EPA to Clarify Proposal on State Authority For Receiving Electronic NPDES Reports
By Amena H. Saiyid
Nov. 28 — States would be able to receive electronic discharge monitoring reports (DMRs) and other Clean Water Act permitting information even if the participation rate of regulated facilities using the electronic format is less than 90 percent, the Environmental Protection Agency said. The EPA plans to publish a supplemental notice Dec. 1 to an earlier proposal that seeks to clarify who can receive the initial reports and responds to concerns that only states with very high participation in the electronic reporting format from National Pollutant Discharge Elimination System permit holders would be designated as initial recipient of e-NPDES reports. “EPA’s goal is to help all states be the initial recipient for any data group (e.g., DMRs) for which they would like to first receive the data,” the supplemental notice said.
The agency also seeks to respond to state concerns regarding the quick implementation time for setting up their electronic reporting regimes. That is because the EPA proposed that states be ready to receive electronic submissions within 120 days of the promulgation of the electronic-NPDES reporting rule. “States are all over the map in collecting data. Some have systems in place; some are in the process, while others haven’t even started yet,” Julia Anastasio, executive director and general counsel of the Association of Clean Water Administrators, told Bloomberg BNA Nov. 14 regarding the status of the e-NPDES reporting rule. ACWA represents state water pollution agencies.
Anastasio said states are facing budget constraints and lack staff to move forward on the proposed two-year schedule.
Under the original proposed e-NPDES reporting rule, the EPA would become the initial recipient of electronic reports if states are unable to show they are ready to accept them. That hinged upon the 90 percent participation factor and compliance with the EPA Cross Media Electronic Reporting Rule standards. The EPA proposed the rule July 30, 2013 (78 Fed. Reg. 46,005; (141 DEN A-7, 7/23/13). The EPA said it was using state readiness criteria spelled out in the 2013 proposed e-NPDES reporting rule to decide whether to require electronic reporting from regulated facilities through an Information Collection Request. The EPA’s determination of what constituted an initial recipient wouldn’t be affected by state readiness, the agency said in the supplemental notice. In fact, the EPA has sought comment on whether it should remove the provision tying the initial recipient status with state readiness because it’s causing confusion.
States raised concerns about readiness and initial recipient status in comments submitted on the proposed rule (249 DEN A-3, 12/30/13).
The 2013 proposed rule would require states and NPDES permit holders and applicants to use existing, available information technology to electronically report facility, discharge, monitoring, compliance and enforcement data. The goal of the proposal is to provide more complete, accurate and timely data to the public.
Giving States Flexibility
In other remarks responding to state concerns about rushing into implementation, the EPA said it would give states the flexibility to obtain the initial recipient status 120 days after the final rule takes effect. “EPA intends to make it clear in the final rule that a state NPDES program can initially elect for EPA to be the Initial Recipient and then at a later date seek EPA approval to change the initial recipient status from EPA to the authorized state, tribe, or territory,” the agency said in the notice. The EPA proposed a two-year implementation schedule that would require permit and facility data, inspections, violation determination and enforcement action data from states to be filed electronically in the first year. Also in the first year, permit holders would begin submitting discharge monitoring reports electronically. In the second year, permit holders would be required to submit electronic program reports, such as annual reports for pretreatment programs, concentrated animal feeding operations, municipal separate storm sewer systems and sewer overflow, combined sewer overflows and bypass event reports.
Utilizing Clean Water Act Authority
On the provision dealing with state readiness, the EPA said it would use its Clean Water Act authority to collect discharge monitoring reports electronically if the states aren’t getting 90 percent participation or their reporting systems aren’t up to the standards established under the Cross Media Electronic Reporting Regulation. EPA’s CROMERR sets performance-based, technology-neutral standards for systems that states, tribes and local governments use to receive electronic reports from facilities they regulate under EPA-authorized programs and requires program modifications or revisions to incorporate electronic reporting. CROMERR also addresses electronic reporting directly to the EPA.
Regarding reporting requirements for CAFOs, the EPA said it’s seeking comment on whether it ought to mask all facility identifying information for a subset of CAFOs that are unpermitted but do not violate the Clean Water Act. Instead, EPA said it would only post the information submitted by states on the total number of inspections of these facilities by state. The masking provision wouldn’t apply to unpermitted CAFOs that were found to violate the Clean Water Act, however, under EPA’s proposed language. The EPA said it would make the reporting provision for CAFOs final a year after the rule takes effect to give it time to coordinate with states to identify the exact set of CAFOs and animal feeding operations that would quality for this redaction.
The EPA said it will receive comments for an additional 60 days or at least until Jan. 30 on the supplemental notice.
“This notice is an opportunity for EPA to identify key issues raised by comments, clarify any misunderstandings about the proposed rule, and discuss possibilities for how EPA might modify the rule to address issues raised by stakeholders,” the agency said in the supplemental notice.
However, the agency said this notice shouldn’t be viewed as the EPA’s attempt to respond to all comments.
States ‘Eyeing’ EPA Response
States are closely “eyeing” how the EPA responds to their concerns, Sean Rolland, ACWA deputy director said at an EPA-state roundtable at the National Clean Water Law Seminar that ran Nov. 19-21 in St. Petersburg, Fla. Rolland said larger facilities, utilities and municipalities already have robust data systems in place to move forward with electronic reporting. “The Environmental Council of the States, which represents state and interstate environmental agencies, will look closely at the supplemental proposal to ensure that it respects state delegation of this key clean water program, and incorporates reasonable timelines and assumptions so that states can successfully implement the new rule,” Alexandra Dunn, executive director and general counsel for the Environmental Council of the States, told Bloomberg BNA in a Nov. 28 e-mail. Dunn reiterated the request to Congress for strong state categorical grants in FY 2016 for states to implement new electronic reporting programs.
The EPA said comments, identified by Docket ID No. EPA-HQ-OECA-2009-0274, should be submitted tohttp://www.regulations.gov
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For More Information
For more information about the rule, contact Andrew Hudock at 202-564-6032 or email@example.com, or Carey Johnston at 202-566-1014 or Johnston.firstname.lastname@example.org in the EPA Office of Compliance.
The EPA supplemental notice on the electronic-NPDES reporting rule is available athttps://s3.amazonaws.com/public-inspection.federalregister.gov/2014-27918.pdf.
Sean Rolland, Esq.
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