The EPA is cracking down on municipalities with sewer system overflow to prevent further water pollution at a hefty price
By Richard E. Glaze, Jr.
A key part of the nation’s degrading infrastructure that is often ignored is the country’s aging municipal sewer systems. As sewer collection and treatment systems degrade, they experience overflow and bypass conditions from excess precipitation, insufficient capacity, and structural problems. When the overflows reach nearby water bodies, they draw the attention of the EPA and state environmental regulators, and may result in enforcement actions. For years, the EPA has targeted larger cities with enforcement actions requiring extensive and costly sewer rehabilitation projects. The EPA is now imposing these costly requirements on smaller municipalities, which are increasingly being required to take on expensive, long-term rehabilitation obligations.
Upon discovering a system with substantial sewer overflows, the EPA will often commence an enforcement action that alleges the overflows violate the Clean Water Act; this means that the contaminated water has reached rivers or other water bodies and either constitutes direct violations of the Act or violations of permits issued for the sewage treatment system. To resolve violations for systems with chronic, widespread overflows, the EPA will typically require extensive rehabilitation of that sewer collection and treatment system and impose penalties for past leaks and overflows. To encourage settlement, the EPA offers to compromise on penalties if the municipality agrees to undertake the rehabilitation work. The agreement is typically memorialized in a judicially monitored consent decree. A sewer system operator that refuses to cooperate is subject to being sued by the government, which can result in much higher penalties and being required to implement the corrective action on terms dictated by the Department of Justice.
The biggest challenge faced by a sewer system operator targeted by the EPA is agreeing on settlement terms that satisfy the EPA’s rehabilitation requirements on a satisfactory timetable, but does not impose undue burdens on ratepayers. Typical consent decrees require that the municipality first assess and then repair the sewer system in a sustainable manner that will ensure adequate system capacity for the foreseeable future. To this end, the consent decree will require implementation of what EPA calls a Capacity, Management, Operation, and Maintenance (CMOM) program; this program provides a framework system for operators to manage, operate, and maintain collection systems as well as investigate capacity-constrained areas of the collection system and respond to SSOs. In CMOM planning, the municipality selects performance goals and designs CMOM activities to meet those goals; these activities include operation and maintenance planning, capacity assessment and assurance, capital improvement planning, and financial management planning. Activities are assessed on an on-going basis to determine if performance goals are being met and to allow adjustments of the goals as needed.
Other consent decree requirements include sewer mapping, sewer system operations modeling, information management, and enforcement mechanisms for the municipality to ensure that its ratepayers’ actions do not undermine the operator’s remedial efforts. For example, a municipality must be able to enforce a fats, oil, and grease program to control discharges of grease into the sewer, which is a perennial cause of sewer blockages.
The cost of settling a sewer system case depends on the size of the system and its condition. For example, a town with a population of 50,000 might face remedial costs approaching $100 million and penalties of up to $1 million. This financial burden falls directly on ratepayers, and there is little to no federal money available to defray the costs. Instead, settlements are typically funded with state revolving fund loans and private bond financing. The EPA recognizes the burdens imposed by the high costs and allows operators to submit a “financial capability analysis” that can be used to justify an extended compliance timetable to reduce the impacts on ratepayers.
The negotiation and settlement of a substantial sewer enforcement matter requires a team approach. Critical team members include the municipality’s decision-makers, an environmental consultant to address technical matters, a financial consultant for the affordability analysis, and one or more attorneys to advise the municipality and negotiate with the regulators. A city attorney or other trusted local counsel is often useful for facilitating the municipality’s decision-making and for serving as a liaison.
As EPA and state regulators continue their push to stop excessive water pollution from sewer collection systems, municipalities should be mindful of the potential for expensive enforcement actions lurking on the horizon and should consider proactively addressing these issues on their own terms to avoid being forced to do so by regulators.
Richard E. Glaze, Jr. is a partner in Balch & Bingham’s Environmental & Natural Resources Section in Atlanta. He is a former Senior Associate Regional Counsel at the U.S. Environmental Protection Agency. He may be reached at firstname.lastname@example.org.