Combined Sewer Overflow (CSO) Control Policy; Notice ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: EPA has issued a national policy statement entitled ``Combined

Sewer Overflow (CSO) Control Policy.'' This policy establishes a

consistent national approach for controlling discharges from CSOs to

the Nation's waters through the National Pollutant Discharge

Elimination System (NPDES) permit program.

FOR FURTHER INFORMATION CONTACT: Jeffrey Lape, Office of Wastewater

Enforcement and Compliance, MC-4201, U.S. Environmental Protection

Agency, 401 M Street SW., Washington, DC 20460, (202) 260-7361.

SUPPLEMENTARY INFORMATION: The main purposes of the CSO Control Policy

are to elaborate on the Environmental Protection Agency's (EPA's)

National CSO Control Strategy published on September 8, 1989, at 54 FR

37370, and to expedite compliance with the requirements of the Clean

Water Act (CWA). While implementation of the 1989 Strategy has resulted

in progress toward controlling CSOs, significant public health and

water quality risks remain.

This Policy provides guidance to permittees with CSOs, NPDES

authorities and State water quality standards authorities on

coordinating the planning, selection, and implementation of CSO

controls that meet the requirements of the CWA and allow for public

involvement during the decision-making process.

Contained in the Policy are provisions for developing appropriate,

site-specific NPDES permit requirements for all combined sewer systems

(CSS) that overflow as a result of wet weather events. For example, the

Policy lays out two alternative approaches--the ``demonstration'' and

the ``presumption'' approaches--that provide communities with targets

for CSO controls that achieve compliance with the Act, particularly

protection of water quality and designated uses. The Policy also

includes enforcement initiatives to require the immediate elimination

of overflows that occur during dry weather and to ensure that the

remaining CWA requirements are complied with as soon as practicable.

The permitting provisions of the Policy were developed as a result

of extensive input received from key stakeholders during a negotiated

policy dialogue. The CSO stakeholders included representatives from

States, environmental groups, municipal organizations and others. The

negotiated dialogue was conducted during the Summer of 1992 by the

Office of Water and the Office of Water's Management Advisory Group.

The enforcement initiatives, including one which is underway to address

CSOs during dry weather, were developed by EPA's Office of Water and

Office of Enforcement.

EPA issued a Notice of Availability on the draft CSO Control Policy

on January 19, 1993, (58 FR 4994) and requested comments on the draft

Policy by March 22, 1993. Approximately forty-one sets of written

comments were submitted by a variety of interest groups including

cities and municipal groups, environmental groups, States, professional

organizations and others. All comments were considered as EPA prepared

the Final Policy. The public comments were largely supportive of the

draft Policy. EPA received broad endorsement of and support for the key

principles and provisions from most commenters. Thus, this final Policy

does not include significant changes to the major provisions of the

draft Policy, but rather, it includes clarification and better

explanation of the elements of the Policy to address several of the

questions that were raised in the comments. Persons wishing to obtain

copies of the public comments or EPA's summary analysis of the comments

may write or call the EPA contact person.

The CSO Policy represents a comprehensive national strategy to

ensure that municipalities, permitting authorities, water quality

standards authorities and the public engage in a comprehensive and

coordinated planning effort to achieve cost effective CSO controls that

ultimately meet appropriate health and environmental objectives. The

Policy recognizes the site-specific nature of CSOs and their impacts

and provides the necessary flexibility to tailor controls to local

situations. Major elements of the Policy ensure that CSO controls are

cost effective and meet the objectives and requirements of the CWA.

The major provisions of the Policy are as follows.

CSO permittees should immediately undertake a process to accurately

characterize their CSS and CSO discharges, demonstrate implementation

of minimum technology-based controls identified in the Policy, and

develop long-term CSO control plans which evaluate alternatives for

attaining compliance with the CWA, including compliance with water

quality standards and protection of designated uses. Once the long-term

CSO control plans are completed, permittees will be responsible to

implement the plans' recommendations as soon as practicable.

State water quality standards authorities will be involved in the

long-term CSO control planning effort as well. The water quality

standards authorities will help ensure that development of the CSO

permittees' long-term CSO control plans are coordinated with the review

and possible revision of water quality standards on CSO-impacted

waters.

NPDES authorities will issue/reissue or modify permits, as

appropriate, to require compliance with the technology-based and water

quality-based requirements of the CWA. After completion of the long-

term CSO control plan, NPDES permits will be reissued or modified to

incorporate the additional requirements specified in the Policy, such

as performance standards for the selected controls based on average

design conditions, a post-construction water quality assessment

program, monitoring for compliance with water quality standards, and a

reopener clause authorizing the NPDES authority to reopen and modify

the permit if it is determined that the CSO controls fail to meet water

quality standards or protect designated uses. NPDES authorities should

commence enforcement actions against permittees that have CWA

violations due to CSO discharges during dry weather. In addition, NPDES

authorities should ensure the implementation of the minimum technology-

based controls and incorporate a schedule into an appropriate

enforceable mechanism, with appropriate milestone dates, to implement

the required long-term CSO control plan. Schedules for implementation

of the long-term CSO control plan may be phased based on the relative

importance of adverse impacts upon water quality standards and

designated uses, and on a permittee's financial capability.

EPA is developing extensive guidance to support the Policy and will

announce the availability of the guidances and other outreach efforts

through various means, as they become available. For example, EPA is

preparing guidance on the nine minimum controls, characterization and

monitoring of CSOs, development of long-term CSO control plans, and

financial capability.

Permittees will be expected to comply with any existing CSO-related

requirements in NPDES permits, consent decrees or court orders unless

revised to be consistent with this Policy.

The policy is organized as follows:

I. Introduction

A. Purpose and Principles

B. Application of Policy

C. Effect on Current CSO Control Efforts

D. Small System Considerations

E. Implementation Responsibilities

F. Policy Development

II. EPA Objectives for Permittees

A. Overview

B. Implementation of the Nine Minimum Controls

C. Long-Term CSO Control Plan

1. Characterization, Monitoring, and Modeling of the Combined

Sewer Systems

2. Public Participation

3. Consideration of Sensitive Areas

4. Evaluation of Alternatives

5. Cost/Performance Consideration

6. Operational Plan

7. Maximizing Treatment at the Existing POTW Treatment Plant

8. Implementation Schedule

9. Post-Construction Compliance Monitoring Program

III. Coordination With State Water Quality Standards

A. Overview

B. Water Quality Standards Reviews

IV. Expectations for Permitting Authorities

A. Overview

B. NPDES Permit Requirements

1. Phase I Permits--Requirements for Demonstration of the Nine

Minimum Controls and Development of the Long-Term CSO Control Plan

2. Phase II Permits--Requirements for Implementation of a Long-

Term CSO Control Plan

3. Phasing Considerations

V. Enforcement and Compliance

A. Overview

B. Enforcement of CSO Dry Weather Discharge Prohibition

C. Enforcement of Wet Weather CSO Requirements

1. Enforcement for Compliance With Phase I Permits

2. Enforcement for Compliance With Phase II Permits

D. Penalties

List of Subjects in 40 CFR Part 122

Water pollution control.

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

Dated: April 8, 1994.

Carol M. Browner,

Administrator.

Combined Sewer Overflow (CSO) Control Policy

I. Introduction

A. Purpose and Principles

The main purposes of this Policy are to elaborate on EPA's National

Combined Sewer Overflow (CSO) Control Strategy published on September

8, 1989 at 54 FR 37370 (1989 Strategy) and to expedite compliance with

the requirements of the Clean Water Act (CWA). While implementation of

the 1989 Strategy has resulted in progress toward controlling CSOs,

significant water quality risks remain.

A combined sewer system (CSS) is a wastewater collection system

owned by a State or municipality (as defined by section 502(4) of the

CWA) which conveys sanitary wastewaters (domestic, commercial and

industrial wastewaters) and storm water through a single-pipe system to

a Publicly Owned Treatment Works (POTW) Treatment Plant (as defined in

40 CFR 403.3(p)). A CSO is the discharge from a CSS at a point prior to

the POTW Treatment Plant. CSOs are point sources subject to NPDES

permit requirements including both technology-based and water quality-

based requirements of the CWA. CSOs are not subject to secondary

treatment requirements applicable to POTWs.

CSOs consist of mixtures of domestic sewage, industrial and

commercial wastewaters, and storm water runoff. CSOs often contain high

levels of suspended solids, pathogenic microorganisms, toxic

pollutants, floatables, nutrients, oxygen-demanding organic compounds,

oil and grease, and other pollutants. CSOs can cause exceedances of

water quality standards (WQS). Such exceedances may pose risks to human

health, threaten aquatic life and its habitat, and impair the use and

enjoyment of the Nation's waterways.

This Policy is intended to provide guidance to permittees with

CSOs, National Pollutant Discharge Elimination System (NPDES)

permitting authorities, State water quality standards authorities and

enforcement authorities. The purpose of the Policy is to coordinate the

planning, selection, design and implementation of CSO management

practices and controls to meet the requirements of the CWA and to

involve the public fully during the decision making process.

This Policy reiterates the objectives of the 1989 Strategy:

1. To ensure that if CSOs occur, they are only as a result of wet

weather;

2. To bring all wet weather CSO discharge points into compliance with

the technology-based and water quality-based requirements of the CWA;

and

3. To minimize water quality, aquatic biota, and human health impacts

from CSOs.

This CSO Control Policy represents a comprehensive national

strategy to ensure that municipalities, permitting authorities, water

quality standards authorities and the public engage in a comprehensive

and coordinated planning effort to achieve cost-effective CSO controls

that ultimately meet appropriate health and environmental objectives

and requirements. The Policy recognizes the site-specific nature of

CSOs and their impacts and provides the necessary flexibility to tailor

controls to local situations. Four key principles of the Policy ensure

that CSO controls are cost-effective and meet the objectives of the

CWA. The key principles are:

1. Providing clear levels of control that would be presumed to meet

appropriate health and environmental objectives;

2. Providing sufficient flexibility to municipalities, especially

financially disadvantaged communities, to consider the site-specific

nature of CSOs and to determine the most cost-effective means of

reducing pollutants and meeting CWA objectives and requirements;

3. Allowing a phased approach to implementation of CSO controls

considering a community's financial capability; and

4. Review and revision, as appropriate, of water quality standards and

their implementation procedures when developing CSO control plans to

reflect the site-specific wet weather impacts of CSOs.

This Policy is being issued in support of EPA's regulations and

policy initiatives. This Policy is Agency guidance only and does not

establish or affect legal rights or obligations. It does not establish

a binding norm and is not finally determinative of the issues

addressed. Agency decisions in any particular case will be made by

applying the law and regulations on the basis of specific facts when

permits are issued. The Administration has recommended that the 1994

amendments to the CWA endorse this final Policy.

B. Application of Policy

The permitting provisions of this Policy apply to all CSSs that

overflow as a result of storm water flow, including snow melt runoff

(40 CFR 122.26(b)(13)). Discharges from CSSs during dry weather are

prohibited by the CWA. Accordingly, the permitting provisions of this

Policy do not apply to CSOs during dry weather. Dry weather flow is the

flow in a combined sewer that results from domestic sewage, groundwater

infiltration, commercial and industrial wastewaters, and any other non-

precipitation related flows (e.g., tidal infiltration). In addition to

the permitting provisions, the Enforcement and Compliance section of

this Policy describes an enforcement initiative being developed for

overflows that occur during dry weather.

Consistent with the 1989 Strategy, 30 States that submitted CSO

permitting strategies have received EPA approval or, in the case of one

State, conditional approval of its strategy. States and EPA Regional

Offices should review these strategies and negotiate appropriate

revisions to them to implement this Policy. Permitting authorities are

encouraged to evaluate water pollution control needs on a watershed

management basis and coordinate CSO control efforts with other point

and nonpoint source control activities.

C. Effect on Current CSO Control Efforts

EPA recognizes that extensive work has been done by many Regions,

States, and municipalities to abate CSOs. As such, portions of this

Policy may already have been addressed by permittees' previous efforts

to control CSOs. Therefore, portions of this Policy may not apply, as

determined by the permitting authority on a case-by-case basis, under

the following circumstances:

1. Any permittee that, on the date of publication of this final

Policy, has completed or substantially completed construction of CSO

control facilities that are designed to meet WQS and protect designated

uses, and where it has been determined that WQS are being or will be

attained, is not covered by the initial planning and construction

provisions in this Policy; however, the operational plan and post-

construction monitoring provisions continue to apply. If, after

monitoring, it is determined that WQS are not being attained, the

permittee should be required to submit a revised CSO control plan that,

once implemented, will attain WQS.

2. Any permittee that, on the date of publication of this final

Policy, has substantially developed or is implementing a CSO control

program pursuant to an existing permit or enforcement order, and such

program is considered by the NPDES permitting authority to be adequate

to meet WQS and protect designated uses and is reasonably equivalent to

the treatment objectives of this Policy, should complete those

facilities without further planning activities otherwise expected by

this Policy. Such programs, however, should be reviewed and modified to

be consistent with the sensitive area, financial capability, and post-

construction monitoring provisions of this Policy.

3. Any permittee that has previously constructed CSO control

facilities in an effort to comply with WQS but has failed to meet such

applicable standards or to protect designated uses due to remaining

CSOs may receive consideration for such efforts in future permits or

enforceable orders for long-term CSO control planning, design and

implementation.

In the case of any ongoing or substantially completed CSO control

effort, the NPDES permit or other enforceable mechanism, as

appropriate, should be revised to include all appropriate permit

requirements consistent with Section IV.B. of this Policy.

D. Small System Considerations

The scope of the long-term CSO control plan, including the

characterization, monitoring and modeling, and evaluation of

alternatives portions of this Policy may be difficult for some small

CSSs. At the discretion of the NPDES Authority, jurisdictions with

populations under 75,000 may not need to complete each of the formal

steps outlined in Section II.C. of this Policy, but should be required

through their permits or other enforceable mechanisms to comply with

the nine minimum controls (II.B), public participation (II.C.2), and

sensitive areas (II.C.3) portions of this Policy. In addition, the

permittee may propose to implement any of the criteria contained in

this Policy for evaluation of alternatives described in II.C.4.

Following approval of the proposed plan, such jurisdictions should

construct the control projects and propose a monitoring program

sufficient to determine whether WQS are attained and designated uses

are protected.

In developing long-term CSO control plans based on the small system

considerations discussed in the preceding paragraph, permittees are

encouraged to discuss the scope of their long-term CSO control plan

with the WQS authority and the NPDES authority. These discussions will

ensure that the plan includes sufficient information to enable the

permitting authority to identify the appropriate CSO controls.

E. Implementation Responsibilities

NPDES authorities (authorized States or EPA Regional Offices, as

appropriate) are responsible for implementing this Policy. It is their

responsibility to assure that CSO permittees develop long-term CSO

control plans and that NPDES permits meet the requirements of the CWA.

Further, they are responsible for coordinating the review of the long-

term CSO control plan and the development of the permit with the WQS

authority to determine if revisions to the WQS are appropriate. In

addition, they should determine the appropriate vehicle (i.e., permit

reissuance, information request under CWA section 308 or State

equivalent or enforcement action) to ensure that compliance with the

CWA is achieved as soon as practicable.

Permittees are responsible for documenting the implementation of

the nine minimum controls and developing and implementing a long-term

CSO control plan, as described in this Policy. EPA recognizes that

financial considerations are a major factor affecting the

implementation of CSO controls. For that reason, this Policy allows

consideration of a permittee's financial capability in connection with

the long-term CSO control planning effort, WQS review, and negotiation

of enforceable schedules. However, each permittee is ultimately

responsible for aggressively pursuing financial arrangements for the

implementation of its long-term CSO control plan. As part of this

effort, communities should apply to their State Revolving Fund program,

or other assistance programs as appropriate, for financial assistance.

EPA and the States will undertake action to assure that all

permittees with CSSs are subject to a consistent review in the permit

development process, have permit requirements that achieve compliance

with the CWA, and are subject to enforceable schedules that require the

earliest practicable compliance date considering physical and financial

feasibility.

F. Policy Development

This Policy devotes a separate section to each step involved in

developing and implementing CSO controls. This is not to imply that

each function occurs separately. Rather, the entire process surrounding

CSO controls, community planning, WQS and permit development/revision,

enforcement/compliance actions and public participation must be

coordinated to control CSOs effectively. Permittees and permitting

authorities are encouraged to consider innovative and alternative

approaches and technologies that achieve the objectives of this Policy

and the CWA.

In developing this Policy, EPA has included information on what

responsible parties are expected to accomplish. Subsequent documents

will provide additional guidance on how the objectives of this Policy

should be met. These documents will provide further guidance on: CSO

permit writing, the nine minimum controls, long-term CSO control plans,

financial capability, sewer system characterization and receiving water

monitoring and modeling, and application of WQS to CSO-impacted waters.

For most CSO control efforts however, sufficient detail has been

included in this Policy to begin immediate implementation of its

provisions.

II. EPA Objectives for Permittees

A. Overview

Permittees with CSSs that have CSOs should immediately undertake a

process to accurately characterize their sewer systems, to demonstrate

implementation of the nine minimum controls, and to develop a long-term

CSO control plan.

B. Implementation of the Nine Minimum Controls

Permittees with CSOs should submit appropriate documentation

demonstrating implementation of the nine minimum controls, including

any proposed schedules for completing minor construction activities.

The nine minimum controls are:

1. Proper operation and regular maintenance programs for the sewer

system and the CSOs;

2. Maximum use of the collection system for storage;

3. Review and modification of pretreatment requirements to assure CSO

impacts are minimized;

4. Maximization of flow to the POTW for treatment;

5. Prohibition of CSOs during dry weather;

6. Control of solid and floatable materials in CSOs;

7. Pollution prevention;

8. Public notification to ensure that the public receives adequate

notification of CSO occurrences and CSO impacts; and

9. Monitoring to effectively characterize CSO impacts and the efficacy

of CSO controls.

Selection and implementation of actual control measures should be

based on site-specific considerations including the specific CSS's

characteristics discussed under the sewer system characterization and

monitoring portions of this Policy. Documentation of the nine minimum

controls may include operation and maintenance plans, revised sewer use

ordinances for industrial users, sewer system inspection reports,

infiltration/inflow studies, pollution prevention programs, public

notification plans, and facility plans for maximizing the capacities of

the existing collection, storage and treatment systems, as well as

contracts and schedules for minor construction programs for improving

the existing system's operation. The permittee should also submit any

information or data on the degree to which the nine minimum controls

achieve compliance with water quality standards. These data and

information should include results made available through monitoring

and modeling activities done in conjunction with the development of the

long-term CSO control plan described in this Policy.

This documentation should be submitted as soon as practicable, but

no later than two years after the requirement to submit such

documentation is included in an NPDES permit or other enforceable

mechanism. Implementation of the nine minimum controls with appropriate

documentation should be completed as soon as practicable but no later

than January 1, 1997. These dates should be included in an appropriate

enforceable mechanism.

Because the CWA requires immediate compliance with technology-based

controls (section 301(b)), which on a Best Professional Judgment basis

should include the nine minimum controls, a compliance schedule for

implementing the nine minimum controls, if necessary, should be

included in an appropriate enforceable mechanism.

C. Long-Term CSO Control Plan

Permittees with CSOs are responsible for developing and

implementing long-term CSO control plans that will ultimately result in

compliance with the requirements of the CWA. The long-term plans should

consider the site-specific nature of CSOs and evaluate the cost

effectiveness of a range of control options/strategies. The development

of the long-term CSO control plan and its subsequent implementation

should also be coordinated with the NPDES authority and the State

authority responsible for reviewing and revising the State's WQS. The

selected controls should be designed to allow cost effective expansion

or cost effective retrofitting if additional controls are subsequently

determined to be necessary to meet WQS, including existing and

designated uses.

This policy identifies EPA's major objectives for the long-term CSO

control plan. Permittees should develop and submit this long-term CSO

control plan as soon as practicable, but generally within two years

after the date of the NPDES permit provision, Section 308 information

request, or enforcement action requiring the permittee to develop the

plan. NPDES authorities may establish a longer timetable for completion

of the long-term CSO control plan on a case-by-case basis to account

for site-specific factors which may influence the complexity of the

planning process. Once agreed upon, these dates should be included in

an appropriate enforceable mechanism.

EPA expects each long-term CSO control plan to utilize appropriate

information to address the following minimum elements. The Plan should

also include both fixed-date project implementation schedules (which

may be phased) and a financing plan to design and construct the project

as soon as practicable. The minimum elements of the long-term CSO

control plan are described below.

1. Characterization, Monitoring, and Modeling of the Combined Sewer

System

In order to design a CSO control plan adequate to meet the

requirements of the CWA, a permittee should have a thorough

understanding of its sewer system, the response of the system to

various precipitation events, the characteristics of the overflows, and

the water quality impacts that result from CSOs. The permittee should

adequately characterize through monitoring, modeling, and other means

as appropriate, for a range of storm events, the response of its sewer

system to wet weather events including the number, location and

frequency of CSOs, volume, concentration and mass of pollutants

discharged and the impacts of the CSOs on the receiving waters and

their designated uses. The permittee may need to consider information

on the contribution and importance of other pollution sources in order

to develop a final plan designed to meet water quality standards. The

purpose of the system characterization, monitoring and modeling program

initially is to assist the permittee in developing appropriate measures

to implement the nine minimum controls and, if necessary, to support

development of the long-term CSO control plan. The monitoring and

modeling data also will be used to evaluate the expected effectiveness

of both the nine minimum controls and, if necessary, the long-term CSO

controls, to meet WQS.

The major elements of a sewer system characterization are described

below.

a. Rainfall Records--The permittee should examine the complete

rainfall record for the geographic area of its existing CSS using sound

statistical procedures and best available data. The permittee should

evaluate flow variations in the receiving water body to correlate

between CSOs and receiving water conditions.

b. Combined Sewer System Characterization--The permittee should

evaluate the nature and extent of its sewer system through evaluation

of available sewer system records, field inspections and other

activities necessary to understand the number, location and frequency

of overflows and their location relative to sensitive areas and to

pollution sources in the collection system, such as indirect

significant industrial users.

c. CSO Monitoring--The permittee should develop a comprehensive,

representative monitoring program that measures the frequency,

duration, flow rate, volume and pollutant concentration of CSO

discharges and assesses the impact of the CSOs on the receiving waters.

The monitoring program should include necessary CSO effluent and

ambient in-stream monitoring and, where appropriate, other monitoring

protocols such as biological assessment, toxicity testing and sediment

sampling. Monitoring parameters should include, for example, oxygen

demanding pollutants, nutrients, toxic pollutants, sediment

contaminants, pathogens, bacteriological indicators (e.g.,

Enterococcus, E. Coli), and toxicity. A representative sample of

overflow points can be selected that is sufficient to allow

characterization of CSO discharges and their water quality impacts and

to facilitate evaluation of control plan alternatives.

d. Modeling--Modeling of a sewer system is recognized as a valuable

tool for predicting sewer system response to various wet weather events

and assessing water quality impacts when evaluating different control

strategies and alternatives. EPA supports the proper and effective use

of models, where appropriate, in the evaluation of the nine minimum

controls and the development of the long-term CSO control plan. It is

also recognized that there are many models which may be used to do

this. These models range from simple to complex. Having decided to use

a model, the permittee should base its choice of a model on the

characteristics of its sewer system, the number and location of

overflow points, and the sensitivity of the receiving water body to the

CSO discharges. Use of models should include appropriate calibration

and verification with field measurements. The sophistication of the

model should relate to the complexity of the system to be modeled and

to the information needs associated with evaluation of CSO control

options and water quality impacts. EPA believes that continuous

simulation models, using historical rainfall data, may be the best way

to model sewer systems, CSOs, and their impacts. Because of the

iterative nature of modeling sewer systems, CSOs, and their impacts,

monitoring and modeling efforts are complementary and should be

coordinated.

2. Public Participation

In developing its long-term CSO control plan, the permittee will

employ a public participation process that actively involves the

affected public in the decision-making to select the long-term CSO

controls. The affected public includes rate payers, industrial users of

the sewer system, persons who reside downstream from the CSOs, persons

who use and enjoy these downstream waters, and any other interested

persons.

3. Consideration of Sensitive Areas

EPA expects a permittee's long-term CSO control plan to give the

highest priority to controlling overflows to sensitive areas. Sensitive

areas, as determined by the NPDES authority in coordination with State

and Federal agencies, as appropriate, include designated Outstanding

National Resource Waters, National Marine Sanctuaries, waters with

threatened or endangered species and their habitat, waters with primary

contact recreation, public drinking water intakes or their designated

protection areas, and shellfish beds. For such areas, the long-term CSO

control plan should:

a. Prohibit new or significantly increased overflows;

b. i. Eliminate or relocate overflows that discharge to sensitive

areas wherever physically possible and economically achievable, except

where elimination or relocation would provide less environmental

protection than additional treatment; or

ii. Where elimination or relocation is not physically possible and

economically achievable, or would provide less environmental protection

than additional treatment, provide the level of treatment for remaining

overflows deemed necessary to meet WQS for full protection of existing

and designated uses. In any event, the level of control should not be

less than those described in Evaluation of Alternatives below; and

c. Where elimination or relocation has been proven not to be

physically possible and economically achievable, permitting authorities

should require, for each subsequent permit term, a reassessment based

on new or improved techniques to eliminate or relocate, or on changed

circumstances that influence economic achievability.

4. Evaluation of Alternatives

EPA expects the long-term CSO control plan to consider a reasonable

range of alternatives. The plan should, for example, evaluate controls

that would be necessary to achieve zero overflow events per year, an

average of one to three, four to seven, and eight to twelve overflow

events per year. Alternatively, the long-term plan could evaluate

controls that achieve 100% capture, 90% capture, 85% capture, 80%

capture, and 75% capture for treatment. The long-term control plan

should also consider expansion of POTW secondary and primary capacity

in the CSO abatement alternative analysis. The analysis of alternatives

should be sufficient to make a reasonable assessment of cost and

performance as described in Section II.C.5. Because the final long-term

CSO control plan will become the basis for NPDES permit limits and

requirements, the selected controls should be sufficient to meet CWA

requirements.

In addition to considering sensitive areas, the long-term CSO

control plan should adopt one of the following approaches:

a. ``Presumption'' Approach

A program that meets any of the criteria listed below would be

presumed to provide an adequate level of control to meet the water

quality-based requirements of the CWA, provided the permitting

authority determines that such presumption is reasonable in light of

the data and analysis conducted in the characterization, monitoring,

and modeling of the system and the consideration of sensitive areas

described above. These criteria are provided because data and modeling

of wet weather events often do not give a clear picture of the level of

CSO controls necessary to protect WQS.

i. No more than an average of four overflow events per year,

provided that the permitting authority may allow up to two additional

overflow events per year. For the purpose of this criterion, an

overflow event is one or more overflows from a CSS as the result of a

precipitation event that does not receive the minimum treatment

specified below; or

ii. The elimination or the capture for treatment of no less than

85% by volume of the combined sewage collected in the CSS during

precipitation events on a system-wide annual average basis; or

iii. The elimination or removal of no less than the mass of the

pollutants, identified as causing water quality impairment through the

sewer system characterization, monitoring, and modeling effort, for the

volumes that would be eliminated or captured for treatment under

paragraph ii. above.

Combined sewer flows remaining after implementation of the nine minimum

controls and within the criteria specified at II.C.4.a.i or ii, should

receive a minimum of:

Primary clarification (Removal of floatables and

settleable solids may be achieved by any combination of treatment

technologies or methods that are shown to be equivalent to primary

clarification.);

Solids and floatables disposal; and

Disinfection of effluent, if necessary, to meet WQS,

protect designated uses and protect human health, including removal of

harmful disinfection chemical residuals, where necessary.

b. ``Demonstration'' Approach

A permittee may demonstrate that a selected control program, though

not meeting the criteria specified in II.C.4.a. above is adequate to

meet the water quality-based requirements of the CWA. To be a

successful demonstration, the permittee should demonstrate each of the

following:

i. The planned control program is adequate to meet WQS and protect

designated uses, unless WQS or uses cannot be met as a result of

natural background conditions or pollution sources other than CSOs;

ii. The CSO discharges remaining after implementation of the

planned control program will not preclude the attainment of WQS or the

receiving waters' designated uses or contribute to their impairment.

Where WQS and designated uses are not met in part because of natural

background conditions or pollution sources other than CSOs, a total

maximum daily load, including a wasteload allocation and a load

allocation, or other means should be used to apportion pollutant loads;

iii. The planned control program will provide the maximum pollution

reduction benefits reasonably attainable; and

iv. The planned control program is designed to allow cost effective

expansion or cost effective retrofitting if additional controls are

subsequently determined to be necessary to meet WQS or designated uses.

5. Cost/Performance Considerations

The permittee should develop appropriate cost/performance curves to

demonstrate the relationships among a comprehensive set of reasonable

control alternatives that correspond to the different ranges specified

in Section II.C.4. This should include an analysis to determine where

the increment of pollution reduction achieved in the receiving water

diminishes compared to the increased costs. This analysis, often known

as knee of the curve, should be among the considerations used to help

guide selection of controls.

6. Operational Plan

After agreement between the permittee and NPDES authority on the

necessary CSO controls to be implemented under the long-term CSO

control plan, the permittee should revise the operation and maintenance

program developed as part of the nine minimum controls to include the

agreed-upon long-term CSO controls. The revised operation and

maintenance program should maximize the removal of pollutants during

and after each precipitation event using all available facilities

within the collection and treatment system. For any flows in excess of

the criteria specified at II.C.4.a.i., ii. or iii and not receiving the

treatment specified in II.C.4.a, the operational plan should ensure

that such flows receive treatment to the greatest extent practicable.

7. Maximizing Treatment at the Existing POTW Treatment Plant

In some communities, POTW treatment plants may have primary

treatment capacity in excess of their secondary treatment capacity. One

effective strategy to abate pollution resulting from CSOs is to

maximize the delivery of flows during wet weather to the POTW treatment

plant for treatment. Delivering these flows can have two significant

water quality benefits: First, increased flows during wet weather to

the POTW treatment plant may enable the permittee to eliminate or

minimize overflows to sensitive areas; second, this would maximize the

use of available POTW facilities for wet weather flows and would ensure

that combined sewer flows receive at least primary treatment prior to

discharge.

Under EPA regulations, the intentional diversion of waste streams

from any portion of a treatment facility, including secondary

treatment, is a bypass. EPA bypass regulations at 40 CFR 122.41(m)

allow for a facility to bypass some or all the flow from its treatment

process under specified limited circumstances. Under the regulation,

the permittee must show that the bypass was unavoidable to prevent loss

of life, personal injury or severe property damage, that there was no

feasible alternative to the bypass and that the permittee submitted the

required notices. In addition, the regulation provides that a bypass

may be approved only after consideration of adverse effects.

Normally, it is the responsibility of the permittee to document, on

a case-by-base basis, compliance with 40 CFR 122.41(m) in order to

bypass flows legally. For some CSO-related permits, the study of

feasible alternatives in the control plan may provide sufficient

support for the permit record and for approval of a CSO-related bypass

in the permit itself, and to define the specific parameters under which

a bypass can legally occur. For approval of a CSO-related bypass, the

long-term CSO control plan, at a minimum, should provide justification

for the cut-off point at which the flow will be diverted from the

secondary treatment portion of the treatment plant, and provide a

benefit-cost analysis demonstrating that conveyance of wet weather flow

to the POTW for primary treatment is more beneficial than other CSO

abatement alternatives such as storage and pump back for secondary

treatment, sewer separation, or satellite treatment. Such a permit must

define under what specific wet weather conditions a CSO-related bypass

is allowed and also specify what treatment or what monitoring, and

effluent limitations and requirements apply to the bypass flow. The

permit should also provide that approval for the CSO-related bypass

will be reviewed and may be modified or terminated if there is a

substantial increase in the volume or character of pollutants being

introduced to the POTW. The CSO-related bypass provision in the permit

should also make it clear that all wet weather flows passing the

headworks of the POTW treatment plant will receive at least primary

clarification and solids and floatables removal and disposal, and

disinfection, where necessary, and any other treatment that can

reasonably be provided.

Under this approach, EPA would allow a permit to authorize a CSO-

related bypass of the secondary treatment portion of the POTW treatment

plant for combined sewer flows in certain identified circumstances.

This provision would apply only to those situations where the POTW

would ordinarily meet the requirements of 40 CFR 122.41(m) as evaluated

on a case-by-case basis. Therefore, there must be sufficient data in

the administrative record (reflected in the permit fact sheet or

statement of basis) supporting all the requirements in 40 CFR

122.41(m)(4) for approval of an anticipated bypass.

For the purposes of applying this regulation to CSO permittees,

``severe property damage'' could include situations where flows above a

certain level wash out the POTW's secondary treatment system. EPA

further believes that the feasible alternatives requirement of the

regulation can be met if the record shows that the secondary treatment

system is properly operated and maintained, that the system has been

designed to meet secondary limits for flows greater than the peak dry

weather flow, plus an appropriate quantity of wet weather flow, and

that it is either technically or financially infeasible to provide

secondary treatment at the existing facilities for greater amounts of

wet weather flow. The feasible alternative analysis should include, for

example, consideration of enhanced primary treatment (e.g., chemical

addition) and non-biological secondary treatment. Other bases

supporting a finding of no feasible alternative may also be available

on a case-by-case basis. As part of its consideration of possible

adverse effects resulting from the bypass, the permitting authority

should also ensure that the bypass will not cause exceedances of WQS.

This Policy does not address the appropriateness of approving

anticipated bypasses through NPDES permits in advance outside the CSO

context.

8. Implementation Schedule

The permittee should include all pertinent information in the long

term control plan necessary to develop the construction and financing

schedule for implementation of CSO controls. Schedules for

implementation of the CSO controls may be phased based on the relative

importance of adverse impacts upon WQS and designated uses, priority

projects identified in the long-term plan, and on a permittee's

financial capability.

Construction phasing should consider:

a. Eliminating overflows that discharge to sensitive areas as the

highest priority;

b. Use impairment;

c. The permittee's financial capability including consideration of

such factors as:

i. Median household income;

ii. Total annual wastewater and CSO control costs per household as

a percent of median household income;

iii. Overall net debt as a percent of full market property value;

iv. Property tax revenues as a percent of full market property

value;

v. Property tax collection rate;

vi. Unemployment; and

vii. Bond rating;

d. Grant and loan availability;

e. Previous and current residential, commercial and industrial

sewer user fees and rate structures; and

f. Other viable funding mechanisms and sources of financing.

9. Post-Construction Compliance Monitoring Program

The selected CSO controls should include a post-construction water

quality monitoring program adequate to verify compliance with water

quality standards and protection of designated uses as well as to

ascertain the effectiveness of CSO controls. This water quality

compliance monitoring program should include a plan to be approved by

the NPDES authority that details the monitoring protocols to be

followed, including the necessary effluent and ambient monitoring and,

where appropriate, other monitoring protocols such as biological

assessments, whole effluent toxicity testing, and sediment sampling.

III. Coordination With State Water Quality Standards

A. Overview

WQS are State adopted, or Federally promulgated rules which serve

as the goals for the water body and the legal basis for the water

quality-based NPDES permit requirements under the CWA. WQS consist of

uses which States designate for their water bodies, criteria to protect

the uses, an anti-degradation policy to protect the water quality

improvements gained and other policies affecting the implementation of

the standards. A primary objective of the long-term CSO control plan is

to meet WQS, including the designated uses through reducing risks to

human health and the environment by eliminating, relocating or

controlling CSOs to the affected waters.

State WQS authorities, NPDES authorities, EPA regional offices,

permittees, and the public should meet early and frequently throughout

the long-term CSO control planning process. Development of the long-

term plan should be coordinated with the review and appropriate

revision of WQS and implementation procedures on CSO-impacted waters to

ensure that the long-term controls will be sufficient to meet water

quality standards. As part of these meetings, participants should agree

on the data, information and analyses needed to support the development

of the long-term CSO control plan and the review of applicable WQS, and

implementation procedures, if appropriate. Agreements should be reached

on the monitoring protocols and models that will be used to evaluate

the water quality impacts of the overflows, to analyze the

attainability of the WQS and to determine the water quality-based

requirements for the permit. Many opportunities exist for permittees

and States to share information as control programs are developed and

as WQS are reviewed. Such information should assist States in

determining the need for revisions to WQS and implementation procedures

to better reflect the site-specific wet weather impacts of CSOs.

Coordinating the development of the long-term CSO control plan and the

review of the WQS and implementation procedures provides greater

assurance that the long-term control plan selected and the limits and

requirements included in the NPDES permit will be sufficient to meet

WQS and to comply with sections 301(b)(1)(C) and 402(a)(2) of the CWA.

EPA encourages States and permittees jointly to sponsor workshops

for the affected public in the development of the long-term CSO control

plan and during the development of appropriate revisions to WQS for

CSO-impacted waters. Workshops provide a forum for including the public

in discussions of the implications of the proposed long-term CSO

control plan on the water quality and uses for the receiving water.

B. Water Quality Standards Reviews

The CWA requires States to periodically, but at least once every

three years, hold public hearings for the purpose of reviewing

applicable water quality standards and, as appropriate, modifying and

adopting standards. States must provide the public an opportunity to

comment on any proposed revision to water quality standards and all

revisions must be submitted to EPA for review and approval.

EPA regulations and guidance provide States with the flexibility to

adapt their WQS, and implementation procedures to reflect site-specific

conditions including those related to CSOs. For example, a State may

adopt site-specific criteria for a particular pollutant if the State

determines that the site-specific criteria fully protects the

designated use (40 CFR 131.11). In addition, the regulations at 40 CFR

131.10(g), (h), and (j) specify when and how a designated use may be

modified. A State may remove a designated use from its water quality

standards only if the designated use is not an existing use. An

existing use is a use actually attained in the water body on or after

November 28, 1975. Furthermore, a State may not remove a designated use

that will be attained by implementing the technology-based effluent

limits required under sections 301(b) and 306 of the CWA and by

implementing cost-effective and reasonable best management practices

for nonpoint source controls. Thus, if a State has a reasonable basis

to determine that the current designated use could be attained after

implementation of the technology-based controls of the CWA, then the

use could not be removed.

In determining whether a use is attainable and prior to removing a

designated use, States must conduct and submit to EPA a use

attainability analysis. A use attainability analysis is a structured

scientific assessment of the factors affecting the use, including the

physical, chemical, biological, and economic factors described in 40

CFR 131.10(g). As part of the analysis, States should evaluate whether

the designated use could be attained if CSO controls were implemented.

For example, States should examine if sediment loadings from CSOs could

be reduced so as not to bury spawning beds, or if biochemical oxygen

demanding material in the effluent or the toxicity of the effluent

could be corrected so as to reduce the acute or chronic physiological

stress on or bioaccumulation potential of aquatic organisms.

In reviewing the attainability of their WQS and the applicability

of their implementation procedures to CSO-impacted waters, States are

encouraged to define more explicitly their recreational and aquatic

life uses and then, if appropriate, modify the criteria accordingly to

protect the designated uses.

Another option is for States to adopt partial uses by defining when

primary contact recreation such as swimming does not exist, such as

during certain seasons of the year in northern climates or during a

particular type of storm event. In making such adjustments to their

uses, States must ensure that downstream uses are protected, and that

during other seasons or after the storm event has passed, the use is

fully protected.

In addition to defining recreational uses with greater specificity,

States are also encouraged to define the aquatic uses more precisely.

Rather than ``aquatic life use protection,'' States should consider

defining the type of fishery to be protected such as a cold water

fishery (e.g., trout or salmon) or a warm weather fishery (e.g.,

bluegill or large mouth bass). Explicitly defining the type of fishery

to be protected may assist the permittee in enlisting the support of

citizens for a CSO control plan.

A water quality standard variance may be appropriate, in limited

circumstances on CSO-impacted waters, where the State is uncertain as

to whether a standard can be attained and time is needed for the State

to conduct additional analyses on the attainability of the standard.

Variances are short-term modifications in water quality standards.

Subject to EPA approval, States, with their own statutory authority,

may grant a variance to a specific discharger for a specific pollutant.

The justification for a variance is similar to that required for a

permanent change in the standard, although the showings needed are less

rigorous. Variances are also subject to public participation

requirements of the water quality standards and permits programs and

are reviewable generally every three years. A variance allows the CSO

permit to be written to meet the ``modified'' water quality standard as

analyses are conducted and as progress is made to improve water

quality.

Justifications for variances are the same as those identified in 40

CFR 131.10(g) for modifications in uses. States must provide an

opportunity for public review and comment on all variances. If States

use the permit as the vehicle to grant the variance, notice of the

permit must clearly state that the variance modifies the State's water

quality standards. If the variance is approved, the State appends the

variance to the State's standards and reviews the variance every three

years.

IV. Expectations for Permitting Authorities

A. Overview

CSOs are point sources subject to NPDES permit requirements

including both technology-based and water quality-based requirements of

the CWA. CSOs are not subject to secondary treatment regulations

applicable to publicly owned treatment works (Montgomery Environmental

Coalition vs. Costle, 646 F.2d 568 (D.C. Cir. 1980)).

All permits for CSOs should require the nine minimum controls as a

minimum best available technology economically achievable and best

conventional technology (BAT/BCT) established on a best professional

judgment (BPJ) basis by the permitting authority (40 CFR 125.3). Water

quality-based requirements are to be established based on applicable

water quality standards.

This policy establishes a uniform, nationally consistent approach

to developing and issuing NPDES permits to permittees with CSOs.

Permits for CSOs should be developed and issued expeditiously. A

single, system-wide permit generally should be issued for all

discharges, including CSOs, from a CSS operated by a single authority.

When different parts of a single CSS are operated by more than one

authority, permits issued to each authority should generally require

joint preparation and implementation of the elements of this Policy and

should specifically define the responsibilities and duties of each

authority. Permittees should be required to coordinate system-wide

implementation of the nine minimum controls and the development and

implementation of the long-term CSO control plan.

The individual authorities are responsible for their own discharges

and should cooperate with the permittee for the POTW receiving the

flows from the CSS. When a CSO is permitted separately from the POTW,

both permits should be cross-referenced for informational purposes.

EPA Regions and States should review the CSO permitting priorities

established in the State CSO Permitting Strategies developed in

response to the 1989 Strategy. Regions and States may elect to revise

these previous priorities. In setting permitting priorities, Regions

and States should not just focus on those permittees that have

initiated monitoring programs. When setting priorities, Regions and

States should consider, for example, the known or potential impact of

CSOs on sensitive areas, and the extent of upstream industrial user

discharges to the CSS.

During the permittee's development of the long-term CSO control

plan, the permit writer should promote coordination between the

permittee and State WQS authority in connection with possible WQS

revisions. Once the permittee has completed development of the long-

term CSO control plan and has coordinated with the permitting authority

the selection of the controls necessary to meet the requirements of the

CWA, the permitting authority should include in an appropriate

enforceable mechanism, requirements for implementation of the long-term

CSO control plan, including conditions for water quality monitoring and

operation and maintenance.

B. NPDES Permit Requirements

Following are the major elements of NPDES permits to implement this

Policy and ensure protection of water quality.

1. Phase I Permits--Requirements for Demonstration of Implementation of

the Nine Minimum Controls and Development of the Long-Term CSO Control

Plan

In the Phase I permit issued/modified to reflect this Policy, the

NPDES authority should at least require permittees to:

a. Immediately implement BAT/BCT, which at a minimum includes the

nine minimum controls, as determined on a BPJ basis by the permitting

authority;

b. Develop and submit a report documenting the implementation of

the nine minimum controls within two years of permit issuance/

modification;

c. Comply with applicable WQS, no later than the date allowed under

the State's WQS, expressed in the form of a narrative limitation; and

d. develop and submit, consistent with this Policy and based on a

schedule in an appropriate enforceable mechanism, a long-term CSO

control plan as soon as practicable, but generally within two years

after the effective date of the permit issuance/ modification. However,

permitting authorities may establish a longer timetable for completion

of the long-term CSO control plan on a case-by-case basis to account

for site-specific factors that may influence the complexity of the

planning process.

The NPDES authority should include compliance dates on the fastest

practicable schedule for each of the nine minimum controls in an

appropriate enforceable mechanism issued in conjunction with the Phase

I permit. The use of enforceable orders is necessary unless Congress

amends the CWA. All orders should require compliance with the nine

minimum controls no later than January 1, 1997.

2. Phase II Permits--Requirements for Implementation of a Long-Term CSO

Control Plan

Once the permittee has completed development of the long-term CSO

control plan and the selection of the controls necessary to meet CWA

requirements has been coordinated with the permitting and WQS

authorities, the permitting authority should include, in an appropriate

enforceable mechanism, requirements for implementation of the long-term

CSO control plan as soon as practicable. Where the permittee has

selected controls based on the ``presumption'' approach described in

Section II.C.4, the permitting authority must have determined that the

presumption that such level of treatment will achieve water quality

standards is reasonable in light of the data and analysis conducted

under this Policy. The Phase II permit should contain:

a. Requirements to implement the technology-based controls

including the nine minimum controls determined on a BPJ basis;

b. Narrative requirements which insure that the selected CSO

controls are implemented, operated and maintained as described in the

long-term CSO control plan;

c. Water quality-based effluent limits under 40 CFR 122.44(d)(1)

and 122.44(k), requiring, at a minimum, compliance with, no later than

the date allowed under the State's WQS, the numeric performance

standards for the selected CSO controls, based on average design

conditions specifying at least one of the following:

i. A maximum number of overflow events per year for specified

design conditions consistent with II.C.4.a.i; or

ii. A minimum percentage capture of combined sewage by volume for

treatment under specified design conditions consistent with

II.C.4.a.ii; or

iii. A minimum removal of the mass of pollutants discharged for

specified design conditions consistent with II.C.4.a.iii; or

iv. performance standards and requirements that are consistent with

II.C.4.b. of the Policy.

d. A requirement to implement, with an established schedule, the

approved post-construction water quality assessment program including

requirements to monitor and collect sufficient information to

demonstrate compliance with WQS and protection of designated uses as

well as to determine the effectiveness of CSO controls.

e. A requirement to reassess overflows to sensitive areas in those

cases where elimination or relocation of the overflows is not

physically possible and economically achievable. The reassessment

should be based on consideration of new or improved techniques to

eliminate or relocate overflows or changed circumstances that influence

economic achievability;

f. Conditions establishing requirements for maximizing the

treatment of wet weather flows at the POTW treatment plant, as

appropriate, consistent with Section II.C.7. of this Policy;

g. A reopener clause authorizing the NPDES authority to reopen and

modify the permit upon determination that the CSO controls fail to meet

WQS or protect designated uses. Upon such determination, the NPDES

authority should promptly notify the permittee and proceed to modify or

reissue the permit. The permittee should be required to develop, submit

and implement, as soon as practicable, a revised CSO control plan which

contains additional controls to meet WQS and designated uses. If the

initial CSO control plan was approved under the demonstration provision

of Section II.C.4.b., the revised plan, at a minimum, should provide

for controls that satisfy one of the criteria in Section II.C.4.a.

unless the permittee demonstrates that the revised plan is clearly

adequate to meet WQS at a lower cost and it is shown that the

additional controls resulting from the criteria in Section II.C.4.a.

will not result in a greater overall improvement in water quality.

Unless the permittee can comply with all of the requirements of the

Phase II permit, the NPDES authority should include, in an enforceable

mechanism, compliance dates on the fastest practicable schedule for

those activities directly related to meeting the requirements of the

CWA. For major permittees, the compliance schedule should be placed in

a judicial order. Proper compliance with the schedule for implementing

the controls recommended in the long-term CSO control plan constitutes

compliance with the elements of this Policy concerning planning and

implementation of a long term CSO remedy.

3. Phasing Considerations

Implementation of CSO controls may be phased based on the relative

importance of and adverse impacts upon WQS and designated uses, as well

as the permittee's financial capability and its previous efforts to

control CSOs. The NPDES authority should evaluate the proposed

implementation schedule and construction phasing discussed in Section

II.C.8. of this Policy. The permit should require compliance with the

controls proposed in the long-term CSO control plan no later than the

applicable deadline(s) under the CWA or State law. If compliance with

the Phase II permit is not possible, an enforceable schedule,

consistent with the Enforcement and Compliance Section of this Policy,

should be issued in conjunction with the Phase II permit which

specifies the schedule and milestones for implementation of the long-

term CSO control plan.

V. Enforcement and Compliance

A. Overview

It is important that permittees act immediately to take the

necessary steps to comply with the CWA. The CSO enforcement effort will

commence with an initiative to address CSOs that discharge during dry

weather, followed by an enforcement effort in conjunction with

permitting CSOs discussed earlier in this Policy. Success of the

enforcement effort will depend in large part upon expeditious action by

NPDES authorities in issuing enforceable permits that include

requirements both for the nine minimum controls and for compliance with

all other requirements of the CWA. Priority for enforcement actions

should be set based on environmental impacts or sensitive areas

affected by CSOs.

As a further inducement for permittees to cooperate with this

process, EPA is prepared to exercise its enforcement discretion in

determining whether or not to seek civil penalties for past CSO

violations if permittees meet the objectives and schedules of this

Policy and do not have CSOs during dry weather.

B. Enforcement of CSO Dry Weather Discharge Prohibition

EPA intends to commence immediately an enforcement initiative

against CSO permittees which have CWA violations due to CSOs during dry

weather. Discharges during dry weather have always been prohibited by

the NPDES program. Such discharges can create serious public health and

water quality problems. EPA will use its CWA Section 308 monitoring,

reporting, and inspection authorities, together with NPDES State

authorities, to locate these violations, and to determine their causes.

Appropriate remedies and penalties will be sought for CSOs during dry

weather. EPA will provide NPDES authorities more specific guidance on

this enforcement initiative separately.

C. Enforcement of Wet Weather CSO Requirements

Under the CWA, EPA can use several enforcement options to address

permittees with CSOs. Those options directly applicable to this Policy

are section 308 Information Requests, section 309(a) Administrative

Orders, section 309(g) Administrative Penalty Orders, section 309 (b)

and (d) Civil Judicial Actions, and section 504 Emergency Powers. NPDES

States should use comparable means.

NPDES authorities should set priorities for enforcement based on

environmental impacts or sensitive areas affected by CSOs. Permittees

that have voluntarily initiated monitoring and are progressing

expeditiously toward appropriate CSO controls should be given due

consideration for their efforts.

1. Enforcement for Compliance With Phase I Permits

Enforcement for compliance with Phase I permits will focus on

requirements to implement at least the nine minimum controls, and

develop the long-term CSO control plan leading to compliance with the

requirements of the CWA. Where immediate compliance with the Phase I

permit is infeasible, the NPDES authority should issue an enforceable

schedule, in concert with the Phase I permit, requiring compliance with

the CWA and imposing compliance schedules with dates for each of the

nine minimum controls as soon as practicable. All enforcement

authorities should require compliance with the nine minimum controls no

later than January 1, 1997. Where the NPDES authority is issuing an

order with a compliance schedule for the nine minimum controls, this

order should also include a schedule for development of the long-term

CSO control plan.

If a CSO permittee fails to meet the final compliance date of the

schedule, the NPDES authority should initiate appropriate judicial

action.

2. Enforcement for Compliance With Phase II Permits

The main focus for enforcing compliance with Phase II permits will

be to incorporate the long-term CSO control plan through a civil

judicial action, an administrative order, or other enforceable

mechanism requiring compliance with the CWA and imposing a compliance

schedule with appropriate milestone dates necessary to implement the

plan.

In general, a judicial order is the appropriate mechanism for

incorporating the above provisions for Phase II. Administrative orders,

however, may be appropriate for permittees whose long-term control

plans will take less than five years to complete, and for minors that

have complied with the final date of the enforceable order for

compliance with their Phase I permit. If necessary, any of the nine

minimum controls that have not been implemented by this time should be

included in the terms of the judicial order.

D. Penalties

EPA is prepared not to seek civil penalties for past CSO

violations, if permittees have no discharges during dry weather and

meet the objectives and schedules of this Policy. Notwithstanding this,

where a permittee has other significant CWA violations for which EPA or

the State is taking judicial action, penalties may be considered as

part of that action for the following:

1. CSOs during dry weather;

2. Violations of CSO-related requirements in NPDES permits; consent

decrees or court orders which predate this policy; or

3. Other CWA violations.

EPA will not seek penalties for past CSO violations from permittees

that fully comply with the Phase I permit or enforceable order

requiring compliance with the Phase I permit. For permittees that fail

to comply, EPA will exercise its enforcement discretion in determining

whether to seek penalties for the time period for which the compliance

schedule was violated. If the milestone dates of the enforceable

schedule are not achieved and penalties are sought, penalties should be

calculated from the last milestone date that was met.

At the time of the judicial settlement imposing a compliance

schedule implementing the Phase II permit requirements, EPA will not

seek penalties for past CSO violations from permittees that fully

comply with the enforceable order requiring compliance with the Phase I

permit and if the terms of the judicial order are expeditiously agreed

to on consent. However, stipulated penalties for violation of the

judicial order generally should be included in the order, consistent

with existing Agency policies. Additional guidance on stipulated

penalties concerning long-term CSO controls and attainment of WQS will

be issued.

Paperwork Reduction Act

The information collection requirements in this policy have been

approved by the Office of Management and Budget (OMB) under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq and have been assigned

OMB control number 2040-0170.

This collection of information has an estimated reporting burden

averaging 578 hours per response and an estimated annual recordkeeping

burden averaging 25 hours per recordkeeper. These estimates include

time for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collection of information.

Send comments regarding the burden estimate or any other aspect of

this collection of information, including suggestions for reducing this

burden to Chief, Information Policy Branch; EPA; 401 M Street SW. (Mail

Code 2136); Washington, DC 20460; and to the Office of Information and

Regulatory Affairs, Office of Management and Budget, Washington, DC

20503, marked ``Attention: Desk Officer for EPA.''

[FR Doc. 94-9295 Filed 4-18-94; 8:45 am]

BILLING CODE 6560-50-P