MUNICIPAL COALITION ACTIONS TO FOSTER COST-EFFECTIVE WET WEATHER TREATMENT

For several years, EPA has been developing and implementing numerous regulatory approaches to address pollutant discharges caused by wet weather events. During the past year, Agency has been in the process of completing a series of federal initiatives to address wet weather discharges due to combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs). As a result, thousands of communities nationwide will need to plan sewer system⊘treatment plant improvements to address these wet weather discharge issues.While considerable effort has been focused on the “wet weather water quality standard” issue and the conditions under which CSO and SSO events are deemed uncontrollable, little attention has been paid to a series of subtle changes in EPA's implementation of its existing bypass regulation and application of secondary treatment requirements to controllable CSO and SSO flows. For example, some EPA Regions had begun to require strict application of secondary treatment requirements to satellite SSO facilities even though the federal rule was never designed nor intended to apply to intermittently discharging facilities and has asserted that the bypass rule requires all flows entering the headworks to be processed by all treatment units (i.e., no blending of peak wet weather flows). This re-interpretation of the federal bypass⊘secondary treatment rules has been occurring on a case-by-case basis as communities seek federal approval of SSO⊘CSO strategies and has had a dramatic impact on the level of treatment required of CSO⊘SSO flows once they are delivered to the plant.Generally, federal law prohibits an agency from reinterpreting its rules to be more or less stringent without notice and comment rulemaking. In addition, such actions violate the federal Unfunded Mandates Act by failing to present to Congress the regulatory need and legal basis for adoption of rules that will have a nationwide impact of more than 100 million. A broad municipal coalition from ten states, led by the Pennsylvania Municipal Authorities Association and the Tennessee Municipal League, was formed to foster proper application of secondary treatment and bypass rule implementation.This paper will present an update on the following issues:Administrative rule history and past application of EPA's bypass and secondary treatment regulations;Impact of bypass⊘secondary treatment rule interpretation on CSO⊘SSO projects;Administrative law principles applicable to rule re-interpretation; andProgress achieved by the municipal coalition to obtain fair treatment in permitting SSO⊘CSO-related facilities.