U.S. Environmental Protection Agency

Documentation of OMB Review Under Executive Order 12866

Title of Action: NPDES Electronic Reporting Rule: Request for further comment.

Docket#: EPA-HQ-OECA-2009-0274 FRL#: 9908-58 RIN: 2020-AA47

EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). OMB received this action on 12 April 

2014 and completed their review on 18 November 2014. Whenever EPA makes publicly available a regulatory action 

that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also:

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and 

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if 

applicable, an assessment of the potential costs and benefits, as well as additional information for those 

actions that are determined to be economically significant under the E.O. (Information requirements are 

described in sections 6(a)(3)(B) and (C)).

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was 

subsequently issued, using a method that is complete, clear, and simple.

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O.

12866? [Please check the appropriate answer.]

[ ] No. [In the docket, include the information identified in item (1) below.]

[X] Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public docket for this regulatory 

action: [Please check the appropriate information.]

[X] (1) A copy of the information that was provided to OIRA for review under the E.O.

[X ] (2) Documentation of any substantive changes made to the draft regulatory text that was submitted to OIRA 

when compared with what was subsequently made publicly available. The documentation is provided on 

the pages following this form. Changes made at the suggestion or recommendation of OIRA, if any, these 

are clearly identified through attribution to OIRA. EPA has used one or more of the following methods to 

note changes: [Select the appropriate option(s).]

[X] (a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redline/strikeout to show 

the substantive changes that were made.

[ ] (b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes to show 

the substantive changes that were made.

[ ] (c) Note to the file - A document that identifies the substantive changes that were made, with section 

references to the draft regulatory action that was submitted.

If you have any questions about this regulatory action or this documentation, please contact:

Name: Carey Johnston Email: johnston.carey@epa.gov Phone: (202) 566-1014

Revised: 05/05/2010
2

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122, 123, 127, 403, 501, and 503

[EPA-HQ-OECA-2009-0274; FRL 9808-58-OECA]

RIN: 2020-AA47

NPDES Electronic Reporting Rule Supplemental Notice

AGENCY: Environmental Protection Agency (EPA)

ACTION: Notice

SUMMARY: On July 30, 2013, the Environmental Protection Agency (EPA) proposed the 

NPDES Electronic Reporting Rule that would require electronic reporting instead of current 

paper-based NPDES reports. This action would modernize NPDES reporting, save time and 

resources for regulated entities and regulatory agencies, better protect the Nation’s waters by

improving compliance, and provide the public with access to information that affects their 

communities. The proposal would enhance transparency and accountability by providing 

regulatory agencies and the public with more timely, complete, accurate, and nationallyconsistent data about the NPDES program and potential sources of water pollution. The benefits 

of this proposed rulemaking should allow NPDES-authorized programs in states, tribes, and 

territories to shift precious resources from data management activities to solving issues that 

threaten human health, water quality, and noncompliance issues. As a result of comments 

received on the proposed rule, we are soliciting comments on the following issues in this 

supplemental notice: (1) the implementation plan requirements; (2) Cross-Media Electronic 

Reporting Rule (CROMERR) implementation (3) Concentrated Animal Feeding Operations; (4) 
3

Stormwater Sector; and (5) the economic analysis. This notice also opens a new public comment 

period.

DATES: Comments on this notice must be received on or before [INSERT DATE 60 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2009-

0274 by one of the following methods:

 Federal Rulemaking Portal: http://www.regulations.gov: Follow the on-line instructions 

for submitting comments.

 E-mail: docket.oeca@epa.gov, Attention Docket ID No. EPA-HQ-OECA-2009-0274.

 Mail: Send the original and three copies of your comments to: U.S. Environmental 

Protection Agency, EPA Docket Center, Enforcement and Compliance Docket, Mail 

Code 28221T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention 

Docket ID No. EPA-HQ-OECA-2009-0274. In addition, if applicable, please mail a copy

of your comments on the information collection provisions to the Office of Information 

and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer 

for EPA, 725 17th St. NW, Washington, DC 20503.

 Hand Deliver: Deliver your comments to: EPA Docket Center, EPA West Building, 

Room 3334, 1301 Constitution Avenue, NW, Washington, DC, 20004, Attention Docket 

ID No. EPA-HQ-OECA-2009-0274. Such deliveries are only accepted during the EPA 

Docket Center’s normal hours of operation and special arrangements should be made for 

deliveries of boxed information.
4

Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-2009-0274. EPA’s 

policy is that all comments received by the deadline will be included in the public docket without 

change, and may be made available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be Confidential 

Business Information (CBI) or other information for which disclosure is restricted by statute. Do 

not submit information that you consider to be CBI or otherwise protected through 

www.regulations.gov or e-mail. The www.regulations.gov website is an “anonymous access” 

system, which means EPA will not know your identity or contact information unless you provide 

it within the body of your comment. If you send an e-mail comment directly to EPA without 

going through www.regulations.gov, your e-mail address will be automatically captured and 

included as part of the comment that is placed in the public docket and made available on the 

Internet. If you submit an electronic comment, EPA recommends that you include your name and 

other contact information in the body of your comment, and, if applicable, with any disk or CDROM you submit. If EPA cannot read your comment due to technical difficulties and cannot 

contact you for clarification, EPA may not be able to consider your comment. Electronic files 

should avoid the use of special characters and any form of encryption, and be free of any defects 

or viruses. For additional information about EPA’s public docket, please visit the EPA Docket 

Center homepage at http://www.epa.gov/dockets/.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although 

listed in the index, some information is not publicly available, e.g., CBI or other information for 

which disclosure is restricted by statute. Certain other material, such as copyrighted material, 

will be publicly available only in hard-copy. Publicly available docket materials are available 

either electronically in www.regulations.gov or in hard-copy at the Enforcement and Compliance 
5

Docket in the EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Avenue, 

NW, Washington, DC, 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal holidays. The telephone number for the Public Reading 

Room is (202) 566-1744, and the telephone number for the Docket for the Office of Enforcement 

and Compliance Assurance (OECA) is (202) 566-1752. Docket visitors are required to show 

photographic identification, pass through a metal detector, and sign the EPA visitor log. All 

visitor bags are processed through an X-ray machine and are subject to search. Visitors will be 

provided an EPA visitor’s badge that must be visible at all times in the building and returned 

upon departure. The “User Guide to the Docket for the NPDES Electronic Reporting Rule [DCN 

0104]” provides easy to follow instructions on how to access documents through 

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For additional information, please contact 

Andrew J. Hudock (202-564-6032) or Carey A. Johnston (202-566-1014), Office of Compliance 

(mail code 2222A), Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W., 

Washington, DC, 20460; e-mail addresses: hudock.andrew@epa.gov or 

johnston.carey@epa.gov.

SUPPLEMENTARY INFORMATION:

How is this document organized?

The outline of this document follows the following format:

I. General Overview of the Supplemental Notice and Proposed Rule

II. Overview of Public Comments

III. Discussion of Key Issues Identified in Public Comments
6

IV. Matters for Which Comments Are Sought

V. Outreach

VI. Executive Orders 12866 and 13563

I. General Overview of the Supplemental Notice and Proposed Rule

A. Supplemental Notice

The U.S. Environmental Protection Agency (EPA) proposed the National Pollutant 

Discharge Elimination System (NPDES) Electronic Reporting Rule on July 30, 2013 (78 FR 

46005). The rule is explained in greater detail below. EPA received many comments on the 

proposed rule, from a variety of stakeholder groups, and the comments were generally supportive 

of electronic reporting as modern and efficient. However, some comments raised issues 

regarding aspects of the proposed implementation and operation of the rule. In this supplemental 

notice, EPA is soliciting additional comment on the following issues raised by commenters (laid 

out more specifically in Section V): (1) initial recipient status; (2) the use of the State Readiness 

Criteria and the possibility of EPA requiring the electronic submission of NPDES program data 

to EPA when authorized states, tribes, and territories have not successfully implemented 

electronic reporting; (3) implementation plan schedule; (4) copy of record; and (5) modifications 

of state NPDES regulations and statutes. We are also soliciting comment on Cross-Media 

Electronic Reporting Rule (CROMERR) implementation, electronic reporting for the 

Concentrated Animal Feeding Operations (CAFOs) and stormwater sectors, and the economic 

analysis.

EPA will consider comments on any other aspects of the proposed rule. This notice opens 

a new public comment period. This notice is an opportunity for EPA to identify key issues raised 
7

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. This notice is not, 

however, intended to respond to all comments submitted; EPA will respond to all substantive 

comments when it takes final action on the proposed rule. There is no need to re-submit 

comments already submitted to EPA’s docket for the proposed rule

B. Proposed Rule

Pursuant to the Clean Water Act (CWA), 33 U.S.C. 1251 et. seq., the U.S. Environmental 

Protection Agency (EPA) proposed the National Pollutant Discharge Elimination System 

(NPDES) Electronic Reporting Rule on July 30, 2013 (78 FR 46005). The proposed rule does 

not add to what is currently required to be reported by regulated entities under the existing 

NPDES program regulations; it would only change how that information is to be reported. In 

particular, the proposed rule would substitute electronic reporting for certain paper-based reports.

Over the long term, this should save time and resources for regulated entities, states, tribes, 

territories, and EPA while improving compliance and better protecting the Nation’s waters. The 

proposed rule would require regulated entities and regulators to use existing, available 

information technology to electronically report information and data related to the NPDES 

program in lieu of filing paper reports.

The proposed rule would allow improvements to be made to the transparency and 

usefulness of information about regulated entities and permitting, compliance, and enforcement 

activities in each state through the use of available technology to electronically report facility, 

discharge, monitoring, compliance, and enforcement data; and providing more complete, 

accurate, and timely data to the public. Improving public access to this timely, complete 

information would help inform and empower communities. EPA is soliciting comment on how 
8

to improve public accessibility and usability of the data. EPA notes that this proposed rule does 

not change the Agency’s public disclosure regulations (40 CFR 2).

This proposed rule would require that reports currently submitted on paper (i.e., 

Discharge Monitoring Reports (DMRs), Notices of Intent to discharge in compliance with a 

general permit, other general permit waivers, certifications, and notices of termination of 

coverage, and some program reports) be submitted electronically by NPDES-regulated entities to 

EPA through EPA’s Central Data Exchange (CDX) or to the authorized state, tribe, or territory

NPDES program, or to EPA through EPA’s Central Data Exchange (CDX). Importantly, while 

the proposed rule changes the method by which information on NPDES notices of intent for 

coverage under general permits, facility discharges, monitoring of compliance, facility reports, 

and enforcement responses is provided (i.e., electronic rather than paper-based), it does not 

increase the amount of information required from NPDES-regulated entities under existing 

regulations. Similarly, though it changes the method through which citizens may access this 

information, this rule only affects information already required by law to be available to the 

public

States, tribes, and territories that are authorized to implement the NPDES program are the 

unique sources of certain key information regarding the regulated facilities. For example, states 

have facility information from NPDES individual permit applications, permit information 

including limits and permit conditions, compliance determination information including that 

from inspections, and enforcement response information. Under this proposed regulation, 

authorized NPDES programs would be required to share this NPDES program implementation 

information electronically with EPA. 
9

The proposed rule, in conjunction with EPA’s current public data access tools, would

provide a more complete and easily accessible set of facility, permit, compliance, and 

enforcement data to the public. This would provide a powerful incentive for government and

regulated entities to maintain and improve their performance. This can elevate the importance of 

compliance information and environmental performance within regulated entities and provide an 

opportunity for them to quickly address any noncompliance. This can also improve access to 

permit and compliance and enforcement action data in emergency situations (see DCN 0105). It

provides the opportunity for two-way communication between regulatory agencies and regulated 

facilities to immediately address data quality issues and to provide compliance assistance or take 

other action when potential problems are identified. Complete and accurate data would also 

allow EPA to evaluate performance across authorized programs.

The requirement of electronic reporting of NPDES information is expected to result in

reductions in burden and transaction costs. Tracking data electronically is less expensive, more 

efficient, more accurate, and better able to support program management decisions than paper 

tracking (see July 30, 2013; 78 FR 46017).

II. Overview of Public Comments

EPA received 170 public comments on the proposed rule from a variety of stakeholder 

groups. The comments were generally supportive of electronic reporting as modern and efficient, 

but raised issues regarding aspects of the proposed implementation and operation of the rule. 

Table II-1 provides an overview on the public comments on the proposed rule. The largest 

number of public comments (by pages) came from government agencies (50 percent) with 

industrial stakeholders contributing most of the remaining comments (42 percent). 

Approximately half of the industrial comments came from the agricultural sector.
10

Table II-1: Number of Public Comments: Submissions, Pages, and Comment Excerpts

Commenter Type Number of Submissions Number of Comment Pages

Anonymous or Individual Person 32 44

Environmental Advocacy Organization 3 22

Government (Local) 28 114

Government (State) 39 308

Government (Federal) 2 5

Industry (Misc.) 39 188

Industry (Agriculture) 25 163

Industry (Software Vendors) 2 6

Total: 170 850

EPA has reviewed all of these comment submissions and identified the key issues raised 

by commenters. The following sections describe some of these key comments in more detail. 

III. Discussion of Key Issues Identified in Public Comments

A. Implementation Plan

EPA received many comments from states and NPDES-regulated entities on the proposed

implementation plan and is considering possibilities to address these concerns. Most of these 

comments focused on the following issues: (1) initial recipient status; (2) the use of the State 

Readiness Criteria and the possibility of EPA requiring the electronic submission of NPDES 

program data to EPA when authorized states, tribes, and territories have not successfully 

implemented electronic reporting; (3) implementation plan schedule; (4) copy of record; and (5) 

modifications of state NPDES regulations and statutes. Complete details on the implementation 
11

plan are in the proposed rule (July 30, 2013; 78 FR 46047). The following are the most 

frequently discussed issues related to the implementation plan. 

1. Initial Recipient Status

Some comments evidenced confusion about the concept of the ‘Initial Recipient,’ a term 

defined in the proposed rule at 40 CFR 127.2(b). EPA would like to provide some additional 

clarity in this supplemental notice. In general terms, the Initial Recipient is the first to receive 

electronically reported NPDES program data and could be the authorized state, tribe, or 

territorial NPDES program or EPA. The proposed rule also requires authorized NPDES 

programs and EPA to share NPDES program data (i.e., Appendix A to Part 127) with each other 

on a regular schedule. 

Under the proposed rule, NPDES-regulated entities would submit NPDES program data

to the designated initial recipient. 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. In the proposed rule, 

Section 127.27 outlines the process for requesting the designation of initial recipient. 

 An authorized state, tribe, or territory may request to be the initial recipient of electronic 

NPDES information from NPDES-regulated facilities for specific NPDES data groups by 

submitting a request to EPA. [Section 127.27(a)]

 This request shall identify the specific NPDES data groups for which the state, tribe, or 

territory would like to be the initial recipient of electronic NPDES information, a description 

of how its data system will be compliant with 40 CFR part 3 and 40 CFR part 127, and the 

date or dates when the state, tribe, or territory will be ready to start receiving this 

information.
12

There is also a process in Section 127.27(d) for helping states become the initial 

recipient. As noted in the proposed Section 127.27(d)(4), EPA will “work with the Director of 

the authorized NPDES program to remediate all issues identified by EPA that prevent the 

authorized NPDES program from being the initial recipient. When all issues identified by EPA 

are resolved and the authorized state, tribe, or territory is the initial recipient, EPA shall update 

the initial recipient listing in 127.27(c) and publish this listing on its website and in the Federal 

Register.” 

Comments on the Initial Recipient term came from state and local governments, as well 

as from NPDES-regulated entities. Most of these commenters misunderstood the Initial 

Recipient designation as being contingent on the State Readiness Criteria. The following 

discussion explains the relationship between these two related but distinctly different terms. The 

term “initial recipient” means the governmental entity, either the state or EPA, who first receives 

the electronic reports. EPA proposed to maintain the initial recipient list for each state and each 

NPDES data group and publish this list on its website and in the Federal Register. EPA’s 

decision to designate an authorized state, tribe, or territory as the initial recipient for NPDES 

program data is limited to the authorized program’s description of “how its data system will be 

compliant with 40 CFR part 3 and 40 CFR part 127, and the date or dates when the state, tribe, or 

territory will be ready to accept NPDES information from NPDES-regulated facilities in a 

manner compliant with 40 CFR part 3 and 40 CFR part 127” [see 40 CFR 127.27(a)]. By

contrast, the “State Readiness Criteria” are used when EPA is deciding whether to require 

electronic reporting through an Information Collection Request (see July 30, 2013, 78 FR 

46048). The 90 percent participation rate aspect of the State Readiness Criteria would not affect 

EPA’s determination of the Initial Recipient as detailed in Section 127.27. For example, a state 
13

can be listed as the Initial Recipient for receiving DMRs even if the electronic DMR 

participation rate in that state is less than 90 percent.

EPA proposed using Federal Register notices and its website to provide notification to 

NPDES-regulated entities of the Initial Recipient status for each data group for each state. 

Commenters noted that EPA should improve this proposed notification system (e.g., notice by

registered mail) because some NPDES-regulated entities (e.g., operators under the Construction 

General Permit) may not be aware of the Federal Register notices or EPA’s website. They also 

noted that many regulated entities granted a temporary waiver from the proposed rule would not 

have the technology to gain access to these notification systems. EPA is soliciting comment on 

additional means for providing notice on the Initial Recipient status. See Section IV of this 

notice.

Finally, states requested clarification that they can obtain Initial Recipient status after the 

implementation phase of the rule (i.e., more than 120 days after the effective date of the final 

rule). See Section 127.27(a). 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. 

EPA would like to provide this flexibility to NPDES programs as EPA’s preference is to defer to 

the authorized NPDES programs on how the NPDES program data should be routed when 

electronic reporting can be properly implemented (e.g., use of CROMERR-compliant tools). 

EPA is focused on changing NPDES reporting from paper submission to proper electronic 

submissions, not in becoming the Initial Recipient.

2. State Readiness Criteria
14

Under the proposal, a complete set of electronic information for the regulated universe 

covered by this proposed rule would be required two years after the effective date of the final 

rule. The Agency would seek to collect these data directly from NPDES-regulated facilities only

if not already being submitted electronically to the authorized state, tribe, or territory given the 

importance of complete, timely, and accessible NPDES program data to EPA states, tribes, and 

territories, the public.

EPA proposed three factors for the “State Readiness Criteria,” which EPA would use to 

determine when to “fill in the gaps” where NPDES-regulated entities are not yet fully reporting 

electronically edit NPDES program data: 

(1) Participation Rate: The authorized state, tribe, or territory has 90 percent 

participation rate by data group (i.e., NPDES-regulated entities submit timely, 

accurate, complete, and nationally consistent NPDES data using the NPDES 

program’s electronic reporting systems for a data group such as DMRs); and

(2) Approved Electronic Reporting Systems: The electronic reporting systems used by

the NPDES-regulated entity meet all of the minimum Federal reporting requirements 

for 40 CFR 3 (CROMERR) and 40 CFR 127 (NPDES Electronic Reporting Rule); 

and

(3) Initial Recipient Status: EPA lists the state, tribe, or territory as the initial recipient 

for electronic NPDES information from NPDES-regulated entities on EPA’s 

website. Each authorized program will then designate the specific tools for these 

electronic submissions from their permittees. These designations are proposed to be 

made separately for each NPDES data group (see 40 CFR 127.2(c) and 127.27).
15

In order to provide clearer distinction between the Initial Recipient and State Readiness 

Criteria terms, EPA solicits comment on eliminating the third factor in the State Readiness 

Criteria (i.e., Initial Recipient Status). The first and second factors in the State Readiness Criteria 

clarify that EPA’s collection of the data will be based on the participation rate and the use of 

CROMERR compliant tools.

As a means to “fill in the gaps” where NPDES-regulated entities are not yet reporting 

electronically, EPA is considering using its authority under CWA sections 101, 304(i), 308, 

402(b), and 501 to require NPDES-regulated entities to electronically report NPDES program 

data to EPA. As proposed, EPA would use its existing authority under the CWA and current 

technology to facilitate electronic reporting using CWA authority and an Information Collection 

Request (ICR) to directly collect information from NPDES-regulated entities that are not 

participating in state electronic reporting according to the proposed rule’s implementation 

schedule. EPA anticipates this will not be a widespread occurrence as electronic reporting, over 

the long term, reduces burden for the reporter. If we encounter widespread non-compliance with 

the electronic reporting requirements, EPA will take that as a signal to evaluate the issue. EPA 

estimates that any use of this data collection authority will taper off over time as more NPDESregulated entities utilize electronic reporting and as we learn more about electronic reporting. As 

previously noted, EPA electronically collecting these data from a subset of entities is 

independent of the Initial Recipient status of the authorized state, tribe, or territory. Authorized 

NPDES programs remain the data steward for any NPDES program data that they collect 

electronically or on paper. Under this proposal, EPA would be the data steward for the data it 

directly collects and will be responsible for resolving any data discrepancies.
16

EPA received comments from state programs and regulated entities that were concerned 

about EPA’s proposal to require electronic reporting directly to EPA where progress in 

electronic reporting to the state was not meeting the expected level. In particular, state programs 

noted the increased burden of the potential double reporting (such as paper submission of DMR 

to state, electronic submission to EPA) and the potential of conflicting data between the two 

submissions, roles of the state or EPA data stewards, and confusion over which submission is the 

‘copy of record’). States appeared interested in participating in electronic reporting and pursuing 

some level of state readiness approval, but expressed concern about how long it might take to

meet the 90 percent threshold for some data groups. One commenter noted that during the 

interim period, differing initial recipients for various data groups could be complicated or 

burdensome for some facilities.

In particular, states noted that they will likely not meet the 90 percent participation factor 

in the State Readiness Criteria within the proposed rule’s two-year implementation schedule. 

Commenters noted difficulties in seeking and obtaining CROMERR approval for their electronic 

reporting systems as well as difficulties in outreach and training for the large number of NPDESregulated entities that will need to switch from paper to electronic reporting. EPA seeks 

comment on whether it should wait longer after the effective date of the final rule to begin 

evaluating participation rates. One commenter suggested gradually phasing in the participation 

rate factor in the State Readiness Criteria as follows: participation rate of 30 percent by the end 

of the first year, 60 percent by the end of the second year, and 90 percent by the end of the third 

year. EPA also seeks comment on this approach. EPA also seeks comment on whether, under 

one of the options above, it should maintain the current one-year schedule for the DMR data 

flow since many states and NPDES permittees are using NetDMR and eDMR tools. EPA is 
17

considering the possibility of a phased approach and solicits comment on the option of 

maintaining the one year schedule for the DMR data flow as well as a phased approach to 

measure participation rate as part of the State Readiness Criteria. 

One state suggested that if the 90 percent participation factor is not met, EPA should use 

its ICR to compel NPDES-regulated entities to electronically submit their NPDES program data

to the authorized state, tribe, or territory rather than directly to EPA. The commenter also 

suggested that the authorized state, tribe, or territory could use its enforcement discretion to 

refrain from enforcing conditions in the permit or other control mechanisms

1

that specify paper 

reporting as long as the regulated entity successfully reports its data electronically using the 

appropriate CROMERR-approved electronic reporting system. This would enable EPA and 

authorized states, tribes, and territories to realize the benefits of electronic reporting without 

requiring double reporting from regulated entities and coordinating two separate submissions.

Another state commenter also suggested that EPA calculate for each NPDES program 

authority one DMR electronic submission participant rate for individually permitted facilities 

and another DMR electronic submission participant rate for facilities covered under general 

permits. The commenter suggested that there are important differences between individually

permitted facilities, which tend to be the larger facilities with a continuous discharge like 

POTWs, and facilities covered under general permits, which tend to be more numerous and 

include construction stormwater sites that might need only temporary NPDES permit coverage. 

Some states also use different state agencies to manage specific industrial sectors (e.g., 

 

1

Some NPDES-regulated entities (e.g., biosolids generators with no discharge, categorical industrial users) may not 

have an NPDES permit. These entities are controlled through direct application of EPA regulation or may be 

controlled through state regulation or other actions. 
18

construction stormwater, mines, CAFOs) and these industrial sectors are often covered by 

general permits. EPA solicits comment on all of these potential alternatives (see Section IV).

With respect to the comment that the reporting environment could be complicated for 

some facilities if the state has not qualified as the initial recipient for all data groups, EPA notes 

that many NPDES-regulated entities currently submit NPDES program data to different 

agencies. For example, most states are not authorized to implement the Federal Sewage Sludge 

program (40 CFR 503) and many POTWs in these states are required to submit DMR data to the 

state and the Annual Biosolids Program Report to EPA. Under the proposed rule, EPA would list 

the initial recipient for each data group for each state in the Federal Register and on its website 

so that regulated entities know to whom to submit their information. In addition, as noted in the 

proposal, EPA solicits comment on changing its regulations governing the standard conditions 

applicable to all NPDES permits by adding a new standard permit condition [see 40 CFR

122.41(l)(9)] that would require NPDES-regulated facilities to ensure that, for each type of 

electronic NPDES submission, the information is sent to the appropriate initial recipient, as 

identified by EPA, and as defined in 40 CFR 127.2(b). Authorized NPDES programs would 

include this requirement in all permits and control mechanisms.

Below are a few examples of how the proposed rule uses the Initial Recipient and State 

Readiness Criteria terms and more examples are in the docket (DCN 0106).

Example #1: EPA lists State X as being the Initial Recipient for DMRs and there are 1,000 

facilities in this state that are required to submit DMRs. One year after the effective date of the 

final rule 900 facilities in this state are correctly electronically submitting DMRs to the state (i.e., 

these DMRs contain all Appendix A data and are submitted in compliance with CROMERR). 
19

What actions will EPA take with respect to the 100 facilities that submitted their DMRs on paper 

to the state?

Answer: Under the proposed rule, EPA would take no actions to require electronic submissions 

of DMRs from these facilities because 90 percent of the facilities in this state that are required to 

submit DMRs are electronically submitting these DMRs in compliance with Part 127 (Appendix 

A data included) and Part 3 (CROMERR – authentication and encryption standards). The 

electronic DMR submission to the state is the copy of record for the 900 facilities and the paper 

DMR submission to the state is the copy of record for the 100 facilities.

Example #2: Assume the same scenario as in Example #1 but now only 750 facilities in this 

state are correctly submitting DMRs to the state one year after the effective date of the final rule. 

What actions will EPA take with respect to the 750 facilities in this state that are correctly 

electronically submitting DMRs to the state and the 250 facilities that submitted their DMRs on 

paper to the state?

Answer: Under the proposed rule, EPA would take no actions to electronically collect DMRs 

from the 750 facilities that are electronically submitting these DMRs in compliance with Part 

127 (Appendix A data included) and Part 3 (CROMERR – authentication and encryption 

standards) to the state as the Initial Recipient for DMRs. However, since the DMR electronic 

submission participation rate is less than 90 percent, EPA would use its CWA authority to 

require electronic submission of DMR data from the 250 facilities who submitted their DMRs 

using paper reports. This means that these 250 facilities will be potentially filing their DMR 

twice: once on paper to the state (if required by their permit) and another time to EPA

electronically. Once a facility is electronically submitting its DMRs to the state, the facility no 

longer is required to electronically report its DMRs directly to EPA. Additionally, the electronic 
20

DMR submission to the state is the copy of record for the 750 facilities and the paper DMR 

submission to the state is the copy of record for the 250 facilities. EPA also notes that authorized 

NPDES programs can help increase electronic reporting (and lower the instance of double 

reporting) by modifying or reissuing NPDES permits to include electronic reporting. EPA has 

proposed to allow authorized NPDES programs to do this through the minor modification

process (see 40 CFR 122.63).

Example #3: Assume the same scenario as in Example #2 but, after some efforts by the state and 

EPA, the DMR electronic submission participation to the state is now at or above 90 percent. 

What actions will EPA take with respect to the 100 or fewer facilities that submitted their DMRs 

on paper to the state?

Answer: This is the same answer for Example #1. 

Example #4: State X initially requests that EPA be the Initial Recipient for DMRs and there are 

1,000 facilities in this state that are required to submit DMRs. One year after the effective date of 

the final rule 900 facilities in this state are correctly electronically submitting DMRs to EPA. 

What actions will EPA take with respect to the 100 facilities that submitted their DMRs on paper 

to the state?

Answer: This is the same answer for Example #1.

Another important consideration is that NPDES-regulated entities with temporary

waivers are excluded from the State Readiness Criteria participation calculations. For example, if 

State X has 1,020 facilities that are required to submit DMRs and 20 of these facilities are

granted temporary waivers from electronic reporting, then as a group at least 900 of the 1,000 

DMR-submitting facilities without waivers [= 0.9 x (1,020 – 20)] need to electronically submit 
21

DMRs to State X in order to meet the DMR electronic submission participation threshold of 90

percent.

3. Implementation Plan Schedule

EPA proposed two phases for the implementation of electronic reporting with the first 

phase starting one year after the effective date of the final rule. Prior to this date EPA will also 

work with authorized NDPDES programs in order to collect the necessary facility and permit 

that supports electronic reporting. These necessary facility and permit data include data on 

facilities covered by general permits so that these general permit covered facilities can 

electronically submit their DMRs to their permitting authority and these permitting authorities 

can share these data with EPA. Likewise, EPA will also work with states to collect the necessary

data to support electronic reporting for the second phase. 

 Phase 1 Data (one year after the effective date of the final rule): EPA would electronically

receive basic facility and permit information as well as state performance data including: 

inspections, violation determinations, and enforcement actions. Additionally, EPA and states 

would electronically receive: (1) DMR information (if required by the NPDES permit) from 

NPDES-regulated entities; and (2) general permit reports [Notice of Intent to be covered 

(NOI); Notice of Termination (NOT); No Exposure Certifications (NECs); Low Erosivity

Waivers (LEWs)] from facilities covered by Federally-issued general permits.

 Phase 2 Data (two years after the effective date of the final rule): In addition to Phase 1 data, 

EPA and states would receive: (1) general permit reports from facilities covered by stateissued general permit; and NPDES program reports (e.g., CAFO Annual Report,

Pretreatment Program Annual Report).

As noted in the previous section of this notice, many states indicated that they likely 

would not be able to implement electronic reporting within two years of the effective date of the 
22

final rule. One commenter suggested that EPA should consider working with states to develop 

individual state plans with varying schedules for implementation based on each state’s readiness 

and resources to implement electronic reporting. Another suggestion was to integrate electronic 

reporting into the permit requirements in the next permit cycle, as permits are reissued. Other 

commenters suggested extending the implementation plan beyond two years. EPA also solicits 

comment on these alternatives.

Adding additional phases or time could include pushing the timing of Phases 1 and 2 

back by a certain amount of time, or including additional phases for certain program areas. For 

instance, MS4 program reports could be moved to a third phase to give states and EPA more 

time to determine how best to incorporate these reports into an electronic format.

As noted in the proposed rule, using the NPDES permit cycle to implement electronic 

reporting would mean NPDES program data would not be fully available across all permits and 

states until 2022 at the earliest. Using the NPDES permit cycle to implement electronic reporting 

would mean that electronic reporting requirements would be incorporated into NPDES permits 

as they are re-issued. Using this approach would also mean that it would take approximately

seven years to have data across all permits and states as authorized states, tribes, and territories 

will need two years to update their statutes and then it would take an additional five years for one 

NPDES permit cycle.

2 Additionally, there are a number of NPDES permits that are 

administratively continued with some permits that are ten or more years old (see DCN 0107). 

EPA identifies permits that are administratively continued beyond their expiration date as 

“backlogged.” EPA solicits comment on the option of EPA using its ICR to require facilities 

operating under backlogged permits to electronically submit their NPDES program data. 

 

2

See 40 CFR 123.62(e).
23

As noted in the proposed rule, EPA considered but did not choose the permit renewal 

cycle as a means to phase in electronic reporting as that approach would delay significant 

benefits of electronic reporting (e.g., state savings and expedited access to complete NPDES 

program data in an electronic format for EPA, states, tribes, and territories, regulated entities, 

and the public).

With respect to individual state implementation plans, EPA would likely establish a 

schedule for when these plans were due, the criteria it would use to review these plans, and the 

time period for states to submit subsequent revisions. EPA would look to see that each of these 

plans provides enough detail (e.g., tasks, milestones, roles and responsibilities, necessary

resources) to ensure that EPA and states can work together to successfully implement electronic 

reporting. The details likely necessary for these plans include identifying: (1) all tasks for 

capturing and electronically processing facility and permit data; (2) all tasks for updating any 

state data systems; (3) technologies for electronic reporting systems and any necessary

CROMERR approval; (4) technologies for transmitting and receiving Appendix A data to and 

from EPA; (5) schedule for updating state statutes, regulations, and NPDES permits; (6) 

schedule for training NPDES regulated entities on how to utilize electronic reporting systems; 

(7) roles and responsibilities; and (8) necessary resources and commitments. These 

implementation plans would need to be signed off by the authorized NPDES Director (as defined 

in 40 C.F.R. 122.2). Under this option EPA would use these plans to ensure all states are moving 

to electronic reporting as expeditiously as possible. EPA would also limit the amount of time that 

it will provide to states for implementation, as EPA would like all stakeholders to realize the 

many benefits of electronic reporting in a timely manner. Finally, EPA would ask states to create 
24

contingencies in their implementation plans that might rely on EPA services and systems (e.g., 

NetDMR, NeT) if the state continually misses its own scheduled milestones. 

4. Copy of Record

Several comments asked for clarification on how EPA’s proposed rule will affect the 

“copy of record” for NPDES data submissions. EPA is clarifying that the proposed rule does not 

change EPA’s authentication and encryption standards for electronic reporting. Below is a 

discussion of the copy of record as it pertains to the implementation of electronic reporting. 

An important element of EPA’s authentication and encryption standards for electronic 

reporting is the “copy of record,” which is “a true and correct copy of an electronic document 

received by an electronic document receiving system, which copy can be viewed in a humanreadable format that clearly and accurately associates all the information provided in the 

electronic document with descriptions or labeling of the information.” See 40 CFR 3.3. A copy 

of record must:

 be a true and correct copy of the electronic document that was received, and it must be 

legally demonstrable that it is in fact a true and correct copy;

 include all the electronic signatures that have been executed to sign the document or 

components of the document;

 include the date and time of receipt to help establish its relation to submission deadlines; 

and

 be viewable in a human-readable format that clearly indicates what the submitter and, 

where applicable, the signatory intended that each of the data elements or other 

information items in the document means. 
25

For such CROMERR compliant submissions, the copy of record is intended to serve as 

the electronic surrogate for what is commonly referred to as the paper submission with a “wetink” signature. The copy of record is meant to provide an authoritative answer to the question of 

what was actually submitted and, as applicable, what was signed and certified in the particular 

case. 

It is important to note that the use of an electronic reporting system may dictate where the 

electronic copy of record is retained. EPA’s NetDMR and CDX for NeT contain the electronic 

copy of record for submissions made with these tools. Likewise, state electronic reporting 

systems will contain the electronic copy of record for submissions made with these state tools. 

Under certain scenarios, as described in the previous sections, EPA may electronically 

collect NPDES program data directly from NPDES-regulated entities and these entities may also 

be making a paper submission of the same report with a “wet-ink” signature to the state. In these 

cases the paper submission to the state with a “wet-ink” signature is the copy of record. 

5. Modifications of State NPDES Regulations and Statutes

Several commenters requested clarification on the relationship between the 

implementation of electronic reporting and the schedule for any necessary modifications of state 

NPDES regulations and statutes. As indicated in the proposed rule, EPA estimated that some 

states may need to update their regulations or statutes to make clear that electronic reporting is 

required for the reports listed in Table 1 of Appendix A and that these electronic submissions 

must be compliant with Part 127 (including Appendix A) and Part 3 (CROMERR –

authentication and encryption standards). Existing EPA regulations at 40 CFR 123.62(e) require

that any updates to the authorized NPDES program take place within one-year of the effective 
26

date of the final rule (if no state statute change is required) and within two years of the effective 

date of the final rule (if a state statute change is required). 

These regulatory and statutory updates are unrelated to EPA’s decision on who can be the 

Initial Recipient for NPDES program data. However, if a state regulation or statute prohibits or 

inhibits the electronic reporting of NPDES program data to the state, then this might lower the 

electronic reporting participation rate of NPDES-regulated entities. EPA will examine cases 

where there are low participation rates to determine the cause as there may be other issues 

beyond regulatory or statutory updates that need to be remedied. Under certain scenarios, as 

described in the examples above, these lower participation rates may lead EPA to electronically 

collect NPDES program data directly from NPDES-regulated entities when the entity is also 

making a paper submission of the same data to the state. 

B. Cross-Media Electronic Reporting Regulation (CROMERR)

EPA’s proposed rule (Part 127) requires that all electronic reporting systems that are used 

for implementing NPDES electronic reporting, whether already existing or to be developed by

EPA and authorized NPDES programs, be compliant with EPA’s Cross-Media Electronic 

Reporting Regulation (CROMERR).

3 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 EPA. 

 

3 This EPA rule was promulgated in 2005 (see 40 CFR part 3).
27

EPA received a number of comments on various aspects of applying for, receiving 

approval and authorization, and implementing an electronic reporting system that complies with 

CROMERR. The comments can be divided into two key categories: (1) the process for 

CROMERR application approvals; and (2) the technical requirements for signature 

authentication. There are also two additional comment areas that require clarification: (1) 

whether a NPDES-regulated entity must submit a CROMERR application; and (2) EPA’s 

requirement to change passwords at least once every 90 days.

1. Improving/Streamlining the Application Approval Process

The review and approval process for a CROMERR application allows 75 days for 

completeness review, and 180/360 days for new/existing systems for approval review. State and 

authorized program application preparation and amendments are not included in this timeframe. 

The actual timeframe may be shorter or longer. Many of the comments highlighted the 

seemingly conflicting timelines for implementation of the NPDES Electronic Reporting Rule 

with the CROMERR requirements. Commenters expressed concern that system development and 

CROMERR approval would not be possible within the 2-year rule implementation schedule and 

that authorized programs may not be able to maintain their status as the Initial Recipient of 

NPDES program data. Commenters also questioned whether they would be required to submit 

more than one CROMERR application if they rely on multiple tools for electronic reporting.

To address these concerns, EPA will be implementing several measures to streamline the 

CROMERR application submittal, review, and approval process.

 Standard Checklists and Forms. A standard checklist has been developed for EPA national 

systems (e.g., NetDMR, NPDES Electronic reporting system (NeT), CROMERR shared 

services, Attorney General Statement and Signature Agreements) that can be modified for 
28

those using these services. These applications require the authorized programs to complete a 

small amount of state-specific information. The timeframes for these approvals are generally

reduced to between 16 to 20 weeks. See: http://www.epa.gov/cromerr/tools/index.html and 

DCN 0109. Additionally, the CROMERR approval process for states choosing to use EPA’s 

NeT will have a significantly reduced approval process. EPA estimates that the approval 

process will be less than 60 days and with reduced submission requirements.

 Model CROMERR Application. There are approximately five model CROMERR 

applications that can be adopted by authorized programs. These models illustrate different 

CROMERR solutions that can be modified for another program’s CROMERR 

implementation. Adopting a model CROMERR application will streamline the approval 

process to under 6 months. See: http://www.epa.gov/cromerr/tools/index.html.CROMERR 

Assistance and Training. EPA currently provides CROMERR assistance through online 

forms. EPA also provides direct help to prepare and complete the application as well as 

implement and integrate CROMERR services. In particular, for applicants that do not use the 

standard or model checklists and are building their own system, EPA has recently

implemented a customer relationship management tool and additional technical support to

provide triggers and reminders on due dates and actions to improve the timeframes. EPA 

intends to work with states to develop state specific plans on how to obtain CROMERR 

approval. See: http://www.epa.gov/cromerr/training/index.html. EPA is also creating a 

position that will interact with senior officials within the states and EPA by serving as the 

dedicated contact for states on the selection and implementation of the NPDES e-reporting 

tool, and serve as an advocate for states’ CROMERR applications for the NPDES program 

from receipt to approval to ensure state applications are being addressed in a timely manner.
29

2. Technical Requirements for Signature Authorization

The second key area of CROMERR comments are the identity-proofing requirements for 

issuing electronic signature credentials. While the majority of the comments in this area focus on 

the burden of maintaining paper copies of signature agreements and the time associated with 

conducting identity proofing and the issuance of signature credentials, some stakeholders 

provided comments on the existing NPDES signatory requirements (40 CFR 122.22). EPA is not 

proposing to change the NPDES eligibility signatory requirements as these are beyond the scope 

of this rulemaking. The following are issues that relate to this NPDES Electronic Reporting Rule.

 Burden associated with high processing costs. EPA notes that all of the comments on the 

signature agreement requirements were based on the assumption of wet ink signatures on 

paper. However, EPA is now making available a paperless, real-time, electronic identity

proofing service that reduces the application and validation time from days to minutes, and 

costs from dollars to cents. As noted above, as part of the Central Data Exchange (CDX)

CROMERR services, electronic identity-proofing is available to regulatory authorities that 

do not wish to develop such a system of their own. This service can be invoked in a way that 

is transparent to the user and would allow users to begin using their electronic signature 

credentials in a single session.

 Burden associated with high turn-over and infrequent reporting. Electronic reporting systems 

can structure the agreements and the associated business processes so that only a single 

agreement is collected, once, from each user who is granted authority to electronically sign 
30

documents in the system. For EPA CDX systems, a user only has to register and complete the 

signature agreement once, and the credentials do not expire.4

3. CROMERR requirements for a NPDES-regulated entity

EPA received comments from POTWs, particularly from California, asking whether they

would need to become CROMERR-certified in order to undertake electronic reporting. EPA is 

using this notice to confirm that NPDES-regulated entities (e.g., POTWs) do not submit a 

CROMERR application to electronically report NPDES program data. It is the responsibility of 

the authorized NPDES programs receiving these electronically reported NPDES program data to 

obtain approval from EPA for their electronic reporting systems and processes in accordance 

with EPA’s CROMERR requirements. Under the proposed rule, NPDES-regulated entities that 

electronically report their NPDES program data would use CROMERR-approved electronic 

reporting systems and processes. Authorized NPDES programs are responsible for submitting 

CROMERR applications for their electronic reporting system and NPDES-regulated entities are 

only required to complete the necessary signature requirements for that system.

EPA also notes that Subpart D of CROMERR requires that state, tribal or local 

government agencies (including POTWs) that receive, or wish to begin receiving electronic 

reports under their EPA-authorized programs (e.g., CWA pretreatment program) must apply to 

EPA for a revision or modification of those programs and obtain EPA approval.5 However, an 

important consideration is that the proposed rule does not require approved pretreatment 

 

4 Also note that once the single electronic signature agreement/credentials are established they can be used for 

reporting to multiple regulatory programs in addition to NPDES.

5

For example, EPA recently approved of the City of Grand Rapids' (Michigan) request to revise its general 

pretreatment regulations to allow electronic reporting. See February, 13 2014, 79 FR 8701.
31

programs to electronically collect NPDES program data from significant and categorical 

industrial users. Approved pretreatment programs may continue to collect NPDES program data 

from significant and categorical industrial users on paper or may elect to seek EPA approval for 

their CROMERR-compliant electronic reporting systems and processes.

4. EPA Password Reset Requirement

EPA also received comments on the 90-day password reset requirement, suggesting that 

this frequency is too short and would be a burden for infrequent reporters. The 90-day password 

reset requirement is not a CROMERR requirement; rather, it is a long standing EPA security 

requirement that is used for all of our internal and external systems. However, most electronic 

reporting systems allow users to perform a password reset when their password has expired. For 

example, a regulated entity that only uses an electronic reporting system once a year can reset 

their password at the time of their electronic submission. A regulated entity would not need to 

access the electronic reporting system throughout the year simply to retain an active password or 

have an active password to initiate a password reset operation.

5. Relationship between CROMERR requirements and the Initial Recipient term

EPA also received comments on how the CROMERR requirements would affect the 

Initial Recipient requirements in the proposed rule (see Section 127.27). The following provides 

more explanation on the interaction between the CROMERR requirements and the Initial 

Recipient requirements in the proposed. If the Initial Recipient status for a particular state for a 

particular data group switches from the state to EPA, then the NPDES-regulated entities in that 

data group in that state would need to ensure they register with the appropriate CROMERRcompliant system. In this example, these NPDES-regulated entities would switch from using a 

state electronic reporting system to an EPA electronic reporting system (e.g., NetDMR, NeT).
32

Likewise, if the Initial Recipient status for a particular state for a particular data group switches 

from EPA to the state, then those NPDES-regulated entities in that data group in that state would 

switch from an EPA electronic reporting system to a state electronic reporting system.

C. Concentrated Animal Feeding Operations (CAFO) Sector

EPA is clarifying the effects of this proposed rule on CAFOs in response to comments 

received that reflect misunderstanding about the proposed rule. The proposed rule would only

require CAFOs with NPDES permits to submit information to permitting authorities that the 

Clean Water Act already requires them to provide. See 33 U.S.C. 1342. Additionally, this 

information already is publicly accessible pursuant to the Clean Water Act and its implementing 

regulations. The proposed rule would simply modernize the format through which permitted 

CAFOs would submit certain types of information (i.e., electronic submission as opposed to 

paper-based reporting). This modernized format should increase efficiencies for permitted

CAFOs as well as regulators. Permitted CAFOs that lack suitable Internet access would be able 

to receive temporary waivers so that they would not be required to submit information

electronically.

The following summary explains how the proposed rule would affect permitted CAFOs.

PERMITTED CAFO RESPONSIBILITIES

TYPE OF SUBMISSION SUBMISSION FORMAT

Individual permit applications and attached 

nutrient management plans (NMPs)

There is no change for the owner or operator, 

as a CAFO that is applying for an NPDES 

permit can submit forms and information in a 

paper format to the permitting authority. The 

proposed rule requires only selected data on 

the individual NPDES permit application (see 

Appendix A) to be electronically shared 

between states and EPA.
33

Notices of Intent to discharge in compliance 

with a general permit (NOIs)

CAFOs seeking coverage under an NPDES 

general permit would electronically submit

these NOIs, unless a temporary waiver is 

granted by the authorized NPDES program.

The proposed rule requires only selected data 

on the NOIs (see Appendix A) to be 

electronically shared between states and EPA.

NMPs attached to general permit NOIs

There is no change to the owner or operator, as 

CAFOs seeking coverage under an NPDES 

general permit can submit these data and 

information in a paper format to the authorized 

NPDES program. Authorized NPDES program 

may elect to electronically receive NMPs from 

CAFOs; however, this proposed rule does not

require authorized NPDES programs to share 

these NMPs with EPA or require electronic 

submission of NMPs.

Annual reports and DMRs

Permitted CAFOs would electronically submit 

these compliance monitoring data, unless a 

waiver is granted by the authorized NPDES 

program. The proposed rule requires only 

selected data on the annual reports and DMRs 

(see Appendix A) to be electronically shared 

between states and EPA.

The following summary lists the only changes the proposed rule would make in 

authorized NPDES program responsibilities.

AUTHORIZED NPDES PROGRAM (GENERALLY STATES) RESPONSIBILITIES

TYPE OF SUBMISSION SUBMISSION FORMAT

Individual permit applications Submit data listed in Appendix A to Part 127 

electronically to EPA.

Inspection, violation determination, and 

enforcement action information

Submit data listed in Appendix A to Part 127 

electronically to EPA.

As indicated in the tables above, contrary to concerns raised by some commenters, this 

proposed rule would not require electronic submission of NMPs. Nor would the proposed rule 

require NPDES-permitted CAFOs to submit any new information beyond what is already 

required in the current regulations. 
34

In response to comments made expressing concerns that the proposed rule could infringe 

on the privacy of NPDES-permitted CAFO owners and operators or the facility, their employees 

or family members, EPA emphasizes that this rule would not require any information to be 

disclosed that is not already available to EPA and the public pursuant to existing legal 

requirements. See, e.g., 33 U.S.C. 1318, 1342(j); 40 CFR 122.21(f). Information that permitted 

CAFOs submit on their permit applications is required to be publicly available pursuant to CWA 

section 402(j), which requires that “[a] copy of each [NPDES] permit application and each 

[NPDES] permit ...be available to the public. Such permit application or permit, or portion 

thereof, shall further be available on request for the purpose of reproduction.” See 33 USC 

1342(j). Section 402(j) applies to all NPDES permit applications, including CAFO NPDES 

permits. In addition, CWA section 402 requires that states, tribes, and territories implementing 

NPDES programs provide for “public ... notice of each application for a permit and provide an 

opportunity for public hearing before a ruling on each such application.” See 33 USC 1342(a)(1), 

(b)(3). 

Agricultural stakeholders also stated their concerns that a public national database with 

the location information of livestock operations could increase the risk of acts of terrorism at 

such operations. EPA notes that all of the information proposed to be submitted electronically is 

already publicly available today. The proposed rule is focused on modernizing existing reporting

requirements by moving from paper to electronic submissions. The proposed rule does not 

change the data and information that NPDES-regulated entities are required to report or how 

EPA manages these data and makes it available to the public. Existing law requires that 

information submitted in connection with a permit application, as well as other effluent data, be 

available to the public. Permitted CAFOs and other sectors have been regulated under the 
35

NPDES program for over 40 years and permitted entities like CAFOs have been required to 

submit individual NPDES permit applications or NOIs for coverage under a NPDES general 

permit like any other facility seeking permit coverage. The proposed rule is only to modernize 

the data processed from paper to computer to make the program more efficient and effective.

Existing law also requires authorized NPDES programs (usually states) to share NPDES 

program information with EPA. Authorized NPDES programs are required to “keep such records 

and submit to the Administrator such information as the Administrator may reasonably require to

ascertain whether the State program complies with the requirements of CWA or of this part.” 40 

CFR 123.43(d). See also 40 CFR 123.41(a) (“Any information obtained or used in the 

administration of a state program shall be available to EPA upon request without restriction.”).

Pursuant to EPA’s NPDES data sharing policy, which dates back to 1985, authorized 

NPDES programs share data, including the following data, with EPA’s national NPDES program 

database for all NPDES-regulated entities (major and non-major facilities): facility name; SIC 

code(s), facility address, city, state, and zip code; facility latitude and longitude, facility owner’s 

first and last name and full mailing address. For example, EPA makes these data available now 

through its ECHO website (http://echo.epa.gov) and Envirofacts (http://www.epa.gov/enviro/). 

EPA did not propose any changes to the way in which it protects confidential business 

information (CBI) in implementing electronic reporting. It is longstanding existing law that 

information required by an NPDES application form may not be claimed confidential. 40 CFR

122.7(b) and (c).

With respect to CAFO Annual Program Reports, EPA discussed how it will handle 

claims of CBI for these data in the 2003 CAFO rule (February 12, 2003, 68 FR 7233). In 

particular, the 2003 CAFO rulemaking states:
36

“EPA expects that the permitting authority will make this information available to the 

public upon request. This should foster public confidence that CAFOs are complying with 

the requirements of the rule. In particular, the information in the annual report will 

confirm that CAFOs have obtained coverage under an NPDES permit, are appropriately 

controlling discharges from the production area, and have developed and are 

implementing a nutrient management plan... Under the existing regulations at 40 CFR 

Part 2, Subpart B, a facility may make a claim of confidentiality for information it must 

submit and EPA must evaluate this claim if it receives a request for the information from 

the public...Claims of confidentiality with respect to information submitted to the State 

will be processed and evaluated under State regulations.”

The proposed NPDES Electronic Reporting rule does not change the long-standing procedures 

for dealing with public and confidential information in the existing NPDES regulations. 

Additionally, EPA has the capability of electronically collecting CBI through EPA’s CDX 

system and may use this capability to allow NPDES permitted CAFOs to securely submit their 

CAFO Annual Program Reports.

6

Some commenters raised questions about the authority of states and EPA to inspect 

CAFOs. Section 308 of the CWA authorizes inspections of premises where effluent sources are 

located, 33 U.S.C. 1318(a)(B), and data gathering from point sources that discharge or may

discharge, 33 U.S.C. 1318(a)(A), even if those facilities are not required to have a permit 

because they do not discharge. See also 33 U.S.C. 1342 (requiring that authorized state programs 

have the same authority to inspect, monitor, enter, and require reports as section 308 of the Act).

 

6

For example, EPA electronically collects Pre-manufacture Notices (PMNs) from chemical manufacturers through 

EPA’s CDX system. These chemical manufacturers can claim these PMNs as CBI. See DCN 0116. 
37

States and EPA gather information from point sources, including CAFOs, that discharge 

pollutants or may discharge pollutants for a variety of purposes, including determining 

compliance with applicable effluent limitations and verifying that the CAFO is not in fact 

discharging without a permit. See 33 U.S.C. 1318. 

Stakeholders raised concerns about EPA posting information on unpermitted CAFOs and 

AFOs on EPA’s public website. The Clean Water Act specifically identifies concentrated animal 

feeding operations as a type of “point source.” See 33 USC 1362(14). The NPDES permit 

program regulates discharges of pollutants from point sources. It is important for authorized 

NPDES programs (generally states) to report inspection information on all facilities (permitted or 

unpermitted) to EPA, as they currently do, so that EPA can know that the state has inspected the 

facility and found either that there is no discharge and no permit is required or there is a 

discharge and a possible violation. This reporting also benefits the facility because it avoids a 

possibly duplicative EPA inspection. Providing information related to inspections of unpermitted 

facilities (e.g., facility name and location) helps the public better understand the robustness of the 

authorized state NPDES inspection program and the compliance status of nearby CAFOs and 

AFOs.

In order to address comments regarding the privacy interests of an unpermitted CAFO 

and AFO that an authorized state NPDES program or EPA has assessed and found to have not 

violated the Clean Water Act, EPA is proposing a change to its current practice regarding the 

facility specific information it collects from states and posts to its ECHO website for these 

facilities (unpermitted CAFOs and AFOs that state inspectors found were not discharging and do

not require an NPDES permit). EPA is proposing to mask all facility identifying information for 
38

this subset of facilities and only post the information submitted by states on the total number of 

inspections of these facilities by state.

EPA is proposing to make this change a year after the effective date of the final rule. EPA 

anticipates it will need a year after the final rule to coordinate with states on identifying the exact 

set of CAFOs and AFOs currently in EPA’s data systems that qualify for this proposed facility 

specific information redaction and the necessary data management rules for future state 

inspections of CAFOs and AFOs. This proposed change address the concerns from agricultural 

stakeholders about posting facility specific information for CAFOs that are not discharging and 

not required to have NPDES permits. EPA seeks comment on this proposed change and the 

proposed timing.

The following is an example of how EPA could mask facility name and location (address 

and latitude and longitude) as well as facility contact information (contact name and phone 

number) for its ECHO website. [Note: Each unpermitted CAFO and AFO that does not have a 

Clean Water Act violation as determined by the authorized state NPDES program or EPA would 

have a unique number as shown below.]

Facility #1 - Unmasked Information Facility #2 - Masked Information

Show-Me State Animal Farm

Location: 11300 Ozark Lane, Perryville, Missouri 63775

County: Perry

Lat.: 37.836084, Long: -89.738644 

Contact: Grant Wood

Phone: 999-867-5309

Inspection(s): 3/14/2010 (no violation identified); 

6/22/2014 (discharging without an NPDES permit)

Unpermitted CAFO/AFO-000001

Location: Missouri

County: Redacted from Website

Lat./Lon.: Redacted from Website

Contact: Redacted from Website

Phone: Redacted from Website

Inspection(s): 2/17/2009 (no violation identified); 

5/25/2013 (no violation identified)

The above table is a made up example for purposes of illustration only. In this 

hypothetical example, the unpermitted CAFO shown in the column labeled “Facility #1 -

Unmasked Information” would not have its facility and contact information displayed on EPA’s 
39

website until the weekly refresh of ECHO data from ICIS-NPDES after 22 June 2014, which is 

the date the state or EPA Region identified that the facility had a Clean Water Act violation (i.e., 

discharging without an NPDES permit) and entered these data into ICIS-NPDES. If an 

unpermitted CAFO does not have a Clean Water Act violation as determined by the authorized 

state NPDES program or EPA, then the facility and contact information would not be displayed 

on EPA’s ECHO website (see the column labeled “Facility #2 - Masked Information” in the 

above table). 

EPA solicits comment on this approach. Additionally, under existing EPA regulations at 

40 CFR Part 2, Subpart B, a facility, including any CAFO or AFO, may make a claim of 

confidentiality for information it must submit to EPA or to the authorized State. These claims

will be processed and evaluated under federal or State regulations, respectively.

Agricultural stakeholders also commented that electronic reporting of NPDES program 

data may provide a disincentive to seek NPDES permit coverage in order to keep information 

related to the facility and facility contact out of EPA’s databases. EPA has a statutory duty to run 

a permitting program for CAFOs that discharge. This proposed rule does not change the 

requirement that CAFOs discharging pollutants into waters of the United States are subject to 

NPDES regulation.

Finally, in response to comments received, EPA is soliciting comment on a few changes 

to CAFO data elements in Appendix A to Part 127 (see DCN 0108). EPA believes that these 

edits, generated from comments by states, make the revised Appendix A more clear and 

implementable (see DCN 0128 through 0142).

D. Stormwater Sector
40

EPA received a number of comments on how electronic reporting will be implemented 

for NPDES-regulated entities that manage stormwater. The following section describes these 

comments.

1. Municipal Separate Storm Sewer Systems (MS4s)

Polluted stormwater runoff is commonly transported through Municipal Separate Storm 

Sewer Systems (MS4s), from which it is often discharged untreated into local waterbodies. To 

prevent harmful pollutants from being washed or dumped into an MS4, regulated entities (e.g., 

municipalities) must obtain a NPDES permit and develop a stormwater management program.

Under the proposed rule, MS4 regulated entities must electronically submit certain MS4 data.

These data include: (1) Notices of intent (NOIs) for coverage under a NPDES general permit; 

and (2) MS4 program reports. 

NPDES general permits are most often used by NPDES permitting authorities for Phase 

II MS4s (i.e., smaller MS4s for which federal regulations were issued in 1999). The MS4-

specific data elements related to NOI submissions are identified in Appendix A to 40 CFR part 

127 at pp. 46093-46094 of the proposed rule. These MS4-specific data elements are in addition 

to basic facility and permit data that are also required to be submitted electronically, as identified 

in Appendix A to 40 CFR part 127 at pp. 46084-46088 of the proposed rule. In a separate data 

submission, the authorized NPDES program will also share MS4 information (e.g., basic facility, 

permit, and MS4-specific information) from individual NPDES permit applications with EPA.

EPA also proposed a requirement that MS4-regulated entities electronically submit their 

MS4 program reports, which is an existing compliance monitoring reporting requirement [see 40 

CFR 122. 42(c) and 40 CFR 122.34(g)(3)]. The required MS4-specific data elements from the 
41

MS4 program reports are identified in Appendix A to 40 CFR part 127 at pp. 46107-46108 of the 

proposed rule. 

During the public comment period for the proposed rule, several commenters, 

particularly from local governments, provided EPA with MS4-related comments. Many of these

commenters expressed concern about how EPA would implement electronic reporting for MS4 

regulated entities. In particular, they noted that MS4 program reports are generally not uniform 

as each MS4 program implements its program differently. These commenters asked EPA to 

clarify its plans to standardize and electronically collect these data. EPA intends to use a 

combination of drop-down lists and text fields in its electronic reporting systems to effectively 

characterize the activities of the MS4 facilities for electronic reporting of NOIs and program 

reports. An example of this flexibility can be seen in EPA’s NOI form for Phase II MS4 

regulated entities in Region 1 (see DCN 0110). EPA recognizes that requirements will vary from 

one state to another; therefore, the electronic reporting systems developed by EPA or by other 

parties will need to be adaptable to reflect the additional information that particular states may

seek in addition to the data described in Appendix A to 40 CFR part 127.

Some commenters indicated that it would be helpful if the information provided in 

electronic NOIs could be used to “auto-fill” or pre-populate data submitted with MS4 program 

reports. EPA is interested in making electronic reporting as easy as possible and will review this 

suggestion as part of the development of its NPDES eReporting Tool (NeT).

Several commenters also indicated that EPA should adjust Appendix A to 40 CFR part 

127 to better reflect the different requirements and terminology utilized for Phase I MS4s (i.e., 

those large and medium MS4s for which federal regulations were issued in 1990) and Phase II 
42

MS4s. EPA solicits comment on potential specific changes to Appendix A related to MS4s (see 

DCN 0108).

2. Industrial and Construction Stormwater Electronic Reporting

Stormwater runoff from construction and industrial activities can have a significant 

impact on water quality. As stormwater flows over a construction or industrial site, it can pick up 

pollutants like sediment, debris, and chemicals and transport these to a nearby storm sewer 

system or directly to a river, lake, or coastal water. The proposed rule requires construction 

operators and industrial facilities seeking coverage by an NPDES permit or a waiver from having 

to have NPDES permit coverage to electronically submit data.

In the preamble to the proposed rule (pp. 46025-46027) and in the proposed regulatory

text [40 CFR 127.11(b)], EPA stated that operators of regulated construction sites and industrial 

facilities would be required to electronically submit NOIs for coverage under a NPDES general 

permit. Under the proposed rule authorized NPDES programs would also electronically process 

data from paper NPDES individual permit applications submitted by construction operators (see 

Appendix A). This includes certain categories of industrial activities and large construction sites 

regulated by the Phase I stormwater regulations promulgated in 1990 and small construction sites 

identified in the Phase II stormwater regulations promulgated in 1999. These regulated entities 

may already be required by their permits to electronically submit DMRs. In a separate data 

submission, the authorized NPDES program would also share additional information (e.g., basic 

facility, permit, and construction and industrial stormwater information) from individual NPDES 

permit applications and waiver or exclusion from NPDES permitting determinations with EPA.

During the public comment period, some commenters indicated that the universe of 

NPDES-regulated construction sites was large and changing often as sites were completed.
43

These commenters had concerns about how electronic reporting would work for this large and 

changing universe of NPDES-regulated entities. In particular, some of these commenters noted 

the difficulty in getting construction operators to apply for and maintain electronic signatures for 

use with CROMERR electronic reporting systems. As an alternative to use of a CROMERR 

electronic reporting system one commenter suggested EPA allow NPDES programs the 

possibility of using automatic identification and data capture technology [e.g., two dimensional 

barcodes such as Quick Response (QR) codes, optical character recognition]. For example, a 

potential user could complete an online form and then print out a paper copy of the form with a 

two-dimensional barcode or in a format that can be used by an optical character reader. The 

potential user would then certify these data as correct by signing this paper print-out in ink. The 

use of this data capture technology could enable a NPDES-regulated entity to submit NPDES 

program data on paper with a “wet-ink” signature and have the NPDES program data structured 

to allow easy data importation into the state data system and subsequent sharing with EPA. This 

would mean that the state would need to procure and manage this automatic identification and 

data capture technology, maintain the paper submission with the NPDES program data and “wetink” signature, and train potential users; however, some states have suggested this option may be

less burdensome than requiring all construction stormwater NPDES-regulated entities to obtain 

and maintain a digital signature.

Some commenters suggested that EPA adjust the minimum set of federal NPDES data 

(Appendix A to 40 CFR part 127) to better distinguish between construction stormwater and 

industrial stormwater data elements as well as required data for individual application versus

NOIs for coverage under a general permit. EPA solicits comments on these potential changes to 

Appendix A (see DCN 0108).
44

E. Economic Analysis

EPA received numerous comments related to its economic analysis of the incremental 

costs associated with the proposed rule. Commenters include state environmental agencies, 

municipalities, private industry, and trade groups and associations. The majority of the 

comments focused on rule implementation costs, data entry burden, dual reporting requirements, 

benefits of the rule, and impacts on small entities.

Commenters expressed concern that the economic analysis may not accurately reflect the 

financial impact on states because it excludes or underestimates costs for information technology

(IT) system development and upgrades; annual IT maintenance and operation (e.g., a hotline for 

NPDES-regulated entities; password resets; system maintenance); outreach and training for 

NPDES-regulated entities; training of program staff; and revisions to statutes or regulations to 

implement the proposed rule. 

A number of commenters also suggested that that the Economic Analysis underestimated 

the costs to NPDES-regulated entities. For example, a number of larger companies, 

municipalities, and sanitation districts indicate that they would need to upgrade their data 

management systems to be compatible with the state’s or EPA’s new electronic system. They

also expressed concern that the analysis underestimated costs to NPDES-regulated entities

operating in multiple states, because they will need to generate customized reports related to 

permit conditions and state formatting requirements.

Small entities with NPDES permits such as small municipalities, CAFOs, and 

construction firms stated that the analysis did not take into account that some NPDES-regulated

entities may need to buy a computer and obtain internet access or travel to a site (e.g., local 

library) with public access to computers in order to electronically enter and submit the required 
45

data. EPA notes that some of these facilities may be eligible for temporary waivers. Some 

commenters also noted that electronic data entry could be more difficult and time-consuming 

than writing data on paper, especially for entities that do not have extensive computer 

experience. Commenters indicated that attending trainings for the electronic systems could be a 

burden to small entities. 

Some NPDES-regulated entities expressed concern that they could be designing their 

internal data management systems and procedures for electronic reporting directly to EPA and 

then potentially redesigning them for a different state system at a later time if the Initial 

Recipient changes.

Some commenters also questioned the benefits associated with the proposed rule. They

argued that the reason that most states have not expanded electronic reporting to NOIs and 

program reports is because electronic reporting on seldom-reported documents (such as once a 

year reporting or once every five year No Exposure Certifications) or simple but very frequently 

received documents (such as Notices of Termination for construction stormwater general 

permits) will require more ad-hoc time and staff than accepting such documents via FAX, as 

PDFs via e-mail, or as a hard copy. Some commenters also disagreed with EPA’s analysis that 

the rule will result in improvements in water quality and increases in permittee compliance due 

to better awareness of compliance status and public scrutiny. EPA received few data from 

commenters that can be used to update its economic analysis. EPA solicits additional data and

information to inform the economic analysis supporting this rule (see EPA-HQ-OECA-2009-

0274-0135). For example, EPA solicits data on the savings due to the more efficient form 

preparation and processing (including postage savings) as well as savings related to improved 
46

data quality as electronic reporting tools will include the ability to check for certain types of 

errors. 

EPA received a number of comments regarding the proposed rule’s potential Federalism 

implications, expressing concern that the proposal could infringe upon the lead role of authorized 

states, tribes, and territories. EPA wants to clarify that it does not intend to change or infringe 

upon the lead role of authorized states, tribes, and territories. The purpose of the proposed rule is 

to shift the collection and management of information from NPDES forms and reports from a 

paper-based system to an electronic-based system. The proposed rule does not change the wellestablished relationship between EPA and authorized state, tribal, and territorial programs as 

these authorized programs will continue to be the lead in all aspects of the NPDES program 

including permitting, inspections, compliance determinations, and enforcement actions. Under 

the existing regulatory scheme, authorized states, tribes, territories are already required to collect 

the information covered by this rule from NPDES-regulated entities and make it available to 

EPA. The main focus of the proposed rule is to have that information submitted electronically, 

saving time and money for states as well as the regulated community. EPA notes that close 

coordination and discussion with states about the best way to move towards the shared goal of 

shifting to electronic reporting is very important and EPA has gone beyond just complying with 

the Presidential Executive Order that requires EPA to work collaboratively with states and local 

governments. Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 

requires EPA to develop an accountable process to ensure “meaningful and timely input by State 

and local officials in the development of regulatory policies that have federalism implications.” 

EPA and several authorized state NPDES programs are regularly holding discussions and 

technical exchanges on all aspects of the rulemaking (see DCN 0111) and these discussions have
47

meaningfully informed several aspects of this supplemental notice. In the spirit of Executive 

Order 13132, and consistent with EPA policy to promote communications between EPA and 

state and local governments, EPA specifically solicits comment on the proposed rule and this 

supplemental notice from state and local officials. EPA will continue to consult with state and 

local officials throughout the rule development process to ensure they have meaningful and 

timely opportunities for input.

F. Waivers

In the preamble to the proposed rule, EPA introduced the concept of temporary waivers 

from electronic reporting of NPDES information. As described in the proposed rule at 40 CFR

127.15, these temporary waivers would be made available at the discretion of the authorized 

NPDES program (and subject to EPA review) in situations where regulated facilities lacked 

sufficient broadband availability. The process for granting such temporary waivers from 

electronic reporting is described in the proposed regulation at 40 CFR 127.24. Authorized 

NPDES programs would be required to enter the hard-copy NPDES information submitted by

facilities with waivers into the state or federal NPDES data system and share it with EPA. Under 

the proposal, temporary waivers would be available for one year at a time. EPA requested 

comment on the need for such temporary waivers, possible options for such waivers, and on the 

possibility of temporary waivers for religious reasons. 

During the public comment period for the proposed rule, EPA received several comments 

on temporary waivers. The majority of the comments on this topic supported the overall concept 

of temporary waivers from NPDES electronic reporting; three commenters disagreed. 

Commenters suggested that EPA should make permanent waivers for NPDES-regulated entities 

located in religious communities (e.g., Amish, Mennonite, and Hutterite). Other comments 
48

indicated support for making temporary waivers automatic in certain locations (e.g., areas where 

less than 10 percent of the population has sufficient broadband availability). Commenters 

expressed support for waivers that would have a longer duration than the one-year renewable 

timeframe identified in the proposed rule. Several commenters suggested that waivers should 

also be made available for certain circumstances beyond broadband availability issues, such as 

undue burden or cost. States also requested that they be provided with more flexibility in 

providing waivers from electronic reporting. A few commenters also suggested that EPA make 

the determinations of temporary waiver eligibility rather than the states, even if the state has 

authorization to implement the NPDES program. As described in Section IV, EPA solicits 

comment on temporary waivers and permanent waivers for NPDES-regulated entities located in 

religious communities.

G. Miscellaneous Issues

This section describes other issues raised by commenters.

1. Electronic Reporting for the Pesticides General Permit and Vessels General Permit

Several commenters had questions regarding the application of the proposed rule to 

regulated entities subject to EPA’s Pesticides General Permit and Vessels General Permit. EPA 

provides NPDES permit coverage for pesticide applicators where EPA is the permitting authority

and vessel operators nationwide. These permits predate the proposed NPDES Electronic 

Reporting Rule; however, EPA has developed an electronic reporting system for these regulated 

entities to submit Notices of Intent (NOIs) for coverage under these general permits. EPA 

currently allows operators to request a waiver from electronic reporting based on an undue 

burden or expense associated with electronic reporting (see DCN 0112). There are no additional 

costs to EPA or the operators regulated by EPA’s pesticide applicators and vessels general 
49

permits with implementation of the proposed rule as nearly all of these regulated entities are 

already using EPA’s electronic reporting system. EPA will incorporate data on pesticide 

applicators regulated by state permits into the economic analysis. 

EPA is not proposing to exempt these two permits from the NPDES Electronic Reporting 

Rule. In particular, EPA’s General Permit regulations (40 CFR 122.28) apply to all general 

permits and EPA’s proposed revisions to this regulatory language that implement electronic 

reporting do not exclude pesticide applicators or vessel operators (or any other sector or general 

permit). EPA will require electronic reporting of general permit reports (i.e., NOIs, NOTs, 

LEWs, and NECs) and DMRs (if required by the NPDES permit) when it re-issues these permits 

after the effective date of the final rule. EPA intends to clarify this in the final rule and 

supporting documentation.

2. Modification of Data Elements in Appendix A

In response to public comments on the proposed rule, EPA reviewed the minimum set of 

federal NPDES data (Appendix A to 40 CFR part 127) and is seeking comment on potential 

changes to some of these data elements (see DCN 0108). Additionally, EPA is seeking comment 

on including two data elements that support the Clean Watersheds Needs Survey, which is 

conducted by EPA under authority of Sections 205(a) and 516 of the Clean Water Act. These 

changes would reduce burden on states by eliminating most of the need for EPA to collect these 

two data elements from states as part of its quadrennial survey. These two POTW data elements 

are: (1) POTW Wastewater Treatment Technology Level Description [The highest level of 

treatment (e.g., primary equivalent to secondary, secondary, advanced, other) that the POTW 

provides at each outfall]; and (2) POTW Wastewater Treatment Technology Unit Operations

[The treatment technology unit process information at each outfall for POTWs greater than 10 
50

MGD]. Example wastewater treatment technology level descriptions and unit operations are 

provided in the docket (see DCN 0113).

3. Biosolids Annual Report

Several EPA Regions are using the DMR form to collect data for the Biosolids Annual 

Report as required by EPA regulations.9These regulations require that all Publicly Owned 

Treatment Works (POTWs) servicing a population greater than 10,000, having a design flow rate 

greater than one million gallons per day, or designated as Class I facilities submit an annual 

report to the permitting authority every year on February 19th. In particular, EPA Region 6 is 

using the NetDMR electronic reporting system to collect data for the Biosolids Annual Report 

from facilities in Region 6 states (see DCN 0114 and 0115). EPA solicits comment on the 

practicality of using the DMR form to collect data for the Biosolids Annual Report. EPA notes 

that using the DMR form may be difficult to capture specific information related to pathogen 

reduction methods, vector attraction reduction methods, cumulative and annual loading rates, 

incineration related data, and site restrictions. EPA notes that the use of the DMR form to report 

Biosolid Annual Report data, while more efficient, may reduce the ability of the authorized 

NPDES program to determine facility-level compliance. EPA also solicits comment on allowing 

POTWs to use state eDMR systems to submit their Biosolids Annual Report when the state is not 

authorized for the biosolids program.10

 

9

See “Standards for the Use or Disposal of Sewage Sludge,” 40 CFR part 503.

10 EPA has authorized eight states to run the Federal biosolids program (40 C.F.R part 503). These eight states are 

Arizona, Michigan, Oklahoma, Oregon, South Dakota, Texas, Utah, and Wisconsin.
51

EPA also solicits comment on changing the deadline for submission of these Biosolids 

Annual Reports from Phase 2 (two years after the effective date of the final rule) to Phase 1 (one 

year after the effective date of the final rule). EPA notes that only eight states are authorized to 

run the Federal Biosolids Program (40 CFR part 503). This means that EPA implements the 

biosolids program and collects these annual reports for 42 states as well as tribes and territories. 

In addition, EPA Region 7 (Kansas City, KS) is the EPA National Biosolids Center of 

Excellence and this center is dedicated to creating efficiencies in the Federal Biosolids Program. 

EPA’s National Biosolids Center coordinates all assistance to states and NPDES regulated 

entities on the Federal Biosolids Program and collects and reviews Biosolids Annual Reports for 

all facilities in the 42 states, tribes, and territories where EPA implements the NPDES program 

for biosolids. This EPA office is capable of standardizing the Annual Biosolids Report for those 

42 states, tribes, and territories, and providing individual help for each of the eight authorized 

states in order to resolve any outstanding implementation issues (e.g., State Readiness Criteria) 

within the first year of implementation of the rule. EPA would like to realize the many benefits 

of electronic reporting for the Annual Biosolids Report as soon as possible and solicits comment 

on changing the deadline for submission of these Biosolids Annual Reports from Phase 2 to 

Phase 1.

IV. Matters for Which Comments Are Sought

The following sections identify specific issues on which EPA invites comment. Please 

note that there is no need to re-submit comments previously submitted to EPA’s docket for this 

rulemaking. You may find the following suggestions helpful when preparing your comments to 

EPA on the proposed rule and this notice:
52

 To ensure proper receipt by EPA, identify the appropriate docket identification number 

(found in the Addresses section of this Federal Register notice) in the subject line on the 

first page of your comments or response.

 To help ensure that your submission is routed correctly, on the first page of your 

submission, provide the name of the proposed rule; date of the Federal Register notice; 

and the Federal Register citation (e.g., ___ [volume number] FR ___ [page number]) 

related to your comments or response.

 Clearly identify those sections of the preamble or the proposed rule on which you are 

commenting.

 Explain why you agree or disagree, and explain your views as clearly as possible. 

 Describe clearly any assumptions that you used as a basis for your comments.

 Provide any technical information and/or data that you used to support your views.

 If you provide any estimate of potential economic burdens or costs, please carefully 

consider the information provided in the preamble to the proposed rule, particularly in 

Sections VII (Non-Monetary Benefits and Economic Analysis), VIII.A (Regulatory

Planning and Review), VIII.C (Regulatory Flexibility Act), and IV.D (Data 

Considerations), and provide detailed explanations of how you arrived at your estimate.

 Provide specific examples to illustrate your comments or concerns.

 Clearly identify your preferences and, if applicable, offer feasible alternatives that will 

effectively meet the same goals.
53

Submit your comments as directed in the Addresses section of this Federal Register

notice before the comment period deadline identified in the Dates section of this notice.

A. Implementation Plan

1. EPA solicits comment from the states on making the Initial Recipient determination in 

Section 127.27(a) an ‘opt-out’ process for an authorized state, tribe, or territory NPDES 

programs. Under this process, an authorized NPDES program would need to notify EPA 

within 120 days of the effective date of the final rule if it wishes EPA to be the Initial 

Recipient for a particular data group. If EPA receives no such notification, EPA would 

designate the state, tribe, or territorial NPDES program as the Initial Recipient.

2. EPA solicits comment on additional means for providing notice to NPDES regulated 

entities on the Initial Recipient status.

3. In order to provide a clearer distinction between the Initial Recipient and State Readiness 

Criteria terms, EPA solicits comment on eliminating the third factor in the State 

Readiness Criteria (i.e., Initial Recipient Status).

4. EPA solicits comment on different options for using a phased approach or longer interval 

before applying participation rate as part of the State Readiness Criteria. For example, 

EPA could require increasing participation rates over a longer implementation period 

(e.g., 30 percent participation rate for Year 1, 60 percent participation rate for Year 2, and 

90 percent participation rate for Year 3).

5. EPA solicits comment on the concept of using EPA’s authority to require NPDESregulated entities to electronically submit their NPDES program data to their authorized 

state, tribe, or territory as a “fill in the gaps” measure where the authorized NPDES 

program has a CROMERR-approved electronic tool. The proposed rule had NPDES-
54

regulated entities reporting these data to EPA. EPA would retain the ability to assess and 

pursue enforcement actions on NPDES-regulated entities that fail to comply with the data 

submission requirements.

6. EPA solicits comment on extending or adding additional phasing to the implementation 

period, linking implementation of electronic reporting to the NPDES permit cycle for 

entities with NPDES permits, or allowing states to extend their implementation of 

electronic reporting to a specific date following EPA approval of their individual 

implementation plan. These implementation plans would need to be signed off by the 

authorized NPDES Director (as defined in 40 CFR 122.2).

7. EPA solicits comment on the option to calculate for each NPDES program authority one 

DMR electronic submission participant rate for individually permitted facilities and 

another DMR electronic submission participant rate for general permit covered facilities.

8. EPA solicits comments on practical ways to streamline the implementation of the 

approval process for CROMERR within in the parameters of the existing CROMERR 

regulation.

9. EPA solicits comment on the option of EPA using its ICR to require facilities operating 

under backlogged permits to electronically submit their NPDES program data. 

B. Stormwater Sector

1. EPA solicits comment on its proposed approach to use a combination of drop-down lists 

and text fields in its electronic reporting systems to effectively characterize the activities 

of the MS4 facilities for electronic reporting of NOIs and program reports.

2. EPA solicits comment on providing flexibility in the final rule for the construction 

stormwater program that would allow authorized NPDES programs the possibility of 
55

using automatic identification and data capture technology (e.g., two dimensional 

barcodes, optical character recognition) instead of requiring construction site operators to 

secure and maintain electronic signature credentials for use with CROMERR compliant 

electronic reporting systems.

3. EPA also solicits comment on changes to stormwater data elements in Appendix A (see 

DCN 0108).

C. Concentrated Animal Feeding Operations (CAFO) Sector

1. EPA solicits comment on the approach of removing facility specific information from 

EPA’s ECHO webpage about non-permitted CAFOs that state inspectors found were not 

discharging and don’t require an NPDES permit. As discussed in this notice, EPA is 

proposing to mask facility specific information on these unpermitted CAFOs and only

show the total number of these masked facilities by state. EPA plans to enhance its data 

system (ICIS-NPDES) to provide states and Regions with the necessary capability to 

identify these non-permitted CAFOs that do not require an NPDES permit. In particular, 

after these enhancements States and Regions will need to enter or verify the following 

data into ICIS-NPDES for each non-permitted CAFO that does not require an NPDES 

permit: (1) an “Unpermitted ID” with no associated “NPDES Permit ID;” (2) a “CAFO 

Permit Component;” and (3) no CWA NPDES violations. If these three conditions are 

met EPA will remove facility specific information for these facilities from EPA’s ECHO 

webpage one year after the effective date of the final rule. EPA solicits comment on the 

timing of this proposed change.

2. As previously discussed in Section III.C, agricultural stakeholders focused their 

comments on the public availability of Appendix A data related to CAFOs. EPA 
56

emphasizes that this rule would not require any information to be disclosed that is not 

already available to EPA and the public pursuant to the Clean Water Act.

3. EPA is soliciting comment on a few changes to CAFO data elements in Appendix A to 

Part 127 (see DCN 0108). EPA believes that these edits, generated from comments by

states, make the revised Appendix A more clear and implementable (see DCN 0128 

through 0142).

D. Economic Analysis

1. EPA solicits comment on what NPDES program information technology upgrades might 

be necessary for regulatory authorities or NPDES-regulated entities. For example, EPA 

seeks information on the labor hours and capital equipment and/or software needed to 

upgrade or expand state batch system databases to store all Appendix A data. For labor 

hour estimates, please provide the labor category for the hours needed. Please also 

provide information on the number of Appendix A data elements for which the 

upgrade/expansion is needed (e.g., in the economic analysis, EPA estimates that batch 

states will need to add approximately 208 data elements received as hard copies to their 

state electronic database).

2. EPA solicits comment on the expected costs for CROMERR implementation as it 

specifically relates to the proposed NPDES Electronic Reporting Rule. For example, 

please provide estimates of burden (including labor category) and costs for using EPA’s 

electronic reporting systems.

3. EPA solicits comment on the expected costs for eNOI and eProgram Report training. For 

example, please provide the amount of training (in labor hours) that NPDES-regulated

entities and states would require in the use of electronic systems for NOIs and program 
57

reports, including the labor categories (e.g., managerial, technical, clerk, etc.). EPA will 

be training states that elect to use EPA’s electronic reporting systems on how to use these 

tools and how to train potential users. EPA will work with states on the training needs of 

potential users and conduct some training sessions at the request of the states. States will 

also be responsible for conducting regular training sessions for NPDES-regulated entities 

on how to use EPA’s electronic reporting systems.11

4. EPA solicits comment on costs related to computer and Internet access for NPDESregulated entities. For example, EPA solicits comment and information on the number or 

percent of NPDES-regulated entities that do not currently have readily available access to 

a computer and/or the Internet. Please also provide the estimated cost of a computer 

and/or Internet access and the labor hours and labor categories as well as any travel 

expenses related to offsite computer and Internet access (e.g., local public library). 

5. EPA solicits comment on costs related the use of existing electronic systems. For 

example, EPA asks authorized NPDES programs to provide information on the utilization 

of existing electronic systems in terms of the percent of major and minor permittees (by 

individual and general permit covered facilities) and other NPDES-regulated entities 

actively reporting to DMR, NOIs, and/or program report systems.

6. EPA solicits comments on the difference in labor hours associated with the current 

regulatory requirement for states to produce an annual noncompliance report (ANCR) 

versus the labor hours that would be associated with a state’s review of non-major 

 

11 See the economic analysis for the proposed rule for more information on these training sessions (EPA-HQOECA-2009-0274-0135).
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noncompliance information in the proposed quarterly NPDES noncompliance report 

(NNCR) generated by EPA.

E. Waivers

1. EPA solicits comment on whether waivers from NPDES electronic reporting should be 

automatic for counties where only a small fraction of the population (e.g., less than 10

percent) has sufficient broadband availability.

2. EPA solicits comment on the appropriate effective timeframe for these “automatic” 

waivers. Should there be a review period for these “automatic” waivers? 

3. EPA solicits comment on whether temporary waivers should extend for the life of the 

NPDES permit or another timeframe.

4. EPA solicits comment on whether EPA should allow authorized NPDES programs to 

grant a temporary waiver based on the NPDES-regulated entity’s lack of technical 

expertise and what criteria, if any, the authorized program should use in making these 

decisions.

5. EPA solicits comment on whether it should make available in the final rule permanent 

waivers for NPDES-regulated entities located in religious communities where electronic 

reporting would not be consistent with the community’s religious beliefs (e.g., Amish, 

Mennonite, and Hutterite).

F. Miscellaneous Issues

1. EPA is soliciting comment on how to improve public accessibility and usability of the 

data. EPA notes that this proposed rule does not change the Agency’s public disclosure 

regulations (40 CFR 2).
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2. EPA reviewed the minimum set of federal NPDES data (Appendix A to 40 CFR part 

127) and is seeking comment on potential changes to some of these data elements (see 

DCN 0108).

3. EPA solicits comment on the practicality of using the DMR form to collect data for the 

Biosolids Annual Report. EPA also solicits comment on allowing POTWs to use state 

eDMR systems to submit their Biosolids Annual Report when the state is not authorized 

for the biosolids program. 

4. EPA also solicits comment on changing the deadline for submission of these Biosolids 

Annual Reports from Phase 2 (two years after the effective date of the final rule) to Phase 

1 (one year after the effective date of the final rule). 

5.

V. Outreach

Section VI of the proposed rule details EPA extensive outreach efforts prior to the 

proposed rule. EPA continued this outreach during the public comment period on the proposed 

rule (DCN 0111). In particular, EPA held over 30 webinars and meetings with over 1,200 people 

to discuss the proposed rule.

Upon publication of this notice, EPA will provide a new comment period and will 

conduct additional stakeholders meetings to further discuss and refine particular aspects of the 

rule prior to promulgation. Outreach to stakeholders will continue to be supported through the 

NPDES Electronic Reporting Rule website; however, the website may be expanded to include 

more robust rule schedules as the rule nears promulgation, as well as additional rule 

documentation that may or may not be included as part of the formal docket library. Stakeholders 
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that wish to hold a meeting with EPA should send an email to Messrs. Hudock or Johnston (see 

FOR FURTHER INFORMATION CONTACT section).

Finally, EPA would also continue to provide technical assistance and support to states, 

tribes, and territories during the transition to electronic reporting. Outreach from EPA to the 

states, tribes, and territories may be very useful in the identification of specific needs and the 

development of such assistance, support, and funding. EPA also solicits comment and 

suggestions on how to reach and inform the broad range of facilities affected by this proposed 

rulemaking.

VI. Executive Orders 12866 and 13563

Under Executive Order (EO) 12866 [58 FR 51735 (October 4, 1993)] this action is a 

‘‘significant regulatory action.’’ Accordingly, EPA submitted this action to the Office of 

Management and Budget (OMB) for review under Executive Orders 12866 and 13563 and any

changes made in response to OMB recommendations have been documented in the docket for 

this action.

List of Subjects in 40 CFR parts 122, 123, 127, 403, 501, and 503

________________________

Dated: [Insert Date]

_____________________________

Cynthia Giles, Assistant Administrator

Office of Enforcement and Compliance Assurance