[DOCID: f:sr497.110]
From the Senate Reports Online via GPO Access
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Calendar No. 1075
110th Congress Report
SENATE
2d Session 110-497
======================================================================
SEWAGE OVERFLOW COMMUNITY RIGHT-TO-KNOW ACT
_______
September 24 (legislative day, September 17), 2008.--Ordered to be
printed
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany S. 2080]
together with
MINORITY VIEWS
[Including an estimate by the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 2080) to amend the Federal Water
Pollution Control Act to ensure that sewage treatment plants
monitor for and report discharges of raw sewage, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill, as amended, do
pass.
Purpose and Summary of the Legislation
The purpose of S. 2080, the Sewage Overflow Community
Right-to-Know Act, is to provide a uniform, national standard
for monitoring, reporting, and public notification of municipal
combined sewer overflows and sanitary sewer overflows. The bill
would require publicly owned treatment works to with an issued,
renewed, or modified Clean Water Act permit to institute a
methodology, technology, or management program for monitoring
sewer overflows to alert the operator of the treatment works of
a sewer overflow in a timely manner.
S. 2080 would also require, with in the case of a sewer
overflow that has the potential to affect human health, that
the owner or operator of a treatment facility notify the public
of the overflow as soon as practicable, but not later than 24
hours after the time of discovery of the overflow. If a sewer
overflow may imminently and substantially endanger human
health, the owner or operator must notify public health
authorities and other affected entities immediately after the
owner or operator knows of the overflow. The bill would require
a report of each sewer overflow in the treatment facility's
discharge monitoring report to the Administrator or State, and
a yearly report to the Administrator or State.
The bill would require the Administrator of the
Environmental Protection Agency (EPA) to conduct a rulemaking
that establishes a set of criteria to guide owners or operators
of publicly owned treatment works in assessing the potential
threats to human health from a sewer overflow. The same
rulemaking would have criteria to guide the owner or operator's
development of communication measure that are sufficient to
give notice to the public, public health officials, and other
affected entities. S. 2080 also provides for the
Administrator's approval of State notification programs and for
the Administrator's withdrawal of approval if certain
conditions are met.
S. 2080 also clarifies when the notification requirements
apply to the owner or operator of a treatment works and become
subject to the section 309 of the Clean Water Act. The bill
also clarifies key terms and authorizes financial assistance
for implementing requirements under this Act.
Background and Need for the Legislation
BACKGROUND
The Sewage Overflow Right-To-Know Act bill will require
communities to provide the public and public health officials
with information regarding sewer overflows in places of public
interest. In 2004, EPA estimated that up to 75,000 sanitary
sewer overflow events occur each year in the United States,
releasing up to 10 billion gallons of untreated wastewater,
which can pollute our rivers, lakes, and beaches. People can be
exposed to pollutants from these overflow events in a number of
ways, including by coming into direct contact with waters with
pollutants from CSOs or SSOs, drinking water contaminated by
sewer discharges, and consuming or handling fish or shellfish.
People are also at risk of exposure to sewer overflows by sewer
backups into residential buildings, city streets, and
sidewalks. This bill would require monitoring, reporting, and
notifications of sewage overflow events--and authorize funding
for such activities.
Eliminating or reducing the potential for humans to be
exposed to discharges from pollutants from Combined Sewer
Overflows (CSOs) and Sanitary Sewer Overflows (SSOs) could
prevent human illness from waterborne diseases and pathogens.
Once a release has occurred, steps should be taken to minimize
the potential human for contact to the pollutants. There is no
uniform, national standard for notification of combined and
sanitary sewer overflows. Various federal, state, and local
laws and initiatives are now used to provide notification of
such sewer overflow events.
Our national wastewater infrastructure is aging and in need
of important but expensive repairs. These repairs will require
significant investment in traditional infrastructure and
innovative, non-structural infrastructure to prevent the
occurrence of sewer overflows. In EPA's most recent Clean Water
Needs Survey, the Agency estimated the future capital needs to
address existing CSOs at $50.6 billion. The Agency also
estimated that it would require an additional $88.5 billion in
capital improvements to reduce the frequency of SSOs caused by
wet weather and other conditions (e.g., blockages, line breaks,
and mechanical/power failures).
Some Federal laws have notification requirements for
potential health risks from waterborne contaminants. Under
section 1414 of the Safe Drinking Water Act, public water
systems are required to notify the persons served by the system
of any failure to comply with applicable Federal or state
drinking water standards, the existence of any drinking water
variance to safe drinking water standards, and the presence of
any ``unregulated contaminants'' that pose a public health
threat. The Safe Drinking Water Act requires public water
systems to implement notification procedures to ensure that any
violation of a drinking water standard with potential serious
adverse effects on human health be made public as soon as
practicable, but not later than 24 hours after the violation.
The Act also requires public water systems to provide written
notice and annual reports to Federal and State agencies, as
well as to the public.
Section 406 of the Clean Water Act authorizes funding for
state and local governments to implement monitoring and
notification programs for some coastal waters. Under this
monitoring and notification program, the federal government
provides grants to states to run such programs.
The Centers for Disease Control and Prevention (CDC) is
involved in tracking disease outbreaks. The CDC's National
Center for Infectious Diseases uses water quality sampling and
reports of waterborne disease outbreaks to supply information
on such threats.
All of these efforts would benefit from more consistent
monitoring and notification requirements. If local officials
and the public were alerted to overflow events, it would also
reduce the potential for exposure to dangerous pollutants. By
providing the public and public health officials with this
information, appropriate action can occur to protect pubic
health.
The EPA has undertaken a number of initiatives to encourage
local governments to report sewer overflows to Federal and
State agencies and the public. In April 1994, EPA issued the
Combined Sewer Overflow Control Policy (59 Fed. Reg. 18688),
which established a national framework for control of CSOs
through the Clean Water Act's permitting program. This policy
requires owners and operators of combined sewer systems to
implement minimum technology-based controls that can reduce the
prevalence and impacts of CSOs without significant engineering
studies or major construction. These controls include a
requirement for the public disclosure of CSOs.
In 2001, Congress amended the Clean Water Act to require
that permits for combined sewer systems conform to the Combined
Sewer Overflow Control Policy. Section 402(q) of the Clean
Water Act requires that each permit issued for a discharge from
a municipal combined sewer system conform to the Combined Sewer
Overflow Control Policy. This amendment to the Clean Water Act
was enacted as part of the Consolidated Appropriations Act,
2001 (Pub. L. 106-554).
However, there is no uniform federal requirement for public
notification of SSOs. Under existing EPA rules (40 CFR
122.41(l)(6)), NPDES permits should establish a process for
requiring a permittee to report any noncompliance with the
permit that may endanger human health or the environment.
However, these regulations do not specifically require public
notification of SSOs.
In 2001, the EPA began to address this lack of a consistent
Federal mandate for public notification. The Agency issued a
draft SSO rule that would have implemented a formal program for
reporting, public notification, and recordkeeping for sanitary
sewer systems and SSOs. However, EPA's draft SSO rule was never
finalized, and was later withdrawn. No additional regulatory
proposals for public notification of SSOs have been issued.
NEED FOR LEGISLATION
There is utility in establishing a national standard for
monitoring, reporting, and public notification of municipal
combined sewer overflows and sanitary sewer overflows. However,
the monitoring, notification, and reporting requirements of the
Sewage Overflow Community Right-to-Know Act are not intended to
preclude or deny any right of a State, municipality, or
individual publicly owned treatment works from implementing
monitoring, notification, or reporting requirements that are
more stringent or comprehensive than those contained in S. 2080
or the regulations promulgated by the Environmental Protection
Agency to implement this Act. Accordingly, States,
municipalities, and individual publicly owned treatment works
may adopt or enforce any regulation, requirement, or permit
condition with respect to the monitoring, notification, and
reporting that is more stringent than a regulation,
requirement, or permit condition issued under the Sewage
Overflow Community Right-to-Know Act.
In addition, the additional monitoring, notification, and
reporting requirements made by S. 2080 do not explicitly or
implicitly authorize sanitary sewer overflows or municipal
combined sewer overflows outside of the existing statutory
requirements of the Clean Water Act.
Finally, the Committee intends that the amendments to the
Clean Water Act made by the Sewage Overflow Community Right-to-
Know Act will continue to allow for the utilization of the
Combined Sewer Overflow Control Policy (under Sec. 402(q) of
the Clean Water Act) to the extent that the monitoring,
notification, and reporting requirements contained in the nine
minimum controls and long term control plan of an individual
publicly owned treatment works are not inconsistent with the
monitoring, notification, and reporting requirements of S.
2080. To the extent that an individual publicly owned treatment
works' nine minimum controls or long-term control plan either
does not include monitoring, notification, or reporting
requirements, or such monitoring, notification, or reporting
requirements are inconsistent with the requirements of S. 2080,
the monitoring, notification, or reporting requirements
contained in S. 2080, and the implementing regulations
promulgated by the Environmental Protection Agency shall apply.
Summary of Major Provisions of the Bill
S. 2080, the Sewage Overflow Community Right to Know Act
provides for a uniform, national standard for monitoring,
reporting, and public notification of municipal combined sewer
overflows and sanitary sewer overflows. The bill would require
publicly owned treatment works to with a Clean Water Act permit
to monitor sewer overflows. The bill would require the
notification of the public and public health officials under
certain circumstances occur as a result of an overflow event.
S. 2080 also contains reporting requirements related to
overflow events.
The bill would require the Administrator of the
Environmental Protection Agency (EPA) to conduct a rulemaking
that establishes a set of criteria to guide owners or operators
of publicly owned treatment works in assessing the potential
threats to human health from a sewer overflow. The rulemaking
would also develop criteria for communication measures to
notify the public, public health officials, and other affected
entities of overflow events. S. 2080 also provides for the
Administrator's approval of State notification programs and for
the Administrator's withdrawal of approval if certain
conditions are met.
S. 2080 also clarifies when the notification requirements
apply to the owner or operator of a treatment works and become
subject to the section 309 of the Clean Water Act. The bill
also clarifies key terms and authorizes financial assistance
for implementing requirements under this Act.
Section-by-Section Analysis
Section 1. Short title
This section designates the title of the bill as the
``Sewage Overflow Community Right-to-Know Act''.
Section 2. Definitions
This section amends the definitions section of the Clean
Water Act (section 502) to include definitions for the terms
``treatment works''.
Section 3. Monitoring, reporting, and public notification of sewer
overflows
This section amends section 402 of the Clean Water Act by
adding a new subsection (s) to provide a uniform, national
standard for monitoring, reporting, and public notification of
combined sewer overflows and sanitary sewer overflows.
Subsection (s)(1) requires that, not later than one year after
the date of enactment of this subsection, the Administrator
shall take such action as may be necessary to ensure that each
permit issued under this subsection for a publicly owned
treatment works shall require, at a minimum, that the owner or
operator of the treatment works implement the monitoring,
notification, and reporting requirements described in this
subsection.
The Committee intends the term ``publicly owned treatment
works'' to include those devices and systems included within
the term ``treatment works'', as defined by section 212 of the
Act, that are under the ownership or operational control of the
Federal Government, or a state or a municipality as such terms
are defined in section 502 of the Act. New subsection (s)(1)
does not include treatment works that are not owned or under
the operational control of the Federal Government, a state, or
a municipality. New subsection (s)(1) also does not require a
publicly owned treatment works to assume monitoring,
notification, and reporting responsibility for satellite
collection systems (portions of a sanitary sewer system) that
may be connected to, but are not owned or operated by the
publicly owned treatment works. The Committee notes that EPA's
draft SSO rule (January 2001) would have included satellite
collection systems within the scope of its authority. Satellite
collection systems account for a majority of sanitary sewer
overflows that occur throughout the nation. Although the bill
does not require a publicly owned treatment works to assume
monitoring, notification, and reporting responsibility for a
satellite collection system which is not owned or operated by
the treatment works, the Committee believes that implementation
of a monitoring, notification, and reporting program for
satellite collection systems would further the goals of the
Clean Water Act and the Sewage Overflow Community Right-to-Know
Act.
New subsection (s)(1)(A) requires the owner or operator of
a publicly owned treatment works to institute and utilize a
feasible methodology, technology, or management program to
alert the owner or operator of the publicly owned treatment
works to the occurrence of a sewer overflow in a timely manner.
The Sewage Overflow Community Right-to-Know Act does not
define the terms ``feasible'' and ``timely'', but directs the
Administrator to conduct a formal rulemaking to define such
terms under new subsection (s)(4). The Committee expects that
the implementation monitoring methodologies, technologies, or
management programs that meet the ``feasible'' and ``timely''
requirements will be reasonably sufficient to provide the owner
or operator with actual or constructive knowledge of the
presence of a sewer overflow.
The Committee does not intend new subsection (s)(1)(A) to
require the implementation of a technology-based system at
every treatment works to monitor for potential sewer overflows,
but allows individual publicly owned treatment works to utilize
appropriate methodologies, technologies, or management programs
that will alert the owner or operator of sewer overflows,
consistent with the Agency's regulations under new subsection
(s)(4). The Committee does intend that whatever approved
methodology, technology, or management program is utilized for
monitoring, that such methodology, technology, or management
program is fully-implemented and adequately maintained, funded,
or staffed, to ensure that the owner or operator is alerted to
the occurrence of a sewer overflow.
New subsection (s)(1)(B) and (C) require the owner or
operator of a publicly owned treatment works to provide notice
in the event of a sewer overflow. New subsection (s)(1)(B)
requires owners and operators to notify the public of a sewer
overflow that has the ``potential to affect human health'' as
soon as practicable, but not later than 24 hours after the time
the owner or operator knows of the overflow. New subsection
(s)(1)(C) requires owners or operators to immediately notify
public health authorities and other affected entities, such as
public water systems, of a sewer overflow that may imminently
and substantially endanger human health.
The Sewage Overflow Community Right-to-Know Act does not
define the terms ``potential to affect human health'' or
``imminently and substantially endanger human health'', but
directs the Administrator to conduct a formal rulemaking to
define such terms under new subsection (r)(4). The Committee
intends that the regulations promulgated by the Environmental
Protection Agency with respect to notification not preclude
States, municipalities, or individual publicly owned treatment
works from adopting more stringent notification requirements
than called for in S. 2080. The Committee intends to provide
States, municipalities, and individual publicly owned treatment
works with the maximum amount of flexibility for the adoption
of individually tailored notification programs, provided that
such programs meet the minimum standards called for in S. 2080,
including any regulations promulgated pursuant to the Sewage
Overflow Community Right-to-Know Act.
New subsection (s)(2)(A) provides a limited exception from
the notice requirement for a sewer overflow under (s)(1)(B) and
(s)(1)(C) that is limited to a wastewater backup into a single-
family residence. The Committee has provided this limited
exemption because, in practice, it is likely that residents of
the single-family residence will already know of the backup
into the residence, and in many cases, will likely have
provided notice to the owner or operator of the publicly owned
treatment works. The Committee felt that a limited exemption
from the notice was warranted to avoid the likelihood that the
residents of the single-family residence would notify the
publicly owned treatment works, only to be later notified by
the same treatment works as to the presence of the sewer
overflow. This exemption, however, does not apply to a sanitary
sewer overflow or municipal combined sewer overflow that is
released outside of a single-family residence, or to such
overflows in a residence that does not meet the definition of a
single-family residence found in new subsection (s)(7)(C). For
example, if a sewer overflow occurs in a multi-family
structure, such as an apartment building, condominium, or
dormitory, and the overflow reaches the common areas of such
structure (e.g., a common hallway, laundry facility, foyer, or
entryway), the owner or operator of the treatment works is
required to provide notice to appropriate persons under
subsections (s)(1)(B) and (s)(1)(C).
New subsections (s)(1)(D) and (s)(1)(E) require the owner
or operator of a publicly owned treatment works to report sewer
overflows to the Administrator or the State. New subsection
(s)(1)(D) requires an owner or operator to report each sewer
overflow on its discharge monitoring report, including
information on the magnitude, duration, and suspected cause of
the overflow, the steps taken or planned to reduce, eliminate,
or prevent the recurrence of the overflow, and the steps taken
or planned to mitigate the impact of the overflow. New
subsection (s)(1)(E) requires the owner or operator to report
the total number of sewer overflows that occur in a calendar
year, including specific details on the volume of wastewater
released per incident, the duration of each sewer overflow, the
location of the overflow and any potentially affected receiving
waters, the responses taken to clean up the overflow, and any
actions taken to mitigate the impacts of the overflow and to
avoid further future overflows at the site.
New subsection (s)(2)(B) provides a limited exemption from
the reporting requirements for the release of wastewater that:
(1) occurs in the course of maintenance of the treatment works;
(2) is managed consistently with the treatment works' best
management practices; and (3) is intended to prevent overflows.
The Committee has provided this limited exemption to address
routine maintenance of sewer systems, such as activities to
clear our sewer lines. The Committee intends this exemption to
be read narrowly, that it be limited to releases that are both
de minimus in terms of both duration and volume, and meet all
of the requirements listed in the exemption. The reporting
requirement exemption for (s)(1)(D) and (r)(1)(E) does not
include releases in connection with a ``bypass'' or ``upset'',
as those terms are defined in the Code of Federal Regulations
(40 CFR Sec. 122.41(m) and (n) (2006)).
New subsection (s)(3) requires individual States to provide
an annual summary report to the Administrator on sewer
overflows that occurred within the State.
New subsection (s)(4) directs the Administrator, within one
year of the date of enactment of the Sewage Overflow Community
Right-to-Know Act, to finalize and issue regulations to
implement new subsection(s), including regulations to provide
additional clarity on the terms ``feasible'', ``timely'',
``potential to affect human health'', and ``imminently and
substantially endanger human health''.
In defining the term ``feasible'', the Committee expects
the Administrator to consider: (1) the availability of a
monitoring technology, methodology, or management program; (2)
the ability of a technology, methodology, or management program
to reasonably detect the occurrence of a sewer overflow; (3)
the cost of implementing the technology, methodology, or
management program; (4) the designated use of potential
receiving waters; (5) the proximity of an overflow to a source
of drinking water or a recreation water; (6) the potential
public health implications of an overflow to the public, with
particular emphasis on susceptible populations; (7) the size of
the publicly owned treatment works; (8) the nature or quality
of pollutants contained in the raw waste load of the treatment
works wastewater; (9) the frequency, volume, and duration of
past sewer overflows by a particular publicly owned treatment
works; and (10) other factors that the Administrator considers
appropriate.
In defining the term ``timely'', the Committee expects the
Administrator to ensure that the owner or operator of the
publicly owned treatment work has knowledge of the sewer
overflow as quickly as practicable, depending upon the
monitoring technology, methodology, or management program
implemented by the owner or operator, and consistent with the
public health goals of the Sewage Overflow Community Right-to-
Know Act and goals of the Clean Water Act ``to restore and
maintain the chemical, and physical, and biological integrity
of the Nation's waters.''
New subsection (s)(4) directs the Administrator to include
site specific conditions within its regulatory definition for
the terms ``feasible'' and ``timely''.
New subsections (s)(5)(A) authorizes a State to submit to
the Administrator evidence that the State has in place a
legally enforceable notification program that is substantially
equivalent to the requirements of paragraph (1)(B) and (1)(C).
If the Administrator determines that the State's program
notification program is substantially equivalent, the
Administrator shall authorize the State to carry out its
program instead of the requirements of paragraphs (1)(B) and
(1)(C). In reviewing a State notification program, the
Administrator shall take into account: (1) the scope of sewer
overflows for which notification is required; (2) the length of
time during which notification must be made; (3) the scope of
persons who must be notified of sewer overflows; (4) the scope
of enforcement activities ensuring that notifications of sewer
overflows are made; and (5) such other factors as the
Administrator considers appropriate. The Committee believes
that the Administrator should heavily consider factors that
weigh in favor of protecting persons from potentially unsafe
exposures to pollutants.
New subsection (s)(5)(B) provides that if a State submits
evidence of a notification program 30 days or earlier than the
date on which the Administrator issues regulations under (1)(B)
and (1)(C), the requirements under paragraphs (1)(B) and (1)(C)
shall not apply to a publicly's owned treatment works located
in the State until the date on which the Administrator
completes a review of the notification program under
subparagraph (A)(ii).
New subsection (s)(5)(C) authorizes the Administrator to
withdraw a State's authorization of its program and to enforce
the requirements of (1)(B) and (1)(C) with respect to the
State. Before taking such action, the Administrator must
conduct a public health survey and determine that a State is
not administering and enforcing a State notification program
that is substantially equivalent to the requirements of
paragraphs (1)(B) and (1)(C). The Administrator must also
notify the State and allow a reasonable time, not to exceed 90
days from the date on which the State received such
notification, prior to withdrawing the State's authorization.
New subsection (s)(6) provides that on the 31st day after
the Administrator has issued regulations under paragraph
(s)(4), the requirements of (1)(B) and (1)(C) shall apply to
the owner or operator of a publicly owned treatment works and
be subject to enforcement under section 309. On this same day,
the requirements of (1)(B) and (1)(C) shall supersede any
notification requirements contained in a permit issued under
this section for the treatment works to the extent that the
notification requirements are less stringent than the
notification requirements of paragraphs (1)(B) and (1)(C).
These requirements will continue to apply until such date as a
permit is issued, renewed, or modified under this section in
accordance with paragraph (1).
New subsection (s)(7) defines the terms ``Sanitary Sewer
Overflow'', ``Sewer Overflow'' and ``Single-Family Residence''.
The term ``Sanitary Sewer Overflow'' means an overflow, spill,
release, or diversion of wastewater from a sanitary sewer
system.'' The term ``Sewer Overflow'' means a sanitary sewer
overflow or a municipal combined sewer overflow. The term
``single-family residence'' is defined as an individual
dwelling unit, including an apartment, condominium, house, or
dormitory, but specifically excludes common areas from multi-
dwelling structures. The definition for ``single-family
residence'' is utilized to define the scope of the limited
exemption for notice of sewer overflows found in subsections
(r)(1)(B) and (r)(1)(C). The definition of an SSO was moved
from Section 2 of this Act to Section 3 of this Act. This
change results in this definition of an SSO applying only to
the requirements of this Act, and not to the entire Federal
Water Pollution Control Act. Further, nothing in this
legislation changes the scope of which Sanitary or Combined
Sewer Overflows are prohibited under the Clean Water Act.
Sanitary Sewer Overflows that reach waters of the U.S. or that
violate individual permit conditions continue to be prohibited.
The monitoring and public notification required in this
legislation does not authorize discharges to waters of the U.S.
or other permit violations. Nor does anything in this
legislation preempt States and individual POTWs with monitoring
and notification requirements that are more stringent than this
legislation.
Section 4. Eligibility for assistance
This section amends sections 601(a) and 606(c) of the Clean
Water Act to authorize funding from the Clean Water State
Revolving Fund to be utilized for carrying out the monitoring
requirements of the Sewage Overflow Community Right-to-Know
Act.
Legislative History and Votes
LEGISLATIVE HISTORY
Senator Lautenberg introduced S. 2080 on September 20,
2007. On July 31, 2008, the Committee on Environment and Public
Works held a business meeting to consider the bill, and
considered and adopted by voice vote Senator Lautenberg's
amendment in the nature of a substitute to S. 2080. The
Subcommittee on Transportation Safety, Infrastructure Security,
and Water Quality held a hearing entitled ``Meeting America's
Wastewater Infrastructure Needs in the 21st Century'' on
September 19, 2007, and a hearing entitled ``Protecting Water
Quality at America's Beaches'' on June 27, 2007 at which sewage
overflow issues were discussed.
VOTES
On July 31, 2008, the Committee on Environment and Public
Works held a business meeting to consider S. 2080, among other
pieces of legislation. The Committee on Environment and Public
Works considered Senator Lautenberg's amendment in the nature
of a substitute to S. 2080. The Committee favorably adopted the
bill by a voice vote.
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee notes that the
Congressional Budget Office has found, ``[w]ithout knowing the
precise nature of the regulations that EPA would issue as a
result of this bill, CBO cannot make a precise estimate of the
costs of the mandates.'' However, CBO noted, ``S. 2080 contains
no new private-sector mandates as defined in UMRA.''
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee notes that the Congressional
Budget Office found that ``S. 2080 contains several
intergovernmental mandates as defined in the Unfunded Mandates
Reform Act (UMRA).'' They continued that ``CBO cannot make a
precise estimate of the costs of the mandates. Based on
information from affected entities, however, we estimate that
the costs of the mandates could exceed the threshold
established in UMRA.'' However, CBO found that ``S. 2080
contains no new private-sector mandates as defined in UMRA.''
Congressional Budget Office Estimate
September 23, 2008.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2080, the Sewage
Overflow Community Right-to-Know Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Susanne S.
Mehlman (for federal costs), and Burke Doherty (for the state
and local impact).
Sincerely,
Peter R. Orszag.
Enclosure.
S. 2080--Sewage Overflow Community Right-to-Know Act
S. 2080 would require owners and operators of publicly
owned sewage treatment plants to notify federal and state
agencies and the public in a timely manner of any sewer
overflows. Under this legislation, the Environmental Protection
Agency (EPA) would be required to develop regulations
establishing guidelines for the notifications. The legislation
also would expand the types of activities that are eligible to
receive funds from the Clean Water State Revolving Fund.
Based on information from EPA, CBO estimates that
implementing this legislation would cost about $1 million in
2009 and less than $500,000 in subsequent years, subject to the
availability of appropriations. Enacting the bill would not
affect direct spending or receipts.
S. 2080 contains several intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA).
Specifically, the bill would require treatment plants to:
<bullet> Institute and utilize a monitoring program
for sewer overflows, including combined sewer overflows
(CSOs) and sanitary sewer overflows (SSOs);
<bullet> Notify the public of a sewer overflow within
24 hours;
<bullet> Notify public health authorities and other
affected entities, such as public water systems, if
there is an imminent and substantial risk to human
health due to a sewer overflow;
<bullet> Provide an oral or electronic report of an
overflow within 24 hours to the state or to the
Administrator of EPA and a more-detailed written report
within five days;
<bullet> Report each sewer overflow on its monthly
discharge monitoring report to EPA or the treatment
plant's state. This report must include the magnitude,
cause, and mitigation efforts for the specific
overflows; and
<bullet> Submit an annual report to EPA or the state
on the number of overflows in a calendar year,
including the details of magnitude, duration, location,
potentially affected receiving waters, and mitigation
efforts. If a state receives a report under this
requirement, that state must submit to EPA a summary of
the report.
Without knowing the precise nature of the regulations that
EPA would issue as a result of this bill, CBO cannot make a
precise estimate of the costs of the mandates. Based on
information from affected entities, however, we estimate that
the costs of the mandates could exceed the threshold
established in UMRA. The bill's new requirements would involve
additional personnel costs and could necessitate new
infrastructure and engineering expertise. According to EPA and
the National Association of Clean Water Agencies (NACWA), over
16,000 treatment plants operate in the United States, and each
of those entities could be affected by the permitting
requirements in S. 2080. Infrastructure changes, if required by
the regulations, could be particularly expensive. Given the
large number of affected entities, even a small increase in
additional costs (less than $4,500 per entity annually) would
result in costs that exceed the threshold for intergovernmental
mandates ($68 million in 2008, adjusted annually for
inflation). The bill also would expand the types of activities
eligible to receive funds from the Clean Water State Revolving
Fund to include the monitoring requirements discussed above.
S. 2080 contains no new private-sector mandates as defined
in UMRA.
On June 11, 2008, CBO transmitted a cost estimate for H.R.
2452, a bill to amend the Federal Water Pollution Control Act
to ensure that sewage treatment plants monitor for and report
discharges of sewage, as ordered reported by the House
Committee on Transportation and Infrastructure on May 15, 2008.
H.R. 2453 and this legislation are nearly identical and the
estimated costs for both bills are the same.
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs), and Burke Doherty (for the state
and local impact). This estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
MINORITY VIEWS
Sanitary Sewer Overflows, or SSO's, are a real concern
throughout the United States. I agree that S. 2080, the
``Sewage Right-to-Know Act,'' is well-intentioned in its aim to
inform the public when there's a potential health risk from raw
sewage contaminating public spaces. However, communities
continue to struggle with many other federal mandates but lack
the financial resources to necessary improvements to their
facilities. That is why I oppose this bill.
Congress must recognize that by only increasing federal
mandates without appropriate funding, communities and their
residents will become increasingly vulnerable to lawsuits and
extensive rate hikes that will not result in substantially
improved water quality. I firmly believe that communities want
their facilities to function properly if they had the financial
and technical wherewithal. The populations most vulnerable to
new federal regulations tend to be lower income residents in
rural communities. Unfortunately, this bill does not properly
address this disparity and has the potential to negatively
impact rural communities disproportionately.
This legislation requires the Administrator to define the
terms ``feasible'' and ``timely'' without Congressional
direction. The term ``feasible'' should explicitly reflect
individual needs and constraints of a local community,
including the financial ability of a local tax base, the access
to adequate technical assistance, other federal financial
requirements on the particular community (i.e. drinking water
regulations), and access to federal and state funding for
compliance. Without these particular issues contemplated by the
Administrator, the term ``feasible'' will not adequately
address the inequitable hardship on rural and disadvantaged
communities as a result of unfunded mandates.
Rather than apply a new federal mandate, Congress should
reauthorize and increase appropriations for the Clean Water
State Revolving Loan Fund. I'm extremely disappointed that this
Congress has failed to pass a clean water infrastructure bill
in time for passage out of both chambers to be sent to the
President of the United States' desk. However, it is important
to note that State Revolving Loan Funds should be used strictly
for capital improvements and not for operations and
maintenance, including operations and maintenance of a
monitoring and reporting program.
James M. Inhofe.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, existing law in which no change is proposed is shown in
roman:
* * * * * * *
----------
* * * * * * *
Sec. 401. (a)(1)* * *
* * * * * * *
Sec. 402. (a)(1) Except as provided in sections 318 and 404
of this Act, the Administrator may, after opportunity for
public hearing, issue a permit for the discharge of any
pollutant, or combination of pollutants, notwithstanding
section 301(a), upon condition that such discharge will meet
either (A) all applicable requirements under sections 301, 302,
306, 307, 308, and 403 of this Act, or (B) prior to the taking
of necessary implementing actions relating to all such
requirements, such conditions as the Administrator determines
are necessary to carry out the provisions of this Act.
(2) * * *
* * * * * * *
(s) Sewer Overflow Monitoring, Reporting, and
Notifications--
(1) General requirements.--After the last day of the
180-day period beginning on the date on which
regulations are issued under paragraph (4), a permit
issued, renewed, or modified under this section by the
Administrator or the State, as the case may be, for a
publicly owned treatment works shall require, at a
minimum, beginning on the date of the issuance,
modification, or renewal, that the owner or operator of
the treatment works--
(A) institute and utilize a feasible
methodology, technology, or management program
for monitoring sewer overflows to alert the
owner or operator to the occurrence of a sewer
overflow in a timely manner;
(B) in the case of a sewer overflow that has
the potential to affect human health, notify
the public of the overflow as soon as
practicable but not later than 24 hours after
the time the owner or operator knows of the
overflow;
(C) in the case of a sewer overflow that may
imminently and substantially endanger human
health, notify public health authorities and
other affected entities, such as public water
systems, of the overflow immediately after the
owner or operator knows of the overflow;
(D) report each sewer overflow on its
discharge monitoring report to the
Administrator or the State, as the case may be,
by describing--
(i) the magnitude, duration, and
suspected cause of the overflow;
(ii) the steps taken or planned to
reduce, eliminate, or prevent
recurrence of the overflow; and
(iii) the steps taken or planned to
mitigate the impact of the overflow;
and
(E) annually report to the Administrator or
the State, as the case may be, the total number
of sewer overflows in a calendar year,
including--
(i) the details of how much
wastewater was released per incident;
(ii) the duration of each sewer
overflow;
(iii) the location of the overflow
and any potentially affected receiving
waters;
(iv) the responses taken to clean up
the overflow; and
(v) the actions taken to mitigate
impacts and avoid further sewer
overflows at the site.
(2) Exceptions.--
(A) Notification requirements.--The
notification requirements of paragraphs (1)(B)
and (1)(C) shall not apply a sewer overflow
that is a wastewater backup into a single-
family residence.
(B) Reporting requirements.--The reporting
requirements of paragraphs (1)(D) and (1)(E)
shall not apply to a sewer overflow that is a
release of wastewater that occurs in the course
of maintenance of the treatment works, is
managed consistently with the treatment works'
best management practices, and is intended to
prevent sewer overflows.
(3) Report to epa.--Each State shall provide to the
Administrator annually a summary of sewer overflows
that occurred in the State.
(4) Rulemaking by epa.--Not later than one year after
the date of enactment of this subsection, the
Administrator, after providing notice and an
opportunity for public comment, shall issue regulations
to implement this subsection, including regulations
to--
(A) establish a set of criteria to guide the
owner or operator of a publicly owned treatment
works in--
(i) assessing whether a sewer
overflow has the potential to affect
human health or may imminently and
substantially endanger human health;
and
(ii) developing communication
measures that are sufficient to give
notice under paragraphs (1)(B) and
(1)(C); and
(B) define the terms ``feasible'' and
``timely'' as such terms apply to paragraph
(1)(A), including site specific conditions.
(5) Approval of state notification programs.--
(A) Requests for approval.--
(i) In general.--After the date of
issuance of regulations under paragraph
(4), a State may submit to the
Administrator evidence that the State
has in place a legally enforceable
notification program that is
substantially equivalent to the
requirements of paragraphs (1)(B) and
(1)(C).
(ii) Program review and
authorization.--If the evidence
submitted by a State under clause (i)
shows the notification program of the
State to be substantially equivalent to
the requirements of paragraphs (1)(B)
and (1)(C), the Administrator shall
authorize the State to carry out such
program instead of the requirements of
paragraphs (1)(B) and (1)(C).
(iii) Factors for determining
substantial equivalency.--In carrying
out a review of a State notification
program under clause (ii), the
Administrator shall take into account
the scope of sewer overflows for which
notification is required, the length of
time during which notification must be
made, the scope of persons who must be
notified of sewer overflows, the scope
of enforcement activities ensuring that
notifications of sewer overflows are
made, and such other factors as the
Administrator considers appropriate.
(B) Review period.--If a State submits
evidence with respect to a notification program
under subparagraph (A)(i) on or before the last
day of the 30-day period beginning on the date
of issuance of regulations under paragraph (4),
the requirements of paragraphs (1)(B) and
(1)(C) shall not begin to apply to a publicly
owned treatment works located in the State
until the date on which the Administrator
completes a review of the notification program
under subparagraph (A)(ii).
(C) Withdrawal of authorization.--If the
Administrator, after conducting a public
hearing, determines that a State is not
administering and enforcing a State
notification program authorized under
subparagraph (A)(ii) in accordance with the
requirements of this paragraph, the
Administrator shall so notify the State and, if
appropriate corrective action is not taken
within a reasonable time, not to exceed 90
days, the Administrator shall withdraw
authorization of such program and enforce the
requirements of paragraphs (1)(B) and (1)(C)
with respect to the State.
(6) Special rules concerning application of
notification requirements.-- After the last day of the
30-day period beginning on the date of issuance of
regulations under paragraph (4), the requirements of
paragraphs (1)(B) and (1)(C) shall--
(A) apply to the owner or operator of a
publicly owned treatment works and be subject
to enforcement under section 309, and
(B) supersede any notification requirements
contained in a permit issued under this section
for the treatment works to the extent that the
notification requirements are less stringent
than the notification requirements of
paragraphs (1)(B) and (1)(C),
until such date as a permit is issued, renewed, or
modified under this section for the treatment works in
accordance with paragraph (1).
(7) Definitions.--In this subsection, the following
definitions apply:
(A) Sanitary sewer overflow.--The term
``sanitary sewer overflow'' means an overflow,
spill, release, or diversion of wastewater from
a sanitary sewer system. Such term does not
include municipal combined sewer overflows or
other discharges from a municipal combined
storm and sanitary sewer system and does not
include wastewater backups into buildings
caused by a blockage or other malfunction of a
building lateral that is privately owned. Such
term includes overflows or releases of
wastewater that reach waters of the United
States, overflows or releases of wastewater in
the United States that do not reach waters of
the United States, and wastewater backups into
buildings that are caused by blockages or flow
conditions in a sanitary sewer other than a
building lateral.
(B) Sewer overflow.--The term ``sewer
overflow'' means a sanitary sewer overflow or a
municipal combined sewer overflow.
(C) Single-family residence.--The term
``single-family residence'' means an individual
dwelling unit, including an apartment,
condominium, house, or dormitory. Such term
does not include the common areas of a multi-
dwelling structure.
* * * * * * *
SEC. 601. GRANTS TO STATES FOR ESTABLISHMENT OF REVOLVING FUNDS.
(a) General Authority.--Subject to the provisions of this
title, the Administrator shall make capitalization grants to
each State for the purpose of establishing a water pollution
control revolving fund for providing assistance (1) for
construction of treatment works (as defined in section 212 of
this Act) which are publicly owned, (2) for implementing a
management program under section 319, [and] (3) for developing
and implementing a conservation and management plan under
section 320, and (4) for the implementation of requirements to
monitor for sewer overflows under section 402.
* * * * * * *
SEC. 603. WATER POLLUTION CONTROL REVOLVING LOAN FUNDS. \1\
(a) * * *
* * * * * * *
(c) Projects Eligible for Assistance.--The amounts of funds
available to each State water pollution control revolving fund
shall be used only for providing financial assistance (1) to
any municipality, intermunicipal, interstate, or State agency
for construction of publicly owned treatment works (as defined
in section 212 of this Act), (2) for the implementation of a
management program established under section 319 of this Act,
[and] (3) for development and implementation of a conservation
and management plan under section 320 of this Act, and (4) for
the implementation of requirements to monitor for sewer
overflows under section 402. The fund shall be established,
maintained, and credited with repayments, and the fund balance
shall be available in perpetuity for providing such financial
assistance.
* * * * * * *
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