notes that authorized states, tribes, and territories may also require
permittees to submit additional data electronically (data in addition
to the minimum set of data provided in Appendix A to 40 CFR part 127).
EPA's electronic reporting tools would be flexible to allow the
collection and transfer of these additional data to authorized NPDES
programs. This is consistent with EPA's requirements for approving
NPDES program authorizations, in which state forms need to collect at
least the same basic information as the forms used by EPA (e.g., 40 CFR
123.22).
    Taken together, electronically reporting the information described
above would save the states, tribes, and territories considerable
resources, make reporting easier for permittees, make it easier for the
states and EPA to exchange data with each other and to provide it to
the public, and enable better environmental decision-making.
a. Discharge Monitoring Report (DMR) Data
i. Background
    EPA's regulations require reporting of samples and measurements
taken for the purpose of compliance monitoring at intervals specified
in the NPDES permit [40 CFR 122.41(j) and (l)(4)]. When self-monitoring
results are reported to the permitting authority, they are compared
with current permit limits and any existing enforcement orders to
determine facility compliance. The sample collection and analytical
results required by the NPDES permit must be reported to the permitting
authority through the submission of Discharge Monitoring Reports (DMRs)
[40 CFR 122.41(l)(4)(i)]. It is extremely important that the data
reported on the DMR is timely, accurate, complete, and legible to
ensure that the facility's compliance status is correctly reflected;
electronic reporting will likely improve each of these qualities.
    As of October 1, 2011, there are approximately 63,000 facilities
submitting DMRs to their permitting authorities; the majority of these
are individually-permitted facilities that directly discharge to
surface waters. The universe of NPDES-regulated facilities has grown
since the passage of the Clean Water Act and some facilities in these
new sectors (e.g., some regulated stormwater discharges and vessels)
are required to submit DMRs.
    The DMR submission process that is most frequently used requires
the permittee to mail a hard-copy form of a pre-printed form (OMB
Control No. 2040-0004) to the authorized NPDES permitting authority.
After receiving the hard copy version of the DMR, the authorized NPDES
permitting authority enters this data into an electronic database
(ICIS-NPDES or state database system). When a state, tribe, or
territory applies for and obtains the authority to implement the NPDES
permitting and enforcement program, the state, tribe, or territory is
required to have a system for evaluating all DMRs [40 CFR 123.26(e)].

ii. Existing Reporting Requirements and Expectations
    The permittee is responsible for understanding and meeting all
permit requirements and submitting timely, accurate, complete, and
legible self-monitoring data in accordance with the CWA and its
implementing regulations. The sample collection and analytical results
required by the NPDES permit must also be reported to the permitting
authority through the submission of DMRs at the frequency specified in
the permit [see 40 CFR 122.41(j) and (l)(4)]. DMRs must be signed and
submitted to the permitting authority by the date specified in the
permit [40 CFR 122.41(k) and (l)(4)]. All facilities must submit DMRs
at least annually [40 CFR 122.44(i)(2)], at the frequency specified in
the permit.
    EPA's PCS Policy Statement (as amended) created the expectation
that the permitting authority enter facility information for all
permitted facilities and DMR information from major facilities into
ICIS-NPDES. About half of NPDES-authorized states also transmit DMR
data for nonmajor facilities to ICIS-NPDES. EPA also notes that some
NPDES permits require the electronic reporting of baseline monitoring
data on DMR forms [e.g., EPA's Multi-Sector General Permit (MSGP)], as
baseline monitoring and effluent monitoring both relate to wastewater
discharges and the same data elements as DMRs. Authorized states,
tribes, and territories currently report DMR data to EPA (ICIS-NPDES)
by one of the following means:
     Collecting paper-based DMR forms, manually entering the
information into the state, tribe, or territory database, and entering
the expected federal data into ICIS-NPDES either on the web or through
Batch eXtensible Markup Language (XML) files.
     Developing and using a customized state, tribe, or
territory electronic DMR (eDMR) tool that allows regulated entities to
enter and electronically submit DMR data into a web-based application.
The DMR data is then sent to the state, tribe, or territory database
and the state, tribe, or territory is responsible for entering the
expected federal data into ICIS-NPDES either on the web or through
Batch XML files.
     Sending data directly from the regulated entity to ICIS-
NPDES through a customized installation of NetDMR, which is the federal
eDMR tool.
     Allowing regulated entities to enter data into the
National Installation of NetDMR.
    Because there is a significant burden on states, tribes, or
territories associated with manually entering DMR data into a data
system, some states, tribes, or territories found that they were not
able to meet their regulatory requirement [see 40 CFR 123.26(e)] to
evaluate all DMR data for violations (see 2008 and 2009 Clean Water Act
Annual Noncompliance Reports, DCN 0016 and 0025) or meet EPA's ICIS-
NPDES data entry policy expectations (see DCN 0026). As documented in
the Agency's 2008 Annual Noncompliance Reports, eight states reported
reviewing less than 50 percent of their nonmajor facilities for
noncompliance (see DCN 0016). The lack of an automated, searchable
NPDES data tracking system for each authorized state, tribe, or
territory contributes to this gap in compliance oversight and
environmental protection.
    To address such problems, 34 states (as of October 1, 2011) have or
are planning to use electronic reporting tools where the permittee
transfers DMR data over the internet into state or Federal databases.
These tools include NetDMR, EPA's current eDMR tool, which was released
in June 2009. NetDMR allows NPDES-regulated facilities to enter and
electronically submit DMR data through EPA's CDX to ICIS-NPDES as an
alternative to the paper-based DMR submission process. NetDMR and other
comparable state, tribe, or territory tools essentially reproduce the
pre-printed DMR in electronic format. Some of these tools allow for a
properly formatted file [e.g., comma-separated value file or Extensible
Markup Language (XML) file] to be shared between EPA, states, tribes,
and territories, which is an important step towards more efficient data
sharing. Most of these state, tribe, or territory DMR tools submit data
to the state, tribe, or territory data system, which in turn sends the
data to either ICIS-NPDES. These electronic reporting tools provide a
successful model for transforming the paper-driven process with e-
reporting.
    The adoption rate, or percent of permittees that use electronic
reporting, in the states where electronic reporting of DMRs is an
option as of October 1, 2011, is generally less than half. EPA believes
this is because electronic reporting is not required, and/or release of
electronic reporting tools is relatively recent (see DCN 0027).
However, as described in more detail in Section III.B.1, Ohio is an
example of a state that has been able to achieve close to 100 percent
of electronic reporting of DMRs by implementing a phased approach for
requiring permittees to use the eDMR system and by providing
comprehensive training. EPA believes the Ohio experience validates the
position that national electronic reporting of DMRs is feasible.
iii. What Data Would be Required to be Submitted Electronically and Why
    EPA is soliciting comment on having NPDES-regulated facilities
electronically submit DMRs in accordance with the proposed 40 CFR
122.41(l)(4), which would reference the need for these submissions to
be compliant with 40 CFR part 3, 122.22, and part 127. Some permitting
authorities may require baseline monitoring discharge data to also be
reported on DMR forms. The data elements specific to DMRs are listed in
Appendix A to 40 CFR part 127. EPA is proposing to revise 40 CFR
122.41(l)(4)(i) to include electronic reporting requirements.
iv. Additional Considerations
    EPA intends to expand the current NetDMR system and encourage the
expansion of state, tribe, and territory eDMR systems to include DMRs
for the existing and anticipated NPDES-regulated community. To support
the requirements under the proposed rule, EPA will expand NetDMR by the
effective date of this rule to include all facilities that report DMRs
and to add functionality, streamline overlapping system functionality,
and provide a more robust platform for permitting authorities to manage
and submit DMR data, including the addition of state-specific data that
is not listed in the minimum set of federal data (Appendix A to 40 CFR
part 127).
    EPA is also exploring the development of an ``open platform''
option that would allow NPDES-regulated facilities to use third-party
software for electronically submitting NPDES program data (e.g., DMRs)
to the state, tribe, territory, or EPA in compliance with 40 CFR part
3, 122.22, and part 127 (see June 23, 2011; 76 FR 36919). As previously
discussed in Section III.B.1 of this preamble, this open platform
option would be similar to the IRS model for electronic reporting,
which uses third-party software vendors (e.g., TurboTax, TaxACT, or
others) for tax data collection and transmission.\18\
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    \18\ Note: Any references to specific products are for
informational purposes only. EPA and the federal government do not
endorse any specific product, service or enterprise.

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b. General Permit Reports: Notice of Intent (NOI) to discharge; Notice
of Termination (NOT); No Exposure Certification (NEC); Low Erosivity
Waiver (LEW)
i. Background
    EPA and authorized states, tribes, and territories issue general
permits to cover multiple similar facilities under a single permit.
Where a large number of similar facilities require permits, a general
permit allows the permitting authority to allocate resources in a more
efficient manner and provide more timely permit coverage than would
occur if individual permits had to be issued to each similar facility.
States, tribes, and territories must seek EPA approval to administer
general permits.\19\ EPA's regulations governing the General Permit
Program are located at 40 CFR 122.28. EPA and authorized programs have
issued over 700 general permits nationwide.
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    \19\ See http://cfpub.epa.gov/npdes/statestats.cfm.
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    General permits typically share common elements: \20\
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    \20\ See 40 CFR 122.28(a)(2).
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     Sources that involve the same or substantially similar
types of operations;
     Sources that discharge the same types of wastes or engage
in the same types of sludge use or disposal;
     Sources that require the same effluent limitations or
operating conditions, or standards for sewage sludge use or disposal;
or
     Sources that require the same monitoring where tiered
conditions may be used for minor differences within a class (e.g., size
or seasonal activity).
    The regulations at 40 CFR 122.28(a)(1) provide for general permits
to cover dischargers within an area corresponding to specific
geographic or political boundaries such as the following:
     Designated planning area;
     Sewer district; and
     City, county, or state boundary.
    The process for developing and issuing NPDES general permits is
similar to the process for individual permits; however, there are some
differences in the sequence of events. For general permits, the
permitting authority first identifies the need for a general permit and
collects data that demonstrate that a group or category of dischargers
has similarities that warrant a general permit. In deciding whether to
develop a general permit, permitting authorities consider whether:
     A large number of facilities will be covered;
     The facilities have similar production processes or
activities;
     The facilities generate similar pollutants; and
     Whether uniform water quality-based effluent limits
(WQBELs) (where necessary) will appropriately implement water quality
standards.
    The remaining steps of the general permit process are the same as
for individual permits. The permitting authority develops a draft
permit that includes effluent limitations (if applicable), monitoring
conditions, special conditions, and standard conditions. The permitting
authority then issues a public notice and addresses public comments,
coordinates with EPA as appropriate in the review process, completes a
CWA section 401 certification process, develops the administrative
record, and issues the final permit. The final permit will also
establish the requirements for the specific information that must be
submitted by a facility that wishes to be covered under the general
permit.
    After the final general permit has been issued, there are several
general permit reports that facilities must submit to their permitting
authority, including:
     Notice of Intent (NOI) to discharge: This is the initial
submission seeking coverage under a general permit [40 CFR
122.28(b)(2)(i) and (ii)];
     Notice of Termination (NOT): A request by the permittee to
terminate their coverage under an existing permit (40 CFR 124.5);
     No Exposure Certification (NEC): A certification from a
facility indicating that coverage under an existing stormwater general
permit is not necessary due to certain facility-specific conditions [40
CFR 122.26(g)(1) and (4)]; and
     Low Erosivity Waiver (LEW): A certification from a
facility indicating that coverage under an existing construction
stormwater general permit is not necessary due to certain facility-
specific or climate conditions [40 CFR 122.26(b)(15)].
    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 issued by EPA and authorized state NPDES
programs. Some general permits provide for automatic coverage.
    This means that neither EPA nor the authorized state, tribe, or
territory programs will have information regarding exactly which
facilities are regulated under these general permits. General permits
cover a wide range of facility types that range from the very large
(e.g., offshore oil and gas facilities, seafood processors) to very
small discharges. Discharges from facilities covered under general
permits include a variety of pollutants, such as total suspended
solids, biochemical oxygen demand, oil and grease, bacteria, nutrients,
hydrocarbons, metals, and toxics. The following table presents an
estimate of several types of general permit covered facilities:

      Table IV.1--Estimate of Facilities Covered by General Permits
------------------------------------------------------------------------
                                              Current        Estimated
                                             number of     total number
           General permit type              facilities    of  facilities
                                               \21\        over  5 years
------------------------------------------------------------------------
Construction Stormwater.................         222,000  \22\ 1,010,000
Industrial Stormwater...................         100,000         171,000
CAFO....................................          11,600          14,000
Small Municipal Separate Stormwater                6,300           8,000
 Sewer Systems..........................
Vessel General Permit \23\..............          69,000         100,000
Pesticide Applicators \24\..............         365,000         645,000
Other Industrial General Permits (e.g.,           31,800          40,000
 oil and gas extraction, seafood
 processors)............................
Combined Sewer Systems (CSSs)...........              38              38
Sanitary Sewer Systems (SSSs)...........           1,900           1,900
                                         -------------------------------
    Total...............................         816,138       1,989,938
------------------------------------------------------------------------

    Finally, EPA notes that POTWs with approved pretreatment programs
can use general control mechanisms, such as general permits, to
regulate the activities of groups of significant industrial users
(SIUs). Provided that the POTW has the necessary legal authority, it
may issue a general control mechanism for a group of SIUs that meet
certain minimum criteria for being considered substantially similar [40
CFR 403.8(f)(1)(A)(1)]. Pretreatment reporting is discussed in Section
IV.E.1.e.
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    \21\ As of October 2011.
    \22\ Although EPA anticipates the need to manage data flows for
approximately 1 million CGP permittees over the next 5 years, due to
rapid turnover there will only be approximately 202,000 permittees
at any given time.
    \23\ Not covered in this proposed rule; the reasons are
described in Section IV.E.6.c.
    \24\ Not covered in this proposed rule; the reasons are
described in Section IV.E.6.d.
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ii. Existing Reporting Requirements
    In general, there is significantly less data in ICIS-NPDES on
facilities covered by general permits than facilities regulated under
individual permits due to reduced state reporting requirements for non-
major facilities. Most facilities covered by general permits are
classified as non-majors. States, tribes, territories, and EPA regions
are required to enter data concerning the general permit and some
limited data regarding general permit covered facilities. Limited data
on general permit covered facilities impedes an accurate assessment of
this part of the NPDES program. .
    In particular, there are significantly less DMR data and linkages
to receiving waters for these facilities as compared to facilities
controlled by individual permits. EPA estimates that approximately 90
percent of general permit covered facilities regulated by a non-
stormwater general permit are required to submit DMRs. However, most of
the general permit covered facilities are nonmajors and their DMR data
is not yet incorporated into ICIS-NPDES. This lack of data
significantly inhibits public transparency on discharge data and
compliance with permit effluent limits, as roughly 95 percent of all
NPDES-regulated entities are covered by general permits.
iii. What data would be required to be submitted electronically and
why?
    EPA is soliciting comment on having facilities electronically
submit NOIs and NOTs for permit coverage or requesting the termination
of permit coverage in accordance with 40 CFR 122.28(b)(2)(i) and (ii),
122.41(l), 122.26(b)(15) and (g)(4), and 124.5, which are proposed to
be updated to reference the need for these submissions to comply with
40 CFR part 3, 122.22, and part 127. Similarly, as required, NECs and
LEWs are to be completed and submitted electronically by the facility
in accordance with 40 CFR 122.26(b)(15) and (g)(4), which references
the need for these submissions to comply with 40 CFR part 3, 122.22,
and part 127. The data elements specific to these general permit
reports are listed in Appendix A to 40 CFR part 127.
    In addition to notifying the permitting authority of a facility's
desire to obtain, waive, or terminate permit coverage, the general
permit reports submitted by facilities also provide EPA, the state,
tribe, or territory with data about the facility and its operations.
These data include: information identifying the facility; a description
of the facility's processes, wastewater volumes, and pollutant
characteristics; discharge point locations, including the name of the
receiving water body; projected start and end dates of permit coverage;
effects of discharge on threatened or endangered species; certification
statements; and other site-specific data. Although each general permit
can impose slightly different reporting requirements, the process is
consistent and may include some of the following types of data:
     Facility information (e.g., ownership, name, address,
location, non-government contacts);
     Permit information (e.g., NPDES ID, permit number, permit
type, various permit dates, permitted flow information, information
about permit status, industry category and codes, permit limits, and
permittee address information);
     Certain information for cooling water intake structures
and thermal variances where applicable (e.g., intake type, number of
intakes, design intake flow);
     Report information associated with NOTs, NECs, and LEWs;
     Biosolids information, where applicable (e.g., sewage
sludge production and disposal information);
     CAFO information, where applicable (e.g., animal types and
numbers, confinement types and capacity, storage types and capacities);
     Stormwater discharge information, where applicable (e.g.,
receiving water body name, project size, residual designation
information, MS4 data, project termination data);
     CSO information, where applicable (e.g., incorporated
controls, population served, information on collection system and
satellite systems);
     Pretreatment information, where applicable (e.g., program
indicators and dates, receiving POTW, streamlining dates, control
authority); and
     POTW information, where applicable (e.g., population
served, and satellite collection system information).
    EPA is soliciting comment on a minimum set of data (see Appendix A
to 40 CFR part 127) be submitted electronically to ensure consistent
and complete reporting nationwide and to expedite the collection and
processing of the data, thereby making it more timely, accurate,
complete, and available to the public. EPA estimates that the
electronic submission of these general permit reports will save the
states, tribes, and territories considerable resources, make reporting
easier for NPDES-regulated entities, streamline permit renewals (as
permit writers typically review previous noncompliance events during
permit renewal), ensure full exchange of NPDES general permit data
between states, tribes, territories, and EPA to the public, and improve
environmental decision-making. The standard minimum data elements are
provided in Appendix A to 40 CFR part 127. This proposed rule does not
expand the reporting requirements for permittees beyond what is
required by existing regulations.
    In most cases, a business or facility will only be required to
submit such forms once during each permit cycle. Most of these general
permit reports are currently being received by the states, tribes,
territories, or EPA in hard-copy form (i.e., printed on paper) for
distribution within the permitting authority for approval processing
and management. In addition to the four general permit reports (i.e.,
NOIs, NOTs, LEWs, and NECs), facilities operating under some general
permits are also required to electronically submit other NPDES data
(e.g., DMRs).
iv. Additional Considerations
    During the implementation period, EPA will address variations in
the four general permit reports (e.g., NOIs, NOTs, LEWs, NECs) across
the different authorized NPDES programs. EPA's goal is to implement a
general permit reporting system that can capture general permits data
nationally. For example, EPA currently operates an electronic reporting
system for NOIs and a Vessels One Time Report supporting four EPA-
issued general permits: Multi-Sector General Permit (MSGP) \25\;

Construction General Permit (CGP) \26\; Vessels General Permit (VGP)
\27\; and the Pesticides General Permit (PGP). The MSGP and CGP
regulate facilities where EPA is the permitting authority (e.g., in
non-authorized states, tribes, and territories) and the VGP is a
nationwide permit administered by EPA. On October 31, 2011, EPA issued
a final NPDES Pesticide General Permit (PGP) for point source
discharges from the application of pesticides to waters of the United
States.
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    \25\ See http://cfpub.epa.gov/npdes/stormwater/msgp.cfm.
    \26\ See http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.
    \27\ http://cfpub.epa.gov/npdes/vessels/vgpermit.cfm.
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    All state, tribe, and territory MSGPs and CGPs should be collecting
similar data, but some states, tribes, and territories might be
collecting additional data elements for their own needs. For these
general permits, EPA believes a reporting tool based on the federal
MSGP and CGP, which includes a number of definable data fields can
accommodate the full range of state, tribe, or territory variability.
In essence, the reporting tool could merge the EPA data fields with
other definable fields to produce a ``customized'' general permit
reporting tool specifically for use by permittees within that state,
tribe, or territory. EPA anticipates a certain amount of data
commonality that will help limit the number of truly unique fields on
reporting forms.
    Several factors could reduce the number of unique reporting tools
that would be needed. First, substantial portions of all general
permits are quite similar-such as the data identifying the facility and
its owners and operators. In addition, many of the general permit types
would be tracked by multiple states, tribes, or territories and may be
similar due to common permittee operations, discharges, or monitoring.
Several states, tribes, or territories have either developed general
permits for specific industries, or have developed a more generic
general permit that includes an industry as a subset under a broader
category. Where common general permit data are identified across
states, tribes, and territories, a limited number of industry-specific
templates, each of which includes a limited number of definable fields,
might be able to accommodate the full range of variability among non-
EPA issued general permits. EPA solicits comment on how to best address
the variability of general permits issued by EPA, states, tribes, and
territories. There are a number of scenarios as states, tribes, and
territories move toward the electronic submission of general permit
reports.
     Permits Covered by State, Tribal, and Territory General
Permit Electronic Reporting Tools--As of October 1, 2011, approximately
15 states use an electronic reporting tool for NOIs for at least some
of their permit types (see DCN 0027). EPA expects these states to
continue using their existing NOI electronic reporting tools. EPA will
review these tools to determine if they comply with 40 CFR part 3,
122.22, and part 127 (see 40 CFR 127.27). States, tribes, and
territories will also be required to share with EPA the minimum set of
federal data (Appendix A to CFR part 127). EPA will provide the states,
tribes, and territories with information on how to provide the data to
EPA's CDX node on the Exchange Network, which will provide the data to
ICIS-NPDES.
     States, Tribes, and Territories Opting to Use EPA's
General Permit Report System- Some states, tribes, and territories do
not have an electronic reporting system for general permit reports and
would prefer not to develop one. States, tribes, and territories have
the option to adopt EPA's electronic reporting tool for general permit
reports. EPA's electronic reporting tool would allow users to enter
their general permit report data into a fillable PDF electronic form
and then electronically sign and submit the form to the authorized
NPDES program. The appropriate authorized NPDES program will approve or
deny the form, and approved forms would be sent to ICIS-NPDES by the
tool through CDX. EPA's electronic reporting tool for general permit
reports will also offer users the capability of sending the approved
general permit data to a particular state, tribe, and territory NPDES
data system.
    When a state, tribe, or territory notifies EPA that they intend to
use EPA's tools to allow their permittees to electronically submit
general permit reports, the EPA system administrator will set up a
general permit report workspace within the federal tool for use by EPA
regions and authorized state, tribe, or territory programs. After that
workspace has been set up, the tool will solicit essential general
permit data and monitoring requirements from ICIS-NPDES via CDX to
populate electronic forms. EPA regions and authorized state, tribe, or
territory programs will also have the capability of creating new
general permits in the new federal tool. These forms would be
accessible to facilities through the workspace. An authorized NPDES
program administrator would be responsible for approving general permit
reports from users, establishing the limit monitoring requirements for
an approved NOI, and submitting the data to ICIS-NPDES.
    The authorized NPDES program user would be responsible for
confirming that ICIS-NPDES has processed the data and would either
communicate errors back to the facility user or generate a confirmation
letter for the facility user along with a permit identifier that has
been assigned by ICIS-NPDES. The new federal tool will provide an easy
means for the authorized NPDES program to manage these general permit
data without requiring direct access to ICIS-NPDES.
    As noted in the implementation section (see Section IV.K),
facilities seeking coverage, waiver, or termination from a general
permit would be required to submit the information required by this
rule electronically. If the general permit does not require electronic
reporting, then these facilities would be required to submit paper copy
general permit reports to their permitting authority for approval and
(unless the permitting authority is EPA) also report electronically to
EPA under Sections 304(i) and 308 of the Clean Water Act. If that
general permit requires electronic reporting, it must be compliant with
40 CFR part 3 (CROMERR) and 40 CFR part 127 (NPDES Electronic Reporting
Rule), including submission to the appropriate initial recipient, as
identified by EPA, and as described in Section IV.I.
c. CAFO Program Reports
i. Background
    Concentrated animal feeding operations (CAFOs) are animal feeding
operations where animals are kept and raised in confinement, as defined
at 40 CFR 122.23(b)(2), and that meet certain regulatory criteria or
are designated by the permitting authority or Regional Administrator.
In the absence of facility-specific data, EPA's Office of Water
estimates there are approximately 14,400 large or medium CAFOs
nationwide. The Office of Water estimates that of this universe,
approximately 8,300 CAFOs have NPDES permits. Of the remaining large
and medium CAFOs, it is unknown how many of them discharge and need
permit coverage (see DCN 0029). Failure to properly manage manure,
litter, and process wastewater at CAFOs can negatively impact the
environment and public health. Discharges of manure and wastewater from
CAFOs have the potential to contribute pollutants such as nitrogen,
phosphorus, organic matter, sediments, pathogens, heavy metals,
hormones, and ammonia to surface waters.

ii. Existing Reporting Requirements
    Under the existing NPDES regulations, pursuant to 40 CFR
122.23(d)(1), every CAFO that discharges must apply for either an
individual NPDES permit or seek coverage under a general permit, if
available. NPDES-permitted CAFOs are required to submit an annual
report to the State Director or Regional Administrator pursuant to 40
CFR 122.42(e)(4). The annual report must include: (1) The number and
type of animals, whether in open confinement or housed under roof; (2)
estimated amount of total manure, litter, and process wastewater
generated by the CAFO in the previous 12 months (tons or gallons); (3)
estimated amount of total manure, litter, and process wastewater
transferred to other persons by the CAFO in the previous 12 months
(tons or gallons); (4) total number of acres for land application
covered by the CAFO's nutrient management plan; (5) total number of
acres under control of the CAFO that were used for land application of
manure, litter, and process wastewater in the previous 12 months; (6)
summary of all manure, litter, and process wastewater discharges from
the production area that have occurred in the previous 12 months,
including date, time, and approximate volume; (7) a statement
indicating whether the current version of the CAFO's nutrient
management plan was developed or approved by a certified nutrient
management planner; and (8) specified supporting agricultural data and
calculations including the actual crop(s) planted and actual yield(s)
for each field, and the actual nitrogen and phosphorus content of the
manure, litter, and process wastewater.
iii. What Data Would Be Required To Be Submitted Electronically and
Why?
    EPA is soliciting comment on requiring CAFO permitted facilities
electronically submit CAFO annual reports in accordance with 40 CFR
122.42(e)(4), which references the need for these submissions to be
compliant with 40 CFR part 3, 122.22, and part 127. The data elements
specific to these annual reports are listed in Appendix A to 40 CFR
part 127. EPA is proposing to revise 40 CFR 122.42(e)(4) to include
electronic reporting requirements.
    The electronic submission of annual reports would help permitting
authorities collect and process CAFO information more efficiently, and
aid in the evaluation of the compliance status of NPDES-permitted
CAFOs. Electronic annual reports would provide the data elements
already required under 40 CFR 122.42(e)(4) in a more efficient and
accessible form, allowing EPA, the states, tribes, territories, and the
public to obtain updated information such as how many permitted CAFOs
there are in the U.S., how many animals of each animal type are being
raised at permitted CAFOs, how many permitted CAFOs have had discharges
within the previous year, the type and amounts of manure generated by
permitted CAFOs in the previous year, and the requirements and controls
on these CAFOs.
    Electronic reporting of CAFO annual reports will also improve
compliance monitoring. EPA, states, tribes, and territories rely on the
information contained in annual program reports to augment inspections
and effectively monitor compliance. The electronic submittal of annual
reports will supply basic information on permitted CAFOs as well as
more detailed discharge information.
    Finally, EPA is soliciting comment on eliminating the reporting of
``time'' of discharge from the annual report [see 40 CFR
122.42(e)(4)(vi)]. EPA estimates that the reporting of the ``date'' of
a discharge is sufficient for permitting and compliance determinations.
EPA solicits comment on this proposed change.
iv. Additional Considerations
    EPA recognizes that electronic reporting could be impracticable for
some CAFO facilities, particularly those that do not have broadband
access to the internet. In general, electronic reporting tools require
faster Internet connection speeds to work most effectively. Taking into
account the limitations of broadband availability and technological
capabilities, EPA is considering providing a temporary exception to the
electronic reporting requirements for certain CAFO facilities or other
facilities lacking broadband capability or high-speed Internet access
and solicits comment on such an exception. See 40 CFR 127.15. In that
section, EPA solicits comment on whether to allow such facilities to
receive a temporary waiver from electronic reporting, and temporarily
be required to submit their NPDES compliance information on paper-based
forms.
d. Sewer Overflow and Bypass Reports
i. Background
    This section of the preamble discusses CSOs and SSOs (together
referred in this proposal as ``sewer overflow events''), and wastewater
treatment works bypasses. CSO discharges generally occur at known
outfall locations and are covered by an NPDES permit. SSOs generally do
not occur at designated locations, but can occur from various locations
in the system (e.g., manholes). A bypass at a POTW is an intentional
diversion of wastewater from any portion of the treatment facility. See
40 CFR 122.41(m)(l).
ii. Existing Program Reporting Requirements
    Reporting requirements for sewer overflows and bypasses in NPDES
permits are to be at least as stringent as specified in the ``standard
conditions'' applicable to all NPDES permits [40 CFR 122.41(l), and
(m)(3)] or the CSO Control Policy [59 FR 18688, April 19, 1994)] The
following summarizes the current reporting requirements for sewer
overflows and bypasses.
    Combined Sewer Overflows
    Under Section 402(q)(1) of the Clean Water Act, NPDES permits for
combined sewer system discharges shall conform to EPA's 1994 CSO
Control Policy.\28\ The CSO Control Policy calls for a phased approach
to permitting. In Phase I permits, all permittees with combined sewer
systems were initially required to immediately implement Best Available
Technology/Best Control Technology, which at a minimum includes the
``nine minimum controls'' as determined on a Best Professional Judgment
(BPJ) basis by the permitting authority and develop a long-term CSO
control plan that will ultimately result in compliance with the
requirements of the CWA, including water quality standards. Phase II
permits contain requirements for implementing the permittees' long-term
CSO control plans (LTCPs).
---------------------------------------------------------------------------

    \28\ See EPA's Web site at: http://cfpub.epa.gov/npdes/cso/cpolicy.cfm.
---------------------------------------------------------------------------

    The nine minimum controls are measures to reduce the prevalence and
impacts of CSOs and include two information-related measures.
Permittees are required to provide ``public notification to ensure that
the public receives adequate notification of CSO occurrences and CSO
impacts,'' and to conduct ``monitoring to effectively characterize CSO
impacts and the efficacy of CSO controls.'' Development and
implementation of the LTCPs entails the following, which include
monitoring and reported activities:
     Characterizing, monitoring, and modeling of the combined
sewer system (see CSO Control Policy Section II.C.1);
     Prohibiting new or significantly increased overflows to
sensitive areas, which requires monitoring and

assessment of the CSO events (see CSO Control Policy Section II.C.3.a);
     Conducting an evaluation of CSO controls based on
frequency, duration, volume, location, treatment, and compliance with
water-quality standards (see CSO Control Policy Section II.C.4);
     Conducting a cost and performance analysis of the LTCP
based on characterization, monitoring, and modeling data (see CSO
Control Policy Section II.C.5);
     Maximizing treatment at the existing POTW treatment plant
based on characterization, monitoring, and modeling data (see CSO
Control Policy Section II.C.7); and
     Conducting a post-construction compliance monitoring
program, according to a plan which details the monitoring protocols to
be followed, such as the necessary effluent, ambient, and other water-
quality monitoring, which must be approved by the NPDES authority (see
CSO Control Policy Section II.C.9).
    The characterization, monitoring, modeling, and reporting measures
help the permittee and the NPDES permitting authority determine the
appropriate controls to be implemented and the effectiveness of the
controls selected in the LTCP in meeting CWA requirements and achieving
applicable water quality standards. The NPDES permitting authority uses
CSO monitoring and assessment data from the permittee in order to
develop appropriate permit conditions and demonstrate compliance with
the CSO Control Policy. NPDES permits must identify the CSO outfalls
and permitted discharges. All discharges from these outfalls, whether
dry or wet-weather discharges, are subject to reporting requirements
under NPDES permits. CSO discharges from CSO permitted outfalls (dry or
wet-weather) that constitute noncompliance are required to be reported
under 40 CFR 122.41(l)(6) and (7). CSO discharges from CSO permitted
outfalls (wet-weather) that do not result in noncompliance can be
reported on DMRs [40 CFR 122.41(l)(4)(i)] at the frequency identified
by the permit, and are subject to public notification requirements, one
of the nine minimum measures under the CSO Control Policy. However, one
of the nine minimum measures is to prohibit CSO discharges during dry
weather. Therefore, EPA regulations require that these and other
noncompliance events must be reported under 40 CFR 122.41(l)(6) and
(7).
Sanitary Sewer Overflows
    Separate sanitary sewer systems, unlike combined sewer systems, are
designed to carry only domestic sewage. SSOs are generally unplanned
and can occur anywhere in a collection system, although generally they
are due to excessive infiltration and inflow during and following wet
weather events. SSOs, including those that do not reach waters of the
United States, may be indicative of improper operation and maintenance
of the sewer system and thus may violate NPDES permit conditions
requiring proper operation and maintenance [40 CFR 122.41(e)]. These
noncompliance events are required to be reported to the NPDES
permitting authority in compliance with EPA's standard permit
conditions [40 CFR 122.41(l)(6) and (7)]. POTWs must provide an oral
report within 24 hours for any overflow event that ``may endanger
health or the environment'' and follow-up the oral report with a
``written submission'' within 5 days of the permittee's discovery of
the overflow event [see 40 CFR 122.41(l)(6)]. All other overflows are
required to be reported by the permittee with the next regularly
scheduled monitoring report [40 CFR 122.41(l)(7)].
Bypass Events
    EPA regulations [40 CFR 122.41(m)] prohibit ``bypassing'' any
portion of a treatment facility. If the permittee knows that a bypass
will occur, it is required to submit notice to the permitting
authority, if possible at least ten days in advance of anticipated
bypass events [see 40 CFR 122.41(m)(3)(i)]. If a bypass is
unanticipated, permittees must provide an oral report within 24 hours
and follow-up the oral report with a ``written submission'' within 5
days of the permittee's discovery of the bypass event [see 40 CFR
122.41(m)(3)(ii) which references 40 CFR 122.41(l)(6)]. Where a POTW
has a combined sewer system, and the permit includes an approved
anticipated bypass, the permit should specify monitoring and reporting
related to the bypass. This proposed rule does not change the reporting
requirements for bypass events related to non-POTW facilities
(industrial facilities).
iii. What data would be required to be submitted electronically and
why?
    EPA is soliciting comment on requiring POTWs to report sewer
overflow, sanitary sewer overflow, and bypass reports in compliance
with permit conditions implementing 40 CFR 122.41(l)(4),(6), and (7),
(m)(3), and CSO Control Policy would be required to be completed
electronically. These data submissions would be subject to 40 CFR part
3, 122.22, and part 127. The data for these reports would be based on
current reporting requirements and listed in Appendix A to 40 CFR part
127. EPA is proposing to revise 40 CFR 122.41(l)(6) and (7), and
(m)(3)(i) to include electronic reporting requirements for sewer
overflows and bypass events.
    With respect to CSOs, this proposed language would only require
electronic reporting for noncompliant combined sewer overflows. EPA is
not proposing to require the electronic submission of LTCPs as these
reports are unique to each POTW. EPA solicits comment on this approach.
In addition, under section 402(q), permits issued to POTWs with
combined sewer systems must require monitoring and reporting of wet-
weather CSO events in accordance with the CSO Control Policy. As
previously noted, wet weather CSO discharges that do not result in
noncompliance can be reported on DMRs [40 CFR 122.41(l)(4)(i)] at the
frequency identified by the permit. EPA is soliciting comment on
amending 40 CFR 122.41(l)(4) to require the same data that would be
required to be reported under proposed section 122.41(l)(6) and
Appendix A to 40 CFR part 127 be reported electronically by such POTWs
in their DMRs.
    With respect to unanticipated bypasses, EPA is soliciting comment
that the reporting requirements in 40 CFR 122.41(m)(3)(ii) would also
be changed from paper-based reporting to electronic reporting as this
section cross-references section 122.41(l)(6), which EPA is proposing
to amend as above. This proposed rule would not change the reporting
requirements for bypass events related to non-POTW facilities
(industrial facilities).
    The collection, management, analysis, and reporting of data from
the sewer overflow and bypass reports, which have been identified for
conversion from paper-based to electronic reporting under the proposed
rule, would aid EPA oversight of state NPDES programs as well as
provide the public with better access to this data. CSO, SSO, and
bypass events are of special concern with respect to public health
because they can expose the public to bacteria, viruses, intestinal
parasites, and other microorganisms that can cause serious illness such
as cholera, dysentery, hepatitis, cryptosporidiosis, and giardiasis.
Precipitation and snowmelt entering combined and separate sanitary
sewer systems may result in sewer overflow events, which in turn may be
responsible for beach closings, swimming and fishing advisories, and
habitat degradation. Sewer overflows contribute to 15 percent of
impaired

rivers and streams, 6 percent of impaired lakes, and 33 percent of
impaired bays and estuaries.\29\ The Office of Water's (OW) 2004 Report
to Congress on ``Impacts and Control of CSOs and SSOs'' estimated the
annual CSO and SSO discharge volumes of untreated wastewater at 850
billion and three to ten billion gallons per year, respectively.\30\
---------------------------------------------------------------------------

    \29\ U.S. EPA, 2009. ``FY 2010 Office of Enforcement and
Compliance Assurance (OECA) National Program Manager (NPM) Guidance,
April 23, 2009, DCN 0044.
    \30\ U.S. EPA, 2004. '' Report to Congress: Impacts and Control
of CSOs and SSO,'' EPA 833-R-04-001, August, DCN 0045.
---------------------------------------------------------------------------

    As a result of this proposed rule, EPA, states, tribes, and
territories would be able to better estimate the location, frequency,
magnitude, and duration of sewer overflows, the environmental and
public health impacts, and the potential causes. This sewer overflow
data would provide the public with meaningful information on the number
and frequency of sewer overflows in their communities. This data could
also be used to prioritize decisions on how best to upgrade aging
infrastructure and could be integrated with health warnings by local
municipalities to protect public health.
    EPA also solicits comment on whether these sewer overflow reports
should be limited to sewer overflows at a threshold volume or include
de minimis releases (minor volumes associated with routine operation
and maintenance). Finally, EPA also solicits comment on whether the
list of minimum federal data for sewer overflows and bypasses (Appendix
A to 40 CFR part 127) provide sufficient distinction between the
different types of sewer overflows and bypasses.
e. Pretreatment Program Reports
i. Background
    POTWs receive wastewater from households (domestic waste), as well
as from a wide variety of commercial and industrial facilities,
referred to as industrial users (IUs). The types of IUs range widely,
from small restaurants to hospitals to large and complex organic
chemical manufacturers. EPA has further identified some IUs as
categorical industrial users (CIUs), i.e., IUs subject to EPA's
pretreatment standards developed for particular industrial categories,
and significant industrial users (SIUs), i.e., IUs that are either CIUs
or discharge process wastewater above the thresholds set in 40 CFR
403.5. EPA has developed a comprehensive pretreatment program
implemented through EPA Regions, state, tribes, territories, and POTWs
to control IU discharges of pollutants that might pass through or
interfere with POTW treatment processes or contaminate sewage sludge,
thereby posing a threat to human health or the environment. POTWs with
approved pretreatment programs are required to develop, implement, and
enforce pretreatment program elements through provisions written into
their NPDES permits or waste discharge requirements. POTWs with
approved pretreatment programs are also required to annually report
biosolids compliance monitoring data to EPA or an authorized state
program. NPDES regulations also require POTWs to disclose information
to the Director of the permitting authority about IU discharges into
their collection system and to identify when these discharges
substantially change [see 40 CFR 122.42(b) and 122.44(j)(1)].
    The pretreatment program primarily focuses on controlling
pollutants from IUs that: (1) Have the potential to cause the POTW to
violate its NPDES permit discharge limits; (2) may pose a safety
concern to the POTW or its workers; or (3) affect the POTW's sewage
sludge disposal method. [See 40 CFR 403.3(i).] The pretreatment program
also has several other equally important regulatory requirements and
initiatives. First, the pretreatment program ensures implementation and
compliance with the technology-based categorical pretreatment standards
(see 40 CFR 403.6). Second, the pretreatment program contains
regulatory provisions for preventing sewer blockages and collection
system overflows due to fats, oils, and grease.\31\ Finally, municipal
pretreatment programs are the source of significant pollution
prevention and innovation initiatives. For example, such efforts
include best management practices and controls for dental mercury and
unused pharmaceuticals.
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    \31\ U.S. EPA, 2007, ``Controlling Fats, Oils, and Grease
Discharges from Food Service Establishments,'' EPA-833-F-07-007,
July, DCN 0046.
---------------------------------------------------------------------------

    Through the pretreatment program regulations at 40 CFR part 403 and
requirements within the NPDES regulations at 40 CFR part 122, EPA and
approved state pretreatment programs directly oversee and regulate over
1,500 approved pretreatment programs. These approved pretreatment
programs, in turn, oversee approximately 20,000 SIUs [see 40 CFR
403.8(f)]. The total number of SIUs is approximately three times the
number of NPDES major dischargers.
    The pretreatment program is considered a component of the NPDES
program; however, in a larger sense, its regulatory framework is as
comprehensive as the NPDES permit program itself. As with the NPDES
permit program, EPA can authorize states to implement and enforce the
NPDES pretreatment program. EPA has authorized pretreatment programs in
36 states as of October 1, 2011. The pretreatment program has
additional complexity as authorized states, tribes, and territories
(approval authorities) can further authorize pretreatment program
authority to local governments. This complexity is reflected in the
different types of compliance monitoring reporting, the associated
report preparers and reviewers, and report timing.
ii. Existing Program Reporting Requirements
    EPA identified 23 different pretreatment program reports as
candidates for electronic reporting; these reports are currently
managed in hard-copy format between industrial users, control
authorities, and approval authorities. See Table IV.2. In general,
these reports fall into the following categories:
     Approval Authority Reports: Program reports from approval
authorities to EPA;
     Control Authority Reports: Program reports from control
authorities to approval authorities (states or EPA Regions); and
     Industrial User Reports: Program reports from industrial
users to control authorities (local POTWs, authorized states, tribes,
territories, or EPA Regions in cities without approved programs).

                                Table IV.2--List of Pretreatment Program Reports
----------------------------------------------------------------------------------------------------------------
          Regulation                    Report           Reporting entity    Receiving entity      Frequency
----------------------------------------------------------------------------------------------------------------
40 CFR 403.6..................  Categorical             CIU/POTW..........  Approval           Once per request.
                                 Determination Request.                      Authority.
40 CFR 403.7..................  Removal Credit          Control Authority.  Approval           Once per request.
                                 Authorization and                           Authority.
                                 Compliance Monitoring.

40 CFR 403.09.................  POTW pretreatment       Control Authority.  Approval           Once per request.
                                 programs and/or                             Authority.
                                 authorization to
                                 revise pretreatment
                                 standards: Submission
                                 for approval.
40 CFR 403.10.................  Application and         Approval Authority  EPA..............  Once per request.
                                 Reporting
                                 Requirements for
                                 States to Seek
                                 Approval from EPA to
                                 Run Their State
                                 Pretreatment Program.
40 CFR 403.11.................  Removal Credit          Control Authority.  Approval           Case by Case.
                                 Authorization.                              Authority.
40 CFR 403.12 (b).............  Baseline Monitoring     CIU...............  Control Authority  Once per EPA
                                 Report.                                                        categorical
                                                                                standard
                                                                                rulemaking.
40 CFR 403.12 (d).............  Initial report on       CIU...............  Control Authority  Once per EPA
                                 Compliance with                                                categorical
                                 Categorical                                                    standard
                                 Pretreatment Standard.                                         rulemaking.
40 CFR 403.12 (e).............  Periodic Reports on     CIU...............  Control Authority  Biannually.
                                 Continued Compliance
                                 for CIUs.
40 CFR 403.12 (f).............  Notice of Potential     IU................  Control Authority  Case by Case.
                                 Problems, Including
                                 Slug Loading.
403.12(g)(2)..................  24 hour notification    SIU...............  Control Authority  Case by Case.
                                 of violations, 30 day
                                 re-sampling.
40 CFR 403.12 (h).............  Periodic Reports on     SIU...............  Control Authority  Biannually.
                                 Continued Compliance
                                 for Non-CIUs.
40 CFR 403.12 (i).............  Annual POTW Reports...  Control Authority.  Approval           Annually.
                                                                             Authority.
40 CFR 403.12 (j).............  Notification of         IU................  Control Authority  Case by Case.
                                 Changed Discharge.
40 CFR 403.12 (k).............  Compliance Schedule     Control Authority.  Approval           Once per event.
                                 for POTWs.                                  Authority.
40 CFR 403.12 (p).............  Hazardous Waste         IU................  Control Authority  Case by Case.
                                 Notification and BMP
                                 Certification.
40 CFR 122.42(b)..............  POTW Disclosure         POTW..............  NPDES Program      Case by Case.
                                 Requirements on IU                          Director.
                                 Discharges for NPDES
                                 Permitting.
40 CFR 122.44(j)(1)...........  SIUs, identify in       POTW..............  NPDES Program      Case by Case.
                                 terms of volumes and                        Director.
                                 character of
                                 pollutants.
40 CFR 403.12 (q).............  Annual Certification    CIU...............  Control Authority  Annually.
                                 by Non-Significant
                                 Categorical
                                 Industrial Users.
40 CFR 403.13.................  Variances from          IU, POTW, or Other  Approval           Case by Case.
                                 categorical             Interested Person.  Authority and
                                 pretreatment                                EPA.
                                 standards for
                                 fundamentally
                                 different factors.
40 CFR 403.15.................  Net/Gross calculations  IU................  Control Authority  Case by Case.
40 CFR 403.16.................  Upset.................  CIUs..............  Control Authority  Case by Case.
40 CFR 403.17.................  Bypass................  IUs...............  Control Authority  Case by Case.
40 CFR 403.18.................  Modifications of POTW   Control Authority.  Approval           Case by Case.
                                 pretreatment programs.                      Authority.
----------------------------------------------------------------------------------------------------------------
Note: EPA's pretreatment regulations (40 CFR part 403) also require other reports (e.g., reports required by
  administrative orders). These reporting requirements are case-by-case events.

    These reports are submitted in hard-copy format to local
pretreatment programs, authorized states, tribes, territories, or EPA
Regions. Key data from these reports are not generally standardized,
publicly available, or shared because these data are mostly in hard-
copy format and reported in different forms.
    Currently, authorized states, tribes, territories, or EPA Regions
enter or otherwise transfer basic POTW data (e.g., POTW name, address,
latitude and longitude, POTW NPDES ID, POTW effluent limits, name of
receiving waterbody) into ICIS-NPDES (see DCN 0031). Pretreatment
program audits and compliance inspection summary data, collected by the
authorized states, tribes, territories, or EPA, is entered into ICIS-
NPDES; similar summary data on POTW performance actions is submitted
annually by the POTW [in accordance with NPDES permit conditions and
also 40 CFR 403.12(i)], but is not necessarily entered into state or
federal data systems. EPA limited the number of WENDB pretreatment data
elements as a means of reducing the reporting burden on states, tribes,
and territories. Consequently, ICIS-NPDES pretreatment data only
provide very general information about pretreatment programs and do not
contain programmatic or compliance information on individual
significant industrial users.
    In the absence of approved local pretreatment programs, EPA, state,
tribe, or territory functions as the control authority with the direct
responsibility of overseeing these industrial users. EPA estimates that
there are approximately 1,400 industrial users located in cities
without approved local pretreatment programs. Failure to track and
enforce compliance of IUs for which states, tribes, territories, or EPA
are the control authority was cited as a weakness by EPA's Office of
Inspector General (see DCN 0032). Some states and EPA Regions acting as
control authorities have entered some information regarding industrial
users located in cities without approved local pretreatment programs,
but such data is very limited in the national NPDES data systems.
    There are also inconsistencies in data entry between the state,
tribe, territory, and Regional pretreatment programs. EPA recently
reviewed pretreatment data in PCS and ICIS-NPDES and

interviewed EPA Regional pretreatment data entry staff. In doing this,
EPA identified considerable inconsistencies in data entry, including
use of database codes, types of data entered, and whether the data is
entered at all. This lack of timely, accurate, and complete data limits
EPA's oversight of the pretreatment program at the national level.
Finally, there is limited public access to pretreatment data in ICIS-
NPDES.
iii. What data would be required to be submitted electronically and
why?
    EPA solicits comment on having certain pretreatment program reports
submitted electronically in accordance with 40 CFR 403.12(e), (h), and
(i), which references the need for these submissions to be compliant
with 40 CFR part 3, part 127, and 403.12(l). The data elements for
these reports are listed in Appendix A to 40 CFR part 127. EPA notes
that these reporting requirements do not apply to facilities solely
regulated under state, tribe, and territory pretreatment statutes and
regulations (i.e., facilities that are exempt from EPA regulations but
are regulated under more stringent state, tribe, and territory statutes
or regulations).
    EPA reviewed all pretreatment reports in Table IV.2 as potential
candidates for electronic reporting. EPA evaluated the feasibility and
necessity of converting paper-based pretreatment program reports to
electronic reports against the following factors: (1) The ability to
standardize a pretreatment report; (2) the frequency of the
pretreatment report; (3) the need to collect and manage data from the
pretreatment report on a national basis for measuring programmatic and
compliance activities; and (4) what summary data from various paper-
based reports could be combined into another existing reporting
requirement. EPA proposes that reports that are not identified for
electronic reporting in this proposed rulemaking would remain as paper-
based reporting requirements unless future regulations are implemented.
Additionally, the pretreatment program reports that are not identified
for electronic reporting in this proposed rulemaking may still be good
candidates for being managed as electronic documents (e.g., searchable
PDFs) and for posting on EPA, state, tribe, territory, or local
government Web sites. Making these documents available to the public
will increase the transparency of the pretreatment program. For the
reports not identified in this proposed rule for electronic submission,
EPA solicits comment on which other pretreatment reports (if any) EPA
should require for electronic submission as electronic documents (e.g.,
searchable PDFs).\32\
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    \32\ The Missouri DNR Web site is an example of such a PDF
repository of static searchable documents. See http://www.dnr.mo.gov/env/wpp/permits/wpcpermits-issued.htm.
---------------------------------------------------------------------------

Annual POTW Report
    Using the criteria described above, EPA identified the Annual POTW
Report [40 CFR 403.12 (i)], as a pretreatment report that could be
converted from a paper-based report to an electronic submission
compliant with 40 CFR part 3, part 127, and 403.12(l). In developing
this proposal, EPA noted that summary data (e.g., the number of slug
loadings) from the following reports are already included in the
existing Annual POTW Report [40 CFR 403.12(i)] requirements:
     40 CFR 403.7 Removal credits;
     40 CFR 403.12(f) Notice of potential problems including
slug loadings;
     40 CFR 403.12(j) Notice of change in Industrial User
discharge;
     40 CFR 403.12(p) Hazardous waste notification and BMP
certification;
     40 CFR 403.12(q) Annual certification by Non-significant
CIUs;
     40 CFR 122.42(b) POTW disclosure requirements to NPDES
Director;
     40 CFR 122.44(j)(1) POTW identification of industrial
users;
     40 CFR 403.16 Upset notification; and
     40 CFR 403.17 Bypass notification.
    The data elements that comprise the Annual POTW Report are provided
in Appendix A to 40 CFR part 127. EPA is proposing to revise 40 CFR
403.12(i) to include electronic reporting requirements.
Industrial User Reports
    Using the criteria cited previously, EPA also identified that the
following industrial user reports could be collected electronically for
SIUs and CIUs in cities without approved pretreatment programs(EPA
notes that SIUs and CIUs in cities with an approved pretreatment
programs will continue to send their reports to their control
authority; such reports may or may not be electronic submissions).
     40 CFR 403.12(e) Periodic reports on continued compliance
for CIUs; and
     40 CFR 403.12(h) Periodic reports on continued compliance
for Non-CIUs.
    This will facilitate tracking and enforcing compliance of SIUs and
CIUs for which states, tribes, territories, and EPA are the control
authorities. Standardizing and electronically collecting these reports
will help address deficiencies in EPA's National Pretreatment Program
that were identified by EPA's Office of Inspector General (see DCN
0032). The data elements that comprise these industrial users reports
in cities without approved pretreatment programs are provided in
Appendix A to 40 CFR part 127 and in the rulemaking record (see DCN
0022). EPA is proposing to revise 40 CFR 403.12(e) and (h) to include
electronic reporting requirements. EPA is not proposing to require
electronic reporting from IUs that are not SIUs or CIUs as these
facilities discharge smaller volumes of process wastewater and the
number of IUs far exceeds the number of SIUs and CIUs. EPA solicits
comment on whether it should require electronic reporting from IUs that
are not SIUs or CIUs located in cities where EPA, the state, tribe, or
territory is the control authority.
    EPA solicits comment on making changes to 40 CFR 403.10 to require
approved state, tribe, or territory pretreatment programs to
incorporate the electronic reporting changes and submit their programs
to EPA for review and approval. This state, tribe, or territory
submission must require that the approval authority regularly notify
each control authority that it must electronically submit its annual
report in compliance with 40 CFR part 3, part 127, and 403.12(l)
(including the requirement for the control authority to identify the
initial recipient for electronic submissions). EPA considers these
state tribe, territory, and local pretreatment program submissions to
be a non-substantial modification, which means that the approval
authority has 45 days to either approve or disapprove the modification.
Where the approval authority does not notify the POTW within 45 days of
its decision to approve or disapprove the modification or to treat the
modification as substantial, the POTW may implement the modification as
if it were approved by the Approval Authority. The proposed rule would
make changes to 40 CFR 403.10(f)(2) to add the following language:
Regularly notify all Control Authorities of electronic submission
requirements of 40 CFR part 3, 122.22, and part 127.
iv. Additional Considerations
    Due to the extensive number of entities either implementing or
regulated under the National Pretreatment Program--approximately 1,600
approved pretreatment programs nationwide oversee approximately 20,000
SIUs--EPA is not proposing to convert paper-based reports between all

IUs and POTWs to electronic submissions at this time. EPA is first
focusing its efforts on collecting annual reports electronically from
control authorities, acknowledging that these reports include summary
data from IU reports, and collecting compliance reports electronically
from IUs in cities without pretreatment programs. EPA solicits comment
on whether EPA should re-examine this decision for the final
rulemaking. Local pretreatment programs on their own initiative may
convert these other paper-based reports to electronic submissions.
f. Biosolids Program Reports
i. Background
    Wastewater treatment necessarily produces the end products
effluent, sewage sludge, methane and other gases for energy, and water
for reuse. Sewage and wastewater generated in homes, businesses,
industries, and other venues that are conveyed to wastewater treatment
plants are treated to allow effluent discharges or beneficial uses. The
National Research Council has identified that compliance with EPA
standards can promote the effective treatment and safe return of sewage
sludge to the environment (see DCN 0034). Sewage sludge treatment
usually involves a variety of processes and factors (e.g., aerobic or
anaerobic microbial degradation, time and temperature, high pH, lime
stabilization and dewatering). Without proper controls, biosolids
(sewage sludge) can present health hazards and cause water quality
impairments.
    Based upon the 2008 Clean Watershed Needs Survey (CWNS) Report to
Congress, there are now 14,780 POTWs, which would represent an updated
universe of sewage sludge (biosolids) generators. Note that the same
2008 CWNS Report (updated with more accurate data from the states) to
Congress indicates that the 14,780 POTWs annually serve 73.7 percent of
the U.S. population (226,302,213) and treat over 32 billion gallons of
wastewater. Biosolids incinerators and septage removed from the
numerous onsite/decentralized treatment systems are also covered by the
40 CFR part 503 requirements.
    In almost equal amounts, these biosolids are either beneficially
re-used or disposed (e.g., municipal landfill, incineration). This
volume of biosolids production will continue to increase with
population growth and more stringent treatment requirements (e.g.,
nutrient removal). The most recent national survey estimated that over
seven million tons (dry weight) of biosolids were nationally generated
by POTWs in 2004.\33\ Also, there are currently 218 sewage sludge
incineration (SSI) units in the United States and Puerto Rico.\34\
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    \33\ North East Biosolids and Residual Association, 2007. A
National Biosolids Regulation, Quantity, End Use & Disposal Survey,
July 20, DCN 0034.
    \34\ U.S. EPA, 2010. Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Sewage Sludge
Incineration Units. Fact Sheet, DCN 0047.
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    Section 405 of the CWA sets the statutory framework for regulating
sewage sludge (biosolids). EPA has established a protective regulatory
framework to manage the use and disposal of biosolids at 40 CFR part
503. Part 503 is a ``self implementing'' rule, which means that
entities producing biosolids are regulated whether or not these
requirements are included in a permit. Depending on use or disposal
practice, EPA's sewage sludge regulations require monitoring and
control of up to 10 metals and pathogen indicators.
    Limited biosolids data can be found in national databases such as
ICIS-NPDES or the Toxics Release Inventory (TRI). More detailed
information on monitoring and biosolids management is provided in
annual reports submitted by Class I sewage sludge management
facilities, POTWs with a design flow rate equal to or greater than one
million gallons per day, and POTWs that serve 10,000 people or more.
Class I sewage sludge management facilities are facilities that have an
approved pretreatment program or are in one of the five states that
have assumed direct pretreatment responsibilities under 40 CFR
403.10(e). EPA and authorized states, tribes, and territories can also
identify other sewage sludge management facilities as Class I
facilities because of the potential for their sewage sludge use or
disposal practices to affect public health and the environment
adversely.\35\
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    \35\ See: 40 CFR 503.9 (c).
---------------------------------------------------------------------------

    The vast majority of biosolids annual reports are submitted in
hard-copy format to EPA's regional offices. These reports document the
measures taken to protect human health and watersheds from the
mismanagement of biosolids. Key data from these reports are not
generally standardized, publicly available, or shared because these
data are mostly in hard-copy format and are reported in different
forms. The following quote provides a good example of the effort
required to complete a one-time assessment of the biosolids program,
which mostly relies upon non-standardized hard-copy reports:
``Consistent data on biosolids management is difficult to obtain and
compile . . . With no centralized data collection and storage system
yet in place, disparate pieces of data from various states and EPA
regions must be painstakingly collected and interpreted to produce a
useful national picture.'' \36\ As of October 1, 2011, eight states are
authorized to carry out the biosolids program under the NPDES program
for EPA relative to at least part of the biosolids management practices
under Part 503. Not all authorizations are complete (e.g., Michigan has
authorization for land application only). Some states incorporate EPA's
biosolids regulations in other state programs outside of their NPDES
program (e.g., solid waste management programs).
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    \36\ See DCN 0004.
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ii. Existing Program Reporting Requirements
    EPA's ICIS-NPDES data system has data fields for collecting and
reporting some biosolids data. Some of these data fields were
identified as required data elements for entry into EPA's data system
(i.e., WENDB). \37\ It is the responsibility of the biosolids
regulatory authority to enter these WENDB data elements into ICIS-
NPDES. A review of these two databases shows that currently there are
comparatively few biosolids data in either ICIS-NPDES.
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    \37\ U.S. EPA, 1994. ``WENDB Data Elements for Sludge.
Memorandum from Carol Galloway, Chief, Compliance Information
Evaluation Branch, and Richard Kuhlman, Acting Branch Chief, Policy
Development Branch, January 25, DCN 0048.
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    As indicated previously, EPA's sewage sludge regulations (40 CFR
part 503) require certain POTWs to submit to the authorized state or
EPA region an annual biosolids report. POTWs that must submit an annual
report include POTWs with a design flow rate equal to or greater than
one million gallons per day, POTWs that serve 10,000 people or more,
and Class I sewage sludge management facilities. In general, Class I
sewage sludge management facilities must report annually to the
permitting authority biosolids monitoring data, quantity of biosolids
managed, ultimate end use or disposal of the biosolids, end use or
disposal location(s), and vector and pathogen reduction measures. The
most recent national review of state management of biosolids data found
a variety of data collection, management, and reporting activities.\38\
Ten states are able to efficiently produce data on biosolids management
projects in their state. Nine states require extensive help

to collect and analyze their state data on biosolids management
projects.\39\
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    \38\ See DCN 0034.
    \39\ Id.
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    There are no data collection requirements on sludge removal from
septic systems, which is also regulated by EPA (Part 503).
Additionally, there are no existing reporting requirements for smaller
POTWs without approved local pretreatment programs (e.g., design flow
rate less than one million gallons per day and serving less than 10,000
people) and treatment works treating domestic sewage (TWTDS) that are
not identified by EPA or the authorized state, tribe, or territory as
Class I sewage sludge management facilities.
iii. What data would be required to be submitted electronically and
why?
    EPA solicits comment on having POTWs electronically submit their
biosolids annual reports in compliance with existing biosolids
reporting requirements at 40 CFR 503.18, 503.28, and 503.48. The
standard data elements for these annual biosolids reports are provided
in Appendix A to 40 CFR part 127. EPA solicits comment on standardizing
biosolids reporting in the following areas:
     Type and amount of biosolids generated and managed;
     Sampling and analytical methods;
     Location of biosolids disposal and management practices;
     Land application data;
     Surface disposal data; and
     Incineration data.
    EPA is proposing to revise 40 CFR 503.18, 503.28, and 503.48 to
include electronic reporting requirements.
    The electronic collection, management, analysis, and reporting of
data from these annual biosolids reports would aid EPA oversight of
state, tribe, and territory biosolids programs as well as providing the
public with better access to biosolids data. The improved accessibility
to biosolids data, in accordance with the proposed rule, would provide
the public with useful information on how well POTWs and other
biosolids generators are managing their biosolids. These data could
also be used to prioritize decisions on EPA, state, tribe, and
territory inspections in order to best protect public health and the
environment.
g. Municipal Separate Storm Sewer System (MS4) Program Reports
i. Background
    EPA and authorized programs issue NPDES permits to municipal
separate storm sewer systems (MS4s) which require MS4s to reduce
pollutants in stormwater discharges and which prohibit illicit
discharges pursuant to CWA section 402(p)(3)(B)(iii). The Phase I
Stormwater Rule, issued in 1990, requires MS4s serving populations of
100,000 or more to obtain NPDES permit coverage for their stormwater
discharges (55 FR 47990). The Phase II Rule, issued in 1999, requires
small MS4s in urbanized areas, as well as small MS4s outside the
urbanized areas that are designated by the permitting authority, to
obtain NPDES permit coverage for their stormwater discharges.
Individual permits tend to cover Phase I MS4s and general permits cover
most Phase II MS4s.
    Stormwater discharges, including discharges from municipal separate
storm sewers, industrial facilities and construction sites, can have a
significant impact on water quality (DCN 0070, 0071, and November 16,
1990; 55 FR 47991). Such discharges are responsible for beach closings,
swimming and fishing advisories, and habitat degradation. Several
studies reveal that stormwater discharges from urban areas can include
a variety of pollutants, such as turbidity, pathogens, organic
nutrients, hydrocarbons, metals, oil and grease, and debris. Stormwater
picks up a variety of pollutants such as sediment, debris, pesticides,
petroleum products, chemicals, solvents, asphalts and acids on its way
over streets, buildings, landscaping, construction sites, and
industrial areas, and in extreme cases it can alter the pH of the
receiving stream or river. These pollutants can harm the environment
and public health.
    As of October 1, 2011, EPA estimates that there are approximately
6,600 MS4 permits nationwide. Approximately 280 Phase I MS4 permits
cover approximately 1,000 permittees in total (many MS4 permits include
two or more co-permittees). According to ICIS-NPDES (including data for
34 states, plus territories and tribes), 1,673 permits are designated
as having MS4 requirements (i.e., with an MS4 permit component). Due to
system limitations in PCS, permits that include MS4 requirements are
unable to be identified and evaluated easily for compliance and
enforcement rates.
    Many MS4 permits contain requirements to implement stormwater
management programs to prohibit illicit (non-stormwater) discharges in
order to reduce pollutants discharged to the ``maximum extent
practicable'' (MEP). EPA regulations require that permit language for
MS4s include the development and implementation of stormwater
management plans (SWMPs), which incorporate the use of best management
practices (BMPs) to meet these pollutant reduction and illicit
discharge elimination requirements. See 40 CFR 122. 26(d)(2)and 122.34.
Phase I MS4 permit applications must include estimated reductions in
pollutant loadings expected from implementation of the SWMP [see 40 CFR
122.26(d)(2)(v)]. To be covered by a general permit, Phase II MS4
applications and notices of intent must include ``measurable goals''
for each of the BMPs to be implemented through the MS4's SWMP [see 40
CFR 122.34(d)(ii)]. Measurable goals are objectives and milestones that
quantify the progress of program implementation and the performance of
the MS4 BMPs, which EPA can use to track the progress and effectiveness
of SWMPs in reducing pollutants to the MEP.
    EPA has recommended that measurable goals include, where
appropriate, the following three components: (1) The activity, or BMP,
to be completed; (2) a schedule or date of completion; and (3) a
quantifiable target to measure progress toward achieving the activity
or BMP.\40\ Measurable goals that include these three components and
are easily quantifiable would allow EPA, states, tribes, territories,
and MS4 operators to assess the level of progress in reducing
pollutants to the MEP.
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    \40\ Web-based Measurable Goals Guidance for Phase II MS4s,
available at http://cfpub.epa.gov/npdes/stormwater/measurablegoals/index.cfm.
---------------------------------------------------------------------------

ii. Existing Program Reporting Requirements
    EPA regulations at 40 CFR 122.42(c) require operators of large or
medium MS4s and municipal separate storm sewer systems that have been
designated by the Director of the regulatory authority under Sec.
122.26(a)(1)(v) to submit an annual program report. However, because
state-issued MS4 permits vary significantly nationwide in areas such as
the breadth and specificity of annual report requirements and because
SWMPs are developed and implemented by different MS4s, there is
tremendous variability in the content and quality of annual program
reports. Additionally, these program reports are a mix of narrative and
numeric information. EPA regulations at 40 CFR 122.34(g)(3) require
less information to be reported for small MS4s than for large and
medium MS4s, and, except for the initial permit term for small MS4s,
the regulation specifies small MS4 reporting to be every two years
rather than the annual reporting frequency required for large or medium
MS4 permittees.

iii. What would be required under the proposed rule and why?
    EPA solicits comment on having MS4 permittees electronically submit
their reports in a standardized format using divisible data elements
(e.g., not PDF files) in compliance with 40 CFR part 3, part 127, and
122.22. EPA is soliciting comment on changing 40 CFR 122.34(g)(3) and
122.42(c) to require regulated entities to electronically submit their
MS4 reports in compliance with 40 CFR part 3, 122.22, and part 127.
Specific data elements proposed to be required for the MS4 reports are
provided in Appendix A to 40 CFR part 127.
    EPA is also not proposing to change the frequency of MS4 program
reporting. Some MS4 permits may also include numeric benchmarks or
numeric parameters that are not themselves effluent limits, but help to
determine whether narrative effluent limits are met or whether BMPs are
working effectively. Enhancements to NetDMR to include unscheduled
reporting would allow for electronic collection of DMR effluent
reporting from MS4s; currently, ICIS-NPDES provides for unscheduled DMR
data to be manually entered in the database. Finally, EPA is proposing
to allow states, tribes, and territories to add their own unique set of
data elements, including document attachments (e.g., PDF) as needed.
    The MS4 program report should document the MS4 actions during the
previous year, evaluate program results, and describe planned changes
towards continuous improvement. Although generally program reports are
written for the permitting authority, they can also be written for
members of the community as a way of divulging progress made towards
meeting water quality goals. Electronically collecting these program
reports would allow compliance monitoring data to be more easily shared
with EPA, states, tribes, territories, and the public. These changes
would provide the public with the opportunity to observe and examine
the progress made by various MS4 programs towards controlling
stormwater discharges. In particular, collecting MS4 program report
data electronically would enable EPA, states, tribes, territories, and
the public to more readily evaluate the effectiveness of MS4 stormwater
control programs. Additionally, electronic collection of data would
help permitting authorities to identify and share information on the
most effective BMPs for controlling stormwater discharges and avoiding
associated violations. Improved data availability through electronic
reporting should improve the control of stormwater discharges by more
quickly exchanging knowledge amongst permitting authorities and MS4s.
iv. Additional Considerations
    In concert with state, tribe, and territory NPDES permit programs,
EPA will likely need to adapt ICIS-NPDES to reflect current MS4
permitting practices. Specifically, some EPA Regions and states issue
an individual MS4 permit to regulate multiple MS4s in a geographic
area. For example, an MS4 permit issued to the San Francisco Bay Area
covers multiple municipalities. Consequently, compliance for individual
municipalities cannot adequately be tracked in ICIS-NPDES due to
geospatial limitations. EPA would likely need to modify ICIS-NPDES to
reflect a data structure more akin to a general permit, which allows
for one permit to cover multiple facilities. This is particularly
important when one MS4 permit includes multiple urban areas
contributing to multiple different urban waters.
2. Where an NPDES-Regulated Facility Should Send Its Data
    As previously noted, EPA is also soliciting comment on changing its
regulations governing the standard conditions applicable to all NPDES
permits by adding a new standard permit condition [see 40 CFR
122.41(1)(9)] that would require NPDES-regulated facilities to ensure
that, for each type of electronic NPDES submission, the information is
sent to the appropriate initial recipient, as identified by EPA, and as
defined in 40 CFR 127.2(b). Authorized NPDES programs would include
this requirement in all permits and control mechanisms. See Section
IV.K for the implementation plans for the proposed rule. The new
standard permit condition at 40 CFR 122.41(1)(9) would ensure that
NPDES-regulated facilities know where to send their NPDES compliance
data electronically.
    The proposed rule also would require EPA to publish on its Web site
and in the Federal Register a listing of the initial recipients for
electronic NPDES information from NPDES regulated entities by state,
tribe, and territory, and by NPDES data group. Some states, tribes, and
territories are not authorized to implement all aspects of the NPDES
program (e.g., pretreatment, biosolids) so not all states, tribes, and
territories are capable of being the initial recipient of these
electronic submissions (in addition to electronic reporting readiness
on part of the state, tribe, or territory). EPA would update this
listing on its Web site and in the Federal Register if a state, tribe,
or territory gains authorization to administer a NPDES program and is
also approved by EPA to be the initial recipient of NPDES electronic
data submissions for that NPDES data group. See 40 CFR 127.27.
3. Electronic Data Collection Tools
    The proposed rule would allow authorized NPDES programs to use
their own electronic reporting tools provided that the tools meet all
of the minimum federal reporting requirements in 40 CFR part 3, 122.22,
and part 127. States, tribes, and territories would be required to
share the minimum set of federal NPDES data (Appendix A to 40 CFR part
127) that are collected through these electronic state reporting tools
with EPA. This sharing of information could be easily accomplished
through the NEIEN and EPA's Central Data Exchange. States, tribes, and
territories would be able to elect to use EPA's electronic reporting
tools or EPA-approved third-party software provider tools. NPDES
regulated entities would be required to use an EPA-approved tool to
electronically submit their data. When authorized NPDES programs or
their electronic reporting tools are not compliant with EPA's
electronic reporting requirements (40 CFR part 3, 122.22, and part 127)
then NPDES regulated entities in that state, tribe, or territory would
be required to electronically send their NPDES data to EPA. Regardless
of whether a state's, tribe's, territory's, or EPA's, or a third-party
electronic reporting tool is used, NPDES program data would be included
in ICIS-NPDES and made available to the public through EPA's Web site.
4. Signature and Certification Standards for Electronic Reporting
    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). CROMERR establishes signatory, certification, and security
standards for information systems that receive reports and other
documents electronically (including email, but excluding disks, CDs,
and other magnetic and optical media). CROMERR establishes the
electronic reporting criteria that must be met in order to ensure that
a particular electronic reporting tool can provide

electronic information to EPA that meets EPA's needs.
    CROMERR applies to (a) regulated entities that electronically
submit reports and other documents directly to EPA under Title 40 of
the Code of Federal Regulations, and (b) states, tribes, and local
governments that administer or seek to administer EPA-authorized
programs under Title 40 and provide electronic information to EPA.
Regulated entities should ensure that they use the electronic reporting
tools designated by EPA, states, tribes, and territories to receive the
specified information and meet the other CROMERR criteria set out in 40
CFR 3.10. NPDES-authorized states, tribes, and territories (and local
governments) that wish to continue or begin using electronic reporting
of NPDES information to EPA must revise or modify those authorized
programs and their electronic reporting tools, if applicable, as
appropriate to incorporate CROMERR criteria, and apply for and receive
CROMERR approval by EPA under 40 CFR part 3.
    At this time, several states have already developed or are
developing electronic reporting tools for use by NPDES-regulated
facilities. EPA has also developed electronic reporting tools, notably
NetDMR. These electronic reporting tools, and other tools to be
developed in the future, whether by EPA, states, tribes, territories,
or the competitive marketplace, need to be CROMERR-compliant to ensure
that they meet EPA's data needs and requirements.
    EPA developed a CROMERR system checklist \41\ that EPA, states,
tribes, and territories and other electronic tool developers can use to
identify the key features to be included in an electronic reporting
system for it to be CROMERR-compliant. The checklist contains, among
other things, requirements for a registration process which identity-
proofs the registrant, to ensure that the individual using the
electronic tool and signing the electronic documents has been
determined with sufficient legal certainty, and to establish a
subscriber agreement or electronic signature agreement. The CROMERR
checklist also contains requirements for the signature process, the
submission process, and the creation of a copy of record. Additional
details may be found in the CROMERR checklist, or in the regulatory
text or preamble of CROMERR itself (40 CFR 3.10; 70 FR 59848).
Recently, EPA has initiated a workgroup with states to streamline the
CROMERR approval process. EPA also notes that the transaction cost for
authentication has dropped from tens of dollars per user to less than
pennies per user (e.g., DCN 0035).
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    \41\ CROMERR System Checklist, available at http://www.epa.gov/cromerr/tools.html.
---------------------------------------------------------------------------

    NetDMR is an example of a CROMERR-compliant electronic reporting
tool, described previously in Section IV.E.1.a in the context of DMRs.
Among other features ensuring CROMERR compliance by this tool, NetDMR
utilizes a subscriber agreement with a designated signatory authority
for the NPDES permittee, a password, required responses to security
questions, and Secure Socket Layer (SSL) communications.\42\
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    \42\ Originally developed by Netscape, SSL is an internet
security protocol used by online banking sites, internet browsers
and web servers to transmit sensitive information. SSL later became
part of an overall security protocol known as Transport Layer
Security (TLS).
---------------------------------------------------------------------------

    One person should be clearly designated as the signatory authority
for the electronic reporting of particular NPDES information. The
federal regulations at 40 CFR 122.22 describe the appropriate
management level for anyone designated as a signatory authority for
permit applications and reports. If the signatory authority plans to
have someone else sign and submit the electronic DMRs, for example,
then this individual must be a duly authorized representative of that
signatory authority in accordance with 40 CFR 122.22(b). Under CROMERR,
electronic systems that accept electronic signatures must be able to
effectively prove that those electronic signatures are valid and were
created with an electronic signature device that was not compromised.
The use of a personal identification number (PIN) or password in
combination with a requirement for the user to answer one or more
security questions (e.g., a ``challenge'' question from a set of
questions for which the user provided answers previously [e.g., during
registration]) helps to ensure that the person submitting the
information is who they claim to be and that the data is being sent on
behalf of the appropriate NPDES permittee. The use of SSL
communications, or the use of Transport Layer Security (TLS), is
another key way of ensuring the integrity of the information. TLS and
SSL make significant use of certificate authorities and provide the
means to check that the certificate comes from a trusted party, is
currently valid, and has a relationship with the site from which it is
being sent.
5. Temporary Waivers or Exemptions From Electronic Reporting for NPDES-
Regulated Facilities
    A key decision in this proposed rule is determining whether
electronic reporting requirements would be relatively easy to meet for
most of the NPDES-regulated universe of facilities. For example, 50
percent of rural residents have broadband (see DCN 0030). Although not
a necessity, broadband access makes it easier to submit NPDES reports
that would be required under this proposed rule. Therefore, broadband
access or other measures of the availability of sufficient upload speed
may serve as reasonable indicators regarding possible computer access
difficulties, particularly in the more remote rural areas.
    In the development of this proposed regulatory requirement for
electronic reporting by NPDES-regulated facilities, EPA has considered
a number of alternatives (described in the paragraph below) for
possible temporary waivers or exemptions based on certain criteria.
Such a waiver or exemption from electronic reporting of NPDES
information would be temporary in that it would remain valid only until
the condition(s) meriting the exemption changed or for one year,
whichever occurs first, during which time the permittee would still
have the requirement to submit the required NPDES information non-
electronically to EPA, the authorized state, tribe, or territory. EPA
is proposing that these temporary waivers may be granted by EPA,
states, tribes, and territories that have received authorization to
implement the NPDES program. EPA solicits comment on the granting and
duration of these temporary waivers.
    For example, EPA has considered, and is seeking comment on, whether
to automatically grant temporary waivers from NPDES electronic
reporting requirements to each NPDES-permitted facility that is
physically located (i.e., not just a post office box) within one of the
counties or zip codes for which less than 10 percent of the households
have broadband access, based on the aforementioned February 2010 FCC
report or subsequent similar official reports.
    As another alternative, EPA has considered whether it should grant
temporary exemptions for each NPDES-permitted facility which meets
criteria demonstrating that such electronic reporting of NPDES
information would pose an unreasonable burden or expense to the NPDES-
permitted facility; this is the same concept that the Securities and
Exchange Commission (SEC) [17 CFR

232.202(a)] has applied to its (rare) granting of continued hardship
exemptions for electronic filing. The process of applying to the SEC
for a continued hardship exemption is described in 17 CFR 232.202. This
process requires the submission of a written request made at least ten
business days before the required due date of the submission. As
identified in 17 CFR 232.202(b), this written request shall include,
but not be limited to:
     The reason(s) that the necessary hardware and software are
not available without unreasonable burden and expense;
     The burden and expense associated with using alternative
means to make the electronic submission or posting, as applicable; and/
or
     The reasons for not submitting the document, group of
documents or Interactive Data File electronically, or not posting the
Interactive Data File, as well as the justification for the requested
time period.
    The application for the continued hardship exemption is not deemed
granted until the SEC notifies the applicant.
    Although the SEC has successfully required electronic reporting
from various size companies for the majority of its reports since 1993,
it is still possible that a certain subset of NPDES-permitted
facilities might claim that they either do not have computers on-site,
do not have computer-savvy individuals available, or are a considerable
distance away from a location where they could get computer access. EPA
is considering the possible use of temporary waivers from electronic
reporting of NPDES information for such facilities, although
technological advances and computer access are such that there may be
few valid instances of such situations. EPA may consider establishing a
similar procedure for such temporary waivers if the criteria for such
temporary waivers are broadened, in response to comments, beyond that
in the proposed rule.
    In addition to these possible temporary continued hardship
exemptions for NPDES-regulated facilities from electronic reporting,
EPA also recognizes that there may be a need for incident-specific one-
time waivers or other adjustments for situations that are beyond the
control of the reporting facility (e.g., tornados, floods, EPA or state
data system failures). In 17 CFR 232.201, the possibility of a
temporary hardship exemption from electronic reporting to the SEC is
described. In the SEC regulations, under this temporary hardship
exemption, the electronic filer may instead file a written copy of the
report. The SEC also will encourage the use of a one-time change to the
filing due date rather than rely upon a temporary hardship exemption
where the situation is beyond the control of the filer. EPA proposes to
utilize one-time changes to due dates rather than waivers from
electronic reporting in these types of emergency situations.
    At this time, EPA solicits comment on the need for such temporary
waivers or exemptions as well as which criteria should apply for the
granting of such temporary exemptions. This proposed rule includes
provisions for temporary waivers extending up to a maximum of one year,
but comments are sought on all of these options or any other viable
options which might be suggested during the official comment process.
For comparison, EPA's recently proposed rule (August 13, 2010)
regarding Toxic Substance Control Act (TSCA) Inventory Update Reporting
Modifications did not include a provision for waivers or exemptions
from electronic reporting; however, the preamble for that proposed rule
did request comment on whether there are any circumstances in which a
company may not have Internet access to report the required data
electronically. EPA also solicits comment on whether EPA should also
grant waivers to NPDES regulated entities with religious objections to
using modern innovations such as electricity and computers.
6. EPA Consideration of Other Electronic NPDES Reporting by Permittees,
but Not Included in This Proposed Rule
    As described in more detail in Section IV.B, during summer 2010,
EPA conducted concurrent technical analyses, which examined various
aspects of possible electronic reporting of NPDES information for
NPDES-permitted facilities. Based on these analyses, EPA decided what
should and should not be included as requirements in this proposed
rule.
    Among the NPDES reporting requirements that EPA considered but did
not include in this proposed rule are the following:
     Electronic submission of applications for individually-
issued NPDES permits;
     Electronic submission of annual compliance certifications;
     Electronic submission of certain program reports for
vessels;
     Electronic submission of program reports for pesticide
applicators;
     Electronic submission of all follow-up reports required
under 40 CFR 122.41(l)(6) and (7).
    Each of these is discussed briefly below.
a. Electronic Permit Application Information and Possible Electronic
Permit Generation
    EPA examined the feasibility of requiring permit application
information to be submitted electronically and of electronically
creating the NPDES permit. This analysis focused on the individually-
issued NPDES permits rather than on NPDES general permits; therefore,
approximately 46,000 facilities would comprise the universe of
facilities that might be covered by such a requirement to
electronically submit permit application information.
    EPA has developed particular permit application forms to be
completed by facilities seeking individual EPA-issued NPDES permits.
However, there is considerable state, tribe, and territory variability
in permit application forms, data sought, ``boilerplate'' language, and
templates used in the creation of the permit. There are extensive
attachments to the permit application forms, including maps, flow
charts, monitoring information, etc. Furthermore, the permit
application information is not the only information used in
constructing a permit. The complex permit writing process utilizes a
variety of additional information, such as water quality information
and background pollutant concentration data, beyond that provided in
the permit application itself; such information would have to be
integrated in or easily accessible by an electronic permit writing
tool.
    Given the complexity of the permitting process, the significant
degree of state, tribe, and territory variability, and the extensive
attachments that accompany permit application forms, it would be
difficult to economically construct and maintain an electronic tool for
permit application form submittals that would be nationally-consistent
and could create an individual NPDES permit. The Office of Water
previously attempted to develop such a national electronic-permitting
(i.e., e-permitting) tool. That effort was adversely impacted by high
costs to develop and maintain the tool and by the significant state,
tribe, and territory variability that must be addressed.
    Based on EPA's analysis for this proposed rule, EPA has decided not
to include in this proposed rule (1) requirements for electronic
submission of nationally-consistent permit application information from
facilities, and (2) implementation relying upon the availability of a
nationally-

consistent electronic tool to generate individual NPDES permits by the
states, tribes, territories, or EPA Regions. Therefore, for facilities
covered by individually-issued NPDES permits, EPA would require
authorized states, tribes, and territories to provide EPA with the key
facility and permit information. Comment is sought on the feasibility
of developing a nationally-consistent electronic tool that can be used
by multiple states, tribes, and territories to obtain permit
application information electronically from the permittees and to
generate the individual NPDES permit. Comment is also sought on whether
EPA should require electronic submission of the EPA-developed permit
application forms from facilities seeking coverage under EPA-issued
individual NPDES permits. In addition, EPA seeks comment on the
feasibility of third-party software vendor development of such tools.
b. Consideration of Annual Compliance Certifications
    Not every facility covered by a NPDES permit has an existing
requirement to submit self-monitoring information in the form of a DMR
or similar report. Furthermore, not every facility covered by a NPDES
permit has an existing requirement to submit a program report regarding
its compliance status (e.g., industrial stormwater, active construction
sites) (see DCN 0021). Annual compliance certifications could help
address facilities that do not have a requirement to submit self-
monitoring information, or a program report regarding its compliance
status. This would constitute new regulatory requirements for reporting
and recordkeeping, and would require new Information Collection
Requests (ICRs) identifying the estimated burden hours to submit,
process, and analyze these certifications; therefore, EPA has not
included this new requirement in the proposed rule. However, comment is
sought on the usefulness of this concept of electronic submission of
annual compliance certifications by permitted facilities that do not
have DMR submission requirements and program report submission
requirements.
c. Vessels Program Reports
    EPA's NPDES vessels program regulates incidental discharges from
the normal operation of vessels. The centerpiece of the NPDES vessel
program is the EPA Vessel General Permit (VGP). The VGP is a general
permit that is issued and implemented by EPA. The 2008 VGP regulates
discharges incidental to the normal operation of vessels operating in a
capacity as a means of transportation (see 29 December 2008; 73 FR
79473). All vessel-related requirements are in the VGP. EPA estimates
that approximately 61,000 domestically-flagged commercial vessels and
approximately 8,000 foreign-flagged vessels may be affected by this
permit.
    The 2008 VGP identifies information that must be sent to EPA. These
requirements include:
     The Notice of Intent (NOI) form (see Appendix E of the
VGP);
     Annual report of noncompliance (see section 4.4.1 of the
VGP);
     Additional reporting (noncompliance which may endanger
health or the environment) (see section 4.4.3 of the VGP); and
     A one-time permit report (see section 4.4.4 of the VGP).
    EPA collects the NOI information for vessels electronically, and
has built a system to collect the one-time vessel permit report
electronically. The 2008 VGP does not require the use of the eNOI
system, nor does it require any DMRs or one-time reports to be
submitted electronically. Although the vessel eNOI information EPA
currently receives is not available through ICIS-NPDES or PCS, EPA
plans to adapt ICIS-NPDES and ECHO to make such information available
to the public.
    EPA's 2008 VGP currently contains monitoring, reporting,
inspection, operation and maintenance requirements pertaining to
vessels. EPA is not proposing to use this proposed rule to make any
changes to NPDES regulations that would be specific to the vessels
program. EPA anticipates that any electronic reporting for vessels
would be required through a new version of the VGP. EPA solicits public
comment on this approach.
d. Pesticide Applicators Program Reports
    On October 31, 2011, EPA issued a final NPDES Pesticide General
Permit (PGP) for point source discharges from the application of
pesticides to waters of the United States. While the permit
requirements must be met as of October 31, 2011, operators will be
covered automatically under the PGP without submitting a Notice of
Intent (NOI) for any discharges before January 12, 2012. To continue
coverage after January 12, 2012, those Operators who are required to
submit NOIs will need to do so at least 10 days (or 30 days for
discharges to National Marine Fisheries Service (NMFS) Listed Resources
of Concern) prior to January 12, 2012. For the first 120 days that the
permit is in effect, EPA will focus on providing compliance assistance
and education of the permit requirements, rather than on enforcement
actions.
    The Agency's final PGP covers Operators that apply pesticides that
result in discharges from the following use patterns: (1) Mosquito and
other flying insect pest control; (2) weed and algae control; (3)
animal pest control; and (4) forest canopy pest control. The permit
requires permittees to minimize pesticide discharges through the use of
pest management measures and monitor for and report any adverse
incidents. Some permittees are also required to submit NOIs prior to
beginning to discharge and implement integrated pest management (IPM)-
like practices. Recordkeeping and reporting requirements will provide
valuable information to EPA and the public regarding where, when, and
how much pesticides are being discharged to waters of the U.S.
Pesticide application use patterns not covered by EPA's Pesticide
General Permit may need to obtain coverage under an individual permit
or alternative general permit if they result in point source discharges
to waters of the U.S.
    This general permit will provide coverage for discharges in the
areas where EPA is the NPDES permitting authority, which include four
states (Idaho, Massachusetts, New Hampshire, New Mexico), Washington,
DC, most U.S. territories and Indian country lands, and many federal
facilities (for details, click here (PDF) (5 pp, 239K)). In the
remaining 46 states (and the Virgin Islands), the states are authorized
to develop and issue the NPDES pesticide permits.
    At this time, prior to the effective date of the requirement for
these discharges from pesticide applications to be covered under a
NPDES permit, EPA does not envision the NPDES Electronic Reporting Rule
making any changes to NPDES regulations that would be specific to such
discharges. Given the various implementation approaches, compliance and
reporting requirements that may be contained in EPA's final PGP as well
as in the NPDES-authorized state-, tribe-, or territory-issued permits,
any changes that EPA might make with respect to electronic reporting
for discharges from pesticide applications could be made through the
notice and comment process of the pesticide general permit. EPA
solicits public comment on this approach.
e. Electronic Reporting of All 5-Day Non-Compliance Reports Identified
in 40 CFR 122.41(l)(6) and (7)
    NPDES regulations require permittees to report any noncompliance
which may

endanger health or the environment. See 40 CFR 122.41(l)(6). These
regulations require both an oral report and written report within 24
hours and 5 days, respectively, from the time the permittee becomes
aware of the circumstances. Existing NPDES regulations also require
permittees to report all instances of noncompliance not otherwise
reported elsewhere at the time monitoring reports are submitted. See 40
CFR 122.41(l)(7).
    This proposed regulation amends the existing regulation at 40 CFR
122.41(l)(6) for combined sewer overflows, sanitary sewer overflows,
and bypass incidents to require these follow-up reports to be submitted
electronically within 5 days from the time the permittee becomes aware
of the circumstances. This proposed regulation also would require
electronic reporting of CSOs, SSOs, and POTW bypasses that are in
noncompliance per 40 CFR 122.41(l)(7).
    EPA solicits comment on whether it should expand electronic
noncompliance reporting to other forms of noncompliance that are not
already addressed in the above referenced proposed changes incorporated
into today's proposed regulation.

F. Data Submissions From Authorized State, Tribe, or Territory NPDES
Programs

    Historically, EPA has relied upon the permitting authority for
submission of the NPDES information in EPA's national NPDES data
systems. With this proposed rule, as currently drafted and subject to
public comment, EPA would require permittees to submit a large portion
of that NPDES data electronically, which would significantly reduce the
amount of information that would otherwise be required from the
authorized state, tribe, or territory NPDES programs.
    Nevertheless, under the approach described in this proposed rule,
EPA would still require NPDES information from authorized state, tribe,
or territory NPDES programs, particularly information linked to the
implementation activities and responsibilities of the authorized state,
tribe, or territory NPDES programs. The types of NPDES information EPA
would require to be reported by the states, tribes, and territories
with authorization to implement the NPDES program would include:
     Facility information for individually-issued NPDES
permits;
     Permit information for individually-issued NPDES permits
and master general permits [including information specific to
subprograms such as CAFOs, CSOs, SSOs, pretreatment, biosolids,
stormwater, cooling water intakes, and thermal variances;
     Compliance monitoring and inspection activities;
     Compliance determination information;
     Enforcement action information;
     Other NPDES information required to be submitted
electronically from permittees or other regulated entities, but routed
by the electronic reporting tools to the states, tribes, or territories
initially rather than to EPA; and
     Other NPDES information listed in Appendix A to 40 CFR
part 127 that permittees submit non-electronically to their authorized
state, tribe, or territory.
    Each of these NPDES data types are described further in the
sections that follow.

A. Why Require This Information From Authorized States, Tribes, and
Territories

    The states, tribes, and territories which have received
authorization to implement the NPDES program are the entities that have
the primary responsibility to issue permits, perform inspections, make
compliance determinations, and take enforcement actions. Most of the
data that this proposed rule, as currently drafted and subject to
public comments, would require the authorized NPDES programs to submit
to EPA would be generated during the course of those activities. As
such, the authorized NPDES programs are the unique and appropriate
sources to provide these types of NPDES data to EPA and to be
responsible for the quality and accuracy of that data.
    Another key part of this proposed rule is ensuring that, if
submissions of NPDES information are sent by the NPDES-regulated
facilities to the states, tribes, or territories initially rather than
to EPA, the states, tribes, and territories would provide that
information electronically to EPA. In turn, EPA would provide the
states, tribes, and territories with NPDES information it receives from
the NPDES-regulated facilities. In either case, the key would be to
``complete the circuit'' electronically through the NEIEN, so that all
of the required information submitted by the NPDES-regulated facilities
would be available, timely, accurate, complete, in a nationally
consistent manner for use by EPA, states, tribes, and territories, and
for presentation to the public.

B. What Data Would Be Required and Why From Authorized States, Tribes,
and Territories?

    For the proposed rule, as currently drafted and subject to public
comment, the types of information that would be required to be
submitted to EPA electronically by the states, tribes, and territories
authorized to implement the NPDES program are described briefly below.
Rather than establish different timeliness criteria for different types
of data, EPA proposes that the required NPDES data be provided by the
states, tribes, and territories to EPA within 30 days of the date of
permit issuance, date of inspection, date of violation determination,
date of enforcement action, or date of receipt of the information
electronically (or non-electronically under a temporary waiver) from
the permittee, as applicable. EPA invites comment on the 30-day
timeliness criterion.

C. Facility Data From Authorized States, Tribes, and Territories

    In EPA's NPDES national data systems, it is necessary to create a
facility record before other information may be entered or otherwise
made available. Therefore, this core set of basic facility data, as
identified in an attachment to the 1985 PCS Policy Statement (as
amended), are essential to EPA national data systems in order to create
a facility record to which other NPDES information may be linked, such
as permit information, compliance status, inspection information,
violation determinations, enforcement action information, etc.
    Through this proposed rule, as currently drafted and subject to
public comment, the types of basic facility information that the
states, tribes, and territories would be required to provide EPA for
the facilities covered by NPDES individually-issued permits would
include information regarding the facility itself (such as the site
name of the facility and the type of ownership), information regarding
the facility's location (such as address, city, state, zip code, and
information meeting EPA's data standards associated with latitude and
longitude), and information regarding a contact for that facility (such
as name, title, address, etc.). The complete list of such basic
facility information that would be required through this proposed rule
is identified in Appendix A to 40 CFR part 127.
    Much of this basic facility information already exists in EPA's
national NPDES data systems, particularly for major permittees, and
some of the information not found in the national data system,

particularly regarding nonmajor permittees, may be found in state,
tribe, or territory NPDES data systems. This proposed rule would
require states, tribes, and territories to provide EPA with such basic
facility information for all facilities covered by individually-issued
NPDES permits and to update that information as appropriate, in
accordance with stated quality assurance and quality control procedures
(see 40 CFR part 127). Unless otherwise specified in a permit, or
unless the permit is modified significantly, EPA anticipates that such
facility data would generally be updated only once per permit cycle,
which generally means every five years, if that often, because this
type of basic facility data rarely changes.
    Under the approach described in the proposed rule, if, for whatever
reason, facilities covered by NPDES general permits do not provide the
NOI data electronically by the compliance deadline, then the authorized
NPDES programs would be responsible for also ensuring that basic
facility information for facilities operating under general permits is
provided electronically to EPA.

D. Permit Data From Authorized States, Tribes, and Territories

    Through this proposed rule, as currently drafted and subject to
public comment, the type of permit information that the states, tribes,
and territories would be required to provide EPA for the facilities
covered by NPDES individually-issued or general permits would consist
of:
     Basic permit information;
     Information regarding designated outfalls or permitted
features;
     Information regarding the applicable limit sets;
     Information regarding the applicable effluent limitations;
     Information regarding narrative conditions and permit
schedules; and
     Information relevant to specific NPDES subprograms, such
as CAFOs, CSOs, SSOs, pretreatment, biosolids, stormwater, cooling
water intakes, and thermal variances.
    Basic information regarding the permit refers primarily to some of
the key identifier information for that permit. Such information
includes the permit number or other identifier, the permit type, the
program components covered by the permit, the permit status and key
dates related to application and issuance, information regarding
whether the facility is a major permittee, industrial classification
codes indicating the type of facility, the permit issuing organization,
applicable effluent guidelines, and the permittee's name and address.
See Appendix A to 40 CFR part 127 for a complete list of required data.
    Under this proposed rule, information would also be required
regarding the permitted features or outfalls identified in the permit.
Such information includes the design flow and actual flow from such
outfalls, an identifier for such outfalls, the type of permitted
feature, the receiving waterbody, and the physical location (latitude
and longitude) of such permitted features. See Appendix A to 40 CFR
part 127 for a complete list of required data. This information is
essential in compliance tracking because permit limits and limit sets
are identified for specific outfalls or permitted features.
    Under this proposed rule, as currently drafted and subject to
public comment, to enable electronic reporting and evaluation of DMRs,
information would also be required regarding the specific set of
numerical or narrative limits, and the limits themselves, identified
for each permitted feature identified in the permit. The proposed rule
would require the permitting authority to provide NPDES permit limits
(e.g., numerical limits) and NPDES permit limits set types (e.g.,
seasonal or interim limits) for major and nonmajor permittees
(including general NPDES-regulated facilities) to EPA into the national
data system. Permit limits information would include the monitoring
location, the start and end dates for such limits, the limit type,
information regarding all permit modifications to such limits,
information regarding enforcement actions which may have imposed
enforcement action limits, the regulated pollutant parameter, the
months that the limit applies, a text description of the limit (e.g.,
30-day average), an arithmetic qualifier (e.g.,``<''), the actual
numeric limit, the quantity or concentration units specified for that
limit, and information regarding if a particular limit has been stayed.
See Appendix A to 40 CFR part 127 for a complete list of required data.
    Information regarding permit limits sets would include a text
description of the limit set (e.g., summer limits), the type of limits
(e.g., scheduled), the number of months that the limit set applies, the
initial monitoring date, the due date for monitoring reports, the
number of months for each monitoring period, the frequency of
monitoring report submission, whether that set of limits is active, and