Consent Decree Performance Measures and Schedules

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• Consent Decree Performance Measures and Schedules
• April 22-24, 2009
• Paul Calamita
• AquaLaw

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Overview

• CSO/SSO Performance Measures
• SSO
• CSO
• Frequency of Activation
• Percent Capture
• Projects performance
• Phase/Iterative/Adaptive
• Other performance Approaches
• Miscellaneous Considerations

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Overview

• Sewer Overflow Control Program Schedules
• SSO Schedules
• CSO Schedules
• Schedules and Rates Is a level playing field
  desirable what would it look like

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CSO/SSO Performance Measures

• Comprehensive approaches

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Comprehensive Approach - SSO

• Fairly typical approach
• No capacity-related overflows to a defined level
  of service (i.e., 2-year storm)
• Elimination of constructed outfalls
• SSES
• Develop implement CMOM program
• Address satellite systems
• Address excessive inflow infiltration
• N.B. only excessive I/I is a regulatory issue
  and then a gray area

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Comprehensive Approach - SSO

• Sometimes annual volume limit
• Stays out of the details and, instead, focuses on
  system wet weather performance
• Volume limits tied to average year

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• CSO Comprehensive Approaches

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CSO Frequency of Activation

• Individual commitment for each CSO outfall
• This is the hardest performance measure to meet
  both technically and financially
• Rarely makes sense except in a system with few
  outfalls which discharge to sensitive waters

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CSO Frequency of Activation

• Maximum that no outfall will exceed, or
• Average activation number
• System-wide
• by tributary
• NB Average activation approach is similar in
  benefits to system-wide percent capture (see
  below)

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CSO Frequency of Activation

• Systems with
• Few outfalls
• Solid hydraulic models
• Few satellite systems to deal with
• Money (especially if outfall-by-outfall
  commitment)
• Sensitive waters and/or small CSO receiving
  streams
• Risks having to correct/repeat/reengineer
  controls non-cost-effectively

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CSO Percent Wet Weather Capture

• Overall system wide percent capture (usually by
  wet weather volume)
• Systems
• Often without sensitive waters
• Often discharging to larger rivers
• With limited financial capability
• NB Avoids hole-in-the-donut performance risk
  because if percent capture comes up short you can
  close the gap with the most cost-effective
  controls from anywhere in your system.

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CSO Percent Wet Weather Capture

• Percent capture is usually coupled with
  infrastructure construction commitments
• This applies to both capture of wet weather
  volume and equivalent mass from 85 of Wet
  Weather Volume

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Projects and Performance Criteria

• Under this approach the LTCP commitment is a list
  of well-defined projects
• Specific performance measures are associated with
  each project such as volume, throughput, time for
  draining (if a tunnel), etc.

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Projects and Performance Criteria

• Attractive approach where a modular program would
  work
• Example series of storage facilities sized and
  built over time in response to other system
  improvements
• Compare tunnel requiring diameter certainty
  before construction and which cant be readily
  changed after the fact
• Attractive where system modeling not advanced

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Phased/Iterative/Adaptive

• In general commitment to reasonable further
  progress given
• Community resources
• Impact of CSOs on receiving waters
• Sensitive areas, large versus small streams, etc
• Any meaningful public use
• Competing environmental/societal needs
• Impact of other sources/realistic LOCs for same
• Other considerations

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Phased/Iterative/Adaptive

• Commitment to implement a known project or group
  of projects or a Phase of a communitys LTCP.
• Followed by additional study and/or
  implementation of later phases
• Appropriate where
• Community faces significant financial
  restrictions
• Program can be iterative - avoids the risk
  inherent with programs that make programmatic
  commitments (especially number of activations)

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Other Performance Approaches

• Volume reduction of SSO/CSO at key schedule
  milestones
• Annual spending commitment with routine
  reevaluation
• Level of control with State finding that residual
  overflows along with public notification wont
  interfere with designated uses

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Other Performance Approaches

• Green Infrastructure
• Need LTCP and order/decree language that promotes
  rather than tolerates green
• Green acceptance should be on less than an
  equivalent basis with gray
• Green provides multiple benefits as to gray

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Other Performance Approaches

• Green Infrastructure (cont)
• Green needs special accommodations and
  opportunities for trial and error
• Where good faith green efforts dont meet
  performance measures, more time must be provided
  to implement gap-filling grey solutions

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Performance Measures the Agencies Want

• Frequency of activation in typical year, and
• As few activations as possible, and
• Balanced outfall performance
• Why the above?
• Ease of verifying system performance
• Ease of public understanding
• Nationwide consistency
• EPA Enforcement consistency (despite CSO Policy
  call for site-specific CSO solutions)

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Miscellaneous Performance Measure Considerations

• Where percent capture has been proposed,
  sometimes EPA seeks frequency of activation at
  the end of the day
• Sometimes EPA has sought BOTH frequency of
  activation and percent capture

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Miscellaneous Performance Measure Considerations

• NB CSO Policy says pick any of the three
  presumptive criteria and they are listed as (1)
  frequency of activation, OR (2) percent capture
  by volume, OR (3) capture of equivalent pollutant
  load for volumes captured in (2).
• NB ALCOSAN decree got this right (or not
  and)

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Miscellaneous Performance Measure Considerations

• Sewer separation remains controversial.
• Cost
• Disruption
• Residual state-of-the-art storm water delivery
  system
• Nevertheless, targeted separation can be important

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Miscellaneous Performance Measure Considerations

• CSO communities often end up capturing and
  treating large volumes of municipal storm water
• CSO communities often have smaller wet weather
  water quality impacts than sanitary systems
  because of uncontrolled MS4 discharges

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• SSO Schedules Federal and State

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Federal SSO Schedules

• US EPA OECA still pushing for consent decrees
  with fixed end dates for construction before the
  plan is known
• EPA OECA trying to hold everyone to 15 years or
  less
• NB EPA CSO financial capability guidance still
  being asserted as the basis for schedules

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Federal SSO Schedules

• Some have gotten 20 years but mostly where mixed
  CSO/SSO
• Some have negotiated spending ceilings over a
  fixed period of years with possibility of
  additional time if costs exceed the threshold
• Usually, OECA wants something (higher level of
  control) in exchange for more time

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Federal SSO Schedules

• OECA Leap before you look approach
• Trend communities saying no and only entering
  decrees once plan is approved
• EPA FCA guidance is inadequate

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State SSO Schedules

• States almost always require schedule and plan
  development together
• Rarely is there an arbitrary fixed end date up
  front
• States allow greater schedule flexibility
  embrace reasonable further progress rather than
  getting hung up on predicting exactly where and
  when a system will finish

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• CSO Schedules

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CSO Schedules

• OECA still wants everyone done in 20 years
• OECA resisting any schedule reopeners you will
  have to pay for any additional time they may
  decide to give you

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CSO Schedules

• EPA more willing to make concessions on level of
  control rather than 20 year schedule
• Reflects reality that CSO control during larger
  storms generally yields little real benefits
• Nagging concern that they will give on LOC now
  only to come after you again later.

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CSO Schedules

• Economy is forcing communities to resist risk of
  arbitrary EPA schedules and be certain of scope
  of program before signing federal decree
• Communities seek longer than 20 years as there is
  limited ability to raise rates during the next
  several years
•  

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CSO Schedules

• EPA being pressed for schedules gt 20 years
• EPA will either have to
• Concede to longer schedules
• Take another path (such as reasonable further
  progress)
• Sue communities
• Federal Courts are likely to be sympathetic to
  communities
• Economy is historically weak
• DOJs popularity with the courts has ebbed

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CSO Schedules

• States allow greater schedule flexibility
  willing to embrace reasonable further progress
  rather than predicting exactly where and when a
  system will finish
• States also more willing to accept rate
  commitment approach

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• Schedules and Rates
• Do We Really Want a Level Playing Field?

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Level playing field for sewer overflow
control?

• Do we really want this?
• Current approach is community-specific and
  complicated
• Complicated facilitates differing
  impacts/commitments
• One (fully adjustable) size-fits-all approach
  would level the national playing field

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Proposal Sewer rates raised up to a
presumptive 1.5 MHI

• Based on 5,000 gallons monthly usage for
  residential
• Ceiling for PILOT
• All funds raised spent on sewer programs.
• Regional systems
• 1.5 of core city
• higher rates, if necessary, for satellites based
  on cost of service
• Variance for systems with non-rate funding
  streams

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Funding/Schedule Proposal

• Advantages
• Simplicity 1.5 using LAST years MHI
• Reasonable (but tough)
• Equitable (esp. with adjustment where rates are
  subsidized by other funding sources)
• Avoids schedule fights
• Disciplines the regulators

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Public Financial Safeguard

• 1.5 MHI approach ensures as expeditious as
  possible.
• But excellent financial safeguard against weak
  economic times
• Rate increases track MHI so flat or falling MHI
  means no rate increase until MHI rebounds

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• Other Performance Measure or
• Schedule Issues?