[Federal Register Volume 80, Number 204 (Thursday, October 22, 2015)]
[Rules and Regulations]
[Pages 64063-64158]
[FR Doc No: 2015-24954]

Vol. 80

Thursday,

No. 204

October 22, 2015

Part II

Environmental Protection Agency

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40 CFR Parts 9, 122, 123, et al.

National Pollutant Discharge Elimination System (NPDES) Electronic
Reporting Rule; Final Rule

Federal Register / Vol. 80, No. 204 / Thursday, October 22, 2015 /
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122, 123, 124, 127, 403, 501, and 503

[EPA-HQ-OECA-2009-0274; FRL-9930-70-OECA]
RIN 2020-AA47

National Pollutant Discharge Elimination System (NPDES)
Electronic Reporting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is publishing this
final regulation that requires the electronic reporting and sharing of
Clean Water Act National Pollutant Discharge Elimination System (NPDES)
program information instead of the current paper-based reporting of
this information. This action will save time and resources for
permittees, states, tribes, territories, and the U.S. Government while
increasing data accuracy, improving compliance, and supporting EPA's
goal of providing better protection of the nation's waters. By
modernizing this Clean Water Act reporting program, permittees and
regulators will use existing, available information technology to
electronically report information and data related to the NPDES permit
program. This regulation will help provide greater clarity on who is
and who is not in compliance and enhances transparency by providing a
timelier, complete, more accurate, and nationally-consistent set of
data about the NPDES program. By providing improved data in a more
accessible form, this final rulemaking will improve the ability of EPA
and authorized NPDES programs to target the most serious water quality
and compliance problems. Furthermore, by reducing the time and
resources devoted to outdated data management activities, the rule
could allow authorized NPDES programs to shift limited resources to
important water quality and public health protection activities. The
transition from paper to electronic reporting will require close
coordination and cooperation between EPA and authorized NPDES programs.
This regulation provides important flexibility while still implementing
electronic reporting in a timely and effective fashion.

DATES: The final rule is effective on December 21, 2015. The
incorporation by reference of certain publications listed in this rule
was approved by the Director of the Federal Register as of February 7,
2000. In accordance with 40 CFR part 23, this regulation shall be
considered issued for purposes of judicial review at 1 p.m. Eastern
time on November 5, 2015. The start dates for electronic reporting are
provided in 40 CFR 127.16.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OECA-2009-0274. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the EPA
Docket Center, EPA West Building, Room 3334, 1301 Constitution Avenue
NW., Washington, DC. 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<PHONE_NUMBER>. For
additional information about EPA's public docket, please visit the EPA
Docket Center homepage at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For additional information, please
contact Messrs. John Dombrowski<PHONE_NUMBER>) 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<EMAIL_ADDRESS>or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

How is this document organized?

    The outline of this document follows the following format:

I. General Information
II. Legal Authority
III. Legislative and Regulatory Background
IV. Rulemaking History
V. Summary of Decisions in the Final Rule
VI. Economic Analysis
VII. Regulatory Implementation
VIII. Statutory and Executive Order Reviews

I. General Information

A. Executive Summary

1. Purpose of the Regulatory Action
    The final rule substitutes electronic reporting for paper-based
reports and, over the long term, saves time and resources for
permittees, states, tribes, territories, and EPA, while improving
compliance and better protecting the Nation's waters. The final rule
requires permittees and regulators to use existing, available
information technology to electronically report information and data
related to the NPDES permit program in lieu of filing paper-based
reports. Authorized NPDES programs may adopt EPA data systems or elect
to use their own data systems to collect NPDES program information as
the initial recipient. All authorized programs are required to
electronically transmit the federally-required data (identified in
appendix A to 40 CFR part 127) to EPA.
    The purpose and need for this rule was highlighted in the
development of the Clean Water Act Enforcement Action Plan (Plan).
Announced by EPA Administrator Lisa Jackson in October 2009, the Plan
was a collaborative effort by EPA and state environmental agencies to
explore opportunities to improve water quality by emphasizing and
adopting new approaches that will improve how the NPDES permitting and
enforcement program is administered. The goals of the Plan include
improving transparency of the information on compliance and enforcement
activities in each state, connecting this information to local water
quality, and providing the public with real-time, easy access to this
information. The final NPDES Electronic Reporting Rule will make
achievement of these goals possible by requiring electronic reporting
of facility and operational data, as well as discharge monitoring,
compliance, and enforcement data.
    In addition to substituting electronic reporting for paper-based
reports, the final rule requires authorized NPDES programs to share the
minimum set of NPDES program data (appendix A to 40 CFR part 127) with
EPA for all facilities including nonmajor facilities. Historically, EPA
and authorized NPDES programs have focused on major facilities as a way
of prioritizing resources for permitting, enforcement and data sharing.
Over time, there has been a growing recognition that these nonmajor
sources significantly impact water quality as well. Storm water
discharges, concentrated animal feeding operations, mines, and raw
sanitary sewage overflows could all be significant contributors to
water quality impairment; however, they have not been treated as NPDES
major facilities. The final rule is intended to improve data quality
collected from major and nonmajor facilities, thereby providing the
states, tribes, territories, and EPA with more complete and comparable
data on all NPDES permittees. These

data will improve the ability of existing state and federal programs to
target the most serious water quality and compliance problems, thus
supporting EPA's goal of protecting the nation's waters. A broader and
more in-depth discussion of the purpose and need for this rulemaking is
provided in Section III of the proposed rule (30 July 2013; 78 FR
46013).
2. Summary of the Key Provisions
    This final rule requires NPDES regulated entities to electronically
submit NPDES compliance monitoring reports and notices [e.g., 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 program reports] to their
authorized NPDES program or to EPA through the National Environmental
Information Exchange Network. Importantly, while the final rule changes
the mode of transmission of these data (i.e., electronic rather than
paper-based reporting), it does not change the information required
from NPDES-permitted facilities under existing regulations and
practices.
    States, tribes, and territories that are authorized to implement
the NPDES program are the sources of certain key information regarding
the regulated facilities. For example, states have information from
NPDES permit applications, which includes information concerning
facility location, outfalls, effluent limits, and permit conditions, as
well as information from their compliance monitoring activities,
violation determinations, and enforcement actions. Under this final
regulation, NPDES permitting authorities are required to share
important components of this information electronically with EPA. The
list of data elements that must be electronically collected, managed,
and shared is provided in this final rule (appendix A to 40 CFR part
127). By ``NPDES program,'' this rule refers not only to the discharge
permit program, but also the pretreatment program and the biosolids
program, both of which are implemented in some ways without NPDES
permits.
    Separate from this rulemaking, EPA intends to make this more
complete set of data available electronically to the public, to promote
transparency and accountability by providing communities and citizens
with easily accessible information on facility and government
performance. This can serve to elevate the importance of compliance
information and environmental performance within regulated entities,
providing opportunity for them to quickly address any noncompliance.
The ease of reviewing and assessing electronically submitted data will
help provide greater clarity on who is and who is not in compliance.
Currently, some noncompliance information is not easily reviewable by
the authorized NPDES programs or accessible to EPA and these
noncompliance events are sometimes not resolved in a timely manner. The
result of this uneven response to noncompliance by regulators means
that some facilities in noncompliance will not take immediate action,
which gives them a financial edge over other facilities in states where
there is a timelier response to noncompliance. This rule opens the
opportunity for two-way communication between authorized NPDES programs
or EPA 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 also will
allow comparison of performance across authorized NPDES programs as
well as EPA's performance.
    Key provisions of this final rule are identified in the
implementation schedule in Section VII of the preamble. This includes
the schedule of milestones for NPDES program data submission from
states, tribes, and territories regarding their implementation
activities, programs and permits as well as electronic NPDES program
data submissions from regulated entities.
3. Costs and Benefits
    To fully implement this final regulation, there will be initial
investment costs associated with needed changes to information
technology and infrastructure. For example, EPA has developed a data
system called the [Integrated Compliance Information System for the
National Pollutant Discharge Elimination System (ICIS-NPDES) and two
NPDES electronic reporting systems to collect NPDES program data
(NetDMR and NPDES eReporting Tool (NeT)]. While all authorized NPDES
programs are welcome to use EPA's data systems, authorized NPDES
programs also have the flexibility to develop their own data systems
that meet the regulatory requirements of 40 CFR part 3 (including, in
all cases, subpart D), 40 CFR 122.22, and 40 CFR part 127. EPA will
continue to closely work with authorized NPDES programs to make EPA's
systems available and assist the development of their data systems in a
cost-effective manner.
    The initial cost of implementing the final rule is $77.9 million in
undiscounted dollars (see Table 4-11: Total Initial Implementation
Costs of the Rule, DCN 0197). While most of these costs are incurred
within the first year after the effective date of the rule, this
estimate includes certain recurring activities that should cease once
full implementation is achieved. Five years after rule promulgation,
assuming all regulated facilities have converted to electronic
reporting (other than 1 percent that are assumed to receive waivers
from electronic reporting), the cost is estimated to be $20.3 million
per year in undiscounted dollars (see Table 4-10: Annual Cost of Data
Entry and Operations for the Updated System after Implementation, DCN
0197). However, one year after rule promulgation, annual savings
greatly outweigh annual costs, by approximately $23.9 million per year
[calculated by subtracting the projected costs in year one from the
projected savings; see Table 4-16: Schedule of Savings and Costs (3%
Discount Rate), DCN 0197]. Cumulative savings over a ten-year period
(using a 3 percent discount rate) are $406 million while cumulative
costs are $250 million. As a result the overall economic effect of this
rule is a net cumulative savings of $156 million over the ten years of
the projection.
    The final rule will save money for states, tribes, and territories
authorized to administer the NPDES program as well as EPA and most
NPDES permittees, while resulting in a more complete, more accurate,
and nationally-consistent set of data about the NPDES program. With
full implementation (expected to be five years after the effective date
of the final rule), the anticipated annual net savings are expected to
be $22.6 million for NPDES programs, $0.5 million for regulated
entities, and $1.2 million for EPA, assuming a 3% discount rate
[calculated by subtracting the projected costs in year five from the
projected savings in year five; see Table 4-16: Schedule of Savings and
Costs (3% Discount Rate), DCN 0197]. The economic analysis supporting
this rule provides a more detailed description of the costs and savings
(see DCN 0197).
    The electronic submittal of data will help support EPA's goal of
protecting and restoring water quality and will result in significant
cost savings for the authorized NPDES programs, as well as savings for
the permittees and EPA, when the rule is fully implemented. The final
rule will also reduce the reporting burden currently borne by the
authorized NPDES programs, improve overall facility compliance, allow
better

allocation and use of limited program resources, and enhance
transparency and public accountability by allowing EPA to provide the
public with timely information on potential sources of water pollution.
    The final rule will also lighten the reporting burden currently
placed on the authorized NPDES programs. Upon successful
implementation, the final rule would provide authorized NPDES programs
with regulatory relief from reporting associated with the non-
compliance reporting [see 40 CFR 123.45--(a) Quarterly Non-Compliance
Report (QNCR), (b) Semi-Annual Statistical Summary Report, and (c)
Annual Non-Compliance Report (ANCR)] and the biosolids report submitted
to EPA annually by authorized NPDES programs with the Federal biosolids
program (40 CFR 501.21).
4. Compliance Dates for Final Rule
    The implementation schedule for the final rule is divided in two
phases. Prior to the deadline for each phase, EPA will work with
authorized NPDES programs to collect the necessary facility, permit,
inspection, and enforcement action information that supports electronic
reporting. For example, EPA will work with authorized NPDES programs
which opt to use EPA's national NPDES data system (i.e., ICIS-NPDES) to
ensure that the necessary facility and permit data are entered no later
than nine months after the effective date of the final rule to allow
for the electronic reporting of DMR data and Sewage Sludge/Biosolids
Annual Program Report data, which are scheduled for the first phase.
Likewise, EPA will also work with authorized NPDES programs to collect
the necessary data to support electronic reporting for the second
phase. Regulated entities must report electronically prior to this
compliance schedule if required to do so in their permit or any other
enforcement instrument issued by the relevant NPDES program. This rule
reinforces existing electronic reporting efforts by authorized programs
and regulated entities. The rule also grandfathers any existing
requirements to report electronically.
    The key compliance dates are set out below and set out in further
details in Section VII and in the final rule (see 40 CFR 127.16).
     Phase 1 Data: Authorized NPDES programs must
electronically transmit to EPA basic facility and permit information
(see list of data elements in ``ICIS Addendum to the Appendix of the
1985 Permit Compliance System Policy Statement,'' 28 December 2007, DCN
0007, also known as Water Enforcement National Database or ``WENDB'')
for all permits as well as other data necessary for implementation of
Phase 1 data collection within nine months after the effective date of
the final rule. One year after the effective date of the final rule,
authorized NPDES programs must start electronically transmitting to EPA
their state performance data (subject to applicable waivers), which
includes information generated from compliance monitoring (e.g.,
inspections), violation determinations, and enforcement actions.
Additionally, one year after the effective date of the final rule,
NPDES regulated entities that are required to submit DMRs (including
majors and nonmajors, individually permitted facilities and facilities
covered by general permits) must do so electronically. EPA and
authorized NPDES programs will begin electronically receiving these
DMRs from all DMR filers and start sharing these data with each other.
One year after the effective date of the final rule, all NPDES
regulated entities in states where EPA is the authorized NPDES
biosolids program (currently 42 of 50 states and all other tribal lands
and territories) must electronically submit their Sewage Sludge/
Biosolids Annual Program Report to EPA.
     Phase 2 Data: Authorized NPDES programs have five years to
begin electronically collecting, managing, and sharing the remaining
set of information in appendix A in 40 CFR part 127. This information
includes: General permit reports [e.g. Notice of Intent to be covered
(NOI); Notice of Termination (NOT); No Exposure Certification (NOE);
Low Erosivity Waiver and Other Waivers from Stormwater Controls (LEW)];
Sewage Sludge/Biosolids Annual Program Report (where the state is the
authorized NPDES biosolids program); and all other remaining NPDES
program reports (e.g., CAFO Annual Report, Pretreatment Program Annual
Report). Authorized NPDES programs will also share with EPA all data
necessary for implementation of Phase 2 data collection three months
before the Phase 2 deadline as defined in the data element analysis for
the final rule (see DCN 0200). Additionally, one year after the
effective date of the final rule, authorized NPDES programs will submit
an implementation plan (IP) for meeting the Phase 2 data requirements
for EPA to review. EPA will inform the state if its IP is inadequate.
     NPDES Noncompliance Report (NNCR) and Other State
Reporting: EPA will replace a number of currently required state
reports (e.g., QNCR and ANCR) with the new NNCR when EPA has a timely,
complete, more accurate, and nationally-consistent set of data about
the NPDES program. Full implementation of the NNCR and phase out of
certain state reports will only be possible one full year after full
implementation of Phase 2 data collection (i.e., six years after the
effective date of this rule). A complete set of Phase 1 and 2 data are
necessary to develop and produce the NNCR.
    As with any new regulation, some authorized NPDES programs 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 40 CFR
part 127 (including appendix A) and 40 CFR part 3 (including, in all
cases, subpart D) [Cross-Media Electronic Reporting Regulation
(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). Accordingly, all authorized NPDES programs
should complete any necessary updates to their state regulations within
one year and statutes within two years of the effective date of the
final rule.

B. Does this action apply to me?

    Entities potentially affected by this action include all NPDES-
permitted facilities, whether covered by an individual permit or
general permit, industrial users located in cities without approved
local pretreatment programs, and governmental entities that have
received NPDES program authorization or are implementing portions of
the NPDES program in a cooperative agreement with EPA. These entities
include:

------------------------------------------------------------------------
               Category                  Examples of regulated entities
------------------------------------------------------------------------
NPDES-permitted facilities...........  Publicly-owned treatment works
                                        (POTW) facilities, treatment
                                        works treating domestic sewage
                                        (TWTDS), municipalities,
                                        counties, stormwater management
                                        districts, state-operated
                                        facilities, Federally-operated
                                        facilities, industrial
                                        facilities, construction sites,
                                        and concentrated animal feeding
                                        operations (CAFOs).
Facilities seeking coverage under      Stormwater management districts,
 NPDES general permits.                 construction sites, CAFOs,
                                        POTWs, TWTDS, municipalities,
                                        counties, stormwater management
                                        districts, and state-operated
                                        facilities.
Industrial users located in cities     Industrial facilities discharging
 without approved local pretreatment    to POTWs and for which the
 programs.                              designated pretreatment Control
                                        Authority is EPA or the
                                        authorized state, tribe, or
                                        territory rather than an
                                        approved local pretreatment
                                        program.
State and territorial government.....  States and territories that have
                                        received NPDES program
                                        authorization from EPA, that are
                                        implementing portions of the
                                        NPDES program in a cooperative
                                        agreement with EPA, or that
                                        operate NPDES-permitted
                                        facilities.
Tribal government....................  Tribes that have received NPDES
                                        program authorization from EPA,
                                        that are implementing portions
                                        of the NPDES program in a
                                        cooperative agreement with EPA,
                                        or that operate NPDES-permitted
                                        facilities.
Federal government...................  Federal facilities with a NPDES
                                        permit and EPA Regional Offices
                                        acting for those states, tribes,
                                        and territories that do not have
                                        NPDES program authorization or
                                        that do not have program
                                        authorization for a particular
                                        NPDES subprogram (e.g.,
                                        biosolids or pretreatment).
------------------------------------------------------------------------

    This table is not intended to be an exhaustive list, but rather
provides some examples of the types of entities regulated by this
action. Other types of entities not listed in this table may also be
regulated.

II. Legal Authority

    Pursuant to the Clean Water Act (CWA), 33 U.S.C. 1251 et seq., the
U.S. Environmental Protection Agency (EPA) is promulgating the National
Pollutant Discharge Elimination System (NPDES) Electronic Reporting
Rule, which adds a new part to title 40 (40 CFR part 127) as well as
making changes to existing regulations. The U.S. Environmental
Protection Agency is promulgating the NPDES Electronic Reporting Rule
under authority of the CWA sections 101(f), 304(i), 308, 402, and 501.
EPA notes that the Congressional Declaration of Goals and Policy of the
CWA specifies in section 101(f) that ``It is the national policy that
to the maximum extent possible the procedures utilized for implementing
this chapter shall encourage the drastic minimization of paperwork and
interagency decision procedures, and the best use of available manpower
and funds, so as to prevent needless duplication and unnecessary delays
at all levels of government.''
    Harnessing information technology that is now a common part of
daily life is an important step toward reaching the goals of the CWA.
EPA is promulgating this rule under the authority of CWA section 304(i)
that authorizes EPA to establish minimum procedural and other elements
of state programs under section 402, including reporting requirements
and procedures to make information available to the public. In
addition, EPA is promulgating this rule under section 308 of the CWA.
Section 308 of the CWA authorizes EPA to require access to information
necessary to carry out the objectives of the Act, including sections
301, 305, 306, 307, 311, 402, 404, 405, and 504. Section 402 of the CWA
establishes the NPDES permit program for the control of the discharge
of pollutants into the nation's waters. EPA is promulgating this rule
under CWA sections 402(b) and (c), which require each authorized state,
tribe, or territory to ensure that permits meet certain substantive
requirements, and provide EPA information from point sources,
industrial users, and authorized programs in order to ensure proper
oversight. Finally, EPA is promulgating this rule under the authority
of section 501, which authorizes EPA to prescribe such regulations as
are necessary to carry out provisions of the Act.
    Under section 509(b)(1) of the CWA, judicial review of this
regulation can be had only by filing a petition for review in the U.S.
Court of Appeals within 120 days after the regulation is considered
issued for purposes of judicial review. Under section 509(b)(2), the
requirements in this regulation may not be challenged later in civil or
criminal proceedings brought by EPA to enforce these requirements.

III. Legislative and Regulatory Background

A. The Clean Water Act

    The 1948 Federal Water Pollution Control Act and subsequent
amendments are now commonly referred to as the Clean Water Act (CWA).
The CWA establishes a comprehensive program for protecting and
restoring our nation's waters. The CWA established the NPDES permit
program to authorize and control the discharges of pollutants to waters
of the United States [CWA section 402]. This final rule, which is
intended to reduce resource burdens associated with the paper-based
system and increase the timeliness, accuracy, completeness, and
usefulness of the information received by EPA, the states, tribes,
territories, and the public, echoes the goals of CWA section 101(f).
    Implementation of information technology that is now a common part
of daily life is an important step toward reaching the goals of the
CWA. EPA is promulgating this rule under the authority of CWA section
304(i) that authorizes EPA to establish minimum procedural and other
elements of state programs under section 402, including reporting
requirements and procedures to make information available to the
public. In addition, EPA is promulgating this rule under the authority
of section 308 of the CWA. Section 308 of the CWA authorizes EPA to
require information to carry out the objectives of the Act, including
sections 301, 305, 306, 307, 311, 402, 404, 405, and 504. Section 402
of the CWA establishes the NPDES permit program for the control of the
discharge of pollutants into the nation's waters. EPA is promulgating
this rule under CWA sections 402(b) and (c), which require each
authorized state, tribe, or territory to ensure that permits meet
certain substantive requirements, and provide EPA information from
point sources, industrial users, and the authorized program in order to
ensure proper oversight. Finally, EPA is promulgating this rule under
the authority of section 501 of the Act, authorizing EPA to prescribe
such regulations as are necessary to carry out provisions of the Act.

B. National Pollutant Discharge Elimination System

    As authorized by the CWA, the NPDES permit program protects the
nation's waters by controlling the discharge of pollutants into waters
of the United States. Such discharges are illegal unless authorized by
an NPDES permit. The NPDES permit program requires all point source
discharges of pollutants (other than dredged or fill material regulated
under Section 404 of the CWA) to waters of the United States to have a
permit, the term of which may not exceed five years. The term ``NPDES-
regulated facilities,'' as used in this rule, refers broadly to
entities regulated under the Clean Water Act, including permittees
under CWA section 402 along with the biosolids program, indirect
dischargers, and non-discharging entities with permits. NPDES permits
may be issued by EPA or by a state, tribe, or territory authorized by
EPA to implement the NPDES program. As of May 1, 2015, EPA has
authorized 46 states and the Virgin Islands to implement the base NPDES
program as well as the general permits program; as of that same date,
no tribe was currently authorized to implement the NPDES program. There
are several subprograms of the NPDES program that states, tribes, and
territories may also receive authorization from EPA to administer,
including the pretreatment and the biosolids programs. As of May 1,
2015, 36 states are authorized to implement the pretreatment program
and eight states are authorized to implement the biosolids program as
part of the NPDES program.
    Authorization to discharge may be provided under an individual
NPDES permit, which is developed after a process initiated by the
facility's submission of a permit application (40 CFR 122.21), or under
a general NPDES permit (for example, most oil and gas extraction
facilities and most construction sites operate under NPDES general
permits). See 40 CFR 122.28(a)(2). Authorization to discharge under a
general NPDES permit typically occurs following the submission of an
NOI by the facility seeking authorization to discharge under the permit
[40 CFR 122.28(b)(2)] and approval of that NOI by the permitting
authority. Submission of an NOI is not required for specified types of
discharges under certain circumstances [40 CFR 122.28(b)(2)(v)]. Most
NPDES-permitted sources are regulated under general permits.
    EPA has developed criteria to determine which sources should be
considered ``major'' facilities (see DCN 0195). The distinction was
made initially to assist EPA, states, tribes, and territories in
setting priorities for permitting, compliance, and enforcement
activities. Historically, EPA has placed greater priority on major
facilities and has required NPDES-authorized states, tribes, and
territories to provide more information about these dischargers. EPA's
previous regulations establish annual, semi-annual, and quarterly
reporting requirements, which mostly focused on major facilities. These
previous reporting requirements provided violation information and
facilitated EPA's assessment of the effectiveness of authorized
programs and EPA regional program activities (e.g., permitting,
compliance monitoring, and enforcement). This information has guided
EPA in the management and oversight of program activities. More
background information regarding the NPDES program is in the docket
supporting this rulemaking (see DCN 0005).

C. Evolution of the NPDES Program and Data Sharing

    In order to support development of appropriate permit limits and
conditions, issuance of effective permits, compliance monitoring, and
appropriate enforcement actions, EPA has developed requirements along
with policies, guidance, and expectations to track, measure, evaluate,
and report on these efforts on a nationwide basis. Over the past 30
years, these efforts to establish significant pollutant controls
focused primarily on major facilities and resulted in important
pollutant discharge reductions from traditional major sources.
    Although major municipal and industrial point sources continue to
be significant sources of pollution, permitting experience with more
diffuse sources shows that these point sources also contribute
significant amounts of pollutants to our nation's waters. About 40,000
nonmajor facilities have individual permits which have requirements
similar to the permits for major facilities (e.g., requirements to
submit DMRs) (source: ICIS-NPDES). As the understanding of water
quality issues has evolved, the universe of regulated nonmajor sources
has also expanded. In order to efficiently manage the growing universe
of regulated facilities, sources that are sufficiently similar are
often regulated under general permits rather than individual permits.
In many cases, nonmajor facilities use pollutant control measures based
on best management practices in operational activities rather than on
implementation of pollutant control technologies, which are measured
with numeric effluent limits on pollutant discharges and reported on
DMRs. Several hundred thousand nonmajor facilities are covered by NPDES
general permits; therefore, the number of nonmajor dischargers covered
by general permits is very large compared to the number of major or
nonmajor dischargers covered by individual permits. The universe of
nonmajor dischargers also includes some large volume dischargers (e.g.,
MS4s) that had not previously been regulated with the same types of
individual permits used to regulate discharges from major facilities.
    The most recent state water quality assessment reports submitted
under CWA section 305(b) and compiled by EPA in the National Water
Quality Inventory Reports indicate the growing significance and link
between nonmajor sources and impairments in water quality of U.S.
waters, particularly from precipitation-induced or ``wet weather''
point sources of pollutants.\1\ These sources include discharges of
stormwater associated with construction, concentrated animal feeding
operations (CAFOs), overflows from combined sewer systems (CSSs) and
sanitary sewer systems (SSSs), and urban stormwater pollution from
Municipal Separate Storm Sewer Systems (MS4s). Stormwater discharges
include a variety of pollutants, such as sediment, oil and grease,
chemicals, nutrients, metals, and pathogens. Discharges from CAFOs
often include bacteria, nutrients, organic matter, pathogens, and trace
metals. Overflows from combined and separate sanitary sewer systems
pose a significant threat to public health and the environment due to
high concentrations of bacteria from fecal contamination, as well as
disease-causing pathogens. Common pollutants discharged from MS4s
include oil and grease from roadways, pesticides from lawns, sediment
from construction sites, and carelessly discarded trash, such as
cigarette butts, paper wrappers, and plastic bottles. The pollution
controls for wet-weather sources are often best management practices
(BMPs) rather than traditional end-of-pipe controls. These wet-weather

sources are high priorities for EPA and authorized NPDES programs and
have been for almost over two decades.
---------------------------------------------------------------------------

    \1\ The link provides access to the 2004 Water Quality Report to
Congress, which was the last hard-copy version of this report. Since
2004 these data are made available directly via the ATTAINS database
(link provided at above site). The ATTAINS database provides state
information showing the water quality impairments and the likely
causes of impairments. In particular, ``Urban-Related Runoff/
Stormwater'' ranks high among the list of impairment causes. See:
http://ofmpub.epa.gov/waters10/attains_nation_cy.control.
---------------------------------------------------------------------------

    In the past, states, tribes, and territories generally did not
consistently share information with EPA on most wet-weather sources.
Therefore, EPA and the public do not have complete information on these
pollution sources. Electronic reporting from all NPDES permittees will
efficiently provide these data and will assist EPA and authorized NPDES
programs in focusing their limited resources on the most significant
water pollution sources and violations, whether from major or nonmajor
facilities.
    Transitioning to electronic reporting and data sharing will bring
the NPDES program into the 21st century. 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, DCN 0015). In particular, Congress and the public
expect environmental program managers at every level of government--
local, state, tribal, territorial, and federal--to design and implement
programs that deliver environmental and public health results. To
target the most important pollution problems, better ensure
environmental protection and public health, and enable more integrated
program assessment and planning at the national level, the data that
are electronically collected, managed, and shared between authorized
NPDES programs and EPA should have the following characteristics:
    I. The data should be current. Recent data are more likely to be
representative of current conditions. Although historical data may be
useful in identifying trends and patterns, outdated data are not as
reliable for drawing conclusions as to the current level of discharge,
the compliance status at permitted facilities, or for making plans for
improvements.
    II. The data should generally be comparable in format, reporting
units, frequency, etc. In order to aggregate and compare data across
the states, tribes, and territories for national program planning and
reporting purposes, it is important that the data from the individual
states, tribes, and territories be reported in a similar format (e.g.,
reporting units are the same and the metrics being measured are defined
identically) and with the same minimum frequency. For example, for EPA
to assess the volume of waste discharged by POTWs nationally, those
providing the data would need to consistently provide data to EPA,
share the same definition of POTWs, the same definition of volume (per
day, per week, per month) and express the measure in the same units
(gallons, million gallons, cubic feet, liters, etc.). However,
authorized NPDES programs can certainly institute more stringent
reporting requirements than EPA (if shared data remain nationally
consistent).
    III. The data should be accurate and complete. Incomplete,
inaccurate data can lead to wrong conclusions. For example, the
significant noncompliance rate for major facilities is a key indicator
of the effectiveness of the NPDES compliance and enforcement program.
This rate is derived in large part from effluent data self-reported in
DMRs to EPA, the states, tribes, and territories by major facilities.
These data are then entered into or provided to ICIS-NPDES by the
states, tribes, territories, or EPA. Incomplete compliance data in
ICIS-NPDES prevent EPA from adequately assessing industry, state, and
national noncompliance rates and identifying any potential corrective
actions. Consequently, program planning and authorized program
evaluation resulting from such incomplete data can be unreliable.
    Similarly, incomplete data may result in inaccurate conclusions as
to noncompliance rates for nonmajor permittees. EPA found through the
Annual Noncompliance Report (ANCR) (see DCN 0016) \2\ for NPDES
Nonmajor Permittees that the reported noncompliance rate for serious
violations is much higher for those authorized NPDES programs with
detailed compliance data in EPA's national data systems than it is for
authorized NPDES programs that only provide summary data. These
findings suggest that instances of noncompliance may be higher than
reported by states, tribes, and territories that do not routinely
provide facility-specific compliance data to EPA's national data
systems. The final rule will ensure that DMR information from
facilities and ANCR data from authorized NPDES programs would be
received electronically, allowing the data system to identify
violations and thereby reducing the burden on states, tribes,
territories, and EPA to independently identify effluent violations.
---------------------------------------------------------------------------

    \2\ 2008 ANCR, available at http://www.epa-echo.gov/echo/ancr/us/docs/ancr_report_2008.pdf.
---------------------------------------------------------------------------

    IV. The data should be nationally consistent. EPA needs nationally
consistent data to make program evaluation and subsequent planning
transparent and replicable. The basis for EPA's planning and
conclusions about the status of program implementation needs to be
readily available to those affected, including the regulated community,
the general public, Congress, federal, state, tribal, and territorial
agencies. For example, the data that EPA needs to evaluate the
performance of an authorized program should be readily available to EPA
(and readily available from EPA to the state, tribe, or territory) and
the state, tribe, or territory should be able to easily duplicate EPA's
analysis.
    These factors demonstrate the need for a shared definition and
central management of the information necessary to manage the NPDES
program, ready access to that information by states, tribes,
territories, and EPA, and assurance that the data across the authorized
NPDES programs are complete, more accurate, and timely reported. The
final rule provides parameters for the shared data, ensures the
accessibility of that information, and provides the basis for ensuring
that the data are nationally consistent, complete, more accurate, and
timely.

D. EPA's Next Generation Compliance Strategy

    EPA's Next Generation Compliance is an integrated strategy to
improve regulations and permits with new monitoring and information
technology and expanded transparency.\3\ It is designed to motivate the
regulated community to increase compliance, inform the public about
performance, and help ensure the public has access to information about
their communities that allows them to more fully engage in
environmental protection efforts.
---------------------------------------------------------------------------

    \3\ See http://www2.epa.gov/compliance/next-generation-compliance.
---------------------------------------------------------------------------

    In addition to converting reporting from a paper to electronic
format, the electronic system guides the user through the reporting
process with integrated compliance assistance and data quality checks.
From a compliance perspective, electronic reporting will allow
regulated entities, governmental agencies, and the public to more
quickly identify violations, and then more quickly address them.
    Electronic reporting is a key component of the Next Generation
Compliance Strategy (see DCN 0192). This strategy and rulemaking record
shows that the shift from paper reporting toward electronic reporting
is easier, more efficient, and costs less for the facility and for
regulatory agencies. Electronic systems are used in the modern era for
almost every kind of transaction. For the user, these systems offer
speed, convenience, expanded

information choices and filing capabilities. For government, they offer
the ability to increase transparency and an opportunity to improve the
ability to spot pollution and compliance issues and respond quickly to
emerging problems. Under EPA policy, electronic reporting is now the
default assumption for new regulations (see DCN 0193).

IV. Rulemaking History

A. Proposed Rule

    Since 2002, EPA and the authorized NPDES programs have worked
together to update the information and data that states, tribes,
territories, and EPA need to successfully implement, manage, and
oversee the NPDES program. Various iterations of critical data elements
were discussed by the state and EPA members of the Permit Compliance
System (PCS) Steering Committee, the PCS Modernization Executive
Council, and the Expanded PCS Steering Committee, which added
representatives from the Environmental Council of the States (ECOS) and
the Association of Clean Water Administrators (ACWA).\4\ Those efforts
led to the April 2007 issuance by EPA of a draft ICIS-NPDES Policy
Statement that included the list of NPDES data elements that states,
tribes, and territories would report to EPA (see DCN 0056).
---------------------------------------------------------------------------

    \4\ Formerly known for 50 years as the Association of State and
Interstate Water Pollution Control Agencies (ASIWPCA).
---------------------------------------------------------------------------

    After receiving numerous comments on the draft ICIS-NPDES Policy
Statement from the states, EPA began to develop a federal regulation
that would require electronic reporting of specific NPDES information
from the regulated permittees, states, tribes, and territories (see DCN
0215 and 0216). In 2010, EPA initiated an effort to carefully review
the data needs and uses, identify the types of information and specific
data elements that would allow EPA to meet those needs and uses, and
evaluate whether some information should be sought directly from NPDES-
regulated facilities or from states, tribes, and territories. This was
done with full acknowledgement that for certain activities (such as
permit issuance, inspections, compliance determinations, and issuance
of enforcement actions), the states, tribes, and territories are the
unique source of the identified NPDES information. During the summer of
2010, EPA conducted a series of concurrent technical analyses of
various data types and facility types, which examined the feasibility
of electronic reporting, various regulatory options, the existing
regulatory data and reporting requirements, key considerations, and
preliminary information regarding costs and benefits (see DCN 0018,
0019, 0020, 0021, 0022). After significant deliberations and
consultations with states, EPA published the proposed rule on 30 July
2013 (78 FR 46006) and opened a 135 day public comment period.
    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 1 provides an overview of the public comments EPA received
during the proposed rule comment period. The largest number of public
comments (by pages) came from state government agencies with industrial
stakeholders contributing most of the remaining comments. Many of the
industrial comments came from the agricultural sector.

               Table 1--Number of Proposal Public Comments
------------------------------------------------------------------------
                                             Number of       Number of
             Commenter type                 submissions    comment pages
------------------------------------------------------------------------
Anonymous or Individual Person..........              32              44
Environmental Advocacy Organization.....               3              22
Government (Local)......................              28             114
Government (State)......................              39             308
Government (Federal)....................               2               5
Industry (Misc.)........................              39             188
Industry (Agriculture)..................              25             163
Industry (Software Vendors).............               2               6
                                         -------------------------------
    Total...............................             170             850
------------------------------------------------------------------------

    EPA considered all of these comment submissions and identified the
key issues raised by commenters. EPA has responded to these comments in
the comment response document supporting this rulemaking (see DCN
0218).

B. Supplemental Notice of Proposed Rulemaking (SNPR)

    On 1 December 2014, EPA published a supplemental notice to the 2013
proposed NPDES Electronic Reporting Rule and opened a 60-day public
comment period (79 FR 71066). EPA used this document to identify many
of the issues raised by commenters during the public comment period for
the proposed rule, clarify misunderstandings about the proposal, and
discuss possibilities for how EPA might modify the rule to address
issues raised by stakeholders.
    EPA received 58 public comments on the supplemental notice to the
proposed rule from a variety of stakeholder groups. The comments were
again generally supportive of electronic reporting as modern and
efficient and provided meaningful comments on alternative means for
implementing the final rule. Table 2 provides an overview of the public
comments EPA received during the SNPR comment period. As with the
proposed rule, the largest number of public comments (by pages) came
from state government agencies.

  Table 2--Number of Supplemental Notice of Proposed Rulemaking Public
                                Comments
------------------------------------------------------------------------
                                             Number of       Number of
             Commenter type                 submissions    comment pages
------------------------------------------------------------------------
Anonymous or Individual Person..........               1               1
Environmental Advocacy Organization.....               2               9
Government (Local)......................               4              12
Government (State)......................              28             179
Government (Federal)....................               1               6
Industry (Misc.)........................              17              75
Industry (Agriculture)..................               4              19
Industry (Software Vendors).............               1               4
                                         -------------------------------
    Total...............................              58             305
------------------------------------------------------------------------

    EPA considered all of these comment submissions and has responded
to these comments in the comment response document supporting this
rulemaking (see DCN 0218).

C. Outreach

    Section VI of the proposed rule details EPA's 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. In addition to two public comment
periods, EPA has conducted additional stakeholder meetings to further
discuss and refine particular aspects of the rule prior to
promulgation.
    Many states expressed concerns with the proposed rule. EPA held
teleconferences with authorized NPDES programs to obtain their
individual views on various aspects of the proposed rule. EPA met with
over twenty five states, ECOS, ACWA, and New England Interstate Water
Pollution Control Commission to take into account their individual
comments and concerns about the rule (see DCN 0128 to 0142, 0181, 0219
to 0229). Additionally, EPA separately contacted each authorized NPDES
program to individually assess its readiness for these new electronic
reporting requirements. This extensive outreach helped inform the
implementation process of the final rule and the additional
flexibilities that authorized states, tribes, and territories need for
a measured and orderly conversion from paper to electronic reporting.
As noted elsewhere in this preamble, EPA has extended the time for full
implementation of this final rule from two years to five years. EPA has
also provided authorized NPDES programs with more flexibility in how
they administer electronic reporting waivers. EPA will continue its
outreach to NPDES regulated entities and authorized NPDES programs
during the implementation of this final rule.

V. Summary of Decisions in the Final Rule

    This section identifies the regulatory changes made by this final
rule and the significant decisions made by EPA in response to public
comments. EPA has responded to all public comments in the comment
response document supporting this rulemaking (see DCN 0218).

A. Overview of Existing Regulations Modified by the Final Rule

    EPA is amending the following NPDES regulations to require
electronic reporting by NPDES-regulated facilities, to require
electronic reporting of NPDES information by the states, tribes, and
territories to EPA, and to eliminate some existing reporting
requirements, particularly those for states, tribes, and territories.
In addition to the creation of a new 40 CFR part 127, the final rule
adds or modifies the following existing regulations:
     40 CFR 122.22. Signatories to permit applications and
reports;
     40 CFR 122.26(b)(15), (c)(1)(ii), and (g)(1)(iii).
Stormwater discharges (applicable to State NPDES programs, see 40 CFR
123.25);
     40 CFR 122.28(b)(2). General Permits (applicable to State
NPDES programs, see 40 CFR 123.25);
     40 CFR 122.34(g)(3). Reporting [as related to small
Municipal Separate Storm Sewer Systems (MS4s)];
     40 CFR 122.41(l)(4)(i). Monitoring reports [Discharge
Monitoring Reports];
     40 CFR 122.41(l)(6). Twenty-four hour reporting
[Noncompliance which may endanger health or the environment];
     40 CFR 122.41(l)(7). Other noncompliance;
     40 CFR 122.41(l)(9). Identification of the Initial
Recipient for the Electronic Reporting of NPDES Program Data [a new
standard condition added by this final rule];
     40 CFR 122.41(m)(3). Notice [as related to Bypass sewer
overflows];
     40 CFR 122.42(c). Municipal separate storm sewer systems
[as related to medium or large MS4s];
     40 CFR 122.42(e)(4). Annual reporting requirements for
CAFOs;
     40 CFR 122.43. Establishing permit conditions (applicable
to State NPDES programs, see 40 CFR 123.25);
     40 CFR 122.44(i). Monitoring requirements;
     40 CFR 122.48(c). Requirements for recording and reporting
of monitoring results (applicable to State NPDES programs, see 40 CFR
123.25);
     40 CFR 122.63(f). Minor modifications of permits [a new
option that explicitly states that NPDES programs may use the minor
modification process to incorporate electronic reporting into NPDES
permits];
     40 CFR 122.64(c). Termination of permits (applicable to
State NPDES programs, see 40 CFR 123.25);
     40 CFR 123.22. Program description;
     40 CFR 123.24(b)(3). Memorandum of Agreement with the
Regional Administrator;
     40 CFR 123.25(a). Requirements for permitting;
     40 CFR 123.26. Requirements for compliance evaluation
programs;
     40 CFR 123.41(a). Sharing of information;
     40 CFR 123.43(d). State data transmission of information
from states to EPA;
     40 CFR 123.45. Noncompliance and program reporting by the
Director; [this replaces several state reports of noncompliance with
the NNCR];
     40 CFR 403.10(f). State Pretreatment Program requirements;
     40 CFR 403.12(e). Periodic reports on continued compliance
[Pretreatment program reports for Categorical Industrial Users];

     40 CFR 403.12(h). Reporting requirements for Industrial
Users not subject to categorical Pretreatment Standards [Pretreatment
program reports for Significant Industrial Users not subject to EPA
categorical pretreatment standards];
     40 CFR 403.12(i). Annual POTW reports [Pretreatment
program report];
     40 CFR 501.21. Program Reporting to EPA (State Sludge
Management Program) [the final rule eliminates the state annual
biosolids report to EPA];
     40 CFR 503.18. Reporting [Sewage Sludge/Biosolids Annual
Program Report for land application];
     40 CFR 503.28. Reporting [Sewage Sludge/Biosolids Annual
Program Report for surface disposal]; and
     40 CFR 503.48. Reporting [Sewage Sludge/Biosolids Annual
Program Report for incineration].
    EPA has grouped the existing NPDES reporting requirements into
``NPDES Data Groups,'' which are defined and listed in 40 CFR 127.2(c)
and in Table 1 to appendix A of 40 CFR part 127. As defined in 40 CFR
127.2(c), the term ``NPDES data group'' means the group of related data
elements identified in Table 1 in appendix A to 40 CFR part 127. These
NPDES data groups have similar regulatory reporting requirements and
have similar data sources. The final rule uses the NPDES Data Groups to
identify the minimum set of data elements for each type of NPDES
reporting (e.g., DMRs, NOIs, program reports) and to help permittees
and regulated entities identify the initial recipient, as defined below
in Section B.1, of electronic NPDES data submissions.

B. Implementation

1. Initial Recipient Status
    Under the final rule, NPDES-regulated entities are required to
submit NPDES program data to the designated initial recipient, as
defined in 40 CFR 127.2(b). For this rule, the term ``initial
recipient'' means the governmental entity, either the state or EPA, who
first receives the NPDES program data listed in appendix A to 40 CFR
part 127. The initial recipient designation is made separately for each
state and by each NPDES data group, which is defined in 40 CFR
127.2(c). EPA is using the initial recipient term to help NPDES
regulated entities properly identify the recipient for their electronic
NPDES program data submissions. The initial recipient provision will
also help ensure that authorized NPDES programs and EPA are properly
sharing these NPDES program data with each other. EPA is required by
the rule to maintain the initial recipient list for each state and by
each NPDES data group and publish this list on its Web site and in the
Federal Register. Identification of the initial recipient for each
NPDES data group is included as a new NPDES permit standard condition
as is the URL to the above Web site [see 40 CFR 122.41(l)(9)]. EPA will
work with authorized NPDES programs that would like more flexibility
with the initial recipient designation (e.g., a state may want to be
designated for NOIs for CAFOs but not MS4s).
    As necessary, the initial recipient designation can switch back and
forth between the authorized state, tribe, or territory NPDES programs
and EPA. EPA's goal is to help all authorized NPDES programs be the
initial recipient for any data group (e.g., DMRs) for which they would
like to first receive the data.
     As of the effective date of the final rule, the Initial
Recipient determination is an `opt-out' process for authorized state,
tribe, or territory NPDES programs. Per Sec.  127.27(a), an authorized
NPDES program must notify EPA within 120 days of the effective date of
the final rule if it wishes EPA to be the Initial Recipient for a
particular NPDES data group. If EPA receives no such notification, EPA
will designate the authorized state, tribe, or territorial NPDES
program as the Initial Recipient for all NPDES data groups.
     An authorized 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 for one or all of the NPDES data
groups from EPA to the authorized state, tribe, or territory. To make
this switch, the authorized state, tribe, or territory must send a
request to EPA. 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, include a
description of how its data system will be compliant with 40 CFR part 3
(including, in all cases, subpart D) and 40 CFR part 127, and the date
or dates when the state, tribe, or territory will be ready to start
receiving this information. Section 127.27 outlines the process for
requesting the designation of initial recipient. After EPA approval of
the request, EPA will update the initial recipient list and will
publish the revised initial recipient listing on its Web site and in
the Federal Register.
     An authorized NPDES program can initially elect to be the
Initial Recipient for one or all of the NPDES data groups and then at a
later date request that EPA become the initial recipient for one or all
of the NPDES data groups. To make this switch the authorized state,
tribe, or territory will send a request to EPA. After coordination with
the state, EPA will update the initial recipient list and will publish
the revised initial recipient listing on its Web site and in the
Federal Register [see Sec.  127.27(a)].
     There is also a process in Sec.  127.27(d) for ensuring
that authorized NPDES programs share the minimum set of NPDES program
data with EPA (see Appendix A to 40 CFR part 127). This process will
switch the initial recipient status from the authorized state, tribe,
or territory to EPA if the authorized NPDES program is not sharing the
minimum set of NPDES program data with EPA. As noted in the proposed
Sec.  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 determined by EPA to be satisfactorily
resolved, EPA is required to update the initial recipient listing in
Sec.  127.27(c) in order to list the authorized state, tribe, or
territory as the initial recipient.
    An authorized NPDES program will continue to retain its
responsibilities to facilitate electronic reporting even if it elects
for EPA be the Initial Recipient for a particular NPDES data group. For
example, an authorized NPDES program will still be expected to continue
to provide support to NPDES regulated entities to facilitate electronic
reporting (e.g., provide registration support, electronic reporting
system training and user support) even when the authorized NPDES
programs elects for EPA to be the initial recipient. EPA will assist
authorized NPDES programs by providing training and support to
authorized NPDES programs so that they can fully understand and use
EPA's electronic reporting systems and thereby provide effective
support to NPDES regulated entities.
    It is important to note the interaction between the CROMERR
requirements and the Initial Recipient requirements in the final
rule.\5\ For example, 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, NPDES-regulated entities
will switch from using the state electronic reporting systems to EPA's
electronic reporting systems (e.g., NetDMR, NeT). This means that these
regulated entities will need to register and obtain the necessary
signing credentials for EPA's electronic reporting systems. Similarly,
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 using an
EPA electronic reporting system to a state electronic reporting system.
Under this scenario, regulated entities will need to register and
obtain the necessary signing credentials for the authorized NPDES
program's electronic reporting systems. However, if a state is using
EPA's electronic reporting systems, the regulated entities would not
need to register again.
---------------------------------------------------------------------------

    \5\ EPA seeks to ensure that electronic reporting has at least
the same level of legal defensibility and dependability as
information that EPA would obtain through hard-copy paper
submission. The Cross-Media Electronic Reporting Regulation
(CROMERR), promulgated October 13, 2005, provides the legal
framework for electronic reporting requirements established under
all EPA environmental regulations (40 CFR part 3). See the proposed
rule for more background detail on CROMERR (30 July 2013; 78 FR
46035).
---------------------------------------------------------------------------

2. Implementation Plan Schedule
    EPA initially proposed two phases for the implementation of
electronic reporting with the first phase starting one year after the
effective date of the final rule and a second phase starting two years
after the effective date of the final rule. EPA proposed full
implementation of electronic reporting within two years after the
effective date of the final rule. Many authorized NPDES programs
indicated that they would likely not be able to implement electronic
reporting for all data within two years of the effective date of the
final rule. One commenter suggested that EPA consider working with
authorized NPDES programs to develop individual state plans with a
schedule for implementation based on state readiness and resources to
implement electronic reporting. Other commenters suggested extending
the IP beyond two years. After significant consultation with authorized
NPDES programs EPA is adopting the implementation schedule described in
Section VII.A.
    EPA is providing additional time (five years from the effective
date of the final rule) for authorized NPDES programs to switch their
processing of Phase 2 NPDES program data (e.g., general permit reports,
program reports) from paper to electronic format in this final rule.
This additional implementation time for Phase 2 data collection,
management, and sharing will help authorized NPDES programs build or
adopt electronic reporting systems for Phase 2 data as well as register
and train NPDES regulated entities. EPA is keeping the proposed one-
year schedule for the DMR data flow to be switched from paper to
electronic format since nearly all authorized NPDES programs and many
tens of thousands of NPDES permittees are already using NetDMR and
other electronic Discharge Monitoring Report (eDMR) systems. The
proposed rule also had the Federal general permit reports (NOIs, NOTs,
LEWs, NOEs) included in Phase 1 implementation. These permits are now
included in Phase 2 of the final rule so that the implementation is
consistent for all general permits. EPA will incorporate the
requirements of this final rule into re-issued general permits so that
EPA can expedite electronic reporting as soon as possible.
    In accordance with the final rule [40 CFR 127.26(h)], authorized
NPDES programs will also need to submit an IP to EPA for EPA's review.
The content of these plans must provide enough detail (e.g., key tasks
and end dates) to ensure successful implementation of electronic
reporting for Phase 2 data. These plans must include key tasks and the
related end dates necessary for implementing this final rule, such as:
(1) Describing key tasks for electronically collecting all Phase 2 data
from NPDES-regulated facilities (e.g., developing and deploying
electronic reporting systems and applications); (2) describing key
tasks for updating state NPDES data systems to manage and share Phase 2
data with EPA's ICIS-NPDES (e.g., adding new data elements to state
NPDES data systems, updating the state's electronic data transmission
capabilities, which includes incorporating new data schemas and
Environmental Information Exchange Network node plug-ins); (3) CROMERR
compliance status for electronic reporting systems (e.g., approval
dates or anticipated approval end dates for each NPDES data group); (4)
schedule end dates for updating state statutes, regulations, and NPDES
permits; (5) summary of outreach and training necessary to alert and
educate NPDES regulated entities on how to utilize electronic reporting
systems; (6) alternative options for converting to electronic reporting
(e.g., utilization of EPA services and systems like NetDMR or NeT) if
the state continually misses its own scheduled milestones end dates;
and (7) temporary and permanent waiver approval processes. EPA will
provide authorized NPDES programs with additional guidance on the
content of these plans after promulgation of the final rule. EPA will
inform the state if its implementation plan is inadequate.
    These plans should be sent to EPA within one year of the effective
date of the final rule. EPA will review each IP and work with the
corresponding authorized NPDES program to identify potential weaknesses
and suggest potential revisions. EPA will finish its review of all IPs
and inform the authorized NPDES program if its implementation plan is
inadequate no later than six months after receipt. EPA plans to post
these IPs on its Web site to provide the public with greater
transparency on the milestones and tasks each state will be taking to
move towards electronic reporting.
3. Ensuring Compliance With the Implementation Schedule
    As noted in Section V.B.2, EPA is phasing in the electronic
reporting requirements of this final rule over five years. In
accordance with the schedule, and as a means to ``fill in the gaps''
where NPDES-regulated entities are not yet reporting electronically,
EPA will use its authority, as appropriate, to issue targeted
individual notices requiring NPDES-regulated entities to electronically
report their NPDES program data (appendix A to 40 CFR part 127). EPA
initially proposed to have these data come directly to EPA. Authorized
NPDES programs suggested that instead EPA should require NPDES
regulated entities to use state, tribe, or territorial electronic
reporting systems that are in compliance with the final rule, as this
would be more efficient. In this final rule, EPA is adopting the
approach recommended by authorized NPDES programs and will use its
existing authority under the CWA along with current technology and an
Information Collection Request (ICR) to require NPDES-regulated
entities to report electronically. EPA is 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. Section 308 of
the CWA authorizes EPA to require access to information necessary to
carry out the objectives of the Act, including Section 402, which
establishes the NPDES program. EPA provided examples in the SNPR
regarding when it would use this authority to send notices to NPDES
regulated entities to start electronic reporting (1 December 2014; 79
FR 71070).
    EPA also notes that authorized NPDES programs can use their
enforcement discretion to refrain from enforcing conditions in the
permit or other control mechanisms that explicitly require paper
reporting as long as the regulated entity successfully reports its data
electronically using the appropriate CROMERR-approved electronic

reporting system. This would enable EPA and authorized states, tribes,
and territories to realize the benefits of electronic reporting without
requiring double reporting from regulated entities and coordinating two
separate submissions. The following are the main methods by which
electronic reporting requirements will most likely be implemented by
authorized NPDES programs and NPDES regulated entities under the final
rule. As shown in Table 3, authorized programs have several mechanisms
to minimize the potential for dual reporting (paper and electronic
submissions of the same data).

------------------------------------------------------------------------
                                                      Potential for dual
             Method                  Description       reporting (paper
                                                       and electronic)
------------------------------------------------------------------------
Electronic Reporting Allowable   Existing reporting  No.
 in Existing NPDES Permit.        requirements in
                                  some NPDES
                                  permits may
                                  already allow for
                                  permittees to
                                  switch to
                                  electronic
                                  reporting (e.g.,
                                  no explicit
                                  requirement to
                                  report DMRs on
                                  paper forms to
                                  the state).
NPDES Permit Issuance..........  NPDES permit        No.
                                  issuances are
                                  staggered. This
                                  means that some
                                  NPDES permits
                                  will be
                                  incorporating
                                  electronic
                                  reporting
                                  requirements
                                  before the
                                  implementation
                                  schedule
                                  deadlines.
Enforcement Discretion.........  Authorized NPDES    No.
                                  programs can
                                  issue an
                                  enforcement
                                  letter that
                                  allows NPDES
                                  permittees to
                                  forgo filing
                                  paper forms as
                                  long as they use
                                  the approved
                                  electronic
                                  reporting systems.
Minor Modification.............  With the consent    No.
                                  of the permittee,
                                  the NPDES
                                  permitting
                                  authority can
                                  incorporate
                                  electronic
                                  reporting
                                  requirements
                                  through a minor
                                  modification.
                                  This is usually
                                  done permit-by-
                                  permit but there
                                  are no
                                  restrictions on a
                                  state that would
                                  like to take one
                                  action to change
                                  multiple permits
                                  at once. These
                                  minor
                                  modifications are
                                  very specific
                                  updates and do
                                  not require
                                  public notice.
                                  The NPDES
                                  regulated entity
                                  can use these
                                  minor
                                  modifications to
                                  eliminate the
                                  potential for
                                  dual reporting
                                  (paper and
                                  electronic).
Dual Reporting.................  The state can also  Yes.
                                  require
                                  electronic
                                  reporting in
                                  addition to paper
                                  reporting, which
                                  is required by
                                  existing permit
                                  language. The
                                  dual reporting
                                  would last only
                                  until the permit
                                  expires and the
                                  next permit is
                                  issued with
                                  electronic
                                  reporting
                                  requirements.
                                  This is EPA's
                                  least preferred
                                  option to phase
                                  in electronic
                                  reporting.
------------------------------------------------------------------------

    Under the implementation schedule for this final rule, EPA will
assess the electronic reporting participation rate of NPDES regulated
entities in each state and by each data group to determine when it
would be appropriate to send individual notices. For example, EPA may
send individual notices to compel electronic reporting when the
authorized state, tribe, or territory has less than 90-percent
participation rate for one or more data groups (e.g., MS4 program
reports), calculated after the required time for electronic reporting
of the particular data group. EPA will separately calculate the
participation rate for each state and for each data group no later than
six months after the deadline for conversion from paper to electronic
submissions (e.g., 18 months after the effective date of the final rule
for DMRs). As appropriate, EPA will then send notice to the NPDES
regulated entities that are not utilizing electronic reporting (e.g.,
21 months after the effective date of the final rule for DMRs). This
notice will direct NPDES regulated entities to use their authorized
NPDES program's electronic reporting system. Failure to comply with
this notice will result in noncompliance with the CWA and may result in
penalties. EPA will repeat its review of the participation rate for
each state and for each data group on an annual basis as needed and
send out notices as appropriate. EPA will coordinate the distribution
of these notices with the authorized NPDES program.
    EPA anticipates that it may use individual notices to compel
electronic reporting will likely be minimal as electronic reporting,
over the long term, reduces burden for the reporter. It is also
important to note that many facilities have already made the switch to
electronic reporting (e.g., most DMR filers in Ohio are using Ohio's e-
DMR system).
    EPA solicited comment on this 90-percent participation rate metric.
Commenters noted difficulties in outreach and training for the large
number of NPDES-regulated entities that will need to switch from paper
to electronic reporting. As described above, EPA is providing more time
for

authorized NPDES programs to switch their processing of Phase 2 NPDES
program data (e.g., general permit reports, program reports) from paper
to electronic. This additional three years will help authorized NPDES
programs build or adopt electronic reporting systems for Phase 2 data
as well as register and train NPDES regulated entities. EPA is keeping
the proposed one-year schedule for the DMR data flow since DMR
electronic reporting tools are already deployed in 42 states, with an
additional six states actively developing similar systems. This
existing electronic reporting capacity has allowed tens of thousands of
NPDES regulated entities to electronically report their DMRs over a
number of years.\6\ EPA is also retaining the 90 percent participation
rate as this single simple measure will be an effective system to track
progress and prompt NPDES regulated entities and authorized NPDES
programs to switch from paper to electronic reporting within a
reasonable time period. While the 90-percent figure is not codified in
the final regulation [see 40 CFR 127.26(i)], EPA is including the 90-
percent figure in this preamble to the final rule and the accompanying
ICR as a goal to promote electronic reporting and as a reasonable
estimate of the number of entities that EPA may directly contact. EPA
will work with states if there is a significant delay in the adoption
of electronic reporting and re-assess the 90-percent participant rate
goal as part of its ICR renewal (ICRs are typically approved by OMB for
three years) or as appropriate.
---------------------------------------------------------------------------

    \6\ See: https://netdmr.zendesk.com/entries/45318090-For-New-Users-Who-Can-Report-.
---------------------------------------------------------------------------

    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. Some
authorized NPDES programs also use different agencies to manage
specific industrial sectors (e.g., oil and gas facilities, mines,
CAFOs) and these industrial sectors are often covered by general
permits. EPA agrees with the commenters that there are important
differences between individually permitted facilities and facilities
covered by general permits. Having one DMR electronic submission
participant rate for individually permitted facilities and another DMR
electronic submission participant rate for facilities covered under
general permits will allow EPA to more accurately target only those
facilities and sectors with the poorest electronic reporting
participation rates. In this final rule, EPA is adopting the approach
recommended by some authorized NPDES programs and will use one DMR
electronic submission participant rate for individually permitted
facilities and another DMR electronic submission participant rate for
facilities covered under general permits.
    EPA will also work with states to evaluate how best to assess
electronic reporting participation for general permit reports (e.g.,
NOIs) for different sectors (e.g., oil and gas facilities, mines,
CAFOs). The authorized NPDES program will document how to assess
electronic reporting participation rates for general permit reports in
their IP.
    Another important consideration is that NPDES-regulated entities
with temporary waivers are excluded from the participation
calculations. For example, if state X has 1,020 individually permitted
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 individually-permitted facilities
without waivers [= 0.9 x (1,020 - 20)] need to electronically submit
DMRs to state X in order to meet the 90-percent participation rate.
Examples of how EPA will use individual notices to ``fill in the gaps''
where NPDES-regulated entities are not yet fully electronically
reporting their NPDES program data are provided in the supplemental
notice to the proposed rule (1 December 2014; 79 FR 71070) and more
examples are in the docket (see DCN 0106).
4. Hybrid Approach for Construction Stormwater NOIs
    As an alternative to use of a CROMERR-compliant electronic
reporting system, one commenter suggested that EPA allow the initial
recipient the option of using data capture technology [e.g., two
dimensional barcodes such as Quick Response (QR) codes, optical
character recognition] (see DCN 0178). In particular, authorized NPDES
programs have noted their difficulty in getting construction operators
to apply for and maintain electronic signatures for use with CROMERR-
compliant electronic reporting systems for stormwater related
discharges. Authorized NPDES programs suggested that EPA provide some
flexibility in the final rule that would allow construction operators
the ability to electronically submit data from construction stormwater
general permit reports [e.g., Notice of Intent (NOI) to discharge;
Notice of Termination (NOT); and Low Erosivity Waiver and Other Waivers
from Stormwater Controls (LEW)] but without an electronic signature.
EPA solicited comment on this approach in the supplemental notice to
the proposed rule (1 December 2014; 79 FR 71076). Several comments
expressed support for EPA to include this option in the final rule as a
means to provide authorized NPDES programs with more options in
implementing the final rule. In this final rule, EPA is providing the
option for the initial recipient to use data capture technology for
construction stormwater general permit reports (i.e., NOIs, NOTs, NOEs,
LEWs). The following discussion provides more detail on this optional
method for authorized NPDES programs to comply with this final rule for
construction stormwater general permit reports.
    The final rule provides the initial recipient the option of
allowing data capture technologies for construction stormwater general
permit reports. This is defined in the final rule as the ``Hybrid
Approach.'' For example, under the Hybrid Approach, the initial
recipient may allow construction operators to complete an online
construction stormwater general permit report, which simultaneously
produces a paper copy of the report and electronically transmits a copy
of the data from the report to the initial recipient. The construction
operator will sign and date the paper copy of the construction
stormwater general permit report with a handwritten signature and this
paper document will be the ``copy of record.'' The paper document will
be managed in accordance with 40 CFR 122.28. It is important to note
that EPA general permit regulations (40 CFR 122.28) do not require all
general permit covered facilities to submit NOIs for all general
permits as some general permits provide for automatic coverage. The
final rule does not change EPA's general permit regulations with
respect to the discretion of the authorized NPDES program in deciding
when a notice of intent requirement would be inappropriate [see 40 CFR
122.28(b)(2)(v)]. Under the Hybrid Approach, the paper copy of the
construction stormwater general permit report with a handwritten
signature must be submitted to the authorized NPDES program.

    Under the Hybrid Approach, the initial recipient must have the
ability to definitively and uniquely link the signed and dated paper
document with the electronic submission from the NPDES regulated
entity. This could be done through use of a unique code or mark on the
signed and dated paper document that is also embedded in the electronic
submission. See Figure 1.
[GRAPHIC] [TIFF OMITTED] TR22OC15.000

    Under the Hybrid Approach, the initial recipient can also use
automated data capture technology (e.g., Optical Character Recognition)
to allow a NPDES-regulated entity to submit NPDES program data on paper
with a handwritten signature and date in a structured format that
allows for easy data importation into the authorized program's NPDES
data system. It is likely in this example that the initial recipient
will also be the authorized state, tribe, or territory since the paper
form will be sent by the construction operator to the authorized NPDES
program.
    EPA notes that using the Hybrid Approach will require the
procurement and management of the necessary data capture technology,
maintenance of the signed and dated paper submission, and the training
of potential users; however, some authorized NPDES programs have
suggested the Hybrid Approach may be less burdensome than requiring all
construction operators to register and submit using standard CROMERR-
compliant identity-proofing and electronic reporting services.
    Finally, EPA notes that it is limiting this approach to the
construction sector due to the large and transient number of permittees
that are reporting each year for new locations (approximately 200,000
new construction sites each year). Use of the Hybrid Approach
eliminates the need for construction operators to obtain and maintain a
digital signature and the need for authorized NPDES programs to oversee
and troubleshoot the process for these construction operators to obtain
these digital signatures.
    EPA encourages state, local, or municipal government that make the
Hybrid Approach available to regulated entities in the construction
sector to also make CROMERR-complaint, fully-electronic reporting
available as well, reducing to the degree possible any reliance on
paper.

C. Waivers

    In the preamble to the proposed rule, EPA introduced the concept of
temporary waivers from electronic reporting of NPDES program data. EPA
proposed to limit the availability of these temporary waivers to
regulated facilities in areas that lacked sufficient broadband
availability. Under the proposal, temporary waivers would be available
for one year at a time. Authorized NPDES programs would be required to
enter the hard-copy NPDES program data submitted by facilities with
waivers into the state or federal NPDES data system and share it with
EPA. EPA requested comment on the need for such temporary waivers,
possible options for such waivers, and on the possibility of permanent
waivers for religious reasons.
1. Temporary Waivers
    During the two public comment periods, 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. 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 to the authorized NPDES program.
For example, it may be more efficient for the state to manually enter
data into an electronic system, than to train a NPDES regulated entity
when there are numerically few of a certain category of permittees or
when the sector is known to have limited computer skills even if the
entity potentially has access to broadband internet.
    In the final rule, EPA is providing authorized NPDES programs with
more flexibility in how they may grant temporary waivers. Per Sec.
127.15 of the final rule, each authorized NPDES program will describe
in its IP how it will implement the NPDES Electronic Reporting Rule
waiver provision. Authorized NPDES programs will review and update, as
necessary, their implementation of the NPDES Electronic Reporting Rule
waiver provision once every five years and submit any changes to EPA
for review. EPA will inform the state if its waiver process description
is inadequate. The duration of a temporary waiver may not exceed five
years, which is the normal period for an NPDES permit term. EPA also
notes that these waivers are not transferrable.
    Additionally, authorized NPDES programs may issue episodic waivers
to address large-scale national disasters (e.g., hurricanes) or
prolonged electronic reporting system outages (i.e., outages longer
than 96 hours). The authorized NPDES program will describe in the IP
how it plans to issue episodic waivers in these extreme situations as
part of its implementation of the NPDES Electronic Reporting Rule
waiver provision.
2. Permanent Waivers
    Commenters suggested that EPA should make permanent waivers for
NPDES-regulated entities owned or operated by members of religious
communities (e.g., Amish, Mennonite, and Hutterite). EPA agrees that it
would be appropriate for the final rule to accommodate the religious
practices of individuals that choose not to use certain technologies
(e.g., computers, electricity) in accordance with their religion. In
the final rule, authorized NPDES programs may issue permanent waivers
to facilities owned or operated by members of religious communities
that choose not to use certain technologies. Authorized NPDES programs
will document their procedures for issuing permanent waivers as part of
their implementation of the NPDES Electronic Reporting Rule waiver
provision, which is described above. EPA notes that a NPDES regulated
entity will need to re-apply for a permanent waiver upon any change in
facility ownership and that these waivers are not transferrable.

D. Summary of Changes to Appendix A

    Appendix A to the final rule (40 CFR part 127) is the minimum set
of NPDES program data that must be electronically collected, managed,
and shared between NPDES-regulated facilities, authorized NPDES
programs, and EPA.\7\ Authorized programs that are the ``initial
recipient'' of these data must electronically transfer these data to
EPA on a regular schedule (within 40 days of completed action). EPA
worked extensively with NPDES program experts from across the Agency
and with authorized NPDES programs to develop and refine Appendix A.
The purpose of Appendix A is to ensure that there is consistent and
complete reporting nationwide, and to expedite the collection and
processing of the data, thereby reducing burden and making the data
more timely, accurate, complete, useful, and transparent for everyone.
EPA recognizes that there may be certain instances where appendix A
data do not apply directly to particular permitted activities as
written and will work with states to accommodate any necessary
differences. For instance, there may not be a fixed address for the
application of pesticides, so, in this instance, the NOI may not
include facility physical address, latitude, and longitude information
as described in Appendix A, but would likely contain equivalent
information as required by the permit.
---------------------------------------------------------------------------

    \7\ Authorized NPDES programs may grant electronic reporting
waivers to NPDES-regulated facilities. In these cases, states
perform the data entry from the paper submissions.
---------------------------------------------------------------------------

    When reviewing the list of Appendix A data elements, it is
important to note the following concepts:
     Frequency: Reporting frequency varies based on the type of
data (e.g., permit issuance would likely be every five years; DMR data
may be monthly).
     Applicability: Many of the data elements are only
applicable to certain NPDES sectors (e.g., CAFO data elements do not
apply to POTWs).
     Efficiency: Many of the data elements use codes or unique
descriptions to facilitate easier data entry.
    These concepts highlight the fact that there is a direct
relationship between the amount of data that will be reported,
collected, and managed and the overall burden of the rulemaking. The
amount of data generated by each data element is directly tied to how
frequently the data element is reported, the number of regulated
entities that are covered by the data element (i.e., applicability),
and the ease of reporting (i.e., efficiency). The amount of data
generated by a data element directly increases with more frequent data
reporting of the data element, more entities subject to the data
element, and decreases with simplified data reporting (e.g., using text
fields instead of use of codes or unique descriptions, which facilitate
easier data entry). Consequently, it is important to focus on the
amount of data that will be collected by this final rule and not the
number of data elements listed in appendix A. EPA used the following
process to create the initial draft of appendix A:
     Identify current candidate reports and information from
authorized NPDES programs and NPDES regulated entities that are
practical to standardize and electronically process and have important
value to the permitting and compliance and enforcement programs and the
public.
     Identify the required data elements for each candidate
data flow and report based on the CWA or existing EPA regulations.
     Minimize the number of data elements to create
efficiencies without losing the utility of the data.
    During 2014 and 2015, EPA met with state technical experts to
discuss all the data elements in appendix A. EPA summarized these
discussions for the Docket (see DCN 0128 to 0142, 0181, 0219 to 0229).
    In general, EPA simplified appendix A to help make implementation
of the final rule easier for authorized NPDES programs and NPDES
regulated entities. The data elements in appendix A support the
electronic collection, management, and sharing of Phase 1 and Phase 2
data.
    EPA also noted that authorized NPDES programs can require NPDES
regulated entities to submit more data than what is listed in appendix
A. The authorized NPDES program can require NPDES regulated entities to
submit these ``non-appendix A'' data on paper, electronically, or as
attachments (e.g., PDF files, CSV files) to electronic notices and
reports filed in compliance with this final rule. Some commenters
requested clarification on how EPA's electronic reporting tools will be
configured to separately handle appendix A and non-appendix A data.
EPA's electronic reporting tools allow for non-Appendix A data to be
collected and shared with authorized NPDES programs. EPA will continue
to work

with authorized NPDES programs to configure these data systems such
that the non-appendix A data are collected in the format needed by the
authorized NPDES program. These implementation efforts will ensure that
NPDES regulated entities only need to make one electronic submission
with EPA's electronic reporting tools and that these submissions may
contain a mix of appendix A and non-appendix A data. EPA will work with
authorized NPDES programs that build their own electronic reporting
tools to ensure that their tools have similar capabilities.

E. Unpermitted Facilities

    Current EPA regulations and policy set forth expectations for
authorized NPDES programs to provide compliance monitoring data on all
permitted facilities, both major and nonmajor facilities, and a limited
group of unpermitted facilities. See 40 CFR 123.41, DCN 0007, DCN 0037,
and DCN 0188. Under the 2014 Clean Water Act National Pollutant
Discharge Elimination System Compliance Monitoring Strategy (``2014
CMS''), authorized NPDES programs can propose an alternative Compliance
Monitoring Strategy (CMS) plan, which may include the state's plan to
conduct ``focused inspections'' or ``off-site desk audits'' instead of
``comprehensive inspections'' for certain facilities (see DCN 0188). An
alternative NPDES CMS plan is a plan that includes one or more
compliance monitoring commitments that deviate from the national goals
and flexibilities (see Part 2 of the 2014 CMS for detailed description
of the national goals). As compared to the national goals, an
alternative plan could include modified frequency of comprehensive
inspections, modified compliance monitoring activities (e.g., offsite
desk audit), or a combination of the two. As a condition for EPA
approval of the alternative CMS plan, the state must commit to share
with EPA's ICIS-NPDES compliance monitoring data on all facilities
(including unpermitted facilities) subject to a ``focused inspection''
or an ``off-site desk audit'' instead of ``comprehensive inspection''
(see Part 1 of the 2014 CMS). Additionally, EPA regulations require
authorized NPDES programs to share compliance monitoring data with EPA
on unpermitted facilities found to be in violation of the Clean Water
Act (e.g., discharging without an NPDES permit) (see 40 CFR 123.41).
    This final rule does not change the existing requirements for NPDES
programs to report information on certain unpermitted facilities to
EPA. See 40 CFR 123.41(a); 123.43(d). In order to provide clarity, the
following examples clarify when authorized NPDES programs are required
to share NPDES program data on unpermitted facilities with EPA by
entering these data in to EPA's national NPDES data system (i.e., ICIS-
NPDES).
    Example #1: As part of an approved alternative CMS plan, an
authorized NPDES program evaluated ten unpermitted facilities with a
focused inspection or an off-site desk audit. As a condition of EPA's
approval of the alternative CMS plan, the authorized NPDES program is
required to share NPDES program data on these ten unpermitted
facilities with EPA by entering these data in to EPA's national NPDES
data system (i.e., ICIS-NPDES).
    Example #2: The same authorized NPDES program in Example #1
responds to a citizen complaint of an unpermitted facility by
conducting an inspection of the unpermitted facility. This inspection
is not part of the authorized NPDES program's approved alternative CMS
plan. The authorized NPDES program determines that this unpermitted
facility is discharging pollutants to waters of the U.S. without an
NPDES permit in violation of the CWA. In accordance with this rule, the
authorized NPDES program is required to share NPDES program data on
this unpermitted facility with EPA by entering these data in to EPA's
national NPDES data system (i.e., ICIS-NPDES).
    Example #3: The same authorized NPDES program in Example #1
responds to a citizen complaint of another unpermitted facility by
conducting an inspection of the unpermitted facility. This inspection
is not part of the authorized NPDES program's approved alternative CMS
plan. The state determines that this unpermitted facility is not in
violation of the CWA. The authorized NPDES program is not required to
share NPDES program data on this unpermitted facility with EPA's
national NPDES data system (i.e., ICIS-NPDES).
    Example #4: An authorized NPDES program responds to a citizen
complaint of an unpermitted facility by conducting an inspection of the
unpermitted facility. The inspection is not conducted pursuant to the
authorized NPDES program's approved CMS plan. The authorized NPDES
program determines that this unpermitted facility is discharging
pollutants to waters of the U.S. without an NPDES permit in violation
of the CWA. In accordance with this rule, the authorized NPDES program
is required to share NPDES program data on this unpermitted facility
with EPA by entering these data in to EPA's national NPDES data system
(i.e., ICIS-NPDES).
    Example #5: The same authorized NPDES program in Example #4
responds to a citizen complaint of another unpermitted facility. The
inspection is not conducted pursuant to the authorized NPDES program's
approved CMS plan. The state determines that this unpermitted facility
is not in violation of the CWA. The authorized NPDES program is not
required to share NPDES program data on this unpermitted facility with
EPA's national NPDES data system (i.e., ICIS-NPDES).
    Example #6: An authorized NPDES program inspects a facility with
both an NPDES permit and state groundwater protection permit. During a
compliance monitoring activity the inspector does not evaluate
compliance with the NPDES permit but does determine that the facility
is in violation of several state groundwater permit requirements (i.e.,
these violations are not violations of the CWA). The authorized NPDES
program is not required to share NPDES program data from this
compliance monitoring activity on this facility with EPA's national
NPDES data system (i.e., ICIS-NPDES) because it was not an NPDES
program inspection.
    Example #7: An authorized NPDES program performs a comprehensive
inspection of an unpermitted facility to determine if it is discharging
without an NPDES permit. The inspection is conducted pursuant to the
authorized NPDES program's approved CMS plan. During the comprehensive
inspection the authorized NPDES program determines that the unpermitted
facility is violating two state permit requirements; however, the
authorized NPDES program also determines that the unpermitted facility
is not violating the CWA. The authorized NPDES program is not required
to share NPDES program data on this unpermitted facility with EPA's
national NPDES data system (i.e., ICIS-NPDES).
    In summary, the final rule does not require authorized NPDES
programs to share NPDES program data on unpermitted facilities with
EPA's national NPDES data system (i.e., ICIS-NPDES) with the following
exceptions:
    a. The approved alternative CMS plan includes compliance monitoring
of unpermitted facilities through use of a ``focused inspection'' or an
``off-site desk audit'' instead of a ``comprehensive inspection.''
    b. Unpermitted facilities were subject to compliance monitoring and
found to be in violation of the CWA (e.g., discharging pollutants to
waters of the

U.S.) and thus required to have an NPDES permit.
    c. Unpermitted facilities were subject to a formal enforcement
action, an administrative penalty order, or an informal enforcement
action (if such informal action addressed significant noncompliance).
    d. Authorized NPDES programs must share with EPA NPDES program data
on industrial users regulated by the Federal pretreatment program (40
CFR part 403).
    e. Authorized NPDES programs must share with EPA NPDES program data
on entities regulated by the Federal biosolids program (40 CFR part
503).
    Basic facility data on these unpermitted facilities and the related
compliance monitoring data must be shared with EPA's national NPDES
data system (i.e., ICIS-NPDES). For the first three types of exceptions
identified above, EPA Regions, authorized states, tribes, and
territories would be required to electronically provide the following
information to EPA's national NPDES data system: basic facility
information; compliance monitoring related information; and, if
applicable, violations, and information regarding enforcement actions.
    Facilities included in the fourth group would be operating under a
control mechanism, which may or may not be a permit (see 40 CFR 403.8).
In accordance with the final rule, these facilities will electronically
submit their bi-annual compliance reports [40 CFR 403.12(e) and (h)] to
their Control Authority (when the state or EPA is the Control
Authority). Additionally, the Control Authority will summarize the
compliance and enforcement action data for industrial users as part of
the Pretreatment Program Report [40 CFR 403.12(i)].
    Facilities included in the fifth group would be operating under
EPA's Standards for the Use or Disposal of Sewage Sludge (40 CFR part
503), which are directly applicable to ``any person who prepares sewage
sludge, applies sewage sludge to the land or fires sewage sludge in a
sewage sludge incinerator and to the owner/operator of a surface
disposal site'' (see 40 CFR 503.1). This means that the annual
reporting requirements in 40 CFR 503.18, 503.28, and 503.48 are
applicable even in the absence of an NPDES permit.

F. Nonmajor Facility Inspection Single Event Violation (SEV) Data

    Single Event Violations (SEVs) include one-time events as well as
violations with longer durations. These are violations that are
generally not automatically flagged by the data system (e.g.,
inspection identified violations, sewer overflow, spill of industrial
waste, discharges without an NPDES permit). These violation
determinations are often manually generated by the authorized NPDES
program as opposed to violations that can be system created or
generated (e.g., effluent exceedances of permit limits are
automatically flagged by ICIS-NPDES).
    SEV data are generated from inspection reports and other compliance
monitoring activities by authorized NPDES programs. Currently
approximately ten percent of facilities designated as majors in ICIS-
NPDES have a SEV in any given year. These are important violations that
are not automatically identified through self-monitoring data like
DMRs, and these data are important for targeting, transparency, and
state oversight. The availability of such compliance determination
information from states, tribes, territories, and EPA is critical to
determining the compliance status of NPDES regulated facilities. This
information is needed on a facility-specific basis to better identify
potential problems; ensure that appropriate action is taken to address
noncompliance; better quantify national or state noncompliance rates;
and to provide a more complete and transparent picture to permitting
authorities, the public, Congress, and other stakeholders of the
overall implementation and effectiveness of the authorized NPDES
program. There are two to three data elements associated with SEVs:
     Violation Code (this uniquely identifies the type of
violation)
     Date Data which includes: Single Event Violation Date
(used when violation occurs on one date) or Single Event Violation
Start Date and Single Event Violation End Date (used when violation
spans multiple dates)
    Prior to this final rule, EPA only required authorized NPDES
programs to share with EPA SEV data on facilities designated as majors.
In the proposed rule, EPA discussed requiring authorized NPDES programs
to also share with EPA SEV data on facilities designated as nonmajors
(see 30 July 2013; 78 FR 46041). EPA received comments from authorized
NPDES programs suggesting that EPA rely on the Performance Partnership
Agreements (PPA) and Performance Partnership Grants (PPG) process to
manage SEV data sharing expectations.\8\ EPA has decided not to use the
PPA and PPG process to manage SEV data sharing between authorized NPDES
programs and EPA for the following reasons.
---------------------------------------------------------------------------

    \8\ Individual PPAs can range from general statement about how
the state and EPA will work together as partners (perhaps
identifying joint priorities that will be addressed) to
comprehensive, multi-program documents that detail each party's
roles and responsibilities. Some PPAs meet relevant statutory and
regulatory requirements and also serve as the work plans for
Performance Partnership Grants (PPGs) or other EPA grants. In a few
cases, the PPA contains a more general discussion of the working
relationship between EPA and the state rather than a discussion of
priorities and programs.
---------------------------------------------------------------------------

    PPAs and PPGs are often voluntary and all authorized NPDES programs
use these documents to govern data sharing between authorized NPDES
programs and EPA. Several states with PPAs have not updated them since
the mid to late 1990s, and the degree of specificity of PPA commitments
such as data entry, inspections, and enforcement actions varies widely.
This highly variable, voluntary process is not sufficient to encourage
and evaluate national consistency in meeting national program
expectations for NPDES data entry and tracking, compliance evaluations
and determinations, and timely and appropriate enforcement response.
    Additionally, an authorized NPDES program is only required to share
with EPA SEV data from a construction stormwater inspection when the
authorized NPDES program also issues a formal enforcement action
against the inspected construction site. As noted in the proposal, EPA
made this distinction based on the large number of facilities in this
segment of the NPDES universe (approximately new 200,000 construction
sites each year). This distinction is made in appendix A to 40 CFR part
127.
    Finally, EPA notes that data from some SEVs will be self-reported
by the permitted facilities. For example, a sewer overflow is an SEV
but the permittee will be collecting and electronically sharing these
data with the permitting authority (i.e., it will be the permittee that
will electronically report these SEV data to the authorized NPDES
program who will then electronically share these data with EPA). There
are similar examples of permitted facilities reporting on SEVs in other
program reports (e.g., CAFO Annual Report, Biosolids Annual Report).
EPA has included in the Economic Analysis and Information Collection
Request supporting the final rule the cost and burden of expanding the
requirement on authorized NPDES programs to share with EPA SEV data on
nonmajors (see DCN 0197).

VI. Economic Analysis

A. Regulatory Requirements Addressed by the Economic Analysis

    Executive Order 12866 directs federal agencies to perform an
economic analysis (EA) to give decision makers information to determine
that there is a need for the rule and that benefits of the rule justify
the costs of the rule. Further, Executive Order 12866 requires that the
rule maximize the net benefits to society, be cost effective and be
based on the best reasonably obtainable information.\9\ E.O. 12866
defines the threshold for economically significant rules as one that is
expected to create impacts to the economy of $100 million or more or
otherwise adversely affect the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities in a
material way.\10\ The EA also addresses the requirements of the
Unfunded Mandates Reform Act (UMRA) and the Regulatory Flexibility Act
(RFA).
---------------------------------------------------------------------------

    \9\ Economic Analysis of Federal Regulations Under Executive
Order 12866, Office of Management and Budget, January 11, 1996, DCN
0064.
    \10\ Id.
---------------------------------------------------------------------------

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to review their proposed rules and
regulations to determine if they will have ``a significant economic
impact on a substantial number'' of small entities. But the RFA does
not define ``significant economic impact'' or ``substantial number.''
In its regulatory flexibility analysis EPA adopted the Small Business
Administration's (SBA) definition of small entities, and used a
threshold of 1% of revenue to determine economic significance. Using
the SBA definition, EPA estimated that 108,000 small entities would
incur costs under the final rule.\11\
---------------------------------------------------------------------------

    \11\ Note that fewer facilities are considered in the small
entity analysis (164,093 unique facilities, reflecting the number of
facilities in ICIS-NPDES at the time of this analysis) than were
estimated in Chapter Two of the EA (393,359 unique facilities) due
to data limitations. As a result, the estimated number of small
entities incurring costs under the rule is likely underestimated.
However, the assumption is made that facilities affected by the rule
but not currently in ICIS-NPDES will experience small entity impacts
similar to the facilities currently in ICIS-NPDES. See the Economic
Analysis for the Final Rule for more details.
---------------------------------------------------------------------------

    EPA estimates initial implementation costs for the regulated
facilities to be no more than $314 per facility, with an additional
intermittently recurring cost of approximately $6 for some permittees.
EPA also estimates that a limited number of small entities might be
required to report both electronically and on paper to their permitting
authority during the first five years after the effective date of the
rule, each incurring as much as $86 in additional annual costs. Only
one entity is expected to incur a cost impact of 1% or greater
associated with the annualized compliance costs resulting from the
final rule. While impacts of greater than 1% are estimated to be
incurred by one entity due to the rule, impacts of greater than 1% are
incurred by far fewer than 100 small entities and considerably less
than 20% of all small entities for all sectors and for each sector
individually. Therefore, following EPA guidance on assessment of the
rule's direct adverse impact on any small entities, the rule is not
expected to significantly impact a substantial number of small
entities.

B. Economic Significance of This Rule

    According to the threshold set out in E.O. 12866, this final rule
is not economically significant. The threshold for a finding of
economic significance is an annual effect, either costs or savings, of
$100 million annually. EPA estimates the largest annual economic
impacts to be $74.4 million in net costs during the first year after
the effective date of the rule [Year 0 in Table 4-16: Schedule of
Savings and Costs (3% Discount Rate) and Table 4-17: Schedule of
Savings and Costs (7% Discount Rate), see DCN 097]. EPA also estimates
$24.3 million in net savings five years after the effective date of the
rule [Year 5 in Table 4-16: Schedule of Savings and Costs (3% Discount
Rate), see DCN 0197].
    Although this rule does not meet the economic significance
threshold, this economic analysis includes most of the elements that
would be required if the threshold were met--a statement of the need
for the rule, an examination of alternatives, and the costs and
benefits. The statement of need is located in Section II, and a
description of the alternative approaches that were considered is
located at Section IV. The non-monetary benefits were discussed in the
first portion of Section VI. The balance of this section summarizes the
estimated savings and costs of the selected approach.

C. Description of Key Factors Used in the Economic Analysis

    The final rule would reduce the data entry burden on the states,
tribes, and territories while increasing the percentage of the NPDES
universe for which data are available electronically. Compared to the
current reporting guidance, known as WENDB, the rule would reduce the
data entry burden on states, tribes, and territories, increase the
number of NPDES-regulated facilities for which NPDES data is available
to EPA, and expand the scope of the available data for all NPDES-
regulated facilities covered by this rule.
    The main elements of this EA are the reporting universe, reporting
frequencies, required data, changes in who reports the data, systems
and infrastructure changes to make the reporting possible, and the
schedule for implementation.
(a) Estimated Universe of Potentially Affected Permittees
    This rule would change the universe of permit types for which EPA
will receive data. As described in Section II, the current reporting
guidance instructs the states to provide EPA with data on the major
dischargers (6,800 permittees) and nonmajor dischargers with individual
permits (approximately 40,000 permittees). Some states provide data on
a larger section of the permittee universe.
    Under the final rule, EPA would receive data on the entire
permittee universe (approximately 400,000 permittees including
pesticides applicators and vessels), as represented in Table 4.

                   Table 4--Universe of NPDES Permits
------------------------------------------------------------------------
                                          Number of NPDES permits
                                  --------------------------------------
         NPDES Subprogram           Individual   Individual    General
                                      majors     nonmajors    nonmajors
------------------------------------------------------------------------
           Non-POTWs (Industrial, Agriculture, and Stormwater)
------------------------------------------------------------------------
Standard Industrial Dischargers          1,683       18,993  \a\ 118,073
 (may also file CWA section
 316(b) data)....................
------------------------------------------------------------------------
                        CWA section 316(b) Filers
------------------------------------------------------------------------
Permits with Cooling Water Intake        1,171            0            0
 Data............................
Permits with Thermal Variance              554            0            0
 Data............................
Industrial Facilities Submitting           200            0            0
 CWA section 316(b) Annual
 Reports.........................
------------------------------------------------------------------------
                 Significant Industrial Users (SIUs) \b\
------------------------------------------------------------------------
SIUs in Municipalities with                  0       29,060            0
 Pretreatment Program............
SIUs in Municipalities without               0        2,487            0
 Pretreatment Program............
Concentrated Animal Feeding                  0        1,266        5,291
 Operations......................
------------------------------------------------------------------------
                 Industrial and Construction Stormwater
------------------------------------------------------------------------
Industrial.......................          132          563       92,282
Construction.....................            1          638      243,227
------------------------------------------------------------------------
                        Municipal Stormwater \c\
------------------------------------------------------------------------
Phase I municipal separate storm           249            0            9
 sewer systems (MS4s)............
Phase II MS4s....................            0          204        5,093
------------------------------------------------------------------------
 POTWs and TWTDSs (may have a CSS or a SSS, may also file more than one
                                 report)
------------------------------------------------------------------------
POTWs with Combined Sewer Systems          462          244           68
 (CSSs) \d\......................
POTWs with Sanitary Sewer Systems        3,533        9,197        1,281
 (SSSs) only \d\.................
TWTDSs...........................          779        7,510          655
------------------------------------------------------------------------
                        POTW NPDES Report Filers
------------------------------------------------------------------------
Biosolids/Sewage Sludge Report           4,209          694            0
 Filers..........................
Pretreatment Program Report              1,462          114            0
 Filers..........................
Sewer Overflow Event Report              4,774       16,950        2,003
 Filers \d\......................
------------------------------------------------------------------------
\a\ Includes 9,125 pesticide applicators and 63,000 vessels that are
  already filing electronically.
\b\ These industrial facilities discharge to POTWs and are regulated by
  the NPDES program through EPA's General Pretreatment Regulations (40
  CFR part 403) and Categorical Pretreatment Standards (40 CFR parts 405
  through 471). They do not have NPDES permits, but those in
  municipalities without pretreatment programs would report
  electronically under the rule.
\c\ Nearly all Phase I MS4s are individually permitted facilities. For
  purposes of cost estimating, the analysis treats all individually
  permitted Phase I MS4s as majors and all Phase II MS4s as nonmajors.
\d\ The analysis divides the total universe of POTWs into CSSs and SSSs
  and treats those that are only partially composed of CSSs as CSSs.

    Table 4 shows the types and estimated numbers of permits in each of
the applicable categories. Note, however, that some facilities have
reporting requirements under more than one subprogram, in which case
they are counted in each applicable group because that is the basis for
regulation and reporting. Specifically, CWA section 316(b) filers are a
subset of standard industrial dischargers and POTW NPDES report filers
are a subset of the group of POTWs and TWTDSs. Also note that SIUs do