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### MEMORA**NDUM** TO: Public Record for the NPDES Electronic Reporting Rule

EPA Docket Number EPA

- HQ

- OECA

- 2009

-0274 (www.regulations.gov) FROM: Carey A. Johnston, P.E.

USEPA/OECA/OC ph: (202) 566 1014 johnston.carey@epa.gov DATE: 14 September 2015 SUBJECT: Notes from Technical Meeting with States ( 27 May 2 01 5 ) [ DCN 02 2 9 ]

**Overview** This was the twenty-sevent h meeting between EPA and individual representatives from authorized NPDES programs. These meetings provided greater clarity regarding public comments on the NPDES Electronic Reporting Rule (eRule). Participants are listed below in Tables 1 and 2. EPA is summarizing the notes from these discussions for the docket in order to provide transparency on EPA’s outreach during the rulemaking process (see Table 3). EPA also met with other stakeholders to discuss public comments. **Meeting Notes** EPA (Mr. Carey Johnston) started the meeting by reminding state participants that in addition to raising quest ions during these meetings, states can email their questions on the proposed rule (including the data elements) to EPA. Questions on all aspects of the proposed rule can be sent to Mr. Johnston. Mr. Johnston also reminded everyone that this outreach does n ot constitute a decision

- making body (see “Quick Reminder” section below). Mr. Johnston started the technical discussion by review ing some state comments on the rulemaking on EPA’s options for the final rule

. The following is a summary of the discussion. 1. **Initial Recipient:** Will this process be Opt

- in or Opt

-out? Will states have to affirmatively take action to sign up as the initial recipient for a data set? As published in the supplemental notice to the proposed rule, EPA is considering an ‘opt

-out’ p rocess for authorized state, tribe, or territory NPDES programs. Under this process, an authorized NPDES program must 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 NPDES data group. If EPA receives no such notification, EPA will designate the authorized state, tribe, or territorial NPDES program as the Initial Recipient for all NPDES data groups.2

**2. State Readiness Criteria:** 

a. Will EPA phase in the participation rate requirements (e.g. Year 1 = 20%, Year 2 = 40%, Year 3 = 60%, Year 4 = 80%, Year 5 = 90%)? Is 90% still the target goal? EPA solicited comment on the 90 percent participation rate metric that EPA used to develop its implementation plan. Commenters noted difficulties in outreach and training for the large number of NPDES

- regulated entities that will need to switch from paper to electronic reporting. As published in the supplemental notice to the proposed rule, EPA is considering providing more time for autho rized NPDES programs to switch their processing of Phase 2 NPDES program data (e.g., general permit reports, program reports) from paper to electronic. This additional implementation time can help authorized NPDES programs build or adopt electronic reporti ng tools for Phase 2 data as well as register and train NPDES regulated entities. EPA is still considering the proposed one

-year schedule for the DMR data flow since many authorized NPDES programs and NPDES permittees are already e

reporting DMRs, many usi ng NetDMR and eDMR tools. EPA is also considering the retention of the 90 percent participation rate goal as this single simple measure will be an effective tool to prompt NPDES regulated entities and authorized NPDES programs to switch from paper to elect ronic reporting within a reasonable time period. EPA is considering whether to only includ e the 90 percent figure in the preamble to the final and the accompanying Information Collection Request (ICR) as a goal to promote electronic reporting and as a rea sonable estimate of the number of entities that EPA may directly contact. If this goal is included in the preamble, EPA will work with states if there is a significant delay in the adoption of electronic reporting and re-assess the 90 percent participant rate goal as necessary. Finally, EPA anticipates that the use of its CWA authority to compel electronic reporting will likely not be a widespread occurrence as electronic reporting, over the long term, reduces burden for the reporter. EPA estimates that an y use of its CWA authority to compel electronic reporting will taper off over time as more NPDES

regulated entities utilize electronic reporting and as we learn more about electronic reporting. It is also important to note that many facilities have already made the switch to electronic reporting (e.g., most DMR filers in Ohio are using Ohio’s e

- DMR tool). b. If EPA uses their authority to require electronic submission, will EPA require the data to come to the state vs EPA? EPA is proposing to phase in the el ectronic reporting requirements of this final rule over several years. In accordance with the proposed schedule, and as a means to “fill3 in the gaps” where NPDES

- regulated entities are not yet reporting electronically, EPA is proposing to use its authority as appropriate under CWA sections 101, 304(i), 308, 402(b), and 501 to require NPDES

- regulated entities to electronically report their NPDES program data (Appendix A to 40 CFR 127). EPA initially proposed to have these data come directly to EPA. Authorize d NPDES programs suggested that instead EPA should require NPDES regulated entities to use state, tribe, or territorial electronic reporting systems, which are in compliance with the final rule, as this would be more efficient. As published in the suppleme ntal notice, EPA is considering the adopti on of this approach

.
c. States may choose to manually enter data
– will those facilities be vulnerable to 3rd party lawsuits based on the rules requirements? EPA does not see the potential for NPDES regulated entiti es to be subject to 3 rd party lawsuits when these entities are properly submitting their NPDES data in accordance with a state approved waiver. EPA is considering whether to provid e authorized NPDES programs with more flexibility in how they may grant waivers. This can help authorized NPDES programs better implement electronic reporting. 3. **Data Correction**

- Is EPA clearly articulating in the rule the roles and responsibility for addressing data discrepancies? EPA is considering how best to eliminate the potential for data discrepancies . In particular, EPA is considering whether it should require NPDES regulated entities to use state, tribe, or territorial electronic reporting systems, which are in compliance with the final rule, as this would be more efficient

. EPA also confirm that the proposed rule does not change the current requirements or definition for the ‘Copy of Record.’ Furthermore, EPA confirmed that the permitting authority remains the data steward for the i nformation collected under the p roposed rule

. Under current practice, authorized NPDES programs can make corrections to the data it has already submitted to EPA at any time. This proposed rule does not change EPA’s error correction process. 4. **Unpermitted Facilities**

- Is EPA planning to require electronic data submission for unpermitted facilities? This proposed rule does not change the existing requirements for NPDES programs to report information on certain unpermitted facilities to EPA. Under the 2014 Clean Wate r Act National Pollutant Discharge Elimination System Compliance Monitoring Strategy authorized NPDES programs can propose an alternative Compliance Monitoring Strategy (CMS) plan, which could include the state’s plan to conduct “focused inspections” or “off

-site desk audits” instead of “comprehensive inspections” for certain facilities. As a condition for EPA approval of the alternative CMS plan, the state must commit to share the compliance monitoring data for the focused inspections and/or off

-site desk audits with EPA. For more details, see Part 1 of the 2014 NPDES CMS. Additionally, EPA policy4

calls for authorized NPDES programs to share compliance monitoring data with EPA on unpermitted facilities found to be in violation of the Clean Water Act (e.g., discharging without an NPDES permit). 5. **Construction Stormwater**

- Did EPA agree that the construction stormwater universe should be optional unless an enforcement inspection/action has occurred? As an alternative to use of a CROMERR electronic reporting system one commenter suggested that EPA modify the final rule to allow initial recipient the option to use automatic identification and data capture technology [e.g., two dimensional barcodes such as Quick Response (QR) codes, optical character recognitio n]. In particular, in discussions with EPA, authorized NPDES programs have noted their difficulty in getting construction operators to apply for and maintain electronic signatures for use with CROMERR electronic reporting systems for stormwater related dis charges. Authorized NPDES programs suggested that EPA provide some flexibility in the final rule that would allow construction operators the ability to electronically submit data from construction stormwater general permit reports but without an electronic signature. EPA solicited comment on this approach in the supplemental notice to the proposed rule. Several comments expressed support for EPA to include this option in the final rule as a means to provide authorized NPDES programs with more options in imp lementing the final rule. EPA is considering the option for the initial recipient, which may also be the authorized NPDES program, to use automatic identification and data capture technology for construction stormwater general permit reports (i.e., NOIs, N OTs, NECs, LEWs). EPA is also considering the option to only required to share with EPA SEV data from a construction stormwater inspection when the authorized NPDES program also issues a formal enforcement action against the inspected construction site. As noted in the proposal, EPA made this distinction based on the large number of facilities in this segment of the NPDES universe (approximately new 200,000 construction sites each year)

. 6. **Implementation Schedule**

- If EPA is not allowing state

-specific impl ementation plans, how much flexibility will each state be provided to customize their implementation approach? How much total time is EPA going to give states? As noted above, EPA is considering the retention of the proposed one

-year schedule for the DMR data flow since many authorized NPDES programs and NPDES permittees are already e

- reporting DMRs, many using NetDMR and eDMR tools. EPA is considering the option to allow a uthorized NPDES programs to have five years to begin electronically collecting, mana ging, and sharing the remaining set of data in Appendix A in 40 CFR 127. This data include: (1) general permit reports [Notice of Intent to be covered (NOI); Notice of Termination (NOT); No Exposure Certification (NEC); Low Erosivity Waiver (LEW)]; Biosoli ds Annual Program Report (where the state is the authorized NPDES biosolids program); and all other remaining NPDES program reports (e.g., CAFO Annual5

Report, Pretreatment Program Annual Report). EPA is considering the option where states will be required to submit to EPA and implementation plan within one year after the effective date of the rule with key milestones describing how they will implement the Phase 2 data collection

. 7. **Waivers**

- What is the complete list of waiver justifications or did EPA dec ide to allow states to set the criteria? As noted in the supplemental notice
– EPA is considering whether to provide authorized NPDES programs with more flexibility in how they may grant waivers. EPA is considering whether the waiver provision should onl y have the following two requirements: (1) temporary waivers cannot exceed five years; and (2) authorized NPDES programs must seek EPA review and approval on how they plan to implement waivers every five years. EPA is considering to require states to inclu de their waiver process in the implementation plan they submit to EPA. This could allow EPA and authorized NPDES programs to assess the effectiveness of the waiver process against advances in information technology. 8. **Resources**

- During the implementation period, will OECA actively pursue §106 funding increases to support the NPDES eReporting Rule implementation? This is not addressed by the rulemaking. However, OECA continue s to advocate for §106 funding increases and other funding mechanisms to support t he NPDES eReporting Rule implementation. 9. Will the final rule or associated materials articulate all of the other areas where states can receive support to implement the rule? (relate grant programs, use of NeT, use of the CROMERR Shared Services, new dedicated EPA resources to support the transit ion, updated electronic permit application forms, etc.) Yes. EPA is currently developing a suite of tools and resources to help states implement electronic reporting. These tools and resources will be made available through a new website, online traini ng, printed materials, webinar training, individual training, and dedicated staff.6

**Quick Reminder**

 The technical workgroup is not a decision

- making body. Members of the workgroup provide clarity on their comments and suggest options for consideration by EPA and state senior management.

 There are no formal quorum rules for the workgroup. Scheduled teleconferences will proceed with whichever workgroup members call in to participate.

 There will be no voting or consensus of the workgroup. Instead, members of the workgroup are providing individual input reflecting their various perspectives.

 Summaries of the workgroup’s discussions will be prepared for and reviewed by the workgroup, for presentation to EPA senior management and other states and the rulemaking record

.7

**Table 1:** State Technical Workgroup Members
– 27 May 2015

**Main Contact State or** 

**Organization Main Contact**  **Email State/Org.**  **Present? (Yes/No)**  Sean Rolland ACWA srolland@acwa

- us.org Yes Karen Lechner AK karen.lechner@alaska.gov Yes Christy Monk AL cvm@adem.state.al.us Yes Eric Cleckler ecleckler@adem.state.al.us Glenda Dean gld@adem.state.al.us Teresa Marks

AR marks@adeq.state.ar.us

No Pat Goff goff@adeq.state.ar.us Mo Shafii shafii@adeq.state.ar.us Karen Bassett bassett@adeq.state.ar.us David Ramsey ramsey@adeq.state.ar.us Ellen Carpenter carpenter@adeq.state.ar.us Wendy LeStarge AZ lestarge.wendy@azdeq.gov No Robin Belley belley.robin@azdeq.gov David Lelsz lelsz.david@azdeq.gov; Darren Polhemus CA dpolhemus@waterboards.ca.gov No Renee Purdy renee.purdy@waterboards.ca.gov Deborah Smith dsmith@waterboards.ca.gov Vicky Whitney vwhitney@waterboards.ca.gov Andy Putnam CO andrew.putnam@state.co.us goff@adeq.state.ar.us No Elisa Willard elisa.willard@state.co.us Bob Zimmerman DE robert.zimmerman@state.de.us stephanie.bower@state.de.us Yes Tom Tyler ECOS ttyler@ecos.org No Chris Klena FL chris.m.klena@dep.state.fl.us Yes Jessica Kleinfelter jessica.kleinfelter@dep.state.fl.us Edward Smith edward.c.smith@dep.state.fl.us Frances Carpenter GA frances.carpenter@dnr.state.ga.us No Scott Miyashiro HI scott.miyashiro@doh.hawaii.gov No Tom Easterly IN teasterl@idem.in.gov ckoontz@idem.in.gov Yes Jeremy Chenevert jcheneve@idem.in.gov Mark Stanifer mstanife@idem.in.gov Courtney Cswercko IA courtney.cswercko@dnr.iowa.gov No Ed Dillingham KS edillingham@kdheks.gov No Steve Caspers scaspers@kdheks.gov Shelly Shores

- Miller sshoresm@kdheks.gov8

**Main Contact State or** 

**Organization Main Contact**  **Email State/Org.**  **Present? (Yes/No)**  Shawn Hokanson KY shawn.hokanson@ky.gov No Grace Scott MI scottg@michigan.gov Yes Carla Davidson davidsonc@michigan.gov Ruth Wallace MO ruth.wallace@dnr.mo.gov Yes Walter Fett walter.fett@dnr.mo.gov Christopher Miller epermitting@dnr.mo.gov Tamara Dahl MN tamara.dahl@state.mn.us No Paul Scheirer paul.scheirer@state.mn.us John Murphy NEIWPCC jmurphy@neiwpcc.org No Deborah Gore NC deborah.gore@ncdenr.gov No Bradley Bennett bradley.bennett@ncdenr.gov Jason Lonardo NJ jason.lonardo@dep.state.nj.us Yes Julio Collazo julio.collazo@dep.state.nj.us Robert Wither NY rewither@gw.dec.state.ny.us No Joseph DiMura jxdimura@gw.dec.state.ny.us Alan Tinney Dave Gaskin NV atinney@ndep.nv.gov No dgaskin@ndep.nv.gov Brian Hall OH brian.hall@epa.ohio.gov No Erin Sherer erin.sherer@epa.ohio.gov Shellie Chard

- McClary OK shellie.chard

- mcclary@deq.ok.gov Yes Roy Walker roy.walker@deq.ok.gov David Pruitt david.pruitt@deq.ok.gov Jim Billings OR billings.jim@deq.state.or.us Yes Sean Furjanic PA sefurjanic@pa.gov No Kent Woodmansey SD kent.woodmansey@state.sd.us No Tim Flor tim.flor@state.sd.us Albert Spangler albert.spangler@state.sd.us Lawrence Bunting TN lawrence.bunting@tn.gov Yes Yatasha Moore yatasha.moore@tn.gov Kim Wilson TX kim.wilson@tceq.texas.gov No Rebecca Villalba rebecca.villalba@tceq.texas.gov Lynley Doyen lynley.doyen@tceq.texas.gov Kimberly Shepard kimberly.shepard@tceq.texas.gov Jeff Studenka UT jstudenka@utah.gov No Jerome Brooks VA jerome.brooks@deq.virginia.gov No Deborah Debiasi deborah.debiasi@deq.virginia.gov Phani Eturu phani.eturu@deq.virginia.gov Stephen Bernath WA sber461@ecy.wa.gov No Dave Knight dakn461@ecy.wa.gov Nancy Kmet nkme461@ecy.wa.gov9

A state representative from West Virginia also participated in this meeting. **Table 2**  **:** EPA Technical Workgroup Members

**Name EPA Office**  **Email Present?**  **(Yes/No)** John Dombrowski OECA/OC/ETDD dombrowski.john@epa.gov Yes Andy Hudock OECA/OC/ETDD hudock.andrew@epa.gov Yes Lisa Lund OECA/OC/ETDD lund.lisa@epa.gov Yes Carey Johnston OECA/OC/ETDD johnston.carey@epa.gov Yes Jackie Clark OW/OWM/WPD clark.jackie@epa.gov Yes Aditi Prabhu OGC/WLO prabhu.aditi@epa.gov No David Apanian Region 4 apanian.david@epa.gov Yes Sandra Chew Region 9 chew.sandra@epa.gov No Glynis Hill OP/ORPM/PRAD hill.glynis@epa.gov No
Other EPA representatives included Region 1, 3, 5, 6, 8, and 10. **Table 3:** State Technical Workgroup Discussions to Discuss Public Comments
**DCN Date**  **Topic Data Source**  DCN 0219 02/05/2015 Basic Facility and Permit Data Ind. Permit Applications/NOIs DCN 0220 02/12/2015 Basic Violation and Enforcement Action Data States & Ind. Permit Applications/NOIs DCN 0221 02/26/2015 Municipal Separate Storm Sewer System (MS4) Information Ind. Permit Applications/NOIs & MS4 Program Report DCN 0222 03/05/2015 Construction and Industrial Stormwater Information Ind. Permit Applications/NOIs DCN 0223 03/12/2015 CSO & Collection System Information & Sewer Overflow Data Ind. Permit Applications/NOIs & Sewer Overflow Event Reports
DCN 0224 03/19/2015 Pretreatment Data Ind. Permit Applications/NOIs & Annual POTW Pretreatment Program Reports, CIU/SIU Reports When EPA or State is Control Authority DCN 0225 03/26/2015 Cooling Water and Thermal Variance Data Ind. Permit Applications/NOIs DCN 0226 04/02/2015 Biosolids Data States & Ind. Permit Applications/NOIs & Annual Biosolids Reports DCN 0227 04/09/2015 CAFO Data Ind. Permit Applications/NOIs & Annual Biosolids Reports DCN 0228 05/13/2015 Review of Appendix A All NPDES program data DCN 0229 05/27/2015 Review of State Representative Questions to EPA All NPDES program data