[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Proposed Rules]
[Pages 71066-71081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27918]



[[Page 71066]]

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ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-HQ-OECA-2009-0274; FRL-9908-58-OECA]
RIN 2020-AA47


NPDES Electronic Reporting Rule

AGENCY: Environmental Protection Agency.

ACTION: Request for further comment.

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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 nationally-
consistent 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 
further comments by opening a new public comment period.

DATES: Comments must be received on or before January 30, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2009-0274 by one of the following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov: 
Follow the on-line instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#24404b474f41500a4b414745644154450a434b52"><span class="__cf_email__" data-cfemail="4d29222e2628396322282e2c0d283d2c632a223b">[email protected]</span></a>, Attention Docket ID No. EPA-
HQ-OECA-2009-0274.
    <bullet> 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.
    <bullet> 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.
    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 email. The www.regulations.gov Web site 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 email comment directly to EPA without 
going through www.regulations.gov, your email 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 CD-ROM 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 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 Messrs. 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, NW., Washington, DC, 
20460; email addresses: <a href="/cdn-cgi/l/email-protection#afc7dacbc0ccc481cec1cbddcad8efcadfce81c8c0d9"><span class="__cf_email__" data-cfemail="4c243928232f27622d22283e293b0c293c2d622b233a">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#375d585f594443585919545645524e7752475619505841"><span class="__cf_email__" data-cfemail="7f151017110c0b1011511c1e0d1a063f1a0f1e51181009">[email protected]</span></a>.

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
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

[[Page 71067]]

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: (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 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 Federal 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 and complete information would 
help inform and empower communities. 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).
    This proposed rule would require that certain 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.
    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 46015-17).

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 with industrial stakeholders contributing most 
of the remaining comments. Many of the industrial comments came from 
the agricultural sector.

[[Page 71068]]



 Table II-1--Number of Public Comments: Submissions, Pages, and Comment
                                Excerpts
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                                           Number of        Number of
            Commenter type                submissions     comment pages
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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
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    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 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.
    <bullet> 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)]
    <bullet> 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.
    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 Web site 
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 Web site 
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 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 Web site 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 Web site. 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

[[Page 71069]]

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 from regulated entities 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
    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, territories, 
and 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 Web site. 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).

    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 ICR will taper off over time as more NPDES-regulated 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.
    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 NPDES-regulated 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 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 CWA authority through use of an 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

[[Page 71070]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Another state commenter also suggested that EPA calculate for each 
authorized NPDES program 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., 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 Web site 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). 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 through use of an ICR 
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, tA01DE2.he electronic 
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 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.

[[Page 71071]]

    <bullet> 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 Certification (NEC); Low Erosivity 
Waiver (LEW)] from facilities covered by Federally-issued general 
permits.
    <bullet> 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 state-issued 
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 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 CWA authority through use of an 
ICR to require facilities operating under backlogged permits to 
electronically submit their NPDES program data.
---------------------------------------------------------------------------

    \2\ See 40 CFR 123.62(e).
---------------------------------------------------------------------------

    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, if EPA were 
to chose this option 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 approved by the authorized NPDES Director (as defined 
in 40 CFR 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 full 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 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 
human-readable 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:
    <bullet> 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;
    <bullet> include all the electronic signatures that have been 
executed to sign the document or components of the document;
    <bullet> include the date and time of receipt to help establish its 
relation to submission deadlines; and
    <bullet> 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.
    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 ``wet-ink'' 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

[[Page 71072]]

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 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).
---------------------------------------------------------------------------

    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.
    <bullet> 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 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.
    <bullet> 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.
    <bullet> 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.
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

[[Page 71073]]

majority of the comments in this area focus on the burden of 
maintaining paper copies of signature agreements, 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.
    <bullet> 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.
    <bullet> 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 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 under this proposed rule NPDES-regulated entities (e.g., POTWs) 
are not required to 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 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 CROMERR-
compliant 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). 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.

[[Page 71074]]



                     Permitted CAFO Responsibilities
------------------------------------------------------------------------
        Type of submission                    Submission format
------------------------------------------------------------------------
Individual permit applications and  There is no change for the owner or
 attached nutrient management        operator, as a CAFO that is
 plans (NMPs).                       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.
Notices of Intent to discharge in   CAFOs seeking coverage under an
 compliance with a general permit    NPDES general permit would
 (NOIs).                             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     There is no change to the owner or
 NOIs.                               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,     Submit data listed in Appendix
 and enforcement action information.      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.
    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 U.S.C. 
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 U.S.C. 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 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 Web site (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 long-standing existing law that information required 
by an NPDES application form may not be claimed confidential. 40 CFR 
122.7(b) and (c).

[[Page 71075]]

    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:

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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). 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 Web site. The Clean Water 
Act specifically identifies concentrated animal feeding operations as a 
type of ``point source.'' See 33 U.S.C. 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.
    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 Web 
site 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 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 addresses 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 Web 
site. [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 in Facility #2.]

------------------------------------------------------------------------
   Facility #1--unmasked information     Facility #2--masked information
------------------------------------------------------------------------
Show-Me State Animal Farm, Location:     Unpermitted CAFO/AFO-0000001,
 11300 Ozark Lane, Perryville, Missouri   Location: Missouri, County:
 63775, County: Perry, Lat.: 37.836084,   Redacted from Web site, Lat./
 Long: -89.738644, Contact: Grant Wood,   Long.: Redacted from Website,
 Phone: 999-867-5309, Inspection(s): 3/   Contact: Redacted from Web
 14/2010 (no violation identified); 6/    site, Phone: Redacted from
 22/2014 (discharging without an NPDES    Website, Inspection(s): 2/17/
 permit).                                 2009 (no violation
                                          identified); 5/25/2013 (no
                                          violation identified).
------------------------------------------------------------------------

    The above table is provided for 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 Web site 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 Web site (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

[[Page 71076]]

coverage in order to keep information related to the facility and 
facility contact out of EPA's databases. EPA has a statutory duty to 
implement 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

    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 
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 
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). In 
total, this data 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) with EPA from individual NPDES permit applications and 
waiver or exclusion from NPDES permitting determinations.
    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. 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

[[Page 71077]]

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 ``wet-
ink'' 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).

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 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 
email, 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 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 well-established 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 
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

[[Page 71078]]

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 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 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 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.\7\ These 
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.\8\
---------------------------------------------------------------------------

    \7\ See ``Standards for the Use or Disposal of Sewage Sludge,'' 
40 CFR part 503.
    \8\ EPA has authorized eight states to run the Federal biosolids 
program (40 CFR part 503). These eight states are Arizona, Michigan, 
Oklahoma, Oregon, South Dakota, Texas, Utah, and Wisconsin.
---------------------------------------------------------------------------

    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

[[Page 71079]]

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 as well as 
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:
    <bullet> 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.
    <bullet> 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.
    <bullet> Clearly identify those sections of the preamble or the 
proposed rule on which you are commenting.
    <bullet> Explain why you agree or disagree, and explain your views 
as clearly as possible.
    <bullet> Describe clearly any assumptions that you used as a basis 
for your comments.
    <bullet> Provide any technical information and/or data that you 
used to support your views.
    <bullet> 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.
    <bullet> Provide specific examples to illustrate your comments or 
concerns.
    <bullet> Clearly identify your preferences and, if applicable, 
offer feasible alternatives that will effectively meet the same goals.
    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 CWA authority 
through use of an ICR to require NPDES-regulated 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-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 
approved by the authorized NPDES Director (as defined in 40 CFR 122.2).
    7. EPA solicits comment on the option to calculate for each 
authorized NPDES program 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 the 
parameters of the existing CROMERR regulation.
    9. EPA solicits comment on the option of EPA using its CWA 
authority through use of an 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 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

[[Page 71080]]

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 Web page about non-permitted CAFO/
AFOs that state inspectors found were not discharging and do not 
require an NPDES permit. As discussed in this notice, EPA is proposing 
to mask facility specific information on these unpermitted CAFO/AFOs 
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 
CAFO/AFOs 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/AFO that 
does not require an NPDES permit: (1) Unpermitted CAFO/AFO has an 
``Unpermitted ID'' with no associated ``NPDES Permit ID;'' (2) 
unpermitted CAFO/AFO has a ``CAFO Permit Component;'' and (3) 
unpermitted CAFO/AFO has no CWA NPDES violations. If these three 
conditions are met EPA will remove facility specific information for 
these facilities from EPA's ECHO Web page 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 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.
    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 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.\9\
---------------------------------------------------------------------------

    \9\ See the economic analysis for the proposed rule for more 
information on these training sessions (EPA-HQ-OECA-2009-0274-0135).
---------------------------------------------------------------------------

    4. EPA solicits comment on costs related to computer and Internet 
access for NPDES-regulated 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 
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).
    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

[[Page 71081]]

year after the effective date of the final rule).

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 Web site; however, the Web 
site 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 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

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Hazardous substances, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 123

    Administrative practice and procedure, Confidential business 
information, Hazardous substances, Indians--lands, Intergovernmental 
relations, Penalties, Reporting and recordkeeping requirements, Water 
pollution control.

40 CFR Part 127

    Administrative practice and procedure, Electronic reporting 
requirements, Water pollution control.

40 CFR Part 403

    Administrative practice and procedure, Compliance monitoring, 
Enforcement program and activities, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 501

    Administrative practice and procedure, Indians--lands, 
Intergovernmental relations, Penalties, requirements, Sewage disposal.

40 CFR Part 503

    Reporting and recordkeeping requirements, Sewage disposal.

    Dated: November 18, 2014.
Cynthia Giles,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
[FR Doc. 2014-27918 Filed 11-28-14; 8:45 am]
BILLING CODE 6560-50-P


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