Regulating Septic Systems Under NPDES Stormwater Discharge Permits
Or, looking at illicit discharges in a whole new way
Most of you reading this column will have no idea
who I am. I am an attorney—but don’t stop reading! I practice almost
exclusively in the areas of utility law, so I might actually have something to say
that you might be interested in reading. I primarily focus on drinking water, wastewater,
and stormwater issues. In the wastewater arena, I happen to do lots of specialized
work with septic systems and clustered or small community wastewater systems (also
called “decentralized” systems by the EPA). I also have a whole different
set of clients who manage stormwater. I cannot honestly say that I have ever mixed
the two client sets. The stormwater guys/gals are located in public works. The septic
system guys/gals are located in utility or health departments. Unless their residence
is connected to a septic system, the stormwater folks couldn’t tell you why
a site failed a perc test or how a septic system is designed. And unless their driveway
was flooded by a blocked culvert, the septic system folks don’t know what
a hundred-year storm event is. OK, that is somewhat of an exaggeration, but the
point is a valid one. Stormwater folks just don’t deal with septic systems
on a regular basis and vice versa. But all that may change, because one of the hot
topics emerging in stormwater is septic systems.
For those of you who may not track hybrid stormwater/septic
system issues, there are some interesting developments afoot in EPA Region 2 that
have the potential to make septic systems number 2 with a bullet on the stormwater
Top 40 list. (Number 1 on the Top 40 being the iterative development of water-quality
standards for stormwater vis-à-vis total maximum daily loads [TMDLs].)
New York’s new MS4 general permit now mandates
that that some jurisdictions (around 20 municipalities and three counties) develop
management plans for septic systems as part of the IDDE (illicit discharge detection
and elimination) plan under the minimum control measures. I understand that the
implications of this might be hard to grasp unless, like me, you work with both
and stormwater on a daily basis. And
you stormwater experts will know that it isn’t as if septic systems have never
been part of an IDDE plan. Traditionally, if an outfall inspection indicated that
there was septic system runoff entering the stormwater, then the local government
was required to address that as an illicit discharge—“illicit discharge”
here being defined as any discharge to a storm drain system that is not composed
entirely of stormwater except discharges pursuant to an NPDES permit and discharges
resulting from firefighting activities (40 C.F.R. Sec. 122.26(b)(2)).
This IDDE septic system management requirement is a different sort of animal, and,
so far, it is the first time I have come across it. It is directed at the watershed
identified as “New York City east of the Hudson Watershed.” The link
to the permit and supporting documentation, for those of you who are having trouble
sleeping at night, is http://www.dec.ny.gov/chemical/8468.html.
For the rest of you, I have excerpted the septic system management language. Originally,
the language in the draft permit required that as part of a stormwater management
plan (SWMP) for IDDEs, all permittees within this watershed were required to:
implement and enforce a program that requires property owners to inspect, repair
and/or replace failing septic systems that are tributary to the small MS4 by December
31, 2009. This should include the adoption of a local law or ordinance that is equivalent
to the “Model Local Law to Prohibit Illicit Discharges, Activities and Connections
to Separate Storm Sewer System” prepared by the Department and dated April
2006, as required by part VII.A.3(f) or VIII.A.3(f) above. However, the law must
include the optional Sections 2.5, 2.9, 7, 8.2, and 9.2.
This language was problematic at best, and numerous consultants had the good sense
to advise their local government clients that this was a huge unfunded mandate,
dealing with a potentially explosive political issue. At a minimum, no one had any
idea what “septic systems that are tributary to the small MS4” meant.
And the required language in the model local law was fraught with implementation
problems. The relevant sections of the model local law are set out below and were
to be adopted by “those municipalities that are regulating failing individual
sewage treatment systems to address Special Conditions or water resource objectives.”
First, some mandatory definitions:
2.5 Design professional. New York
State licensed professional engineer or licensed architect.
2.9 Individual Sewage Treatment System.
A facility serving one or more parcels of land or residential households, or a private,
commercial or institutional facility, that treats sewage or other liquid wastes
for discharge into the groundwaters of New York State, except where a permit for
such a facility is required under the applicable provisions of Article 17 of the
Environmental Conservation Law.
The model language continued:
Section 7. PROHIBITION
AGAINST FAILING INDIVIDUAL SEWAGE TREATMENT SYSTEMS
No persons shall operate a failing
individual sewage treatment system in areas tributary to the municipality’s
MS4. A failing individual sewage treatment system is one which has one or more of
the following conditions:
7.1 The backup of sewage into a structure.
of treated or untreated sewage onto the ground surface.
A connection or connections to
a separate stormwater sewer system.
7.4 Liquid level in the septic tank
above the outlet invert.
7.5 Structural failure of any component
of the individual sewage treatment system that could lead to any of the other failure
conditions as noted in this section.
7.6 Contamination of off-site groundwater.
Section 8. PROHIBITION AGAINST
ACTIVITIES CONTAMINATING STORMWATER
8.2 Such activities include failing
individual sewage treatment systems as defined in Section 7.
9.2 Individual Sewage Treatment Systems—Response to Special Conditions Requiring
No Increase of Pollutants or Requiring a Reduction of Pollutants
Where individual sewage treatment
systems are contributing to the municipality’s being subject to the Special
Conditions as defined in Section 2 of this local law, the owner or operator of such
individual sewage treatment systems shall be required to:
9.2.1 Maintain and operate individual
sewage treatment systems as follows:
1. Inspect the septic tank annually
to determine scum and sludge accumulation. Septic tanks must be pumped out whenever
the bottom of the scum layer is within three inches of the bottom of the outlet
baffle or sanitary tee or the top of the sludge is within ten inches of the bottom
of the outlet baffle or sanitary tee.
2. Avoid the use of septic tank additives.
3. Avoid the disposal of excessive
quantities of detergents, kitchen wastes, laundry wastes, and household chemicals;
4. Avoid the
disposal of cigarette butts, disposable diapers, sanitary napkins, trash and other
should be pumped out every two to three years. However, pumping may be more or less
frequent depending on use. Inspection of the tank for cracks, leaks and blockages
should be done by the septage hauler at the time of pumping of the tank contents.)
9.2.2 Repair or replace individual
sewage treatment systems as follows:
1. In accordance with 10NYCRR Appendix
75A to the maximum extent practicable.
2. A design professional licensed
to practice in New York State shall prepare design plans for any type of absorption
field that involves:
Relocating or extending an absorption area to a location not previously
approved for such.
2. Installation of a new subsurface
treatment system at the same location.
3. Use of alternate
system or innovative system design or technology.
3. A written certificate of compliance
shall be submitted by the design professional to the municipality at the completion
of construction of the repair or replacement system.
As someone who has written and implemented comprehensive septic system management
plans, I find this woefully inadequate from a technical perspective. A most cursory
reading of the language presents problems. Just imagine requiring either a P.E.
or an architect to design a new drainfield for a failing septic system and then
getting him or her to agree to file a written certificate of compliance afterward.
That just isn’t going to happen. Even if an architect had any idea how to
do that, or a homeowner could afford to hire a P.E. to design an advanced treatment
system, would either of them be willing to accept the liability for the installer
who does the actual work? Doubtful. Doesn’t happen in any state that I am
In addition, the only way even to find the outlet baffle or the sanitary tee on
an old septic tank (if the home- owner
has any idea where the tank is even located) is to excavate the tank. The same goes
for detecting leaks and cracks. A typical homeowner is simply not going to do this,
and the typical public works department managing stormwater is not going to be able
to police all of these systems. Let’s face it—they aren’t even
going to know where the septic systems are all located. In addition, the maintenance
and operations requirements do not even address the drainfield issues—just
the tank pumpouts.
So the draft permit and the model ordinance were both too narrow and too broad,
and they engendered a host of public comments. In response, the New York Department
of Environmental Conservation changed the language in the permit and may or may
not have dropped the model ordinance. (That is still unclear and in my conversations
with the NYDEC, no one in the program office could tell me for sure if local governments
were still required to use the special language in the model ordinance. Let’s
just say that it remains a gray area for now.)
And the new, kinder, gentler permit language is equally puzzling, even to a lawyer.
Here is the language from the final permit (p. 58):
b. Develop, implement and enforce
to ensure that onsite wastewater treatment (septic) systems are inspected and, where
necessary, maintained or rehabilitated at a minimum frequency of once every three
years. Program development shall include the establishment of the necessary legal
authority to implement the program.
Now, there is no reference to
the model ordinance, and local governments are required “to establish necessary
legal authority to implement the program.” I have no idea what that really
means, but I do not envy the stormwater program officials who are expected to go
to their local governments and get them to enact ordinances that will give them
the authority to comprehensively manage septic systems and require that home- owners
pay for mandatory pumpouts and repairs.
This final permit still presents huge policy and
budget obstacles. Don’t get me wrong—I am all in favor of managing septic
systems. This language just misses the boat on so many levels. Plus, I am not even
close to being convinced that stormwater managers should be required to jump into
the septic system management business. Comprehensive management of septic systems
is a political hot potato that many of my clients have struggled with over the years
at the local level. As noted by a local consultant in the public comments that were
offered, there are issues involved with regulation of onsite septic systems, beyond
merely pumping tanks that were not addressed in the permit or the model IDDE law.
Because these issues were not addressed, the true cost of implementing a program
was not represented. It is kind of an unknown as well as an unfunded mandate. Or,
as my friend in the Navy says of intelligence operations, “We don’t
know what we don’t know.”
The permit is still essentially requiring that
MS4s become management entities for onsite septic systems. The language in the permit
fails to recognize the administrative capacity required at the MS4, county, and
state levels necessary to ensure compliance with a program. The permit fails to
recognize the integral part that the New York City Department of Environmental Protection,
state, and county health department must play in a comprehensive septic system management
program. The permit fails to recognize the capacity and capability required from
the private sector to perform the management tasks, both from a physical standpoint
and the level of training needed. How will septage haulers be trained in order to
comply with the requirements of a new program? How are they trained now? Are there
enough P.E.s who know how to design these systems? What design standards must be
followed? The permit also fails to recognize the level of effort that will be required
to obtain the voluntary cooperation of landowners or the legal authority required
to enforce a program.
The MS4 general final permit is effective May 1,
2008, and it seems that some of the public comments made by consultants and local
governments did in fact register. The permit is a two-year permit rather than the
typical five-year permit, which is unusual. The permit also includes a “consultation”
process with those groups that provided initial public comments. That in itself
is a very interesting development, because I’ve never seen a similar process
contained in an MS4 general permit.
The “consultation” process is outlined
below (DOI means date of issuance of the permit).
- 1 month from DOI: The department
will frame selected issues for discussions, and provide a description of those issues
to interested parties who timely submitted comments on the draft general permits.
- 3 months from DOI: The department
will begin holding monthly meetings with interested parties who timely submitted
comments on the draft general permits to discuss the selected issues.
- 12 months from DOI: The department
will share proposed modifications to the general permits with interested parties
who timely submitted comments on the draft general permits for informal review.
- 15 months from DOI: Last monthly
meeting is held.
- 18 months from DOI: The department
will issue proposed modifications to the general permits for public comment.
- 24 months from DOI: Proposed modified
general permits will be issued and become effective.
Ultimately, it appears that this final permit is
still really a de facto draft permit and will likely be undergoing continued modification
during the next two years. It certainly bears watching during this period. If this
trend catches on in other parts of the country, stormwater managers could be forced
to deal with the huge burden of comprehensive management of septic systems—a
challenge that their counterparts in wastewater have struggled with for years.
This is not the only part of the country where septic systems are becoming part
of stormwater. Join me in my next column when I discuss the mystery surrounding
Region 5 and the Illinois EPA’s development (or not) of a general permit covering
discharging onsite systems. It is equally puzzling.
Author's Bio: Elizabeth M. Dietzmann is an attorney practicing in Virginia.