SUMMARY COMMENTS on CMOM

from July 29, 1999, SSO Federal Advisory Committee Meeting

(Note: Municipal representatives did not attend this portion of the meeting - comments came from representatives of Environmental/Health advocates caucus and State caucus).

C-MOM Requirements

Roy Herwig (EPA Region 4) gave an overview of the C-MOM component of the proposed rule. The C-MOM program is derived from a need for improved sewer system operation and maintenance. NPDES permittees are familiar with the permit regulations and requirements, but in many utilities the sewer system has been maintained by a different department than the wastewater treatment authority, which therefore has little knowledge of the permit. The C-MOM program was derived from the flow chart developed by the Subcommittee in the fall of 1996. The C-MOM regulation is really a textual description of that flow chart. The regulation begins with the management system program, and goes on to outline what the elements of a C-MOM program would be. The acronym came about after Region 4 had evaluated a number of utilities and determined that good O&M relied heavily on good management, and the management had to come first. MOM was nothing new; it had always been a good business practice. The proposed language tried to bring it back to the attention of the permittees.

The first three C-MOM components are ensuring proper installation and testing of new and rehabilitated lines; inter-jurisdictional agreements for wastewater services; and requirements for the implementation of an information management system. One of the basic information systems that a municipality should have is a map of the system to tell folks where their sewers are. EPA Region 4 looked at 80,000 work orders and pump station inspection records in the past five years, and found that one of the greatest utility deficiencies is management of information. Considerable information was collected by workers in the field, but little of it was presented to management. C-MOM would also look at municipal satellite collection systems, and require that the relationship between systems be defined in the C-MOM plan. To date, inter-jurisdictional agreements have most often been related to billing, rather than operations and maintenance.

The next two tenets of C-MOM are capacity assurance in the collection system and at the treatment plant. Done correctly, capacity assurance would move maintenance from reactive to proactive and preventative.

C-MOM would also require communities to develop overflow response and emergency operations plans. EPA expects that the utility would have a contingency plan covering how information would be received and dispatched, mobilization, notification of health officials and NPDES authorities, and training on how the plan would be implemented.

A complete C-MOM program would also include assessing a system's current physical conditions and determining which components of the system need to be repaired.

The C-MOM also highlights new connections and flows from service laterals, since 80% of all backups are the fault of homeowners not maintaining private laterals. The idea under the new connections subsection is to ensure that private lateral connections are good and that there is adequate capacity.

The C-MOM requirement to optimize treatment facility operation during peak flows is designed to protect the treatment plant and its biota. It is expected that a good utility will have a peak flow management plan for the treatment plant.

C-MOM would also require training. There is nothing in the CWA about training, but a poorly trained O&M staff would be ineffective. Training should cover not only equipment, but also how the collection system works.

The final area of C-MOM is a summary of the management program, which describes what the program requires, including goals and performance measures.

Municipalities would also be required to conduct periodic audits, as part of C-MOM, to determine the effectiveness of their programs. Since in most current cases there is too little MOM, the plan would help identify the right amount to get the job done. This could be accomplished though the use of performance measures.

The consensus of the small work group members was that there would be no way the regulatory agency would have the resources to review and approve C-MOM programs.

Q&A and Comments

Q: The chart on population referenced previously by Weiss indicated that 60% of the systems had less than 5,000 citizens. It would be dubious to expect that these systems would have someone able to read through the regulation, let alone implement it. How should the Agency should plan to address them?

A: Do not expect that utility directors in small towns would ever read the regulations, which is why the regulation has a caveat that it would be tied to the size and complexity of the collection system. Thre is a need for compliance assistance programs, which is where WEF and APWA could help. Small communities would also have to address some of the C-MOM requirements through the use of contractors and outsourcing. Simple things could be done through outreach. With the new regulations needs to come a strengthening of the compliance assistance program.

Q: There is a need for specific dates by which certain programs would be implemented as part of C-MOM. These range from public notification of overflow events to proposed dates for completing work associated with capacity assurance programs. The dates themselves are not in this draft. How will the dates be established in practice? Will it be open-ended, or is the Agency thinking in terms of the NPDES permit timeline, an enforcement order or some such document separate from the permit?

A: There would not be a uniform schedule. Most utilities currently have 5-year programs that may not even deal with all of the projects that need to be addressed. Therefore the regulation would also include language about establishing priorities. The small work group did not discuss putting specific dates in C-MOM plans. In a fairly uniform type of situation, like overflow notification, the Agency could give some additional thought to dates. Two other types of scenarios are a start-up situation where these requirements would get put into a permit for the first time, and folks would have to come into compliance, and the other would be a response to a specific event. There may be some overlap between the start-up situation and the response to specific events. For start-up issues, EPA does not want specifics in the regulation, but does plan to add language in the preamble that addresses schedule. The small work group only dealt with this on a conceptual level and did not look at specific milestones.

Comment: Response to specific events should be further refined to include repair and replacement, and new hook-ups. For the latter, it would probably need to be a "go/no-go" situation, because it would seem inadequate to allow hook-ups in a capacity constrained portion of the system when the community had notified the NPDES authority in advance of the capacity constraint.

A: If the NPDES authority is doing its job correctly, capital improvements would be made before they become emergencies. For capital improvements to correct a past sin, it would not be appropriate to put them in a permit, since they would really belong in an enforcement order. There are generally three types of programs: short-term programs, such as developing an accurate sewer map or performing pump station repairs, which require up to 18 months; long-term programs, such as developing a GIS mapping system or upgrading a pump station, which require from 18 months to 3 years; and capital improvement projects.

Comment: The C-MOM paper is in a sense too long and virtually impossible to enforce because there is a lot to consider, but essentially nothing to deliver which can be enforced. The Agency made this more complicated than they had to. There are many opportunities to cut back and make C-MOM more digestible by having clear expectations for deliverables, rather than discussions of how they should be delivered. Optimization of treatment plant operation is still really unclear. There is a need for an independent audit that would be part of every permit application, and separate from C-MOM to make it more meaningful. The C-MOM paper is a terrific document for telling somebody what to do, but is troublesome as a regulation.

Comment: There need to be timelines clearly placed in C-MOM. If there is to be an update, there would have to be a specific time to do the update. There also should be a condition in the permit that it would not be renewed if the C-MOM is not done. After the C-MOM plan is prepared, what status it would have if the Director does not sign it? Concerned that C-MOM plans are linked with some conditions of the affirmative defense and therefore need to be reviewed. The whole development of the C-MOM program should have public participation and some sort of formal public adoption process, because so much is linked with C-MOM. There needs to be a public education piece to the C-MOM program and a clear means for tracking citizen complaints and utility responses. There have been problems when full discretion about public notification is left with the operator. Echo AWWA's concern that any SSO should be immediately reported to the public water utility serving that same area. Top priorities are notification, public involvement, maps, and the formal approval of the C-MOM plans at the Agency level.

A: The NPDES authority does not have the information to make a determination of what would be best for a local C-MOM plan. Therefore C-MOM plans would have to be reviewed rather broadly; the Director's review may not add a lot of credibility to the plan.

A: The reason EPA does not want to approve C-MOM programs is because they should be dynamic, if done properly. System performance indicators should be used to measure the success or failure of a C-MOM program.

Comment: The C-MOM document is long and very prescriptive. Neither the States or EPA would look to enforce C-MOM, and it would be questionable policy to promulgate requirements to develop plans that nobody is going to look at.

A: EPA would not be approving C-MOM plans. Rather, if performance indicators showed that there is a problem, C-MOM plans would be one of the first pieces considered when EPA looks at taking enforcement action.

Comment: Understood C-MOM is to be used to determine whether the utility tried hard enough to prevent the overflow. Whether or not those criteria should be spelled out is questionable. A majority of the C-MOM document could be issued as guidance. The regulation should be simple and clear, and fit on one page.

Comment: The same overflow event could result in more than one violation. The duty to report overflow events should be spelled out. Enforcement should not only be taken against a spill, but also for failure to report. Language like "you must consider the applicability..", seems to undermine the rest of the regulation and would be confusing from an enforcement standpoint.

A: There is inherent tension between reactive and preventative approaches. In ensuring that adequate systems are in place, EPA must look to prevent violations. The comment makes a very important part, which from a regulation standpoint mandates the existence of C-MOM programs, not what has to be in them. There is a lot of discretion in how this wording could be laid out, and the assertion that it is completely discretionary may be legally correct. EPA felt more comfortable in laying out specific factors that needed to be considered, and therefore the regulation became very prescriptive.

A: Whether that preventative effort should be regulatory as opposed to guidance is questionable.

A: There are performance standards, but the Agency does not care how a municipality meets that obligation. However, that performance standard could not just be left alone. EPA would need some assurance that action would be taken to meet that standard.

Comment: In flipping between C-MOM and the prohibition, it became evident that C-MOM is essentially a volunteer program. The only way to get at discharges to places other than waters of the U.S. would be through C-MOM. Uncomfortable that C-MOM is not mandatory, that there is no clear approval process, no way to hold operators to committing to undertake C-MOM, and that nowhere is it said that C-MOM is the means for eliminating overflows.

A: The problem is how to frame something that needs to be individually tailored, very prescriptive, and have a bright line test. The current language seemingly would allow communities to run a little bit of a risk, in that if they do not have a good C-MOM program it would be an additional risk in case of an overflow. The Agency may have introduced an enforcement incentive. It would not really be fair to say that there is no incentive to go out and have a C-MOM program.