SURVIVING SSO ENFORCEMENT ACTIONS “PAIN AND SUFFERING IS INEVITABLE-MISERY IS OPTIONAL”

Reducing sanitary sewer overflows (SSOs) remains one of U.S. EPA's perennial top national priorities. Because EPA views all SSOs as unpermitted discharges under the Clean Water Act (CWA), EPA has sought to address SSOs using enforcement rather than permitting tools. As part of EPA's national priority for SSOs, EPA Regional offices and their state partners have been asked to initiate enforcement actions or investigate SSO status against most major communities and regional systems. EPA Headquarters has set a goal of having all major systems with SSO problems under federal consent decree by 2007. Major systems are defined by EPA as those that serve a population of 300,000 or have 100 million gallons per day in permitted capacity.EPA has also established enforcement targets with States in work plans required in return for federal grants to the states to cover some of the States' costs of running the federal Clean Water Act permitting program. Many of these EPA-State agreements call for the states to address twenty percent of the communities with SSO problems each year.SSOs are not just a federal priority. Numerous high profile SSOs have led to beach closures, other local impacts and adverse publicity. The same is true for communities that experience chronic occurrences of water in basements. Collection system releases to streets, waterways, basements, and other areas have led numerous states to make SSO control a State priority as well.Over the past twenty years, most states have addressed SSO problems by imposing control requirements in NDPES permit or through State administrative orders – usually on consent. However, more recently, EPA is pushing hard to have all of the major SSO actions addressed via federal consent decree or litigation if the community will not consent to the entry of a decree.While State permits and consent orders are flexible and readily easily updated, federal consent decrees are typically inflexible and seek to impose comprehensive solutions with fixed deadlines to eliminate/minimize collection system releases.This paper summarizes the factors that NPDES enforcement agencies and private citizen groups often use in deciding which communities to seek enforcement against for SSOs. It goes on to outline the typical course of an SSO enforcement action, highlighting the key issues that most communities must face and overcome.