NPDES Permit Reissuance-City of Atlanta Combined Sewer System

February 13, 2015

Ms. Gigi Steele
Wastewater Regulatory Program
Georgia Environmental Protection Division
2 MLK, Jr. Drive, Suite 1152E
Atlanta, GA, 30334
Via e-mail: EPDcomments@dnr.ga.us and gigi.steele@dnr.state.ga.us

Re: NPDES Permit Reissuance-City of Atlanta Combined Sewer System

East Area CSS Permit No. GA0037168
West Area CSS Permit No. GA0038644
Dear Ms. Steele,
The background information and Comments, below, are submitted on behalf of NOCRAP (Newly Organized
Citizens Requesting Aquifer Protection) and the Little Mountain Water Association, Inc.
Background I, UIC Permits: Atlanta's wastewater and stormwater systems rely on underground injection
wells (dropshafts) which fill wastewater deep-tunnel systems. Several of the deep-tunnel systems are used
in part or entirely to achieve compliance with Atlanta's East and West CSS permits.
Each injection well is used to send wastewater into the subsurface and the injection wells are required to
have Underground Injection Control (UIC) permits. Atlanta never applied for nor obtained UIC permits
before constructing the injection wells.
Our November 24, 2008 legal opinion, based on a 1997 decision from the U.S. Court of Appeals for the
Eleventh Circuit, supports our Comment. (Exhibit-1) The Eleventh Circuit affirmed Congress intent that the
subsurface emplacement of all fluids by well injection requires a permit. Our legal opinion specifically
addresses permit requirements for the injection wells which fill Atlanta's West Area Storage Tunnel (WAST).
And generally, the legal opinion applies to all of the injection wells which fill Atlanta's wastewater deeptunnel systems. EPA/EPD has refused to require Atlanta to comply with established law and obtain
SDWA/UIC permits. Instead, EPA/EPD obstinately refutes our legal opinion with erroneous determinations.
When the legal opinion was prepared, the injection wells for the WAST were being constructed in a manner
which meets the regulatory definition of a bored, drilled, driven shaft, or a dug hole. In order to resolve any
uncertainty regarding the as-built dimensions of the WAST's injection wells (and the injection wells which fill
Atlanta's other wastewater deep-tunnel systems) and their compliance with the dimensional regulatory
definitions for injection wells, a Georgia Open Records Act request was submitted to the City of Atlanta.
On January 30, 2014, in response to our request, Mr. Marc Goncher, Chief Counsel, Department of Law, for
the City of Atlanta wrote to Mr. Hal Wright, legal counsel for NOCRAP,
"According to the City of Atlanta, Department of Watershed Management, Office of Engineering
Services, the drop shaft structures for Atlanta's five deep sewer tunnels (Three Rivers, Intrenchment,
West [Area Storage Tunnel], Nancy Creek and South River) are all deeper (longer) than they are
wide as measured at the ground surface."
When the injection wells are properly permitted, the tunnel systems play a central role in protecting
underground sources of drinking water, human health, and surface-water aquatic life. Billions of gallons of
contaminated wastewater are prevented from entering groundwater and Atlanta's receiving surface creeks
and rivers. Atlanta has methodically failed to apply for and obtain the SDWA/UIC permits which are required
before constructing any injection well. Achieving compliance with Atlanta's CWA/NPDES program is not an
excuse for Atlanta's persistent violation of the SDWA/UIC program. Surface and groundwater protection
requires effective integration between the overlapping programs. Atlanta's violations of the SDWA/UIC
permitting requirements must not be allowed to continue.
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NPDES Permit Reissuance-City of Atlanta Combined Sewer System

The failure to require SDWA/UIC permits for underground injection wells removes from public and
regulatory scrutiny the use of any projects which rely on UIC wells. These projects could then be used to
implement an inter-basin transfer of waters from the Chattahoochee River Basin to the Flint River Basin as
a supporting document for the draft-permits indicate.

Comment I: Continue to require compliance with and enforce Atlanta's 2005 CSS permits. Atlanta is not
relieved from compliance with "bypass prohibitions" despite the fact that the required conditions are not in
the 2005 permits (See Comment II, below.) Atlanta should be required to comply with the SDWA/UIC
regulations and obtain SDWA/UIC permits before re-issuing Atlanta's CSS permits.
Background II, Bypassing: As presented in each draft-permit, the "Bypassing" determinations in Part II,
A-8, fail to comply with Georgia and Federal regulations which are found in 40 C.F.R. 122.41. This federal
regulation identifies conditions which apply to all NPDES permits, "All conditions applicable to NPDES
permits shall be incorporated into the permits either expressly or by reference." (Emphasis added.) Part II,
A-8 fails to comply with this requirement. In particular, the draft-permits obfuscate the definitions of "bypass"
and "overflow" and the draft-permits omit 40 C.F.R. 122.41 (m) (2) "Bypass not exceeding limitations".
Neither EPD nor EPA have the authority to omit the requirements of 122.41 as occurred in the 2005
permits and they do not have the authority to re-define "bypass" at their discretion, as occurs in the 2015
permits. So too, the City of Atlanta does not have the discretionary authority to re-define "bypass" as it does
in the approved Sampling and Monitoring Plans (See Comment III, below).

Comment II: Delete the proposed "Bypassing" section. Replace it with, "The permittee shall comply with
40 C.F.R. 122.41(m). The permittee shall strictly comply with 40 C.F.R. 122.41(m) (2) Bypass not
exceeding limitations". Use the regulatory definition of "bypass" to replace the erroneous one in the permits.
Background III, Sampling: A: The July 17, 2012 letter which approves the Sampling and Monitoring
Plans (S&MPs) states, "The City's submitted Sampling Plans uses the terms 'overflow' and 'bypass'
interchangeably throughout the documents. EPD recommends that the City define these terms in the
Sampling Plans for clarity." The letter continues, "Within 30 days of the reissuance of the East and West
Area CSO Permits, the City is required to submit an updated Sampling Plan for each CSO Permit for review
and approval by EPD."
Important history is provided by transcript excerpts from U.S. District Judge Thomas W. Thrash's decision
re: "November 17, 1997, UPPER CHATTAHOOCHEE RIVERKEEPER FUND, INC., et al v. THE CITY OF
ATLANTA, No. CIV.A. 1:95-CV-2550-TWT".
(Page 1413, 47), "The Permits provide that Atlanta was supposed to submit to the EPD for approval
a plan that showed how it would collect the samples. Atlanta has not submitted and has not obtained
approval of a sampling plan".
(Page 1414, 48), "EPD has not taken any enforcement action in response to Atlanta's failure to
submit a sampling plan".
(Page 1423), "The requirements of the Permits are not mere admonitions that Atlanta can choose to
ignore whenever it is convenient to do so. The monitoring reports are public records and the public
should be entitled to rely upon them in determining whether Atlanta is complying with the Clean
Water Act. Atlanta's admission of intentional and flagrant falsification of the monitoring reports means
that it has violated the conditions of the Permits and the Clean Water Act and the Plaintiffs are
entitled to summary judgment as to this claim".
That there are now approved S&MPs which lacks clarity about critical terminology nullifies (a) the public's
opportunity to make informed comments; (b) the EPD's primacy obligation to ensure compliance and
enforcement; and (c) the EPA's oversight and final enforcement responsibility. Each of Atlanta's CSCF's
(outfalls) and WQCF's (CSO treatment plants) rely on "bypasses" and/or "weirs". Atlanta fails to report
overflows which pass through CSCF's and violate Water Quality Standards. Instead, Atlanta redefines
"bypasses" and reports them as "overflows". These bypasses are intentional; exceed effluent limitations;
and are not for maintenance, i.e. they are prohibited bypasses, NOT OVERFLOWS.
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NPDES Permit Reissuance-City of Atlanta Combined Sewer System

B: Further complicating Atlanta's interchangeable use of the terms "overflow, bypass", and "spill" in the
S&MP's is Atlanta's having constructed a new outfall in each of the East and the West Areas. These new
outfalls discharge from locations which are not permitted in their respective draft-CSS NPDES permits. In
regard to the East and West Areas collectively:
a) Atlanta has no known approval to discharge any flows from the West WQCF to Peachtree Creek
and the authorization in the West Area draft-permit Cover page is known to be an error;
b) The bypass due to volume constraints at the West WQCF indicates insufficient treatment
capacity and is not permissible;
c) The West WQCF bypass, due to an operational constraint (not maintenance), is not permissible;
d) Except the WAST emergency bypass, intentional diversions of a waste stream from any portion
of any of Atlanta's combined sewer facilities impermissibly cause effluent limitation exceedances;
e) Atlanta lacks the authority to re-define the regulatory definition of a "bypass" as a "spill";
f) Atlanta has no known permit to discharge from the Intrenchment Creek WRC (see #GA0039012);
g) Frequently, flows which are being bypassed are partially treated, i.e., not raw sewage spills;
h) The WQCF's for each permit are co-located with their respective WRC's however they do not
operate independently of the WRC's. The WRC's are not permitted discharge points for large
quantities of combined wastewater. Exceedances of discharge limitations must be considered; and
i) The West WQCF bypass to the Peachtree Creek spillway has already been constructed and is
not needed for emergencies. If an emergency arises, pumping from the WAST can be stopped.
(Image from Google Earth)

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NPDES Permit Reissuance-City of Atlanta Combined Sewer System

C: Each S&MP contains "Section 5-Automatic Sampling" which includes a caveat "NOTE" generally stating
that, automatic sampling will not be used until after the first 24 hours of a discharge. The excerpts below are
from the East S&MP:

The paragraph which immediately follows the "NOTE" states, "The preferred sample collection protocol is to
use automatic sampling equipment" to collect samples.

Then, each S&MP contains "Section 6-Manual Sampling" in which the first paragraph again emphasizes
that, "The use of automatic sampling equipment is the preferred method" for collecting samples. And backup processes and protocols [manual sampling] are intended in the event of an operational or automatic
sampler failure.

Atlanta should be required to use automatic sampling equipment during the first 24 hours. Because of the
confusion created by Atlanta's interchangeable use of the terms "overflow" and "bypass", any samples
which were provided by Atlanta that were used to establish baselines for effluent limits and compliance with
WQS in the two draft-2015 permits is severely lacking in credibility. From which location were the samples
taken? When, during the sampling event, were the samples taken? What was actually sampled?

Comment III: Continue to require compliance with and enforce Atlanta's 2005 CSS permits. Atlanta is not
relieved from compliance with "bypass prohibitions" despite the fact that the required conditions are not in
the 2005 permits. Updates to the S&MPs and other supporting documents should be required before reissuing Atlanta's East and West Area CSS permits.
Background IV, MS-4 Permits: A: The green infrastructure examples which are cited in the introductory
paragraph of Part I, A-8 (each permit) will contribute to protecting human health and water quality. However,
the examples require permitting, compliance, and enforcement (PCE) through Atlanta's Municipal Separate
Storm Sewer System (MS4) NPDES Permit. As occurs in Atlanta's CSO-Consent Decree, the MS4 permit
should be identified by number "No. GAS00100".
B: Atlanta's MS4 permit is intended for its separated sewer areas but not the combined sewer areas. Part 3
of the MS4 permit requires Atlanta to update, implement and enforce a SWMP (Stormwater Management
Plan) designed to reduce the discharge of pollutants to the maximum extent possible, in order to satisfy
water quality requirements of Georgia. In Part 3.3, the permit identifies items 3.3.1 through 3.3.10, all of
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NPDES Permit Reissuance-City of Atlanta Combined Sewer System

which were originally intended only for the separated sewer areas. These 10 items should also be required
for Atlanta's combined sewer areas. If necessary, reopen the MS4 Permit.
C: Atlanta might select green infrastructure projects which, require PCE under Georgia's Underground
Injection Control (UIC) Permitting Program. On January 13, 2008, EPA-HQ issued a memorandum to the
ten regional Water Division Directors, "Clarification on which stormwater infiltration practices/technologies
have the potential to be regulated as 'Class V' wells by the Underground Injection Control Program".
(Exhibit-2, See 1st and 2nd paras.; p.3 "Definitions and requirements for Class-V wells"; and p.5 "examples J,
K, and L"). Surface and ground water protection requires effective integration between the overlapping
CWA/NPDES and SDWA/UIC programs in order to reduce runoff and reduce sewer overflow events.

Comment IV: Amend the introductory paragraphs in Atlanta's 2015 CSS permits to include language which
specifies:
a) PCE for green infrastructure projects shall comply with Atlanta's MS4 NPDES Permit No. GAS00100.
b) MS4 permitting in Atlanta's combined sewer areas shall be as stringent as in the separated areas.
c) Some types of green infrastructure projects shall comply with PCE requirements under Georgia's UIC
Permitting Program.
d) All green infrastructure projects shall be submitted for review to the MS4 permitting program. After
review, a determination will be made as to whether PCE under the UIC program is required.
In closing, Atlanta has elected to use the Demonstration Approach to achieve compliance with the CWA,
Georgia Water Quality Standards, and the CSO Consent Decree. As such the CSS permits are substantially
Technology based. At the same time there are critical water quality standards which must be achieved. We
anticipate that other commenters will address concerns about Anti-Backsliding, Anti-degradation, Total
Suspended Solids (TSS), Biological Oxygen Demand (BOD), (Enhanced) Primary Treatment, numerous
other CWA requirements, and numerous Definitions in the permits which are inconsistent with each other.
Based on a December 30, 2011 document which NOCRAP obtained, we are troubled as to whether
Atlanta's CSS facilities were ever designed to meet BOD, TSS, and other pollutant limits.
Members of the public are entitled to assume that public officials will act in accordance with law. Buccaneer
Point Estates, Inc. v. United States, 729 F.2d 1297, 1299 (11th Cir. 1984). Accord, Save Our Wetlands, Inc.
v. United States Army Corps of Engineers, 549 F.2d 1021, 1027-28 (5th Cir. 1977)). We look forward to the
responses to our comments.
Thank you for this opportunity. Please contact Mr. Schreiber by e-mail if you have any questions.
Sincerely,
Robert Schreiber, NOCRAP, Newly Organized Citizens Requesting Aquifer Protection
Cary Bond, NOCRAP, Newly Organized Citizens Requesting Aquifer Protection
Robert Reardon, P.E. (retired), President, Little Mountain Water Association, Inc.
Our Comments, and responses to the comments, will be filed with the EPA's Office of Inspector General.
Cc: Ms. Cynthia Giles, EPA-HQ
Mr. Mark Pollins, EPA-HQ
Ms. Heather McTeer Toney, EPA-R4
Mr. Jim Giattina, EPA-R4
Mr. Doug Mundrick, EPA-R4
Ms. Molly Davis, EPA-R4
Mr. Craig Hesterlee, EPA-R4
Mr. William Bush, EPA-R4
Mr. Clay Brown, EPA OIG-HQ

Atlanta Mayor Kasim Reed

Ms. Jo Ann Macrina, DWM
Ms. Cathy Hampton, Atlanta Law
Mr. Marc Goncher, Atlanta Law
Mr. Jud Turner, EPD
Ms. Cristal Sailors, EPD
Ms. Sheila Sewell, for Judge Thomas W. Thrash
Ms. Britni Rillera, for U.S. Representative John Lewis
Ms. Kathlene Butler, EPA OIG-R4

1-Comments-Feb 13, 2015-NPDES Permit Reissu-CoA-CSS.doc