[Senate Report 110-497]
[From the U.S. Government Publishing Office]



                                                      Calendar No. 1075
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-497

======================================================================



 
              SEWAGE OVERFLOW COMMUNITY RIGHT-TO-KNOW ACT

                                _______
                                

  September 24 (legislative day, September 17), 2008.--Ordered to be 
                                printed

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2080]

                             together with

                             MINORITY VIEWS

       [Including an estimate by the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 2080) to amend the Federal Water 
Pollution Control Act to ensure that sewage treatment plants 
monitor for and report discharges of raw sewage, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill, as amended, do 
pass.

                 Purpose and Summary of the Legislation

    The purpose of S. 2080, the Sewage Overflow Community 
Right-to-Know Act, is to provide a uniform, national standard 
for monitoring, reporting, and public notification of municipal 
combined sewer overflows and sanitary sewer overflows. The bill 
would require publicly owned treatment works to with an issued, 
renewed, or modified Clean Water Act permit to institute a 
methodology, technology, or management program for monitoring 
sewer overflows to alert the operator of the treatment works of 
a sewer overflow in a timely manner.
    S. 2080 would also require, with in the case of a sewer 
overflow that has the potential to affect human health, that 
the owner or operator of a treatment facility notify the public 
of the overflow as soon as practicable, but not later than 24 
hours after the time of discovery of the overflow. If a sewer 
overflow may imminently and substantially endanger human 
health, the owner or operator must notify public health 
authorities and other affected entities immediately after the 
owner or operator knows of the overflow. The bill would require 
a report of each sewer overflow in the treatment facility's 
discharge monitoring report to the Administrator or State, and 
a yearly report to the Administrator or State.
    The bill would require the Administrator of the 
Environmental Protection Agency (EPA) to conduct a rulemaking 
that establishes a set of criteria to guide owners or operators 
of publicly owned treatment works in assessing the potential 
threats to human health from a sewer overflow. The same 
rulemaking would have criteria to guide the owner or operator's 
development of communication measure that are sufficient to 
give notice to the public, public health officials, and other 
affected entities. S. 2080 also provides for the 
Administrator's approval of State notification programs and for 
the Administrator's withdrawal of approval if certain 
conditions are met.
    S. 2080 also clarifies when the notification requirements 
apply to the owner or operator of a treatment works and become 
subject to the section 309 of the Clean Water Act. The bill 
also clarifies key terms and authorizes financial assistance 
for implementing requirements under this Act.

                Background and Need for the Legislation


                               BACKGROUND

    The Sewage Overflow Right-To-Know Act bill will require 
communities to provide the public and public health officials 
with information regarding sewer overflows in places of public 
interest. In 2004, EPA estimated that up to 75,000 sanitary 
sewer overflow events occur each year in the United States, 
releasing up to 10 billion gallons of untreated wastewater, 
which can pollute our rivers, lakes, and beaches. People can be 
exposed to pollutants from these overflow events in a number of 
ways, including by coming into direct contact with waters with 
pollutants from CSOs or SSOs, drinking water contaminated by 
sewer discharges, and consuming or handling fish or shellfish. 
People are also at risk of exposure to sewer overflows by sewer 
backups into residential buildings, city streets, and 
sidewalks. This bill would require monitoring, reporting, and 
notifications of sewage overflow events--and authorize funding 
for such activities.
    Eliminating or reducing the potential for humans to be 
exposed to discharges from pollutants from Combined Sewer 
Overflows (CSOs) and Sanitary Sewer Overflows (SSOs) could 
prevent human illness from waterborne diseases and pathogens. 
Once a release has occurred, steps should be taken to minimize 
the potential human for contact to the pollutants. There is no 
uniform, national standard for notification of combined and 
sanitary sewer overflows. Various federal, state, and local 
laws and initiatives are now used to provide notification of 
such sewer overflow events.
    Our national wastewater infrastructure is aging and in need 
of important but expensive repairs. These repairs will require 
significant investment in traditional infrastructure and 
innovative, non-structural infrastructure to prevent the 
occurrence of sewer overflows. In EPA's most recent Clean Water 
Needs Survey, the Agency estimated the future capital needs to 
address existing CSOs at $50.6 billion. The Agency also 
estimated that it would require an additional $88.5 billion in 
capital improvements to reduce the frequency of SSOs caused by 
wet weather and other conditions (e.g., blockages, line breaks, 
and mechanical/power failures).
    Some Federal laws have notification requirements for 
potential health risks from waterborne contaminants. Under 
section 1414 of the Safe Drinking Water Act, public water 
systems are required to notify the persons served by the system 
of any failure to comply with applicable Federal or state 
drinking water standards, the existence of any drinking water 
variance to safe drinking water standards, and the presence of 
any ``unregulated contaminants'' that pose a public health 
threat. The Safe Drinking Water Act requires public water 
systems to implement notification procedures to ensure that any 
violation of a drinking water standard with potential serious 
adverse effects on human health be made public as soon as 
practicable, but not later than 24 hours after the violation. 
The Act also requires public water systems to provide written 
notice and annual reports to Federal and State agencies, as 
well as to the public.
    Section 406 of the Clean Water Act authorizes funding for 
state and local governments to implement monitoring and 
notification programs for some coastal waters. Under this 
monitoring and notification program, the federal government 
provides grants to states to run such programs.
    The Centers for Disease Control and Prevention (CDC) is 
involved in tracking disease outbreaks. The CDC's National 
Center for Infectious Diseases uses water quality sampling and 
reports of waterborne disease outbreaks to supply information 
on such threats.
    All of these efforts would benefit from more consistent 
monitoring and notification requirements. If local officials 
and the public were alerted to overflow events, it would also 
reduce the potential for exposure to dangerous pollutants. By 
providing the public and public health officials with this 
information, appropriate action can occur to protect pubic 
health.
    The EPA has undertaken a number of initiatives to encourage 
local governments to report sewer overflows to Federal and 
State agencies and the public. In April 1994, EPA issued the 
Combined Sewer Overflow Control Policy (59 Fed. Reg. 18688), 
which established a national framework for control of CSOs 
through the Clean Water Act's permitting program. This policy 
requires owners and operators of combined sewer systems to 
implement minimum technology-based controls that can reduce the 
prevalence and impacts of CSOs without significant engineering 
studies or major construction. These controls include a 
requirement for the public disclosure of CSOs.
    In 2001, Congress amended the Clean Water Act to require 
that permits for combined sewer systems conform to the Combined 
Sewer Overflow Control Policy. Section 402(q) of the Clean 
Water Act requires that each permit issued for a discharge from 
a municipal combined sewer system conform to the Combined Sewer 
Overflow Control Policy. This amendment to the Clean Water Act 
was enacted as part of the Consolidated Appropriations Act, 
2001 (Pub. L. 106-554).
    However, there is no uniform federal requirement for public 
notification of SSOs. Under existing EPA rules (40 CFR 
122.41(l)(6)), NPDES permits should establish a process for 
requiring a permittee to report any noncompliance with the 
permit that may endanger human health or the environment. 
However, these regulations do not specifically require public 
notification of SSOs.
    In 2001, the EPA began to address this lack of a consistent 
Federal mandate for public notification. The Agency issued a 
draft SSO rule that would have implemented a formal program for 
reporting, public notification, and recordkeeping for sanitary 
sewer systems and SSOs. However, EPA's draft SSO rule was never 
finalized, and was later withdrawn. No additional regulatory 
proposals for public notification of SSOs have been issued.

                          NEED FOR LEGISLATION

    There is utility in establishing a national standard for 
monitoring, reporting, and public notification of municipal 
combined sewer overflows and sanitary sewer overflows. However, 
the monitoring, notification, and reporting requirements of the 
Sewage Overflow Community Right-to-Know Act are not intended to 
preclude or deny any right of a State, municipality, or 
individual publicly owned treatment works from implementing 
monitoring, notification, or reporting requirements that are 
more stringent or comprehensive than those contained in S. 2080 
or the regulations promulgated by the Environmental Protection 
Agency to implement this Act. Accordingly, States, 
municipalities, and individual publicly owned treatment works 
may adopt or enforce any regulation, requirement, or permit 
condition with respect to the monitoring, notification, and 
reporting that is more stringent than a regulation, 
requirement, or permit condition issued under the Sewage 
Overflow Community Right-to-Know Act.
    In addition, the additional monitoring, notification, and 
reporting requirements made by S. 2080 do not explicitly or 
implicitly authorize sanitary sewer overflows or municipal 
combined sewer overflows outside of the existing statutory 
requirements of the Clean Water Act.
    Finally, the Committee intends that the amendments to the 
Clean Water Act made by the Sewage Overflow Community Right-to-
Know Act will continue to allow for the utilization of the 
Combined Sewer Overflow Control Policy (under Sec. 402(q) of 
the Clean Water Act) to the extent that the monitoring, 
notification, and reporting requirements contained in the nine 
minimum controls and long term control plan of an individual 
publicly owned treatment works are not inconsistent with the 
monitoring, notification, and reporting requirements of S. 
2080. To the extent that an individual publicly owned treatment 
works' nine minimum controls or long-term control plan either 
does not include monitoring, notification, or reporting 
requirements, or such monitoring, notification, or reporting 
requirements are inconsistent with the requirements of S. 2080, 
the monitoring, notification, or reporting requirements 
contained in S. 2080, and the implementing regulations 
promulgated by the Environmental Protection Agency shall apply.

                Summary of Major Provisions of the Bill

    S. 2080, the Sewage Overflow Community Right to Know Act 
provides for a uniform, national standard for monitoring, 
reporting, and public notification of municipal combined sewer 
overflows and sanitary sewer overflows. The bill would require 
publicly owned treatment works to with a Clean Water Act permit 
to monitor sewer overflows. The bill would require the 
notification of the public and public health officials under 
certain circumstances occur as a result of an overflow event. 
S. 2080 also contains reporting requirements related to 
overflow events.
    The bill would require the Administrator of the 
Environmental Protection Agency (EPA) to conduct a rulemaking 
that establishes a set of criteria to guide owners or operators 
of publicly owned treatment works in assessing the potential 
threats to human health from a sewer overflow. The rulemaking 
would also develop criteria for communication measures to 
notify the public, public health officials, and other affected 
entities of overflow events. S. 2080 also provides for the 
Administrator's approval of State notification programs and for 
the Administrator's withdrawal of approval if certain 
conditions are met.
    S. 2080 also clarifies when the notification requirements 
apply to the owner or operator of a treatment works and become 
subject to the section 309 of the Clean Water Act. The bill 
also clarifies key terms and authorizes financial assistance 
for implementing requirements under this Act.

                      Section-by-Section Analysis


Section 1. Short title

    This section designates the title of the bill as the 
``Sewage Overflow Community Right-to-Know Act''.

Section 2. Definitions

    This section amends the definitions section of the Clean 
Water Act (section 502) to include definitions for the terms 
``treatment works''.

Section 3. Monitoring, reporting, and public notification of sewer 
        overflows

    This section amends section 402 of the Clean Water Act by 
adding a new subsection (s) to provide a uniform, national 
standard for monitoring, reporting, and public notification of 
combined sewer overflows and sanitary sewer overflows. 
Subsection (s)(1) requires that, not later than one year after 
the date of enactment of this subsection, the Administrator 
shall take such action as may be necessary to ensure that each 
permit issued under this subsection for a publicly owned 
treatment works shall require, at a minimum, that the owner or 
operator of the treatment works implement the monitoring, 
notification, and reporting requirements described in this 
subsection.
    The Committee intends the term ``publicly owned treatment 
works'' to include those devices and systems included within 
the term ``treatment works'', as defined by section 212 of the 
Act, that are under the ownership or operational control of the 
Federal Government, or a state or a municipality as such terms 
are defined in section 502 of the Act. New subsection (s)(1) 
does not include treatment works that are not owned or under 
the operational control of the Federal Government, a state, or 
a municipality. New subsection (s)(1) also does not require a 
publicly owned treatment works to assume monitoring, 
notification, and reporting responsibility for satellite 
collection systems (portions of a sanitary sewer system) that 
may be connected to, but are not owned or operated by the 
publicly owned treatment works. The Committee notes that EPA's 
draft SSO rule (January 2001) would have included satellite 
collection systems within the scope of its authority. Satellite 
collection systems account for a majority of sanitary sewer 
overflows that occur throughout the nation. Although the bill 
does not require a publicly owned treatment works to assume 
monitoring, notification, and reporting responsibility for a 
satellite collection system which is not owned or operated by 
the treatment works, the Committee believes that implementation 
of a monitoring, notification, and reporting program for 
satellite collection systems would further the goals of the 
Clean Water Act and the Sewage Overflow Community Right-to-Know 
Act.
    New subsection (s)(1)(A) requires the owner or operator of 
a publicly owned treatment works to institute and utilize a 
feasible methodology, technology, or management program to 
alert the owner or operator of the publicly owned treatment 
works to the occurrence of a sewer overflow in a timely manner.
    The Sewage Overflow Community Right-to-Know Act does not 
define the terms ``feasible'' and ``timely'', but directs the 
Administrator to conduct a formal rulemaking to define such 
terms under new subsection (s)(4). The Committee expects that 
the implementation monitoring methodologies, technologies, or 
management programs that meet the ``feasible'' and ``timely'' 
requirements will be reasonably sufficient to provide the owner 
or operator with actual or constructive knowledge of the 
presence of a sewer overflow.
    The Committee does not intend new subsection (s)(1)(A) to 
require the implementation of a technology-based system at 
every treatment works to monitor for potential sewer overflows, 
but allows individual publicly owned treatment works to utilize 
appropriate methodologies, technologies, or management programs 
that will alert the owner or operator of sewer overflows, 
consistent with the Agency's regulations under new subsection 
(s)(4). The Committee does intend that whatever approved 
methodology, technology, or management program is utilized for 
monitoring, that such methodology, technology, or management 
program is fully-implemented and adequately maintained, funded, 
or staffed, to ensure that the owner or operator is alerted to 
the occurrence of a sewer overflow.
    New subsection (s)(1)(B) and (C) require the owner or 
operator of a publicly owned treatment works to provide notice 
in the event of a sewer overflow. New subsection (s)(1)(B) 
requires owners and operators to notify the public of a sewer 
overflow that has the ``potential to affect human health'' as 
soon as practicable, but not later than 24 hours after the time 
the owner or operator knows of the overflow. New subsection 
(s)(1)(C) requires owners or operators to immediately notify 
public health authorities and other affected entities, such as 
public water systems, of a sewer overflow that may imminently 
and substantially endanger human health.
    The Sewage Overflow Community Right-to-Know Act does not 
define the terms ``potential to affect human health'' or 
``imminently and substantially endanger human health'', but 
directs the Administrator to conduct a formal rulemaking to 
define such terms under new subsection (r)(4). The Committee 
intends that the regulations promulgated by the Environmental 
Protection Agency with respect to notification not preclude 
States, municipalities, or individual publicly owned treatment 
works from adopting more stringent notification requirements 
than called for in S. 2080. The Committee intends to provide 
States, municipalities, and individual publicly owned treatment 
works with the maximum amount of flexibility for the adoption 
of individually tailored notification programs, provided that 
such programs meet the minimum standards called for in S. 2080, 
including any regulations promulgated pursuant to the Sewage 
Overflow Community Right-to-Know Act.
    New subsection (s)(2)(A) provides a limited exception from 
the notice requirement for a sewer overflow under (s)(1)(B) and 
(s)(1)(C) that is limited to a wastewater backup into a single-
family residence. The Committee has provided this limited 
exemption because, in practice, it is likely that residents of 
the single-family residence will already know of the backup 
into the residence, and in many cases, will likely have 
provided notice to the owner or operator of the publicly owned 
treatment works. The Committee felt that a limited exemption 
from the notice was warranted to avoid the likelihood that the 
residents of the single-family residence would notify the 
publicly owned treatment works, only to be later notified by 
the same treatment works as to the presence of the sewer 
overflow. This exemption, however, does not apply to a sanitary 
sewer overflow or municipal combined sewer overflow that is 
released outside of a single-family residence, or to such 
overflows in a residence that does not meet the definition of a 
single-family residence found in new subsection (s)(7)(C). For 
example, if a sewer overflow occurs in a multi-family 
structure, such as an apartment building, condominium, or 
dormitory, and the overflow reaches the common areas of such 
structure (e.g., a common hallway, laundry facility, foyer, or 
entryway), the owner or operator of the treatment works is 
required to provide notice to appropriate persons under 
subsections (s)(1)(B) and (s)(1)(C).
    New subsections (s)(1)(D) and (s)(1)(E) require the owner 
or operator of a publicly owned treatment works to report sewer 
overflows to the Administrator or the State. New subsection 
(s)(1)(D) requires an owner or operator to report each sewer 
overflow on its discharge monitoring report, including 
information on the magnitude, duration, and suspected cause of 
the overflow, the steps taken or planned to reduce, eliminate, 
or prevent the recurrence of the overflow, and the steps taken 
or planned to mitigate the impact of the overflow. New 
subsection (s)(1)(E) requires the owner or operator to report 
the total number of sewer overflows that occur in a calendar 
year, including specific details on the volume of wastewater 
released per incident, the duration of each sewer overflow, the 
location of the overflow and any potentially affected receiving 
waters, the responses taken to clean up the overflow, and any 
actions taken to mitigate the impacts of the overflow and to 
avoid further future overflows at the site.
    New subsection (s)(2)(B) provides a limited exemption from 
the reporting requirements for the release of wastewater that: 
(1) occurs in the course of maintenance of the treatment works; 
(2) is managed consistently with the treatment works' best 
management practices; and (3) is intended to prevent overflows. 
The Committee has provided this limited exemption to address 
routine maintenance of sewer systems, such as activities to 
clear our sewer lines. The Committee intends this exemption to 
be read narrowly, that it be limited to releases that are both 
de minimus in terms of both duration and volume, and meet all 
of the requirements listed in the exemption. The reporting 
requirement exemption for (s)(1)(D) and (r)(1)(E) does not 
include releases in connection with a ``bypass'' or ``upset'', 
as those terms are defined in the Code of Federal Regulations 
(40 CFR Sec. 122.41(m) and (n) (2006)).
    New subsection (s)(3) requires individual States to provide 
an annual summary report to the Administrator on sewer 
overflows that occurred within the State.
    New subsection (s)(4) directs the Administrator, within one 
year of the date of enactment of the Sewage Overflow Community 
Right-to-Know Act, to finalize and issue regulations to 
implement new subsection(s), including regulations to provide 
additional clarity on the terms ``feasible'', ``timely'', 
``potential to affect human health'', and ``imminently and 
substantially endanger human health''.
    In defining the term ``feasible'', the Committee expects 
the Administrator to consider: (1) the availability of a 
monitoring technology, methodology, or management program; (2) 
the ability of a technology, methodology, or management program 
to reasonably detect the occurrence of a sewer overflow; (3) 
the cost of implementing the technology, methodology, or 
management program; (4) the designated use of potential 
receiving waters; (5) the proximity of an overflow to a source 
of drinking water or a recreation water; (6) the potential 
public health implications of an overflow to the public, with 
particular emphasis on susceptible populations; (7) the size of 
the publicly owned treatment works; (8) the nature or quality 
of pollutants contained in the raw waste load of the treatment 
works wastewater; (9) the frequency, volume, and duration of 
past sewer overflows by a particular publicly owned treatment 
works; and (10) other factors that the Administrator considers 
appropriate.
    In defining the term ``timely'', the Committee expects the 
Administrator to ensure that the owner or operator of the 
publicly owned treatment work has knowledge of the sewer 
overflow as quickly as practicable, depending upon the 
monitoring technology, methodology, or management program 
implemented by the owner or operator, and consistent with the 
public health goals of the Sewage Overflow Community Right-to-
Know Act and goals of the Clean Water Act ``to restore and 
maintain the chemical, and physical, and biological integrity 
of the Nation's waters.''
    New subsection (s)(4) directs the Administrator to include 
site specific conditions within its regulatory definition for 
the terms ``feasible'' and ``timely''.
    New subsections (s)(5)(A) authorizes a State to submit to 
the Administrator evidence that the State has in place a 
legally enforceable notification program that is substantially 
equivalent to the requirements of paragraph (1)(B) and (1)(C). 
If the Administrator determines that the State's program 
notification program is substantially equivalent, the 
Administrator shall authorize the State to carry out its 
program instead of the requirements of paragraphs (1)(B) and 
(1)(C). In reviewing a State notification program, the 
Administrator shall take into account: (1) the scope of sewer 
overflows for which notification is required; (2) the length of 
time during which notification must be made; (3) the scope of 
persons who must be notified of sewer overflows; (4) the scope 
of enforcement activities ensuring that notifications of sewer 
overflows are made; and (5) such other factors as the 
Administrator considers appropriate. The Committee believes 
that the Administrator should heavily consider factors that 
weigh in favor of protecting persons from potentially unsafe 
exposures to pollutants.
    New subsection (s)(5)(B) provides that if a State submits 
evidence of a notification program 30 days or earlier than the 
date on which the Administrator issues regulations under (1)(B) 
and (1)(C), the requirements under paragraphs (1)(B) and (1)(C) 
shall not apply to a publicly's owned treatment works located 
in the State until the date on which the Administrator 
completes a review of the notification program under 
subparagraph (A)(ii).
    New subsection (s)(5)(C) authorizes the Administrator to 
withdraw a State's authorization of its program and to enforce 
the requirements of (1)(B) and (1)(C) with respect to the 
State. Before taking such action, the Administrator must 
conduct a public health survey and determine that a State is 
not administering and enforcing a State notification program 
that is substantially equivalent to the requirements of 
paragraphs (1)(B) and (1)(C). The Administrator must also 
notify the State and allow a reasonable time, not to exceed 90 
days from the date on which the State received such 
notification, prior to withdrawing the State's authorization.
    New subsection (s)(6) provides that on the 31st day after 
the Administrator has issued regulations under paragraph 
(s)(4), the requirements of (1)(B) and (1)(C) shall apply to 
the owner or operator of a publicly owned treatment works and 
be subject to enforcement under section 309. On this same day, 
the requirements of (1)(B) and (1)(C) shall supersede any 
notification requirements contained in a permit issued under 
this section for the treatment works to the extent that the 
notification requirements are less stringent than the 
notification requirements of paragraphs (1)(B) and (1)(C). 
These requirements will continue to apply until such date as a 
permit is issued, renewed, or modified under this section in 
accordance with paragraph (1).
    New subsection (s)(7) defines the terms ``Sanitary Sewer 
Overflow'', ``Sewer Overflow'' and ``Single-Family Residence''. 
The term ``Sanitary Sewer Overflow'' means an overflow, spill, 
release, or diversion of wastewater from a sanitary sewer 
system.'' The term ``Sewer Overflow'' means a sanitary sewer 
overflow or a municipal combined sewer overflow. The term 
``single-family residence'' is defined as an individual 
dwelling unit, including an apartment, condominium, house, or 
dormitory, but specifically excludes common areas from multi-
dwelling structures. The definition for ``single-family 
residence'' is utilized to define the scope of the limited 
exemption for notice of sewer overflows found in subsections 
(r)(1)(B) and (r)(1)(C). The definition of an SSO was moved 
from Section 2 of this Act to Section 3 of this Act. This 
change results in this definition of an SSO applying only to 
the requirements of this Act, and not to the entire Federal 
Water Pollution Control Act. Further, nothing in this 
legislation changes the scope of which Sanitary or Combined 
Sewer Overflows are prohibited under the Clean Water Act. 
Sanitary Sewer Overflows that reach waters of the U.S. or that 
violate individual permit conditions continue to be prohibited. 
The monitoring and public notification required in this 
legislation does not authorize discharges to waters of the U.S. 
or other permit violations. Nor does anything in this 
legislation preempt States and individual POTWs with monitoring 
and notification requirements that are more stringent than this 
legislation.

Section 4. Eligibility for assistance

    This section amends sections 601(a) and 606(c) of the Clean 
Water Act to authorize funding from the Clean Water State 
Revolving Fund to be utilized for carrying out the monitoring 
requirements of the Sewage Overflow Community Right-to-Know 
Act.

                     Legislative History and Votes


                          LEGISLATIVE HISTORY

    Senator Lautenberg introduced S. 2080 on September 20, 
2007. On July 31, 2008, the Committee on Environment and Public 
Works held a business meeting to consider the bill, and 
considered and adopted by voice vote Senator Lautenberg's 
amendment in the nature of a substitute to S. 2080. The 
Subcommittee on Transportation Safety, Infrastructure Security, 
and Water Quality held a hearing entitled ``Meeting America's 
Wastewater Infrastructure Needs in the 21st Century'' on 
September 19, 2007, and a hearing entitled ``Protecting Water 
Quality at America's Beaches'' on June 27, 2007 at which sewage 
overflow issues were discussed.

                                 VOTES

    On July 31, 2008, the Committee on Environment and Public 
Works held a business meeting to consider S. 2080, among other 
pieces of legislation. The Committee on Environment and Public 
Works considered Senator Lautenberg's amendment in the nature 
of a substitute to S. 2080. The Committee favorably adopted the 
bill by a voice vote.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee notes that the 
Congressional Budget Office has found, ``[w]ithout knowing the 
precise nature of the regulations that EPA would issue as a 
result of this bill, CBO cannot make a precise estimate of the 
costs of the mandates.'' However, CBO noted, ``S. 2080 contains 
no new private-sector mandates as defined in UMRA.''

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee notes that the Congressional 
Budget Office found that ``S. 2080 contains several 
intergovernmental mandates as defined in the Unfunded Mandates 
Reform Act (UMRA).'' They continued that ``CBO cannot make a 
precise estimate of the costs of the mandates. Based on 
information from affected entities, however, we estimate that 
the costs of the mandates could exceed the threshold 
established in UMRA.'' However, CBO found that ``S. 2080 
contains no new private-sector mandates as defined in UMRA.''

                  Congressional Budget Office Estimate

                                                September 23, 2008.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2080, the Sewage 
Overflow Community Right-to-Know Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman (for federal costs), and Burke Doherty (for the state 
and local impact).
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 2080--Sewage Overflow Community Right-to-Know Act

    S. 2080 would require owners and operators of publicly 
owned sewage treatment plants to notify federal and state 
agencies and the public in a timely manner of any sewer 
overflows. Under this legislation, the Environmental Protection 
Agency (EPA) would be required to develop regulations 
establishing guidelines for the notifications. The legislation 
also would expand the types of activities that are eligible to 
receive funds from the Clean Water State Revolving Fund.
    Based on information from EPA, CBO estimates that 
implementing this legislation would cost about $1 million in 
2009 and less than $500,000 in subsequent years, subject to the 
availability of appropriations. Enacting the bill would not 
affect direct spending or receipts.
    S. 2080 contains several intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act (UMRA). 
Specifically, the bill would require treatment plants to:
           Institute and utilize a monitoring program 
        for sewer overflows, including combined sewer overflows 
        (CSOs) and sanitary sewer overflows (SSOs);
           Notify the public of a sewer overflow within 
        24 hours;
           Notify public health authorities and other 
        affected entities, such as public water systems, if 
        there is an imminent and substantial risk to human 
        health due to a sewer overflow;
           Provide an oral or electronic report of an 
        overflow within 24 hours to the state or to the 
        Administrator of EPA and a more-detailed written report 
        within five days;
           Report each sewer overflow on its monthly 
        discharge monitoring report to EPA or the treatment 
        plant's state. This report must include the magnitude, 
        cause, and mitigation efforts for the specific 
        overflows; and
           Submit an annual report to EPA or the state 
        on the number of overflows in a calendar year, 
        including the details of magnitude, duration, location, 
        potentially affected receiving waters, and mitigation 
        efforts. If a state receives a report under this 
        requirement, that state must submit to EPA a summary of 
        the report.
    Without knowing the precise nature of the regulations that 
EPA would issue as a result of this bill, CBO cannot make a 
precise estimate of the costs of the mandates. Based on 
information from affected entities, however, we estimate that 
the costs of the mandates could exceed the threshold 
established in UMRA. The bill's new requirements would involve 
additional personnel costs and could necessitate new 
infrastructure and engineering expertise. According to EPA and 
the National Association of Clean Water Agencies (NACWA), over 
16,000 treatment plants operate in the United States, and each 
of those entities could be affected by the permitting 
requirements in S. 2080. Infrastructure changes, if required by 
the regulations, could be particularly expensive. Given the 
large number of affected entities, even a small increase in 
additional costs (less than $4,500 per entity annually) would 
result in costs that exceed the threshold for intergovernmental 
mandates ($68 million in 2008, adjusted annually for 
inflation). The bill also would expand the types of activities 
eligible to receive funds from the Clean Water State Revolving 
Fund to include the monitoring requirements discussed above.
    S. 2080 contains no new private-sector mandates as defined 
in UMRA.
    On June 11, 2008, CBO transmitted a cost estimate for H.R. 
2452, a bill to amend the Federal Water Pollution Control Act 
to ensure that sewage treatment plants monitor for and report 
discharges of sewage, as ordered reported by the House 
Committee on Transportation and Infrastructure on May 15, 2008. 
H.R. 2453 and this legislation are nearly identical and the 
estimated costs for both bills are the same.
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for federal costs), and Burke Doherty (for the state 
and local impact). This estimate was approved by Theresa Gullo, 
Deputy Assistant Director for Budget Analysis.

                             MINORITY VIEWS

    Sanitary Sewer Overflows, or SSO's, are a real concern 
throughout the United States. I agree that S. 2080, the 
``Sewage Right-to-Know Act,'' is well-intentioned in its aim to 
inform the public when there's a potential health risk from raw 
sewage contaminating public spaces. However, communities 
continue to struggle with many other federal mandates but lack 
the financial resources to necessary improvements to their 
facilities. That is why I oppose this bill.
    Congress must recognize that by only increasing federal 
mandates without appropriate funding, communities and their 
residents will become increasingly vulnerable to lawsuits and 
extensive rate hikes that will not result in substantially 
improved water quality. I firmly believe that communities want 
their facilities to function properly if they had the financial 
and technical wherewithal. The populations most vulnerable to 
new federal regulations tend to be lower income residents in 
rural communities. Unfortunately, this bill does not properly 
address this disparity and has the potential to negatively 
impact rural communities disproportionately.
    This legislation requires the Administrator to define the 
terms ``feasible'' and ``timely'' without Congressional 
direction. The term ``feasible'' should explicitly reflect 
individual needs and constraints of a local community, 
including the financial ability of a local tax base, the access 
to adequate technical assistance, other federal financial 
requirements on the particular community (i.e. drinking water 
regulations), and access to federal and state funding for 
compliance. Without these particular issues contemplated by the 
Administrator, the term ``feasible'' will not adequately 
address the inequitable hardship on rural and disadvantaged 
communities as a result of unfunded mandates.
    Rather than apply a new federal mandate, Congress should 
reauthorize and increase appropriations for the Clean Water 
State Revolving Loan Fund. I'm extremely disappointed that this 
Congress has failed to pass a clean water infrastructure bill 
in time for passage out of both chambers to be sent to the 
President of the United States' desk. However, it is important 
to note that State Revolving Loan Funds should be used strictly 
for capital improvements and not for operations and 
maintenance, including operations and maintenance of a 
monitoring and reporting program.

                                                   James M. Inhofe.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in black brackets, new matter is printed in 
italic, existing law in which no change is proposed is shown in 
roman:

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                              ----------                              

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    Sec. 401. (a)(1)* * *

           *       *       *       *       *       *       *

    Sec. 402. (a)(1) Except as provided in sections 318 and 404 
of this Act, the Administrator may, after opportunity for 
public hearing, issue a permit for the discharge of any 
pollutant, or combination of pollutants, notwithstanding 
section 301(a), upon condition that such discharge will meet 
either (A) all applicable requirements under sections 301, 302, 
306, 307, 308, and 403 of this Act, or (B) prior to the taking 
of necessary implementing actions relating to all such 
requirements, such conditions as the Administrator determines 
are necessary to carry out the provisions of this Act.
    (2) * * *

           *       *       *       *       *       *       *

    (s) Sewer Overflow Monitoring, Reporting, and 
Notifications--
          (1) General requirements.--After the last day of the 
        180-day period beginning on the date on which 
        regulations are issued under paragraph (4), a permit 
        issued, renewed, or modified under this section by the 
        Administrator or the State, as the case may be, for a 
        publicly owned treatment works shall require, at a 
        minimum, beginning on the date of the issuance, 
        modification, or renewal, that the owner or operator of 
        the treatment works--
                  (A) institute and utilize a feasible 
                methodology, technology, or management program 
                for monitoring sewer overflows to alert the 
                owner or operator to the occurrence of a sewer 
                overflow in a timely manner;
                  (B) in the case of a sewer overflow that has 
                the potential to affect human health, notify 
                the public of the overflow as soon as 
                practicable but not later than 24 hours after 
                the time the owner or operator knows of the 
                overflow;
                  (C) in the case of a sewer overflow that may 
                imminently and substantially endanger human 
                health, notify public health authorities and 
                other affected entities, such as public water 
                systems, of the overflow immediately after the 
                owner or operator knows of the overflow;
                  (D) report each sewer overflow on its 
                discharge monitoring report to the 
                Administrator or the State, as the case may be, 
                by describing--
                          (i) the magnitude, duration, and 
                        suspected cause of the overflow;
                          (ii) the steps taken or planned to 
                        reduce, eliminate, or prevent 
                        recurrence of the overflow; and
                          (iii) the steps taken or planned to 
                        mitigate the impact of the overflow; 
                        and
                  (E) annually report to the Administrator or 
                the State, as the case may be, the total number 
                of sewer overflows in a calendar year, 
                including--
                          (i) the details of how much 
                        wastewater was released per incident;
                          (ii) the duration of each sewer 
                        overflow;
                          (iii) the location of the overflow 
                        and any potentially affected receiving 
                        waters;
                          (iv) the responses taken to clean up 
                        the overflow; and
                          (v) the actions taken to mitigate 
                        impacts and avoid further sewer 
                        overflows at the site.
          (2) Exceptions.--
                  (A) Notification requirements.--The 
                notification requirements of paragraphs (1)(B) 
                and (1)(C) shall not apply a sewer overflow 
                that is a wastewater backup into a single-
                family residence.
                  (B) Reporting requirements.--The reporting 
                requirements of paragraphs (1)(D) and (1)(E) 
                shall not apply to a sewer overflow that is a 
                release of wastewater that occurs in the course 
                of maintenance of the treatment works, is 
                managed consistently with the treatment works' 
                best management practices, and is intended to 
                prevent sewer overflows.
          (3) Report to epa.--Each State shall provide to the 
        Administrator annually a summary of sewer overflows 
        that occurred in the State.
          (4) Rulemaking by epa.--Not later than one year after 
        the date of enactment of this subsection, the 
        Administrator, after providing notice and an 
        opportunity for public comment, shall issue regulations 
        to implement this subsection, including regulations 
        to--
                  (A) establish a set of criteria to guide the 
                owner or operator of a publicly owned treatment 
                works in--
                          (i) assessing whether a sewer 
                        overflow has the potential to affect 
                        human health or may imminently and 
                        substantially endanger human health; 
                        and
                          (ii) developing communication 
                        measures that are sufficient to give 
                        notice under paragraphs (1)(B) and 
                        (1)(C); and
                  (B) define the terms ``feasible'' and 
                ``timely'' as such terms apply to paragraph 
                (1)(A), including site specific conditions.
          (5) Approval of state notification programs.--
                  (A) Requests for approval.--
                          (i) In general.--After the date of 
                        issuance of regulations under paragraph 
                        (4), a State may submit to the 
                        Administrator evidence that the State 
                        has in place a legally enforceable 
                        notification program that is 
                        substantially equivalent to the 
                        requirements of paragraphs (1)(B) and 
                        (1)(C).
                          (ii) Program review and 
                        authorization.--If the evidence 
                        submitted by a State under clause (i) 
                        shows the notification program of the 
                        State to be substantially equivalent to 
                        the requirements of paragraphs (1)(B) 
                        and (1)(C), the Administrator shall 
                        authorize the State to carry out such 
                        program instead of the requirements of 
                        paragraphs (1)(B) and (1)(C).
                          (iii) Factors for determining 
                        substantial equivalency.--In carrying 
                        out a review of a State notification 
                        program under clause (ii), the 
                        Administrator shall take into account 
                        the scope of sewer overflows for which 
                        notification is required, the length of 
                        time during which notification must be 
                        made, the scope of persons who must be 
                        notified of sewer overflows, the scope 
                        of enforcement activities ensuring that 
                        notifications of sewer overflows are 
                        made, and such other factors as the 
                        Administrator considers appropriate.
                  (B) Review period.--If a State submits 
                evidence with respect to a notification program 
                under subparagraph (A)(i) on or before the last 
                day of the 30-day period beginning on the date 
                of issuance of regulations under paragraph (4), 
                the requirements of paragraphs (1)(B) and 
                (1)(C) shall not begin to apply to a publicly 
                owned treatment works located in the State 
                until the date on which the Administrator 
                completes a review of the notification program 
                under subparagraph (A)(ii).
                  (C) Withdrawal of authorization.--If the 
                Administrator, after conducting a public 
                hearing, determines that a State is not 
                administering and enforcing a State 
                notification program authorized under 
                subparagraph (A)(ii) in accordance with the 
                requirements of this paragraph, the 
                Administrator shall so notify the State and, if 
                appropriate corrective action is not taken 
                within a reasonable time, not to exceed 90 
                days, the Administrator shall withdraw 
                authorization of such program and enforce the 
                requirements of paragraphs (1)(B) and (1)(C) 
                with respect to the State.
          (6) Special rules concerning application of 
        notification requirements.-- After the last day of the 
        30-day period beginning on the date of issuance of 
        regulations under paragraph (4), the requirements of 
        paragraphs (1)(B) and (1)(C) shall--
                  (A) apply to the owner or operator of a 
                publicly owned treatment works and be subject 
                to enforcement under section 309, and
                  (B) supersede any notification requirements 
                contained in a permit issued under this section 
                for the treatment works to the extent that the 
                notification requirements are less stringent 
                than the notification requirements of 
                paragraphs (1)(B) and (1)(C),
        until such date as a permit is issued, renewed, or 
        modified under this section for the treatment works in 
        accordance with paragraph (1).
          (7) Definitions.--In this subsection, the following 
        definitions apply:
                  (A) Sanitary sewer overflow.--The term 
                ``sanitary sewer overflow'' means an overflow, 
                spill, release, or diversion of wastewater from 
                a sanitary sewer system. Such term does not 
                include municipal combined sewer overflows or 
                other discharges from a municipal combined 
                storm and sanitary sewer system and does not 
                include wastewater backups into buildings 
                caused by a blockage or other malfunction of a 
                building lateral that is privately owned. Such 
                term includes overflows or releases of 
                wastewater that reach waters of the United 
                States, overflows or releases of wastewater in 
                the United States that do not reach waters of 
                the United States, and wastewater backups into 
                buildings that are caused by blockages or flow 
                conditions in a sanitary sewer other than a 
                building lateral.
                  (B) Sewer overflow.--The term ``sewer 
                overflow'' means a sanitary sewer overflow or a 
                municipal combined sewer overflow.
                  (C) Single-family residence.--The term 
                ``single-family residence'' means an individual 
                dwelling unit, including an apartment, 
                condominium, house, or dormitory. Such term 
                does not include the common areas of a multi-
                dwelling structure.

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SEC. 601. GRANTS TO STATES FOR ESTABLISHMENT OF REVOLVING FUNDS.

    (a) General Authority.--Subject to the provisions of this 
title, the Administrator shall make capitalization grants to 
each State for the purpose of establishing a water pollution 
control revolving fund for providing assistance (1) for 
construction of treatment works (as defined in section 212 of 
this Act) which are publicly owned, (2) for implementing a 
management program under section 319, [and] (3) for developing 
and implementing a conservation and management plan under 
section 320, and (4) for the implementation of requirements to 
monitor for sewer overflows under section 402.

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SEC. 603. WATER POLLUTION CONTROL REVOLVING LOAN FUNDS. \1\

    (a) * * *

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    (c) Projects Eligible for Assistance.--The amounts of funds 
available to each State water pollution control revolving fund 
shall be used only for providing financial assistance (1) to 
any municipality, intermunicipal, interstate, or State agency 
for construction of publicly owned treatment works (as defined 
in section 212 of this Act), (2) for the implementation of a 
management program established under section 319 of this Act, 
[and] (3) for development and implementation of a conservation 
and management plan under section 320 of this Act, and (4) for 
the implementation of requirements to monitor for sewer 
overflows under section 402. The fund shall be established, 
maintained, and credited with repayments, and the fund balance 
shall be available in perpetuity for providing such financial 
assistance.

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