatment. Other basessupporting a finding of no feasible

alternative may also be available on acase-by-case basis. As part of itsconsideration of possible adverse effectsresulting from the bypass, thepermitting authority should also ensurethat the bypass will not causeexceedan& of WQS.

This Rolicv does not address theappropriate&s5 of approvinganticipated bypasses through NPDESpermits in advance outside the CSQsontext.

8. Implementation Schedule

The permittee should include allpertinent information in the long term

control plan necessary to develop theconstruction and financing schedule forimplementation of CSO controls.Schedules for implementation of theCSO controls may be phased based onthe relative importance of adverseimpacts upon WQS and designateduses, priority projects identified in thelong-term plan, and on a permittee’sfinancial capability.

Construction phasing shouldconsider:

a. Eliminating overflows thatdischarge to sensitive areas as thehi

%hUse impairment;est priority:

c. The permittee’s financial capabilityincluding consideration of such factonas:

i. Median household income;ii. Total annual wastewater and CSO

conuol costs per household as a percentof median household income;

iii. &era11 net debt as a Percent offull market property value;

iv. Property tax revenues as a percentof full market property value:

v. Property tax collection rate:vi. Unemplovment; andvii. Bond ratbg;d. Grant and loan availability:

e. Previous and current residential,commercial and industrial sewer userfees and rate structures: and

f. Other viable funding mechanismsand sources of financing.

9. Post-Ccnstruction Compliance

Monitoring ProgramThe selected CSO controls should

include a post-construction waterquality monitoring program adequate toverify compliance with water qualitystandards and protection of designateduses as well as to ascertain theeffectiveness of CSO controls. Thiswater quality compliance monitoringprogram should include a plan to beapproved by the NPDES authority thatdetails the monitoring protocols to befollowed, including the necessaryeffluent and ambient monitoring and,where appropriate, other monitoring

protocols such as biologicalassessments, whole effluent toxicitytesting, and sediment sampling.

III. Coordination With State WaterQuality Standards

A. Overview

WQS are State adopted, or Federallypromulgated rules which serve as thegoals for the water body and the legalbasis for the water quality-based NPDESpermit requirements under the CWA.WQS consist of uses which Statesdesignate for their water bodies, criteriato protect the uses, an anti-degradationpolicy to protect the water quality

improvements gained and other policiesaffecting the implementation of thestandards. A primary objective of thelong-term CSO control plan is to meetWQS. including the designated usesthrough reducing risks to human healthand the environment by eliminating,reiocating or controlling CSOs to theaffected waters.

State WQS authorities, NPDESauthorities, EPA regional offices,permittees. and the public should meetearly and frequently throughout thelong-term CSO control planningprocess. Development of the long-termplan should be coordinated with the

review and appropriate revision o f WQSand implementation procedures onCSO-impacted waters to ensure that thelong-term controls ~111be sufficient tomeet water quality standards. As part ofthese meetings, participants shouldagree on the data. information andanalyses needed to support Ihedevelopment of the long-term CSOcontrol plan and the review o fapplicable WQS, and implementationprocedures, if appropriate. Agreementsshould be reached on the monitoringprotocols and models that will be used

to evaluate the water quality impacts ofthe overflows, to analyze theattainability of the WQS and todetermine the water quality-basedrequirements for the permit. Manyopportunities exist for permittees andStates to share information as control

programs are developed and as WQS arereviewed. Such information shouldassist States in determining the need forrevisions to WQS and implementationprocedures to better reflect the site-specific wet weather impacts of CSOs.Coordinating the development of thelong-term CSO control plan and thereview of the WQS and implementationprocedures provides greater assursncethat the long-term control plan selectedand the limits and requirementsincluded in the NPDES permit will besufficient to meet WQS and to complyzzeti$Ans 301fb)(l)fC) and 402fa)(21

EPA encourages States and permitteesjointly to sponsor workshops for theaffected public in the development ofthe long-term CSO control plan andduring the development of appropriaterevisions to WQS for CSO-impactedwaters. Workshops provide a forum forincluding the public in discussions ofthe implications of the proposed long-term CSO control plan on the waterquality and uses for the receiving water.

B. Water Quality Standards Reviews

The CWA requires States toperiodically. but at least once everythree years, hold public hearings for the

purpose of reviewing applicable waterquality standards and, as appropriate,modifying and adopting standards.States must provide the public anopportunity to comment on anyproposed revision to water qualitystandards and all revisions must besubmitted to EPA for review andap roval.

EP A regulations and guidance provideStates with the flexibility to adapt theirWQS, and implementation proceduresto reflect site-specific conditionsincluding those related to CSOs. Forexample, a State may adopt site-specificcriteria for a particular pol)uta.nt if the

State determines that the site-specificcriteria fully protects the designated use(40 CFR 131.11). In addition, theregulations at 40 CFR 131.10(g), fh), and[j) specify when and how a designateduse may be mod&d. A State mayremove a designated use from its waterquality standards only if the designateduse is not an existing use. An existinguse is a use actually attained in thewater body on or after November 28.1975. Furthermore, a State may notremove a designated use that will beattained by implementing the



Federal Register / Vol. 59 . No. 75 f Tuesday, April 19, 19% I Notices 18895

Mchnology-based effluent Jimitsquid under sections 301(b) and 306

,f the CWA and by im lementing coet-effective and masonabP bestmanagement practices for nonpointsaurc8 controls. Thus, if a State has a

reasonable basis to determine that thecurrent designated use could be attainedafter implementation of the technologybased controls of the CWA. then the usecould not be removed.

In determining whether a use isattainable and prior to removing adesignated use, States must conduct andsubmit to EPA a use attainabilityanalysis. A use attainability analysis isa structured scientific assessment of thefactors affecting the use, including thephysical, chemical, biological, andeconomic factors described in 40 CFR131.10(g). As part of the analysis, Statesshould evaluate whether the designated

use could be attained if CSO controlswere implemented. For example, Statesshould examine if sediment loadingsfrom CSOs could be reduced so as notto bury spawning beds, or ifbiochemical oxygen demanding materialin the effluent or the toxicity of theeffluent could be corrected so as toreduce the acute or chronic

hysiological stress on orE.oaccumulation potential of aquatic

anisms.TIleviewing the attainabilitv of their

WQS and the ipplicability of iheirimplementation procedures to CSO-impacted waters, States are encouraged

to define more explicitly theirrecreational and aquatic life uses andthen, if appropriate, modify the criteriaaccordingly to protect the designateduses.

Another option is for States to adoptpartial uses by defining when primarycontact recreation such as swimmingdoes not exist, such as during certainseasons of the year in northern climatesor during a particular trpe of stormevent. III making such adjustments totheir uses, States must ensure thatdownstream uses are protected, and thatduring other seasons or after the stormevent has passed, the use is fully

protected.In addition to defining recreationaluses with greater specificity, States arealso encouraged to define the aquaticw3s more precisely. Rather than“aquatic life use protection.” Statesshould consider defining the type oflisherv to be protected such as a coldwater fishery (e.g., trout or salmon) or awarm weather fishery (e.g., bluegill orlarge mouth bass). Explicitly defininghe type of fishery to be protected mayassist the permittee in enlisting thesupport of citizens for a CSO controlplan.

A water quality standard variancemay be appropriate, in limitedcircumstances on C!304mpacted waters,where the State is uncertain as towhether a standard can be attained andtime is needed for the State to conduct

additional analyses on the attainabilityof the standard. Variances are short-termmodifications in water qualitystandards. Subject to EPA approval,States, with their own statutoryauthority, may grant a variance to aspecific discharger for a specificpollutant. The justification for avariance is similar to that required fora permanent change in the standard,although the showings needed are lessrigorous. Variances are also subject topublic participation requirements of thewater quality standards and permitsprograms and are reviewable generallyevery three years. A variance allows the

CSO permit to be written to meet the“modified” water quality standard asanalyses are conducted and as progressis made to improve water quality.

Justifications for variances are thesame as those identified in 40 CFR131.10(s) for modifications in uses.States must provide an opportunity forpublic review and comment on allvariances. If States use the permit as thevehicle to grant the variance, notice ofthe permit must clearly state that thevariance modifies the State’s waterquality standards. If the variance isapproved, the State appends thevariance to the State’s standards and

reviews the variance every three years.IV. Expectations for PermittingAuthorities

A. Overview

CSOs are point sources subject toNPDES permit requirements includingboth technology-based and waterquality-based requirements of the CWA.CSOs am not sub ject to secondarytreatment regulations applicable topublicly owned treatment works(Montgomery Environmentaf Coalitionvs. Code, 646 F.Zd 568 [DC. Cir.l=m.

All permits for CSOs should requirethe nine minimum controls as aminimum best available technologyeconomically achievable and bestconventional technology (BATIBCTIestablished on a best professionaljudgment (BPJ) basis by the permittingauthority (40 CFR 125.3). Water qualily-based requirements are to be establishedzo;sapplicable water quality

This poky establishes a uniform.nationally consistent approach todeveloping and issuing NPDES permits--- - _to permittees with CSCk. Permits !or

CSOs should be developed and issuedexpeditiously. A single, system-widePermit generally should be issued for all~xharges, bduding CSOS, rom a CSSopented by a single authority. #endifferent parts of a single CSS are

opented by mom than one authority,permits issued to each authority shouldgenemlly require joint preparation andimplementation of the elements of thisPolicy and should specifically definethe responsibilities and duties of eachauthority. Permittees should be requiredto coordinate system-wideimplementation of the nine minimumcontrols and the development andimplementation of the long-term CSOcontrol plan

The individual authorities areresponsible for their own discharges andshould cooperate with the permittee for

the POTW receiving the flows from theCSS. When a CSO is permittedseparately from the POTW, both permitsshould be cross-referenced forinformational purposes.

EPA Regions and States shouldreview the CSO permitting prioritiesestablished in the State CSO PermittingStrategies developed in response to the1989 Strategy. Regions and States mayelect to revise these previous priorities.In setting permitting priorities, Regionsand States should not just focus onthose permittees that have initiatedmonitoring programs. When setting

priorities, Regions and States shouldconsider, for example, the known orpotential impact of CSOs on sensitiveareas. and the extent of upstreamindustrtal user discharges to the CSS.

During the permit&s developmentof the long-term CSO controJ plan. thepermit writer should promotecoordination between the permittee andState WQS authority in connection withpossible WQS revisions. Once thepermittee has completed developmentof the long-term CSO control plan andhas coordinated with the permittingauthority the selection o f the controls

necessary to meet the requirements ofthe CWA, the permitting authorityshould include in an appropriateenforceable mechanism. requirementsfor implementation of the long-termCSO control plan, including conditionsfor water quality monitoring andoperation and maintenance.

B. NPDES Permit Requirements

Following are the major elements ofNPDES permits to implement thisPolicyand ens-. protection of waterquality.



18896 FedaA R&&or / Vol. 59. No. 75 / Tuesday, April 19, 1994 / Notices

1. phase I Permits-Requirements for~monstrstion of Implementation of theNine h-finimum Controls andDevelo

fment of the Long-Term CSQ

Contm Ph

In the Phase I permit issued/modified

to reflect this Policy, the NPDESauthority should at least requirepermittees to:

a. Immediately implement BAT/BCT,which at a minimum Includes the nineminimum controls, as determined on aBPJ basis by the

b. Develop an !ermitting authority;submit a report

documenting the implementation of thenine minumim controls within two

years of permit issuance/modification:c. Comply with applicable WQS. no

later than the date allowed under theState’s WQS, expressed in the form of anarrative limitation: and

d. develop and submit, consistent

with this Policy and based on aschedule in an appropriate enforceablemechanism, a long-term CSO controlplan as saon as practicable, butgenerally within two years after theeffective date of the permit issuance/modification. However, permittingauthorities may establish a longertimetable for completion of the long-term CSO control plan on a caseby-casebasis to account for site-specific factorsthat may influence the complexity of theplanning process.

The NPDES authority should includecompliance dates on the fastestpracticable schedule for each of the nine

minimum controls in an appropriateenforceable mechanism issued inconjunction with the Phase 1 permit.The use of enforceable orders isnecessary unless Congress amends theCWA. All orders should requirecompliance with the nine minimumcontrols no later than January 1, 1997.

2. Phase II Permits-Requirements forImplementation of a Long-Term CSQControl Plan

Once the permittee has completeddevelopment of the long-term CSCcontrol plan and the selection of thecontrols necessary to meet CWA

requirements has been coordinated withthe permitting and WQS authorities, thepermitting authority should include, inan appropriate enforceable mechanism,requirements for implementation of the

Long-term CSO control plan as soon aspracticable. Where the permittee ha8

sekcted controls based on the“presumption” approach described inSection B.C.4, the permitting authoritymust have determined that thepresumption that such level of

treatment will achieve water qualitystandards is reasonable in light of the

data and analysis conducted under thisPolicy. The Phase II permit shouldcontain:

a. Requirements to implement thetechnology-based controls including thenine minimum controls determined ona BPJ basis;

b. Narrative uirements whichinsure that the “t e ected CSQ controls areimplemented, operated and maintainedas described in the 1ong:term CSQcontrol plan:

c. Wate r quality-based effluent limitsunder 40 CFR 122.44(d)(l) and122.44(k). requiring, at a minimum,compliance with, no later than the dateallowed under the State’s WQS. thenumeric performance standards for theselected CSO controls, based on averagedesign conditions specifying at least oneof the following:

i. A maximum number o f overflowevents per year for specified designconditions consistent with II.C.4.a.i; or

ii. A minimum percentage capture ofcombined sewage by volume fortreatment under specified designconditions consistent with II.C.4.a.ii; or

iii. A minimum removal of the massof pollutants discharged for specifieddesign conditf ons consistent withII.C.Q.a.iii; or

iv. performance standards andrequirements that are consistent withII.C.4.b. of the Policy.

d. A requirement to implement, withan established schedule, the approvedpost-construction water qualityassessment program including

requirements ta monitor and collectsufficient information to demonstratecompliance with WQS and protection ofdesignated uses as well as to determinethe effectiveness of CSO controls.

e. A requirement to reassess overflowsto sensitive areas in those cases whereelimination or relocation of theoverflows is not physically possible andeconomicallv achievable. The .reassessment should IX based onconsideration of new or improvedtechniques to eliminate or relocateoverflows or changed circumstarice,~that influence economic achievability;

f. Conditions establishing

requirements for maximizing thetreatment of wet weather flows at thePOTW treatment plant, as appropriate,consistent with Section II.C.7. of thisPolicy;

g. A reopener clause authorizing theNPDES authority to reopen and modifythe permit upon determination that theCSO controls fail to meet WQS orprotect designated uses. Upon such

determination, the NPDES authorilyshould promptly notify the permitteeand proceed to modify 0; reissue thepermit. The permittee should be

required to develop, submit andImplement. as soon as practicable, arevised CSCIcontrol plan whichcontains additional controls to meetWQS and designated uses. If the hitid(30 control plan was approved under

the demonstration provision of SectionU.C.4.b.. the revised plan, at aminimum, should rovide for controlsthat satisfy one of tge criteria in SectionII.C.4.a. unless the permitteedemonstrates that the revised plan isclearly adequate to meet WQS at a lowercost and it is shown that the additionalcontrols resulting Born the criteria inSection II.C.4.8. will not result in agreater overall improvement in waterquality.

Unless the permittee can comply withall o f the requirements of the Phase IIpermit, the NPDES authority shouldinclude, in an enforceable mechanism,

compliance dates on the fastestpracticable schedule for those activitiesdirectly related to meeting therequirements of the CWA. For majorpermittees. the compliance scheduleshould be placed in a judicial order.Proper compliance with the schedulefor implementing the controlsrecommended in the long-term CSOcontrol plan constitutes compliancewith the elements of this Policyconcerning planning andimplementation of a long term CSOremedy.

3. Phasing Considerations

Implementation of CSO controls maybe phased based on the relativeimportance of and adverse impactsupon WQS and designated uses, as wellas the permittee’s financial capabilityand its previous efforts to control CSOs.The NPDES authority should evaluatethe proposed implementation scheduleand construction phasing discussed inSection II.C.8. of this Policy. The permitshould require compliance with thecontrols proposed in the long-term CSOcontrol plan no later than the applicabledeadline(s) under the CWA or State law.If compliance with the Phase II permitis not possible, an enforceable schedule,consistent with the Enforcement and

Compliance Section of this Policy,should be issued in conjunction withIhe Phase II permit which specifies theschedule and milestones forimplementation of the long-term CSOcontrol plan.

V. Enforcement and Compliance

A. Overview

It is important that permittees actimmediately to take the necessary stepsto comply with the CWA. The CSOenforcement effort will commence with



Feded Register / Vol. 59 , NO. 75 i Tuesday, April 19, 1994 ! Notices 16697

z11nitiative to address CSOs hat

hchaqe during dry weather, followedoy an enforcement effort in conjunction

with permitting CSOa discussed earlierin this Policy. success of theenforcement effort will depend in large

part upon expeditious action by NPDESauthorities in issuing enforceablepermits that include requirements bothfor the nine minimum controls and forcompliance with all other requirementsof the CWA. Priority for enforcementactions should be set based onenvironmental impacts or sensitiveareas affected by CSOs.

As a fu&er inducement forpermittees to cooperate with thisprocess, EPA is prepared to exercise itsenforcement discretion in determining

whether or not to seek civil penalties forpast CSO violations if permittees meetthe objectives and schedules of this~eLc~yend do not have CSOs during dry

8. Enforcement of CSO Dry WeatherDischarge Prohibition

EPA intends to commenceimmediately an enforcement initiativeagainst CSO permittees which haveCWA violations due to CSOs during dryweather. Discharges during dry weather\ave always been prohibited by theGDES program. Such discharges cancreate serious public health and waterquality problems. EPA will use its CWASection 308 monitoring, reporting. and

inspection authorities, together withNPDES State authorities, to locate theseviolations, and to determine theircauses. Appropriate remedies and

penalties will be sought for CSOs duringdry weather. EPA will provide NPDESauthorities more specific guidance onthis enforcement initiative separately.

C. Enforcement of Wet Weather CSORequirements

Under the CWA. EPA can use severalenforcement options to addresspermittees with CSOs. Those OptiOnS

directly applicable to this Poticy aresection 308 Information Requests.

section 309(a) Administrative order%section 309(g) Administrative PenaltyOrders. section 309 (b) and (d) CivilJudicial Actions, and section 504Emergency Powers. NPDES Statesshould use comparable means.

NPDES authorities should setpriorities for enforcement based onenvimnmental impacts or sensitiveareas affected by CSOs. Permittees thathave voluntarily initiated monitoringand are progressing expeditiouslytoward appropriate CSO controls shouldbe given due consideration for theirefforts.

1. Enfonxrment for Compliance With

Phase I Permits

Enforcement for compliance withPhase I permits will focus onrequirements to implement at least thenine minimum controls, and develop

the long-term Cso control plan leadingto compliance with the requirements ofthe CWA. where immediate compliancewith the Phase I permit is infeasible, theNPDFS authority should issue anenforceable schedule. in concert withthe Phase I permit, requiringcompliance with the CWA and

imposing compliance schedules withdates for each of the nine minimumcontrols as soon as practicable. Allenforcement authorities should requirecompliance with the nine minimumcontrols no later than January 1, 1997.Where the NPDES authority is issuing

an order with a compliance schedule forthe nine minimum controls, this ordershould also include a schedule fordevelopment of the long-term CSOcontrol plan.

If a CSO permittee fails to meet thefinal compliance date of the schedule,the NPDES authority should initiateappropriate judicial action.

2. Enforcement for Compliance WithPhase iI Permits

The main focus for enforcingcompliance with Phase II permits willbe to incorporate the long-term CSOcontrol plan through a civil judicial

action, an administrative order, or otherenforceable mechanism requiringcompliance with the CWA andimposing a compiiance schedule withappropriate milestone dates necessary toimplement the plan.

In general. a judicial order is theappropriate mechanism forincorporating the above provisions forPhase II. Administrative orders,however, may be appropriate forpermittees whose long-term controlplans will take !ess thsn five yean tocomplete, and for minors that havecomplied with the final date of theenforceable order for compliance with

their Phase I permit. If necessary, any ofthe nine minimum controls that havenot been implemented by this timeshould be included in the terms of thejudicial order.

D. Penalties

EPA is prepared not to seek civilpnnlties for past CSO violations, ifpermittees have no discharges duringdry weather and meet the objectives andschedules of this Policy.Notwithstanding this, where a permitteehas other signtficant CWA violations forwhich EPA or the State is taking judicial

action,part of %

nalties may be considered asat sction for the following:

1. CsoI during dry weather;2. Violations of CSGrelated

requirements in NPDES permits;consent decrees or court orders which

predate this policy; or3. Other CWA violations.EPA will not seek penalties for pati

CSO violations from permittees thatfully comply with the Phase I permit orenforceable order requiring compliancewith the Phase 1 permit. For permitteesthat fail to comply, EPA will exercise its

enforcement discretion in determiningwhether to seek penalties for the timeperiod for which the complianceschedule was violated. If the milestonedates of the enforceable schedule are notachieved and penalties are sought,penalties should he calculated from thelast milestone date that was met.

At the time of the judicial settlementimposing a compliance scheduleimplementing the Phase II permitrequirements, EPA will not seekpenalties for past CSO violations frompermittees that fully comply with theenforceable order requiring compliancewith the Phase I permit and if the termsof the judicial order are expeditiouslyagreed to on consent. However,stipulated penalties for violation of thejudicial order generally should beincluded in the order, consistent withexisting Agency policies. Additionalguidance on stipulated penalties

concerning long-term CSO controls andattainment of WQS will be issued.

Paperwork Reduction Act

The information collectionrequirements in this policy have beenapproved by the Office of Managementand Budget (OMB) under the PaperworkReduction Act, 44 U.S.C. 3501 et seqand have been assigned OMB controlnumber 20404170.

This collection of information has anestimated reporting burden averagings 78 hours per response and anestimated annual recordkeeping burdenaveraging 25 hours per recordkeeper.

These estimates include time forreviewin instructions, searchingexisting Jata sourcas. gathering andmaintaining the data needed. andcompleting and reviewing the collectionof informstion.

Send comments mgarding the burdenestimate or any other aspect of this

collection of information. includingsuggestions for reducing this burden toChief, Information Policy Branch; EPA:401 M Street SW. (Mail Code 2136);Washington, DC 20460; and to theOffice of Information and Regu1at-yAffairs. Offka of Management &nd



Fedaml Register / Vol. 59, No. 75 1 Tuesday, April 19. 19M / Notices

Budget. Washington. DC 20503, marked-Attention: hdc Of&x for PA.”

[FR Dot. 94-9295 Filed 4-16’34; 8:45 am]

anuwaco#-

1994 EPA CSO Policy

Documents

Transcript of 1994 EPA CSO Policy