[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Proposed Rules]
[Pages 4233-4255]
[FR Doc No: 2016-31745]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 123

[EPA-HQ-OW-2016-0376; FRL-9957-40-OW]
RIN 2040-AF67

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 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 proposed requirements address
signage, notification of local public health departments and other
potentially affected public entities, notification to the public, and
annual notice provisions.
    The proposed rules, when finalized, will 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. Timely notice may
allow the public to take steps 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.

DATES: Comments must be received on or before March 14, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2016-0376 to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or withdrawn. EPA
may publish any comment received to its public docket. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (e.g.,

on the web, cloud, or other file sharing system). For additional
submission methods, the full EPA public comment policy, information
about CBI or multimedia submissions, and general guidance on making
effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-s.

FOR FURTHER INFORMATION CONTACT: Kevin Weiss, 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_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency proposing?
    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. Examples of Existing Public Notification Practices in CSO
Communities
    G. Existing State-Level Public Notification Requirements for
CSOs in the Great Lakes Basin
    H. Working With the Great Lakes States and Requesting Public
Input
III. Proposed Requirements
    A. Overview of Proposal
    B. Types of Notification
    1. Signage
    2. Initial and Supplemental Notice to Local Public Health
Officials and Other Potentially Affected Public Entities
    3. Initial and Supplemental Notice to the Public
    4. Annual CSO Notice
    C. Public Notification Plans
    D. Implementation
    1. Section 122.38 Requirements
    2. Required Permit Condition
    E. Additional Considerations
    1. Definitions
    2. List of Treatment Works
    3. Adjusting Deadlines To Avoid Economic Hardship
    4. Notification of CSO Volumes
    5. Treated Discharges
    6. More Stringent State Requirements
    7. Reporting
    8. Ambient Monitoring
IV. Incremental Costs of Proposed Rule
V. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. Does this action apply to me?

    Entities within the Great Lakes Basin potentially regulated by this
proposed action include:

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                                                         North American
                                                            industry
            Category                  Examples of        classification
                                   regulated entities    system (NAICS)
                                                              code
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Federal and state government....  EPA or state NPDES              924110
                                   permit authorities.
Local governments...............  NPDES permittees                221320
                                   with 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. To determine whether your entity is regulated by this
action, you should carefully examine the applicability criteria found
in Sec.  122.32 title 40 of the Code of Federal Regulations, and the
discussion in the preamble. 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 proposing?

    EPA is proposing a rule to establish public notification
requirements for CSOs to the Great Lakes Basin. The proposed rule would
implement Section 425 of the Consolidated Appropriations Act of 2016
(Pub. L. 114-113) (hereafter referred to as ``Section 425''), which
requires EPA to work with the Great Lake states to establish public
notice requirements for CSO discharges to the Great Lakes and
prescribes minimum requirements for such notice. EPA sought and
considered public input during the development of the proposed rule.
    This proposal includes required methods for CSO permittees in the
Great Lakes Basin to provide public notification of CSO discharges and
for the minimum content of such notification. The proposed requirements
for methods of providing public notice of CSO discharges include
signage, initial and supplemental notice to potentially affected public
entities and to the public, and an annual notice that allows for
analysis of trends in combined sewer system performance and the
operator's plans for CSO controls. In addition, EPA proposes
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 proposed public
notification requirements. EPA proposes that Great Lakes Basin CSO
permittees would submit the public notification plan to the NPDES
permitting authority (``Director'') within six months after publication
of a final regulation. The public notification plan would provide a
means of public engagement on the details of implementation of the
notification requirements.
    Under the proposal, the public notification provisions, including
the requirement to develop a public notification plan, would be
implemented through two regulatory mechanisms. First, EPA proposes to
add

a new section to the NPDES permit regulations, to be codified at 40 CFR
122.38, establishing the public notification requirements for Great
Lakes CSO permittees. The proposed requirements in Sec.  122.38 would
apply directly to Great Lakes CSO permittees until their NPDES permits
are next reissued after publication of a final regulation.
    EPA proposes that the requirements for developing the public
notification plan and the methods of notification other than the annual
notice would directly apply to CSO permittees that discharge to the
Great Lakes Basin six months after publication of a final regulation.
EPA proposes that the annual notice requirements would directly apply
one year after publication of a final regulation to allow permittees
time to collect data for a full year. Under this proposal, the Director
could 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.
    Second, under this proposal, the public notification requirements
for CSO discharges to the Great Lakes Basin would be implemented as a
condition in NPDES permits when they are next reissued after
publication of a finale regulation. EPA proposes that when the
permittee's CSO NPDES permit is reissued, the permit would be required
to include a permit condition addressing public notification of CSO
discharges to the Great Lakes Basin. The proposed permit condition
would incorporate the proposed 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. This two-
stage implementation approach would ensure that the requirements of
Section 425 will be implemented during the interim period before the
permit condition is incorporated into the relevant NPDES permits,
consistent with Section 425, which requires implementation by December
18, 2017.
    The objectives of these proposed requirements are to:
     Ensure 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 to reduce their potential exposure
to pathogens associated with the discharges.
     Ensure 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 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 affected by CSO discharges.
     Provide the community and interested stakeholders with
effective and meaningful follow-up notification that allows for
analysis of trends in combined sewer system (CSS) performance and
provides stakeholders with information on the CSS operator'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.

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

    The authority for this rule is 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).

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
some 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.
    Under normal, dry weather conditions, combined sewers transport all
of the combined wastewater (sewage and stormwater runoff) 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, water quality impairment, and
contaminate drinking water supplies and shellfish beds. CSOs can also
cause depleted oxygen levels which can impact fish and other aquatic
populations.
    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 10,000 people. Most CSSs have
multiple CSO discharge locations or outfalls, with some larger
communities with

combined sewer systems having hundreds of CSO outfalls.

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, 190 permits \1\ are for CSO discharges to
waters located in the watershed for the Great Lakes and the Great Lakes
System (``Great Lakes Basin'').\2\ The 190 permits for CSO discharges
to the Great Lakes Basin have been issued to 182 communities \3\ or
permittees. These permittees are located in the states of New York,
Pennsylvania, Ohio, Michigan, Illinois, Indiana, and Wisconsin. 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).
Hereafter, the owner or operator of a CSS is referred to as a ``CSO
permittee.''
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    \1\ 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 833-R-16-006). EPA has adjusted that estimate to
reflect additional information. First, six CSO permittees identified
in the Report to Congress were subtracted because their permit
coverage had been terminated due to sewer separation or other
reasons. Second, EPA conducted a GIS analysis and verified with
States that 12 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 18 permits is available in the docket for this
rulemaking.
    \2\ Section 425 specifies in Section 425(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.''
    \3\ The number of CSO communities in the Great Lakes Basin is
different than the number of CSO permits. Four CSO communities have
more than one CSO NPDES permit. These include Metropolitan Water
Reclamation District of Greater Chicago (MWRDGC) (4 permits); Wayne
County, MI (4 permits); Oakland County, MI (2 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.
[GRAPHIC] [TIFF OMITTED] TP13JA17.001

    EPA recently summarized available information on the occurrence and
volume of discharges from CSOs to the Great Lakes Basin during 2014
(see Report to Congress: Combined Sewer Overflows into the Great Lakes
Basin (EPA 833-R-16-006)), 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 treated
sewage was discharged. For the purposes of the Report, 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 1
provides the size distribution of the 182 CSO communities in the Great
Lakes Basin.

                       Table 1--Great Lakes Basin CSO Communities by Community Population
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              Community Population                  Over 50,000    10,000-49,999   Under 10,000        Total
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Number of CSO Communities.......................              32              70              80             182
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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.\4\ 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 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.\5\
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    \4\ Report to Congress--Implementation and Enforcement of the
Combined Sewer Overflow Control Policy. EPA 833-R-01-003, 2002;
Report to Congress--Impacts and Control of CSOs and SSOs. EPA 833-R-
04-001, 2004; Report to Congress: Combined Sewer Overflows to the
Lake Michigan Basin. EPA 833-R-07-007, 2007. See https://www.epa.gov/npdes/combined-sewer-overflows-policy-reports-and-training.
    \5\ Report to Congress--Impacts and Control of CSOs and SSOs.
EPA 833-R-04-001, 2004. See https://www.epa.gov/npdes/combined-sewer-overflows-policy-reports-and-training.
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C. The CSO Control Policy and Clean Water Act Framework for Reducing
and Controlling Combined Sewer Overflows

    The Clean Water Act (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.\6\ Permits authorizing discharges
from CSO outfalls must include more stringent water quality-based
requirements, when necessary, to meet water quality standards (WQS).
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    \6\ 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[s]
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, on a case-by-case basis with a frequency dependent on the
nature and effect of the discharge, but in no case less than once a
year (see 40 CFR 122.44(i)(2)). In addition, permits must require that
permittees orally report to the NPDES permitting authority any
noncompliance with NPDES permits related to CSO discharges that may
endanger human health or the environment within 24 hours from the time
the permittee becomes aware of the circumstances, and in writing within
5 days (see Sec.  122.41(l)(6)). Permits must also require reporting of
other noncompliance related to CSOs when their discharge monitoring
reports are submitted (see Sec.  122.41(l)(7)).
    On October 22, 2015, EPA published a final rule to modernize CWA
reporting for municipalities, industries, and other facilities by
converting to an electronic data reporting system. Known as the NPDES
Electronic Reporting Rule, or E-Reporting Rule, this final rule
requires regulated entities and state and federal regulators to report
electronically data required by the NPDES permit program instead of
filing written paper reports. EPA is phasing in the requirements of the
E-Reporting Rule over a five-year period. Starting on December 21,
2016, permittees will begin submitting their Discharge Monitoring
Reports (DMRs) electronically. Starting on December 21, 2020,
permittees will begin submitting electronically certain other NPDES
reports, including ``Sewer Overflow/Bypass Event Reports,'' which may
include information on some CSO discharges. Under the rule, Table 2 of
Appendix A of Part 127 identifies data elements that are required to be
reported in a DMR for CSO discharges (pursuant to Sec.  122.41(4)(i))
after December 21, 2016, and in ``Sewage Overflow/Bypass Event
Reports'' (pursuant to

Sec. Sec.  122.41(l)(6) or (7) and 122.41(m)(3)) submitted after
December 21, 2020. A subset of the data elements that are required to
be reported that are relevant to public notification of a CSO discharge
include the following data elements:
     Sewer Overflow Cause;
     Duration of Sewer Overflow (hours);
     Sewer Overflow Discharge Volume (gallons);
     Corrective Actions Taken or Planned for Sewer Overflow;
and
     Type of Potential Impact of Sewer Overflow.
    In addition, starting on December 21, 2020, NPDES authorities are
required to provide, and update as appropriate, information regarding
the following data elements for each CSO permittee:
     Long-Term CSO Control Plan (LTCP) Permit Requirements and
Compliance;
     Nine Minimum CSO Controls Developed;
     Nine Minimum CSO Controls Implemented;
     LTCP Submission and Approval Type;
     LTCP Approval Date;
     Enforceable Mechanism and Schedule to Complete LTCP and
CSO Controls;
     Actual Date Completed LTCP and CSO Controls;
     Approved Post-Construction Compliance Monitoring Program;
and
     Other CSO Control Measures with Compliance Schedule.
    EPA is working with states to define data standards for the sewer
overflow data elements in 40 CFR 127, Appendix A, and how this data can
be best presented on EPA's Enforcement and Compliance History Online
(ECHO) Web site.\7\
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    \7\ https://echo.epa.gov.
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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 by not later
than December 18, 2017. However, the Administrator of the EPA 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. Examples of Existing Local Public Notification Practices in CSO
Communities

    In 1995, EPA published a guidance entitled ``Combined Sewer
Overflows--Guidance for Nine Minimum Controls'' \8\ to assist with the
implementation of the 1994 CSO Policy. As mentioned above, one of the
nine minimum controls called for in that policy is ``public
notification to ensure that the public receives adequate notification
of CSO occurrences and CSO impacts.'' The 1995 guidance recognizes that
the most appropriate mechanism for public notification will probably
vary with local circumstances, such as the character and size of the
use area and means of public access to waters affected by CSOs. The
guidance also provides examples of potential measures for notifying the
public about CSO events that were available at the time, including:
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    \8\ https://www.epa.gov/sites/production/files/2015-10/documents/owm0030_2.pdf.
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     Posting at affected use areas;
     Posting at selected public places;
     Posting at CSO outfalls;
     Notices in newspapers or on radio and TV news programs;
     Letter notification to affected residents that reflect
long-term restrictions; and
     Telephone hot lines.
    While the general themes identified in the 1995 guidance are still
useful and appropriate, the significant technology changes that have
occurred since then allow for a much wider set of tools to be used in
public notification. EPA's 2016 document ``National Pollutant Discharge
Elimination System Compendium of Next Generation Compliance Examples
\9\ '' provides examples of CSO notification using current technology.
This compendium describes examples of CSO public notice efforts in New
York and Ohio and provides examples of CSO public notification outside
the Great Lakes Basin.
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    \9\ https://www.epa.gov/compliance/compendia-next-generation-compliance-examples-water-air-waste-and-cleanup-programs.
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    In addition to those examples outlined in the Next Generation
Compliance Compendium, EPA has summarized other existing public
notification practices for CSO discharges both to the Great Lakes Basin
and to other waters.\10\
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    \10\ see ``Summary of CSO Public Notification provisions,''
Docket ID No. EPA-HQ-OW-2016-0376 at http://www.regulations.gov.
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    Existing public notice practices summarized in these two resources
include, but are not limited to:
     The NPDES permit for CSO discharges from the City of
Seattle, Washington requires the city to implement a web-based public
notification system to inform the citizens of when and where CSOs
occur. Seattle and King County maintain a real-time public notification
Web site that has CSO overflow information updated with available data
every 10 minutes for King County sites, and every 60 minutes for
Seattle sites.
     The City of Cambridge, Massachusetts and the City of
Chelsea, Massachusetts post signs at all CSO structures and at public
access locations and other sites identified by the Massachusetts
Department of Environmental Protection. Cities notify local health
agents and local watershed advocacy groups by email and issue an annual
press release discussing past CSOs. Cambridge also provides the
following information on its Web site:
    [cir] General information regarding CSOs, including their potential
health impacts;

    [cir] Locations of CSO discharges in the Charles River and Alewife
Brook watersheds;
    [cir] The overall status of all CSO abatement programs;
    [cir] Web links to CSO communities and watershed advocacy groups;
and
    [cir] The most recent information on all CSO activations and
volumes in both watersheds.
     The District of Columbia Water and Sewer Authority (DC
Water) operates CSO Event Indicator Lights to notify river users of CSO
discharges. A red light must be illuminated during a CSO occurrence and
a yellow light must be illuminated for 24 hours after a CSO has
stopped.
     Connecticut's two-part Public Act: ``An Act Concerning The
Public's Right to Know of a Sewage Spill'' requires the Connecticut
Department of Energy and Environmental Protection (DEEP) to provide a
map indicating the CSOs anticipated to occur during certain storm
events.
     The Vermont Department of Environmental Conservation (DEC)
posts on its Web site a report of any sewage release that reaches
waters of the State.
     The Allegheny County Sanitary Authority (ALCOSAN) raises
orange flags signifying CSOs have occurred at eight locations along the
Allegheny, Monongahela and Ohio rivers during and after CSO discharge
events. ALCOSAN also provides notifications of sewer overflows via text
message and/or email.
     Sanitation District No. 1 (SD1) of Northern Kentucky
issues an email advisory when a rainfall of 0.25 inches or more is
predicted or recorded. They also issue an advisory when the Ohio River
level exceeds 38 feet. Advisories will remain in effect for 72 hours
after rainfall and 72 hours after river levels have fallen below 38
feet.
     Onondaga County, New York maintains a ``Save the Rain''
Web site which serves as a notification system to alert the public of
the occurrence of CSO events and as a prediction of elevated bacteria
levels in Onondaga Lake and its tributaries. The discharge status of
CSO outfalls are mapped on this Web page. The information on the map is
updated using a model to anticipate the quantity of rainfall that will
trigger each CSO.
     The Metropolitan Sewer District (MSD) of Greater
Cincinnati issues a CSO advisory via a CSO hotline or email alert when
a rainfall of 0.25 inches or more is predicted or recorded or when
water levels in area rivers and streams are elevated and could cause a
CSO to occur. Advisories will remain in place for 72 hours after a
rainfall event and 72 hours after water levels in area waterways have
returned to normal. Actual occurrences of CSO discharges are reported
and summarized in reports that are posted on MSD's Web site.

G. Existing State-Level Public Notification Requirements for CSOs in
the Great Lakes Basin

    EPA worked with the Great Lake states to identify existing state-
level notification requirements for CSO discharges to the Great Lakes
Basin, which are summarized in the proposed rule docket, see ``Summary
of State CSO Public Notification Requirements in the Great Lakes
Basin'' See Docket ID No. EPA-HQ-OW-2016-0376 at http://www.regulations.gov. Almost all of the NPDES permits for CSO discharges
to the Great Lakes Basin currently require some level of public
notification to ensure citizens receive adequate information regarding
CSO occurrences and CSO impacts. Permit requirements which add
specificity to this requirement and additional state public
notification requirements are discussed below. Table 2 summarizes some
of the main components of existing Great Lakes state programs that
relate to public notification of CSO discharges.

  Table 2--Summary of State Program Requirements for Public Notice Requirements for CSO Discharges to the Great
                                                   Lakes Basin
----------------------------------------------------------------------------------------------------------------
                                  NY          PA          OH          MI          IN          IL          WI
----------------------------------------------------------------------------------------------------------------
State CSO public                      X   ..........  ..........          X           X   ..........  ..........
 notification regulation....
Requires Public Notification          X   ..........          /   ..........          X           X           X
 Plan.......................
Requires CSO Outfall Signs..          X           X           X           X           X           X
Alert system (text/email)...          X   ..........  ..........  ..........          /           X           X
Immediate notification of             X   ..........          X           X           X   ..........  ..........
 local public health
 department and drinking
 water supply...............
Annual reporting on CSO               X           X           /           X   ..........  ..........  ..........
 discharges.................
----------------------------------------------------------------------------------------------------------------
`X' indicates all CSO discharges to the Great Lakes Basin are subject to requirement.
`/ ' indicates that some CSO discharges to the Great Lakes Basin are subject to requirement.

Illinois
    All forty Illinois CSO communities in the Great Lakes Basin are in
the Metropolitan Water Reclamation District of Greater Chicago (MWRD)
service area. The NPDES permits for these CSO communities provide that
public notification programs may be developed in conjunction with MWRD.
MWRD's NPDES permits for each of its four treatment plants require MWRD
to develop a public notification plan. MWRD is implementing its plan
by:
     Providing the public with the opportunity to sign up for
emails and/or text messages when a confirmed CSO discharge or diversion
to Lake Michigan occurs.
     Posting a map of the city's waterways showing the status
of discharges at CSO outfalls.
Indiana
    Indiana requires NPDES CSO permittees to:
     Post signs within the permittee's jurisdiction at access
points to an affected water or to make attempts to do so when access is
not on community property.
     Provide notification to the affected public, local health
departments and drinking water suppliers having surface water intakes
located within ten miles downstream of a discharging CSO outfall
whenever information indicates that a CSO discharge is occurring or is
imminent based on predicted or actual precipitation or a related event.
     Incorporate CSO notification procedures into the
permittee's CSO operational plan which must be approved by the Indiana
Department of Environmental Management. A member of the public may
request that the department reevaluate the CSO notification procedures.
Michigan
    Michigan state regulations and permits require CSO permittees to:
     Notify the Michigan Department of Environmental Quality
(DEQ); local health departments; a daily newspaper

of general circulation in the county or counties in which the
municipality is located; and a daily newspaper of general circulation
in the county in which CSO discharges occurred immediately, but not
more than 24 hours after the discharge begins.
    [cir] Initial notification that the discharge is occurring is to be
by telephone or other manner required by DEQ.
    [cir] At the conclusion of the discharge, in writing or in another
manner required by DEQ, additional notice provides more detailed
information including the volume and quality of the discharge as
measured pursuant to procedures and analytical methods approved by the
department, reason for discharge, receiving water or land affected,
date and time discharge began and ended, and compliance status.
     Contact each municipality annually whose jurisdiction
contains waters that may be affected by the discharge and provide
immediate notification of CSO discharges to these municipalities if
requested.
     Test the affected waters for E. coli to assess the risk to
the public health as a result of the discharge and provide the test
results to the affected local county health departments and to DEQ. The
testing is to be done at locations specified by each affected local
county health department. This testing requirement may be waived by the
affected local county health department if it is determined that such
testing is not needed to assess the public health risks.
    Michigan state regulations require Michigan DEQ to:
     Promptly post the notification on its Web site upon being
notified of a discharge.
     Maintain and publish a list of occurrences of discharges
of untreated or partially treated sewage that have been reported. The
list is to be posted on the department's Web site and published
annually and made available to the general public.
New York
    New York state statutes, regulations, and permits require CSO
permittees to:
     Install and maintain signs at all CSO outfalls owned and
operated by the permittee.
     Implement a public notification program to inform citizens
of the location and occurrence of CSO events.
     Notify the local public health department of CSO
discharges immediately, but in no case later than two hours after
discovery.
     Notify any adjoining municipality that may be affected as
soon as possible, but no later than four hours from discovery of the
CSO discharge.
    CSO communities can report CSO discharges to a state operated
electronic notification system, NY-Alert. The NY-Alert system provides
public health departments, adjoining municipalities and subscribing
citizens with notice of CSO discharges.
    CSO permittees are required to submit an annual report to the state
that describes implementation of 14 CSO best management practices. The
state uses this and other information to prepare an annual report on
sewer system discharges. The New York Department of Environmental
Conservation's Web site includes a map of CSO outfalls in New York that
provides information about CSO discharges.
Ohio
    Ohio state regulations and permits require CSO permittees to:
     Install and maintain signs at all regulated outfalls,
including CSOs; and
     Notify public water supply operators as soon as
practicable if a spill, overflow, bypass, or upset reaches a water of
the state within a set distance of a public water supply intake.
    Public notification plans and annual reporting of CSO discharges
are required on a case-by-case basis.
Pennsylvania
    The NPDES permit for Erie, Pennsylvania (the only city with a CSS
in Pennsylvania that discharges to the Great Lakes Basin) requires Erie
to submit an annual CSO status report to the state, which is available
to the public upon request.
Wisconsin
    Of Wisconsin's two CSO permittees, one permit does not specify any
public notification requirements. The other requires the permittee to
have a public notification process in place and to make personal
contact with affected members of the public in the event of an
overflow.

H. Working With the Great Lake States and Requesting Public Input

    EPA has worked with the Great Lakes states on creating proposed
requirements to implement Section 425 of the 2016 Consolidated
Appropriations Act. NPDES program officials in each state with CSO
discharges to the Great Lakes Basin have described existing state
notification requirements, shared insights on implementation issues and
provided individual perspectives on what should be included in the
proposed rule.
    On August 1, 2016, EPA published a document in the Federal Register
requesting stakeholder input regarding 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, 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.\11\ In addition, the Agency requested written
comments. EPA received 40 unique written comments and a total of 787
written comments, all of which were submitted to the docket (see EPA-
HQ-OW-2016-0376-2 through EPA-HQ-OW-2016-0376-41). These comments have
informed the development of the proposed rule and are discussed
throughout the preamble below.
---------------------------------------------------------------------------

    \11\ See Docket ID No. EPA-HQ-OW-2016-0376 at http://www.regulations.gov.
---------------------------------------------------------------------------

III. Proposed Requirements

A. Overview of Proposal

    The proposed requirements to implement Section 425 are 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 clarifies EPA's expectations
for CSO permittees discharging to the Great Lakes Basin to provide
public notification to ensure that the public receives adequate
notification of CSO occurrences and CSO impacts. The proposed
requirements would conform to the CSO Control Policy by specifying
requirements for implementation of one of the nine minimum controls for
the CSO discharges addressed by Section 425.
    EPA proposes requirements for public notification of CSO discharges
to the Great Lakes Basin to be codified at 40 CFR 122.38. This section
would apply directly to Great Lakes Basin CSO permittees six months
after publication of a final rule, except for annual notice
requirements which would apply one year after publication. EPA proposes
to implement section 425(b)(5)(B) of the Consolidated Appropriations
Act of 2016 by providing that the NPDES permitting authority (referred
to in the NPDES regulations as the Director)

could 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.
    The proposed requirements address 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 proposes 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 (e.g.,
proposed flow monitoring locations, means for disseminating information
to the public) as to how they would implement the notification
requirements. Under the proposed rule, CSO permittees in the Great
Lakes Basin would be required to 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. The proposal would require the plan to be
made available to the public and to be submitted to the Director within
six months of the date the final rule is published.
    Ultimately, public notice requirements for CSO discharges in the
Great Lakes Basin would be incorporated as requirements in NPDES
permits when such permits are next reissued at least six months after
the date the final regulation is published. (This process will follow
normal permit reissuance timelines). Under both proposed Sec. Sec.
122.21(j)(8)(iii) and 122.38(d), the public notification plan would be
submitted to the Director as part the Great Lakes Basin CSO permittee's
application for a renewed permit. The plan would provide information to
the Director to inform the development of a NPDES permit condition
implementing the public notification requirements. EPA proposes minimum
requirements at Sec.  122.42(f) for a permit condition for all permits
issued for CSO discharges within the Great Lakes Basin. See Preamble
section III.D.2. for a discussion of the proposed permit condition.

B. Types of Notification

    EPA proposes to require several types of public notification, as
follows:
     Signage;
     Initial and supplemental notice to local public health
department and other potentially affected public entities, such as
drinking water utilities, public beach and recreation agencies;
     Initial and supplemental notice to the public; and
     Annual CSO notice to the Director and the public.
    The types of notification are discussed below.
1. Signage
    Signage at CSO outfalls and public access areas potentially
impacted by CSO discharges can raise public awareness of the potential
for CSO discharges and impacts. EPA's 1995 guidance, ``Combined Sewer
Overflows--Guidance for Nine Minimum Controls'' \12\ provides examples
of signage that can be used to notify the public of CSO discharges,
such as posting at affected use areas (e.g., along a beach front),
selected public places (e.g., public information center at a public
park or beach) and posting at CSO outfalls where outfalls are visible
and the affected shoreline area is accessible to the public.\13\
---------------------------------------------------------------------------

    \12\ See ``Combined Sewer Overflow Guidance for Nine Minimum
Controls'' EPA 832-B-95-003, (1995). https://www.epa.gov/sites/production/files/2015-10/documents/owm0030_2.pdf.
    \13\ The 2016 ``National Pollutant Discharge Elimination System
Compendium of Next Generation Compliance Examples'' and the 2016
``Summary of CSO Public Notification provisions'' EPA-HQ-OW-2016-
0376, identify additional examples of signage used by CSO
communities.
---------------------------------------------------------------------------

    EPA proposes that the Great Lakes Basin CSO permittee provide
adequate signage where signage is feasible at CSO outfalls and
potentially impacted public access areas. The Agency proposes that
signage contain at a minimum the following information:
     The name of the combined sewer system operator;
     A description of the discharge (e.g., untreated human
sewage, treated wastewater);
     Notice that sewage may be present in the water; and
     The permittee's contact information, including a telephone
number, NPDES permit number and outfall number as identified in the
NPDES permit.
    EPA also proposes that the Great Lakes Basin CSO permittee conduct
periodic maintenance of the sign to ensure that it is legible, visible
and factually correct.
    The proposal would require the permittee to provide signage at
potentially affected public areas. The permittee's identification of
potentially affected public areas where signage is required is to be
based on a review and consideration of local conditions and
circumstances of a particular community. This determination may be
informed by the identification of sensitive areas in the community's
long term CSO control plan (LTCP). Under today's proposal, when a Great
Lakes Basin CSO permit is reissued, the NPDES authority will determine
specific locations where signs are required and will identify in the
permit the location of any outfall where a sign is not required because
it is not feasible.
    EPA requests comment on providing more specific regulatory language
that would require signage at locations other than the CSO outfalls,
such as potentially impacted public access areas and selected public
places that CSO discharges may impact.
    One commenter on the August 1, 2016 notice suggested that signs at
public access areas include quick response codes that could provide a
link to either a public health department's Web site or the permittees
Web site. EPA requests comment on requiring quick response codes on
signs. EPA also requests comment on the proposed signage requirements
and on whether the proposal includes the appropriate minimum
information to be included on signs.
    EPA notes that several of the Great Lakes states do not require
signage at every CSO outfall for various reasons, such as limited or no
public access to the area or the infeasibility for the permittee to
physically access the outfall point for inspections and maintenance of
signs. For example, Ohio does not require signs at outfalls that are
not accessible to the public by land or by recreational use of the
water body.\14\ Indiana allows for alternatives to signs for outfalls
located on private property or that are outside the jurisdiction of the
CSO discharger.\15\ New York allows permittees to apply for a waiver
from the requirement to install a sign under limited circumstances
which are listed in the state's regulations.\16\
---------------------------------------------------------------------------

    \14\ Ohio Admin. Code 3745-33-08 (2011), available at http://codes.ohio.gov/oac/3745-33-08.
    \15\ See 327 IAC 5-2.1-6 (2003), available at http://www.in.gov/legislative/iac/iac_title?iact=327.
    \16\ See 6 NYCRR 750-1.12 (2003), available at http://www.dec.ny.gov/regs/2485.html.
---------------------------------------------------------------------------

    The Agency requests comment on specific situations where it may not
be feasible to provide signage at a CSO outfall. In addition, the
Agency requests comment on alternative or additional regulatory
criteria to clarify or describe

where signs are not possible. The Agency also requests comment on
whether it is appropriate to remove the proposed qualification that
signage be feasible and instead require signage at all CSO outfalls.
    EPA recognizes that the Great Lake NPDES authorities require
permittees to install signs at many CSO outfalls and potentially
impacted public access areas. EPA proposes that where a permittee has
installed a sign at a CSO outfall or potentially impacted public access
area before the effective date of this rule, the sign does not have to
meet the minimum requirements specified in the proposed rule until the
sign is replaced or reset. EPA requests comment on this approach. The
Agency requests comment on any specific language with regard to the
proposed signage requirements that may be inconsistent with existing
signs, and whether the proposed language should be adjusted to provide
more flexibility.
    EPA does not propose to prescribe the specific circumstances under
which other methods of notice such as indicator lights (as used by the
District of Columbia Water and Sewer Authority) or alert flags (as used
by the Allegheny County Sanitary Authority) must be used. These types
of notification may not be appropriate for every CSO community in the
Great Lakes Basin. Rather, such requirements may be established on a
permit-by-permit basis where appropriate. Nothing in the proposed rule
or Section 425 would, however, preclude any Great Lakes state from
establishing such requirements.
2. Initial and Supplemental Notice to Local Public Health Officials and
Other Potentially Affected Public Entities
    Local public health officials play a vital role in responding to
environmental risks. Local public health organizations typically have a
role in water quality monitoring of waterways and public beaches and in
providing swimming and beach advisories and beach closures. Timely
notice of CSO discharges to local public health departments can provide
information needed to determine appropriate actions such as issuing
swimming or beach advisories or beach closures.
    When CSOs discharge into sources of drinking water, operators of
drinking water facilities that have intakes in waters impacted by the
discharge can make adjustments to their intake and treatment procedures
after receiving notice of the CSO discharge.
    EPA proposes that the operator of a CSO outfall in the Great Lakes
Basin provide initial notice of the CSO discharge as soon as possible
to the local public health department (or if there is no local health
department, to the state health department), any potentially affected
public entity (such as the superintendent of a public drinking water
supply with potentially affected intakes), and Indian tribes whose
waters may be affected, but no later than four hours after becoming
aware as determined by monitoring, modeling or other means of a CSO
discharge. The initial notice would be required to include, at a
minimum, the following information:
     The location of the discharge(s) and the water body that
received the discharge(s);
     The location and a description of any public access areas
that may be potentially impacted by the discharge;
     The date(s) and time(s) that the discharge commenced or
the time the permittee became aware of the discharge;
     Whether, at the time of the notification, the discharge
has ended or is continuing and, if the discharge(s) has ended, the
approximate time that the discharge ended; and
     A point of contact for the CSO permittee.
    EPA proposes that the CSO permittee describe the location of the
discharge. Typically, this would be the location of the CSO outfall
that is discharging. However, for larger combined sewer systems with
multiple outfalls, where CSO discharges occur at multiple locations at
the same time, the CSO permittee may provide a description of the area
in the waterbody where discharges are occurring and does not have to
identify the specific location of each discharge. This approach may be
more protective in that it may provide for a better description of
potentially impacted areas, and could avoid delays associated with
identifying when individual discharges commenced.
    EPA also proposes that Great Lakes Basin CSO permittees be required
to seek and consider input from local public health departments and
other potentially affected entities to develop protocols for providing
notification. Under the proposal, the CSO permittee is to seek and
consider input from local health departments and other potentially
affected entities prior to submitting its public notification plan
initially and resubmitting as part of the process for reapplying for
their permit.
    The Agency anticipates that the Great Lakes Basin CSO permittee
will establish protocols that will address the timing of notification.
This could include predictive notifications that are based on weather
forecasts. Under the proposed rule, the public notification plan would
help inform the development of NPDES permit requirements that would
specify the timing of this notification. EPA anticipates that this
approach would allow for the consideration of community-specific
factors, development of programs and changes in technology.
    Timely notice of CSO discharges to public health departments,
drinking water facilities and other affected municipal entities and
Indian tribes is critical to the effectiveness and timeliness of their
response. EPA does not propose to prescribe the specific means (e.g.,
email, phone call) for this notice. Rather, the proposed rule would
allow the CSO discharger to seek and consider input from local public
health departments and other potentially affected public entities to
determine the most appropriate way to provide this notice.
    EPA proposes that the timeframe for initial notice to local public
health departments and other potentially affected public entities be as
soon as possible, but no later than four hours after the Great Lakes
Basin CSO permittee becomes aware of the CSO discharge as determined by
monitoring, modeling or other means. EPA expects, however, that as
technologies change and communities and states improve their notice
protocols, communities may be able to notify public health departments
and the public in less than four hours. In addition, nothing in the
proposed rule would preclude the permitting authority from establishing
a maximum timeframe for notification that is more stringent (shorter)
than four hours. EPA anticipates that NPDES permit authorities would
consider more stringent notification timeframes based on a variety of
factors, including the nature of the receiving waters, technology
advances and the experience and progress of the permittee. EPA notes
that New York and Connecticut require CSO permittees to notify public
health departments within two hours. Both states have state-run Web
sites that facilitate notification. The Agency also notes that most
Great Lake states currently have not established a state Web site to
facilitate public notification. EPA specifically requests comment on
the appropriate maximum timeframe for providing initial notification to
the local public health department and other potentially affected
entities. The Agency also requests comment on the minimum contents of
the initial and supplemental notification to the local public health
department and other potentially affected entities.

    Section 425(b)(3)(A)(ii) provides that public notice requirements
also must include the volume of the discharge. EPA recognizes that for
a number of reasons, determining the volume of a CSO discharge within
the short timeframe provided for the initial notice may not be
practical. EPA therefore proposes that notification of the volume of
the discharge may occur in a supplemental notice that would be required
within 24 hours of the end of the CSO discharge. EPA proposes this
approach because the initial notification that a CSO discharge may
occur or is occurring should not be delayed by waiting until the
discharge stops or volume estimates are developed. EPA is concerned
that requiring the Great Lakes Basin CSO permittee to include the
volume of the CSO discharge as part of the initial notification would
mean that the initial notification would need to be delayed, which
would in turn cause delays in responding to the overflow. In addition,
requiring an estimate or calculation of the discharge volume as part of
the initial notification may discourage predictive notifications. It is
critical that the local public health department and other affected
municipalities or tribes be notified of the occurrence of the event as
soon as possible without delays associated with waiting for the
discharge to end or determining the CSO volume. Accordingly, EPA
proposes that the CSO permittee may either provide notification of the
time the discharge ended and the volume of the CSO discharge as part of
the initial notification when CSO discharges are of a short enough
duration to allow for this information to be known, or as a separate
supplemental notification within 24 hours of the end of the CSO
discharge.
    EPA requests comment on whether 24 hours from the time the
permittee becomes aware that the discharge ended is the appropriate
time period for completing notification. EPA also requests comment on
whether the proposed minimum requirements for the 24-hour supplemental
notice are sufficient and appropriate.
    The proposed requirement to provide a volume estimate would not
mandate monitoring or direct measurement of CSO discharges. As
discussed below, EPA proposes that the operator of a CSS with CSO
discharges to the Great Lakes Basin develop a public notification plan
that, among other things, describes for each outfall how the volume and
duration of CSO discharges would be measured or estimated. In addition,
as discussed below, EPA proposes that NPDES permits for CSO discharges
to the Great Lakes Basin 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 rather
than monitored.
    In addition to seeking comment generally on the proposed
requirements for notifying local health departments and other
potentially affected public entities, EPA requests comment specifically
on whether the initial notice to public health departments and other
potentially affected entities should also be provided to the Director
and/or the state public health agency.
3. Initial and Supplemental Notice to the Public
    Initial notice of CSO discharges to the public via text alerts,
social media, posting on a Web site, or other appropriate means can be
an effective, efficient means of alerting the public to CSO discharges
in a timely manner. This initial notice may allow the public to make
informed decisions regarding areas where they would visit and recreate.
EPA proposes requirements for the Great Lakes Basin CSO permittee to
provide initial notification to the public within four hours of
becoming aware as determined by monitoring, modeling or other means of
the CSO discharge. Under the proposal, the Great Lakes Basin CSO
permittee would be required to use electronic media, such as text,
email, and social media alerts to subscribers, or posting a notice on
its public access Web site, to provide members of the public with
notice of CSO discharges. Other electronic media that could be used
include broadcast media (radio and/or television) and newspaper Web
sites. However, EPA is not proposing a specific type of electronic
media to be used by all CSO communities as electronic media
technologies and usage continue to change and the availability and
appropriateness of different media options will vary from community to
community. EPA seeks comment on whether public notice by broadcast
media and/or local newspapers should be required for all CSO permittees
in the Great Lakes Basin, or whether this specificity is better
addressed in permits.
    EPA proposes the same minimum information content requirements that
it proposes for the initial notice to the local public health
department, with the exception that a point of contact for the
discharger is not included in the notice to the general public. EPA
does not propose to require that a point of contact be provided in the
notice for the public because this could generate a large number of
calls or emails to the CSO permittee that could hinder the permittee's
ability to respond to the CSO discharge and to communicate with public
health officials and other affected municipal entities.
    EPA also proposes that the Great Lakes Basin CSO permittee provide
a supplemental notice specifying the time the discharge ended and the
volume of the CSO discharge unless this information has already been
provided in the initial notice. EPA proposes that the supplemental
public notice would be required within 24 hours of the end of the CSO
discharge.
    As mentioned above, EPA received a number of comment in response to
the August 1, 2016 Federal Register document, in writing and at the
public listening session on September 14, 2016, regarding notification
methods and timeframes for notification to the public. One commenter
recommended that information on how to receive email or text alerts
should be provided to the public on the permittee's Web site and in
wastewater bill mailings. EPA requests comment on whether the proposed
regulation should include specific requirements for the permittee to
make information on how to receive alerts available to the public.
    One commenter indicated that it would not be possible to estimate
system-wide CSO volumes within 24 hours, given the size of their
system, size of the storm, number of outfalls, number of receiving
waters, and other complex factors that are considered to determine
overflow locations, timing, and volumes. Another commenter recommended
that the supplemental notice be required within 24 to 48 hours. Another
commenter recommended that the Great Lakes Basin CSO permittee be given
five days before discharge volume estimates must be provided. Other
commenters advocated for real-time or faster alerts such as requiring
public notification within 15 minutes, if possible. Another commenter
suggested that if real time monitoring is not feasible, all discharges
should be required to notify the public within two hours of the start
of the CSO discharge.
    Other commenters expressed concerns about the time it would take to
provide detailed notification. For example, one comment said reporting
in-depth on volume, length of discharge and preventative measures for
each CSO event would take resources away from more critical water
quality initiatives. EPA requests comment on whether the 24-hour time
period is appropriate and whether the minimum information

requirements for the 24-hour notice are appropriate.
    EPA requests comment on providing a longer timeframe than four
hours for small communities to make the initial notification, such as
eight or twelve hours as well as appropriate population thresholds
(e.g., under 2,000 or 1,000) for such a requirement. Some of the
representatives of the Great Lakes states expressed concerns that
introducing an alternative timeframe for initial reporting for small
communities could create confusion in the regulated community. EPA
requests comment on the appropriateness of the proposed four-hour time
period and on whether all communities should be subject to the same
four-hour maximum timeframe for providing initial notification.
    Some commenters responding to the August 1, 2016 Federal Register
document raised concerns that overuse of text alerts of CSO discharges
to the public could be counter-productive because the public could be
over saturated by the alerts and the alerts overly simplify a complex
message about health risks. Another commenter raised concerns that
supplemental notifications indicating that CSO discharges have ceased
may send an incorrect message that the waters are safe. EPA requests
comment on allowing permittees flexibility to use different mechanisms
for providing initial and supplemental notice (e.g. text/email alerts
and Web site notice for initial notification and limiting supplemental
notice to posting information on the permittees Web site).
4. Annual CSO Notice
    EPA proposes that all permittees authorized to discharge a CSO to
the Great Lakes Basin are required to make an annual notice available
to the public by the first of May each year. In addition, EPA proposes
that the permittee notify the Director of the availability of the
annual notice. The information in the annual notice would provide the
public with a comprehensive understanding of how the permittee's CSS is
performing and of the permittee's CSO control program. The Agency
proposes that the annual notice would include a summary of both the
prior year's discharges and upcoming implementation of CSO controls.
EPA proposes that the annual notice include at a minimum:
     A description of 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;
     A description of the location, treatment provided, and
receiving water of each CSO outfall;
     The date, location, duration, and volume of each wet
weather CSO discharge that occurred during the past calendar year;
     The date, location, duration, and volume of each dry
weather CSO discharge that occurred during the past calendar year;
     A summary of available monitoring data from the past
calendar year;
     A description of any public access areas impacted by the
discharge;
     Representative rain gauge data in total inches to the
nearest 0.1 inch that resulted in each CSO discharge;
     A point of contact; and
     A concise summary of implementation of the nine minimum
controls and the status of implementation of the long-term CSO control
plan (or other plans to reduce or prevent CSO discharges), including:
    [cir] A description of key milestones remaining to complete
implementation of the plan; and
    [cir] A description of the average annual number of CSO discharges
anticipated after implementation of the long-term control plan (or
other plan relevant to reduction of CSO overflows) is completed.
    The proposed elements of the annual notice summarize the
information provided in the initial and supplemental notifications to
the public and provide additional follow-up information required in
Section 425(b)(4)(A). Section 425(b)(4)(A) requires inclusion of
follow-up notice requirements that provide a description of ``(i) each
applicable discharge; (ii) the cause of the discharge; and (iii) plans
to prevent a reoccurrence of a combined sewer overflow 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.''
    EPA proposes an annual notice requirement that would address the
information required by Section 425(b)(4)(A)(ii) and (iii) by requiring
a summary of how the CSO permittee is implementing the nine minimum
controls and their LTCP. The summary would include a description of key
milestones remaining to complete implementation of the LTCP and a
description of the anticipated average annual number of CSO discharges
after the LTCP is completed.
    As described in section II.C of this preamble, Section 402(q) of
the CWA (33 U.S.C. 1342(q)), provides that NPDES permits and
enforcement orders for discharges from combined sewer systems ``shall
conform'' to the 1994 CSO Control Policy. By requiring the annual
report to summarize how the permittee is implementing the nine minimum
controls and LTCP, the proposed rule would result in a description of
the permittee's plans under their permit, administrative order or
consent decree, ``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'' as required by Section
425(b)(4)(A)(iii). This information is intended to provide the public
with a description of the current performance of their system as well
as progress on CSO reduction. This notice can serve to increase public
awareness, and enable the public to better understand the community's
current and future investments into collection system infrastructure.
This can promote stronger public support for actions necessary to
reduce CSOs. EPA requests comment on the proposed elements of the
annual notice.
    EPA anticipates that any community that already generates an annual
CSO report would ensure that the required elements of the proposed rule
are addressed in that report and then use that annual CSO report to
comply with the annual notice requirements proposed today, rather than
generating a separate report solely to meet these new requirements.
Communities choosing this approach under the proposed rule would need
to ensure that the annual report is published to their Web site by the
date specified in the proposed rule (May 1 of each calendar year).
    EPA requests comment on requiring permittees to supplement the
annual notice by providing quarterly notice of a description of each
CSO discharge, the cause of the discharge, and plans to prevent a
reoccurrence of the CSO discharge. This approach may assist interested
members of the public in following the status of CSO remediation
efforts in their communities in a more up-to-date timeframe. EPA
requests comment on this approach or other means of updating the public
more frequently than annually.

C. Public Notification Plans

    EPA proposes requirements for public notification plans at Sec.
122.38(d). The Agency proposes that Great Lakes Basin CSO permittees be
required to develop and submit to the Director a public notification
plan within six months after publication of a final rule and then as
part of the permittee's application for permit renewal. In addition,
EPA proposes at Sec.  122.38(e) that, prior to

submitting the proposed 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 affected 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. The plan will enhance communication with
public health departments and other potentially affected public
entities and Indian tribes whose waters may be affected by the CSO
discharge. The plan would also assist NPDES permit writers in
establishing public notification permit conditions. In addition, the
plan would provide the public with a better understanding of the
permittee's public notification efforts.
    Under the proposal, the plan would describe:
     The permittee's signage program;
     The identification of municipal entities that may be
affected by the permittee's CSO discharges;
     Input from the health department and other potentially
affected entities;
     Protocols for the initial and supplemental notice of the
public, public health departments and other public entities;
     How the volume and duration of CSO discharges would be
determined; and
     Protocols for making the annual notice available to the
public.
    Regarding signage, the plan would describe what information is in
the message on the signs and identify any CSO outfall where a sign
under Sec.  122.38(a)(1) is not and will not be provided, explain why a
sign at that location is not feasible. The plan would also describe the
maintenance protocols for signage, such as inspection intervals and
replacement schedule.
    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. EPA
proposes to lay the groundwork for this provision by requiring 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 affected 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.\17\ In deciding which public entities and Indian tribes are
``potentially impacted'' and should be contacted for their input, the
Great Lakes Basin CSO permittee should evaluate:
---------------------------------------------------------------------------

    \17\ 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.
    EPA proposes that the plan would identify any municipality and
Indian tribe that was contacted for input on public notification
protocols. In addition, the plan would provide a summary of the
comments and any recommendations from these entities, as well as a
summary of the significant comments and recommendations provided by the
local public health department(s).
    Local public health departments, public entities, and Indian tribes
whose waters may be affected by a CSO discharge are in a unique
position to recommend the timing, means and content of the public
notification requirements addressed in this proposal. Seeking input
from these entities would allow the permittee to reflect in the public
notification plan the needs and preferences of these entities with
regard to notice of CSO discharges. Also, these groups can help inform
decisions regarding what is 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 who would incur costs by receiving text notifications, the consulted
entities may suggest other communications means that would be more
appropriate to reach these groups (e.g., radio broadcast, postings in
public places, announcements through community flyers).
    The plan would also be required to describe how the volume and
duration of CSO discharges would 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 would be 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 must calibrate their model at least
once every 5 years.
    EPA requests comment on the minimum elements of a plan listed in
Sec.  122.38(c) and whether additional minimum requirements may be
appropriate. Other such elements could include: A description of
outreach that would be conducted to alert the public of the
notification system and how to subscribe or otherwise gain access to
the information, and information on how the public notification plan
would be made available to the public. In addition, EPA seeks comment
on requiring Great Lakes Basin CSO permittees to seek and consider
input from public health departments and other potentially affected
entities in developing their public notification plans. EPA also
requests comment on whether the final rule should specifically require
that the permittee provide an opportunity for members of the public to
review and comment on the public notification plan, as was suggested by
one commenter responding to the August 1, 2016 Federal Register
document.
    EPA proposes that the Great Lakes Basin CSO permittee make its
public notification plan available to the public on the permittee's Web
site (if it has a Web site) and periodically provide information in
bill mailings and by other appropriate means on how to view the
notification plan. The EPA seeks comment on whether there should be
specific requirements for requiring notice of the plan and if so, how
the plan should be made available. In addition, EPA seeks comment on
whether there should be specific requirements for requiring notice of
when significant modifications are made to the plan.

D. Implementation

    EPA proposes to implement the public notification provisions as a
stand-alone regulatory requirement until the proposed required
condition is incorporated into the NPDES permit of the Great Lakes
Basin CSO permittee. Section 425(b)(5) of the 2016 Consolidated
Appropriations Act provides that the notice and publication
requirements described in the Act are to be implemented by ``not later
than'' December 18, 2017. The Act also provides that the Administrator
of the EPA 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.
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 proposed public notification requirements to be
incorporated into all permits. Implementing the public notification
requirements by regulation would result in all Great Lakes Basin CSO
permittees establishing their public notification system within the
same timeframe, and is more consistent with the implementation deadline
in Section 425(b)(5)(A).
    In addition to Section 425 of the Consolidated Appropriations Act
of 2016, EPA's authority for these public notification requirements
includes Sections 304(i) and 308 of the CWA, which provide broad
authority to issue procedural requirements for reporting (including
procedures to make information available to the public) and to require
point source owners and operators to establish and maintain records,
make reports, monitor, and provide other ``reasonably required''
information.
    The requirements of Sec.  122.38(a) (signage and notification
requirements), Sec.  122.38(b) (annual notice), Sec.  122.38(c)
(reporting) would be enforceable under the CWA prior to incorporation
into a permit as requirements of CWA section 308. With respect to the
public notification plan, the requirement to develop a public
notification plan consistent with Sec.  122.38(d) and (e) would also be
enforceable under the CWA as a requirement of CWA section 308. Once
public notification requirements are incorporated into an NPDES permit,
they would enforceable as a condition of permit issued under CWA
section 402.
    The details and content of the public notification plan, however,
would not be enforceable under Sec.  122.38(d) or as effluent
limitations of the permit, unless the document or the specific details
with the plan were specifically incorporated into the permit. Under the
proposed approach, the contents of the public notification plan would
instead 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)-(c) 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 could be changed based on
adaptions made during the course of the permit term, thereby allowing
the permittee to react to new technologies, circumstance and experience
gained and to make adjustments to its program to provide better public
notification and better comply with the permit. This approach would
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.
1. Section 122.38 Requirements
    As discussed in detail above, a new Sec.  122.38 would set forth
requirements that would apply to all permittees with CSO discharges to
the Great Lakes Basin. Under the proposed rule, Great Lakes Basin CSO
permittees would be required to develop a public notification plan,
after seeking and considering input from public health departments and
other potentially affect public entities. EPA proposes that the plan
must be submitted to the Director and made available to the public
within six months of publication of the final rule. Proposed Sec.
122.38 would also require implementation of the signage and notice to
affected public entities and the public within six months of
publication of the final rule. Thus, a Great Lakes Basin CSO permittee
would be required to develop its plan and implement it within six
months of the final rule.
    EPA has considered how much time it should take to implement public
notification requirements. EPA also recognizes that every Great Lakes
Basin CSO permittee already provides some public notification, in order
to implement one of the nine minimum control measures in the 1994 CSO
Control Policy. However, small communities in particular may not
provide public notification to the extent that would be required under
the proposed rule. Therefore, EPA seeks comment on whether six months
is adequate for implementing the proposed public notification
requirements, including development of a public notification plan. In
particular, EPA seeks comment on whether some (e.g., small) communities
should have more time than others to implement public notification
requirements and/or whether there should be additional time to
implement the signage or notification requirements after the public
notification plan is developed, submitted to the Director, and made
available to the public, and if so, how much additional time should be
allowed. For example, should municipal permittees with a population of
less than 10,000, or in the case of sewerage districts, a service
population of less than 10,000, be required to submit a public
notification plan to the Director within nine or 12 months after the
publication of the final rule, rather than six months?
2. Required Permit Condition
    EPA's long-term objective is to use NPDES permits to implement
public notice requirements for CSO discharges in the Great Lakes Basin.
To that end, EPA proposes to revise both the permit application
regulation requirements in Sec.  122.21(j) and to add a required permit
condition for NPDES permits issued for these discharges. EPA proposes
to add Sec.  122.21(j)(8)(iii) to require 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 also proposes to add a
new condition at Sec.  122.42(f) that would apply to permits for CSO
discharges to the Great Lakes Basin. The proposed provision would
ensure that CSO public notice requirements are incorporated into the
NPDES permit where they can be updated as appropriate with each permit
cycle. Public notification plans, submitted with subsequent permit
applications, would 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 would have the information
that would be needed for including requirements for public notification
in the permit when it is reissued.
    The proposed required permit condition would provide flexibility in
a number of areas to allow NPDES permit writers to address in their
plans the particular circumstances of each

community (e.g., size of community, differences in public access areas
potentially impacted by a CSO discharge). This provision would not
preclude the Great Lake states from modifying the condition to
establish more stringent public notification requirements (see Section
425(b)(6) of the 2016 Consolidated Appropriations Act).
    As outlined in Sec.  122.42(f) of the proposed rule, permits for
CSO discharges within the Great Lakes Basin would, at a minimum:
     Require implementation of the public notification
requirements in Sec.  122.38(a);
     Specify the information that must be included on outfall
signage;
     Specify outfalls 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;
     Specify protocols for making the annual notice available
to the public; and
     Require all CSO discharges be reported electronically
either in a discharge monitoring report or as a non-compliance event.
    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 proposed required permit condition would conform to the
1994 CSO Control Policy's minimum control to provide the public with
``adequate notification'' and would further provide specificity to
better implement the public notification provision identified in the
Policy. Including this provision in permits would give the Great Lakes
states an opportunity to update and fine-tune public notice
requirements to reflect continued development of the permittee's public
notice effort, ensure consistency with state legislative and regulatory
requirements for public notification, reflect new technologies and be
informed by public input. In addition, by including public notification
requirements as a condition in permits, the public would have a
formalized opportunity to comment on the proposed permit conditions.

E. Additional Considerations

1. Definitions
    EPA proposes to add three definitions to the NPDES regulations,
``Combined Sewer System,'' ``Combined Sewer Overflows,'' and ``Great
Lakes Basin.'' The proposed 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)).'' The proposed
definition of combined sewer overflow also conforms to the description
of CSO in the CSO Policy which provides that a ``CSO is the discharge
from a CSS at a point prior to the POTW Treatment Plant.''
    The 2016 Consolidated Appropriations Act specifies in Section
425(a)(4) that the term ``Great Lakes'' means ``any of the waters as
defined in the Sec.  118(a)(3) of the Federal Water Pollution Control
Act (33 U.S.C. 1292).'' This, therefore, includes Sec.  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 Sec.  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.''
2. List of Treatment Works
    Section 425(b)(4)(B) provides that EPA shall work with the Great
Lakes states to establish annual publication requirements that list
each treatment works from which the Administrator or the affected state
receive a follow-up notice. EPA has developed a Web page that
identifies the communities in the Great Lakes Basin with CSO
discharges.\18\ In the future, EPA will update this Web page with
information on how to access the annual notices of these communities.
---------------------------------------------------------------------------

    \18\ https://www.epa.gov/npdes/combined-sewer-overflows-great-lakes-basin.
---------------------------------------------------------------------------

3. Adjusting Deadlines 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 by not later than December 17, 2017, 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
proposes to implement Section 425 as part of the NPDES permit program,
under proposed Sec.  122.38(f), this determination would be made by the
Director. As the NPDES authority, the state 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.
    EPA proposes that the Great Lakes Basin CSO permittee must submit a
public notification plan to the Director of the NPDES program not later
than six months after publication of a final rule. The Great Lakes
Basin CSO permittee would be required to comply with the public notice
requirements of Sec.  122.38 by six months for initial and supplemental
notifications and 12 months in the case of annual notification, after
publication of a final rule, unless the Director specifies a later date
to avoid economic hardship. Under the proposed rule at 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 proposed
rule would require the Director to notify the Regional Administrator of
the extension and the reason for the extension. In addition, the
Director would be required to post on its Web site a notice that
includes the name of the community and the new compliance date(s). EPA
also proposes to amend 40 CFR 123.25, which sets forth the requirements
of an approved state NPDES program, to include a requirement for Great
Lakes States to have the authority to implement the public notification
requirements in Sec.  122.38. No revision to Sec.  123.25 would be
needed with respect to proposed revisions to Sec.  122.21(j) and Sec.
122.42, as both of those sections are already included in Sec.  123.25.
As noted above in

section II.G of today's preamble, all of the Great Lakes States already
have some form of public notification requirements, therefore EPA does
not anticipate that any Great Lakes state would need to revise its
regulations or seek additional authority from the legislature to
implement proposed Sec.  122.38 or revised Sec.  122.21(j) and Sec.
122.42.
    EPA requests comment on this proposed implementation of Section
425(b)(5)(B).
4. Notification of CSO volumes
    Most NPDES permits for CSO discharges to the Great Lakes Basin
require the permittee to report CSO volumes in DMRs. In addition, CSO
discharge volume information is typically needed to implement the nine
minimum controls and LTCPs under the CSO Policy. One of the nine
minimum controls identified in the CSO Control Policy addresses
monitoring to effectively characterize CSO impacts and the efficacy of
CSO controls. Similarly, one of the minimum elements of a LTCP is
characterization monitoring and modeling of the CSS. In addition, the
post-construction compliance monitoring program in the CSO Policy calls
for effluent and ambient monitoring. EPA has issued technical guidance
on monitoring and modeling of CSO discharges.\19\ EPA has also
identified examples of where CSO monitoring technologies have also been
used by regulators and communities to better identify significant
pollution and noncompliance problems in the ``NPDES Compendium of Next
Generation Compliance Examples.'' \20\
---------------------------------------------------------------------------

    \19\ See ``Combined Sewer Overflows--Guidance for Monitoring and
Modeling'' EPA-832-B-99-022, 1999 and ``CSO Post Construction
Compliance Monitoring Guidance'', EPA-833-K-11-001, 2012). https://www.epa.gov/npdes/combined-sewer-overflows-csos.
    \20\ See https://www.epa.gov/compliance/compendia-next-generation-compliance-examples-water-air-waste-and-cleanup-programs.
---------------------------------------------------------------------------

    Typically, CSO permittees use a combination of monitoring and
modeling to estimate CSO volume. This approach is reflected in many CSO
permits that require monitoring of CSO discharges from some outfalls,
and for other outfalls allows for estimating CSO discharge volumes by
modeling or some other means. For larger collection systems with
multiple outfalls, the permit may require monitoring the volume
discharged at the most active outfalls with the largest discharge
volumes. CSO permits may provide that for less active CSO outfalls, the
permittee report volume in the DMR based on estimates. In some cases,
volume estimates for DMR reporting purposes are based on models which
were developed to characterize flows in the collection system as part
of developing and implementing a LTCP. These models can vary in
complexity, and may be calibrated by periodic flow measurements or
other data from various locations in the collection system.
    The Agency recognizes that for many CSO permittees, CSO monitoring
efforts have tended to become more robust as monitoring technology has
evolved and continues to evolve. In general, EPA encourages CSO
permittees to consider using monitoring to determine CSO discharge
durations and volume. Traditionally, the cost of installing and
maintaining monitoring sensors has been high when compared to modeling.
However, the cost of monitoring technologies has decreased and is
expected to continue to do so. In addition, new tools are being
developed to communicate, analyze and display data collected by these
monitoring technologies. One example of a CSO community with a more
comprehensive monitoring program is the City of Seattle, WA. The NPDES
permit for CSO discharges in Seattle (WA0031682) requires the permittee
to use automatic flow monitoring equipment to monitor the discharge
volume, discharge duration, storm duration and precipitation at all 86
CSO outfalls from the CSS. In another example, the Capital Region Water
(CRW) in Harrisburg, PA is conducting a pilot study to evaluate the
potential use of CSO activation monitoring equipment.\21\ CRW will use
the results of this pilot study to determine which technology to
implement to send an alert each time a monitored CSO outfall begins
discharging.
---------------------------------------------------------------------------

    \21\ See the Consent Decree between Harrisburg, PA, Capital
Region Water (CRW), the Pennsylvania Department of Environmental
Protection and EPA (U.S. District Court for the Middle District of
Pennsylvania, Civil Action No. 1:15-cv-00291-WWC). (https://www.epa.gov/sites/production/files/2015-02/documents/cityofharrisburg-cd.pdf.)
---------------------------------------------------------------------------

    Some of the public comments received in response to EPA's August 1,
2016 Federal Register document discussed several challenges associated
with volume measurement and reporting. Some commenters suggested that
wastewater monitoring devices may be placed in a harsh environment and
require active maintenance. One commenter suggested that the
configuration of a CSO outfall may present unique and challenging
circumstances which make monitoring difficult. For example, discharges
from the outfall may include contributions from separate storm sewers
or wastewater flows may be influenced by currents and tides in the
receiving water.
    Many commenters discussed the importance of flexibility for Great
Lakes Basin CSO permittees to determine the data collection method that
works best for their community. A commenter also recommended that CSO
discharge volume be noticed in a simplified way that is easier to
understand for the public, such as small, medium, or large discharges.
Another commenter indicated that installing, operating, and maintaining
meters at each of their 52 CSO locations would be cost prohibitive.
    The proposed rule would require the Great Lakes Basin CSO permittee
to provide an estimate of CSO discharges volumes as part of the
supplemental notice to the initial notification to the local public
health department and other potentially affected public entities and
the supplemental notification to the public. The proposal would require
this information within 24-hours of becoming aware that the CSO
discharge has ended. In addition, the proposal would require the CSO
discharger to provide the volume of each CSO discharge that occurred
during the past calendar year in the annual notice. EPA anticipates
that the information in the annual notice may reflect refinements in
the volume and duration estimates provided at the time of the
supplemental notification, and therefore these numbers may not be the
same. EPA requests comment on the adequacy of a 24-hour reporting
window for reporting CSO discharge volume and duration data. EPA also
requests comment on whether these data should be required to be
reported for each outfall, or whether it would be appropriate to allow
for reporting aggregated data at the water body or stream or river
segment level.
    Under the proposed approach, where a CSO permittee has CSO
discharges occurring at multiple locations at the same time, the CSO
permittee would not have to estimate the volume discharged for each
outfall, but would be allowed to make an estimate of the cumulative
volume of CSOs discharged to a given waterbody. This approach would
simplify the information provided to the public and focus on individual
watersheds. This is consistent with the proposed notification
requirements for outfalls, which would not require identification of
individual outfalls in all cases. EPA requests comment on this
approach.
    Under the proposed approach, the Great Lake states would determine

which outfalls must be monitored and where volume estimates are
appropriate for the purpose of public notification when reissuing CSO
permits. This approach would provide flexibility for adapting volume
reporting requirements that would be consistent with and build on
ongoing compliance and implementation monitoring and could respond to
technology advancements that occur in the future. The flexibility would
also allow states and permittees to focus on system specific priorities
(e.g., highest priority outfalls, predictive modeling).
5. Treated Discharges
    Section 425(b)(1) of the 2016 Consolidated Appropriations Act
requires EPA to work with the Great Lake states to establish public
notice requirements for CSO discharges. The Agency recognizes that some
CSO discharges receive treatment, including solids removal and
disinfection, such that the end-of-pipe discharge may meet state water
quality standards, including standards for bacteria indicators designed
to protect recreational uses. Under the proposal and consistent with
Section 425(b)(1), permittees would be required to provide public
notice for all CSO discharges, regardless of the level or type of
treatment a CSO received, if any, prior to discharge. However, nothing
in the proposed rule would preclude permittees from also describing the
level of treatment that various CSO discharges receive.
    EPA received comments at the listening session on September 14,
2016 in response to EPA's August 1, 2016 Federal Register document that
indicate that some municipalities with engineered treatment systems for
CSO discharges do not believe primary treated and disinfected CSO
discharges should be subject to the same public notification
requirements as untreated discharges. In addition, some state workgroup
members have also made this recommendation, including those from
Michigan and Indiana.
    The Agency requests 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 requests 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. One approach would be to provide the NPDES
authority with flexibility to not require initial notification
requirements in the permit for treated CSO discharges. Another approach
would be to only establish initial notification requirements in
proposed Sec.  122.38 for CSO discharges that are not in compliance
with permit limits or that do not receive at least primary treatment
and disinfection. EPA requests comment on this flexibility. The
existing practices in the state of Indiana allow such flexibility.\22\
Other states, such as New York, require public notification for all CSO
discharges, including treated discharges.\23\ Still another approach is
to limit initial notification of treated CSO discharges to public
health officials and other impacted communities. However, EPA notes
that 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.\24\ 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.\25\ 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.
---------------------------------------------------------------------------

    \22\ Indiana's interpretation is based on the stated purposes in
327 IAC 5-2.1-1, and the definitions of ``Affected Public'' and
``Affected Waters'' in 327 IAC 5-2.1-3(1) & (2). These provisions
signify the intent of the notification rule is to properly warn
citizens of possible health impacts from exposure to waterborne
pathogens/E. coli related to CSO events. Notifications to health
departments and drinking water suppliers are also related primarily
to waterborne pathogen concerns. Any ``treated'' CSOs in Indiana
must meet the minimum treatment requirements of the Federal CSO
Policy (which includes disinfection). ``Treated'' CSO discharges are
regulated in Indiana's NPDES permits with appropriate effluent
sampling and numeric limitations for E. coli applied during the
defined recreational season. As these ``treated'' CSO discharges
must comply with E. coli limitations which are protective of full
body contact recreational uses, such discharges are not considered
to be imminent risks to human health (in regards to waterborne
pathogens), any more than are discharges from wastewater treatment
plant outfalls which disinfect and discharge continuously.
Therefore, public notification for ``treated'' CSO discharges is not
required in Indiana.
    \23\ New York Environmental Conservation Law Sec.  17-0826-a
requires public notification for all CSO discharges.
    \24\ ``Review of Coliphages as Possible Indicators of Fecal
Contamination for Ambient Water Quality,'' EPA, 820-R-15-098, April
17, 2015.
    \25\ ``Impact of Wet-Weather Peak Flow Blending on Disinfection
and Treatment: A Case Study at Three Wastewater Treatment Plants,''
Interstate Environmental Commission, March, 2008.
---------------------------------------------------------------------------

    Some of the entities from whom input is sought in the plan
development may prefer to receive notice of all CSO discharges,
regardless of treatment status, because of the potential risks posed by
elevated pathogen levels (e.g., drinking water facilities may want
notification because of concerns about elevated levels of viruses or
other pathogens in the source water).
6. More Stringent State Requirements
    Consistent with Section 425(b)(6) of the 2016 Consolidated
Appropriations Act, nothing in the proposal would prohibit a Great
Lakes state from establishing notice requirements for Great Lakes Basin
CSO permittees in that state that are more stringent than the
requirements proposed today. The NPDES regulations specifically allow
for state NPDES permit authorities to establish permit requirements
that are more stringent than the permit conditions specified at Sec.
122.42 (see Sec.  123.25(a)).
7. Reporting
    Most NPDES permits for CSO discharges to the Great Lakes Basin
require all CSO discharges be reported in a DMR at a frequency
specified in the permit or within 24 hours pursuant to Sec.
122.41(l)(6). As discussed in section II.D of today's preamble, the
NPDES electronic reporting rule requires that these reports be made
electronically. EPA proposes that all NPDES permits for CSO discharges
to the Great Lakes Basin require that all CSO discharges are reported
electronically. In addition, the Agency proposes a provision in Sec.
122.43(f) that would require Great Lakes Basin CSO permittees to
electronically report any CSO discharge that occurred during the past
calendar year that has not been previously reported pursuant to a
permit requirement by May 1 of the following calendar year.
    These proposed provisions are intended to ensure that the NPDES
electronic database has complete information on CSO discharges to the
Great Lakes Basin and to minimize any potential discrepancies between a
permittee's annual notice and the NPDES electronic database.
8. Ambient Monitoring
    One municipality has suggested that a targeted approach to public
notification

that prioritizes high-use recreational areas may reduce health risks
more than an overly broad, general notification requirement. They
suggested a targeted public notification approach could include
monitoring the water quality of recreational areas for E. coli and
cyanobacteria, public notification, posting water quality advisories,
predictive modeling and source tracking. They suggested posting
information from predictive models and the previous day E. coli
sampling results on multiple Web sites and working with local
television stations, newspapers, and radio stations to provide public
notice.
    The proposed rule would not mandate ambient monitoring for all CSO
permittees as part of a public notification program. However, the
proposal would provide flexibility for such approaches to be
incorporated into an NPDES permit. EPA requests comment on when ambient
monitoring and predictive monitoring of ambient water conditions should
be incorporated as a requirement for the public notification program.

IV. Incremental Costs of Proposed Rule

    The economic analysis estimates the incremental costs of requiring
operators of a CSO discharge to the Great Lakes Basin to provide public
notification of CSO discharges. Table 3 summarizes the estimated
incremental costs for the proposed rule.

                            Table 3--Annual Incremental Costs by Respondent Category
                                         [Average of first three years]
----------------------------------------------------------------------------------------------------------------
                                                                                Capital/ start-
                                                    Respondents     Labor costs    up/ O&M costs       Total
----------------------------------------------------------------------------------------------------------------
CSO permittees with a population of less than                 80        $102,114         $55,251        $157,365
 10,000.........................................
CSO permittees with a population of between                   70         118,894           1,296         120,190
 10,000 and 50,000..............................
CSO permittees with a population of more than                 32          86,720           3,456          90,176
 50,000.........................................
States..........................................               7          17,526               0          17,526
                                                 ---------------------------------------------------------------
    Totals......................................  ..............         325,254          60,003         385,257
----------------------------------------------------------------------------------------------------------------

    The average incremental cost per CSO permittee is about $2,000 per
CSO permittee per year. These estimates are all below the threshold
level established by statute and various executive orders for
determining that a rule has a significant or substantial impact on
affected entities. See further discussion in Section V of this
document.
    The Economic 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 Economic Analysis also
assumes costs for state agencies, mainly in the review of CSO permittee
plans and reports.

V. 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 not a significant regulatory action and therefore
this proposal was not submitted to the Office of Management and Budget
(OMB) for review. The final rule may be submitted to OMB for review.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed 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.
    As discussed in section II.C of today's notice, NPDES permits for
CSO discharges to the Great Lakes Basin should require permittees to
provide public notification to ensure that the public receives adequate
notification 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
proposed today. 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:
     93% percent of existing outfalls for all CSO permittees
have installed signs and that they are being maintained;
     Approximately half of the CSO permittees already have a
system for developing estimates of the occurrence and volume of
discharges from CSO outfalls;
     Each Great Lakes Basin CSO permittee already operates a
Web site that can be modified to provide the public with notification
of an 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 plan
are 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 NPDES authority 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 proposed 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.
    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 182 CSO
communities that discharge to the Great Lakes Basin and seven state
NPDES permitting authorities.
    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 8,641 hours per year. Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: EPA estimates that the rule would cost
$385,257 per year during the three year ICR period. This is the total
annual incremental cost for all 182 Great Lakes Basin CSO permittees.