CSO ENFORCEMENT ISSUES WET WEATHER PARTNERSHIP AND NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES MEETING

1. CSO ENFORCEMENT ISSUESWET WEATHER PARTNERSHIP AND NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES MEETING MARK POLLINS WATER ENFORCEMENT DIVISION OFFICE OF CIVIL ENFORCEMENT U.S. EPA APRIL 27, 2007

2. Background: CSO Enforcement Priority Combined sewer overflows (CSOs)/sanitary sewer overflows (SSOs) were redesignated a national enforcement priority for 2005-2007 and the subsequent three year cycle. CSOs/SSOs have been designated a national enforcement priority since 1998. EPA’s national priorities were selected based on three criteria: Significant environmental benefit Pattern of noncompliance Appropriate EPA responsibility

3. Background: CSO Enforcement Priority For the priority-setting process, OECA hosted a meeting of HQ, regions, states, tribes and state associations to discuss the 16 candidate priorities. Participants received detailed descriptions of potential priorities, participated in facilitated discussions of candidates and were requested to rank their choice of priorities.

4. CSO Priority Strategy A primary goal of the CSO Priority Strategy is to ensure that: 65% of all permitted CSOs either have completed an evaluation which determined that they did not need to develop a Long Term Control Plan (LTCP), Or are under an enforceable schedule to develop and implement an LTCP which ultimately will result in compliance with the Clean Water Act, Or have taken actions which will result in sewer separation.

5. CSO Priority Strategy Additional goals include: Targeting 90% of federal enforcement actions at CSOs in priority watersheds, Evaluating 100% of CSO outfalls within 1 mile of drinking water intake, Promoting compliance assistance for 90% of systems serving less than 10,000 persons without an LTCP or pending enforcement action.

6. Background: Reason for Enforcement Federal enforcement targeting for authorized states Most egregious violators Failure to achieve compliance despite prior enforcement Largest systems Costly and complex injunctive relief Where there is significant public interest Where states request EPA involvement Where EPA is the NPDES authority

7. Federal-State Relationships Under the CWA, EPA may authorize states to administer the NPDES program. States with authorized permit programs have the lead in the day-to-day administration of these programs. In the majority of water enforcement cases (including hundreds of CSO and SSO cases), authorized states in fact take the lead in responding to violations. Since 1987, states have taken approximately 750 administrative actions and 5 civil judicial actions against municipalities for SSO violations, and 75 administrative actions and 15 judicial actions for CSO violations. (2004 Report to Congress). EPA retains concurrent authority under Section 402(i) of the CWA to take enforcement action.

8. Federal-State Relationships EPA and ECOS developed the Guidelines for Federal Enforcement in CSO/SSO Cases (April 10, 2005) (Guidelines) to clarify EPA’s role in CSO/SSO cases. State participants included Ohio, Indiana, and Pennsylvania. The Guidelines memorandum sets forth circumstances where it may be appropriate for EPA to take action to address CSO violations. These are not limited to cases where a state fails to take timely and appropriate action – they also include cases with multi-state impacts. Taking action to address multi-state impacts ensures consistent and fair treatment of municipal violators in the same watershed. Example: Ohio River (Hamilton County, OH; Louisville, KY; Covington, KY).

9. Federal-State Relationships The goal of the Guidelines is to set the stage for early, open, and ongoing communication between EPA and states addressing CSO/SSO issues. The Guidelines memorandum is intended to enhance the federal-state partnership that has been a central aspect of CSO/SSO enforcement. States were co-plaintiffs in nearly 70% of federal CSO and SSO judicial cases since 1994.

10. Federal-State Relationships EPA regions and authorized states have Performance Partnership Agreements and other agreements governing how CWA violations will be addressed. These include workshare agreement dividing the CSO/SSO caseload. Regions and states are encouraged to incorporate the CSO/SSO guidelines in their enforcement agreements. The Guidelines memorandum encourages regions and state to engage in full communication and coordination to define state and federal enforcement roles in CSO/SSO cases.

11. OECA’s Role in CSO Actions EPA’s Office of Enforcement and Compliance Assurance is the point of contact for enforcement actions against CSO communities OECA applies EPA policy and guidance (including the 1994 CSO Policy) on a case-by-case basis in its enforcement actions. OECA coordinates with the Office of Water, as appropriate, on issues that arise in enforcement actions to ensure consistency with EPA policy and guidance. OECA applies the 1995 Clean Water Act Penalty Policy. Penalties are assessed under a separate table for municipalities. OECA may waive the penalty under circumstances specified in the CSO Policy.

12. CSO Significant Noncompliance EPA’s 1986 NPDES Enforcement Management System (which contains Significant Noncompliance criteria) pre-dates EPA’s 1994 CSO Policy. Therefore, EPA’s current SNC criteria do not address CSO violations. December 2005: EPA started a workgroup with states to develop an addendum to the existing SNC policy for “wet weather” violations (including CSOs and SSOs). For CSOs, the goal is to develop appropriate, comprehensive, and clear criteria to prioritize CSO violators in accordance with the 1994 CSO Policy.

13. CSO Significant Noncompliance The SNC Policy is being closely coordinated with a project to modernize the Permit Compliance System to ensure that SNC systems are tracked appropriately. States are providing input on the SNC Policy through the workgroup started in EPA in 2005. Stakeholder may submit informal comments expressing their views.

14. CSO Significant Noncompliance OCE received extensive written comments from National Association of Clean Water Agencies (NACWA) and Water Environment Federation (WEF) in Nov/Dec. 2006. All comments are considered as we work to issue an Interim WW SNC Policy for a pilot period.

15. Green Infrastructure OECA supportive of work by OW, NACWA and NRDC. Co-hosted round table discussion with OW this April. Will continue to seek Green infrastructure as part of settlement agreements.