UNITED STATES ENVIRONMENTAL P ROTECTION AGENC Y WASHINGTON, D.C. 20460

Harry T. Stewart Pres ident 

## FEB 

## 29 2008

Association of Sta te and Interstate Water Pollution Contro l Adminjstrators 1221 Connecticut Avenue N.W., 2"d Floor Washington, DC 20036 Dear Mr. Stewart, ASSISTANT ADMINISTRATOR FOR ENFORCEM ENT AND COMPLIANCE ASSURANCE

I am responding to your November 15 , 2007 request fo r f urth er clarification on EPA's purs uit of a rulemaking approach for the data elements which will b e required in the Int eg rated Compliance Information System National Pollutant Di scharge and Elimination System (ICIS-NPDES). Starting in the late 1990's, E PA has been working closely with the states on the data requirements and design for a modernized system to replace the Permit Comp li ance System. The intensity of the work on the policy related issues increased in late · 2005 with EPA's agreement to expand an existing Steering Committee of 10 regions and 10 s tates to include representatives from ASIWPCA a nd the
.Environmental Council of the States (ECO S) to devel o p the approach for an ICIS-NPDES Policy Statement. EPA committed numerous resources, including the time of se nior EPA leaders , to developing a Policy Statement approach through the Expanded Steering Committee that resolved the states concerns. After two years of working with the states, the Expanded Steering Co mmittee decided E PA shou ld distribute a draft Policy for comment, despite di sagreements that sti ll exis t ed between EPA and the states on the issues. The draft ICIS-NPDES Policy S t atement, d is tributed on Apri l 30, 2007 for review and comment, reflected many changes EPA made from its original approach to reduce reso urce burdens in response to the state concerns expressed through the Expanded Steering Committee. Some states did express appreciation for the compromises that EPA offered during the Expanded Steering Committee process . However, the written s tate comments provided in response to the Apri l 30 draft Policy, as well as the written mat erial s produced by the states participating in the Expanded Steering Committee process , indicated continued oppos ition to the Po licy Statem ent

lntern ot Address ( URL ) • h ttp :// www. epa .gov Rocyclod!Recycloble • Printed With Vegetable O il Basod I nks on 100% Poslconsumcr. Process Chlonne Free Recycled PaperSince the Expanded Steering Committee process d id not resolve the states' issues associated with developing the I C IS-NPDES Policy statement, EPA has chosen to proceed with a rulemaking approach for the following reasons: • to provide equal commenti ng opportunity for all the states; • to obtain feedback from a wider breadth of stakeholders beyond the states; • some states indicated they would not comply with the Policy Statement even if EPA issued it with all the compromises proposed, unless it was issued as a rule; • a regulatory impact analysis will b e comp leted; and • data is more likely to be entered into ICIS-NPDES when required by a rule. Your co ncern that rulemaking could und ermine the flexibility to make revisions to the data elements is well taken. We are working with EPA's Office of General Counsel to explore approaches that would allow us flexibility in the proposed rule to make adjustments as necessary to the list of data elements to meet the needs of the program as they evolve and change. You also expressed concern that failure to comply with such a rul e may expose th e states to an increase in petitions for withdrawal or third party lawsuits. As has been the case with other federal regulations, we will continue to work with our state partners to fully implement and enforce the authorized NPDES program , and we don't anticipate this rule to put well run state programs at an increased risk of petitions for withdrawal. On December 28, 2007, EPA issued an interim policy for s tates using ICIS-NPDES called the ICIS Addendum to the Appendix of the 1985 Pem1it Compliance System Policy Statement. Thi s Addendum is necessary to ensure national consistency in minimum data expectations while the Agency is managing the NPDES program with both PCS and IC T S-NPDES by identifying the ICIS-NPDES data elements that are comparable to the Water Enforcement National Data Base e lements for PCS
. T he Agency does not believe that the PCS Po licy Statement, even with this Addendum, meets its national need for inf ormation to manage the NPDES program. Thus, the rulemaking will identify the full set ofdata elements that all implementing agencies of the NPDES program will be required to enter or otherwise flow to ICIS-NPD ES. If you have any questions or would like to discuss this matter further, please contact Lisa Lund at 202-564-2280. Thank you for your interest in this matter.

cc: Steve Brown, ECOS Sean Rolland, ASTWPCA Michael Shapiro, OW Jim Hanlon, OW Sincerely,

# t::!f!:TAssistant Administrator

2