November 3, 2021
Attn: Sewage Notification
Massachusetts Department of Environmental Protection
One Winter Street, 5th Floor
Boston, MA 02108
Sent via email to: firstname.lastname@example.org
Subject: Comments on 314 CMR 16.00 Notification Requirements to Promote Public Awareness of Sewage Pollution
Thank you for the opportunity to comment on the draft regulations to the new sewage notification law. The Connecticut River Conservancy (CRC) is a nonprofit group that was established in 1952 as the Connecticut River Watershed Council, Inc. to advocate for the protection, restoration, and sustainable use of the Connecticut River and its four-state watershed. CRC worked hard to get the Sewage Notification Bill to become law, and we are excited to see it implemented.
Unlike other areas of the Commonwealth, there is currently no formal notification process in place along the Connecticut River when combined sewer overflows (CSOs) or other sewage discharges occur in the Connecticut River or its tributaries. Yet, the river is used for all kinds of water recreation and is home to numerous boating and rowing clubs, dragon boat clubs, college and private school rowing teams, and three commercial marinas. People fish and picnic along the river, sometimes right next to CSO outfall pipes. The River is popular for swimming and diving. Multi-day paddling trips are supported by the CT River Paddlers Trail. The entire Massachusetts portion of the Connecticut River is a state park, the Connecticut River Greenway State Park. The Connecticut River is a National Blueway and one of 13 American Heritage Rivers; the entire watershed makes up the Silvio Conte National Wildlife Refuge.
We know that wastewater treatment operators work seven days a week, 24 hours a day to properly treat as much wastewater coming into their system as they can, even during unpredictable events. When full treatment is not possible, or systems fail, all of these recreational users need to know. We see the implementation of this law as extremely important, and in line with what Vermont and Connecticut, two other states in our watershed, are already doing.
16.02 Definitions: Blended Wastewater
In January 2021, the Legislature passed, and the Governor signed into law Chapter 322 of the Acts of 2020, an Act Promoting Awareness of Sewage Pollution in Public Waters (the “Act”). The Act defined “discharge” as a release of sewage, industrial waste, or other effluent, that is “untreated or partially treated.” The Act established two types of releases that would require notification: untreated or partially treated wastes.
Unfortunately, MassDEP has taken a simple piece of legislature and turned it into something complicated and confusing. DEP has introduced a third type of release, not mentioned in the law, called blended wastewater. Exempting this new category of partially treated sewage discharges from meaningful notification significantly weakens the public health protection in the new law and does not respect the law’s plain language or its framers’ legislative intent.
The “blended” definition and exemption should be eliminated from the regulations everywhere it appears (including within the definition of “Partially Treated” where it states, “except that any discharge of blended wastewater shall not be considered to be partially treated.”). MassDEP should require notification for both untreated and partially treated sewage spills, as the law stipulates. So-called “blended” sewage is partially treated sewage. Permittees can specify in their notifications if it’s a discharge of untreated or partially treated sewage.
16.03 Events Requiring Notification
Section 16.03(1)c should be revised to say, “Any Sanitary Sewer Overflow that discharges, either directly or indirectly, to a surface water of the Commonwealth.” Any release of untreated or partially treated wastewater is a health concern.
16.05 CSO Permittee Website and Signage Requirements
Section 16.05(2) describes signage requirements. MassDEP should review the NPDES permit requirements already in place for CSO signage, coordinate with EPA, and make sure that the directions for permittees are not conflicting. For example, NPDES permits state that signs “must” be “easily readable” from the “land and water,” whereas 16.05(s) says that signs “shall” be “viewable” from the “land and/or receiving water.” This is confusing and needlessly inconsistent.
Signs at public access locations should also inform the public how to find out about sewage releases.
16.06 CSO Public Notification Plans
Section 16.06 requires CSO Public Notification Plans to be submitted to MassDEP by 2/1/2022. The draft regulations specify that sanitary sewer overflows (SSOs) are subject to public notification requirements, but permittees are not required to create SSO notification plans. All permittees covered in this regulation should have a notification plan in place for any releases covered under the law. The regulations should be amended to include a requirement for SSO Public Notification Plans that can be tailored to the needs of communities. It would be helpful if MassDEP could make a template or other assistance available to municipalities for this purpose.
There is a provision in this section for a 30-day comment period, then DEP approves/requires changes on an unknown time frame. MassDEP should commit to full implementation of the Sewage Notification Law by July 6, 2022, which is 540 days after the law was signed on January 12, 2021.
Public notification of CSO discharges is one of EPA’s “Nine Minimum Controls Minimum Implementation Levels” in the National Pollutant Discharge Elimination System (NPDES) permits. The NPDES permits for CSO communities on the Connecticut River, and we’re presuming elsewhere, already require permittees to update their Public Notification Plans. Therefore, we assume they already exist and DEP and EPA have access to them. It seems confusing for the permittee to have 2 separate requirements for the same thing.
DEP should coordinate with EPA, review what already exists based on the current NPDES requirements, and come up with a new proposal that doesn’t involve confusion and duplication.
16.09 Public Health warnings
Section 16.09 states that local Boards of Health must issue public health warnings, including reverse 911 calls and post temporary signs.
The permittee should be considered the party responsible for posting public health warnings. They may choose to delegate this responsibility to the Board of Health, should that be appropriate.
With respect to reverse 911 calls, these types of calls should be reserved for significant, catastrophic sewage spills, or unexpected large spills at the height of the recreation season; we suggest that each permittee be required to define the magnitude of this kind of event in their notification plan with guidance from MassDEP, taking into account the size of the receiving water.
As for temporary signage, we view these as difficult to manage well. Alternatively, we suggest that municipalities erect permanent signs at public access locations, providing basic information about the possibility of sewage discharges and information about opting in for notifications, with a section that can be changed to display current information about recent discharges.
16.10. Enforcement, Violations, and Right of Entry
Section 16.10(1)b indicates that it’s possible that a municipal board of health or health department may be found to be in violation of these regulations. CRC strongly feels that it should be the permittee that is responsible for making sure the public is notified. The permittee may work in coordination with the board of health to issue notifications, but ultimately the responsibility for notification should rest with the entity responsible for the discharge.
Missing from the regulations: role of MassDEP
The law in section (i) stipulates that: The department shall provide information about discharge notifications sent by permittees to the department under subsection (c) on its website. The website shall: (i) display information about current outfall discharges in the commonwealth, which shall be posted within 24 hours of the department receiving such data, and (ii) provide access to public advisories and timely updates regarding discharges.
The law in section (j) stipulates that: Not later than May 15 of each year, the department shall issue a report providing a summary of all outfall discharge activity reported for the previous calendar year, including information about total discharge volumes, frequencies and pretreatment of effluent from any outfall discharging during that year into water bodies or waterways of defined regional areas. Annual reports shall be posted on the department’s website.
This is a critically important part of the law, directing MassDEP to create a centralized repository of timely information about spills of untreated and partially treated sewage throughout the Commonwealth. A centralized website is the most efficient way to make this information easily discoverable by the largest number of people. These requirements do not appear in the draft regulations.
MassDEP should include the legal requirements for itself in the draft regulations. The website should include all discharge categories under the Act (untreated and partially treated discharges), and the information should be stored on the website in perpetuity. The website should include all metadata (volume, effluent type etc.) required to be reported, with a requirement that people can sign up for notifications from MassDEP’s website so they don’t have to track down notifications from their local operator or if they have a regional interest. The state website should be the primary notification source, providing a one-stop shop for anyone who wants notification under the law.
The website should have a programmatically-accessible data back end for individuals or organizations who want to track trends, understand environmental justice impacts or use the data for any other kind of research or analysis; this website and its data should be integrated with the EEA data portal. The information should be provided in plain language, so that it’s user-friendly, and not overly technical.
I can be reached at email@example.com or (413) 772-2020 x. 205. Thank you for your consideration.
Andrea F. Donlon
Massachusetts River Steward
cc: Julia Blatt and Katharine Lange, Massachusetts Rivers Alliance