40 CFR § 122.38 - Public notification requirements for CSO discharges to the Great Lakes Basin.

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§ 122.38 Public notification requirements for CSO discharges to the Great Lakes Basin.

(a) All permittees authorized to discharge a combined sewer overflow (CSO) to the Great Lakes Basin (“Great Lakes Basin CSO permittee”) must provide public notification of CSO discharges as described in this paragraph (a) after November 7, 2018. Public notification shall consist of:

(1) Signage.

(i) The Great Lakes Basin CSO permittee shall ensure that there is adequate signage where signage is feasible at:

(A) CSO discharge points (unless the permittee demonstrates to the Director that no public access of, or public contact with, the receiving water is expected); and

(B) Potentially impacted public access areas.

(ii) At a minimum, signs shall include:

(A) The name of the Great Lakes Basin CSO permittee;

(B) A description of the discharge (e.g., untreated human sewage, treated wastewater) and notice that sewage may be present in the water; and

(C) The Great Lakes Basin CSO permittee contact information, including a telephone number, NPDES permit number and CSO discharge point number as identified in the NPDES permit.

(iii) The Great Lakes Basin CSO permittee shall perform periodic maintenance of signs to ensure that they are legible, visible and factually correct.

(iv) Where a permittee has before August 7, 2018 installed a sign at a CSO discharge point or potentially impacted public access area that is consistent with State requirements, the sign is not required to meet the minimum requirements specified in paragraph (a)(1)(ii) of this section until the sign is replaced.

(2) Notification of local public health department and other potentially affected public entities.

(i) As soon as possible, but no later than four (4) hours after becoming aware by monitoring, modeling or other means that a CSO discharge has occurred, the Great Lakes Basin CSO permittee shall provide initial notice of the CSO discharge to the local public health department (or if there is no local health department, to the State health department), any potentially affected public entities (such as municipalities, public drinking water utilities, State and county parks and recreation departments), and Indian Tribes whose waters may be impacted. Such initial notice shall, at a minimum, include the following information:

(A) The water body that received the discharge(s);

(B) The location of the discharge(s) and identification of the public access areas potentially impacted by the discharge. Where CSO discharges from the same system occur at multiple locations during the same precipitation-related event, the Great Lakes Basin CSO permittee may provide a description of the area in the waterbody where discharges are occurring and identification of the public access areas potentially impacted by the discharge, and the permittee is not required to identify the specific location of each discharge;

(C) The date(s) and time(s) that the discharge(s) commenced or the time the permittee became aware of the discharge(s) or when discharges are expected to occur;

(D) Whether, at the time of the notification, the discharge(s) is continuing or has ended. If the discharge(s) has ended, the approximate time that the discharge ended; and

(E) A point of contact for the CSO permittee.

(ii) Within seven (7) days after becoming aware by monitoring, modeling or other means that the CSO discharge(s) has ended, the Great Lakes Basin CSO permittee shall provide the following supplemental information to the public health department and affected public entities and Indian Tribes receiving the initial notice under paragraph (a)(2)(i) of this section unless the information had been provided in an earlier notice:

(A) The measured or estimated volume of the discharge(s). Where CSO discharges from the same system occur at multiple locations during the same precipitation-related event, the Great Lakes Basin CSO permittee may provide an estimate of the cumulative volume discharged to a given waterbody; and

(B) The approximate time that the discharge(s) ended.

(3) Notification of the public.

(i) As soon as possible, but no later than four (4) hours after becoming aware by monitoring, modeling or other means that a CSO discharge has occurred, the Great Lakes Basin CSO permittee shall provide public notification of CSO discharges. The Great Lakes Basin CSO permittee shall provide public notification of CSO discharges electronically, such as by text, email, social media alerts to subscribers or by posting a notice on its public access website, and, if appropriate, by other means (e.g., newspaper, radio, television). If a permittee's public notification plan identifies circumstances and physical action needed to limit the public health impacts of the CSO discharge by controlling the CSO discharge (including continuing to implement its existing practice of conducting inspections of CSO discharge points during the discharge), and all available staff are required to complete this action, the four-hour notification window will commence upon completion of that action.

(ii) At a minimum, the notice shall include:

(A) The water body that received the discharge(s);

(B) The location of the discharge(s) and identification of the public access areas potentially impacted by the discharge. Where CSO discharges from the same system occur at multiple locations during the same precipitation-related event, the Great Lakes Basin CSO permittee may provide a description of the area in the waterbody where discharges are occurring and identification of the public access areas potentially impacted by the discharge, and the permittee is not required to identify the specific location of each discharge;

(C) The date(s) and time(s) that the discharge(s) commenced or the time the permittee became aware of the discharge(s); and

(D) Whether, at the time of the notification, the discharge(s) is continuing or has ended. If the discharge(s) has ended, the approximate time that the discharge(s) ended.

(iii) Within seven (7) days after becoming aware by monitoring, modeling or other means that the CSO discharge(s) has ended, the Great Lakes Basin CSO permittee shall update the electronic notice with the following information unless the information had been provided in an earlier notice:

(A) The measured or estimated volume of the discharge(s). Where CSO discharges from the same system occur at multiple locations during the same precipitation-related event, the Great Lakes Basin CSO permittee may provide an estimate of the cumulative volume discharged to a given waterbody; and

(B) The approximate time that the discharge(s) ended, unless this information was provided in an earlier notice.

(b) Annual notice. Starting in February 7, 2019, by May 1 of each calendar year (or an alternative date specified by the Director), any permittees authorized to discharge a CSO to the Great Lakes Basin shall make available to the public an annual notice describing the CSO discharges from its discharge point(s) that occurred in the previous calendar year and shall provide the Director and EPA with notice of how the annual notice is available. Notice to EPA shall be in the form of an email to NPDES_CSO@epa.gov containing a link to the annual notice and the contact information (name, title, phone number, email) of the person responsible for maintaining the website, or alternative information about how the annual notice is available if it is not on a website; if the permittee is emailing the Director with this information, the permittee may copy EPA on that email to meet this requirement. Permittees that are owners or operators of a satellite collection system with one or more CSO discharge points shall provide the annual notice to the public and a copy of the annual notice to the operator of the POTW treatment plant providing treatment for its wastewater. For permittees whose State permitting authority has published or will publish an annual report containing all of the below minimum information (listed at paragraphs (b)(1) through (8) of this section) about the Permittee, the Permittee may choose to make available the State-issued annual report in order to meet this requirement. If permittees have existing report(s) that are written annually that collectively contain all of the below minimum information (listed at paragraphs (b)(1) through (8) of this section), then the Permittee may choose to make that/those report(s) publicly available in order to meet this requirement. At a minimum, the annual notice shall include:

(1) A description of the location and receiving water for each CSO discharge point, and, if applicable, any treatment provided;

(2) The date, location, approximate duration, measured or estimated volume, and cause (e.g., rainfall, snowmelt) of each wet weather CSO discharge that occurred during the past calendar year. Where CSO discharges from the same system occur at multiple locations during the same precipitation-related event, the Great Lakes Basin CSO permittee may provide an estimate of the cumulative volume discharged to a given waterbody;

(3) The date, location, duration, volume, and cause of each dry weather CSO discharge that occurred during the past calendar year;

(4) A summary of available monitoring data for CSO discharges from the past calendar year;

(5) A description of any public access areas potentially impacted by each CSO discharge;

(6) Representative precipitation data in total inches to the nearest 0.1 inch that resulted in a CSO discharge, if precipitation was the cause of the discharge identified in (§ 122.38(b)(2));

(7) Permittee contact information, if not listed elsewhere on the website where this annual notice is provided; and

(8) A concise summary of implementation of the nine minimum controls and the status of implementation of the long-term CSO control plan (or other plans to reduce or prevent CSO discharges), including:

(i) A description of key milestones remaining to complete implementation of the plan; and

(ii) A description of the average annual number of CSO discharges anticipated after implementation of the long-term control plan (or other plan relevant to reduction of CSO overflows) is completed.

(c) Public notification plan. The Great Lakes Basin CSO permittee shall develop a public notification plan that describes how the Great Lakes Basin CSO permittee will ensure that the public receives adequate notification of CSO occurrences and CSO impacts. The Great Lakes Basin CSO permittee must provide notice of the availability of the plan, for instance on the permittee's website (if it has a website), and periodically provide information on how to view the notification plan, such as in bill mailings and by other appropriate means. The Great Lakes Basin CSO permittee must submit its public notification plan to the Director by August 7, 2018 and as part of a permit application under § 122.21(j)(8)(iii). The plan must:

(1) Identify the location of signs required under paragraph (a)(1) of this section and the location of any CSO discharge point where a sign is not provided. Where a sign has not been provided at a CSO discharge point, the plan shall explain why a sign at that location is not feasible or was otherwise determined to not be necessary.

(2) Describe the message used on signs required under paragraph (a)(1) of this section;

(3) Describe protocols for maintaining signage (e.g., inspections at set intervals);

(4) Identify (with points of contact) the municipalities, public drinking water supplies, public parks with water access, Indian Tribe(s), and describe other sensitive area(s) identified in the permittee's long-term CSO control plan, that may be impacted by the permittee's CSO discharges;

(5) Summarize significant comments and recommendations raised by the local public health department under paragraph (d) of this section;

(6) Identify other affected public entities and Indian Tribes whose waters may be impacted by a CSO discharge that were contacted under paragraph (d) of this section and provide a summary of their significant comments and recommendations;

(7) Describe protocols for the initial and supplemental notice to public health departments and other public entities;

(8) Describe protocols for the initial and supplemental notice to the public; this shall include a description of circumstances under which the initial notification of the public may be delayed beyond four hours of the permittee becoming aware of the discharge, which shall only include circumstances where a physical action is needed to limit the public health impacts of a CSO discharge by controlling the CSO discharge (including continuing to implement its existing practice of conducting inspections of CSO discharge points during the discharge), and all available staff are required to complete this action, and, therefore, are not available to initiate the initial notification until this action is complete;

(9) Describe, for each CSO discharge point, how the volume and duration of CSO discharges shall be either measured or estimated for the purposes of complying with paragraphs (a)(2)(ii)(A), (a)(3)(iii)(A) and (b)(2) and (3) of this section. If the Great Lakes Basin CSO permittee intends to use a model to estimate discharge volumes and durations, the plan must summarize the model and describe how the model was or will be calibrated. CSO permittees that are a municipality or sewer district with a population of 75,000 or more must assess whether re-calibration of their model is necessary, and recalibrate if necessary, at least once every 5 years;

(10) Describe protocols for making the annual notice described in paragraph (b) of this section available to the public and to the Director; and

(11) Describe significant modifications to the plan that were made since it was last updated.

(d) Seek input on public notification plan. Prior to submitting the public notification plan, or resubmitting under § 122.21(j)(8)(iii), the Great Lakes Basin CSO permittee must:

(1) Seek input from the local public health department (or if there is no local health department, the State health department), to:

(i) Develop recommended protocols for providing notification of CSO discharges to the public health department. The protocols will specify which CSO discharges are subject to notification, the means of notification, timing of notification and other relevant factors.

(ii) Develop recommendations for providing notice to the general public of CSO discharges electronically and by other appropriate means.

(iii) Develop recommendations for areas that would be considered “potentially impacted public access areas” as referenced in § 122.38(a)(1), (2), and (3).

(2) Seek input from other potentially affected public entities and Indian Tribes whose waters may be impacted by a CSO discharge.

(3) Consider the recommendations of the public health department and other potentially affected entities in developing protocols in its public notification plan for providing notification of CSO discharges to the public health department and potentially affected public entities and Indian Tribes.

(e) Extending compliance to avoid undue economic hardship. The Director may extend the compliance dates in paragraphs (a), (b), and (c) of this section for individual communities if the Director determines the community needs additional time to comply in order to avoid undue economic hardship. Where the Director extends the compliance date of any of these requirements for a community, the Director shall notify the Regional Administrator of the extension and the reason for the extension. The Director shall post on its website a notice that includes the name of the community and the new compliance date(s). The notice shall remain on the Director's website until the new compliance date.

[83 FR 730, Jan. 8, 2018]