Economic infeasibility and EPA's 1994 combined sewer overflow policy: A successful solution in Massachusetts still leaves a turbid understanding between state and federal officials

Boston College Environmental Affairs Law Review, Summer 1999 by Mann, Jeff

Combined Sewer Overflows (CSOs) are the repugnant remnants of antiquated technology that plague older cities like Boston and threaten precious water resources like the Charles River by introducing raw sewage during wet- weather events. Solving the CSO problem means tearing up many of the streets and replacing decades-old pipes or boring large underground storage basins to contain these flows. The Massachusetts Water Resources Authority (MWRA), the largest supplier of water and sewer services in Massachusetts, developed a plan to reduce untreated CSO discharge volumes into Boston Harbor and its tributaries by ninetytwo percent, including treatment of ninety-two percent of all continuing CSO discharges. This plan came as an alternative to spending over $1 billion for a tunneled stormwater collection system. The Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection (DEP) concluded that MWRA's plan was sufficient given that requiring these additional measures would have a substantial economic impact on the community. However, these agencies remain at odds over how that impact should be calculated-based on a cost-effectiveness analysis or on an ability to pay.

INTRODUCTION

The Massachusetts Water Resources Authority (MWRA) provides sewer and water services to sixty-one Massachusetts communities, serves 2.5 million people and over 5000 businesses, supplies 255 million gallons of drinking water a day, and treats 370 million gallons of sewage.1

Throughout MWRA's sewage collection system are Combined Sewer Systems (CSSs).2 CSSs are wastewater systems that carry sewer drainage from commercial and residential sources and collect runoff from stormwater and snow-melt events.3 Typically, these systems transport all of their sewage to a centralized treatment plant, such as MWRA's facility at Deer Island.4 These facilities, known as Publicly Owned Treatment Works (POTWs),5 are often designed to handle tremendous amounts of combined flows, even in wet weather.6 However, the CSS piping networks are widespread and have not been upgraded to match the capacities of the POTWs.7 As a result, areas such as eastern Massachusetts that have invested billions of dollars in new POTWs still lack adequate sewer piping capacity to transport both daily sewage flows and additional flows from wet-weather events.8 When such overcharge occurs, the systems utilize overflow discharge points called Combined Sewer Overflows (CSOs).9

CSOs are remnants of obsolete technology that burden older cities like Boston and threaten precious water resources like the Charles River by introducing raw sewage during wet-weather events.10 Completely solving the CSO problem would require tearing up many streets and replacing decades-old pipes or boring large underground storage basins to contain these flows.11 MWRA, the largest supplier of water and sewer services in Massachusetts, developed a plan to reduce the volume of untreated CSO discharges into Boston Harbor and its tributaries by ninety-two percent, including treatment of ninetytwo percent of all continuing CSO discharges.12 This plan was an alternative to spending over one billion dollars for a tunneled collection system.l3 EPA and the Massachusetts DEP concluded that MWRA's plan was sufficient given that requiring these additional measures would have a substantial economic impact on the community.14 However, these agencies remain at odds over how that impact should be calculated-based on a cost-effectiveness analysis or on ability to pay.15

Since the Clean Water Act (CWA)16 has not directly addressed CSOs, EPA issued two policies governing how states should handle CSOs in their efforts to meet the federally-mandated water quality and technology standards17 Both EPA's most recent CSO policy and the Massachusetts DEP CSO policy-the latter issued in accordance with the former-provide a menu of alternatives for regulating CSOs to help states attain national and state water quality goals and address CSO impacts.18 One such option is an economic standard that allows states to change designated uses of a water body to reflect wet-weather impacts of CSOs where total elimination would cause "substantial and widespread social and economic impacts."19

This Comment suggests that the standards for showing a change in designated use should include an analysis of the cost-effectiveness of abating CSOs. Cost-effectiveness allows a permittee to avoid costly improvements that are unlikely to achieve significant water quality benefits. This flexibility frees additional economic resources to address non-CSO pollution sources and more efficiently achieves overall water quality goals.

The health and cost challenges of CSOs are discussed in Section I. A brief explanation of the CWA framework is provided in Section II.

Section III discusses the integration of CSOs into the CWA through review and permitting under EPA policies. Section IV outlines the procedure for changing designated uses of receiving water bodies and the options available to EPA and state administrators for continuing CSO discharges. Section V then traces MWRA's application for CSO National Pollution Discharge Elimination System (NPDES) permits.