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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: 1 4 February 2014 SUBJECT: Notes from State Technical Workgroup Meeting ( 13 February 2014) [DCN 01 30]
**Overview** This was the third meeting for the EPA- state technical workgroup , which is discuss ing key issues related to the proposed NPDES Electronic Reporting Rule (eRule) . These discussions will help inform the upcoming planned supplemental Federa l Register notice and will continue beyond the supplemental notice to help EPA address state comments. EPA participants will include the OECA eRule Team as well as representatives from EPA’s Office of Water and Office of Environmental Information. Technical workgroup members are listed below in Table s 1 and 2. The agenda for this meeting is also provided below. EPA is summariz ing the notes from these discussions for the docket in order to provide transparency on EPA’s outreach during the rulemaking process . The OECA eRule team will also be available for any other stakehold er group that would like to discuss the eRule. **Meeting Notes** EPA started the meeting with a roll call and solicited comments on the draft notes from t he previous meeting. New Jersey and Washington state each made one comment that were incorporated into t he draft meeting notes. Mr. Carey Johnston then led the technical workgroup in a discussion on the State Readiness Criteria .
 Oklahoma suggested that EPA consider a lower participation rate trigger at the beginning of the eRule implementation and then increasing the required participation rate over time . They also suggested that EPA provide additional flexibility regarding the state collection and sharing of Appendix A data. These suggestions were also supported by the other states.

 Colorado ( Andy Putn am ) stated that the current proposed schedule is too aggressive and suffers from two problems. He stated that the first problem is insufficient amount of time in the proposed schedule for authorized state NPDES programs to update their2

state policies and regulation along with the development of their own electronic reporting tools . Mr. Putnam then noted the challenge of educating, training, and changing the behavior of NPDES regulated entities within the proposed rule’s implementation schedule. Mr. Putnam n oted that Colorado has an eDMR system but that the participation is approximately 9 percent. He noted that it will likely be extremely difficult to get this participation rate to 90 percent within one year of the effective date of the final rule.

 New York echoed the concerns from Mr. Putnam and made a specific comment on the challenge states face in getting their electronic reporting tools CROMERR approval. He noted that EPA has not process ed state CROMERR applications in a timely manner.

 A state commenter asked for the basis for setting the participation rate threshold at 90 percent. Mr. Dombrowski replied that this was the level at which states should see an adequate return on their investment. He noted that any participation rate lower than 90 p ercent likely means that the state will need to operate two systems (one to handle paper submissions and another for electronic submissions) and consequently won’t see any savings or efficiencies.

 Several state participants noted that EPA should include i n the implementation costs the enforcement effort s that states will need to expend to require electronic reporting. These states suggested that some enforcement actions will be necessary even though states have updated their policies, regulations, and perm its with respect to electronic reporting.

 Washington state ( Nancy Kmet ) noted their support for the idea that any electronic reporting that is mandated by EPA’s Information Collection Request (ICR), which accompanies the eRule, should go to the authorized state and not EPA. Ms. Kmet noted several benefits with this option su ch as the elimination of data inconsistencies that might arise from dual submissions going to two different recipients.

 Ms. Kmet also noted the problem in getting compliance with some sectors. She noted that there are 2,000 construction operators regulat ed by their construction stormwater general permit. She estimates that only two
-thirds of these NPDES regulated entities submit DMRs as required by the permit. Ms. Kmet offered this example to note how difficult it will be to get the electronic reporting p articipation rate above 90 percent.

 New York (Bob Wither ) suggested that EPA consider mak ing an electronic reporting participation rate calculation for individually permitted facilities and another electronic reporting participation rate calculation for g eneral permit covered facilities. He noted that this was especially important for regulated entities in the NPDES stormwater sector as states have historically had difficulty in getting full participation and consistent reporting even when reporting can be done on paper forms. Mr. Wither noted that3

most individually permitted facilities are familiar with the NPDES program and generally comply with NPDES reporting requirements.

 Florida noted the difficulty in mak ing the electronic reporting participation ra te calculation for General Permit Reports [e.g., Notices of Intent (NOIs)]. For example, she noted that during the recent real estate boom in Florida the state annually issued approximately 7,000 NOIs under their construction stormwater permits. More recen tly due to the downturn in the economy they are annually issuing approximately 3,000 NOIs. Mr. Johnston agreed with Florida and also noted that this NPDES data group (i.e., General Permit Reports) differs from the other data groups in that facilities submi tting General Permit Reports [i.e., NOIs, Notices of Termination), Low Erosivity Waivers (for construction stormwater), and No Exposures Certifications (for industrial stormwater)] may not be submitting these reports on a regular schedule.

 Oklahoma and New York also suggested that EPA extend the implementation schedule and application of the State Readiness Criteria for some sectors (e.g., construction stormwater). Mr. Carey Johnston then led the technical workgroup in a discussion on the schedule for i mplementation of the eRule .
 Oklahoma suggested that EPA needs to stretch out the implementation schedule for the eRule. They noted offered the following suggestion: o Phase 1 – two year deadline (DMRs, Federal General Permit Reports) o Phase 2 – three year deadline (some State NOIs, some Program Reports) o Phase 3 – four or five year deadline (remaining data flows that require more time)

 New Jersey noted that they would like more time to comply with the transfer of basic facility, permit, compliance, and enforcement data to EPA (i.e., NPDES Data Group No. 1 in Table 1 in Appendix A to Part 127)
. Under the proposed rule states have nine months after the effective date of the rule to transfer these data to EPA [see Part 127.26(c)]. Mr. Johnston noted that sh aring these data is necessary as EPA’s NPDES data system, ICIS
NPDES, cannot accept other NPDES program data (e.g., DMRs) without these data. Mr. Johnston noted that EPA would likely extend the date when basic facility, permit, compliance, and enforcement data need to be shared with EPA if Phase 1 was exten d ed .
 Arkansas suggested that the technical workgroup focus on the business need for the data elements listed in Appendix A. Mr. Johnston agreed that it would be helpful to focus on the data elements in Appendix A in future technical workgroup meetings . He noted that thi s discussion will likely last over multiple meetings and will likely need program experts from states and EPA to review the data elements.4

 Texas ( Kim Wilson ) suggested that the eRule implementation use the NPDES permit cycle. Ms. Wilson noted that this al ternative implementation schedule would allow states to stagger out development of the electronic reporting tools as well as the accompanying outreach and training to NPDES regulated entities. Ms. Wilson noted that EPA and states must not underestimate the amount of outreach and training as this many require even more resources that the necessary IT upgrade and enhancements for electronic reporting. She also noted that outreach and training to NPDES regulated entities will be ongoing even after the initial implementation of the eRule.

 New Jersey (Jason Lonardo ) supported the development of individual plans as states have different capabilities with respect to implementing electronic reporting. Mr. Lonardo suggested that EPA allow states to negotiate these i ndividualized electronic reporting plans as part of the existing Performance Partnership Agreements process. 1 Washington state, Florida, and Colorado also agreed with this suggestion. **Next Steps** EPA agreed to summarize the meeting notes as well as summarize and compile a few example s of public comments on a topic schedule for discussion . EPA will share these materials with the technical workgroup in advance of the next weekly meeting . The next meeting will focus on EPA’s economic analysis for the proposed rule, comments on the CAFO sector, and comments on the stormwater sector (i.e., facilities that manage industrial and construction stormwater and MS4s)
.

1 See http://www.epa.gov/ocir/nepps/pp_agreements.htm
.5 **State Technical Workgroup Meeting –**  **NPDES Electronic Reporting Rule 13**  **February 2014** 
1pm Introduction/Roll Call 1:05 Review of Draft Notes from Previous Meeting 1:15 Discussion on State Readiness Criteria 1:45 Discussion on Implementation Schedule 2:15 Solicitation of Topics for Next Meeting 2:30 End of Call

**Quick Reminder**

 The technical workgroup is not a formal decision
- making body. The workgroup is expected to develop, research, and evaluate options for consideration by EPA and state senior management.

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

 There will be no formal voting or consensus of the workgroup. Instead, the workgroup is expected to try to develop recommendations reflecting their various perspectives, not achieve consensus.

 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. The discussions summaries will outline the major elements of the discussions, areas of agreement and any dissenting views.6

**Table 1:** State Technical Workgroup Members **Main Contact State or** 

**Organization Main Contact**  **Email State/Org.**  **Present? (Yes/No)**  Sean Rolland ACWA srolland@acwa
- us.org Yes Christy Monk AL cvm@adem.state.al.us Yes Teresa Marks AR marks@adeq.state.ar.us Yes Andy Putnam CO andrew.putnam@state.co.us goff@adeq.state.ar.us Yes Elisa Willard CO elisa.willard@state.co.us Yes Bob Zimmerman DE robert.zimmerman@state.de.us stephanie.bower@state.de.us Yes Beth Graves ECOS bgraves@ecos.org Yes Lee Garrigan ECOS lgarrigan@ecos.org Yes Chris Klena FL chris.m.klena@dep.state.fl.us Yes Tom Easterly IN teasterl@idem.in.gov ckoontz@idem.in.gov N o John Murphy NEIWPCC jmurphy@neiwpcc.org Yes Jason Lonardo NJ jason.lonardo@dep.state.nj.us Yes Robert Wither NY rewither@gw.dec.state.ny.us Yes Shellie Chard
- McClary OK shellie.chard
- mcclary@deq.ok.gov Yes Roy Walker OK roy.walker@deq.ok.gov N o Sean Furjanic PA sefurjanic@pa.gov Yes Kim Wilson TX kim.wilson@tceq.texas.gov Yes Jerome Brooks VA jerome.brooks@deq.virginia.gov N o Nancy Kmet WA nkme461@ecy.wa.gov Yes **Tab le 2**  **:** EPA Technical Workgroup Members

**Name EPA Office**  **Email Present?**  **(Yes/No)** Steve Chester OECA/IO chester.steven@epa.gov Yes Lisa Lund OECA/OC/IO lund.lisa@epa.gov No John Dombrowski OECA/OC/ETDD dombrowski.john@epa.gov Yes Andy Hudock OECA/OC/ETDD hudock.andrew@epa.gov Yes Rochele Kadish OECA/OC/ETDD kadish.rochele@epa.gov Yes Carey Johnston OECA/OC/ETDD johnston.carey@epa.gov Yes Jackie Clark OW/OWM/WPD clark.jackie@epa.gov Yes Roy Chaudet OEI/OIC/IESD chaudet.roy@epa.gov No Chuck Freeman OEI/OIC/IESD freeman.charles@epa.gov No Aditi Prabhu OGC/WLO prabhu.aditi@epa.gov No Glynis Hill OP/ORPM/PRAD hill.glynis@epa.gov Yes