A ss ocia t io n o f State an d I n t e r s tate \Vate r P o llu t io n C o n tr o l Admin istra to r s 1221 COSSECIICU r AVI. NUl '\ \\ :·"' H 001\. • \\'ASIII,Cil 0\'. DC 2U!t1t• • I T I.· lol2.75£>.<lti0Ct • F:\X· 2ul.75tHJM.S • WWW
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Granta Nakayama Assistant Administrato r fo r OECA USEPA Headquarters Ariel Rios Building 1200 Pennsylvania Ave nue , N. W

. Mail Code: 2201A Washington , DC 204 60 November 15, 2007



### RE: OECA Respons e o f September 12 , 2007 to State Concerns Regarding Three Draft Enforcement Policie s Dear Mr. Nakaya ma , On behalf of the Asso ciation of State and Interstate Water Pollution Control Administrators (ASIWPCA) I would li ke to thank you for being responsive and understandi n g many of the State and Interstate concerns related to the three draft enforcement policies; the Wet Weather SNC Poli c

y, th e NPDES Compliance Monitoring Str a te gy , and the ICIS-NPDES Policy Statement

. We are requesting further cl a rifi cation from your office regarding the des i re to pursue a ru le maki ng approach for Rl DE as set forth i n your September 12 , 2007 letter to ECOS

. RIDE RULE States 

### & I nterstates a re very interested in USEPA's desire to " pursue a rule making approach that will id entify a full set of RIDE that implementing agencies of the NPDES program will be re q u ired to provide to the nat i onal program " as part of the ICIS-NPDES Policy Statement dev e lop m en t. We ag ree th at the re are many benefits to taking a more comprehensive an d forma l approach to d eve l op i ng th i s list of national program data elements

. Howeve r . we have severa l conce rns if USEPA' s inte nt is to actually pursue proposal of a RIDE rule. USEPA's pursuit of the rule making approach would ensure participation from a broader more diverse set of stakeho ld ers. Further, th e economic impact analyses will be more comprehensive than th e analyses done previously and will be vetted through the Office of Management and Bu dge t. A rule-making approach would also a ll ow the Agency to spend further time with th e AS IWPCA (draft) RIDE Data Collect ion suNey results , which we believe greatly informs thi s d i scussion regard in g in fo rmatio n States are already collecting

. It is also possible that furth e r work by the I n tegrated Project Team over the next few months will identify sol utions for the conce rns States have voiced regarding data exchange. A rule th at wo uld " require " State consistency for data sharing with the national system may appear to so me to be an important be nefit of proposing a RIDE rule

.

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. ASIWPCA OR (iHowever, while transpa re ncy and broader stakeholder participation is generally a good thing, the diversity of th e stakeholders along with the normal comment and review period timeframes could add months to the process . States would also be concerned that communication is often constrained during rul e development by the formality of the process. There are few areas of the Clean Wate r Act where co-regulator collaboration is more necessary than NPDES program areas ; difficulties in communication as the RIDE list is finalized would be d etrimental to the final product. If RIDE is promulgated into rule , subsequent revision s to the RIDE ru l e will require formal rule making processes thus undermining the fl ex i bili ty and opportunity to make the mid - course corrections originally intended. Probably the greatest concern for States relates to the third party lawsuits and petitions for withdrawal. By pro posing and adopting a RIDE rule , authorized States are left in a precarious position as thei r data co l lection , data entry , data management , and data exchange with the nati onal system will inevitably become targets of organizations seeking to attack the credib ility of State programs . The unintended co nsequence of this rule could be more lawsuits , more peti t io ns for w ithd rawal , more money sp e nt on litigation , and more State programs at risk

. We are requ esting th at greater clarity be provided to States regarding the intent of the Rl DE rule making approach. Further, we are hopeful that the Agency will continue to work with ASIWPCA and ECOS to consider and quantify the total resource implications needed for States to collect , analyze , and report the RIDE elements. This important aspect of rule making was not addressed in the Sep tembe r 12 , 2007 letter

. We thank you for your time and look forward to fu rth e r com munication on th ese issues

. Sincerely ,



# ~:!h **~h~/** Harry T

. Stewart President CC : Marcus Pea cock , peacock .ma rcus @epa.gov Ben Grumb les , grumbles. benjam i n @epa.gov Lynn Buhl ; buhl.lynn@epa.gov Jim Hanlon , H an l o n.Jim@epamai l. epa.gov Lisa Lund , Lun d. Li sa@ epamail.epa.gov David H indin, H i ndin.David@epamail.epa

.gov Betsy Smiding e r, Smid inger.Betsy @epama il.epa.gov Kate Anderson , Anderson. Kate @epamai l. epa.gov Steve Brown , ECOS, sbrown@sso.org ASIWPCA M emb e rs h ip

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