[Federal Register Volume 83, Number 5 (Monday, January 8, 2018)]
[Rules and Regulations]
[Pages 712-732]
[FR Doc No: 2017-27948]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 123

[EPA-HQ-OW-2016-0376; FRL-9972-51-OW]
RIN 2040-AF67

Public Notification Requirements for Combined Sewer Overflows to
the Great Lakes Basin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a rule
to implement section 425 of the Consolidated Appropriations Act of
2016, which requires EPA to work with the Great Lakes States to
establish public notification requirements for combined sewer overflow
(CSO) discharges to the Great Lakes. The requirements address signage,
notification of local public health departments and other potentially
affected public entities, notification to the public, and annual
notice. The rule includes a two-stage approach with requirements that
apply directly to existing National Pollutant Discharge Elimination
System (NPDES) permittees authorized to discharge from a CSO to the
Great Lakes Basin, beginning on August 7, 2018 and a requirement that
the public notification provisions be incorporated into NPDES permits
when these permits are issued or reissued after February 7, 2018,
unless the permit has been proposed prior to February 7, 2018 in which
case the requirements would be incorporated into the next permit
renewal. This rule protects public health by ensuring timely
notification to the public and to public health departments, public
drinking

water facilities and other potentially affected public entities,
including Indian tribes. It provides additional specificity beyond
existing public notification requirements to ensure timely and
consistent communication to the public regarding CSO discharges to the
Great Lakes Basin. Timely notice may allow the public and affected
public entities to take steps to reduce the public's potential exposure
to pathogens associated with human sewage, which can cause a wide
variety of health effects, including gastrointestinal, skin, ear,
respiratory, eye, neurologic, and wound infections.

DATES: The final rule is effective on February 7, 2018. In accordance
with 40 CFR part 23, this regulation shall be considered issued for
purposes of judicial review at 1 p.m. Eastern time on January 22, 2018.
Under section 509(b) of the Clean Water Act, judicial review of this
regulation can only be had by filing a petition for review in the U.S.
Court of Appeals within 120 days after the regulation is considered
issued for purposes of judicial review.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2016-0376. All documents in the docket are listed on the
Federal eRulemaking Portal: http://www.regulations.gov. Certain
materials, such as copyrighted material, is not placed on the internet
and will be publicly available only in Hard copy form. Publicly
available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jenelle Hill, Office of Wastewater
Management, Water Permits Division (MC4203), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone
number:<PHONE_NUMBER>; email address: [email protected].

SUPPLEMENTARY INFORMATION: The Federal Register published EPA's
proposed rule on January 13, 2017 (82 FR 4233).

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
II. Background
    A. Combined Sewer Overflows From Municipal Wastewater Collection
Systems
    B. Combined Sewer Overflows to the Great Lakes Basin
    C. The CSO Control Policy and Clean Water Act Framework for
Reducing and Controlling Combined Sewer Overflows
    D. NPDES Regulations Addressing CSO Reporting
    E. Section 425 of the Consolidated Appropriations Act of 2016--
Requirements for Public Notification of CSO Discharges to the Great
Lakes Basin
    F. Working with the Great Lakes States and Requesting Public
Input
III. Summary of the Proposed Rule and Comments Received
    A. Overview of Proposed Rule
    B. Summary of Comments Received
IV. Revisions to the Final Rule
    A. Revisions To Ensure Consistent Terminology
    B. Revisions to Wording To Clarify That Consolidated Reporting
Option Applies to Discharges During the Same Precipitation-Related
Event
    C. Revisions To Extend the Timeframe for the Supplemental Notice
From 24-Hours to Seven Days
    D. Revisions To Allow Greater Flexibility Regarding Signage
    E. Revisions To Provide Greater Flexibility in the Annual Notice
Requirements
    F. Revisions To Provide More Flexibility Regarding Model Re-
Calibration
    G. Revisions To Ensure Consultation With Public Health
Departments Regarding Community-Specific Potentially Impacted Public
Access Areas
    H. Revisions to the Implementation Schedule To Ensure Plans Are
Completed Prior to Beginning Implementation of the Public
Notification Requirements
    I. Revisions To Add Flexibility for Small Permittees Who
Manually Operate CSO Discharge Controls
V. Final Rule Implementation
    A. Final Rule Requirements
    B. Implementation Considerations
VI. Incremental Benefits and Costs of the Rule
    A. Benefits of the Rule
    B. Costs of the Rule
VII. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    L. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

    Section 425 of the Consolidated Appropriations Act of 2016 (Pub. L.
114-113) (hereafter referred to as ``Section 425'') specifies in Sub-
Section (a)(4) that the term ``Great Lakes'' means ``any of the waters
as defined in the Section 118(a)(3) of the Federal Water Pollution
Control Act (33 U.S.C. 1292).'' This, therefore, includes Section
118(a)(3)(B), which defines ``Great Lakes'' as ``Lake Ontario, Lake
Erie, Lake Huron (including Lake St. Clair), Lake Michigan, and Lake
Superior, and the connecting channels (Saint Mary's River, Saint Clair
River, Detroit River, Niagara River, and Saint Lawrence River to the
Canadian Border);'' and Section 118(a)(3)(C), which defines ``Great
Lakes System'' as ``all the streams, rivers, lakes, and other bodies of
water within the drainage basin of the Great Lakes.'' Collectively, EPA
is referring to the Great Lakes and the Great Lakes System as the
``Great Lakes Basin.'' Entities within the Great Lakes Basin
potentially regulated by this action are shown in Table 1.

         Table 1--Entities Potentially Regulated by This Action
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                                                         North American
                                                            industry
           Category             Examples of regulated    classification
                                       entities          system (NAICS)
                                                              code
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Federal and State government..  EPA or State NPDES                924110
                                 permit authorities.
Local governments.............  NPDES permittees with             221320
                                 a CSO discharge to
                                 the Great Lakes
                                 Basin.
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    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated or otherwise affected by this action.
Other types of entities not listed in the table could also be
regulated. In addition, this rule is not intended to change the
conditions under which a NPDES permit is required but, rather, modify a
specific requirement applicable to certain permittees. To determine
whether your entity is regulated by this action, you should carefully
examine the applicability criteria described above and found in Sec.
122.32, and the discussion in the preamble. As Section II.B explains,
States in the Great Lakes Basin include New York, Pennsylvania, Ohio,
Michigan, Illinois, Indiana, Wisconsin, and Minnesota. As of September
2015, all but one of those States (Minnesota) had active NPDES permits
for CSO discharges within the Great Lakes Basin subject to the
requirements of this rule. EPA has included a list of Great Lakes Basin
CSO permittees, which was compiled in concert with state permitting
authorities in 2017, in the rulemaking docket (see ``Table of Great
Lakes Basin CSO Permittees (as of 2017)''). If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.

B. What action is the Agency taking?

    EPA is issuing a final rule to establish public notification
requirements for CSOs to the Great Lakes Basin. The rule implements
Section 425, which requires EPA to ``work with the affected States
having publicly owned treatment works that discharge to the Great Lakes
to create public notice requirements for a combined sewer overflow
discharge to the Great Lakes'' and prescribes minimum requirements for
such notice. EPA incorporated existing State approaches for public
notification in developing these requirements. EPA sought and
considered Great Lakes States and public input during the development
of the rule.
    This rule requires CSO permittees \1\ in the Great Lakes Basin, as
defined, to provide public notification of CSO discharges and specifies
the minimum content of such notification. The rule's requirements
include signage at CSO discharge locations and potentially affected
public access areas, methods of providing public notice of CSO
discharges, initial and supplemental notice to potentially affected
public entities and to the public, and an annual notice. The rule
requires that the annual notice summarize the permittee's CSO
discharges from the previous year and the CSO permittee's plans for CSO
controls.
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    \1\ Throughout this preamble the owner or operator of a combined
sewer system (CSS) is referred to as the ``CSO permittee.''
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    In addition, the rule includes requirements for Great Lakes Basin
CSO permittees to develop a public notification plan that reflects
community-specific details (e.g., proposed monitoring locations, means
for disseminating information to the public) as to how the permittee
would implement the public notification requirements. Permittees are
required to seek and consider input on these plans from local public
health departments and other potentially affected entities whose waters
may be impacted by their CSO discharges. The rule requires that Great
Lakes Basin CSO permittees submit the public notification plan to the
NPDES permitting authority (``Director'') by August 7, 2018. The public
notification plan provides a means of public engagement on the details
of implementation of the notification requirements.
    This rule protects public health by:
     Ensuring timely notice to the public of CSO discharges.
This notice is intended to alert members of the public to CSO
discharges which may allow them to take steps, such as avoiding
activities on the water, to reduce their potential exposure to
pathogens associated with human sewage, which can cause a wide variety
of health effects, including gastrointestinal, skin, ear, respiratory,
eye, neurologic, and wound infections.
     Ensuring timely notice to local public health departments,
public drinking water facilities and other potentially affected public
entities, including Indian tribes, of CSO discharges. This notice is
intended to alert these entities to specific CSO discharges and support
the development of appropriate responses to the discharges, such as
ensuring that beach and waterbody closures and advisories reflect the
most accurate and up-to-date information or adjusting the intake or
treatment regime of drinking water treatment facilities that have
intakes from surface waters impacted by CSO discharges.
     Providing the community and interested stakeholders with
effective and meaningful follow-up notification that summarizes the
permittee's CSO discharges from the previous year and provides
stakeholders with information on the CSO permittee's plans to control
CSO discharges. This information is intended to help the community
understand the current performance of their collection system and how
the community's ongoing investment to reduce overflows would address
the impacts of CSOs.
    The public notification requirements, including the requirement to
develop a public notification plan, are implemented through two
regulatory mechanisms: Requirements that apply directly to existing
NPDES permittees and conditions for permits renewed or issued in the
future. This two-stage implementation approach ensures that the
requirements of Section 425 are implemented promptly as the
Appropriations Act directed EPA to do and also ensures that the
benefits of the rule can begin to accrue as quickly as possible, rather
than delaying these public health benefits until future permit
renewals, which for some permittees could be as long as five or more
years away.
    First, EPA is adding a new section to the NPDES permit regulations,
codified at Sec.  122.38, establishing the public notification
requirements for Great Lakes Basin CSO permittees. The requirements in
Sec.  122.38 apply directly to existing Great Lakes Basin CSO
permittees until their NPDES permits are next reissued after February
7, 2018, unless the permit has been proposed prior to February 7, 2018,
in which case the requirements would be incorporated into the next
permit renewal.
    The public notification plan requirements apply directly to CSO
permittees discharging to the Great Lakes Basin beginning August 7,
2018 and the notification methods (other than the annual notice) apply
directly beginning November 7, 2018. The annual notice requirements
apply beginning in February 7, 2019 (or an alternative date specified
by the Director), which allows permittees time to collect data for the
first year.\2\ In keeping with Section 425, the Director may extend the
compliance dates for notification and/or submittal of the public
notification plan for individual communities if the Director determines
the community needs additional time to comply in order to avoid undue
economic hardship.
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    \2\ EPA expects the first annual notice will only contain a
partial year of data because the reporting period is for a calendar
year and the permittee will not have begun implementing the
notification requirements on January 1 of the first year.
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    Second, the public notification requirements for CSO discharges to
the Great Lakes Basin shall be implemented as a condition in NPDES
permits when they are next reissued after February 7,

2018, unless the permit has been proposed prior to February 7, 2018 in
which case the requirements would be incorporated into the next permit
renewal. When the permittee's CSO NPDES permit is reissued, the permit
is required to include a permit condition addressing public
notification of CSO discharges to the Great Lakes Basin. The permit
condition incorporates the requirements in Sec.  122.38 for signage,
methods of notification and annual notice, as well as requirements to
provide specific information relevant to the permittee's implementation
of the notification requirements.

C. What is the Agency's authority for taking this action?

    This rule is authorized by Section 425 of the Consolidated
Appropriations Act of 2016 (Pub. L. 114-113) and the Federal Water
Pollution Control Act, 33 U.S.C. 1251 et seq., including sections
1314(i), 1318, 1342 and 1361(a). Section 425 requires EPA to ``work
with the affected States having publicly owned treatment works that
discharge to the Great Lakes to create public notice requirements for a
combined sewer overflow discharge to the Great Lakes.'' While this rule
is called for by an appropriations bill, EPA has independent authority
under the Clean Water Act to require these public notification
provisions. Specifically, EPA is promulgating this rule under CWA
sections 304(i), 308, 402, and 501. Section 304(i) authorizes EPA to
establish minimum procedural and other elements of State programs under
section 402, including reporting requirements and procedures to make
information available to the public. In addition, EPA is promulgating
this rule under section 308, which authorizes EPA to require access to
information necessary to carry out the objectives of the CWA. Section
402 establishes the NPDES permit program for the control of the
discharge of pollutants into the nation's waters. EPA is promulgating
this rule under section 402(a)(2), which authorizes the Administrator
to prescribe conditions in permits, including conditions on data and
information collection, reporting and other requirements he deems
appropriate and 402(b) and (c), which require each authorized State,
tribe, or territory to ensure that permits meet certain substantive
requirements. Section 402(q) requires NPDES permits for discharges from
combined sewers to ``conform'' to the 1994 CSO Control Policy. Finally,
EPA is promulgating this rule under the authority of section 501, which
authorizes EPA to prescribe such regulations as are necessary to carry
out provisions of the CWA.

II. Background

A. Combined Sewer Overflows From Municipal Wastewater Collection
Systems

    Municipal wastewater collection systems collect domestic sewage and
other wastewater from homes and other buildings and convey it to
wastewater treatment plants for treatment and disposal. The collection
and treatment of municipal sewage and wastewater is vital to the public
health in our cities and towns. In the United States, municipalities
historically have used two major types of sewer systems--separate
sanitary sewer systems and CSSs.
    Municipalities with separate sanitary sewer systems use that system
solely to collect domestic sewage and convey it to a publicly owned
treatment works (POTW) treatment plant for treatment. These
municipalities also have separate sewer systems to collect surface
drainage and stormwater, known as ``municipal separate storm sewer
systems'' (MS4s). Separate sanitary sewer systems are not designed to
collect large amounts of runoff from rain or snowmelt or provide
widespread surface drainage, although they typically are built with
additional allowance for some amount of stormwater or groundwater that
enters the system as a result of storm events.
    The other type of sewer system, CSSs, is designed to collect both
sanitary sewage and stormwater runoff in a single-pipe system. This
type of sewer system provides the primary means of surface drainage by
carrying rain and snowmelt away from streets, roofs, and other
impervious surfaces. CSSs were among the earliest sewer systems
constructed in the United States and were built until the first part of
the 20th century. While some municipalities have undertaken projects to
replace CSSs with separate sanitary sewer systems, such projects can be
very expensive so many CSSs still exist in the United States.
    Under normal, dry weather conditions, combined sewers transport all
of the wastewater collected to a sewage treatment plant for treatment.
However, under wet weather conditions, when the volume of wastewater
and stormwater exceeds the capacity of the CSS or treatment plant,
these systems are designed to divert some of the combined flow prior to
reaching the POTW treatment plant and to discharge combined stormwater
and sewage directly to nearby streams, rivers and other water bodies.
These discharges of sewage from a CSS that occur prior to the POTW
treatment plant are referred to as combined sewer overflows or CSOs.
Depending on the CSS infrastructure design, CSO discharges may be
untreated or may receive some level of treatment, such as solids
settling in a retention basin and disinfection, prior to discharge.
    CSO discharges contain human and industrial waste, toxic materials,
and debris as well as stormwater. CSO discharges can be harmful to
human health and the environment because they introduce pathogens
(e.g., bacteria, viruses, protozoa) and other pollutants to receiving
waters, causing beach closures, impairing water quality, and
contaminating drinking water supplies and shellfish beds. CSOs can also
cause depleted oxygen levels in receiving waters which can impact fish
and other aquatic populations. (See EPA-HQ-OW-2016-0376-0043, -0056, -
0057, and -0070.)
    CSSs serve a total population of about 40 million people
nationwide. Most communities with CSSs are located in the Northeast and
Great Lakes regions, particularly in Illinois, Indiana, Maine,
Michigan, New York, Ohio, Pennsylvania, and West Virginia. Although
large cities like Chicago, Cleveland, and Detroit have CSSs, most
communities with CSSs have fewer than 50,000 people. Most CSSs have
multiple CSO discharge locations (also referred to as outfalls), with
some larger communities with CSSs having hundreds of CSO discharge
locations.

B. Combined Sewer Overflows to the Great Lakes Basin

    As of September 2015, 859 active NPDES permits for CSO discharges
had been issued in 30 States plus the District of Columbia and Puerto
Rico. Of these 859 permits, 162 permits \3\ are for CSO discharges to
waters located in the watershed for the Great Lakes and the Great Lakes
System (``Great Lakes Basin,'' as explained in Section I.A). The 162
permits for CSO discharges to

the Great Lakes Basin have been issued to 158 communities \4\ or
permittees. These permittees are located in the States of New York,
Pennsylvania, Ohio, Michigan, Illinois, Indiana, and Wisconsin. See
``Table of Great Lakes Basin CSO Permittees (as of 2017)'' in the
rulemaking docket for a list of Great Lakes Basin CSO permittees that
was compiled in 2017; this list will serve as a starting point for
State permitting authorities as they evaluate the applicability of this
rule to their permittees. CSO communities are scattered across the
Great Lakes Basin, with the greatest concentration in Ohio,
southeastern Michigan and northeastern Indiana discharging to Lake
Erie, and in northern Indiana and southwestern Michigan discharging to
Lake Michigan (see Figure 1).
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    \3\ EPA identified 184 CSO permits in the Great Lakes Basin in
the 2016 Report to Congress: Combined Sewer Overflows into the Great
Lakes Basin (EPA 833R-16-006) (EPA-HQ-OW-2016-0376-0043). EPA has
adjusted that estimate to reflect additional information. First, 32
CSO permittees identified in the Report to Congress were subtracted;
31 CSO permittees because their permit coverage had been terminated
due to sewer separation or other reasons and one CSO permittee
because they do not discharge to the Great Lakes Basin. Second, EPA
conducted a GIS analysis and verified with States that 10 permits
for CSO discharges to the Great Lakes Basin were not identified in
the 2016 Great Lakes CSO Report to Congress. A list of these 42
permits is available in the docket for this rulemaking.
    \4\ The number of CSO communities in the Great Lakes Basin is
different than the number of CSO permits. Two CSO communities have
more than one CSO NPDES permit. These include Metropolitan Water
Reclamation District of Greater Chicago (MWRDGC) (4 permits) and the
City of Oswego, NY (2 permits). For the purposes of counting
communities, communities with multiple CSO permits are counted as
one CSO community.
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    The majority of the CSO discharges in the Great Lakes Basin are
into waterbodies that are tributary to one of the Great Lakes, while a
small number of those discharges are directly into one of the Great
Lakes. In compiling the list of permittees subject to the requirements
of this rule included in the rulemaking docket (``Table of Great Lakes
Basin CSO Permittees (as of 2017)''), EPA consulted with State
permitting authorities and drainage basin maps for the Great Lakes to
confirm that these discharges have the potential to impact the Great
Lakes. Because the water in streams and rivers within the drainage
basin for a Great Lake has the potential to reach the Great Lakes, EPA
has concluded that this rulemaking should apply to all permittees
authorized to discharge CSOs in the Great Lakes Basin, consistent with
the goal of providing public notification of CSO discharges affecting
the Great Lakes.
[GRAPHIC] [TIFF OMITTED] TR08JA18.004

    EPA recently summarized available information on the occurrence and
volume of discharges from CSOs to the Great Lakes Basin during 2014
(see EPA-HQ-OW-2016-0376-0043), contained in the public docket for this
rulemaking. As summarized in this report, seven States reported 1,482
events where untreated sewage was discharged from CSOs to the Great
Lakes Basin in 2014 and an additional 187 CSO events where partially
treated sewage was discharged. For the purposes of the Report,
partially treated discharges referred to CSO discharges that received a
minimum of:
     Primary clarification (removal of floatables and
settleable solids may be achieved by any combination of treatment
technologies or methods that are shown to be equivalent to primary
clarification);
     Solids and floatable disposal; and
     Disinfection of effluent, if necessary to meet water
quality standards and protect human health, including removal of
harmful disinfection chemical residuals, where necessary.
    Additional information regarding CSO discharges to the Great Lakes
Basin, including the Report to Congress, is available at https://www.epa.gov/npdes/combined-sewer-overflows-great-lakes-basin. Table 2
provides the size distribution of the 158 CSO communities in the Great
Lakes Basin.

                       Table 2--Great Lakes Basin CSO Communities by Community Population
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                                                     Community population
                                 ------------------------------------------------------------        Total
                                      Over 50,000        10,000-49,999       Under 10,000
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Number of CSO Communities.......                 35                  69                  54                 158
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Permits issued to Metropolitan Water Reclamation District of Greater Chicago and Wayne County used the
  population for Chicago and Wayne County, respectively.

    As stated above, CSOs can cause human health and environmental
impacts (see EPA-HQ-OW-2016-0376-0043, -0056, -0057, and -0070). CSOs
often discharge simultaneously with other wet weather sources of water
pollution, including stormwater discharges from various sources
including municipal separate storm sewers, wet weather sanitary sewer
overflows (SSOs) from separate sanitary sewer systems, and nonpoint
sources of pollution. The cumulative effects of wet weather pollution
from point and nonpoint sources can make it difficult to identify and
assign specific cause-and-effect relationships between CSOs and
observed water quality problems. The environmental impacts of CSOs are
most apparent at the local level (see EPA-HQ-OW-2016-0376-0043, -0056,
-0057, and -0070).

C. The CSO Control Policy and Clean Water Act Framework for Reducing
and Controlling Combined Sewer Overflows

    The CWA establishes national goals and requirements for maintaining
and restoring the nation's waters. CSO discharges are point sources
subject to the technology-based and water quality-based requirements of
the CWA under NPDES permits. Technology-based effluent limitations for
CSO discharges are based on the application of best available
technology economically achievable (BAT) for toxic and nonconventional
pollutants and best conventional pollutant control technology (BCT) for
conventional pollutants. BAT and BCT effluent limitations for CSO
discharges are determined based on ``best professional judgment.'' CSO
discharges are not subject to permit limits based on secondary
treatment requirements that are applicable to discharges from POTWs.\5\
Permits authorizing discharges from CSO discharge points must include
more stringent water quality-based requirements, when necessary, to
meet water quality standards (WQS).
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    \5\ Montgomery Environmental Coalition et al. v. Costle, 646
F.2d 568, 592 (D.C. Cir. 1980).
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    EPA issued the CSO Control Policy on April 19, 1994 (59 FR 18688).
The CSO Control Policy ``represents a comprehensive national strategy
to ensure that municipalities, permitting authorities, water quality
standards authorities, and the public engage in a comprehensive and
coordinated effort to achieve cost-effective CSO controls that
ultimately meet appropriate health and environmental objectives.'' (59
FR 18688). The policy assigns primary responsibility for implementation
and enforcement to NPDES permitting authorities (generally referred to
as the ``Director'' in the NPDES regulations) and water quality
standards authorities.
    The policy also established objectives for CSO permittees to: (1)
Implement ``nine minimum controls'' and submit documentation on their
implementation; and (2) develop and implement a long-term CSO control
plan (LTCP) to ultimately result in compliance with the CWA, including
water quality-based requirements. In describing NPDES permit
requirements for CSO discharges, the CSO Control Policy states that the
BAT/BCT technology-based effluent limitations ``at a minimum include
the nine minimum controls'' (59 FR 18696). One of the nine minimum
controls is ``Public notification to ensure that the public receives
adequate notification of CSO occurrences and CSO impacts.''
    In December 2000, as part of the Consolidated Appropriations Act
for Fiscal Year 2001 (Pub. L. 106-554), Congress amended the CWA by
adding Section 402(q). This amendment is commonly referred to as the
``Wet Weather Water Quality Act of 2000.'' It requires that each
permit, order, or decree issued pursuant to the CWA after the date of
enactment for a discharge from a municipal combined sewer system shall
conform to the CSO Control Policy.

D. NPDES Regulations Addressing CSO Reporting

    The NPDES regulations require NPDES permits to include requirements
for monitoring discharges, including CSO discharges, and reporting the
results to the permitting authority with a reporting frequency
dependent on the nature and effect of the discharge, but in no case
less than once a year. See Sec.  122.44(i)(2). In addition, NPDES
permits must require permittees to report noncompliance, including CSO
discharges, to their permitting authority. Permit noncompliance that
may endanger health or the environment must be reported by the
permittee to their permitting authority both orally and through a
report submission. See Sec.  122.41(l)(6). All other noncompliance must
be reported when other monitoring reports are submitted (e.g.,
Discharge Monitoring Reports (DMRs)). See Sec.  122.41(l)(7).

E. Section 425 of the Consolidated Appropriations Act of 2016--
Requirements for Public Notification of CSO Discharges to the Great
Lakes Basin

    Section 425 was enacted as part of the 2016 Consolidated
Appropriations Act and did not amend the CWA. Section 425(b)(1)
requires EPA to work with the Great Lakes States to establish public
notice requirements for CSO discharges to the Great Lakes Basin.
Section 425(b)(2) provides that the notice requirements are to address
the method of the notice, the contents of the notice, and requirements
for public availability of the notice. Section 425(b)(3)(A) provides
that, at a minimum, the contents of the notice are to include the dates
and times of the applicable discharge; the volume of the discharge; and
a description of any public access areas impacted by the discharge.
Section 425(b)(3)(B) provides that the minimum content requirements are
to be consistent for all affected States.
    Section 425(b)(4)(A) calls for follow-up notice requirements that
provide a description of each applicable discharge; the cause of the
discharge; and plans to prevent a reoccurrence of a CSO discharge to
the Great Lakes Basin consistent with section 402 of the Federal Water
Pollution Control Act (33 U.S.C. 1342) or an administrative order or
consent decree under such Act. Section 425(b)(4)(B) provides for annual
publication requirements that list each treatment works from which the
Administrator or the affected State receive a follow-up notice.
    Section 425(b)(5) requires that the notice and publication
requirements described in Section 425 shall be implemented within two
years. The

Administrator of the EPA, however, may extend the implementation
deadline for individual communities if the Administrator determines the
community needs additional time to comply in order to avoid undue
economic hardship. Finally, Section 425(b)(6) clarifies that
``[n]othing in this subsection prohibits an affected State from
establishing a State notice requirement in the event of a discharge
that is more stringent than the requirements described in this
subsection.''

F. Working With the Great Lakes States and Requesting Public Input

    As called for in the legislation, EPA worked with the Great Lakes
States in developing the rule to implement section 425 of the 2016
Consolidated Appropriations Act. In discussions with EPA, NPDES program
officials in each State with CSO discharges to the Great Lakes Basin
described existing State notification requirements, shared insights on
implementation issues and provided individual perspectives during the
development of the proposed rule.
    On August 1, 2016, EPA published a notice in the Federal Register
requesting stakeholder input on potential approaches for developing
public notice requirements for CSO discharges to the Great Lakes Basin
under section 425. As part of this effort, EPA held a public
``listening session'' on September 14, 2016, in Chicago, Illinois,
which provided stakeholders and other members of the public an
opportunity to share their views regarding potential new public
notification requirements for CSO discharges to the Great Lakes Basin.
A summary of the oral comments made at the public listening session is
included in the docket for this rulemaking.\6\ In addition, the Agency
requested written comments. EPA received a total of 787 written
comments, all of which were submitted to the docket (see EPA-HQ-OW-
2016-0376-0002 through EPA-HQ-OW-2016-0376-0041). These comments
informed the development of the proposed rule and were discussed
throughout the preamble to the proposed rule.
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    \6\ See Docket ID No. EPA-HQ-OW-2016-0376 at http://www.regulations.gov.
---------------------------------------------------------------------------

    On January 13, 2017, EPA published the proposed rule requesting
comments on Public Notification Requirements for Combined Sewer
Overflows to the Great Lakes Basin (82 FR 4236). The comment period for
the proposed rule closed on March 14, 2017. EPA received a total of
1,300 written comments, which were submitted to the docket (see EPA-HQ-
OW-2016-0376-0129 through EPA-HQ-OW-2016-0376-0176). EPA briefed NPDES
program officials in the Great Lakes States on the comments EPA
received, and the officials engaged in discussions with EPA about
possible revisions to the proposed rule to address the public comments.
Comments received on the proposed rule are discussed further in Section
III.

III. Summary of the Proposed Rule and Comments Received

    The proposed requirements to implement Section 425 were based on an
evaluation of current notification requirements and practices in the
Great Lakes Basin and elsewhere, and input from officials in the Great
Lakes States and the public, including input received in response to
EPA's August 1, 2016 request. The proposal explained EPA's expectations
for CSO permittees discharging to the Great Lakes Basin to ensure that
the public receives adequate notification of CSO occurrences and CSO
impacts. The proposed requirements aligned with the CSO Control Policy,
which includes public notification as one of the nine minimum controls
for CSO permittees.

A. Overview of Proposed Rule

    The Federal Register published EPA's proposed rule on January 13,
2017 (82 FR 4233). EPA proposed requirements for public notification of
CSO discharges to the Great Lakes Basin to be codified at Sec.  122.38.
The proposed requirements addressed signage, initial and supplemental
notification of local public health departments and other potentially
affected public entities (which may include neighboring municipalities,
public drinking water utilities, State and county parks and recreation
departments and Indian tribes) whose waters may be potentially
impacted, initial and supplemental notification of the public and
annual notice to the public and the Director.
    EPA further proposed to require NPDES permittees authorized to
discharge CSOs to the Great Lakes Basin to develop a public
notification plan that would provide community-specific details as to
how they would implement the notification requirements. Under the
proposal, CSO permittees in the Great Lakes Basin would seek and
consider input from local public health departments, any potentially
affected public entities and Indian tribes whose waters may be impacted
by the permittee's CSO discharges in developing the public notification
plan that would be submitted to the Director. Under the proposed rule,
the plan would be made available to the public and submitted to the
Director within six months of the publication date of the final rule.
    Under the proposed rule, the requirement to provide public notice
of CSO discharges would initially apply by regulation to all existing
CSO permittees. Then, as the NPDES permit for each CSO permittee is
reissued, the proposed rule at Sec.  122.42(f) would require that the
public notice condition be incorporated into all such permits.

B. Summary of Comments Received

    EPA received about 45 unique comments on the proposed rule from
States, municipalities, environmental stakeholders, trade associations,
and other members of the public. Many commenters expressed support for
required public notification of CSO discharges in the Great Lakes
Basin, while other commenters suggested that aspects of the proposed
rule were too burdensome. Many commenters supported some aspects of the
proposed rule while suggesting revisions to other parts. Below is a
summary of some of the key topics on which EPA received comments. For a
full account of comments received, see the rulemaking docket.
     ``Great Lakes'' versus ``Great Lakes Basin''--Several
commenters asserted that Section 425 was only intended to address CSO
discharges directly into the Great Lakes, rather than CSO discharges
into waters in the Great Lakes Basin as proposed while others supported
the scope of the proposed rule. For discussion of EPA's rationale for
retaining the scope of the rulemaking to cover the Great Lakes Basin
see Section II.B. EPA also received comments which recommended that the
rulemaking should be applied nationally and not just limited to the
Great Lakes region. Given the short two-year implementation timeframe
in Section 425 and the specific statutory intent, EPA chose to limit
the scope of this rulemaking to the Great Lakes region.
     Untreated CSOs versus All CSOs (untreated and partially
treated)--Some commenters suggested that the requirements of the rule
should only apply to untreated CSOs, while several others agreed with
the approach in the proposed rule. For discussion of EPA's decision to
apply the requirements to all CSO discharges see Sections II.B and
V.B.3.
     Initial notice timing--Some commenters suggested that the
proposed time window of four hours for the initial notice was too long,
while some felt it was an appropriate length, and others suggested
longer time windows. For discussion of EPA's decision to retain

the four-hour time frame see Section V.B.5; also see Section IV.I.
     Supplemental notice timing--Many commenters suggested that
the time period in which the supplemental notice must be provided
should be longer than the proposed 24 hours. Many commenters suggested
timeframes of five or seven days. For discussion of changes EPA has
made to the supplemental notice timing see Section IV.C.
     Annual notice requirements--Some commenters supported the
annual notice requirements in the proposed rule. Others said the annual
notice is duplicative of other requirements (e.g., the proposed
supplemental notice requirements, existing permit requirements). Some
commenters suggested that instead of permittees, States should be
required to compile the annual notice and make it publicly available.
For discussion of EPA's rationale for retaining the annual notice
requirements, as well as changes that EPA has made in the final rule in
response to comments on the annual notice requirements, see Sections
IV.E, V.B.2, and VI.A.
     Implementation timeline--Many commenters agreed with the
implementation timeline and two-stage approach with the flexibility for
the Director to extend the compliance dates on a case-by-case basis.
Some commenters preferred that EPA delay implementation of the
requirements until the next permit renewal. Other commenters suggested
12 months rather than 6 months be allowed for some or all communities
to initially implement the new requirements. For discussion of EPA's
rationale for the final rule compliance timeline, two-stage approach,
as well as the flexibility in the final rule for the Director to extend
that timeline, see Sections II.E, IV.H, V.B.7, and VI.A.
    The next section (Summary of Revisions Made in the Final Rule)
includes an explanation of all of the revisions EPA has made in the
final rule in response to the public comments received on the proposed
rule. In addition, EPA has prepared a response to comments document,
which can be found in the docket for this rulemaking.

IV. Revisions to the Final Rule

    EPA reviewed and considered public comments received on the
proposed rule and made several modifications to the regulatory
requirements in response to those comments. Below is a summary of those
revisions, some of which involve clarifying language to better convey
the intent of the requirement, while others address the substance of
the requirement. The list of regulatory changes in each sub-section
below is organized by references to the proposed rule (see 82 FR 4233)
sections and numbering, references within the summary of the change
include citations to the final rule. The revisions EPA has made are
intended to respond to the comments, increase flexibility for States,
and ease implementation.

A. Revisions To Ensure Consistent Terminology

    Edits were made to the following proposed regulatory text to
improve clarity and consistency of language used:
     Sec.  122.21(j)(8)(iii)--``Each applicant that
discharges'' revised to ``Each permittee authorized to discharge.''
Edit made to be consistent with terminology in: Sec.  122.38(a) and
(b).
     Sec.  122.38(d)(4)--``that may be affected'' revised to
``that may be impacted.'' Edit made to be consistent with terminology
in: Sec.  122.38(a)(1)(i) and (iii), (a)(2)(i)(B), (a)(3)(ii)(B), and
(b)(5).
    [cir] Conforming edits were also made at: Sec.  122.38 (a)(2)(i),
(c)(6), and (d)(2) (from ``whose waters may be affected'' to ``whose
waters may be impacted'').
     Sec.  122.38(b)(6)--``public access areas impacted by each
CSO discharge'' revised to ``public access areas potentially impacted
by each CSO discharge.'' This ensures consistency with the above
mentioned sections where the word ``potentially'' is used with
``impacted'' to make clear that the permittee does not need to verify
if the area was impacted, but rather to consider if there is potential
for the area to be impacted by the CSO discharge.
     Sec.  122.42(f)--``Any permit issued for combined sewer
overflow (CSO) discharges to the Great Lakes Basin'' revised to ``Any
permit issued authorizing the discharge of a combined sewer overflow
(CSO) to the Great Lakes Basin.'' Edit made to be consistent with
terminology in: Sec.  122.38(a) and (b), as well as the revision to
Sec.  122.21(j)(8)(iii) above.
     Sec.  122.38(a)(1)(i)(A)--Revisions to replace the word
``outfall'' with ``discharge point,'' to use consistent terminology
with the CSO Policy.
    [cir] Conforming edits were also made at Sec. Sec.
122.38(a)(1)(ii)(C), (a)(1)(iv), (a)(3)(i), (b) introductory text,
(b)(1), and (c)(1), (8), and (9) and 122.42(f)(2) and (3).

B. Revisions to Wording To Clarify That Consolidated Reporting Option
Applies to Discharges During the Same Precipitation-Related Event

    It is EPA's intention that if multiple CSO discharges occur on the
same water body from multiple CSO discharge locations during the same
precipitation event, that the permittee has the flexibility to provide
one public notification to cover the multiple discharges. Some
commenters pointed out that the wording EPA used in the proposed rule,
``at the same time,'' was unclear and might imply that the discharges
had to occur simultaneously, rather than simply as a result of the same
storm event. Because of this potential lack of clarity, some commenters
raised questions as to whether multiple CSO discharges that start and
stop during the same precipitation event would require multiple,
separate public notices. EPA intends that only one notification be
required under these circumstances. In addition, EPA has included a
provision in the rule that allows permittees to provide one notice when
there are discharges from multiple CSO discharge points as a result of
the same precipitation event. These notices can describe broader areas
likely to be impacted by discharges during the precipitation event,
eliminating the need to provide separate initial notifications every
time the permittee becomes aware of a new discharge associated with the
same event. Some commenters questioned whether these discharges had to
have occurred at exactly the same time in order to be grouped together.
EPA intends that multiple discharges that result from the same
precipitation event, even if they are not occurring at exactly the same
time, may be grouped together in one public notification. EPA has
revised the wording in the final rule to make this clearer by changing
the proposed rule's description of discharges occurring ``at the same
time'' to discharges occurring ``during the same precipitation-related
event.'' It is EPA's expectation that the initial notification would be
made within four hours of the permittee becoming aware of the first CSO
discharge in the group of discharges that are being reported together;
therefore, grouping multiple discharges into one notification is
intended to reduce burden but would not provide a community additional
time beyond the four-hour period.
    EPA is using the terminology ``precipitation-related'' to include
rainfall, snowfall, and snowmelt. This is consistent with the CSO
Policy, which states that it applies ``to all CSSs that overflow as a
result of storm water flow, including snow melt runoff (40 CFR Section
122.26(b)(13)).''
    EPA has made the following revisions to the wording in the final
rule to address this:

     Sec.  122.38(a)(2)(i)(B)--revised ``Where CSO discharges
from the same system occur at multiple locations at the same time'' to
``Where CSO discharges from the same system occur at multiple locations
during the same precipitation-related event.''
    [cir] Conforming edits were also made at: Sec.
122.38(a)(2)(ii)(A), (a)(3)(ii)(B), (a)(3)(iii)(A), and (b)(2).

C. Revisions To Extend the Timeframe for the Supplemental Notice From
24 Hours to Seven Days

    The final rule requires supplemental information to be provided to
the public, public health department and other affected public entities
and Indian Tribes within seven days of the permittee becoming aware
that the CSO discharge(s) has ended. The proposed rule would have
required this information to be provided within 24 hours. Many
commenters indicated that this was too short of a timeframe, and
suggested that a longer window of five or seven days would be more
appropriate. Some commenters pointed out that running models and
validating the estimated discharge volume and duration takes time and
resources that are not available on nights, weekends, and holidays.
Other commenters also noted that CSO discharges can be discontinuous,
so communities need more than 24-hours to determine if the discharge
has actually ended. In response to these concerns, EPA contemplated
revising the timeframe to either five or seven days. Some of the State
permit writers pointed out that five days is consistent with other
requirements that CSO communities already have, so aligning the
timeframe would reduce confusion and burden that could be caused by
multiple reporting requirements.\7\ Because of this, EPA anticipates
that some States will use five days for the supplemental notice
requirements in permits to be consistent with this and other reporting
timeframes. EPA has not precluded this; however, to allow for greater
flexibility for those circumstances where seven days may make more
sense, EPA has revised the requirement to allow a maximum of seven days
for the supplemental notice. Accordingly, EPA has made the following
revisions in the final rule:
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    \7\ One example that was raised by a NPDES permitting authority
was an existing NPDES permit condition at Sec.  122.41(l)(6)(i),
which is a reporting requirement that involves a written report that
must ``be provided within 5 days of the time the permittee becomes
aware of the circumstances.''
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     Sec.  122.38(a)(2)(ii)--revised ``Within twenty-four (24)
hours'' to ``Within seven (7) days.''
    [cir] Conforming edits were also made at: Sec.  122.38(a)(3)(iii).

D. Revisions To Allow Greater Flexibility Regarding Signage

    EPA received several comments regarding the burden of the signage
requirement in the proposed rule. Specifically, commenters indicated
that the burden estimate did not adequately account for the high
replacement rate that would occur if the signs need to be replaced when
they were next reset. EPA's intention was that signs would be updated
to reflect the required information when they need to be replaced due
to normal wear or damage. Based on this reasoning, EPA estimated that
signs would need to be replaced once every 10 years. It is now EPA's
understanding that in some communities' signs are reset at a much
higher rate (for example some signs are located in an area where they
fall down regularly and the community frequently stands the sign back
up and re-secures it in the ground (i.e., resets the sign)). In order
to better represent EPA's intentions for this requirement, EPA has
deleted ``or reset'' from the final regulation as follows:
     Sec.  122.38(a)(1)(iii)--deleted ``or reset'' from ``the
sign is not required to meet the minimum requirements specified in
paragraph (i) until the sign is replaced or reset.''
    Some commenters also indicated that there are certain circumstances
under which signage at a CSO discharge point is not warranted because
there is no means for public access of the receiving water in the
vicinity of the discharge point. Because one of the drivers behind this
rulemaking is to reduce the public's exposure to CSO discharges, EPA
has decided to add some flexibility for those instances where it is not
expected that the public will be able to access the area or come into
contact with the receiving water and therefore would not benefit from
the notification that the signage would have provided. EPA has added
language to the final rule to allow the Director to waive the signage
requirement if such conditions have been demonstrated by the permittee
to the Director's satisfaction. EPA has made the following change to
the final rule to reflect this:
     Sec.  122.38(a)(1)(i)--added ``(unless the permittee
demonstrates to the Director that no public access of, or public
contact with, the receiving water is expected)'' after CSO discharge
point. EPA has also made some minor formatting edits to this part of
the provision to improve clarity.

E. Revisions To Provide Greater Flexibility in the Annual Notice
Requirements

    EPA received several comments on the annual notice requirements in
the proposed rule. Some commenters suggested that the requirements were
redundant of other current reporting requirements in CSO permits. Some
commenters asserted that the annual notice requirements were overly
burdensome. The annual notice requirements are intended to ensure that
the statutory requirements in Section 425 are addressed by the rule,
including requirements outlined in Section 425(b)(4) for: Follow-up
notice that provides a ``description of each applicable discharge,''
``the cause of the discharge,'' and ``plans to prevent a reoccurrence
of a combined sewer overflow discharge to the Great Lakes''; as well as
annual publication ``that list each treatment works from which the
Administrator or the affected State receive a follow-up notice.''
    The final rule is responsive to these components of Section 425 by
requiring:
     A description of each applicable discharge, including:
Location, receiving water, any treatment provided (if applicable),
date, location, duration, volume, and a description of any public
access areas that were potentially impacted by the CSO discharge, and a
summary of any monitoring data for CSO discharges (if available).
     Information on the cause of each discharge, and when that
cause is precipitation, information on the amount of precipitation that
caused the discharge.
     Information on plans to prevent a reoccurrence of CSO
discharges in the form of a concise summary of implementation of the
nine minimum controls and the status of implementation of the CSO long-
term control plan (or a similar plan that explains how the permittee is
addressing CSO discharges).
    Providing annual notice improves transparency and accountability to
the public about the presence and magnitude of CSO discharges in their
community. It also highlights progress that is being made by permittees
to reduce CSO discharges and highlights the value of investments that
are being made in the infrastructure.
    The final rule also includes several revisions to the annual notice
requirements to improve clarity and allow more flexibility. The added
flexibilities are intended to allow Great Lakes Basin CSO permittees
that are already subject to existing State or local reporting
requirements, which contain

the same information as required in this rule's annual notice
requirement, to use these reports to meet this rule's requirements. The
flexibilities also allow a permittee, whose State permitting authority
publishes an annual CSO report that contains the same information for a
Great Lakes Basin CSO permittee as is required in this rule's annual
notice requirement, to use the State report to meet the rule's
requirements. Revisions to the final rule to add these flexibilities
include:
     Sec.  122.38(b)--Revised ``(or an earlier date specified
by the Director)'' to ``(or an alternative date specified by the
Director)'' to allow the Director the flexibility to specify an
alternative due date for the annual notice to be made available to the
public. This allows the Director to specify an alternative due date to
coincide with an existing reporting requirement, where one exists.
     Sec.  122.38(b)--Added a sentence to the end of the
introductory text of Sec.  122.38(b) pertaining to permittees whose
State permitting authority has published or will publish an annual
report containing all of the required minimum information about the
Permittee, that allows the Permittee to make available the State-issued
annual report in order to meet this requirement. This addresses
scenarios like that in Michigan, described in Section V.B.2 below.
     Sec.  122.38(b)--Added a sentence to the end of the
introductory text of Sec.  122.38(b) to allow permittees that have
existing report(s) that are written annually that collectively contain
all of the required minimum information to make that/those report(s)
publicly available in order to meet the requirement. This gives
Permittees the flexibility to use existing CSO reports, if they contain
all of the minimum information required by the final rule, to meet the
annual notice requirement.
     Sec.  122.38(b)(1) and (d)(11)--Deleted the minimum
requirement to include ``Information on the availability of the
permittee's public notification plan and a summary of significant
modifications to the plan that were made in the past year.'' EPA
concluded that this proposed requirement was somewhat duplicative of
another requirement in the rule, under the public notification plan
requirements at final rule Sec.  122.38(c). In addition, to ensure that
a summary of significant \8\ modifications to the public notification
plan is made available, EPA added language to the final rule at Sec.
122.38(c)(11) stating that the public notification plan must include a
description of significant modifications to the plan that were made
since it was last updated.''
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    \8\ EPA has not defined ``significant'' in the final rule in
order to give communities discretion to highlight what they consider
to be significant in their community-specific context. Some examples
of the types of changes that EPA expects will be described in the
summary include: Addition or removal of potentially affected public
entities and Indian Tribes whose waters may be impacted by a CSO
discharge, changes to the list of potentially impacted public access
areas, changes to the method of notice to the public, changes to the
protocols for notification to the public health department or other
potentially affected public entities and Indian Tribes, or changes
to the list of CSO discharge points for which notification is
provided.
---------------------------------------------------------------------------

     Sec.  122.38(b)(2)--Revised from ``A description of the
location, treatment provided and receiving water for each CSO outfall''
to ``A description of the location and receiving water for each CSO
discharge point, and, if applicable, any treatment provided.'' This
change is intended to make clear that treatment information does not
have to be provided if the CSO discharge does not receive treatment.
This revision also includes replacing the word ``outfall'' with
``discharge point,'' which is explained above in Section IV.A.
     Sec.  122.38(b)(3)--Revised ``The date, location,
duration, and volume of each wet weather CSO discharge'' to ``The date,
location, approximate duration, measured or estimated volume, and cause
(e.g., rainfall, snowmelt) of each wet weather CSO discharge.''
    [cir] By adding the words ``approximate'' and ``measured or
estimated,'' the rule now clarifies that the same level of accuracy
needed for the supplemental notice will suffice for the annual notice.
It is EPA's expectation that the permittee will be able to simply
summarize the date, location, duration, and volume information from the
initial and supplemental notice in the annual notice.
    [cir] This edit also includes the addition of the ``cause'' of the
discharge to the information required for the annual notice. EPA
intended that the requirement of Section 425(b)(4)(A)(ii) to describe
the cause of the discharge would be addressed by the requirement to
include rainfall data for each CSO discharge listed in the annual
notice. However, commenters pointed out that wet weather CSO discharges
may also be caused by snowmelt, and the inclusion of daily
precipitation data would not explain the cause of those discharges. EPA
has therefore added ``cause (e.g., rainfall, snowmelt)'' to the list of
required information.
     Sec.  122.38(b)(4)--Added ``cause'' to the list of
required information for each dry weather CSO discharge. Similar to the
explanation above, this revision ensures the final rule is consistent
with the requirement of Section 425(b)(4)(A)(ii) to describe the cause
of the discharge.
     Sec.  122.38(b)(7)--Revised from ``Representative rain
gauge data in total inches to the nearest 0.1 inch that resulted in a
CSO discharge'' to ``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 (Sec.
122.38(b)(2)).''
    [cir] EPA replaced ``rain gauge data'' with ``precipitation data''
because commenters pointed out that rain gauge data may not be
available for every CSO discharge, or in every community. By using
broader terminology, EPA intends to allow communities the flexibility
to use various data sources to meet this requirement. For example, some
communities may choose to simply download daily precipitation data for
their area from a publicly available source (e.g., National Oceanic and
Atmospheric Administration's (NOAA's) National Centers for
Environmental Information's Climate Data Online Search (https://www.ncdc.noaa.gov/cdo-web/search)).
    [cir] As discussed above, one commenter pointed out that wet
weather CSO discharges may be caused by snowmelt, and in those
circumstances it would not be appropriate to be required to report on
rainfall data since it was not affiliated with the discharge. EPA,
therefore, added the qualifier at the end of the sentence ``if
precipitation was the cause of the discharge.''
     Sec.  122.38(b)(8)--Revised from ``A point of contact'' to
``Permittee contact information, if not listed elsewhere on the website
where this annual notice is provided.'' Some commenters pointed out
that the term ``A point of contact'' sounded like an individual
person's name and contact information, and that that information
changes too frequently to be appropriate. This was reworded to be clear
that the contact information requirement is not for an individual
person's contact information, but rather the permittee's contact
information, so that the public has the information necessary to call
the municipality with questions about the annual notice information.
EPA added the latter part of the requirement to provide permittees the
flexibility to provide this information elsewhere on their website, if
it is not already included in an existing annual report that is being
used to meet this annual notice requirement.
    In addition to the above revisions, EPA made one additional
revision to the

annual notice requirement to ensure the final rule was responsive to
the Section 425 requirement to include ``annual publication
requirements that list each treatment works from which the
Administrator or the affected State receive a follow-up notice''
(425(b)(4)(B)). In the proposal, EPA included a requirement for
electronic reporting at Sec.  122.38(c). EPA received several comments
that this requirement was inconsistent with the timing of the NPDES
Electronic Reporting rule and also would be redundant with reporting
requirements of the Electronic Reporting rule. The proposed electronic
reporting at Sec.  122.38(c) would have enabled EPA to query the
database to generate summary level information about the Great Lakes
Basin CSO permittees and publish that information on EPA's website.
Rather than using electronic reporting to satisfy this requirement, EPA
is requiring that Great Lakes Basin CSO permittees notify EPA annually
of the availability of their annual notice. EPA can then use the
information from the annual notice to update the list of Great Lakes
Basin CSO permittees on its website to satisfy the requirements of
Section 425(b)(4)(B). EPA has also required the contact information for
the person responsible for maintaining the website (where the annual
notice is posted) so that any issues with web links that do not work
can be easily resolved. These revisions to the final rule are described
in detail below:
     Sec.  122.38(b)--Revised ``and shall provide the Director
with notice of how the annual notice is available'' to ``and shall
provide the Director and EPA with notice of how the annual notice is
available.'' Also added a new sentence to follow that phrase in order
to provide an email address by which the permittee may provide the
notice to EPA.
     Sec.  122.38(c)--Deleted the proposed rule electronic
reporting requirement in full.

F. Revisions To Provide More Flexibility Regarding Model Re-Calibration

    The proposed public notification plan requirements required larger
communities (permittees with a population of 75,000 or more) that were
using a model to estimate discharge volumes and durations to calibrate
their models at least once every five years. Some commenters raised
concern about the burden of requiring calibration of models at least
once every five years. Since models do not necessarily require
calibration if nothing changes in the system, the final rule will
instead require that permittees with a population of 75,000 or more
assess whether recalibration is necessary at least once every 5 years,
and to recalibrate if it is determined that it is necessary. It is
important for models to be accurately calibrated in order to determine
when overflows are happening. However, EPA does not intend to
unnecessarily burden municipalities if their models do not need to be
calibrated every five years. EPA has therefore made the following
revision:
     Sec.  122.38(d)(9)--Revised ``must calibrate their model
at least once every 5 years'' to ``must assess whether re-calibration
of their model is necessary, and recalibrate if necessary, at least
once every 5 years'' in final rule Sec.  122.38(c)(9).

G. Revisions To Ensure Consultation With Public Health Departments
Regarding Community-Specific Potentially Impacted Public Access Areas

    In the final rule, EPA is requiring permittees to seek input from
the public health department on what areas would be considered
``potentially impacted public access areas'' prior to submitting the
public notification plan. This requirement addresses comments on the
proposal suggesting that EPA define ``potentially affected public
access areas.'' This terminology is used in rule sections on signage,
notification of local public health department and other potentially
affected public entities, notification of the public, and annual
notice. Public access area types vary between communities and may
depend on factors such as local ordinances, local culture, and
geographic features. For instance, in one community, the public access
areas may be defined to include swimming beaches and boat launches,
while in another community they may include fishing streams,
campgrounds, or marinas. Given this potential variability, it is more
appropriate for each community to evaluate its own local circumstances
and determine how best to define these public access areas for their
CSO public notification plan, rather than for EPA to prescribe a
general definition in the final rule to apply to all the Great Lakes
Basin CSO communities. This is the type of information EPA expected
would be discussed with public health departments when consulting with
them on the public notification plan development (as would have been
required in the proposed rule, and is required in the final rule), and
this change explicitly calls this out to ensure it is discussed. The
final rule provides:
     Sec.  122.38(e)(1)(iii)--``Develop recommendations for
areas that would be considered ``potentially impacted public access
areas'' as referenced in 122.38(a)(1), (2), and (3).''

H. Revisions to the Implementation Schedule To Ensure Plans Are
Completed Prior to Beginning Implementation of the Public Notification
Requirements

    In the final rule, EPA is requiring the public notification plan to
be completed within six months and that the notification requirements
be implemented within nine months. The three-month window between plan
completion and implementation of the notification requirements allows
communities time to ramp up for implementation of their notification
plans after the plans have been fully developed, which includes all the
outreach to seek input on the plan from local public health departments
and other potentially affected public entities and Indian Tribes. In
the proposed rule, plan implementation would have begun immediately at
six months, when the plan was completed. Commenters indicated that
additional time may be needed to ramp up implementation after plan
completion, therefore EPA has made these changes in the final rule. EPA
also added clarifying language to the annual notice provision to ensure
the compliance date (which is the year following the effective date of
the rule) is clear. EPA has therefore made the following revision:
     Sec.  122.38(a)--Changed the implementation language from
``provide public notification of CSO discharges as described in this
paragraph after August 7, 2018'' to ``provide public notification of
CSO discharges as described in this paragraph after November 7, 2018.''
     Sec.  122.38(b)--Inserted ``Starting in February 7,
2019,'' prior to ``By May 1 of each calendar year''.

I. Revisions To Add Flexibility for Small Permittees Who Manually
Operate CSO Discharge Controls

    EPA received comments identifying circumstances under which actions
in small communities, to limit the impacts of the actual CSO discharge,
may consume all available staff resources. Under these circumstances
EPA wants to provide clarity that the permittee may take the necessary
actions to address the CSO discharge prior to initiating the start of
the four-hour notification window. To allow for such circumstances, EPA
has revised the requirements as follows:
     Sec.  122.38(a)(3)(i)--At the end of the provision,
inserted a sentence that allows a permittee to identify in its public
notification plan 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 if they identify that all available staff are required to complete
this action, the four-hour notification window will commence upon
completion of that action.
     Sec.  122.38(c)(8)--Inserted, at the end of the provision,
language that the plan 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, if
the circumstances described above are met.

V. Final Rule Implementation

    The public notification provisions are directly required regulatory
requirements (independent of being implemented by permit conditions)
until these conditions are incorporated into the NPDES permit of the
Great Lakes Basin CSO permittee. EPA is using these two regulatory
mechanisms to respond to Section 425(b)(5) of the 2016 Consolidated
Appropriations Act direction that the notice and publication
requirements described in the Act are to be implemented by ``not later
than 2 years after the date of enactment'' of the Act.\9\ The Agency
recognizes that if NPDES permits were the only means of implementing
these requirements, permits would have to be reissued with these
requirements before they would take effect. Given the current status of
CSO permits in the Great Lakes Basin, it would take over five years for
the public notification requirements to be incorporated into all
permits, far beyond the timeframe specified in Section 425. Making the
public notification requirements directly applicable at first, followed
by incorporating them into NPDES permits as they are issued, will
enable all Great Lakes Basin CSO permittees to establish their public
notification system within the same timeframe, and within the timeframe
specified by Section 425(b)(5)(A).
---------------------------------------------------------------------------

    \9\ The Consolidated Appropriations Act, 2016 was enacted on
December 18, 2015.
---------------------------------------------------------------------------

    The requirements of Sec.  122.38(a) (signage and notification
requirements) and Sec.  122.38(b) (annual notice) are enforceable under
the CWA prior to incorporation into a permit under CWA section 308 by
operation of this rule. The requirement to develop a public
notification plan consistent with Sec.  122.38(c) and (d) is
enforceable under CWA section 308. Once public notification
requirements are incorporated into an NPDES permit, they are
enforceable as a permit condition issued under CWA section 402.
    The details and content of the public notification plan, however,
are not enforceable under Sec.  122.38(c) or as effluent limitations of
the permit, unless the document or the specific details of the plan are
specifically incorporated into the permit. Under the final rule, the
contents of the public notification plan are instead intended to
provide a road map for how the permittee would comply with the
requirements of the permit (or with the requirements of Sec.  122.38(a)
and (b) prior to inclusion in the permit as a permit condition). Once
the public notification requirements are incorporated into the permit
as a permit condition, the plan may be changed based on adaptions made
during the course of the permit term, thereby allowing the permittee to
react to new technologies, circumstances and experiences gained during
implementation and to make adjustments to its program as necessary to
provide better public notification and better comply with the permit.
This approach will allow the CSO permittee to modify and continually
improve its approach during the course of the permit term without
requiring the permitting authority to review each change as a permit
modification.

A. Final Rule Requirements

1. Section 122.38 Requirements
    As discussed in detail above, Sec.  122.38 sets forth requirements
that apply to all permittees with CSO discharges to the Great Lakes
Basin. Under this rule, Great Lakes Basin CSO permittees are required
to develop a public notification plan, after seeking and considering
input from public health departments and other potentially affected
public entities. The plan must be submitted to the Director and made
available to the public by August 7, 2018. Section 122.38 also requires
implementation of the signage requirements and notice to affected
public entities and the public by November 7, 2018. The annual notice
requirements apply beginning in February 7, 2019 (or an alternative
date specified by the Director), which allows permittees time to
collect data for the first year. As described in Section V.B.7, the
Director may extend the compliance dates for notification and/or
submittal of the public notification plan for individual communities if
the Director determines the community needs additional time to comply
in order to avoid undue economic hardship.
2. Required Permit Condition
    EPA's rule will require the incorporation of public notice
requirements into NPDES permits for CSO discharges to the Great Lakes
Basin over time as they are issued and renewed. To effectuate this
requirement, EPA is revising the permit application regulation
requirements in Sec.  122.21(j). EPA is adding Sec.  122.21(j)(8)(iii),
which requires the CSO permittees in the Great Lakes Basin to submit a
public notification plan to the Director with its permit application
(and any updates to its plan that may have occurred since the last plan
submission). EPA is also adding a new standard condition at Sec.
122.42(f) that applies to CSO permits, ensuring that CSO public
notification requirements are incorporated into the NPDES permits for
discharges to the Great Lakes Basin and updated over time as
appropriate with each permit cycle. Public notification plans,
submitted with subsequent permit applications, will reflect changes in
collection systems and technology, as well as public notice practices.
By requiring the Great Lakes Basin CSO permittee to include its updated
public notice plan with its permit application, the Director will have
the information he/she needs for including requirements for public
notification in the permit when it is reissued.
    While the rule requires that permits for CSO discharges to the
Great Lakes Basin henceforth include public notification requirements,
it also provides flexibility to allow NPDES permit writers to address
the particular circumstances of each community (e.g., size of
community, differences in public access areas potentially impacted by a
CSO discharge) in a manner that addresses local considerations. At the
same time, however, this provision preserves the authority of the Great
Lakes States to establish more stringent public notification
requirements (see Section 425(b)(6) of the 2016 Consolidated
Appropriations Act) and section 510 of the Clean Water Act. As outlined
in Sec.  122.42(f) of the rule, permits for CSO discharges within the
Great Lakes Basin, at a minimum, will:
     Require implementation of the public notification
requirements in Sec.  122.38(a);
     Specify the information that must be included on discharge
point signage;
     Specify discharge points and public access areas where
signs are required;
     Specify the timing and minimum information for providing
initial notification to local public health departments and other
potentially affected entities, and the public;

     Specify the location of CSO discharges that must be
monitored for volume and discharge duration and the location of CSO
discharges where CSO volume and duration may be estimated;
     Require submittal of an annual notice in accordance with
Sec.  122.38(b); and
     Specify protocols for making the annual notice available
to the public.
    Section 402(q) of the CWA requires NPDES permits for discharges
from combined sewers to ``conform'' to the 1994 CSO Control Policy. One
of the ``Nine Minimum Controls'' identified in the Policy is that NPDES
permits for CSO discharges require public notification to ensure that
the public receives adequate notification of CSO occurrences and CSO
impacts. The permit condition required by this rule conforms to the
1994 CSO Control Policy's minimum control to provide the public with
``adequate notification'' and further provides specificity to better
implement the public notification provision identified in the Policy.
Including this provision in permits gives the Great Lakes States an
opportunity to update and fine-tune public notice requirements to
reflect continued development of the permittee's public notice
approach, ensure consistency with State legislative and regulatory
requirements for public notification, consider new technologies and be
informed by public input. In addition, when public notification becomes
a permit condition, the public will have the opportunity to comment on
the public notification requirements during the permit process.

B. Implementation Considerations

1. Public Notification Plan Development
    The final rule requires that Great Lakes Basin CSO permittees
develop and submit to the Director a public notification plan by August
7, 2018 and again subsequently when the permittee files an application
for permit renewal. In addition, prior to submitting the public
notification plan, CSO permittees must seek and consider input from the
local public health department (or if there is no local health
department, the State health department) and potentially affected
public entities and Indian tribes whose waters may be impacted by CSO
discharges.
    The public notification plans are intended to provide system-
specific detail (e.g., proposed monitoring locations, means for
disseminating information to the public) describing the discharger's
public notification efforts. Having a public notification plan in place
will enhance communication with public health departments and other
potentially affected public entities and Indian tribes whose waters may
be impacted by the CSO discharge. The details within the plan will also
assist NPDES permit writers in establishing corresponding public
notification permit conditions. In addition, the plan will provide the
public with a better understanding of the permittee's public
notification efforts.
    Section 425(b)(3)(A)(iii) of the 2016 Consolidated Appropriations
Act provides that public notice for CSO discharges is to include a
description of any public access areas impacted by the discharge. This
rule requires that public notification plans identify which
municipalities and other public entities may be affected by the
permittee's CSO discharges. Potentially affected public entities whose
waters may be impacted by the CSO discharge could include adjoining
municipalities, public drinking water utilities, State and county parks
and recreation departments. Such areas may have already been identified
in the CSO permittee's LTCP, which should identify CSO discharges to
sensitive areas.\10\ In deciding which public entities and Indian
tribes are ``potentially affected'' and should be contacted for their
input, the Great Lakes Basin CSO permittee should evaluate:
---------------------------------------------------------------------------

    \10\ The CSO Policy clarifies EPA's expectation that a
permittee's LTCP give the highest priority to controlling overflows
to sensitive areas. The Policy provides that sensitive areas, as
determined by the NPDES authority in coordination with State and
Federal agencies, as appropriate, include designated Outstanding
National Resource Waters, National Marine Sanctuaries, waters with
threatened or endangered species and their habitat, waters with
primary contact recreation, public drinking water intakes or their
designated protection areas, and shellfish beds. (59 FR 18692).
---------------------------------------------------------------------------

     The location of the CSO discharge point and what users of
that waterbody may exist in the surrounding region;
     The direction of flow in the receiving water and uses of
that waterbody, or connected waterbodies, downstream of the CSO
discharge point;
     The presence of public access areas near, or downstream
of, the discharge point;
     The presence of drinking water supply systems near, or
downstream of, the discharge point; and
     The presence of municipal entities, Indian tribes, and/or
parks and recreation department lands near, or downstream of, the
discharge point.
    Local public health departments, public entities, and Indian tribes
whose waters may be impacted by a CSO discharge are in a unique
position to provide input on the timing, means and content of the
public notification requirements addressed in this rule. Seeking input
from these entities allows the permittee to reflect in the public
notification plan the needs and preferences of these entities. Also,
these groups can help inform decisions regarding the most appropriate
means of communicating information to the public, taking into
consideration specific populations in the community and their access to
various electronic communication methods and social media. For example,
if there is a segment of the population without access to cell phones
or computers, or that would incur costs by receiving text
notifications, the consulted entities may suggest other methods of
communication that would be more appropriate to reach these groups
(e.g., radio broadcast, postings in public places, announcements
through community flyers).
    The plan will also describe how the volume and duration of CSO
discharges will be either measured or estimated. If the Great Lakes
Basin CSO permittee intends to use a model to estimate discharge
volumes and durations, the plan is required to summarize the model and
describe how the model was or would be calibrated. CSO permittees that
are a municipality or sewer district with a population of 75,000 or
more are required to assess whether re-calibration of their model is
necessary, and recalibrate if necessary, at least once every 5 years.
2. Annual Notice
    The final rule includes revisions to improve clarity and allow more
flexibility regarding the annual notice requirements. The added
flexibilities are intended to allow Great Lakes Basin CSO permittees
that are already subject to existing State or local reporting
requirements, which contain the same information as required in this
rule's annual notice requirement, to use these reports to meet this
rule's requirements. For example, New York State requires a Combined
Sewer Overflow Annual Report which contains several of the components
in the rule's annual notice requirements. Great Lakes Basin CSO
permittees in New York may choose to provide a copy of this Annual
Report along with a supplemental report or appendix that addresses the
remaining components.
    The flexibilities also allow a permittee, whose State permitting
authority publishes an annual CSO report that contains the same
information for a Great Lakes Basin CSO permittee as is required in
this rule's annual notice requirement, to use the

State report to meet the rule's requirements. For example, in addition
to existing annual reports permittees may be preparing, in at least one
of the Great Lakes States (Michigan), the State prepares an annual CSO
report summarizing information on all the Great Lakes Basin (and other)
CSO permittees. Michigan's annual report provides the majority of the
information that the final rule requires, and after discussions with
the State, EPA anticipates that Michigan will make some minor
adjustments to the data presented in its annual report to ensure it
addresses all of the requirements for annual notice and thus enable
Great Lakes Basin CSO permittees in Michigan to simply provide a link
to the State annual report to meet their annual notice requirements.
3. Coverage of Partially Treated CSOs
    The rule includes definitions of ``Combined Sewer System'' and
``Combined Sewer Overflows'' at Sec.  122.2. The definition of combined
sewer system is based on the description of combined sewer system found
in the 1994 CSO Policy. The Policy provides that ``A combined sewer
system (CSS) is a wastewater collection system owned by a State or
municipality (as defined by Sec.  502(4) of the CWA) which conveys
sanitary wastewaters (domestic, commercial and industrial wastewaters)
and storm water through a single-pipe system to a Publicly Owned
Treatment Works (POTW) Treatment Plant (as defined in Sec.
403.3(p)).'' (59 FR 18689) The definition of combined sewer overflow
also conforms to the description of CSO in the CSO Policy, which
specifies that a ``CSO is the discharge from a CSS at a point prior to
the POTW Treatment Plant.''
    In the proposed rule preamble, EPA requested comment on whether it
would be appropriate to establish alternative public notice
requirements for CSO discharges that are treated to a specified level
(e.g., primary treatment plus disinfection). EPA also requested comment
on whether the final regulations should provide additional flexibility
for Great Lakes Basin CSO permittees to recommend in their public
notification plan different public notification procedures for treated
CSO discharges as compared to untreated CSO discharges. Some commenters
(including the Indiana Department of Environmental Management (IDEM))
recommended that the final rule requirements only apply to untreated
CSO discharges. However, many other commenters (including the New York
State Department of Environmental Conservation (NYDEC) and Ohio EPA)
supported the approach in the proposed rule where the requirements
would apply to all CSO discharges. EPA decided to finalize the
definition and scope of the rule as proposed, which treats untreated
and partially treated CSOs alike for the purpose of public notice. As
the preamble to the proposed rule explained (82 FR 4249), CSO
discharges that only receive primary treatment prior to disinfection
may have levels of viruses and other pathogens that are higher than
discharges of wastewater that are treated by secondary treatment
processes prior to disinfection, and they may also have higher levels
of trihalomethanes and other disinfection byproducts.\11\ There is no
indication that Section 425 contemplated lesser notification to the
public for partially treated discharges, and the CSO Policy treats
untreated and partially treated discharges alike.
---------------------------------------------------------------------------

    \11\ As EPA noted in the preamble to the proposed rule,
traditional bacteria indicators that are used in State water quality
standards may not be the best indicators of viral and other
pathogens associated with fecal contamination. CSO discharges that
only receive primary treatment prior to disinfection and that meet
water quality standards based on indicator bacteria may have levels
of viruses and other pathogens that are higher than discharges of
wastewater that are treated by secondary treatment processes prior
to disinfection. This is because bacteria respond to water treatment
processes and environmental degradation processes differently than
viruses. In addition, particles in wastewater may shield pathogens
from disinfection. CSO discharges that only receive primary
treatment prior to disinfection may also have higher levels of
trihalomethanes and other disinfection byproducts due to the higher
concentration of chlorine needed to disinfect and potential
interactions with particles in the wastewater.
---------------------------------------------------------------------------

4. Precipitation-Related Events and Grouping CSO Notifications for
Multiple Discharges
    EPA intends that multiple discharges that result from the same
precipitation-related event, even if they are not occurring at exactly
the same time, may be grouped together in one public notification. EPA
has revised the wording in the final rule to make this clearer, as is
described in Section IV.B. EPA also revised the wording in the final
rule to clarify that snowfall and snowmelt may also be the cause of a
wet weather CSO discharge by changing ``precipitation event'' to
``precipitation-related event'', as described in Section IV.B.
    EPA has not further defined ``event'' in this rule. Because
permittees have been tracking and reporting CSO discharge data for many
years to meet permit requirements and commitments made in long-term
control plan and related documents, EPA expects that the Director and
the permittee have already established what constitutes separate CSO
events and precipitation events for reporting purposes. It is not EPA's
intention to change that approach with this rulemaking; rather, the
purpose of this rulemaking is to ensure information about CSO
discharges is provided to the public, public health departments, and
other affected entities.
5. Initial Notification Timing
    The rule requires that an initial notice be provided to the local
public health departments and other potentially affected entities as
well as the public ``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.'' EPA selected four hours because it is
prompt enough to allow the public to make informed decisions regarding
areas where they would visit and recreate before doing so; while it is
also a long enough amount of time to allow permittees to initiate
notification processes.
    By using language that combines a definitive deadline (i.e., no
later than four (4) hours after becoming aware) with language that
requires notification ``as soon as possible,'' EPA provides flexibility
to minimize the increased burden of the requirement as much as
possible. One important consideration was the existing staffing hours
at some POTWs. From speaking to State Directors and hearing from
permittees in comment letters and the public listening session, EPA is
aware that not all permittees have staff monitoring for combined sewer
overflows at all hours. While EPA is accounting for some additional
burden on permittees because of this rule (including in the form of
staff resources), it is not EPA's intention for permittees to
significantly change staff hours, or hire new staff, in order to
increase monitoring for CSO discharge. Rather, EPA expects that the
initial notification would begin at the time that the permittee becomes
aware of the CSO discharge. EPA therefore used the wording ``after
becoming aware'' to trigger the beginning of the four-hour timeframe.
For example, if a CSO discharge occurred on a Sunday evening at 8:00
p.m. but the permittee did not become aware of the discharge until
staff reported to work at 7:00 a.m. on Monday morning, the four-hour
timeframe would begin at 7:00 a.m. on Monday and the permittee would
need to provide the initial notice as soon as possible but no later
than 11 a.m. on Monday.
    In consideration of circumstances in which a small community has
limited staff (e.g., one person is required to

handle all response activities), and that staff member must take a
physical action to limit the public health impacts of a CSO discharge
(including continuing to implement its existing practice of conducting
inspections of CSO discharge points during the discharge), EPA has
added a flexibility to the final rule to ensure that the permittee is
able to complete that physical action before focusing on sending out
the public notification. This change is described in Section IV.I.
6. CSO Discharge Modeling/Monitoring
    EPA expects that most permittees already have a system in place by
which they monitor, model, or otherwise estimate when CSO discharges
have occurred. This approach is often established in the LTCP or other
planning or operational document. EPA expects that most communities
would use that same approach and/or data to inform the notification
provided in response to this rule. The rule does not specifically
require additional monitoring beyond what the CSO permittee already has
in place for compliance with the current CSO Policy and other existing
regulations; therefore, permittees would not need to purchase
additional monitoring equipment or establish an expensive model.
    As noted in the preamble to the proposed rule (82 FR 4233), EPA
anticipates that some communities may choose to estimate when CSO
discharges may occur based on weather forecasts and provide
notification in advance of a precipitation-related event. From a review
of State-issued permits and additional State requirements pertaining to
CSOs, EPA found that all seven States within the Great Lakes Basin
require permittees to report the occurrence of a CSO discharge. Some
States also require permittees to report CSO discharge duration, CSO
discharge start and end times, and precipitation data associated with
each CSO discharge. By using historic CSO discharge and precipitation
data, along with certain system and service area characteristics that
are already known and readily available, a predictive approach provides
a simplified method to estimate a precipitation threshold that can be
expected to cause a CSO discharge on a per discharge point basis. This
method can be used to provide timely notification to the public, local
public health departments, and other potentially affected public
entities. EPA considered that there may be smaller communities that
would like to provide public notification using a predictive approach,
but they may not know the precipitation threshold at which they should
trigger the advanced notice. For these communities, EPA has included a
memo to the record describing how one might establish a precipitation
threshold that can be used to meet the initial public notification
requirements of the rule (see the ``Predictive Approach Memo for the
Great Lakes Basin'' in the rulemaking docket). EPA's memo suggests
correlating historic CSO occurrence data with precipitation data
obtained from rain gauges near CSO discharge points, if available, or
readily available data from the National Oceanic and Atmospheric
Administration's National Centers for Environmental Information Climate
Data Online Search (https://www.ncdc.noaa.gov/cdo-web/search) to
determine a reasonable precipitation threshold that would be expected
to cause a CSO discharge.
7. Extending Compliance To Avoid Economic Hardship
    Section 425(b)(5)(A) of the 2016 Appropriations Act provides that
the notice and publication requirements of the provision must be
implemented within two years, unless the EPA Administrator determines
the community needs additional time to comply in order to avoid undue
economic hardship. All of the Great Lakes States are authorized to
administer the NPDES program. Because EPA is implementing Section 425
as part of the NPDES permit program, this determination may be made by
the Director or by the Administrator. In EPA's view, the State as the
NPDES authority is in a better position to evaluate the economic
conditions and financial capability of the permittee as they have
worked with individual communities to ensure implementation of their
LTCPs.
    The rule requires that the Great Lakes Basin CSO permittee must
submit a public notification plan to the Director of the NPDES program
by August 7, 2018. The Great Lakes Basin CSO permittee is required to
comply with the public notice requirements of Sec.  122.38 within nine
months, and in the next calendar year in the case of annual
notification, unless the Director specifies a later date to avoid
economic hardship. Under Sec.  122.38(e), the Director may extend the
compliance dates for public notification under Sec.  122.38(a), annual
notice under Sec.  122.38(b), and/or public notification plan submittal
under Sec.  122.38(c) for individual communities if the Director
determines the community needs additional time to comply in order to
avoid undue economic hardship. The rule requires the Director to notify
the Regional Administrator of the extension and the reason for the
extension. In addition, the Director is required to post on its website
a notice that includes the name of the community and the new compliance
date(s).
    The requirement to post this information on the Director's website
provides the public with information on any exceptions that have been
made to the compliance date. Because financial resources will vary
among communities due to community size, annual revenue, staffing and
consultant resources, other program expenses (e.g., existing long-term
control plan commitments) and other factors, EPA is not establishing
specific criteria to define economic hardship in the final rule.
Instead, EPA is providing the Director with the flexibility to evaluate
each community's specific circumstances to decide if an extension to
the compliance date is needed.

VI. Incremental Benefits and Costs of the Rule

    EPA anticipates there will likely be public health benefits from
decreased bodily exposure to sewer overflows but did not quantify these
benefits. EPA views these new notification requirements as a minimal
increase in existing costs that permittees are already incurring due to
existing permit requirements that conform to the CSO Control Policy
codified in CWA 402(q).

A. Benefits of the Rule

    This rule is expected to protect public health by ensuring timely
notification to the public and to public health departments, public
drinking water facilities and other potentially affected public
entities, including Indian tribes. It provides additional specificity
beyond existing public notification requirements to ensure timely and
consistent communication to the public regarding combined sewer
overflows in the Great Lakes Basin. It also acknowledges the
significant technology changes that have occurred since the original
requirements were developed in 1994 which allow direct public access to
real-time information. Timely notice may allow the public and affected
public entities to take steps to reduce the public's potential exposure
to pathogens associated with human sewage, which can cause a wide
variety of health effects, including gastrointestinal, skin, ear,
respiratory, eye, neurologic, and wound infections. Although EPA has
not quantified these benefits, the expected reduction in human exposure
to pathogens may provide a net public health benefit from this rule.
See ``Benefits of Abating

Sanitary Sewer Overflows (SSOs)'' in the rulemaking docket for a
discussion of some of the many potential benefits that can be expected
from reducing exposure to raw sewage discharges.
    Because of these expected public health benefits, EPA has chosen to
implement the requirements with a two-stage approach which ensures that
the benefits of the rule can begin to accrue as quickly as possible,
rather than delaying these public health benefits until future permit
renewals which for some permittees could be as long as five years away
(or even more if a permit is administratively continued by the
permitting authority).
    The rule also improves transparency and accountability to the
public about the presence and magnitude of CSO discharges in their
community. Many permittees already report to their Director on the
occurrence, duration, volume, and cause of CSO discharges; however,
that information is often difficult for communities to find and
interpret. Through a complete, consistent, and easily accessible annual
notice that is shared with the public, community members can gain
perspective on this important water pollution issue and they are able
to see progress that is being made to reduce discharges.

B. Costs of the Rule

    The ``Analysis of Costs and Executive Orders'' (available in the
rulemaking docket) estimates the incremental costs of requiring CSO
permittees that discharge to the Great Lakes Basin to provide public
notification of CSO discharges. Table 3 summarizes the estimated
incremental costs for the rule.

                                        Table 3--Annual Incremental Costs
                                         [Average of first three years]
----------------------------------------------------------------------------------------------------------------
                                                     Number of
                    Category                       entities per     Labor costs   Capital/start-       Total
                                                     category                      up/O&M costs
----------------------------------------------------------------------------------------------------------------
CSO permittees with a population of less than                 54        $110,000         $30,600        $140,000
 10,000.........................................
CSO permittees with a population of between                   69         140,000          26,600         167,000
 10,000 and 50,000..............................
CSO permittees with a population of more than                 35         130,000          13,300         143,000
 50,000.........................................
States..........................................               7           7,000               0           7,000
                                                 ---------------------------------------------------------------
    Totals......................................             165         387,000          70,500         457,000
----------------------------------------------------------------------------------------------------------------
Note: Cost values in table are rounded to three significant figures.

    The average incremental cost per CSO permittee is about $2,850 per
year and the total annual incremental cost on all CSO permittees is
about $450,000.
    The cost analysis assumes that costs will be borne by Great Lakes
Basin CSO permittees in the form of one-time implementation activities
that would occur within one to two years, once-per-year activities
including an annual notice, and ongoing activities that would occur
during and after CSO discharges. The cost analysis also accounts for
costs to State agencies, mainly in the review of CSO permittee plans
and reports.

VII. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any revisions
made in response to interagency review have been documented in the
docket for this action. In addition, EPA prepared an analysis of the
potential costs associated with this action. This analysis, ``Analysis
of Costs and Executive Orders,'' is summarized in Section VI and is
available in the docket.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is considered an Executive Order 13771 regulatory
action. Details on the estimated costs of this final rule can be found
in EPA's ``Analysis of Costs and Executive Orders,'' which is available
in the docket. Also see Section VI.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 2562.01. The ICR is
summarized here; a complete copy can be found in the docket. The
information collection requirements are not enforceable until OMB
approves them.
    As discussed in section V.A of this document, NPDES permits for CSO
discharges to the Great Lakes Basin will require permittees to provide
public notification to ensure that the public receives adequate notice
of CSO occurrences and CSO impacts. The information burden associated
with this provision is approved in ``Information Collection Request for
NPDES Program (Renewal),'' OMB Control No. 2040-0004, EPA ICR No.
0229.21. EPA has developed an additional analysis to provide a better,
updated estimate of the public notification requirements. The analysis
used to develop these estimates is described in ``ICR Supporting
Statement, Information Collection Request: Public Notification
Requirements for CSOs in the Great Lakes Basin,'' EPA ICR number
2562.01. Key estimates and assumptions in the analysis include:
     69% percent of existing discharge points (outfalls) for
all CSO permittees have already installed signs and they are being
maintained;
     Over 60% of the CSO permittees already have a system for
developing estimates of the occurrence and volume of discharges from
CSO discharge points;
     Each Great Lakes Basin CSO permittee already operates a
website that can be modified to provide the public with notification of
a CSO event;
     Larger CSO communities may have access to listserv
technology;
     Electronic technology significantly reduces the burden of
providing initial and supplemental notification to the public and to
local public health departments and other affected public entities;
     Much of the effort in developing public notification plans
is included in burden estimates for the individual public notification
components in the proposal. The activities attributed to the

burden for the public notification plan include preparation of the
document describing the public notification activities.
     The burdens on the NPDES authority for permit renewals are
applied to one-fifth of all Great Lakes Basin CSO permits within each
State beginning in year 2 of the ICR to account for the five year
permit term.
    The public notification requirements in this rule are designed to
alert the public and public health departments, and other potentially
affected entities of CSO discharges in a more wide-spread and timely
manner than is currently practiced. The notification requirements which
involve distribution of CSO discharge related information (e.g., CSO
discharge location, receiving waterbody, time started, time ended,
volume) to the public and affected local governmental agencies would
enable potentially affected parties to take action that may help
prevent serious health effects that may otherwise occur if they were to
remain unaware of the occurrence of CSO discharges.
    Respondents/affected entities: The ICR covers information that must
be provided by operators of combined sewer systems (Great Lakes Basin
CSO permittees) that discharge within the watershed of the Great Lakes
Basin. In addition, the ICR covers information burdens of the seven
NPDES authorized States that are implementing the program and the
estimated 158 public health departments that are consulting on the
public notification plan.
    Respondent's obligation to respond: Compliance with the
notification requirements would be mandatory. Requirements for public
notification of CSO discharge are part of the ``nine minimum controls''
established as part of EPA's CSO Control Policy. Section 425 of the
Consolidated Appropriations Act of 2016 (Pub. L. 114-113) requires EPA
to work with the Great Lakes States to establish these public notice
requirements.
    Estimated number of respondents: EPA has identified 158 CSO
communities that discharge to the Great Lakes Basin, seven State NPDES
permitting authorities, and 158 public health departments.
    Frequency of response: Responses include one-time implementation
activities, such as signage, activities that occur once per year, such
as providing annual notice, and ongoing activities that would occur
during and after CSO discharge events.
    Total estimated burden: EPA estimates that the burden of
implementing the rule would be 10,301 hours per year. Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: EPA estimates that the rule would cost
$457,000 per year during the three year ICR period. This is the total
annual incremental cost for all 158 Great Lakes Basin CSO permittees
and seven State NPDES authorities. The average incremental cost per CSO
permittee is about $2,850 per year and the average incremental cost per
State NPDES authority is about $1,000.
    EPA may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number. The OMB control numbers for the EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, the Agency will announce that approval in the Federal
Register and publish a technical amendment to 40 CFR part 9 to display
the OMB control number for the approved information collection
activities contained in this final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
small entities subject to the requirements of this action are small
governmental jurisdictions. The Agency has determined that 123 (78%) of
the 158 communities discharging CSOs to the Great Lakes Basin are
governmental jurisdictions with a population of less than 50,000 and
thus can be classified as small entities. EPA evaluated the potential
impact on annual revenue that these small entities may experience.
Nearly all of the small communities (121 of 123 communities) are
expected to experience an impact of less than 1% of annual revenue. Two
communities may experience an impact of greater than 1% of annual
revenue (one potentially experiencing an impact slightly over 1% and
the other approximately 2%). Details of this analysis are presented in
the Analysis of Costs and Executive Orders which is available in the
docket.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538. EPA has conducted a cost
analysis examining the potential burden to State, tribal and local
governments. Details of this analysis are presented in the Analysis of
Costs and Executive Orders which is available in the docket. EPA
estimates that the costs of the rule to States, tribes and local
governments will be well below $100 million per year. In addition, EPA
compared the estimated annualized cost of the rule and revenue
estimates for small local governments using four estimates of revenue
data. The annualized compliance cost as a percentage of annual
government revenues is below 1%. EPA concludes that the impact of the
rule is very unlikely to reach or exceed 1% of small local government
revenue.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
    The rule includes a requirement for CSO permittees to notify the
public of CSO discharges. This requirement includes the development of
a public notification plan and the release of an annual notice that
includes monitoring data. The incremental impact to State permitting
authorities is estimated to be approximately $1,000 annually per State.
The incremental impact to local permittees may range from a total of
$1,000 to $4,000 annually per CSO permittee, depending on the number of
CSO events and preparation time for the annual notice. Details of this
analysis are presented in ``Analysis of Costs and Executive Orders,''
which is available in the docket (Docket ID No. EPA-HQ-OW-2016-0376
http://www.regulations.gov).
    Keeping with the spirit of E.O. 13132 and consistent with EPA's
policy to promote communications between EPA and State and local
governments, and Section 425's direction to work with the States, EPA
met with State and local officials throughout the process of developing
the proposed rule and received feedback on how potential new regulatory
requirements would affect them. EPA engaged in extensive outreach via
conference calls to affected States to enable officials of affected
States to have meaningful and timely input into the development of the
proposed and final rule. EPA also held a public listening session and
solicited written comments from the public and impacted stakeholder
groups, including affected municipalities, to inform the development of
the public notice proposed requirements. See Docket ID No. EPA-HQ-OW-
2016-0376 to the Federal eRulemaking Portal: http://www.regulations.gov.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175 since it does not have a direct substantial
impact on one or more federally recognized tribes. No tribal
governments are authorized NPDES permitting authorities and none of the
combined sewer systems subject to this rule are located on Indian
nation lands.
    The rule would address the way in which municipalities share
information with the public, public health departments, and potentially
impacted communities (including Indian tribes) about CSOs in the Great
Lakes Basin. EPA therefore evaluated the proximity of CSSs that would
be subject to the rule in relation to Indian lands. EPA identified six
CSO permittees with the potential to affect waters near four Indian
nations in New York State:
     Seneca Nation of Indians (SNI): The Dunkirk WWTP is
located south of the Cattaraugus Reservation. The Buffalo Sewer
Authority and Niagara Falls WWTP are located close to SNI lands within
the city of Niagara Falls, NY and Buffalo, NY (where the Seneca casinos
are located).
     Tuscarora Nation (TN): The Tuscarora Nation lands are
located directly between the Niagara Falls WWTP and Lockport WWTP but
not on the Niagara River or Eighteen Mile Creek.
     Tonawanda Seneca Nation (TSN): The Medina WWTP is located
10 miles north of the Tonawanda Seneca Nation lands.
     St. Regis Mohawk Tribe (SRMT): Any of the three WWTP
plants along the St. Lawrence River would be of concern to the Mohawks
at Akwesasne. SRMT is directly impacted by the Massena WWTP as the St.
Lawrence River goes directly thru the heart of Akwesasne, the St. Regis
Mohawk Tribe's reservation lands.
    Consistent with the EPA Policy on Consultation and Coordination
with Indian Tribes,\12\ EPA conducted outreach to tribal officials
during the development of this action. EPA contacted the above
mentioned tribes through outreach conducted by EPA's Office of
Environmental Justice to ensure they were aware of the opportunity to
provide public comments on the proposed rule. In addition, when EPA
held the public listening session while the proposed rule was under
development, EPA conducted outreach to tribes to ensure awareness of
the public listening session, and the associated opportunity to provide
written comments to the Agency. In addition, the rule requires Great
Lakes Basin CSO permittees to consult with potentially affected Indian
Tribes whose waters may be impacted by a CSO discharge prior to
submitting the public notification plan. This requirement ensures that
needs of tribes using potentially impacted waters are considered in
terms of timing of notification, the type of information that is
provided, and the means by which public notification is communicated.
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    \12\ https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf.
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H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The rule would, in some cases, increase public awareness of
CSO discharges to the Great Lakes Basin, including information about
public use areas such as beaches that may be impacted by contaminated
CSO discharges, and by doing so could decrease health risks for
children, infants, and adults.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. The rule requires CSO permittees to
notify the public of CSO discharges.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA determined that the human health or environmental risk
addressed by this action would not have potential disproportionately
high and adverse human health or environmental effects on minority,
low-income, or indigenous populations, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994). This action affects the way in
which Great Lakes Basin CSO permittees communicate information
regarding CSO discharges to the public. It does not change any current
human health or environmental risk standards.
    However, because the rule would address the way in which
information about CSO discharges is communicated to the public, EPA did
reach out to environmental justice organizations to specifically
solicit input on what may be the best approaches to reaching
environmental justice communities with this information. Prior to the
public listening session on September 14, 2016, EPA contacted over 800
environmental justice stakeholders through the Office of Environmental
Justice Listserv, to ensure they were aware of the listening session
and the opportunity to provide written input to the Agency through the
public docket. EPA again reached out via this Listserv to ensure
environmental justice stakeholders were aware of the public comment
period for the proposed rule.
    In addition, the rule requires the Great Lakes Basin CSO permittee
to consult with local public health departments and potentially
affected public entities when developing the public notification plan.
These consultations may alert the Great Lakes Basin CSO permittee to
specific environmental justice community considerations regarding the
best ways to effectively communicate this information.

L. Congressional Review Act

    This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects

40 CFR Part 122

    Environmental protection, Combined sewer overflow, Public
notification, Reporting, Water pollution.

40 CFR Part 123

    Environmental protection, Combined sewer overflow, Public
notification, Reporting, Water pollution.

    Dated: December 18, 2017.
E. Scott Pruitt,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR parts
122 and 123 as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
2. In Sec.  122.2, add the definitions ``Combined sewer overflow
(CSO)'', ``Combined sewer system (CSS)'', and ``Great Lakes Basin'' in
alphabetical order to read as follows:

 Sec.  122.2  Definitions.

* * * * *
    Combined sewer overflow (CSO) means a discharge from a combined
sewer system (CSS) at a point prior to the Publicly Owned Treatment
Works (POTW) Treatment Plant (defined at Sec.  403.3(r) of this
chapter).
    Combined sewer system (CSS) means a wastewater collection system
owned by a State or municipality (as defined by section 502(4) of the
CWA) which conveys sanitary wastewaters (domestic, commercial and
industrial wastewaters) and storm water through a single-pipe system to
a Publicly Owned Treatment Works (POTW) Treatment Plant (as defined at
Sec.  403.3(r) of this chapter).
* * * * *
    Great Lakes Basin means the waters defined as ``Great Lakes'' and
``Great Lakes System'' as those terms are defined in Sec.  132.2 of
this chapter.
* * * * *

0
3. In Sec.  122.21, add paragraph (j)(8)(iii) to read as follows:

Sec.  122.21  Application for a permit (applicable to State programs,
see Sec.  123.25).

* * * * *
    (j) * * *
    (8) * * *
    (iii) Public notification plan for CSO discharges to the Great
Lakes Basin. Each permittee authorized to discharge a combined sewer
overflow to the Great Lakes Basin as defined in Sec.  122.2 must submit
a public notification plan developed in accordance with Sec.  122.38 as
part of its permit application. The public notification plan shall
describe any significant updates to the plan that may have occurred
since the last plan submission.
* * * * *

0
 4. Add Sec.  122.38 to read as follows:

Sec.  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