a start date associated with that limits set. See Appendix A to 40 CFR
part 127 for a complete list of required data.
    Under this proposed rule, information would also be required from
the narrative conditions or permit-contained schedules, including such
information as the type of narrative condition, an identifier code or
description of the permit schedule event, the scheduled and actual
dates for the achievement or occurrence of that event, and the received
date for the report which documented that achievement or occurrence. As
an example, such narrative conditions or permit schedules frequently
impose a permit requirement that a particular type of report be sent to
the permitting agency on a specific repeating schedule (e.g.,
annually). See Appendix A to 40 CFR part 127 for a complete list of
required data.
    In addition, this proposed rule, as currently drafted and subject
to public comment, would also require permit-related data from the
NPDES permit application. This permit application data includes
information on particular NPDES subprograms such as biosolids, SSOs,
pretreatment, CSOs, stormwater, CAFOs, cooling water intakes, and
thermal variances. The complete list of data that would be required
through this proposed rule is identified in Appendix A to 40 CFR part
127. Additionally, some facilities seeking coverage under a general
permit will submit similar data to their permitting authority.
Authorized states, tribes, and territories would be required to share
these facility-supplied data with EPA.
a. Inspection Data From Authorized States, Tribes, and Territories
    Historically in the NPDES program and in accordance with existing
policy, the authorized programs implementing the NPDES program have
been expected for several decades to provide the basic inspection
information to EPA for major permittees and for nonmajor permittees.
For example, in the PCS Policy Statement (as amended), EPA indicated
that the states, tribes, and territories are expected to provide a core
set of such basic inspection data to EPA through PCS.
    As discussed previously in this preamble, in addition to
information submitted by the NPDES-regulated facilities, some NPDES
data, including inspection information, is also needed from the states,
tribes, and territories. EPA, states, tribes, and territories perform
these inspection activities, and therefore they are the unique source
of the inspection information provided to EPA.
    These inspections could identify the compliance status of the
facilities, potential remedies needed, and changes

from the permit application information. Through receipt of such
facility-specific information regarding inspections, EPA is interested
in determining how well the NPDES-authorized state, tribe, or territory
is implementing the inspection responsibilities associated with NPDES
program authorization, better evaluating potential targeting of
inspections, better characterizing and addressing the compliance status
of the facilities, and identifying common problems that occur at the
NPDES-regulated facilities.
    Through this proposed rule, as currently drafted and subject to
public comment, the type of basic inspection information that the
states, tribes, and territories would be required to provide EPA would
include the end date of such a compliance monitoring activity, the
facility inspected, the type of compliance monitoring, the reason for
such compliance monitoring, the lead office for such compliance
monitoring, and the law sections evaluated and potentially violated at
the facility (e.g., pretreatment). The complete list of such basic
inspection information that would be required through this proposed
rule is identified in Appendix A to 40 CFR part 127.
    In addition to the basic information that would be required for any
NPDES inspection, required compliance monitoring information also would
include information specific to the NPDES subprograms. For example,
there are specific items that would apply if a CAFO facility had been
inspected, or for pretreatment, CSOs, SSOs, etc. The complete list of
such subprogram-specific inspection information that would be required
through this proposed rule is identified in Appendix A to 40 CFR part
127.
    This proposed rule would require authorized states, tribes, and
territories to provide EPA with inspection information for all NPDES-
regulated facilities, in accordance with stated quality assurance and
quality control procedures. EPA anticipates that such inspection data
would be provided at a reporting frequency approximating the inspection
frequency specified in the EPA Compliance Monitoring Strategy (October
2007 or as subsequently revised), or as delineated in alternative
inspection strategies contained in EPA-state, EPA-tribe, or EPA-
territory agreements.
b. Compliance Determination Information From Authorized States, Tribes,
and Territories
    In the existing federal regulations [40 CFR 123.26(e)(2) and (4)],
states, tribes, and territories that have received authorization to
implement the NPDES program ``shall have procedures and ability for'':
     Initial screening (i.e., pre-enforcement evaluation) of
all permit or grant-related compliance information to identify
violations and to establish priorities for further substantive
technical evaluation; and
     Maintaining a management information system which supports
the compliance evaluation activities of this part.
    Under the existing data reporting structure, if the DMRs for the
NPDES major permittees and the relevant numeric effluent limitations
from the NPDES permit requirements are in EPA's national data systems,
the data systems can automatically identify violations of numeric
effluent limitations. These violation determinations, which can be made
for individual pollutants and at the facility level, also identify what
would constitute Category I and Category II noncompliance based upon
the regulations at 40 CFR 123.45 and EPA's national guidance and policy
[see EPA's Enforcement Management System (EMS), DCN 0037]. These
determinations can then be used in the creation of the required
quarterly and annual noncompliance reports to track the compliance
status of NPDES-regulated facilities (see 40 CFR 123.45). In addition,
if the appropriate due dates and milestone dates have been entered by
the states, tribes, or territories, EPA's national NPDES data systems
have also been designed to identify whether reports are late and
whether milestones have been missed in permit schedules or in
compliance schedules. These additional violation determinations could
determine whether a facility is in noncompliance for reporting
violations or for schedule violations.
    Violation determinations may also be made based upon other
information available to the states, tribes, territories, or EPA, such
as inspection information, review of program report information, public
complaints, information collection requests, incident reports, etc. For
these identifications of noncompliance, EPA has developed guidance (the
``PCS Single Event Data Entry Guide'', May 2006, and the ``ICIS-NPDES
Single Event Violation Guide'', October 2008) on how to track such
violations [referred to as single event violations (SEVs)] in the NPDES
national data systems.
    SEVs include one-time events as well as violations with longer
durations. SEVs may be used by the states, tribes, territories, and EPA
to report the compliance status of a facility for permit or regulatory
violations that are not automatically flagged by the database. In the
case of unpermitted facilities, SEVs may be entered in response to
violations of CWA NPDES regulations.
    Since 1988, SEVs identified by EPA, states, tribes, and territories
are expected to be entered into EPA's national NPDES databases by the
authorized NPDES program for major NPDES-regulated facilities and
facilities covered by EPA's General Pretreatment Standards (40 CFR part
403). A joint memorandum from the EPA Office of Compliance and Office
of Civil Enforcement issued in October 2008 clarified the expectation
that EPA regional offices to enter into PCS or ICIS-NPDES all SEVs
discovered by EPA regional offices for other nonmajor permits/
facilities, starting in FY 2009.
    These compliance determinations are one of the many
responsibilities and activities of the states, tribes, and territories
with NPDES program authorization. The availability of such compliance
determination information from states, tribes, territories, and EPA is
critical to determining the compliance status of NPDES-permitted
facilities. This information is needed on a facility-specific basis to
better identify potential problems; ensure that appropriate action is
taken to address noncompliance; better quantify national or state
noncompliance rates; and to provide a more complete and transparent
picture to permitting authorities, the public, Congress, and other
stakeholders of the overall implementation and effectiveness of the
NPDES program.
    EPA has facility-specific information regarding the compliance
status of NPDES-regulated facilities for only a very small percentage
(less than 1 percent of the total NPDES universe; i.e., essentially the
major permittees). Therefore, through this proposed rule, EPA would
require this compliance determination information to be provided to EPA
by the states, tribes, and territories with NPDES program authorization
for all major and nonmajor NPDES-regulated facilities, whether covered
by an individually-issued permit or by a general permit. EPA notes that
the list of minimum Federal data (Appendix A to 40 CFR part 127) only
includes construction stormwater inspection data from the authorized
state, tribe, or territory when the authorized program identifies
violations and completes a formal enforcement action (i.e., authorized
state programs are not required to report construction stormwater
inspection data to EPA for inspections that do not identify
violations). EPA made this distinction based on the large number of

facilities in this segment of the NPDES universe (approximately new
200,000 facilities each year). EPA solicits comment on this approach.
    The list of information that would be required under this proposed
rule, as currently drafted and subject to public comment, includes such
basic items as the start and end dates for the violations, the type of
violation, which agency identified the violation, when noncompliance
was identified, and when it was resolved. In addition, some compliance-
related data are tracked at the basic permit level, including whether
noncompliance tracking is occurring automatically in EPA's NPDES
national data system, and the noncompliance status and fiscal quarters
of noncompliance. A complete listing of these data is provided in
Appendix A to 40 CFR part 127. The proposed rule also updates 40 CFR
123.26 to reflect the new electronic reporting requirements.
c. Enforcement Action Information From Authorized States, Tribes, and
Territories
    One of the key activities for states, tribes, and territories
implementing the NPDES program is taking enforcement actions as
appropriate to address and remedy noncompliance by the NPDES-regulated
facilities. Historically in the NPDES program and in accordance with
policy, the states, tribes, and territories have been expected to
provide basic information regarding enforcement actions (whether formal
or informal) to EPA for major permittees. In the PCS Policy Statement
(as amended) and the ICIS Addendum to the Appendix of the 1985 Permit
Compliance System Statement, EPA indicated that the states, tribes, and
territories were expected to provide a core set of such basic
enforcement action data for major permittees to EPA through PCS and
ICIS-NPDES.
    In addition to information submitted by the NPDES-regulated
facilities, some NPDES data, including enforcement action information,
are also needed from the states, tribes, and territories, as they are
the unique source of the enforcement action information.
    In the context of the State Review Framework (a tool to evaluate
state enforcement program performance) and development of the ANCR,
several states have voiced concerns that EPA did not fully recognize
and credit the extent to which states rely on compliance achieved
through the issuance of informal enforcement actions, including a
variety of enforcement actions which do not impose a compliance
schedule. These states expressed concern that without such information
regarding informal enforcement actions, EPA and the public did not have
a complete picture of the state efforts to obtain compliance by the
NPDES-regulated facilities. EPA has made efforts to ensure that
information from the states regarding such informal enforcement actions
is considered and made available. Similarly, this proposed rule would
require states, tribes, and territories to provide EPA with facility-
specific information regarding formal and informal enforcement actions
for all NPDES-regulated permittees.
    As indicated in this proposed rule, the type of basic information
that the states, tribes, and territories would be required to provide
EPA regarding enforcement actions would include the type of enforcement
action, information specific to final orders (administrative or
judicial), penalty information, information regarding permit schedules
or compliance schedules, and information regarding milestones or sub-
activities identified in permit schedules or compliance schedules. The
complete list of enforcement action information that would be required
through this proposed rule is identified in Appendix A to 40 CFR part
127.
d. Authorized States, Tribes, and Territories NPDES Data Transmissions
to EPA
    In addition to the NPDES information related to implementation and
enforcement activities by the regulatory authorities, the proposed
rule, as currently drafted and subject to public comment, would also
require that the regulatory authorities ensure that the information
submitted to the regulatory authorities by the NPDES-regulated
facilities would then be provided to EPA in a timely, accurate,
complete, and nationally-consistent manner. The requirements regarding
timeliness, accuracy, completeness, and national consistency for these
data submissions to EPA are defined in 40 CFR 127.23. This concept of
``completing the circuit,'' for the NPDES information, is critical to
ensuring that the regulatory authority and EPA have access to the
permittee's information. This requirement to share such NPDES
information from the regulatory authority to EPA (and vice versa) would
be created under the proposed rule even if the electronic reporting
tool provides permittee information only to the regulatory authority or
if the permittee supplies hard-copy information under the terms of a
temporary waiver.

E. Additional Considerations

    Although 46 states and the Virgin Islands have authorization to
implement the NPDES program as of October 2011, not all of these
authorized programs implement the entire NPDES program. For example, 10
of these states and the Virgin Islands have not received authorization
to implement the pretreatment program. As another example, only eight
states have received authorization to implement the NPDES biosolids
program. EPA expects states, tribes, and territories to provide EPA
with the required NPDES information to the extent that those
authorities have received NPDES program authorization. States, tribes,
and territories that do not have authority to implement particular
parts of the NPDES program would not be expected to provide information
on those parts of the program.
    Similarly, certain states, tribes, and territories may not have a
particular type of facility within their boundaries. For example,
several states do not have any combined sewer systems (CSSs) within
their states; therefore, EPA would not expect to receive any CSS
information from those particular states.
    Other states, tribes, or territories may have too few of a
particular type of facility to warrant the expense of developing
electronic reporting systems by the regulatory authority to capture
data from those facilities. As an alternative, electronic reporting
tools would be made available by EPA and by third-party software
vendors. These tools must fully meet EPA's electronic reporting
requirements in 40 CFR part 3, 122.22, and part 127. EPA seeks comment
on whether, in such instances where only a few of a particular type of
facility exist within a particular regulatory authority, EPA should
allow the regulatory authority to decide whether their permittees
should report to EPA electronically using a national tool, or report in
a hard-copy format to the regulatory authority, in which case the
regulatory authority would then assume the responsibility for
processing the data into electronic form and providing that information
to EPA.
    It is conceivable that some regulatory authorities may not have
implemented certain portions of the NPDES program that are included in
these authorizations; nonetheless, EPA would expect to receive the
required NPDES information regarding each of those subprograms included
in their NPDES authorized program.
    Regardless of the regulatory authority's current level of
electronic reporting from permittees or data system development, the
regulatory authorities

are still required to meet their responsibilities to implement and
enforce the NPDES program, to issue permits, to conduct inspections, to
make compliance determinations, and to issue enforcement actions.
Therefore, EPA and the public should still expect that the required
NPDES information regarding such activities would be provided to EPA by
the regulatory authorities in a timely, accurate, complete, and
nationally-consistent manner (i.e., in conformance with national data
standards, in consistent units of measure, and in a format compatible
with the NPDES national data system).

G. Changes to QNCR, Semi-Annual Statistical Summary Report, and ANCR
(40 CFR 123.45)

1. Background
    On August 26, 1985, EPA promulgated final revisions to regulations
for the National Pollutant Discharge Elimination System (NPDES) permit
program to require Quarterly Noncompliance Reports (QNCR) to be
prepared and submitted by the states, tribes, and territories that are
authorized to implement the NPDES program and by EPA regions for
states, tribes, and territories not yet authorized. Those revised
regulations are found in 40 CFR 123.45 and include two types of
noncompliance which must be reported on the QNCR for major facilities,
Category I and Category II. The regulations at 40 CFR 123.45 also
require semi-annual noncompliance reports for major facilities and
summary-level annual noncompliance reports for nonmajor facilities.
    As reflected in this proposed rule, as currently drafted and
subject to public comment, the Agency is proposing to modify these
requirements in 40 CFR 123.45 of the NPDES regulations to more
accurately reflect the technological environment of the 21st century
that includes the new e-reporting requirements being proposed today and
the evolution of the NPDES regulatory program over the last 25 years.
Today's proposed rule would remove requirements for obsolete paper
reports that can instead be generated from data in EPA's data systems
through electronic reporting. By removing obsolete reports, the
proposed rule would lessen state, tribe, and territory burden, while
also updating the regulations to allow all authorized programs and EPA
to more effectively track activities within the broader NPDES universe.
The changes will make NPDES information easier to understand, and will
provide the public with a complete inventory of violations that are
self-reported by permittees or identified by regulatory agencies. The
changes will also support EPA's 2009 Clean Water Act Action Plan goals
of improving public transparency, identifying the most serious
violations, and informing reviews of EPA, state, tribe, and territory
enforcement programs.
    Data collection for the NPDES program should be updated to reflect
currently available technologies and the current NPDES universe and
thus facilitate improved public transparency. The NPDES universe has
grown and diversified substantially since the 1980s and now includes
approximately one million diverse point sources of which only
approximately 6,700 are majors. Focusing the QNCR only on majors
excludes more than 99 percent of the regulated NPDES universe from more
rigorous facility-level public accountability. Many regulated point
sources--such as stormwater discharges, concentrated animal feeding
operations, mines, and raw sewage overflows--are considered to be
significant contributors to water quality impairment and human health
risks today (DCN 0045, 0070, 0071, 0072, 0073, and 0074). However,
because many of these sources do not meet the NPDES definition of major
facilities, they have been excluded from the QNCR. This has set up a
situation where there is very robust tracking, management, and public
accountability for a very small subset (major facilities) of the NPDES
regulated universe, but very little public information on locations,
types of violations, and enforcement by authorized states, tribes, and
territories regarding these other nonmajor facilities. As a result, EPA
currently has difficulty accurately assessing the effectiveness of
NPDES-authorized states, tribes, and territories, as well as its own
activities, in these other important NPDES sectors and is not able to
provide more complete NPDES noncompliance and enforcement information
to Congress and the public.
    EPA has also received feedback from states and public data users
that the existing terminology and nomenclature for cataloguing
violations is too confusing. This proposed rule seeks to simplify and
improve the transparency and utility of violation information including
facilitation of EPA's, states', tribes', and territories' abilities to
focus on the problems of greatest concern.
2. Purpose of Existing Regulations
    The existing annual, semi-annual, and quarterly reporting
requirements are aimed at organizing violation information to
facilitate EPA's assessment of the effectiveness of EPA, state, tribe,
and territorial compliance activities and thereby best determine how to
manage or oversee program activities.\43\ EPA uses this information to
provide noncompliance information to Congress and the public.
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    \43\ See 50 FR 34649.
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    The primary purpose of the QNCR is to provide facility-specific
information used to identify patterns of noncompliance by the largest
contributors of pollutants (i.e., the major facilities as defined and
emphasized in the 1970s and 1980s) and to assess state and EPA regional
enforcement activities. The QNCR is used solely for reporting purposes
and does not dictate what constitutes a violation of permit conditions
or whether EPA, states, tribes, or territories will take an enforcement
action.
    The Annual Noncompliance Report (ANCR) uses similar definitions as
the QNCR, but was designed as a summary (not facility-specific) view of
violations and enforcement response by the regulatory authority for
nonmajor facilities. At the time the existing regulations were written,
technology limitations required that monthly DMRs be entered into the
data system manually one at a time by state and EPA regulators. The
data entry burden for entering all DMR reports for major and nonmajor
facilities with individual permits (over 45,000 facilities) was too
high, so EPA required DMR data entry by the authorized states, tribes,
and territories into the national data systems (PCS and ICIS) only for
the major facilities. EPA and authorized NPDES states developed the
major facility definition through guidance to screen and identify those
facilities with the largest environmental footprints and thus deemed at
the time to be most important to track for violations at the facility
level.\44\ The thorough data requirements for major facilities also
dove-tailed with the Enforcement Management System (EMS); guidance
developed by EPA which describes appropriate enforcement responses for
violations at NPDES facilities.\45\
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    \44\ New NPDES Non-Municipal Permit Rating Worksheet, June 27,
1990, DCN 0049.
    \45\ The Enforcement Management System (1989), DCN 0037.
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    The ANCR summary report provides summary information about the
number and types of violations and enforcement responses at nonmajor
facilities during a one-year reporting period in a particular state,
tribe, or territory. Over the last several years, the ANCR has shown
that in many states, the rate of

violations at nonmajor NPDES facilities where detailed DMR information
is provided to EPA's data systems is more than twice as high as those
where the states have provided only summary information.
    With the transition to electronically-reported DMRs directly from
facilities into the national data system or to existing state, tribe,
or territory data systems, the need to maintain separate reporting
formats and requirements for major facilities and nonmajor facilities
are no longer relevant to the program. Furthermore, the proposed NPDES
Electronic Reporting Rule allows EPA to remove the burden of producing
these reports from the states; instead, EPA would be able to
automatically produce the reports and make them available for use by
states, tribes, territories, and the public.
    The QNCR (for major facilities) and the ANCR (for nonmajor
facilities) use identical numeric calculations to place violations into
two categories. Violations that exceed certain thresholds of time,
magnitude, or frequency of occurrence are specified in the regulations
at 40 CFR 123.45 as being significant. ``Category I'' noncompliance
involves applying certain specific ``technical review criteria'' or
``TRC'' \46\ to certain violations of effluent limits for pollutants
listed in Appendix. Category I noncompliance also includes specific
criteria for violations of enforcement orders, compliance schedules,
and required reports. ``Category II'' noncompliance includes effluent
limit violations that do not rise to Category I, as well as
unauthorized bypasses, unpermitted discharges, pass through of
pollutants that cause or have the potential to cause a water quality or
health problem, failure of a POTW to implement its approved
pretreatment program, violations of interim compliance schedule
milestones, incomplete required reports, violations of narrative
requirements (e.g., failure to develop Spill Prevention and
Countermeasure Plans and implement Best Management Practices), and
other violations or group of permit violations of substantial concern
to the State, Tribe, or Territory Director or EPA Regional
Administrator.
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    \46\ Forty percent over an effluent limit for conventional
pollutants and 20 percent over the limit for toxic pollutants, as
identified in Appendix A to 40 CFR 123.45, for two months in a six
month period.
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    One additional consideration that EPA, states, tribes, and
territories discussed at length under the Clean Water Act Action Plan
was whether the existing Technical Review Criteria (TRC) identified in
Appendix A to 40 CFR 123.45 for categorizing the severity of violations
should be maintained. EPA has not proposed changing these violation
determinations. Many of the EPA and state participants in the Clean
Water Act Action Plan thought that the existing thresholds were useful
and should be retained. However, there are some gaps that are addressed
in this proposed rule.
3. Relationship Between Enforcement and Proposed Regulatory Changes to
40 CFR 123.45
    The existing regulations do not determine the type of enforcement
response required to be taken by the state, tribe, territory, or EPA.
Title 40, Code of Federal Regulations, section 123.45 is a reporting
regulation--focused on aligning key information that can assist with
both enforcement priority-setting and transparency. Enforcement policy
remains under the discretion of EPA and the permitting authority and
outside the scope of this proposed rule. Over the past 25 years, EPA
has developed policy and guidance documents that utilize information
via the regulations to prioritize violations and determine appropriate
responses. EPA wants to clarify that the proposed changes do not alter
its enforcement expectations for the states, tribes, territories, or
EPA regions. Any revisions to enforcement response guidelines would be
accomplished via updates to existing guidance or policy, such as the
EMS. The changes outlined in this proposed rule will make the NPDES
data more inclusive and easier to use, and inform any future
enforcement policy changes that are envisioned under the Clean Water
Act Action Plan.
4. Overview of Proposed Regulatory Changes
    Given the evolving NPDES program, advancing technology, and the
updated reporting mechanisms and requirements included in this proposed
rule, EPA is seeking comment on changes to 40 CFR 123.45, entitled,
``Noncompliance and program reporting by the Director.'' The purposes
of these changes are to: (1) Provide a more accurate and comprehensive
report of known violations using a more complete set of noncompliance
information that would be flowing as a result of the NPDES Electronic
Reporting Rule; (2) improve EPA's ability to analyze, track, and manage
violations; (3) ensure the full universe of NPDES sources is considered
in tracking, analyzing, and managing compliance and enforcement
programs; (4) establish a better process to ensure EPA is focused on
the most serious pollution problems and can keep pace with changes to
the permitting program and new limit types; and (5) reduce state,
tribe, and territory reporting burden by removing or phasing out
requirements for existing hard-copy reports or other reports than can
be produced by EPA from NPDES national data systems. Based on a date
three years after the effective date of the final rule, the existing
regulatory text in 40 CFR 123.45 would be replaced by the proposed new
text for that section.
5. Proposal To Establish a NPDES Noncompliance Report
    To accomplish these changes, EPA is proposing to reorganize
noncompliance information and establish a new public inventory of all
reported violations based on existing reporting requirements and other
new requirements that would be phased in under this proposed rule. The
content of the inventory would be very similar to what is currently
provided by EPA on the Internet in the ECHO Web site, but will include
reported violations from the broader universe of NPDES-regulated
sources. The proposed rule establishes an EPA-generated NPDES
Noncompliance Report (NNCR) that would include a complete, simplified
listing of all recorded violations at major and nonmajor facilities.
The report would incorporate the existing content of the QNCR and the
ANCR (e.g., reviewed facilities, violations, serious violations,
enforcement taken), and would add other data that are required
elsewhere under the NPDES Electronic Reporting Rule (for example,
information regarding inspections, informal enforcement actions, and
penalties assessed). The NNCR is essentially a quarterly, facility-
based view of compliance monitoring, violations, and enforcement
activity which would replace the QNCR and the ANCR.
    The proposed rule is not designed to limit EPA's flexibility in
providing data more frequently than quarterly. So, for example, if
inspections or violations were identified one month after the official
quarter ended, EPA would maintain the ability to provide that
information prior to conclusion of the next official quarter. The NNCR
provides a snapshot of the violation status within a quarter, which can
be combined with other regulatory data, such as the frequency of
inspection and follow-up enforcement action, to provide a full picture
of compliance at a NPDES-regulated facility. The purpose of the NNCR is
to provide regulators and the public with information about

violations, including both numeric exceedances of effluent limits
(e.g., as reported on DMRs) and other violations [such as violations of
narrative permit requirements or single event violations (both one-time
and long-term) including sewer overflows, failure to implement best
management practices, failure to implement a pretreatment program,
failure to report, or failure to apply for a permit]. Non-numeric
(e.g., non-DMR) violations are used by EPA to maintain and report the
compliance status of a facility for violations that are not
automatically flagged by the national database. Methods of detection of
non-numeric violations include inspections; information collection
requests; state, tribal, or territorial referrals; annual reports,
noncompliance reports, and other program reports required under the
permit enforcement order, or regulation; facility self-audits; and
public complaints. Single event violations include one-time events and
long-term violations (as described in Section IV.F.2.d).
    The listing of a facility on the NNCR for transparency purposes is
not intended to dictate the appropriate enforcement response or in any
way establish criteria for selecting enforcement actions. However,
overall trends and rates (for example, the percent of facilities with
violations) may be a useful tool for assessing violation trends on a
regional or nationwide basis. Because EPA will produce the NNCR using
data that are required to be reported to EPA electronically in a format
compatible with ICIS-NPDES, there is no additional burden on states,
tribes, or territories. In fact, in addition to eliminating the
requirement for authorized programs to submit QNCR reports, EPA
proposes to phase out the requirement that authorized programs submit
semi-annual statistical and annual noncompliance reports (ANCRs).
6. Categorizing Violations
    EPA's system for categorizing violations on public Web sites is
based upon the existing regulations within 40 CFR 123.45. As indicated
in the proposed rule, EPA is considering updating 40 CFR 123.45 to
modify the definitions of Category I and Category II noncompliance to
implement one of the Clean Water Act Action Plan objectives to improve
how serious violations are categorized. As currently structured, the
existing regulations do not sufficiently categorize violations based on
severity and potential for water quality impacts.
    The existing regulation assumes that ``Category I'' violations are
considered more serious, while ``Category II'' violations are not as
severe. EPA values classifying violations and that there is room for
improvement in the existing regulation. Many of the most severe
violations occurring in the today's NPDES program do not currently
qualify as ``Category I.'' EPA has recognized this within the EMS by
considering certain Category II violations to be ``significant
noncompliance'' or SNC (and must be reported on the QNCR). This has
created several inconsistencies between publicly-released data and the
underlying regulations. This proposed rule seeks to remedy this
problem. EPA is proposing to include those more serious violations into
Category I, while all other violations become Category II. EPA is
proposing an option that will retain most historically-used definitions
that would move a facility from Category II into Category I. EPA is
also proposing to leverage the data that would be required
electronically under this proposed rule so that the severity of
violations is evaluated for all facilities--not just the major
facilities.
    In addition to the establishment of a NNCR, there are two
components to the proposed approach to classifying violations. The
first component covers violation classification; applicability to
regulatory entity types; and revisions to annual, semi-annual, and
quarterly reporting. The second component sets up a procedure for EPA
to regularly assess what pollutant types, limit types, and measurement
types/frequency are considered in classifying the severity of
violations. These components are described below.
a. Component 1--Revise and Simplify the Existing System of Violation
Classification
    EPA proposes to make adjustments to the existing regulation, while
keeping the underlying concepts in place. First, the distinction
between major and nonmajor regulated entities would be eliminated as it
relates to 40 CFR 123.45. Second, Category I noncompliance, as defined
under the existing regulation, would be slightly expanded to include a
subset of violations currently classified as Category II. These include
Category II noncompliance that pose a specific threat to water quality,
including those that adversely impact water quality, human health, or
designated uses of surface waters. EPA would retain the existing TRC
for Group I and Group II Pollutants in 40 CFR 123.45, Appendix A. These
thresholds would be applied to both major and nonmajor facilities, as
they are within the existing regulation, but would ensure that other
types of NPDES-regulated facilities that do not regularly report DMRs
become eligible to be placed in Category I due to water quality
impacts. The proposed regulatory text reflects how this change would be
accomplished. All NPDES-regulated sources would be tiered into Category
I if their effluent violations were significantly over the limit for a
period of time, or if the violations are included in the existing
definition of Category I (e.g., violations of a compliance schedule,
etc.). Other violations (such as sewer overflows, failure to implement
best management practices, failure to implement a pretreatment program,
failure to report, or failure to apply for a permit) that are not
ascertained through numeric limits in permits and DMRs, but are
directly related to water quality impairment or are likely to cause
water quality impairment (such as fish kills, oil sheens, beach
closings, restrictions of beneficial uses, etc.), would also be
classified as Category I. The detection of these non-numeric violations
is by a variety of means, including, for example, inspections, or
review of reports. The regulations also provide for listing of
violations as Category I, if, in the discretion of the Director or
Regional Administrator, that grouping of violations pose a water
quality threat (e.g., geographic clusters or sectors of permittees with
similar violations that are causing water quality issues).
    The proposed revisions to 40 CFR 123.45 would simplify and improve
the organization, completeness, and transparency of NPDES noncompliance
information. EPA, states, tribes, and territories could utilize this
improved information to inform future revisions to EPA's national
enforcement guidance and policies to identify, prioritize, and address
the most serious CWA NPDES violations.
b. Component 2--Developing a Process To Keep Pollutant Lists and
Monitoring/Permit Limit Types Up To Date
    As reflected in this proposed rule, EPA is considering adding a
section to the existing regulation that requires EPA to establish a
policy-making process with state, tribe, territory, and public
involvement to add or delete pollutants that are subject to Category I
classification for permit effluent limit violations, and to determine
how criteria other than monthly average permit limit violations of a
certain magnitude and frequency can be elevated to Category I
classification.
Pollutant Types That Can Be Elevated to Category I Violation
Classification
    Under this proposed rule, as currently drafted and subject to
public comment, EPA retains the existing lists of Group

I and Group II Pollutants in Appendix A to 40 CFR 123.45 that are
evaluated as part of the Category I and Category II definition for
effluent limit violations. Periodic review and update of these lists is
consistent with the original intent of the regulation (as specified on
page 34651 of EPA's preamble for the final rule for 40 CFR part 123,
NPDES Noncompliance and Program Reporting--FR, Vol. 50, No. 165,
Monday, August 26, 1985). The 1985 preamble describes the conventional
and nonconventional/toxic pollutants and provided an expectation that
new parameters may be added from time to time, and that EPA would
provide a more detailed list of pollutants to authorized programs in
guidance for preparing the QNCR. EPA has never added any new parameters
to the list of pollutants currently in 40 CFR 123.45--in part due to
the complexity of re-opening the regulation to make such changes. EPA
did, however, include a much more exhaustive list of Group I
(conventional) and Group II (generally toxic) pollutant parameters
found in Appendix III of its 1986 national guidance for preparation of
quarterly and semi-annual noncompliance reports.\47\ This has resulted
in a situation where a frequent cause of water impairment, pathogen
pollution, (directly linked to NPDES pollutants such as fecal coliform
and E. coli) is not listed in the regulations (see DCN 0038).
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    \47\ See Chapter VII, Part 2, Appendix III in The Enforcement
Management System (1989), DCN 0037.
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Monitoring Frequency/Thresholds and Connection to Category I Violation
Classification
    EPA proposes that the policy/guidance process for adding pollutant
types that are eligible for Category I classification for permit
effluent limit violations can also be used as the process for
identifying potential changes to the reporting thresholds (i.e.,
magnitude and frequency) that are used. For example, the current
regulation focuses on monthly average effluent limit violations of a
specified magnitude (20 percent or 40 percent above the applicable
limit) and frequency (two or four months in a six-month period) because
EPA believed that violations of monthly average permit effluent limits
were indicative of more serious long-term noncompliance problems. EPA
revised its management tool (i.e., EPA's NPDES Significant
Noncompliance Policy) in 1995 to also identify egregious NPDES
violations of non-monthly permit effluent limits that meet EPA's
criteria.\48\ EPA and authorized programs are also now using other
types of limits (e.g., annual limits or seasonal limits) in some
situations. Technical evaluation is needed to determine whether the
existing magnitude and frequency reporting thresholds are viable for
use for other types of limits.
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    \48\ See DCN 0050.
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    In summary, the policy and guidance process discussed here would
provide a forum for updating/changing: (1) Pollutants subject to
Category I classification for permit effluent limit violations; (2)
measurement frequency examined for Category I classification for permit
effluent limit violations; and (3) reporting thresholds used for
existing or new pollutants or measurement frequency that are associated
with Category I classification for permit effluent limit violations.
These decisions would be established in EPA national guidance and
policy (like the EMS), which may be updated as needed.
c. Additional Changes
    The proposed rule incorporates several small changes, including the
synchronization of reports on a Federal fiscal year basis.

H. Changes to Biosolids Annual Reports by the States

    The existing federal regulations at 40 CFR 501.21 require each
authorized State, Tribe, or Territory Program Director to annually
submit summary-level information to the Regional Administrator
regarding state sewage sludge management programs. This required
information includes: (1) a summary of the incidents of noncompliance
which occurred in the previous year and any details; and (2)
information to update the inventory of all sewage sludge generators and
sewage sludge disposal facilities submitted with the program plan or in
previous annual reports.
    This proposed rule seeks comment on whether EPA should amend
provision 40 CFR 501.21, which would allow EPA to eliminate the
requirement for authorized programs to report biosolids information to
EPA. The rationale for such an amendment is that, if EPA's NPDES
Electronic Reporting Rule requires sufficient information directly and
electronically from these permittees and ensures that authorized
programs and EPA share such information, then EPA could generate such a
report based upon that information and alleviate biosolids reporting
burden for this existing regulatory requirement from authorized
programs.
    Ultimately, under this proposed rule, as currently drafted and
subject to public comment, authorized programs would eventually no
longer be required under this existing regulation to report on the
status of their sewage sludge management programs, provide updates of
their inventory to EPA of sewage sludge generators and sludge disposal
facilities, or provide information on incidents of noncompliance,
except for those identified during state biosolids inspections, because
this requirement to supply information would fall on the facilities
directly. Additionally, the electronic submission of this biosolids
information from the permittees in accordance with the proposed rule
will improve the timeliness, cost, and efficiency in the reporting of
facility noncompliance and inventory data related to the biosolids
subprogram.
    Therefore, based on these considerations, this proposed rule
eventually would remove state biosolids reporting requirements pursuant
to 40 CFR 501.21, three years after the effective date of the final
rule. EPA would be able to generate the reports based upon the
available data provided directly from permittees, and supplemented by
authorized program information regarding their biosolids program
implementation activities, through the NPDES Electronic Reporting Rule.

I. Enforceability

    For this proposed rule, as currently drafted and subject to public
comment, the regulated entities are primarily the NPDES-regulated
facilities [e.g., NPDES permittees, biosolids generators subject to 40
CFR part 503, significant industrial users (SIU), categorical
industrial users (CIUs), approved pretreatment programs] and NPDES-
authorized states, tribes, and territories. The tools available to EPA
to ensure compliance with this rule would differ depending on whether
compliance was sought from a NPDES permittee or from a NPDES-authorized
state, tribe, or territory, but the overall objective--compliance with
the rule--would remain the same.
    If NPDES-regulated facilities fail to comply with this federal
regulation for electronic reporting of NPDES information, they may be
subject to the same types of enforcement responses that are available
for failure to submit written (paper-based) or oral reports. This
proposed rule clearly identifies each report that must be
electronically submitted to EPA or the authorized NPDES program.
    In response to such noncompliance, EPA and the authorized programs

would have available their full set of compliance and enforcement tools
and actions to address the failure of a NPDES permittee to
electronically submit required NPDES information, just as they do to
address any other noncompliance by NPDES-regulated facilities. In
addition, the public would also have the ability to initiate citizen
suits under Section 505 of the CWA to ensure that noncompliance is
remedied when there are violations of existing regulations, permit
conditions, or requirements in enforcement actions.
    EPA also needs to ensure that our regulatory partners responsible
for NPDES implementation are meeting Federal requirements as set forth
in this regulation. EPA would have the full range of options available
to ensure state, tribal, and territorial compliance with this rule, as
it would to ensure state, tribal, and territorial compliance with any
other aspect of the NPDES program. In particular, the proposed rule
outlines the procedure for ensuring the completeness and timeliness of
data submissions from states, tribes, or territories that have received
authorization from EPA to implement the NPDES program. This procedure
includes public notification of the initial recipient of NPDES
compliance data for each state, tribe, and territory and the
requirement that authorized NPDES programs must maintain the capacity
to share all the required NPDES information with EPA through automated
data transfers. Finally, this procedure outlines the corrective actions
necessary to ensure the seamless electronic collection from NPDES-
regulated facilities and the sharing of NPDES compliance data with the
public.

J. Effective Date and Compliance Dates

    EPA is considering establishing the effective date for this
regulation as 60 days after the promulgation date for most parts of the
final rule, except for some specified components of the rule. See
Section IV.K for a description of the series of compliance dates that
follow the initial effective date for this regulation (i.e., 60 days
after the promulgation date for the final rule). Additionally, the
effective date for the revisions to 40 CFR 123.45 (elimination of the
QNCR, ANCR, and semi-annual statistical report; creation of the NNCR)
would be three years after the effective date of the final rule. The
reason for this separate effective date is that producing the quarterly
and annual NNCR require at least one full year of electronic reporting
for the complete set of NPDES-regulated entities. As described in
Section IV.I, the entire set of NPDES electronic submissions is
proposed to begin two years after the effective date of the final rule.
    In accordance with 40 CFR 123.63, NPDES-authorized states, tribes,
and territories as proposed to have one year after the effective date
of the final rule to revise their NPDES program to comply with this
rule through any necessary regulatory or policy changes and two years
after the effective date of the final rule if statutory changes are
needed to conform their programs to the requirements of the rule.
Additionally, EPA is proposing to utilize a CWA request, conducted in
accordance with the Paperwork Reduction Act, to start collecting NPDES
program data by one year after the effective date of the final rule
(Phase 1 data) and two years after the effective date of the final rule
(Phase 2 data). States, tribes, and territories should review the
``State Readiness Criteria'' to determine the actions they need to take
to ensure that facilities in their state, tribe, or territory would not
need to report to EPA in addition to their authorized NPDES program.
The rule implementation plan and compliance dates for NPDES-regulated
facilities are described in Section IV.I.
    Given the significant potential data entry cost savings that the
states, tribes, and territories could accrue by moving sooner toward
electronic reporting of NPDES information by the permittees, there
should be significant incentive for these governmental entities to move
in that direction. EPA notes that there will be some initial start up
costs to switch to electronic reporting. Some states, tribes, and
territories may examine whether they could easily adopt the new
rulemaking by reference or even make a blanket change to all of their
NPDES permits to more timely facilitate a change to electronic
reporting by NPDES-regulated facilities. States, tribes, and
territories could also consider utilizing EPA's database and electronic
reporting tools as a cost savings measure.
    Under certain circumstances, and as described in Section IV.E.5,
temporary waivers from electronic reporting may be granted to NPDES-
regulated facilities, NPDES permit applicants, and industrial users
located in cities without approved local pretreatment programs. These
temporary waivers may be granted by the states, tribes, and territories
that have received authorization to implement the NPDES program
(including the applicable subprograms). In situations where EPA is the
permitting authority, EPA may choose to grant such temporary waivers,
using procedures similar to those described in this section. Temporary
waivers are to extend no more than one year at which time the facility
must reapply for a waiver.

K. Rule Implementation Plan

    EPA notes that the proposed implementation plan would expedite the
electronic submission of NPDES program data as compared to implementing
electronic reporting through the permit renewal cycle. As a potential
backstop, EPA is considering using its authority under CWA sections
101, 304(i), 308, 402(b), and 501 to require the electronic collection
and transfer of NPDES program data to EPA as part of this rule, where
authorized states, tribes, and territories are not ready to implement
electronic reporting. Under this proposal, EPA would utilize its
existing authority under the CWA and current technology to allow
everyone to more quickly realize the benefits of electronic reporting.
    The benefits of this proposal include accelerated resource savings
that states, tribes, and territories would realize through reduced data
entry burden and reduced effort in responding to public requests for
data, consistent requirements for electronic reporting across all
states, tribes, and territories, increased data quality, and more
timely access to NPDES program data in an electronic format for EPA,
states, tribes, and territories, regulated entities, and the public.
Under the proposal, a complete set of information for the regulated
universe covered by this proposed rule would be required two years
after the effective date of the final rule. The Agency's proposal to
rely on its authority under the CWA to collect these data directly from
NPDES-regulated facilities is supported by the availability of
technologies for electronic reporting, the needs of EPA states, tribes,
and territories for complete NPDES program data, and the stated goal to
make this data available to the public.
    By comparison, without this accelerated schedule, it would likely
take at least until 2022 to make this information available
electronically, including approximately seven years for states, tribes,
and territories to update their statutes and NPDES permits to require
electronic reporting (i.e., two years for the states, tribes, and
territories to revise their programs if statute changes are needed,
plus a five-year permit reissuance cycle or longer).\49\ EPA considered
using the permit renewal cycle as a means to phase in electronic
reporting but that approach would delay significant benefits such as

state savings and expedited access to complete NPDES program data in an
electronic format for EPA, states, tribes, and territories, regulated
entities, and the public. Furthermore, given current technology, it
would be unreasonable to take nearly a decade to convert from hard-copy
reporting to electronic reporting.
---------------------------------------------------------------------------

    \49\ See 40 CFR 123.62(e).
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    Given the different types of NPDES program data, EPA is proposing
to phase in the electronic collection and transfer of NPDES program
data on the following schedule. For NPDES-regulated entities that will
use EPA's electronic reporting tools, EPA will work closely with
states, tribes, territories, and NPDES-regulated entities to provide
sufficient training and registration support prior to the start of each
implementation phase. In addition, EPA would also provide technical
assistance and support to help states, tribes, and territories make
this transition to electronic reporting. EPA will also use this
schedule to switch from the ANCR and QNCR noncompliance reports to the
NPDES Noncompliance Report (NNCR). See also Section IV.E.5 for a
discussion of the waivers for some regulated entities in rural areas
without access to broadband internet access.
    Phase 1 (One Year After Effective Date of Final Rule): EPA would
electronically receive the basic facility and permit information from
the authorized states, tribes, and territories and information from
facilities covered by Federal general permits [e.g., notices of intent
to discharge (NOIs), notices of terminations (NOTs), no exposure
certifications (NECs), and low erosivity waivers (LEWs)]. EPA would
also begin to electronically receive information from states, tribes,
and territories regarding inspections, violation determinations, and
enforcement actions. EPA, states, tribes, and territories would
electronically receive DMR information from NPDES permittees. Prior to
the start of Phase 1, states, tribes, and territories that can make
changes to their NPDES program without enacting a statute would need to
implement 40 CFR part 3 (CROMERR), 40 CFR 122.22 (NPDES signature
requirements), and 40 CFR part 127 (NPDES Electronic Reporting Rule
within one year of the effective date of the rulemaking [see 40 CFR
123.62(e)]. After changes to the NPDES program are made, these states,
tribes, and territories (and EPA where EPA is the permit writer) will
begin re-issuing existing permits [through permit renewals or minor
permit modification (40 CFR 122.63)] or begin issuing new permits that
include EPA's electronic reporting requirements in 40 CFR part 3,
122.22, and part 127. EPA notes that some states, tribes, and
territories may be able to make minor permit modifications to multiple
permits through one action. EPA may also conduct such minor
modifications for the NPDES permits it issues. EPA is the permit writer
for all tribes and territories (except for the Virgin Islands) and four
states that do not have authorized NPDES programs. States, tribes, and
territories will also need to complete their updates to any needed
NPDES data systems to accommodate the new information exchanges with
EPA. Finally, during Phase 1, states, tribes, and territories that must
make changes to their NPDES program, if applicable, by enacting a
statute would be required to implement 40 CFR part 3 (CROMERR), 40 CFR
122.22 (NPDES signature requirements), and 40 CFR part 127 (NPDES
Electronic Reporting Rule within two years of the effective date of the
final rule [see 40 CFR 123.62(e)].
    Phase 2 (Two Years After Effective Date of Final Rule): In this
proposal, in addition to Phase 1 data, EPA, states, tribes, and
territories would receive information from state, tribal, and
territorial general permit covered facilities and program reports from
all facilities (i.e., all NPDES program data identified in Appendix A
to 40 CFR part 127). Program reports are currently required by existing
EPA regulations and include annual and episodic compliance reports from
regulated entities to their permitting authority. These program reports
include: Pretreatment Program Annual Reports, Industrial Users in
Cities Without Approved Pretreatment Programs Periodic Compliance
Monitoring Reports, Biosolids Program Annual Reports, CAFO Annual
Reports, Municipal Separate Storm Sewer Systems (MS4) Annual Reports,
and Sewer Overflow of Bypass Event Reports [Combined Sewer Overflows
(CSOs), Sanitary Sewer Overflows (SSO), and Bypass Event Reports] (see
Section IV).
    During Phase 2, states, tribes, and territories that would be
required to make changes to their NPDES program through enacting a
statute would complete their changes to their NPDES program to
implement 40 CFR part 3 (CROMERR), 40 CFR 122.22 (NPDES signature
requirements), and 40 CFR part 127 (NPDES Electronic Reporting Rule
[see 40 CFR 123.62(e)]. After these states, tribes, and territories
update their NPDES program, all new permits issued or existing permits
re-issued after this date for the entire nation shall contain a permit
condition requiring the electronic reporting requirements in 40 CFR
part 3, 122.22, and part 127. Regulated entities, which would then have
the Federal electronic reporting requirements (40 CFR part 3, 122.22,
part 127) in their permit, would start (or continue) electronic
reporting to the initial recipient (as defined in 40 CFR 127.27) as of
the effective date of their permit. Under both phases, EPA would
continue to work with states, tribes, and territories to ensure the
electronic flow of state NPDES program data from their systems to EPA's
national NPDES data system (e.g., ICIS-NPDES).
    Finally, at the end of Phase 2 (two years after effective date of
final rule) EPA will replace the QNCR, ANCR, semi-annual statistical
reports with the NNCR. See Sections IV.
1. Phase 1 Implementation
    During Phase 1, EPA would require regulated entities to
electronically send ``Phase 1 data'' (i.e., DMRs, information from
general permit covered facilities for Federally-issued general permits,
to EPA, unless the state, tribe, or territory has met the ``State
Readiness Criteria'' (see below). This proposed electronic reporting
requirement is in addition to any pre-existing paper-based reporting
requirements. EPA would commit to holding monthly teleconferences and
webinars with authorized programs during this transition period to
assist with data migration and reconciliation.
    However, EPA would exclude regulated entities from this CWA request
if their authorized state, tribe, or territory meets all of the
following ``State Readiness Criteria'':
    (1) The authorized state, tribe, or territory has 90 percent
acceptance rate by data group (i.e., NPDES-regulated entities submit
timely, accurate, complete, and nationally consistent NPDES data using
approved state, tribe, territory or third-party electronic reporting
tools; and
    (2) The EPA, state, tribe, territory, or third-party electronic
reporting tools used by the NPDES regulated entity meet all of the
minimum Federal reporting requirements for 40 CFR part 3 (CROMERR) and
40 CFR part 127 (NPDES Electronic Reporting Rule); and
    (3) EPA lists the state, tribe, or territory as the initial
recipients for electronic NPDES information from NPDES-regulated
entities in that state on EPA's Web site. Each authorized program will
then designate the specific tools for these electronic submissions from
their permittees. These designations are proposed to be made separately
for each NPDES data group (see 40 CFR 127.2(c) and 127.27).

    EPA encourages all authorized states, tribes, and territories to
meet the ``State Readiness Criteria,'' and will provide support to
these authorized programs. This approach will minimize the cases where
regulated entities would need to report to their authorized state,
tribe, or territory (as required by their NPDES permit) and also to EPA
(as required by EPA's CWA request). EPA will also exclude regulated
entities from this CWA request if the regulated entity's permit
includes all the necessary language to ensure that any electronic
reporting done by the permittee meets all of the minimum Federal
electronic reporting requirements (40 CFR part 3, 122.22, and part
127). If one or more of the above State Readiness Criteria are not met
or if the applicable permit does not include all of the minimum Federal
electronic reporting requirements (40 CFR part 3, 122.22, and part
127), then the regulated entity should report to both the state,
tribal, or territorial permitting authority (if hard-copy paper
reporting is required in the permit) and EPA (electronic reporting
compliant with 40 CFR part 3, 122.22, part 127) during this transition
period.
    EPA proposes to make its initial recipient decisions by each
authorized state, tribal, and territorial NPDES program and for each
data group. For example, if more than 90 percent of NPDES-regulated
facilities that are required to submit DMRs in a particular state do so
in accordance with the State Readiness Criteria, then all NPDES-
regulated facilities in that particular state that are required to
submit DMRs would not need to electronically report to EPA under the
proposed rule. EPA notes that facilities that are exempt from
electronic reporting through use of a temporary waiver would not be
included in the 90 percent adoption rate percentage calculation. EPA
solicits comment on the 90% threshold that it will use for each state,
tribe, and territory by data group. EPA also solicits comment on the
appropriate date after the effective date of the final rule when EPA
should perform the 90 percent adoption rate percentage calculations
prior to the start of the Phase 1 data collection (one year after
effective date of final rule).
    EPA will work closely with states, tribes, and territories to
identify the authorized programs that have met State Readiness Criteria
and permittees that have all of the minimum Federal electronic
reporting requirements in their permits. EPA will create a search
feature on its Web page to identify for each NPDES permittee the data
group it does and does not need to report to EPA (e.g., for example a
POTW may be exempt from electronically reporting DMR data directly to
EPA but may still be required to electronically report pretreatment,
biosolids, and sewer overflow data to EPA and also continue their pre-
existing hard-copy reporting requirements to their state permitting
agency if required to do so by their permit).
    As proposed in 40 CFR 127.27(c), EPA would 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. Regulated entities that
must report Phase 1 data should consult EPA's Web site and the Federal
Register to determine whether EPA, the state, tribe, or territory is
the initial recipient for the NPDES program data that they need to
report. States, tribes, and territories will also update the language
in new or re-issued NPDES permits to ensure that any electronic
reporting done by the permittee meets all of the minimum Federal
reporting requirements for 40 CFR part 3 (CROMERR, 40 CFR 122.22 (NPDES
signature requirements), and 40 CFR part 127 (NPDES Electronic
Reporting Rule).
    Consequently, regulated entities that must report Phase 1 data
should consult their permit to see if it requires electronic reporting
in compliance with 40 CFR part 3, 122.22, and part 127. Regardless of
whether a federal, state, tribal, territorial, or third-party
electronic reporting tool is used by the regulated entity, or whether
data is provided to EPA by the state (computer-to-computer transfer),
NPDES program data from regulated entities would be included in ICIS-
NPDES and be made available to the public through EPA's Web site. EPA
has accounted for this increased burden related to the concurrent
reporting when a state, tribe, or territory does not meet the State
Readiness Criteria in the supporting economic analysis and the ICR. See
Section VII for more detailed discussion on savings and costs
associated with this proposal. Additionally, during Phase 1, EPA
expects states, tribes, and territories with NPDES program
authorization to comply with 40 CFR 123.62(e) by making appropriate and
timely revisions to their programs by two years after the expected
promulgation date of the final rule. That subsection of the regulations
indicates that any approved State section 402 permit program which
requires revision to conform to this part shall be so revised within
one year of the date of promulgation of these regulations, unless a
State must amend or enact a statute in order to make the required
revision in which case such revision shall take place within 2 years.
    As indicated above, existing regulations allow states one or two
years (if statutory revisions are necessary) to make the required
permit changes to their programs. In order to make these changes more
efficiently, EPA is also proposing changes to 40 CFR 122.63 (``Minor
modifications of permits'') that would allow states to use the minor
modification procedure with the consent of the permittee to change
reporting of NPDES program data from a paper process to an electronic
process. This proposed change to the minor modification process would
ease the burden on states to update existing NPDES permits to include
the electronic reporting requirements for regulated entities. Section V
also solicits comment on an alternative approach to minor modifications
of the permit; in this alternative approach, the consent of the
permittee would not be required to convert the permit to require
electronic reporting.
    Under this proposed rule, all NPDES-regulated entities will
electronically report Phase 1 data to their state permitting authority
or EPA in compliance with this rulemaking after one year of the
effective date of the final rule. This proposed rule would also update
the standard permit conditions to include a requirement for NPDES-
regulated entities to ensure that their electronic submissions of DMR
and other NPDES information (see 40 CFR 127.27) are sent to the
appropriate initial recipient, as identified by EPA, and as defined in
40 CFR 127.2(b).
2. Phase 2 Implementation
    During Phase 2, all data required to be reported (see Appendix A to
40 CFR 127) by NPDES-regulated entities under this proposed rule would
be electronically reported to the authorized program or EPA. NPDES
program data from regulated entities would be included in ICIS-NPDES
and be made available to the public through EPA's Web site. It is
expect that during Phase 2 all states, tribes, and territories with
NPDES program authorization will have made appropriate and timely
revisions to their programs. EPA is proposing to retain authority to
require regulated entities to send their NPDES program data to EPA when
the authorized state, tribe, or territory does not meet the State
Readiness Criteria. This proposed electronic reporting requirement is
in addition to any pre-existing paper-based reporting requirements
specified in permits.

    As proposed, during Phase 2, regulated entities should consult
EPA's Web site and the Federal Register to determine whether they
should directly report to EPA. In a similar procedure as Phase 1, EPA
will work closely with states, tribes, and territories to identify the
authorized programs that have met State Readiness Criteria and
permittees that have all of the minimum Federal electronic reporting
requirements in their permits. EPA will create a search feature on its
Web page to identify for each NPDES permittee the data group it does
and does not need to report to EPA. It is important to note that
existing EPA regulations allow some NPDES-regulated facilities to
obtain automatic coverage under a general permit without having to
submit a NOI (see 40 CFR 122.28). This regulation does not change this
option for permitting authorities to allow for automatic coverage under
a general permit. This also means that there is no burden for these
NPDES-regulated facilities associated with electronically submitting a
NOI. States would also not necessarily need to provide information to
EPA on these NPDES permittees that obtain automatic coverage under a
general permit. States may need to provide inspection, compliance
determination, and enforcement action data on these facilities.
    Under this proposed rule, all NPDES-regulated entities will
electronically report Phase 2 data to their authorized program or EPA
after two years after the effective date of the final rule. NPDES-
regulated entities shall identify the initial recipient for their
electronic submissions of NPDES information (see 40 CFR 127.27).
    Finally, under this proposed rule, all new permits issued or
existing permits re-issued after two years after the expected
promulgation date of the final rule would contain a permit condition
requiring the electronic reporting requirements in 40 CFR part 3,
122.22, and part 127 [see 40 CFR 123.62(e)]. EPA has accounted for this
increased burden related to the potential for concurrent reporting when
a state, tribe, or territory does not meet the State Readiness Criteria
in the supporting economic analysis and the ICR. See Section VII of the
preamble for more detailed discussion on savings and costs associated
with this proposal.

                              Table IV.3--Proposed Implementation Schedule for Rule
----------------------------------------------------------------------------------------------------------------
                         Key milestones                                              Due dates
----------------------------------------------------------------------------------------------------------------
ICIS-NPDES batch functionality is completed and all states,       December 2012 (completed).
 tribes, and territories are migrated from PCS to ICIS-NPDES.
----------------------------------------------------------------------------------------------------------------
                                                     Phase 1
----------------------------------------------------------------------------------------------------------------
Final NPDES Electronic Reporting Rule promulgated                 TBD.
Collaborative forum between EPA and authorized states, tribes,    Final Rule Published in Federal Register
 and territories to develop data exchange protocols.               (start).
EPA sponsored webinars, recorded training, and technical          Final Rule Published in Federal Register
 assistance to states, tribes, and territories to review and       (start).
 test data exchange protocols.
NPDES authorized states, tribes, and territories identify for     120 days after the promulgation date for the
 EPA the NPDES data groups for which they wish to be the initial   final rule.
 recipient of electronic NPDES information from NPDES-regulated
 entities. These authorized programs will provide a description
 to EPA of how their data system will be compliant with 40 CFR
 part 3, 122.22, and part 127, and the date or dates when the
 state, tribe, or territory would be ready to accept NPDES
 information from NPDES-regulated entities in a manner compliant
 with 40 CFR part 3, 122.22, and part 127. These dates should
 not come after the start of the applicable implementation phase
 (e.g., states cannot propose to be the initial recipient of DMR
 data after the start of Phase1, states cannot propose to be the
 initial recipient of NPDES program reports after the start of
 Phase 2).
EPA will publish on its website and in the Federal Register a     210 days after the promulgation date for the
 listing of the initial recipients for electronic NPDES            final rule.
 information from NPDES-regulated entities by state, tribe, or
 territory and by NPDES data group. This listing will provide
 NPDES-regulated entities the initial recipient of their NPDES
 electronic data submissions and the due date for these NPDES
 electronic data submissions.
States, tribes, and territories begin submitting all required     Eight to nine months after promulgation date
 data elements associated with their implementation activities     for the final rule.
 (e.g., permit issuance, inspections, violations, and
 enforcement actions. EPA will hold monthly teleconferences and
 webinars with authorized programs during this transition period
 to assist with data migration and reconciliation.
States, tribes, and territories make changes to their NPDES       One year after promulgation date for the final
 program to implement Federal electronic reporting requirements    rule.
 (40 CFR part 3, 122.22, part 127) without amending or enacting
 a statute [see 40 CFR 123.62(e)]. These authorized programs may
 elect to modify existing permits through the minor modification
 process (40 CFR 122.63) to include a requirement for electronic
 reporting that is compliant with 40 CFR part 3, 122.22, and
 part 127. All new permits issued or existing permits re-issued
 after the authorized state, tribe, or territory incorporates
 Federal electronic reporting requirements (40 CFR part 3,
 122.22, part 127) into their authorized program shall contain a
 permit condition requiring the electronic reporting
 requirements in 40 CFR part 3, 122.22, and part 127. Regulated
 entities, which now have the Federal electronic reporting
 requirements (40 CFR part 3, 122.22, part 127) in their permit,
 shall start (or continue) electronic reporting to initial
 recipient (as defined in 40 CFR 127.27) as of the effective
 date of their permit. Authorized NPDES programs must also
 update their NPDES data systems.
EPA preparation before requiring direct reporting by NPDES        One year after promulgation date for the final
 permittees:                                                       rule.
--EPA updates website to allow permittees to determine if they
 do not need to report their data directly to EPA;
--Improvements to ICIS-NPDES or existing tools; and
--Registration (including any necessary subscriber agreements)
 of permittees for use of electronic reporting tools
EPA requires NPDES-regulated entities to electronically send      One year after effective date for the final
 Phase 1 data (i.e., DMRs, general permit reports for Federally-   rule.
 issued general permits, to EPA if the states, tribes, or
 territories are not ready to implement Federal electronic
 reporting requirements. All NPDES-regulated entities subject to
 this proposed rule should assume that they will electronically
 submit their Phase 1 data to EPA unless otherwise noted in the
 Federal Register or EPA's website. These electronic data
 submissions will be compliant with 40 CFR part 3, 122.22, and
 part 127

The remaining states, tribes, and territories make changes to     Two years after promulgation date for the
 their NPDES program to implement Federal electronic reporting     final rule.
 requirements (40 CFR part 3, 122.22, part 127) by amending or
 enacting a statute [see 40 CFR 123.62(e)]. These authorized
 programs may elect to modify existing permits through the minor
 modification process (40 CFR 122.63) to include a requirement
 for electronic reporting that is compliant with 40 CFR part 3,
 122.22, and part 127. All new permits issued or existing
 permits re-issued after the authorized state, tribe, or
 territory incorporates Federal electronic reporting
 requirements (40 CFR part 3, 122.22, part 127) into their
 authorized program shall contain a permit condition requiring
 the electronic reporting requirements in 40 CFR part 3, 122.22,
 and part 127. Regulated entities, which now have the Federal
 electronic reporting requirements (40 CFR part 3, 122.22, part
 127) in their permit, shall start (or continue) electronic
 reporting to initial recipient (as defined in 40 CFR 127.27) as
 of the effective date of their permit. Authorized NPDES
 programs must also update their NPDES data systems.
----------------------------------------------------------------------------------------------------------------
                                                     Phase 2
----------------------------------------------------------------------------------------------------------------
EPA preparation before requiring direct reporting by NPDES        Twenty months after effective date for the
 permittees:                                                       final rule.
--EPA updates website to allow permittees to determine if they
 do not need to report their data directly to EPA;
--Improvements to ICIS-NPDES or existing tools; and
--Registration (including any necessary subscriber agreements)
 of permittees for use of electronic reporting tools
All NPDES program data from regulated entities subject to the     Two years after effective date for the final
 proposed rule electronically reported to their authorized         rule.
 state, tribe, or territory or EPA. NPDES program data from
 regulated entities would be included in ICIS-NPDES and be made
 available to the public through EPA's website. EPA would retain
 authority to require regulated entities to send their NPDES
 program data to EPA until the state, tribe, or territory meets
 the State Readiness Criteria. These electronic data submissions
 will be compliant with 40 CFR part 3, 122.22, and part 127.
----------------------------------------------------------------------------------------------------------------

    EPA would also issue a Federal Register notice if it needs to delay
or extend any aspect of implementation and make such determinations
public in the initial recipient listing in the proposed 40 CFR
127.27(c).
    EPA also notes that it will be providing technical assistance and
support to help states, tribes, and territories with this transition to
electronic reporting. EPA is also open to considering other options for
phasing the collection of the information under this proposed rule.
Specifically, EPA would like to hear from authorized NPDES programs
that have experience in implementing electronic reporting, especially
their experience in phasing the implementation so that it is
successful. EPA seeks additional data on alternative options that might
reduce implementation costs on authorized NPDES programs and permittees
while also preserving the proposed implementation schedule and benefits
of electronic reporting.

L. Procedure for Determining Initial Recipient of Electronic NPDES
Information

    In this proposal, EPA identified the procedure for identifying the
initial recipient of information from NPDES-regulated entities. See 40
CFR 127.27. This procedure requires each authorized state, tribe, or
territory to identify the specific NPDES data groups (e.g., DMR
information from facilities, information from general permit covered
facilities, program reports) for which the state, tribe, or territory
would be the initial recipient of electronic NPDES information from
NPDES-regulated entities, a description of how their data system will
be compliant with 40 CFR part 3, 122.22, and part 127, and the date or
dates when the state, tribe, or territory would be ready for accepting
NPDES information from NPDES-regulated entities electronically in a
manner compliant with 40 CFR part 3, 122.22, and part 127.
    The purpose of the initial recipient procedure is to ensure that
the authorized state, tribe, or territory receiving NPDES program data
from an NPDES regulated entity complies with the CROMERR signatory,
certification, and security standards (40 CFR part 3) and the proposed
NPDES Electronic Reporting Rule (40 CFR part 127). Built into the
proposed procedure is an understanding that EPA will support any
authorized state, tribe, or territory that wishes to be the initial
recipient for electronically reported NPDES program data and will help
the authorized state, tribe, or territory resolve any issues that
temporarily prevent it from being the initial recipient of
electronically reported NPDES program data.
    EPA would review these submissions and 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. This listing would
provide NPDES-regulated entities the initial recipient of their NPDES
electronic data submissions and the due date for these NPDES electronic
data submissions. EPA would update this listing on its Web site and in
the Federal Register if a state, tribe, or territory is approved by EPA
to be the initial recipient of NPDES electronic data submissions.
    A state, tribe, or territory that is designated by EPA as an
initial recipient of electronic NPDES information from NPDES-regulated
entities, as defined in 40 CFR 127.2, must maintain this data and share
all the required NPDES information with EPA through timely automated
data transfers, as identified in 40 CFR 127.21(a)(1)-(5) and in
Appendix A to this part, in accordance with all requirements of 40 CFR
3 and 127. Timely means that the authorized state, tribe, or territory
submit these automated data transfers (see the data elements in
Appendix A to 40 CFR part 127) to EPA within 30 days of the completed
activity. For example, the data regarding a state inspection of a
NPDES-regulated entity that is completed on October 15th shall be
submitted automatically to EPA no later than November 14th of that same
year (e.g., 30 days after October 15th).
    EPA would be the initial recipient of electronic NPDES information
from NPDES-regulated entities if the state, tribe, or territory fails
to collect data and consistently maintain timely automated data
transfers in compliance with 40 CFR part 3 and part 127. The regulatory
text in 40 CFR 127.27 lays out the procedure for identifying and
correcting problems preventing states, tribes, and territories from
being the initial recipient of NPDES data. EPA would continue to work
with the Director of the authorized NPDES program to remediate all
issues identified by EPA

that prevent the authorized NPDES program from being the initial
recipient. When all issues identified by EPA are resolved, EPA would
update the initial recipient listing in 40 CFR 127.27(c) and publish
this listing on its Web site and in the Federal Register.

V. Matters for Which Comments Are Sought

    The following sections identify specific issues on which EPA
invites comment. In Section V.A, EPA discusses comment questions
regarding the proposed rule. In section V.B EPA commits to publish a
supplemental notice after the close of the comment period for this
proposal should it receive substantial number of comments that
significantly change the direction of this proposed rule. This will
allow stakeholders to see how EPA addressed their comments and to
provide further input on those sections generating significant number
of comments. In Section V.C, EPA summarizes the various approaches
identified in Section IV and for which EPA invites comment. In the
remaining sections of Section V, EPA identifies other approaches for
which EPA invites comment.

A. Response to Early Public Comments

    Through the Clean Water Act Action Plan Discussion Forum and
consultation with states, tribes, and stakeholders, EPA solicited ideas
and comments on electronic reporting. EPA identified several
misconceptions about the proposed rule. This section of the preamble
identifies some of these misconceptions and provides clarification
based upon the proposed rule, as currently drafted and subject to
public comment.
     The proposed rule would focus on existing collection and
reporting requirements: The proposed rule is not an EPA effort to
impose the collection of additional information beyond that which the
permittee is already required to report and the state, tribe, or
territory is already required to collect. The proposed rule changes the
means by which the information is provided to EPA or to the authorized
program, requiring electronic reporting rather than existing hard-copy
reporting from the NPDES-regulated facilities.
     The proposed rule would not require states, tribes, and
territories to develop their own electronic tools for use by NPDES-
regulated facilities or require states, tribes, and territories to
develop their own electronic databases: In support of ICIS-NPDES and
this proposed rule, EPA plans to develop national tools to allow NPDES-
regulated facilities to provide NPDES information electronically to
EPA, states, tribes, and territories. EPA plans to make those EPA-
developed tools available for use within each state, tribe, and
territory. Alternatively, a state (or tribe or territory) may choose to
develop its own state-specific electronic tools or state data systems
rather than utilizing what EPA makes available, or the electronic
reporting tools could be developed by third parties. However, the
proposed rule would require these new electronic reporting tools to
provide the same basic nationally-consistent set of NPDES information
required by EPA under this rule. Additionally, the new state, tribe,
territory, or third-party electronic reporting tools would need to meet
the requirements of EPA's Cross-Media Electronic Reporting Regulation
(CROMERR) (see 40 CFR part 3).
     The proposed rule would not stop utilization of existing
electronic reporting tools by states, tribes, and territories: The
proposed rule would not require states, tribes, and territories to stop
utilizing tools that they have developed to enable NPDES-regulated
facilities to report electronically. However, EPA does seek to ensure
that each electronic reporting tool utilized in the state, tribe, or
territory would provide the same nationally-consistent set of NPDES
information required by EPA, regardless of whether this was an existing
or newly-developed tool. EPA also seeks assurance that such electronic
reporting tools would meet the requirements of CROMERR. Therefore,
states, tribes, and territories with existing electronic tools may need
to modify them as appropriate to ensure that the tools obtain all
required NPDES information and meet the necessary requirements.
     The proposed rule does not specify particular electronic
reporting tools: The proposed rule does not specify any details of what
electronic tools would be developed or should be used to ensure that
the required NPDES data would be provided in a timely, accurate,
complete, and nationally consistent manner by permittees, states,
tribes, and territories to EPA. The proposed rule focuses on
establishing requirements for what types of NPDES data the NPDES-
regulated facilities would be required to report to EPA, states,
tribes, and territories electronically; what facility-specific
information states would be required to provide to EPA regarding their
implementation activities; and how these requirements would be
implemented in a NPDES-authorized program.
     The proposed rule does not mandate direct entry of NPDES
data into ICIS-NPDES as the only means of compliance: The proposed rule
establishes what data the permittees, states, tribes, and territories
would be required to provide to EPA on a nationally consistent, timely,
accurate and complete basis. Although EPA wants to ensure that the data
is provided in a manner which is fully compatible with ICIS-NPDES, the
proposed rule does not presume that direct data entry into ICIS-NPDES
is the only approach that would meet the proposed requirements.
     The proposed rule will provide significant benefits to
states, tribes, and territories: Based upon results of the economic
analysis, as summarized in Section VII, the proposed rule would provide
long-term savings to the states, tribes, and territories, providing
states, tribes, and territories the opportunity to reallocate or
redistribute existing resources more efficiently. The near-term costs
are small in comparison to these savings, and the proposed rule would
not impose significant costs upon the states, tribes, and territories
in the long term. EPA would also be providing technical assistance and
support to help states, tribes, and territories transition to this new
cheaper and more accurate approach.
     The proposed rule does not increase the reporting burden
on state NPDES programs: As described in more detail in Sections IV and
VII of the preamble, most of the data required for the NPDES program
under the proposed rule (see Appendix A to 40 CFR part 127) would be
electronically provided by NPDES regulated entities. States, tribes,
and territories would not need to key punch these data supplied by
NPDES regulated entities into ICIS-NPDES. Also, many of the required
data are required only for particular NPDES subprograms (e.g., CAFOs,
pretreatment, etc.) and it is highly unlikely that any NPDES regulated
entity would be covered by each and every one of these subprograms.
Furthermore, over 60 percent of these required data are required to be
entered only once every five years or less frequently (particularly
facility and permit information obtained from electronic notices of
intent to discharge or individually-issued NPDES permits, but also
where obtained from certain inspections). In addition, some of the data
would rarely be used because they are conditional in nature, with their
data entry contingent upon certain other unique conditions being
present (e.g., removal credits in approved local pretreatment
programs). Therefore, any calculation of the data entry resource burden
on states, tribes, and territories which contains an assumption that
every data element is required for every

facility is incorrect. These concepts are explained in much more detail
in the context of data entry considerations in Section IV.D.

B. Supplemental Notice

    This proposed rule as currently drafted, subject to public comment,
requires a conversion to electronic reporting of information from the
majority of the NPDES regulated universe and from states, tribes, and
territories authorized to implement the NPDES program. As such, this
proposed rule will affect hundreds of thousands of NPDES-regulated
entities and all states, tribes, and territories. The proposed rule
will also impact the public, making more complete NPDES information
available nationally for the first time.
    Given the large scope of this proposal, EPA commits to offer an
additional opportunity for transparency and engagement should we
receive public comments that require significant changes to the rule.
If that occurs, EPA will issue a supplemental notice with its response
to any public comments that prompted a change in direction, so that
states, tribes, territories, permittees, and other stakeholders can
review and comment on how EPA revised the parts of the proposed rule
that generated significant amount of comment. EPA plans to publish the
supplemental notice within 180 days after the public comment period for
this proposed rule has closed.
    Although EPA is requesting comment on all aspects of the proposed
rule, there are three specific areas for which EPA is particularly
interested in getting comment from states, tribes, territories,
permittees, and other stakeholders. The three areas include: governance
of the data; phasing the implementation proposed under this rule; and
the specific information the rule proposes to collect.
1. Governance of the Data
    It is important that the governance processes surrounding the
management and public release of data be clearly defined. The proposed
rule relies on data that is currently required under existing
regulations for the NPDES program. It also respects and does not change
the role of authorized state, territorial, and tribal agencies as the
primary implementors of the NPDES program or as data stewards for NPDES
data within their jurisdiction. EPA invites comments from states,
tribes, territories, permittees, and other stakeholders on the
governance and management of data to be electronically reported to
states and EPA under this proposed rule, including data stewardship and
use of the information.
2. Phasing the Data Collection
    Currently the proposed rule has two phases that will be implemented
for collecting this information (see Section IV of the preamble for a
detailed discussion on the phasing of the implementation of the rule).
EPA will be providing technical assistance and support to help states,
tribes, and territories with this transition to electronic reporting.
EPA is also open to considering other options for phasing the
collection of the information under this proposed rule. Specifically,
EPA would like to hear from authorized NPDES programs that have
experience in implementing electronic reporting, especially their
experience in phasing the implementation so that it is successful. EPA
seeks additional data on alternative options that might reduce
implementation costs on authorized NPDES programs and permittees while
also preserving the proposed implementation schedule and benefits of
electronic reporting.
3. Specific Information the Rule Proposes To Collect
    The proposed rule lists each data element proposed for electronic
reporting. This information can be found in Appendix A of 40 CFR part
127 of the proposed regulation text. The proposed rule explains
throughout the preamble why the information is proposed to be submitted
electronically. In particular, there is a detailed discussion for each
data family by program area that can be found in Section IV of the
preamble. Additionally, this proposed rule does not require the
generation of new data that is not already required in the existing
regulations for the NPDES program.
    EPA would like to hear from states, tribes, territories,
permittees, and other stakeholders any comments for adding, changing,
or deleting data elements from this proposed list.

C. Summary of Items for Comment Identified in Section IV of This
Preamble

    In Section IV, EPA identified several specific approaches on which
comments are invited. These include:
     Taking into account the limitations of broadband
availability and technological capabilities, EPA is considering
providing a temporary waiver to the electronic reporting requirements
for facilities lacking broadband capability or high-speed internet
access and invites comments on such an exception.
     EPA invites comment on how to best address the variability
in general permits issued by EPA, states, tribes, and territories.
     EPA is considering the elimination of reporting ``time''
from the annual report for CAFOs [see 40 CFR 122.42(e)(4)(vi)]. EPA
estimates that the reporting of ``date'' of discharges is sufficient
for permitting and compliance determinations. EPA invites comment on
this considered change.
     EPA is not considering requiring the electronic submission
of LTCPs as these reports are unique to each POTW. EPA invites comment
on this approach.
     EPA invites comment on whether electronic sewer overflow
event reports should be limited to sewer overflow events above a de
minimis volume.
     EPA invites comment on whether the list of minimum federal
data for sewer overflow and bypass events (Appendix A to 40 CFR part
127) provides sufficient distinction between the different types of
sewer overflow and bypass events.
     For the pretreatment reports not identified in this
proposed rule, as currently drafted, for electronic submission, EPA
invites comment on which other pretreatment reports (if any) EPA should
require for electronic submission as electronic documents (e.g.,
searchable PDFs).
     For the pretreatment reports, EPA is first focusing its
efforts on collecting electronically annual reports from control
authorities, acknowledging that these reports include summary data from
IU reports, and collecting compliance reports from IUs in cities
without pretreatment programs. EPA invites comment on whether EPA
should re-examine this decision for the final rule.
     EPA invites comment on the phasing out of reports
currently required by 40 CFR 123.45 and 40 CFR 501.21, the new
provisions for the NNCR, and the retention of existing thresholds in
Appendix A to 40 CFR 123.45.
     EPA's VGP currently contains the monitoring, reporting,
inspection, operation and maintenance requirements. EPA is not
considering using this proposed rule, as currently drafted, to make any
changes to NPDES regulations that would be specific to the vessels
program. EPA invites public comment on this approach.
     EPA is not considering using this proposed rule, as
currently drafted, to make any changes to NPDES regulations that would
be specific to the pesticide

applicators program. EPA invites public comment on this approach.
     EPA invites comment on whether it should expand electronic
noncompliance reporting to other forms of noncompliance [see 40 CFR
122.41(l)(6) and (7)], besides sewer overflow incidents and bypasses.
     EPA notes that the list of minimum federal data (Appendix
A to 40 CFR part 127) from states, tribes, and territories only
includes construction stormwater inspection data when the authorized
program identifies violations and completes a formal enforcement action
(i.e., authorized state, tribe, and territory programs are not required
to report construction stormwater inspection data to EPA for
inspections that do not identify violations). EPA made this distinction
based on the large number of facilities in this segment of the NPDES
universe (approximately new 222,000 facilities each year). EPA invites
comment on this approach.
     EPA invites comment on whether CAFO NOIs and NOTs should
be included in Phase I of the rule implementation, as currently being
considered, or in Phase II.
     EPA is seeking comment on how it should evaluate, update,
and revise the lists of pollutants in Appendix A to 40 CFR 123.45.
These lists are used to determine Category I (most serious) and
Category II noncompliance. EPA's preamble for the final rule for 40 CFR
part 123, NPDES Noncompliance and Program Reporting (FR, Vol. 50, No.
165, Monday, August 26, 1985) describes the conventional and
nonconventional/toxic pollutants as lists of general types. It was
expected that new parameters may be added from time to time. EPA has
never revised these lists in part due to the complexity of re-opening
the regulation to make such changes. This has resulted in a situation
where, the most frequent cause of water impairment, pathogens, (which
is directly related to pollutants such as fecal coliform and eColi) are
not listed as pollutants that cause a Category I listing in the
regulations. This means that a violation of a pathogen effluent limit
alone (no matter how severe) is not required to be reported to EPA
under 40 CFR 123.45 and, therefore, will not automatically trigger
evaluation of the violation for ``significant noncompliance (SNC)''
status. EPA also seeks comment on eliminating the need for pollutant
specific lists such as the current one in Appendix A and instead
requiring that all effluent limitations in NPDES permits be considered
noteworthy when involving exceedances greater than a certain, specified
amount and basing the threshold amounts on whether or not the limit is
a water-quality based effluent limit or a technology-based limit.
     In addition, when the 40 CFR 123.45 noncompliance
reporting requirement were originally developed, EPA believed that
violations of monthly average permit effluents limits were indicative
of more serious long term noncompliance problems. However, EPA's
thinking has evolved on this point and, in consultation with Regions
and States, EPA revised its management tool (i.e., EPA's NPDES
Significant Noncompliance Policy) in 1995 to also identify egregious
NPDES violations of non-monthly permit effluent limits that meet EPA's
criteria. EPA is specifically seeking comment on whether noncompliance
reporting of permit effluent limits in 40 CFR 123.45 should be limited
to monthly average permit limit violations and those violations that
are of a specific magnitude and frequency.
    EPA invites comment on the 90 percent threshold, currently
considered in the proposed rule, that it will use as one of the State
Readiness Criteria for each state, tribe, and territory by data group.
EPA also invites comment on the appropriate date when EPA should
perform the percent adoption rate percentage calculations prior to the
start of the Phase 1 data collection.

D. Possible Adjustments to the Universe of Facilities for Which
Electronic Reporting Is Required

1. Construction Sites With Potential Stormwater Issues
    Based upon preliminary EPA estimates, the number of facilities
covered by NPDES permits to control stormwater discharges related to
construction (approximately 200,000 such facilities in any particular
year) constitutes a very large percentage of the total universe of
NPDES-permitted facilities in any given year. This universe of
facilities changes as construction is completed. Based upon existing
regulatory requirements,\50\ few of the construction stormwater permits
require the submission of DMRs from these facilities; therefore, much
of the available information regarding the compliance status of such
facilities is based upon inspections rather than on self-reported
effluent monitoring data.
---------------------------------------------------------------------------

    \50\ In a separate rulemaking effort, EPA is drafting proposed
regulatory language that may change reporting requirements
associated with construction sites. At this time, it would be
premature for EPA to speculate on what that proposed or final rule
would contain.
---------------------------------------------------------------------------

    For these construction sites, NPDES permit coverage is provided
through the construction site operator's submission of a notice of
intent (NOI) to be covered under a general permit issued by EPA or by
the authorized state, tribe, or territory. The NOI information from the
prospective NPDES-regulated facilities includes basic information
regarding the facility and its discharges, and provides some basis for
possible inspections and enforcement by authorized agencies.
    In the development of this proposed rule, as currently drafted, EPA
has considered whether facility-specific data should be required only
for those sites that had been inspected (rather than for the entire
universe of such facilities) due to the transient nature of these
sites. Based on the 2007 version of EPA's Compliance Monitoring
Strategy (CMS), EPA recommended annual EPA-state goals to inspect at
least 10percent of NPDES-permitted construction sites greater than five
acres in size (Phase I), and at least 5percent of construction sites
which are 1-5 acres in size (Phase II). Adjusting data reporting
requirements to only require information on the facilities inspected
would provide facility data for a much smaller set of facilities.
    In discussions with states about reporting for potential wet-
weather facilities such as construction sites, EPA has also considered
requiring reporting on an even smaller subset of these construction
sites, namely those sites that have been subject to a formal
enforcement action, an administrative penalty order, or another
informal enforcement action if that informal action addressed
significant noncompliance. Closer tracking of these particular
facilities would help ensure timely compliance and could help EPA to
identify noncompliance patterns by particular companies across
watershed or state, tribe, or territory boundaries, or nationally in
scope. It is difficult to determine an accurate percentage of such
facilities that may be subject to these future actions; however, as a
preliminary estimate, EPA expects that only 1percent of such facilities
would be the recipients of such enforcement actions in a given year.
    In this proposed rule, as currently drafted, every construction
site seeking coverage under a NPDES general permit would be required to
electronically submit a NOI form. Therefore, this rule would establish
the initial universe for which construction site inspections would most
likely be performed. There is no way of pre-determining which sites
would receive such inspections or which sites will be subject to
enforcement actions, so it makes more

sense to include the entire universe of such facilities in the
requirement to electronically submit an NOI. The states, tribes, and
territories would then be required to provide EPA with inspection
information, violation determination information, and enforcement
action information only for those sites where such actions are taken by
the states, tribes, or territories. For facilities that qualify for and
receive low erosivity waivers (LEWs), this proposed rule, as currently
drafted, requires the electronic submission of the date such waiver was
approved by the authorized state, tribe, territory, or EPA. Comments
are invited on viable alternatives to this approach that would provide
sufficient facility-specific information regarding construction sites.

2. Municipal Satellite Sanitary Sewer Systems (MSSSs)

    Some municipalities that do not have NPDES permits to discharge
nonetheless have sanitary sewer systems (SSSs) which discharge their
sewage to the collection system of a POTW that has a NPDES permit to
discharge. This sewage system discharging to another NPDES collection
system or POTW is referred to as a municipal satellite sanitary sewer
system. Based upon preliminary EPA estimates, there are over 4,800 such
municipal satellite SSSs in the nation. This figure represents
approximately 24 percent of the total number of SSSs in the entire
nation.
    Not all of these satellite systems have applied for and received
NPDES permits. Some amount of NPDES information is tracked by states,
tribes, territories, and EPA for POTWs which have NPDES permits,
particularly for those POTWs which were designated as major permittees.
However, information regarding the non-permitted municipal satellite
SSSs and their possible impacts is far less complete.
    Under CWA section 308, EPA could seek facility-specific information
for each municipal satellite SSS facility as a point source; such
information would include basic facility information, identification of
the receiving NPDES-permitted POTW, incident report information,
inspection information, and if applicable, violation information,
enforcement information, and limits and monitoring data for each of
these municipal satellite facilities. Detailed information regarding
overflows from municipal satellite systems is critical to reducing
water quality impairments attributable to overflows.
    In this proposed rule, as currently drafted, EPA is not considering
new reporting requirements on permitting authorities regarding such
municipal satellite SSSs. EPA is considering whether EPA's needs may be
served by receipt of information for municipal satellite systems which
have been subject to a formal enforcement action, an administrative
penalty order, or another informal enforcement action if that informal
action addressed significant noncompliance, because closer tracking of
these particular facilities, whether NPDES-permitted or a necessary
party to ensuring compliance under an enforcement action, would help
ensure timely compliance and more complete solutions to possible SSO
violations. However, more complete information regarding the entire
universe of municipal satellite systems may be very useful in
evaluating the national compliance status of these facilities and in
targeting. EPA invites comment on whether more specific information
regarding municipal satellite systems, all or some defined subset,
would prove useful and should be required by EPA from the states,
tribes, and territories.
3. Industrial Users
    As described in Section IV.E.1.e, in the absence of approved local
pretreatment programs, EPA, the authorized state, tribe, or territory
function as the control authority with the direct responsibility to
oversee these industrial users. EPA estimates that there are
approximately 1,400 industrial users located in cities without approved
local pretreatment programs.
    Section IV.E.1.e describes the types of reports which categorical
industrial users and other significant industrial users are required to
provide to the control authority. EPA is considering industrial users
located in cities without approved local pretreatment programs be
required to send the industrial user reports required under 403.12(e)
and 403.12(h) electronically to EPA or pretreatment-authorized states,
tribes, and territories. These self-monitoring reports will provide
information similar to the information contained in DMRs from direct
dischargers. Essentially, this would increase the universe for which
self-monitoring results are required to be submitted electronically.
Electronic submittal of these reports will give states, tribes,
territories, and EPA better access to information concerning the
pretreatment processes and compliance status of industrial users
located in cities without approved local pretreatment programs.
Comments are invited on this requirement and on whether to expand the
requirement for electronic reporting of these reports to all industrial
users.
4. Facility Universe for Which Biosolids Annual Reports Are Required
    EPA's biosolids regulations (40 CFR part 503) establish the same
recordkeeping requirements for all POTWs and Treatment Works Treating
Domestic Sewage (TWTDSs). However, EPA's biosolids regulations only
require annual reporting from 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 (e.g.,
POTWs with design flow rates less than one million gallons per day that
also have approved pretreatment programs) to the appropriate authorized
state, tribe, territory or EPA region. These biosolids reporting
requirements are described in Section IV.E.1.f. There are no existing
reporting requirements for smaller POTWs (e.g., design flow rate less
than one million gallons per day and serving less than 10,000 people)
without pretreatment programs or for TWTDSs that are not identified by
EPA or the authorized state, tribe, or territory as Class I sewage
sludge management facilities. This proposed rule, as currently drafted,
is not considering changing the applicability of EPA's biosolids
reporting requirements.
    EPA invites comment on expanding the biosolids reporting
requirements (see 40 CFR 503.18, 503.28, 503.48) to all POTWs and
TWTDSs. The increased availability of such biosolids information
regarding all POTWs and TWTDSs would provide significant information
regarding the effectiveness of the national, state, tribe, and
territory biosolids programs, as well as key information regarding the
effectiveness and compliance status of the regulated facilities. In
particular, EPA notes that the existing reporting requirements apply to
only a minority of POTWs and TWTDSs, although they have the vast
majority of the flow volume compared to the smaller POTWs and TWTDSs.
According to EPA's 2008 Clean Watersheds Needs Survey, there are
approximately 3,200 POTWs that have a design flow rate above one
million gallons per day and 11,500 POTWs have a design flow rate below
one million gallons per day. Consequently, there are many more
facilities for which EPA, states, tribes, and territories have little
information on hand to determine compliance with EPA's biosolids
regulations and no comprehensive way of conveying the biosolids
management performance of these facilities to the public. As indicated
in the proposed rule as currently drafted, expanding the reporting
requirements to all POTWs

and TWTDSs will aid in producing a national consistent assessment of
biosolids management, which is not available with the current reporting
requirements (see DCN 0034). The efficiencies in electronic reporting
will reduce the burden on POTWs, TWTDSs, states, tribes, territories,
and EPA in reporting, receiving, reviewing, and maintaining these data.
    Finally, EPA notes that some POTWs use lagoons or impoundments for
their wastewater treatment. These POTWs may not be discharging
biosolids each year as these lagoons or impoundments are not
necessarily annually dredged. Some lagoons or impoundments may be
dredged on a frequency of once every five, ten, or more years. EPA
invites comment whether to expand the biosolids reporting requirements
to POTWs that use lagoons or impoundments and do not perform annual
dredging.

E. Quality Assurance and Quality Control Requirements

    This proposed rule, as currently drafted and subject to public
comment, establishes quality assurance requirements to better ensure
that the required NPDES data will be provided in a timely, accurate,
and complete manner by each NPDES permittee and by each NPDES-
authorized state, tribe, and territory.
    EPA has suggested establishing timeliness criteria of 30 days for
permitting authorities to transmit NPDES data electronically to EPA.
Suggested criteria for states, tribes, and territories regarding
accuracy (at least 95 percent of the data elements should be identical
to data reported) and completeness (at least 95 percent of the expected
data elements should be provided for each facility) are based on
quality assurance targets identified in existing EPA guidance.
    In August 1992, EPA issued the ``Permit Compliance System (PCS)
Quality Assurance Guidance Manual'' as guidance for EPA regional
offices and states toward the development of similar quality assurance
procedures for PCS data entry. This guidance document described quality
assurance and quality control (QA/QC) targets for the data entry of the
Water Enforcement National Data Base (WENDB) data, the data identified
(through the PCS Policy Statement, as amended) from EPA regional
offices, states, tribes, and territories for PCS, and described how
permitting authorities should develop and implement their own quality
assurance plans to ensure that the data provided in PCS was timely,
accurate, and complete. Although these criteria were developed as
quality assurance guidelines for PCS, the NPDES national data system at
that time, these long-established quality assurance requirements would
still be valid as criteria for timeliness, accuracy, and completeness
of NPDES data that would be required through this proposed rule, as
currently drafted, to be provided electronically in a manner fully
compatible with EPA's PCS replacement system, ICIS-NPDES. EPA is
inviting comment on whether these quality assurance and quality control
targets identified in the August 1992 guidance cited above should serve
as the basis for similar regulatory requirements in this proposed rule,
as currently drafted.
    Specifically, the 1992 EPA guidance sets timeliness targets (in
numbers of working days since a specific trigger event) for the
availability of NPDES data from states, tribes, and territories for
specific data families, such as basic facility data, pipe schedule
data, limits data, monitoring data, violation data, inspection data,
program reports data, enforcement action data, compliance schedule
data, etc. As an alternative approach to timeliness criteria identified
in this proposed rule, as currently drafted, EPA could instead propose
that these timeliness targets in the 1992 EPA guidance be instituted as
timeliness deadlines. This approach would better ensure that the NPDES
data required under this proposed rule, as currently drafted, would be
provided by each NPDES permittee and by each authorized state, tribe,
and territory to EPA in a nationally-consistent, timely, accurate, and
complete manner fully compatible with EPA's NPDES data system. A few
examples of such timeliness deadlines are identified below:
     For basic facility data, this information would be
required from the permitting authority within five working days of
receipt of an application for an individual NPDES permit;
     For basic permit information, this information would be
required from the permitting authority within five working days of the
issuance of an individual permit; and
     For enforcement action data, this information would be
required from the permitting authority within five working days of the
issuance of the enforcement action.
    Although electronic submission of NPDES information could certainly
occur much more expeditiously for NOI data, DMR data, or program report
data, if that data is sent electronically by the NPDES permittee to a
permitting authority's electronic reporting system for subsequent
submission to EPA, the timeliness requirement for the permitting
authority could be that:
     The eNOI data would be available from the state, tribe, or
territory to EPA within 5 working days of receipt of the eNOI;
     The DMR data would be available from the state, tribe, or
territory to EPA within 10 working days of receipt of the DMR; and
     The program report data would be available from the state,
tribe, or territory to EPA within 30 working days of receipt.
    EPA invites comment on whether to include QA/QC criteria for
timeliness, accuracy, and completeness in the final rule. In addition,
EPA invites comment on the alternative timeframes described here.

F. Possible Use of Minor Modifications of Permits To Require Electronic
Reporting, Without Requiring Consent of the Permittees

    In 40 CFR 122.63, federal regulations indicate the conditions under
which minor modifications to existing NPDES permits could be made upon
consent of the permittee. The existing regulations indicate that minor
modifications to NPDES permits may be done to correct typographical
errors, require more frequent monitoring or reporting, change interim
compliance dates, indicate ownership or operational control changes,
change new source construction dates, or incorporate conditions of an
approved pretreatment program.
    EPA is very interested in facilitating the move toward electronic
reporting by states, tribes, territories, and regulated entities and
has examined the possibility of modifying the existing federal
regulations regarding minor modifications to require electronic
reporting by NPDES-regulated facilities. By including the incorporation
of electronic reporting requirements as a minor modification, states,
tribes, and territories could more easily change existing NPDES permits
to require electronic reporting, while reducing the paperwork and
process time that would normally be associated with modifying a permit.
Therefore, in this proposed rule, as currently drafted, EPA has
suggested adding, as a minor modification, the incorporation of
electronic reporting requirements into existing permits.
    EPA invites comment specifically on whether such incorporation of
electronic reporting requirements should be identified as a minor
modification of a NPDES permit even absent the consent of the
permittee. This

possible change, which would reduce paperwork, facilitate electronic
reporting and improve reporting efficiency, may either be added to 40
CFR 122.63 or could be identified in another part of regulation.

VI. Outreach

A. Past Efforts

    As described previously in Sections II.E and III, EPA has
recognized for many years the need to better track facility-specific
NPDES information nationally, particularly to include nonmajor
facilities which have merited increased attention (e.g., stormwater,
CSOs, SSOs, CAFOs, biosolids and pretreatment) due to their potential
impact on public health and the environment. In addition, computer
technology has advanced significantly since the Permit Compliance
System (PCS) was implemented in the 1980s as the NPDES national
database of record.
    EPA has had extensive interactions with states in the design of the
ICIS-NPDES system, in the identification of possible ICIS-NPDES
required data, and in efforts to develop a draft ICIS-NPDES Policy
Statement.
1. PCS Modernization
    Since FY 2000, EPA has worked with the states in designing a
modernized data system for the NPDES program, including the
identification of critical data elements. In FY 2002, EPA and 36
subject matter experts from the states developed recommendations
identifying specific data needed to successfully implement and manage
the NPDES program; these recommendations were distributed to the states
and EPA Regions for review.
    Since then, EPA has worked closely with its state, tribe, and
territory partners in an effort to modernize PCS as a NPDES component
of ICIS, ensuring that the system could accommodate the NPDES program
data needs identified by EPA and the state subject matter experts in FY
2002. In March 2004, an EPA-state workgroup developed a framework for
the content and scope of an ICIS-NPDES policy statement. In addition,
the PCS Steering Committee, comprised of EPA and state participants,
served as the primary contact in the development of ICIS-NPDES and
worked toward the development of the associated draft policy statement.
    EPA and authorized states began using ICIS-NPDES in 2006.
Currently, all authorized states are either direct users of the ICIS-
NPDES system or do some data entry directly and supply some data
electronically from their own state databases into ICIS-NPDES. All EPA
Regional offices use ICIS-NPDES for direct data entry of information
related to their NPDES implementation activities; also, in their
capacity as NPDES permitting authorities, they currently provide NPDES
information from four states, two tribes, and nine territories or other
jurisdictions. EPA has provided extensive training courses to states,
tribes, territories, and EPA Regions to ensure a degree of national
proficiency and familiarity with ICIS-NPDES. EPA also provides user
support, national conference calls and meetings, and a national
newsletter to personnel in states, tribes, territories, EPA Regions,
and EPA Headquarters.
2. ICIS-NPDES Draft Policy Statement
    At the request of the Environmental Council of States (ECOS), the
PCS Steering Committee was expanded in late 2005 from 10 to 18 states
to include representatives of ECOS and ACWA. In 2006, three face-to-
face multi-day meetings were held to discuss the development of a draft
ICIS-NPDES Policy Statement, which would specify required data to be
entered or otherwise made available by the states to EPA, and the
timing considerations for such data entry requirements.
    In conjunction with those meetings, issue papers were developed by
EPA and by the states, addressing EPA's needs for the data and states'
proposals regarding alternative data availability. In an effort to
better identify which data were being collected by states (whether or