1. BACWA Wet Weather Management Workshop Spill Notification Requirements Melissa Thorme Downey Brand LLP Sacramento, CA 916-444-1000mthorme@downeybrand.com

2. STATE WATER RESOURCES CONTROL BOARD ORDER NO. 2006-0003-DWQ STATEWIDE GENERAL WASTE DISCHARGE REQUIREMENTS FOR SANITARY SEWER SYSTEMS

3. May 2006 SSO WDR Applies to all public entities that own or operate sanitary sewer systems greater than one mile. Applies to all public entities that own or operate sanitary sewer systems greater than one mile. Recognizes many SSOs are preventable (and implicitly that some are not). Recognizes many SSOs are preventable (and implicitly that some are not). Defined SSO very broadly. Defined SSO very broadly.

4. Sanitary Sewer Overflow (SSO) Any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from a sanitary sewer system. SSOs include: Any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from a sanitary sewer system. SSOs include: (i) Overflows or releases of untreated or partially treated wastewater that reach waters of the United States; (i) Overflows or releases of untreated or partially treated wastewater that reach waters of the United States; (ii) Overflows or releases of untreated or partially treated wastewater that do not reach waters of the United States; and (ii) Overflows or releases of untreated or partially treated wastewater that do not reach waters of the United States; and (iii) Wastewater backups into buildings and on private property that are caused by blockages or flow conditions within the publicly owned portion of a sanitary sewer system. (iii) Wastewater backups into buildings and on private property that are caused by blockages or flow conditions within the publicly owned portion of a sanitary sewer system.

5. SSO WDR General Requirements Among other things, the Enrollee must: Comply with all conditions of this Order. Comply with all conditions of this Order. Take all feasible steps to eliminate SSOs. Take all feasible steps to eliminate SSOs. Take all feasible steps to prevent untreated or partially treated wastewater from discharging. Take all feasible steps to prevent untreated or partially treated wastewater from discharging.

6. “Feasible” No adopted definition of “feasible” No adopted definition of “feasible” However, the definition of “infeasible” by the SWRCB in the State Implementation Policy: However, the definition of “infeasible” by the SWRCB in the State Implementation Policy: “not capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.”

7. Enforcement Considerations Whether the discharge was exceptional, unintentional, temporary, and caused by factors beyond the reasonable control of the Enrollee. Whether the discharge was exceptional, unintentional, temporary, and caused by factors beyond the reasonable control of the Enrollee. No feasible alternatives to the discharge. No feasible alternatives to the discharge. The discharge could have been prevented by the exercise of reasonable control. The discharge could have been prevented by the exercise of reasonable control. The Enrollee has complied with the requirements of this Order, including requirements for reporting and developing and implementing a SSMP. The Enrollee has complied with the requirements of this Order, including requirements for reporting and developing and implementing a SSMP.

8. Notification Requirements All SSOs must be reported in accordance with Section G of the general WDRs. All SSOs must be reported in accordance with Section G of the general WDRs. Overflow Emergency Response Plan - Each Enrollee shall develop and implement an overflow emergency response plan that identifies measures to protect public health and the environment. At a minimum, this plan must include the following: Overflow Emergency Response Plan - Each Enrollee shall develop and implement an overflow emergency response plan that identifies measures to protect public health and the environment. At a minimum, this plan must include the following: (a) Proper notification procedures so that the primary responders and regulatory agencies are informed of all SSOs in a timely manner; …

9. Timing of Reporting Requirements Different timing requirements by Region. Different timing requirements by Region. Reporting Program Section G Reporting Program Section G RWQCBs 4, 8, and 9 - 8 months after WDRs Adoption (May 2006) RWQCBs 4, 8, and 9 - 8 months after WDRs Adoption (May 2006) RWQCBs 1, 2, and 3 - 12 months after WDRs Adoption RWQCBs 1, 2, and 3 - 12 months after WDRs Adoption RWQCBs 5, 6, and 7 - 16 months after WDRs Adoption RWQCBs 5, 6, and 7 - 16 months after WDRs Adoption All regions should have adopted programs by Sept. of 2007. All regions should have adopted programs by Sept. of 2007.

10. Regulatory Notifications The Overflow Emergency Response Plan must include: The Overflow Emergency Response Plan must include: (c) Procedures to ensure prompt notification to appropriate regulatory agencies and other potentially affected entities (e.g. health agencies, Regional Water Boards, water suppliers, etc.) of all SSOs that potentially affect public health or reach the waters of the State in accordance with the MRP. All SSOs shall be reported in accordance with this MRP, the California Water Code, other State Law, and other applicable Regional Water Board WDRs or NPDES permit requirements. The SSMP should identify the officials who will receive immediate notification;

11. Water Code Requirements Section 13271: For sewage spills, immediately notify OES as soon as: Section 13271: For sewage spills, immediately notify OES as soon as: (A) that person has knowledge of the discharge; (B) notification is possible; and (C) notification can be provided without substantially impeding cleanup or other emergency services. Then OES to notify the Regional Board and local health officers.

12. The Steps After an SSO The Enrollee shall implement all remedial actions to the extent they may be applicable to the discharge and not inconsistent with an emergency response plan, including the following: The Enrollee shall implement all remedial actions to the extent they may be applicable to the discharge and not inconsistent with an emergency response plan, including the following: (i) Interception and rerouting of untreated or partially treated wastewater flows around the wastewater line failure; (ii) Vacuum truck recovery of sanitary sewer overflows and wash down water; (iii) Cleanup of debris at the overflow site; (iv) System modifications to prevent another SSO at the same location; (v) Adequate sampling to determine the nature and impact of the release; and (vi) Adequate public notification to protect the public from exposure to the SSO.

13. In February 2008: The SWRCB’s Executive Director made the following finding: The SWRCB’s Executive Director made the following finding: “…the burden of providing a notification as soon as possible is de minimis and will allow response agencies to take action as soon as possible to protect public health and safety and beneficial uses of the waters of the state.” “…the burden of providing a notification as soon as possible is de minimis and will allow response agencies to take action as soon as possible to protect public health and safety and beneficial uses of the waters of the state.”

14. New Notification Rule

15. New Rule Makes the Choice: Report First!

16. The Problem Sewer agencies usually better suited to clean up sewer spills than OES and Local Public Health Departments. Sewer agencies usually better suited to clean up sewer spills than OES and Local Public Health Departments. Question - whether it is better to: Question - whether it is better to: get the spill contained first; or get the spill contained first; or face the risk of being late calling the first responder agencies. face the risk of being late calling the first responder agencies. SWRCB took this action without public input and may cause this kind of Hobbsian choice. SWRCB took this action without public input and may cause this kind of Hobbsian choice.

17. Small Systems With little staff, smaller systems may have to choose between notification and undertaking rapid spill clean-up activities in those first few hours. With little staff, smaller systems may have to choose between notification and undertaking rapid spill clean-up activities in those first few hours. Small systems may need to consider adding additional staffing to be covered in such events – even though additional cost not needed 99% of the time. Small systems may need to consider adding additional staffing to be covered in such events – even though additional cost not needed 99% of the time. Means money not put into collection system repairs/replacement. Means money not put into collection system repairs/replacement.

18. 24-Hour Reporting Not unreasonable since it was the original, formally adopted time frame for reporting. Not unreasonable since it was the original, formally adopted time frame for reporting. Not unreasonable because being considered by Congress as the national goal. (H.R. 2452 – Sewage Overflow Right to Know Act). Not unreasonable because being considered by Congress as the national goal. (H.R. 2452 – Sewage Overflow Right to Know Act). Didn’t create the time pressure that the new rule places on agencies to report. Didn’t create the time pressure that the new rule places on agencies to report.

19. Nevertheless… The WDR says what it says – The WDR says what it says – 2-hour notice! 2-hour notice! Hopefully, agencies will not have to make choices about which requirement to comply with. Hopefully, agencies will not have to make choices about which requirement to comply with.