[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Proposed Rules]
[Pages 71066-71081]
[FR Doc No: 2014-27918]

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ENVIRONMENTAL PROTECTION AGENCY

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

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

NPDES Electronic Reporting Rule

AGENCY: Environmental Protection Agency.

ACTION: Request for further comment.

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SUMMARY: On July 30, 2013, the Environmental Protection Agency (EPA)
proposed the NPDES Electronic Reporting Rule that would require
electronic reporting instead of current paper-based NPDES reports. This
action would modernize NPDES reporting, save time and resources for
regulated entities and regulatory agencies, better protect the Nation's
waters by improving compliance, and provide the public with access to
information that affects their communities. The proposal would enhance
transparency and accountability by providing regulatory agencies and
the public with more timely, complete, accurate, and nationally-
consistent data about the NPDES program and potential sources of water
pollution. The benefits of this proposed rulemaking should allow NPDES-
authorized programs in states, tribes, and territories to shift
precious resources from data management activities to solving issues
that threaten human health, water quality, and noncompliance issues. As
a result of comments received on the proposed rule, we are soliciting
further comments by opening a new public comment period.

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2009-0274 by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov:
Follow the on-line instructions for submitting comments.
     Email<EMAIL_ADDRESS>Attention Docket ID No. EPA-
HQ-OECA-2009-0274.
     Mail: Send the original and three copies of your comments
to: U.S. Environmental Protection Agency, EPA Docket Center,
Enforcement and Compliance Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OECA-
2009-0274. In addition, if applicable, please mail a copy of your
comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, DC
20503.
     Hand Deliver: Deliver your comments to: EPA Docket Center,
EPA West Building, Room 3334, 1301 Constitution Avenue NW., Washington,
DC, 20004, Attention Docket ID No. EPA-HQ-OECA-2009-0274. Such
deliveries are only accepted during the EPA Docket Center's normal
hours of operation and special arrangements should be made for
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2009-0274. EPA's policy is that all comments received by the deadline
will be included in the public docket without change, and may be made
available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information for
which disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through
www.regulations.gov or email. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it within the body
of your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment, and, if
applicable, with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters and any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, please visit the EPA Docket
Center homepage at http://www.epa.gov/dockets/.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
for which disclosure is restricted by statute. Certain other material,
such as copyrighted material, will be publicly available only in hard-
copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard-copy at the
Enforcement and Compliance Docket in the EPA Docket Center, EPA West
Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC,
20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is<PHONE_NUMBER>, and the telephone number
for the Docket for the Office of Enforcement and Compliance Assurance
(OECA) is<PHONE_NUMBER>. Docket visitors are required to show
photographic identification, pass through a metal detector, and sign
the EPA visitor log. All visitor bags are processed through an X-ray
machine and are subject to search. Visitors will be provided an EPA
visitor's badge that must be visible at all times in the building and
returned upon departure. The ``User Guide to the Docket for the NPDES
Electronic Reporting Rule [DCN 0104]'' provides easy to follow
instructions on how to access documents through www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For additional information, please
contact Messrs. Andrew J. Hudock<PHONE_NUMBER>) or Carey A. Johnston
(202-566-1014), Office of Compliance (mail code 2222A), Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC,
20460; email addresses<EMAIL_ADDRESS>or
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

How is this document organized?

    The outline of this document follows the following format:

I. General Overview of the Supplemental Notice and Proposed Rule
II. Overview of Public Comments
III. Discussion of Key Issues Identified in Public Comments
IV. Matters for Which Comments Are Sought
V. Outreach
VI. Executive Orders 12866 and 13563

I. General Overview of the Supplemental Notice and Proposed Rule

A. Supplemental Notice

    The U.S. Environmental Protection Agency (EPA) proposed the
National Pollutant Discharge Elimination System (NPDES) Electronic
Reporting Rule on July 30, 2013 (78 FR 46005). The rule is explained in
greater detail below. EPA received many comments on the proposed rule,
from a variety of

stakeholder groups, and the comments were generally supportive of
electronic reporting as modern and efficient. However, some comments
raised issues regarding aspects of the proposed implementation and
operation of the rule. In this supplemental notice, EPA is soliciting
additional comment on the following issues raised by commenters: (1)
Initial recipient status; (2) the use of the State Readiness Criteria
and the possibility of EPA requiring the electronic submission of NPDES
program data to EPA when authorized states, tribes, and territories
have not successfully implemented electronic reporting; (3)
implementation plan schedule; (4) copy of record; and (5) modifications
of state NPDES regulations and statutes. We are also soliciting comment
on Cross-Media Electronic Reporting Rule (CROMERR) implementation,
electronic reporting for the Concentrated Animal Feeding Operations
(CAFOs) and stormwater sectors, and the economic analysis.
    EPA will consider comments on any other aspects of the proposed
rule. This notice opens a new public comment period. This notice is an
opportunity for EPA to identify key issues raised by comments, clarify
any misunderstandings about the proposed rule, and discuss
possibilities for how EPA might modify the rule to address issues
raised by stakeholders. This notice is not, however, intended to
respond to all comments submitted; EPA will respond to all substantive
comments when it takes final action on the proposed rule. There is no
need to re-submit comments already submitted to EPA's docket for the
proposed rule.

B. Proposed Rule

    Pursuant to the Clean Water Act (CWA), 33 U.S.C. 1251 et. seq., the
U.S. Environmental Protection Agency (EPA) proposed the National
Pollutant Discharge Elimination System (NPDES) Electronic Reporting
Rule on July 30, 2013 (78 FR 46005). The proposed rule does not add to
what is currently required to be reported by regulated entities under
the existing Federal NPDES program regulations; it would only change
how that information is to be reported. In particular, the proposed
rule would substitute electronic reporting for certain paper-based
reports. Over the long term, this should save time and resources for
regulated entities, states, tribes, territories, and EPA while
improving compliance and better protecting the Nation's waters. The
proposed rule would require regulated entities and regulators to use
existing, available information technology to electronically report
information and data related to the NPDES program in lieu of filing
paper reports.
    The proposed rule would allow improvements to be made to the
transparency and usefulness of information about regulated entities and
permitting, compliance, and enforcement activities in each state
through the use of available technology to electronically report
facility, discharge, monitoring, compliance, and enforcement data; and
providing more complete, accurate, and timely data to the public.
Improving public access to this timely and complete information would
help inform and empower communities. EPA is soliciting comment on how
to improve public accessibility and usability of the data. EPA notes
that this proposed rule does not change the Agency's public disclosure
regulations (40 CFR 2).
    This proposed rule would require that certain reports currently
submitted on paper (i.e., Discharge Monitoring Reports (DMRs), Notices
of Intent to discharge in compliance with a general permit, other
general permit waivers, certifications, and notices of termination of
coverage, and some program reports) be submitted electronically by
NPDES-regulated entities to EPA through EPA's Central Data Exchange
(CDX) or to the authorized state, tribe, or territory NPDES program, or
to EPA through EPA's Central Data Exchange (CDX). Importantly, while
the proposed rule changes the method by which information on NPDES
notices of intent for coverage under general permits, facility
discharges, monitoring of compliance, facility reports, and enforcement
responses is provided (i.e., electronic rather than paper-based), it
does not increase the amount of information required from NPDES-
regulated entities under existing regulations. Similarly, though it
changes the method through which citizens may access this information,
this rule only affects information already required by law to be
available to the public.
    States, tribes, and territories that are authorized to implement
the NPDES program are the unique sources of certain key information
regarding the regulated facilities. For example, states have facility
information from NPDES individual permit applications, permit
information including limits and permit conditions, compliance
determination information including that from inspections, and
enforcement response information. Under this proposed regulation,
authorized NPDES programs would be required to share this NPDES program
implementation information electronically with EPA.
    The proposed rule, in conjunction with EPA's current public data
access tools, would provide a more complete and easily accessible set
of facility, permit, compliance, and enforcement data to the public.
This would provide a powerful incentive for government and regulated
entities to maintain and improve their performance. This can elevate
the importance of compliance information and environmental performance
within regulated entities and provide an opportunity for them to
quickly address any noncompliance. This can also improve access to
permit and compliance and enforcement action data in emergency
situations (see DCN 0105). It provides the opportunity for two-way
communication between regulatory agencies and regulated facilities to
immediately address data quality issues and to provide compliance
assistance or take other action when potential problems are identified.
Complete and accurate data would also allow EPA to evaluate performance
across authorized programs.
    The requirement of electronic reporting of NPDES information is
expected to result in reductions in burden and transaction costs.
Tracking data electronically is less expensive, more efficient, more
accurate, and better able to support program management decisions than
paper tracking (see July 30, 2013; 78 FR 46015-17).

II. Overview of Public Comments

    EPA received 170 public comments on the proposed rule from a
variety of stakeholder groups. The comments were generally supportive
of electronic reporting as modern and efficient, but raised issues
regarding aspects of the proposed implementation and operation of the
rule. Table II-1 provides an overview on the public comments on the
proposed rule. The largest number of public comments (by pages) came
from government agencies with industrial stakeholders contributing most
of the remaining comments. Many of the industrial comments came from
the agricultural sector.

 Table II-1--Number of Public Comments: Submissions, Pages, and Comment
                                Excerpts
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                                           Number of        Number of
            Commenter type                submissions     comment pages
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Anonymous or Individual Person........               32               44
Environmental Advocacy Organization...                3               22
Government (Local)....................               28              114
Government (State)....................               39              308
Government (Federal)..................                2                5
Industry (Misc.)......................               39              188
Industry (Agriculture)................               25              163
Industry (Software Vendors)...........                2                6
                                       ---------------------------------
    Total.............................              170              850
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    EPA has reviewed all of these comment submissions and identified
the key issues raised by commenters. The following sections describe
some of these key comments in more detail.

III. Discussion of Key Issues Identified in Public Comments

A. Implementation Plan

    EPA received many comments from states and NPDES-regulated entities
on the proposed implementation plan and is considering possibilities to
address these concerns. Most of these comments focused on the following
issues: (1) Initial recipient status; (2) the use of the State
Readiness Criteria and the possibility of EPA requiring the electronic
submission of NPDES program data to EPA when authorized states, tribes,
and territories have not successfully implemented electronic reporting;
(3) implementation plan schedule; (4) copy of record; and (5)
modifications of state NPDES regulations and statutes. Complete details
on the implementation plan are in the proposed rule (July 30, 2013; 78
FR 46047). The following are the most frequently discussed issues
related to the implementation plan.
1. Initial Recipient Status
    Some comments evidenced confusion about the concept of the `Initial
Recipient,' a term defined in the proposed rule at 40 CFR 127.2(b). EPA
would like to provide some additional clarity in this supplemental
notice. In general terms, the Initial Recipient is the first to receive
electronically reported NPDES program data and could be the authorized
state, tribe, or territorial NPDES program or EPA. The proposed rule
also requires authorized NPDES programs and EPA to share NPDES program
data (i.e., Appendix A to Part 127) with each other on a regular
schedule.
    Under the proposed rule, NPDES-regulated entities would submit
NPDES program data to the designated initial recipient. EPA's goal is
to help all states be the initial recipient for any data group (e.g.,
DMRs) for which they would like to first receive the data. In the
proposed rule, Section 127.27 outlines the process for requesting the
designation of initial recipient.
     An authorized state, tribe, or territory may request to be
the initial recipient of electronic NPDES information from NPDES-
regulated facilities for specific NPDES data groups by submitting a
request to EPA. [Section 127.27(a)]
     This request shall identify the specific NPDES data groups
for which the state, tribe, or territory would like to be the initial
recipient of electronic NPDES information, a description of how its
data system will be compliant with 40 CFR part 3 and 40 CFR part 127,
and the date or dates when the state, tribe, or territory will be ready
to start receiving this information.
    There is also a process in Section 127.27(d) for helping states
become the initial recipient. As noted in the proposed Section
127.27(d)(4), EPA will ``work with the Director of the authorized NPDES
program to remediate all issues identified by EPA that prevent the
authorized NPDES program from being the initial recipient. When all
issues identified by EPA are resolved and the authorized state, tribe,
or territory is the initial recipient, EPA shall update the initial
recipient listing in 127.27(c) and publish this listing on its Web site
and in the Federal Register.''
    Comments on the Initial Recipient term came from state and local
governments, as well as from NPDES-regulated entities. Most of these
commenters misunderstood the Initial Recipient designation as being
contingent on the State Readiness Criteria. The following discussion
explains the relationship between these two related but distinctly
different terms. The term ``initial recipient'' means the governmental
entity, either the state or EPA, who first receives the electronic
reports. EPA proposed to maintain the initial recipient list for each
state and each NPDES data group and publish this list on its Web site
and in the Federal Register. EPA's decision to designate an authorized
state, tribe, or territory as the initial recipient for NPDES program
data is limited to the authorized program's description of ``how its
data system will be compliant with 40 CFR part 3 and 40 CFR part 127,
and the date or dates when the state, tribe, or territory will be ready
to accept NPDES information from NPDES-regulated facilities in a manner
compliant with 40 CFR part 3 and 40 CFR part 127'' [see 40 CFR
127.27(a)]. By contrast, the ``State Readiness Criteria'' are used when
EPA is deciding whether to require electronic reporting through an
Information Collection Request (see July 30, 2013, 78 FR 46048). The 90
percent participation rate aspect of the State Readiness Criteria would
not affect EPA's determination of the Initial Recipient as detailed in
Section 127.27. For example, a state can be listed as the Initial
Recipient for receiving DMRs even if the electronic DMR participation
rate in that state is less than 90 percent.
    EPA proposed using Federal Register notices and its Web site to
provide notification to NPDES-regulated entities of the Initial
Recipient status for each data group for each state. Commenters noted
that EPA should improve this proposed notification system (e.g., notice
by registered mail) because some NPDES-regulated entities (e.g.,
operators under the Construction General Permit) may not be aware of
the Federal Register notices or EPA's Web site. They also noted that
many regulated entities granted a temporary waiver from the proposed
rule would not have the technology to gain access to these notification
systems. EPA is soliciting comment on additional means for providing
notice on the Initial Recipient status. See Section IV of this notice.
    Finally, states requested clarification that they can obtain
Initial Recipient

status after the implementation phase of the rule (i.e., more than 120
days after the effective date of the final rule). See Section
127.27(a). EPA intends to make it clear in the final rule that a state
NPDES program can initially elect for EPA to be the Initial Recipient
and then at a later date seek EPA approval to change the initial
recipient status from EPA to the authorized state, tribe, or territory.
EPA would like to provide this flexibility to NPDES programs as EPA's
preference is to defer to the authorized NPDES programs on how the
NPDES program data from regulated entities should be routed when
electronic reporting can be properly implemented (e.g., use of CROMERR-
compliant tools). EPA is focused on changing NPDES reporting from paper
submission to proper electronic submissions, not in becoming the
Initial Recipient.
2. State Readiness Criteria
    Under the proposal, a complete set of electronic information for
the regulated universe covered by this proposed rule would be required
two years after the effective date of the final rule. The Agency would
seek to collect these data directly from NPDES-regulated facilities
only if not already being submitted electronically to the authorized
state, tribe, or territory given the importance of complete, timely,
and accessible NPDES program data to EPA states, tribes, territories,
and the public.
    EPA proposed three factors for the ``State Readiness Criteria,''
which EPA would use to determine when to ``fill in the gaps'' where
NPDES-regulated entities are not yet fully reporting electronically
edit NPDES program data:

    (1) Participation Rate: The authorized state, tribe, or
territory has 90 percent participation rate by data group (i.e.,
NPDES-regulated entities submit timely, accurate, complete, and
nationally consistent NPDES data using the NPDES program's
electronic reporting systems for a data group such as DMRs); and
    (2) Approved Electronic Reporting Systems: The electronic
reporting systems used by the NPDES-regulated entity meet all of the
minimum Federal reporting requirements for 40 CFR 3 (CROMERR) and 40
CFR 127 (NPDES Electronic Reporting Rule); and
    (3) Initial Recipient Status: EPA lists the state, tribe, or
territory as the initial recipient for electronic NPDES information
from NPDES-regulated entities on EPA's Web site. Each authorized
program will then designate the specific tools for these electronic
submissions from their permittees. These designations are proposed
to be made separately for each NPDES data group (see 40 CFR 127.2(c)
and 127.27).

    In order to provide clearer distinction between the Initial
Recipient and State Readiness Criteria terms, EPA solicits comment on
eliminating the third factor in the State Readiness Criteria (i.e.,
Initial Recipient Status). The first and second factors in the State
Readiness Criteria clarify that EPA's collection of the data will be
based on the participation rate and the use of CROMERR compliant tools.
    As a means to ``fill in the gaps'' where NPDES-regulated entities
are not yet reporting electronically, EPA is considering using its
authority under CWA sections 101, 304(i), 308, 402(b), and 501 to
require NPDES-regulated entities to electronically report NPDES program
data to EPA. As proposed, EPA would use its existing authority under
the CWA and current technology to facilitate electronic reporting using
CWA authority and an Information Collection Request (ICR) to directly
collect information from NPDES-regulated entities that are not
participating in state electronic reporting according to the proposed
rule's implementation schedule. EPA anticipates this will not be a
widespread occurrence as electronic reporting, over the long term,
reduces burden for the reporter. If we encounter widespread non-
compliance with the electronic reporting requirements, EPA will take
that as a signal to evaluate the issue. EPA estimates that any use of
this ICR will taper off over time as more NPDES-regulated entities
utilize electronic reporting and as we learn more about electronic
reporting. As previously noted, EPA electronically collecting these
data from a subset of entities is independent of the Initial Recipient
status of the authorized state, tribe, or territory. Authorized NPDES
programs remain the data steward for any NPDES program data that they
collect electronically or on paper. Under this proposal, EPA would be
the data steward for the data it directly collects and will be
responsible for resolving any data discrepancies.
    EPA received comments from state programs and regulated entities
that were concerned about EPA's proposal to require electronic
reporting directly to EPA where progress in electronic reporting to the
state was not meeting the expected level. In particular, state programs
noted the increased burden of the potential double reporting (such as
paper submission of DMR to state, electronic submission to EPA) and the
potential of conflicting data between the two submissions, roles of the
state or EPA data stewards, and confusion over which submission is the
`copy of record'). States appeared interested in participating in
electronic reporting and pursuing some level of state readiness
approval, but expressed concern about how long it might take to meet
the 90 percent threshold for some data groups. One commenter noted that
during the interim period, differing initial recipients for various
data groups could be complicated or burdensome for some facilities.
    In particular, states noted that they will likely not meet the 90
percent participation factor in the State Readiness Criteria within the
proposed rule's two-year implementation schedule. Commenters noted
difficulties in seeking and obtaining CROMERR approval for their
electronic reporting systems as well as difficulties in outreach and
training for the large number of NPDES-regulated entities that will
need to switch from paper to electronic reporting. EPA seeks comment on
whether it should wait longer after the effective date of the final
rule to begin evaluating participation rates. One commenter suggested
gradually phasing in the participation rate factor in the State
Readiness Criteria as follows: Participation rate of 30 percent by the
end of the first year, 60 percent by the end of the second year, and 90
percent by the end of the third year. EPA also seeks comment on this
approach. EPA also seeks comment on whether, under one of the options
above, it should maintain the current one-year schedule for the DMR
data flow since many states and NPDES permittees are using NetDMR and
eDMR tools. EPA is considering the possibility of a phased approach and
solicits comment on the option of maintaining the one year schedule for
the DMR data flow as well as a phased approach to measure participation
rate as part of the State Readiness Criteria.
    One state suggested that if the 90 percent participation factor is
not met, EPA should use its CWA authority through use of an ICR to
compel NPDES-regulated entities to electronically submit their NPDES
program data to the authorized state, tribe, or territory rather than
directly to EPA. The commenter also suggested that the authorized
state, tribe, or territory could use its enforcement discretion to
refrain from enforcing conditions in the permit or other control
mechanisms \1\ that specify paper reporting as long as the regulated
entity successfully reports its data electronically using the
appropriate CROMERR-approved electronic reporting system. This would

enable EPA and authorized states, tribes, and territories to realize
the benefits of electronic reporting without requiring double reporting
from regulated entities and coordinating two separate submissions.
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    \1\ Some NPDES-regulated entities (e.g., biosolids generators
with no discharge, categorical industrial users) may not have an
NPDES permit. These entities are controlled through direct
application of EPA regulation or may be controlled through state
regulation or other actions.
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    Another state commenter also suggested that EPA calculate for each
authorized NPDES program one DMR electronic submission participant rate
for individually permitted facilities and another DMR electronic
submission participant rate for facilities covered under general
permits. The commenter suggested that there are important differences
between individually permitted facilities, which tend to be the larger
facilities with a continuous discharge like POTWs, and facilities
covered under general permits, which tend to be more numerous and
include construction stormwater sites that might need only temporary
NPDES permit coverage. Some states also use different state agencies to
manage specific industrial sectors (e.g., construction stormwater,
mines, CAFOs) and these industrial sectors are often covered by general
permits. EPA solicits comment on all of these potential alternatives
(see Section IV).
    With respect to the comment that the reporting environment could be
complicated for some facilities if the state has not qualified as the
initial recipient for all data groups, EPA notes that many NPDES-
regulated entities currently submit NPDES program data to different
agencies. For example, most states are not authorized to implement the
Federal Sewage Sludge program (40 CFR 503) and many POTWs in these
states are required to submit DMR data to the state and the Annual
Biosolids Program Report to EPA. Under the proposed rule, EPA would
list the initial recipient for each data group for each state in the
Federal Register and on its Web site so that regulated entities know to
whom to submit their information. In addition, as noted in the
proposal, EPA solicits comment on changing its regulations governing
the standard conditions applicable to all NPDES permits by adding a new
standard permit condition [see 40 CFR 122.41(l)(9)] that would require
NPDES-regulated facilities to ensure that, for each type of electronic
NPDES submission, the information is sent to the appropriate initial
recipient, as identified by EPA, and as defined in 40 CFR 127.2(b).
Authorized NPDES programs would include this requirement in all permits
and control mechanisms.
    Below are a few examples of how the proposed rule uses the Initial
Recipient and State Readiness Criteria terms and more examples are in
the docket (DCN 0106).

    Example #1:  EPA lists State X as being the Initial Recipient
for DMRs and there are 1,000 facilities in this state that are
required to submit DMRs. One year after the effective date of the
final rule, 900 facilities in this state are correctly
electronically submitting DMRs to the state (i.e., these DMRs
contain all Appendix A data and are submitted in compliance with
CROMERR). What actions will EPA take with respect to the 100
facilities that submitted their DMRs on paper to the state?

    Answer: Under the proposed rule, EPA would take no actions to
require electronic submissions of DMRs from these facilities because 90
percent of the facilities in this state that are required to submit
DMRs are electronically submitting these DMRs in compliance with Part
127 (Appendix A data included) and Part 3 (CROMERR--authentication and
encryption standards). The electronic DMR submission to the state is
the copy of record for the 900 facilities and the paper DMR submission
to the state is the copy of record for the 100 facilities.

    Example #2:  Assume the same scenario as in Example #1 but now
only 750 facilities in this state are correctly submitting DMRs to
the state one year after the effective date of the final rule. What
actions will EPA take with respect to the 750 facilities in this
state that are correctly electronically submitting DMRs to the state
and the 250 facilities that submitted their DMRs on paper to the
state?

    Answer: Under the proposed rule, EPA would take no actions to
electronically collect DMRs from the 750 facilities that are
electronically submitting these DMRs in compliance with Part 127
(Appendix A data included) and Part 3 (CROMERR--authentication and
encryption standards) to the state as the Initial Recipient for DMRs.
However, since the DMR electronic submission participation rate is less
than 90 percent, EPA would use its CWA authority through use of an ICR
to require electronic submission of DMR data from the 250 facilities
who submitted their DMRs using paper reports. This means that these 250
facilities will be potentially filing their DMR twice: Once on paper to
the state (if required by their permit) and another time to EPA
electronically. Once a facility is electronically submitting its DMRs
to the state, the facility no longer is required to electronically
report its DMRs directly to EPA. Additionally, tA01DE2.he electronic
DMR submission to the state is the copy of record for the 750
facilities and the paper DMR submission to the state is the copy of
record for the 250 facilities. EPA also notes that authorized NPDES
programs can help increase electronic reporting (and lower the instance
of double reporting) by modifying or reissuing NPDES permits to include
electronic reporting. EPA has proposed to allow authorized NPDES
programs to do this through the minor modification process (see 40 CFR
122.63).

    Example #3:  Assume the same scenario as in Example #2 but,
after some efforts by the state and EPA, the DMR electronic
submission participation to the state is now at or above 90 percent.
What actions will EPA take with respect to the 100 or fewer
facilities that submitted their DMRs on paper to the state?

    Answer: This is the same answer for Example #1.

    Example #4:  State X initially requests that EPA be the Initial
Recipient for DMRs and there are 1,000 facilities in this state that
are required to submit DMRs. One year after the effective date of
the final rule 900 facilities in this state are correctly
electronically submitting DMRs to EPA. What actions will EPA take
with respect to the 100 facilities that submitted their DMRs on
paper to the state?

    Answer: This is the same answer for Example #1.
    Another important consideration is that NPDES-regulated entities
with temporary waivers are excluded from the State Readiness Criteria
participation calculations. For example, if State X has 1,020
facilities that are required to submit DMRs and 20 of these facilities
are granted temporary waivers from electronic reporting, then as a
group at least 900 of the 1,000 DMR-submitting facilities without
waivers [= 0.9 x (1,020-20)] need to electronically submit DMRs to
State X in order to meet the DMR electronic submission participation
threshold of 90 percent.
3. Implementation Plan Schedule
    EPA proposed two phases for the implementation of electronic
reporting with the first phase starting one year after the effective
date of the final rule. Prior to this date, EPA will also work with
authorized NDPDES programs in order to collect the necessary facility
and permit that supports electronic reporting. These necessary facility
and permit data include data on facilities covered by general permits
so that these general permit covered facilities can electronically
submit their DMRs to their permitting authority and these permitting
authorities can share these data with EPA. Likewise, EPA will also work
with states to collect the necessary data to support electronic
reporting for the second phase.

     Phase 1 Data (one year after the effective date of the
final rule): EPA would electronically receive basic facility and permit
information as well as state performance data including inspections,
violation determinations, and enforcement actions. Additionally, EPA
and states would electronically receive: (1) DMR information (if
required by the NPDES permit) from NPDES-regulated entities; and (2)
general permit reports [Notice of Intent to be covered (NOI); Notice of
Termination (NOT); No Exposure Certification (NEC); Low Erosivity
Waiver (LEW)] from facilities covered by Federally-issued general
permits.
     Phase 2 Data (two years after the effective date of the
final rule): In addition to Phase 1 data, EPA and states would receive:
(1) General permit reports from facilities covered by state-issued
general permit; and NPDES program reports (e.g., CAFO Annual Report,
Pretreatment Program Annual Report).
    As noted in the previous section of this notice, many states
indicated that they likely would not be able to implement electronic
reporting within two years of the effective date of the final rule. One
commenter suggested that EPA should consider working with states to
develop individual state plans with varying schedules for
implementation based on each state's readiness and resources to
implement electronic reporting. Another suggestion was to integrate
electronic reporting into the permit requirements in the next permit
cycle, as permits are reissued. Other commenters suggested extending
the implementation plan beyond two years. EPA also solicits comment on
these alternatives.
    Adding additional phases or time could include pushing the timing
of Phases 1 and 2 back by a certain amount of time, or including
additional phases for certain program areas. For instance, MS4 program
reports could be moved to a third phase to give states and EPA more
time to determine how best to incorporate these reports into an
electronic format.
    As noted in the proposed rule, using the NPDES permit cycle to
implement electronic reporting would mean NPDES program data would not
be fully available across all permits and states until 2022 at the
earliest. Using the NPDES permit cycle to implement electronic
reporting would mean that electronic reporting requirements would be
incorporated into NPDES permits as they are re-issued. Using this
approach would also mean that it would take approximately seven years
to have data across all permits and states as authorized states,
tribes, and territories will need two years to update their statutes
and then it would take an additional five years for one NPDES permit
cycle.\2\ Additionally, there are a number of NPDES permits that are
administratively continued with some permits that are ten or more years
old (see DCN 0107). EPA identifies permits that are administratively
continued beyond their expiration date as ``backlogged.'' EPA solicits
comment on the option of EPA using its CWA authority through use of an
ICR to require facilities operating under backlogged permits to
electronically submit their NPDES program data.
---------------------------------------------------------------------------

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

    As noted in the proposed rule, EPA considered but did not choose
the permit renewal cycle as a means to phase in electronic reporting as
that approach would delay significant benefits of electronic reporting
(e.g., state savings and expedited access to complete NPDES program
data in an electronic format for EPA, states, tribes, and territories,
regulated entities, and the public).
    With respect to individual state implementation plans, if EPA were
to chose this option EPA would likely establish a schedule for when
these plans were due, the criteria it would use to review these plans,
and the time period for states to submit subsequent revisions. EPA
would look to see that each of these plans provides enough detail
(e.g., tasks, milestones, roles and responsibilities, necessary
resources) to ensure that EPA and states can work together to
successfully implement electronic reporting. The details likely
necessary for these plans include identifying: (1) All tasks for
capturing and electronically processing facility and permit data; (2)
all tasks for updating any state data systems; (3) technologies for
electronic reporting systems and any necessary CROMERR approval; (4)
technologies for transmitting and receiving Appendix A data to and from
EPA; (5) schedule for updating state statutes, regulations, and NPDES
permits; (6) schedule for training NPDES regulated entities on how to
utilize electronic reporting systems; (7) roles and responsibilities;
and (8) necessary resources and commitments. These implementation plans
would need to be approved by the authorized NPDES Director (as defined
in 40 CFR 122.2). Under this option, EPA would use these plans to
ensure all states are moving to electronic reporting as expeditiously
as possible. EPA would also limit the amount of time that it will
provide to states for full implementation, as EPA would like all
stakeholders to realize the many benefits of electronic reporting in a
timely manner. Finally, EPA would ask states to create contingencies in
their implementation plans that might rely on EPA services and systems
(e.g., NetDMR, NeT) if the state continually misses its own scheduled
milestones.
4. Copy of Record
    Several comments asked for clarification on how EPA's proposed rule
will affect the ``copy of record'' for NPDES data submissions. EPA is
clarifying that the proposed rule does not change EPA's authentication
and encryption standards for electronic reporting. Below is a
discussion of the copy of record as it pertains to the implementation
of electronic reporting.
    An important element of EPA's authentication and encryption
standards for electronic reporting is the ``copy of record,'' which is
``a true and correct copy of an electronic document received by an
electronic document receiving system, which copy can be viewed in a
human-readable format that clearly and accurately associates all the
information provided in the electronic document with descriptions or
labeling of the information.'' See 40 CFR 3.3. A copy of record must:
     Be a true and correct copy of the electronic document that
was received, and it must be legally demonstrable that it is in fact a
true and correct copy;
     include all the electronic signatures that have been
executed to sign the document or components of the document;
     include the date and time of receipt to help establish its
relation to submission deadlines; and
     be viewable in a human-readable format that clearly
indicates what the submitter and, where applicable, the signatory
intended that each of the data elements or other information items in
the document means.
    For such CROMERR compliant submissions, the copy of record is
intended to serve as the electronic surrogate for what is commonly
referred to as the paper submission with a ``wet-ink'' signature. The
copy of record is meant to provide an authoritative answer to the
question of what was actually submitted and, as applicable, what was
signed and certified in the particular case.
    It is important to note that the use of an electronic reporting
system may dictate where the electronic copy of record is retained.
EPA's NetDMR and CDX for NeT contain the electronic copy of record for
submissions made with these tools. Likewise, state electronic

reporting systems will contain the electronic copy of record for
submissions made with these state tools.
    Under certain scenarios, as described in the previous sections, EPA
may electronically collect NPDES program data directly from NPDES-
regulated entities and these entities may also be making a paper
submission of the same report with a ``wet-ink'' signature to the
state. In these cases, the paper submission to the state with a ``wet-
ink'' signature is the copy of record.
5. Modifications of State NPDES Regulations and Statutes
    Several commenters requested clarification on the relationship
between the implementation of electronic reporting and the schedule for
any necessary modifications of state NPDES regulations and statutes. As
indicated in the proposed rule, EPA estimated that some states may need
to update their regulations or statutes to make clear that electronic
reporting is required for the reports listed in Table 1 of Appendix A
and that these electronic submissions must be compliant with Part 127
(including Appendix A) and Part 3 (CROMERR--authentication and
encryption standards). Existing EPA regulations at 40 CFR 123.62(e)
require that any updates to the authorized NPDES program take place
within one-year of the effective date of the final rule (if no state
statute change is required) and within two years of the effective date
of the final rule (if a state statute change is required).
    These regulatory and statutory updates are unrelated to EPA's
decision on who can be the Initial Recipient for NPDES program data.
However, if a state regulation or statute prohibits or inhibits the
electronic reporting of NPDES program data to the state, then this
might lower the electronic reporting participation rate of NPDES-
regulated entities. EPA will examine cases where there are low
participation rates to determine the cause as there may be other issues
beyond regulatory or statutory updates that need to be remedied. Under
certain scenarios, as described in the examples above, these lower
participation rates may lead EPA to electronically collect NPDES
program data directly from NPDES-regulated entities when the entity is
also making a paper submission of the same data to the state.

B. Cross-Media Electronic Reporting Regulation (CROMERR)

    EPA's proposed rule (Part 127) requires that all electronic
reporting systems that are used for implementing NPDES electronic
reporting, whether already existing or to be developed by EPA and
authorized NPDES programs, be compliant with EPA's Cross-Media
Electronic Reporting Regulation (CROMERR).\3\ CROMERR sets performance-
based, technology-neutral standards for systems that states, tribes,
and local governments use to receive electronic reports from facilities
they regulate under EPA-authorized programs and requires program
modifications or revisions to incorporate electronic reporting. CROMERR
also addresses electronic reporting directly to EPA.
---------------------------------------------------------------------------

    \3\ This EPA rule was promulgated in 2005 (see 40 CFR part 3).
---------------------------------------------------------------------------

    EPA received a number of comments on various aspects of applying
for, receiving approval and authorization, and implementing an
electronic reporting system that complies with CROMERR. The comments
can be divided into two key categories: (1) The process for CROMERR
application approvals; and (2) the technical requirements for signature
authentication. There are also two additional comment areas that
require clarification: (1) Whether a NPDES-regulated entity must submit
a CROMERR application; and (2) EPA's requirement to change passwords at
least once every 90 days.
1. Improving/Streamlining the Application Approval Process
    The review and approval process for a CROMERR application allows 75
days for completeness review, and 180/360 days for new/existing systems
for approval review. State and authorized program application
preparation and amendments are not included in this timeframe. The
actual timeframe may be shorter or longer. Many of the comments
highlighted the seemingly conflicting timelines for implementation of
the NPDES Electronic Reporting Rule with the CROMERR requirements.
Commenters expressed concern that system development and CROMERR
approval would not be possible within the 2-year rule implementation
schedule and that authorized programs may not be able to maintain their
status as the Initial Recipient of NPDES program data. Commenters also
questioned whether they would be required to submit more than one
CROMERR application if they rely on multiple tools for electronic
reporting.
    To address these concerns, EPA will be implementing several
measures to streamline the CROMERR application submittal, review, and
approval process.
     Standard Checklists and Forms. A standard checklist has
been developed for EPA national systems (e.g., NetDMR, NPDES Electronic
reporting system (NeT), CROMERR shared services, Attorney General
Statement, and Signature Agreements) that can be modified for those
using these services. These applications require the authorized
programs to complete a small amount of state-specific information. The
timeframes for these approvals are generally reduced to between 16 to
20 weeks. See: http://www.epa.gov/cromerr/tools/index.html and DCN
0109. Additionally, the CROMERR approval process for states choosing to
use EPA's NeT will have a significantly reduced approval process. EPA
estimates that the approval process will be less than 60 days and with
reduced submission requirements.
     Model CROMERR Application. There are approximately five
model CROMERR applications that can be adopted by authorized programs.
These models illustrate different CROMERR solutions that can be
modified for another program's CROMERR implementation. Adopting a model
CROMERR application will streamline the approval process to under 6
months. See: http://www.epa.gov/cromerr/tools/index.html.
     CROMERR Assistance and Training. EPA currently provides
CROMERR assistance through online forms. EPA also provides direct help
to prepare and complete the application as well as implement and
integrate CROMERR services. In particular, for applicants that do not
use the standard or model checklists and are building their own system,
EPA has recently implemented a customer relationship management tool
and additional technical support to provide triggers and reminders on
due dates and actions to improve the timeframes. EPA intends to work
with states to develop state specific plans on how to obtain CROMERR
approval. See: http://www.epa.gov/cromerr/training/index.html. EPA is
also creating a position that will interact with senior officials
within the states and EPA by serving as the dedicated contact for
states on the selection and implementation of the NPDES e-reporting
tool, and serve as an advocate for states' CROMERR applications for the
NPDES program from receipt to approval to ensure state applications are
being addressed in a timely manner.
2. Technical Requirements for Signature Authorization
    The second key area of CROMERR comments are the identity-proofing
requirements for issuing electronic signature credentials. While the

majority of the comments in this area focus on the burden of
maintaining paper copies of signature agreements, the time associated
with conducting identity proofing, and the issuance of signature
credentials, some stakeholders provided comments on the existing NPDES
signatory requirements (40 CFR 122.22). EPA is not proposing to change
the NPDES eligibility signatory requirements as these are beyond the
scope of this rulemaking. The following are issues that relate to this
NPDES Electronic Reporting Rule.
     Burden associated with high processing costs. EPA notes
that all of the comments on the signature agreement requirements were
based on the assumption of wet ink signatures on paper. However, EPA is
now making available a paperless, real-time, electronic identity
proofing service that reduces the application and validation time from
days to minutes, and costs from dollars to cents. As noted above, as
part of the Central Data Exchange (CDX) CROMERR services, electronic
identity-proofing is available to regulatory authorities that do not
wish to develop such a system of their own. This service can be invoked
in a way that is transparent to the user and would allow users to begin
using their electronic signature credentials in a single session.
     Burden associated with high turn-over and infrequent
reporting. Electronic reporting systems can structure the agreements
and the associated business processes so that only a single agreement
is collected, once, from each user who is granted authority to
electronically sign documents in the system. For EPA CDX systems, a
user only has to register and complete the signature agreement once,
and the credentials do not expire.\4\
---------------------------------------------------------------------------

    \4\ Also note that once the single electronic signature
agreement/credentials are established they can be used for reporting
to multiple regulatory programs in addition to NPDES.
---------------------------------------------------------------------------

3. CROMERR Requirements for a NPDES-Regulated Entity
    EPA received comments from POTWs, particularly from California,
asking whether they would need to become CROMERR-certified in order to
undertake electronic reporting. EPA is using this notice to confirm
that under this proposed rule NPDES-regulated entities (e.g., POTWs)
are not required to submit a CROMERR application to electronically
report NPDES program data. It is the responsibility of the authorized
NPDES programs receiving these electronically reported NPDES program
data to obtain approval from EPA for their electronic reporting systems
and processes in accordance with EPA's CROMERR requirements. Under the
proposed rule, NPDES-regulated entities that electronically report
their NPDES program data would use CROMERR-approved electronic
reporting systems and processes. Authorized NPDES programs are
responsible for submitting CROMERR applications for their electronic
reporting system and NPDES-regulated entities are only required to
complete the necessary signature requirements for that system.
    EPA also notes that Subpart D of CROMERR requires that state,
tribal or local government agencies (including POTWs) that receive, or
wish to begin receiving electronic reports under their EPA-authorized
programs (e.g., CWA pretreatment program) must apply to EPA for a
revision or modification of those programs and obtain EPA approval.\5\
However, an important consideration is that the proposed rule does not
require approved pretreatment programs to electronically collect NPDES
program data from significant and categorical industrial users.
Approved pretreatment programs may continue to collect NPDES program
data from significant and categorical industrial users on paper or may
elect to seek EPA approval for their CROMERR-compliant electronic
reporting systems and processes.
---------------------------------------------------------------------------

    \5\ For example, EPA recently approved of the City of Grand
Rapids' (Michigan) request to revise its general pretreatment
regulations to allow electronic reporting. See February, 13 2014, 79
FR 8701.
---------------------------------------------------------------------------

4. EPA Password Reset Requirement
    EPA also received comments on the 90-day password reset
requirement, suggesting that this frequency is too short and would be a
burden for infrequent reporters. The 90-day password reset requirement
is not a CROMERR requirement; rather, it is a long standing EPA
security requirement that is used for all of our internal and external
systems. However, most electronic reporting systems allow users to
perform a password reset when their password has expired. For example,
a regulated entity that only uses an electronic reporting system once a
year can reset their password at the time of their electronic
submission. A regulated entity would not need to access the electronic
reporting system throughout the year simply to retain an active
password or have an active password to initiate a password reset
operation.
5. Relationship Between CROMERR Requirements and the Initial Recipient
Term
    EPA also received comments on how the CROMERR requirements would
affect the Initial Recipient requirements in the proposed rule (see
Section 127.27). The following provides more explanation on the
interaction between the CROMERR requirements and the Initial Recipient
requirements in the proposed. If the Initial Recipient status for a
particular state for a particular data group switches from the state to
EPA, then the NPDES-regulated entities in that data group in that state
would need to ensure they register with the appropriate CROMERR-
compliant system. In this example, these NPDES-regulated entities would
switch from using a state electronic reporting system to an EPA
electronic reporting system (e.g., NetDMR, NeT). Likewise, if the
Initial Recipient status for a particular state for a particular data
group switches from EPA to the state, then those NPDES-regulated
entities in that data group in that state would switch from an EPA
electronic reporting system to a state electronic reporting system.

C. Concentrated Animal Feeding Operations (CAFO) Sector

    EPA is clarifying the effects of this proposed rule on CAFOs in
response to comments received that reflect misunderstanding about the
proposed rule. The proposed rule would only require CAFOs with NPDES
permits to submit information to permitting authorities that the Clean
Water Act already requires them to provide. See 33 U.S.C. 1342.
Additionally, this information already is publicly accessible pursuant
to the Clean Water Act and its implementing regulations. The proposed
rule would simply modernize the format through which permitted CAFOs
would submit certain types of information (i.e., electronic submission
as opposed to paper-based reporting). This modernized format should
increase efficiencies for permitted CAFOs as well as regulators.
Permitted CAFOs that lack suitable Internet access would be able to
receive temporary waivers so that they would not be required to submit
information electronically.
    The following summary explains how the proposed rule would affect
permitted CAFOs.

                     Permitted CAFO Responsibilities
------------------------------------------------------------------------
        Type of submission                    Submission format
------------------------------------------------------------------------
Individual permit applications and  There is no change for the owner or
 attached nutrient management        operator, as a CAFO that is
 plans (NMPs).                       applying for an NPDES permit can
                                     submit forms and information in a
                                     paper format to the permitting
                                     authority. The proposed rule
                                     requires only selected data on the
                                     individual NPDES permit application
                                     (see Appendix A) to be
                                     electronically shared between
                                     states and EPA.
Notices of Intent to discharge in   CAFOs seeking coverage under an
 compliance with a general permit    NPDES general permit would
 (NOIs).                             electronically submit these NOIs,
                                     unless a temporary waiver is
                                     granted by the authorized NPDES
                                     program. The proposed rule requires
                                     only selected data on the NOIs (see
                                     Appendix A) to be electronically
                                     shared between states and EPA.
NMPs attached to general permit     There is no change to the owner or
 NOIs.                               operator, as CAFOs seeking coverage
                                     under an NPDES general permit can
                                     submit these data and information
                                     in a paper format to the authorized
                                     NPDES program. Authorized NPDES
                                     program may elect to electronically
                                     receive NMPs from CAFOs; however,
                                     this proposed rule does not require
                                     authorized NPDES programs to share
                                     these NMPs with EPA or require
                                     electronic submission of NMPs.
Annual reports and DMRs...........  Permitted CAFOs would electronically
                                     submit these compliance monitoring
                                     data, unless a waiver is granted by
                                     the authorized NPDES program. The
                                     proposed rule requires only
                                     selected data on the annual reports
                                     and DMRs (see Appendix A) to be
                                     electronically shared between
                                     states and EPA.
------------------------------------------------------------------------

    The following summary lists the only changes the proposed rule
would make in authorized NPDES program responsibilities.

      Authorized NPDES Program (Generally States) Responsibilities
------------------------------------------------------------------------
           Type of submission                   Submission format
------------------------------------------------------------------------
Individual permit applications.........  Submit data listed in Appendix
                                          A to Part 127 electronically
                                          to EPA.
Inspection, violation determination,     Submit data listed in Appendix
 and enforcement action information.      A to Part 127 electronically
                                          to EPA.
------------------------------------------------------------------------

    As indicated in the tables above, contrary to concerns raised by
some commenters, this proposed rule would not require electronic
submission of NMPs. Nor would the proposed rule require NPDES-permitted
CAFOs to submit any new information beyond what is already required in
the current regulations.
    In response to comments made expressing concerns that the proposed
rule could infringe on the privacy of NPDES-permitted CAFO owners and
operators or the facility, their employees or family members, EPA
emphasizes that this rule would not require any information to be
disclosed that is not already available to EPA and the public pursuant
to existing legal requirements. See, e.g., 33 U.S.C. 1318, 1342(j); 40
CFR 122.21(f). Information that permitted CAFOs submit on their permit
applications is required to be publicly available pursuant to CWA
section 402(j), which requires that ``[a] copy of each [NPDES] permit
application and each [NPDES] permit . . . be available to the public.
Such permit application or permit, or portion thereof, shall further be
available on request for the purpose of reproduction.'' See 33 U.S.C.
1342(j). Section 402(j) applies to all NPDES permit applications,
including CAFO NPDES permits. In addition, CWA section 402 requires
that states, tribes, and territories implementing NPDES programs
provide for ``public . . . notice of each application for a permit and
provide an opportunity for public hearing before a ruling on each such
application.'' See 33 U.S.C. 1342(a)(1), (b)(3).
    Agricultural stakeholders also stated their concerns that a public
national database with the location information of livestock operations
could increase the risk of acts of terrorism at such operations. EPA
notes that all of the information proposed to be submitted
electronically is already publicly available today. The proposed rule
is focused on modernizing existing reporting requirements by moving
from paper to electronic submissions. The proposed rule does not change
the data and information that NPDES-regulated entities are required to
report or how EPA manages these data and makes it available to the
public. Existing law requires that information submitted in connection
with a permit application, as well as other effluent data, be available
to the public. Permitted CAFOs and other sectors have been regulated
under the NPDES program for over 40 years and permitted entities like
CAFOs have been required to submit individual NPDES permit applications
or NOIs for coverage under a NPDES general permit like any other
facility seeking permit coverage. The proposed rule is only to
modernize the data processed from paper to computer to make the program
more efficient and effective.
    Existing law also requires authorized NPDES programs (usually
states) to share NPDES program information with EPA. Authorized NPDES
programs are required to ``keep such records and submit to the
Administrator such information as the Administrator may reasonably
require to ascertain whether the State program complies with the
requirements of CWA or of this part.'' 40 CFR 123.43(d). See also 40
CFR 123.41(a) (``Any information obtained or used in the administration
of a state program shall be available to EPA upon request without
restriction.'').
    Pursuant to EPA's NPDES data sharing policy, which dates back to
1985, authorized NPDES programs share data, including the following
data, with EPA's national NPDES program database for all NPDES-
regulated entities (major and non-major facilities): facility name; SIC
code(s), facility address, city, state, and zip code; facility latitude
and longitude, facility owner's first and last name and full mailing
address. For example, EPA makes these data available now through its
ECHO Web site (http://echo.epa.gov) and Envirofacts (http://www.epa.gov/enviro/).
    EPA did not propose any changes to the way in which it protects
confidential business information (CBI) in implementing electronic
reporting. It is long-standing existing law that information required
by an NPDES application form may not be claimed confidential. 40 CFR
122.7(b) and (c).

    With respect to CAFO Annual Program Reports, EPA discussed how it
will handle claims of CBI for these data in the 2003 CAFO rule
(February 12, 2003, 68 FR 7233). In particular, the 2003 CAFO
rulemaking states:

    EPA expects that the permitting authority will make this
information available to the public upon request. This should foster
public confidence that CAFOs are complying with the requirements of
the rule. In particular, the information in the annual report will
confirm that CAFOs have obtained coverage under an NPDES permit, are
appropriately controlling discharges from the production area, and
have developed and are implementing a nutrient management plan . . .
Under the existing regulations at 40 CFR part 2, subpart B, a
facility may make a claim of confidentiality for information it must
submit and EPA must evaluate this claim if it receives a request for
the information from the public . . . Claims of confidentiality with
respect to information submitted to the State will be processed and
evaluated under State regulations.

    The proposed NPDES Electronic Reporting rule does not change the
long-standing procedures for dealing with public and confidential
information in the existing NPDES regulations. Additionally, EPA has
the capability of electronically collecting CBI through EPA's CDX
system and may use this capability to allow NPDES permitted CAFOs to
securely submit their CAFO Annual Program Reports.\6\
---------------------------------------------------------------------------

    \6\ For example, EPA electronically collects Pre-manufacture
Notices (PMNs) from chemical manufacturers through EPA's CDX system.
These chemical manufacturers can claim these PMNs as CBI. See DCN
0116.
---------------------------------------------------------------------------

    Some commenters raised questions about the authority of states and
EPA to inspect CAFOs. Section 308 of the CWA authorizes inspections of
premises where effluent sources are located, 33 U.S.C. 1318(a)(B), and
data gathering from point sources that discharge or may discharge, 33
U.S.C. 1318(a)(A), even if those facilities are not required to have a
permit because they do not discharge. See also 33 U.S.C. 1342
(requiring that authorized state programs have the same authority to
inspect, monitor, enter, and require reports as section 308 of the
Act). States and EPA gather information from point sources, including
CAFOs, that discharge pollutants or may discharge pollutants for a
variety of purposes, including determining compliance with applicable
effluent limitations and verifying that the CAFO is not in fact
discharging without a permit. See 33 U.S.C. 1318.
    Stakeholders raised concerns about EPA posting information on
unpermitted CAFOs and AFOs on EPA's public Web site. The Clean Water
Act specifically identifies concentrated animal feeding operations as a
type of ``point source.'' See 33 U.S.C. 1362(14). The NPDES permit
program regulates discharges of pollutants from point sources. It is
important for authorized NPDES programs (generally states) to report
inspection information on all facilities (permitted or unpermitted) to
EPA, as they currently do, so that EPA can know that the state has
inspected the facility and found either that there is no discharge and
no permit is required or there is a discharge and a possible violation.
This reporting also benefits the facility because it avoids a possibly
duplicative EPA inspection.
    In order to address comments regarding the privacy interests of an
unpermitted CAFO and AFO that an authorized state NPDES program or EPA
has assessed and found to have not violated the Clean Water Act, EPA is
proposing a change to its current practice regarding the facility
specific information it collects from states and posts to its ECHO Web
site for these facilities (unpermitted CAFOs and AFOs that state
inspectors found were not discharging and do not require an NPDES
permit). EPA is proposing to mask all facility identifying information
for this subset of facilities and only post the information submitted
by states on the total number of inspections of these facilities by
state.
    EPA is proposing to make this change a year after the effective
date of the final rule. EPA anticipates it will need a year after the
final rule to coordinate with states on identifying the exact set of
CAFOs and AFOs currently in EPA's data systems that qualify for this
proposed facility specific information redaction and the necessary data
management rules for future state inspections of CAFOs and AFOs. This
proposed change addresses the concerns from agricultural stakeholders
about posting facility specific information for CAFOs that are not
discharging and not required to have NPDES permits. EPA seeks comment
on this proposed change and the proposed timing.
    The following is an example of how EPA could mask facility name and
location (address and latitude and longitude) as well as facility
contact information (contact name and phone number) for its ECHO Web
site. [Note: Each unpermitted CAFO and AFO that does not have a Clean
Water Act violation as determined by the authorized state NPDES program
or EPA would have a unique number as shown below in Facility #2.]

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

    The above table is provided for illustration only. In this
hypothetical example, the unpermitted CAFO shown in the column labeled
``Facility #1--Unmasked Information'' would not have its facility and
contact information displayed on EPA's Web site until the weekly
refresh of ECHO data from ICIS-NPDES after 22 June 2014, which is the
date the state or EPA Region identified that the facility had a Clean
Water Act violation (i.e., discharging without an NPDES permit) and
entered these data into ICIS-NPDES. If an unpermitted CAFO does not
have a Clean Water Act violation as determined by the authorized state
NPDES program or EPA, then the facility and contact information would
not be displayed on EPA's ECHO Web site (see the column labeled
``Facility #2--Masked Information'' in the above table).
    EPA solicits comment on this approach. Additionally, under existing
EPA regulations at 40 CFR part 2, subpart B, a facility, including any
CAFO or AFO, may make a claim of confidentiality for information it
must submit to EPA or to the authorized State. These claims will be
processed and evaluated under federal or State regulations,
respectively.
    Agricultural stakeholders also commented that electronic reporting
of NPDES program data may provide a disincentive to seek NPDES permit

coverage in order to keep information related to the facility and
facility contact out of EPA's databases. EPA has a statutory duty to
implement a permitting program for CAFOs that discharge. This proposed
rule does not change the requirement that CAFOs discharging pollutants
into waters of the United States are subject to NPDES regulation.
    Finally, in response to comments received, EPA is soliciting
comment on a few changes to CAFO data elements in Appendix A to Part
127 (see DCN 0108). EPA believes that these edits, generated from
comments by states, make the revised Appendix A more clear and
implementable (see DCN 0128 through 0142).

D. Stormwater Sector

    EPA received a number of comments on how electronic reporting will
be implemented for NPDES-regulated entities that manage stormwater. The
following section describes these comments.
1. Municipal Separate Storm Sewer Systems (MS4s)
    Polluted stormwater runoff is commonly transported through
Municipal Separate Storm Sewer Systems (MS4s), from which it is often
discharged untreated into local waterbodies. To prevent harmful
pollutants from being washed or dumped into an MS4, regulated entities
(e.g., municipalities) must obtain a NPDES permit and develop a
stormwater management program. Under the proposed rule, MS4 regulated
entities must electronically submit certain MS4 data. These data
include: (1) Notices of intent (NOIs) for coverage under a NPDES
general permit; and (2) MS4 program reports.
    NPDES general permits are most often used by NPDES permitting
authorities for Phase II MS4s (i.e., smaller MS4s for which federal
regulations were issued in 1999). The MS4-specific data elements
related to NOI submissions are identified in Appendix A to 40 CFR part
127 at pp. 46093-46094 of the proposed rule. These MS4-specific data
elements are in addition to basic facility and permit data that are
also required to be submitted electronically, as identified in Appendix
A to 40 CFR part 127 at pp. 46084-46088 of the proposed rule. In a
separate data submission, the authorized NPDES program will also share
MS4 information (e.g., basic facility, permit, and MS4-specific
information) from individual NPDES permit applications with EPA.
    EPA also proposed a requirement that MS4-regulated entities
electronically submit their MS4 program reports, which is an existing
compliance monitoring reporting requirement [see 40 CFR 122. 42(c) and
40 CFR 122.34(g)(3)]. The required MS4-specific data elements from the
MS4 program reports are identified in Appendix A to 40 CFR part 127 at
pp. 46107-46108 of the proposed rule.
    During the public comment period for the proposed rule, several
commenters, particularly from local governments, provided EPA with MS4-
related comments. Many of these commenters expressed concern about how
EPA would implement electronic reporting for MS4 regulated entities. In
particular, they noted that MS4 program reports are generally not
uniform as each MS4 program implements its program differently. These
commenters asked EPA to clarify its plans to standardize and
electronically collect these data. EPA intends to use a combination of
drop-down lists and text fields in its electronic reporting systems to
effectively characterize the activities of the MS4 facilities for
electronic reporting of NOIs and program reports. An example of this
flexibility can be seen in EPA's NOI form for Phase II MS4 regulated
entities in Region 1 (see DCN 0110). EPA recognizes that requirements
will vary from one state to another; therefore, the electronic
reporting systems developed by EPA or by other parties will need to be
adaptable to reflect the additional information that particular states
may seek in addition to the data described in Appendix A to 40 CFR part
127.
    Some commenters indicated that it would be helpful if the
information provided in electronic NOIs could be used to ``auto-fill''
or pre-populate data submitted with MS4 program reports. EPA is
interested in making electronic reporting as easy as possible and will
review this suggestion as part of the development of its NPDES
eReporting Tool (NeT).
    Several commenters also indicated that EPA should adjust Appendix A
to 40 CFR part 127 to better reflect the different requirements and
terminology utilized for Phase I MS4s (i.e., those large and medium
MS4s for which federal regulations were issued in 1990) and Phase II
MS4s. EPA solicits comment on potential specific changes to Appendix A
related to MS4s (see DCN 0108).
2. Industrial and Construction Stormwater Electronic Reporting
    Stormwater runoff from construction and industrial activities can
have a significant impact on water quality. As stormwater flows over a
construction or industrial site, it can pick up pollutants like
sediment, debris, and chemicals and transport these to a nearby storm
sewer system or directly to a river, lake, or coastal water. The
proposed rule requires construction operators and industrial facilities
seeking coverage by an NPDES permit or a waiver from having to have
NPDES permit coverage to electronically submit data.
    In the preamble to the proposed rule (pp. 46025-46027) and in the
proposed regulatory text [40 CFR 127.11(b)], EPA stated that operators
of regulated construction sites and industrial facilities would be
required to electronically submit NOIs for coverage under a NPDES
general permit. Under the proposed rule authorized NPDES programs would
also electronically process data from paper NPDES individual permit
applications submitted by construction operators (see Appendix A). In
total, this data includes certain categories of industrial activities
and large construction sites regulated by the Phase I stormwater
regulations promulgated in 1990 and small construction sites identified
in the Phase II stormwater regulations promulgated in 1999. These
regulated entities may already be required by their permits to
electronically submit DMRs. In a separate data submission, the
authorized NPDES program would also share additional information (e.g.,
basic facility, permit, and construction and industrial stormwater
information) with EPA from individual NPDES permit applications and
waiver or exclusion from NPDES permitting determinations.
    During the public comment period, some commenters indicated that
the universe of NPDES-regulated construction sites was large and
changing often as sites were completed. These commenters had concerns
about how electronic reporting would work for this large and changing
universe of NPDES-regulated entities. In particular, some of these
commenters noted the difficulty in getting construction operators to
apply for and maintain electronic signatures for use with CROMERR
electronic reporting systems. As an alternative to use of a CROMERR
electronic reporting system one commenter suggested EPA allow NPDES
programs the possibility of using automatic identification and data
capture technology [e.g., two dimensional barcodes such as Quick
Response (QR) codes, optical character recognition]. For example, a
potential user could complete an online form and then print out a paper
copy of the form with a two-dimensional barcode or in a format that can
be used by an optical character reader. The potential user

would then certify these data as correct by signing this paper print-
out in ink. The use of this data capture technology could enable a
NPDES-regulated entity to submit NPDES program data on paper with a
``wet-ink'' signature and have the NPDES program data structured to
allow easy data importation into the state data system and subsequent
sharing with EPA. This would mean that the state would need to procure
and manage this automatic identification and data capture technology,
maintain the paper submission with the NPDES program data and ``wet-
ink'' signature, and train potential users; however, some states have
suggested this option may be less burdensome than requiring all
construction stormwater NPDES-regulated entities to obtain and maintain
a digital signature.
    Some commenters suggested that EPA adjust the minimum set of
federal NPDES data (Appendix A to 40 CFR part 127) to better
distinguish between construction stormwater and industrial stormwater
data elements as well as required data for individual application
versus NOIs for coverage under a general permit. EPA solicits comments
on these potential changes to Appendix A (see DCN 0108).

E. Economic Analysis

    EPA received numerous comments related to its economic analysis of
the incremental costs associated with the proposed rule. Commenters
include state environmental agencies, municipalities, private industry,
and trade groups and associations. The majority of the comments focused
on rule implementation costs, data entry burden, dual reporting
requirements, benefits of the rule, and impacts on small entities.
    Commenters expressed concern that the economic analysis may not
accurately reflect the financial impact on states because it excludes
or underestimates costs for information technology (IT) system
development and upgrades; annual IT maintenance and operation (e.g., a
hotline for NPDES-regulated entities; password resets; system
maintenance); outreach and training for NPDES-regulated entities;
training of program staff; and revisions to statutes or regulations to
implement the proposed rule.
    A number of commenters also suggested that that the Economic
Analysis underestimated the costs to NPDES-regulated entities. For
example, a number of larger companies, municipalities, and sanitation
districts indicate that they would need to upgrade their data
management systems to be compatible with the state's or EPA's new
electronic system. They also expressed concern that the analysis
underestimated costs to NPDES-regulated entities operating in multiple
states, because they will need to generate customized reports related
to permit conditions and state formatting requirements.
    Small entities with NPDES permits such as small municipalities,
CAFOs, and construction firms stated that the analysis did not take
into account that some NPDES-regulated entities may need to buy a
computer and obtain Internet access or travel to a site (e.g., local
library) with public access to computers in order to electronically
enter and submit the required data. EPA notes that some of these
facilities may be eligible for temporary waivers. Some commenters also
noted that electronic data entry could be more difficult and time-
consuming than writing data on paper, especially for entities that do
not have extensive computer experience. Commenters indicated that
attending trainings for the electronic systems could be a burden to
small entities.
    Some NPDES-regulated entities expressed concern that they could be
designing their internal data management systems and procedures for
electronic reporting directly to EPA and then potentially redesigning
them for a different state system at a later time if the Initial
Recipient changes.
    Some commenters also questioned the benefits associated with the
proposed rule. They argued that the reason that most states have not
expanded electronic reporting to NOIs and program reports is because
electronic reporting on seldom-reported documents (such as once a year
reporting or once every five year No Exposure Certifications) or simple
but very frequently received documents (such as Notices of Termination
for construction stormwater general permits) will require more ad-hoc
time and staff than accepting such documents via FAX, as PDFs via
email, or as a hard copy. Some commenters also disagreed with EPA's
analysis that the rule will result in improvements in water quality and
increases in permittee compliance due to better awareness of compliance
status and public scrutiny.
    EPA received few data from commenters that can be used to update
its economic analysis. EPA solicits additional data and information to
inform the economic analysis supporting this rule (see EPA-HQ-OECA-
2009-0274-0135). For example, EPA solicits data on the savings due to
the more efficient form preparation and processing (including postage
savings) as well as savings related to improved data quality as
electronic reporting tools will include the ability to check for
certain types of errors.
    EPA received a number of comments regarding the proposed rule's
potential Federalism implications, expressing concern that the proposal
could infringe upon the lead role of authorized states, tribes, and
territories. EPA wants to clarify that it does not intend to change or
infringe upon the lead role of authorized states, tribes, and
territories. The purpose of the proposed rule is to shift the
collection and management of information from NPDES forms and reports
from a paper-based system to an electronic-based system. The proposed
rule does not change the well-established relationship between EPA and
authorized state, tribal, and territorial programs as these authorized
programs will continue to be the lead in all aspects of the NPDES
program including permitting, inspections, compliance determinations,
and enforcement actions. Under the existing regulatory scheme,
authorized states, tribes, territories are already required to collect
the information covered by this rule from NPDES-regulated entities and
make it available to EPA. The main focus of the proposed rule is to
have that information submitted electronically, saving time and money
for states as well as the regulated community. EPA notes that close
coordination and discussion with states about the best way to move
towards the shared goal of shifting to electronic reporting is very
important and EPA has gone beyond just complying with the Presidential
Executive Order that requires EPA to work collaboratively with states
and local governments. Executive Order 13132, entitled ``Federalism''
(64 FR 43255, August 10, 1999), requires EPA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' EPA and several authorized state NPDES
programs are regularly holding discussions and technical exchanges on
all aspects of the rulemaking (see DCN 0111) and these discussions have
meaningfully informed several aspects of this supplemental notice. In
the spirit of Executive Order 13132, and consistent with EPA policy to
promote communications between EPA and state and local governments, EPA
specifically solicits comment on the proposed rule and this
supplemental notice from state and local officials. EPA will continue
to consult with state and local officials throughout the rule
development process to ensure they

have meaningful and timely opportunities for input.

F. Waivers

    In the preamble to the proposed rule, EPA introduced the concept of
temporary waivers from electronic reporting of NPDES information. As
described in the proposed rule at 40 CFR 127.15, these temporary
waivers would be made available at the discretion of the authorized
NPDES program (and subject to EPA review) in situations where regulated
facilities lacked sufficient broadband availability. The process for
granting such temporary waivers from electronic reporting is described
in the proposed regulation at 40 CFR 127.24. Authorized NPDES programs
would be required to enter the hard-copy NPDES information submitted by
facilities with waivers into the state or federal NPDES data system and
share it with EPA. Under the proposal, temporary waivers would be
available for one year at a time. EPA requested comment on the need for
such temporary waivers, possible options for such waivers, and on the
possibility of temporary waivers for religious reasons.
    During the public comment period for the proposed rule, EPA
received several comments on temporary waivers. The majority of the
comments on this topic supported the overall concept of temporary
waivers from NPDES electronic reporting; three commenters disagreed.
Commenters suggested that EPA should make permanent waivers for NPDES-
regulated entities located in religious communities (e.g., Amish,
Mennonite, and Hutterite). Other comments indicated support for making
temporary waivers automatic in certain locations (e.g., areas where
less than 10 percent of the population has sufficient broadband
availability). Commenters expressed support for waivers that would have
a longer duration than the one-year renewable timeframe identified in
the proposed rule. Several commenters suggested that waivers should
also be made available for certain circumstances beyond broadband
availability issues, such as undue burden or cost. States also
requested that they be provided with more flexibility in providing
waivers from electronic reporting. A few commenters also suggested that
EPA make the determinations of temporary waiver eligibility rather than
the states, even if the state has authorization to implement the NPDES
program. As described in Section IV, EPA solicits comment on temporary
waivers and permanent waivers for NPDES-regulated entities located in
religious communities.

G. Miscellaneous Issues

    This section describes other issues raised by commenters.
1. Electronic Reporting for the Pesticides General Permit and Vessels
General Permit
    Several commenters had questions regarding the application of the
proposed rule to regulated entities subject to EPA's Pesticides General
Permit and Vessels General Permit. EPA provides NPDES permit coverage
for pesticide applicators where EPA is the permitting authority and
vessel operators nationwide. These permits predate the proposed NPDES
Electronic Reporting Rule; however, EPA has developed an electronic
reporting system for these regulated entities to submit Notices of
Intent (NOIs) for coverage under these general permits. EPA currently
allows operators to request a waiver from electronic reporting based on
an undue burden or expense associated with electronic reporting (see
DCN 0112). There are no additional costs to EPA or the operators
regulated by EPA's pesticide applicators and vessels general permits
with implementation of the proposed rule as nearly all of these
regulated entities are already using EPA's electronic reporting system.
EPA will incorporate data on pesticide applicators regulated by state
permits into the economic analysis.
    EPA is not proposing to exempt these two permits from the NPDES
Electronic Reporting Rule. In particular, EPA's General Permit
regulations (40 CFR 122.28) apply to all general permits and EPA's
proposed revisions to this regulatory language that implement
electronic reporting do not exclude pesticide applicators or vessel
operators (or any other sector or general permit). EPA will require
electronic reporting of general permit reports (i.e., NOIs, NOTs, LEWs,
and NECs) and DMRs (if required by the NPDES permit) when it re-issues
these permits after the effective date of the final rule. EPA intends
to clarify this in the final rule and supporting documentation.
2. Modification of Data Elements in Appendix A
    In response to public comments on the proposed rule, EPA reviewed
the minimum set of federal NPDES data (Appendix A to 40 CFR part 127)
and is seeking comment on potential changes to some of these data
elements (see DCN 0108). Additionally, EPA is seeking comment on
including two data elements that support the Clean Watersheds Needs
Survey, which is conducted by EPA under authority of Sections 205(a)
and 516 of the Clean Water Act. These changes would reduce burden on
states by eliminating most of the need for EPA to collect these two
data elements from states as part of its quadrennial survey. These two
POTW data elements are: (1) POTW Wastewater Treatment Technology Level
Description [The highest level of treatment (e.g., primary equivalent
to secondary, secondary, advanced, other) that the POTW provides at
each outfall]; and (2) POTW Wastewater Treatment Technology Unit
Operations [The treatment technology unit process information at each
outfall for POTWs greater than 10 MGD]. Example wastewater treatment
technology level descriptions and unit operations are provided in the
docket (see DCN 0113).
3. Biosolids Annual Report
    Several EPA Regions are using the DMR form to collect data for the
Biosolids Annual Report as required by EPA regulations.\7\ These
regulations require that all Publicly Owned Treatment Works (POTWs)
servicing a population greater than 10,000, having a design flow rate
greater than one million gallons per day, or designated as Class I
facilities submit an annual report to the permitting authority every
year on February 19th. In particular, EPA Region 6 is using the NetDMR
electronic reporting system to collect data for the Biosolids Annual
Report from facilities in Region 6 states (see DCN 0114 and 0115). EPA
solicits comment on the practicality of using the DMR form to collect
data for the Biosolids Annual Report. EPA notes that using the DMR form
may be difficult to capture specific information related to pathogen
reduction methods, vector attraction reduction methods, cumulative and
annual loading rates, incineration related data, and site restrictions.
EPA notes that the use of the DMR form to report Biosolid Annual Report
data, while more efficient, may reduce the ability of the authorized
NPDES program to determine facility-level compliance. EPA also solicits
comment on allowing POTWs to use state eDMR systems to submit their
Biosolids Annual Report when the state is not authorized for the
biosolids program.\8\
---------------------------------------------------------------------------

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

    EPA also solicits comment on changing the deadline for submission
of these Biosolids Annual Reports from Phase 2 (two years after the
effective date of the final rule) to Phase 1 (one

year after the effective date of the final rule). EPA notes that only
eight states are authorized to run the Federal Biosolids Program (40
CFR part 503). This means that EPA implements the biosolids program and
collects these annual reports for 42 states as well as tribes and
territories.
    In addition, EPA Region 7 (Kansas City, KS) is the EPA National
Biosolids Center of Excellence and this center is dedicated to creating
efficiencies in the Federal Biosolids Program. EPA's National Biosolids
Center coordinates all assistance to states and NPDES regulated
entities on the Federal Biosolids Program and collects and reviews
Biosolids Annual Reports for all facilities in the 42 states as well as
tribes and territories where EPA implements the NPDES program for
biosolids. This EPA office is capable of standardizing the Annual
Biosolids Report for those 42 states, tribes, and territories, and
providing individual help for each of the eight authorized states in
order to resolve any outstanding implementation issues (e.g., State
Readiness Criteria) within the first year of implementation of the
rule. EPA would like to realize the many benefits of electronic
reporting for the Annual Biosolids Report as soon as possible and
solicits comment on changing the deadline for submission of these
Biosolids Annual Reports from Phase 2 to Phase 1.

IV. Matters for Which Comments Are Sought

    The following sections identify specific issues on which EPA
invites comment. Please note that there is no need to re-submit
comments previously submitted to EPA's docket for this rulemaking. You
may find the following suggestions helpful when preparing your comments
to EPA on the proposed rule and this notice:
     To ensure proper receipt by EPA, identify the appropriate
docket identification number (found in the ADDRESSES section of this
Federal Register notice) in the subject line on the first page of your
comments or response.
     To help ensure that your submission is routed correctly,
on the first page of your submission, provide the name of the proposed
rule; date of the Federal Register notice; and the Federal Register
citation (e.g., _-- [volume number] FR _-- [page number]) related to
your comments or response.
     Clearly identify those sections of the preamble or the
proposed rule on which you are commenting.
     Explain why you agree or disagree, and explain your views
as clearly as possible.
     Describe clearly any assumptions that you used as a basis
for your comments.
     Provide any technical information and/or data that you
used to support your views.
     If you provide any estimate of potential economic burdens
or costs, please carefully consider the information provided in the
preamble to the proposed rule, particularly in Sections VII (Non-
Monetary Benefits and Economic Analysis), VIII.A (Regulatory Planning
and Review), VIII.C (Regulatory Flexibility Act), and IV.D (Data
Considerations), and provide detailed explanations of how you arrived
at your estimate.
     Provide specific examples to illustrate your comments or
concerns.
     Clearly identify your preferences and, if applicable,
offer feasible alternatives that will effectively meet the same goals.
    Submit your comments as directed in the ADDRESSES section of this
Federal Register notice before the comment period deadline identified
in the DATES section of this notice.

A. Implementation Plan

    1. EPA solicits comment from the states on making the Initial
Recipient determination in Section 127.27(a) an `opt-out' process for
an authorized state, tribe, or territory NPDES programs. Under this
process, an authorized NPDES program would need to notify EPA within
120 days of the effective date of the final rule if it wishes EPA to be
the Initial Recipient for a particular data group. If EPA receives no
such notification, EPA would designate the state, tribe, or territorial
NPDES program as the Initial Recipient.
    2. EPA solicits comment on additional means for providing notice to
NPDES regulated entities on the Initial Recipient status.
    3. In order to provide a clearer distinction between the Initial
Recipient and State Readiness Criteria terms, EPA solicits comment on
eliminating the third factor in the State Readiness Criteria (i.e.,
Initial Recipient Status).
    4. EPA solicits comment on different options for using a phased
approach or longer interval before applying participation rate as part
of the State Readiness Criteria. For example, EPA could require
increasing participation rates over a longer implementation period
(e.g., 30 percent participation rate for Year 1, 60 percent
participation rate for Year 2, and 90 percent participation rate for
Year 3).
    5. EPA solicits comment on the concept of using EPA's CWA authority
through use of an ICR to require NPDES-regulated entities to
electronically submit their NPDES program data to their authorized
state, tribe, or territory as a ``fill in the gaps'' measure where the
authorized NPDES program has a CROMERR-approved electronic tool. The
proposed rule had NPDES-regulated entities reporting these data to EPA.
EPA would retain the ability to assess and pursue enforcement actions
on NPDES-regulated entities that fail to comply with the data
submission requirements.
    6. EPA solicits comment on extending or adding additional phasing
to the implementation period, linking implementation of electronic
reporting to the NPDES permit cycle for entities with NPDES permits, or
allowing states to extend their implementation of electronic reporting
to a specific date following EPA approval of their individual
implementation plan. These implementation plans would need to be
approved by the authorized NPDES Director (as defined in 40 CFR 122.2).
    7. EPA solicits comment on the option to calculate for each
authorized NPDES program one DMR electronic submission participant rate
for individually permitted facilities and another DMR electronic
submission participant rate for general permit covered facilities.
    8. EPA solicits comments on practical ways to streamline the
implementation of the approval process for CROMERR within the
parameters of the existing CROMERR regulation.
    9. EPA solicits comment on the option of EPA using its CWA
authority through use of an ICR to require facilities operating under
backlogged permits to electronically submit their NPDES program data.

B. Stormwater Sector

    1. EPA solicits comment on its proposed approach to use a
combination of drop-down lists and text fields in its electronic
reporting systems to effectively characterize the activities of the MS4
facilities for electronic reporting of NOIs and program reports.
    2. EPA solicits comment on providing flexibility in the final rule
for the construction stormwater program that would allow authorized
NPDES programs the possibility of using automatic identification and
data capture technology (e.g., two dimensional barcodes, optical
character recognition) instead of requiring construction site operators
to secure and maintain electronic signature

credentials for use with CROMERR compliant electronic reporting
systems.
    3. EPA also solicits comment on changes to stormwater data elements
in Appendix A (see DCN 0108).

C. Concentrated Animal Feeding Operations (CAFO) Sector

    1. EPA solicits comment on the approach of removing facility
specific information from EPA's ECHO Web page about non-permitted CAFO/
AFOs that state inspectors found were not discharging and do not
require an NPDES permit. As discussed in this notice, EPA is proposing
to mask facility specific information on these unpermitted CAFO/AFOs
and only show the total number of these masked facilities by state. EPA
plans to enhance its data system (ICIS-NPDES) to provide states and
Regions with the necessary capability to identify these non-permitted
CAFO/AFOs that do not require an NPDES permit. In particular, after
these enhancements States and Regions will need to enter or verify the
following data into ICIS-NPDES for each non-permitted CAFO/AFO that
does not require an NPDES permit: (1) Unpermitted CAFO/AFO has an
``Unpermitted ID'' with no associated ``NPDES Permit ID;'' (2)
unpermitted CAFO/AFO has a ``CAFO Permit Component;'' and (3)
unpermitted CAFO/AFO has no CWA NPDES violations. If these three
conditions are met EPA will remove facility specific information for
these facilities from EPA's ECHO Web page one year after the effective
date of the final rule. EPA solicits comment on the timing of this
proposed change.
    2. As previously discussed in Section III.C, agricultural
stakeholders focused their comments on the public availability of
Appendix A data related to CAFOs. EPA emphasizes that this rule would
not require any information to be disclosed that is not already
available to EPA and the public pursuant to the Clean Water Act.
    3. EPA is soliciting comment on a few changes to CAFO data elements
in Appendix A to Part 127 (see DCN 0108). EPA believes that these
edits, generated from comments by states, make the revised Appendix A
more clear and implementable (see DCN 0128 through 0142).

D. Economic Analysis

    1. EPA solicits comment on what NPDES program information
technology upgrades might be necessary for regulatory authorities or
NPDES-regulated entities. For example, EPA seeks information on the
labor hours and capital equipment and/or software needed to upgrade or
expand state batch system databases to store all Appendix A data. For
labor hour estimates, please provide the labor category for the hours
needed. Please also provide information on the number of Appendix A
data elements for which the upgrade/expansion is needed.
    2. EPA solicits comment on the expected costs for CROMERR
implementation as it specifically relates to the proposed NPDES
Electronic Reporting Rule. For example, please provide estimates of
burden (including labor category) and costs for using EPA's electronic
reporting systems.
    3. EPA solicits comment on the expected costs for eNOI and eProgram
Report training. For example, please provide the amount of training (in
labor hours) that NPDES-regulated entities and states would require in
the use of electronic systems for NOIs and program reports, including
the labor categories (e.g., managerial, technical, clerk, etc.). EPA
will be training states that elect to use EPA's electronic reporting
systems on how to use these tools and how to train potential users. EPA
will work with states on the training needs of potential users and
conduct some training sessions at the request of the states. States
will also be responsible for conducting regular training sessions for
NPDES-regulated entities on how to use EPA's electronic reporting
systems.\9\
---------------------------------------------------------------------------

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

    4. EPA solicits comment on costs related to computer and Internet
access for NPDES-regulated entities. For example, EPA solicits comment
and information on the number or percent of NPDES-regulated entities
that do not currently have readily available access to a computer and/
or the Internet. Please also provide the estimated cost of a computer
and/or Internet access and the labor hours and labor categories as well
as any travel expenses related to offsite computer and Internet access
(e.g., local public library).
    5. EPA solicits comment on costs related the use of existing
electronic systems. For example, EPA asks authorized NPDES programs to
provide information on the utilization of existing electronic systems
in terms of the percent of major and minor permittees (by individual
and general permit covered facilities) and other NPDES-regulated
entities actively reporting to DMR, NOIs, and/or program report
systems.
    6. EPA solicits comments on the difference in labor hours
associated with the current regulatory requirement for states to
produce an annual noncompliance report (ANCR) versus the labor hours
that would be associated with a state's review of non-major
noncompliance information in the proposed quarterly NPDES noncompliance
report (NNCR) generated by EPA.

E. Waivers

    1. EPA solicits comment on whether waivers from NPDES electronic
reporting should be automatic for counties where only a small fraction
of the population (e.g., less than 10 percent) has sufficient broadband
availability.
    2. EPA solicits comment on the appropriate effective timeframe for
these ``automatic'' waivers. Should there be a review period for these
``automatic'' waivers?
    3. EPA solicits comment on whether temporary waivers should extend
for the life of the NPDES permit or another timeframe.
    4. EPA solicits comment on whether EPA should allow authorized
NPDES programs to grant a temporary waiver based on the NPDES-regulated
entity's lack of technical expertise and what criteria, if any, the
authorized program should use in making these decisions.
    5. EPA solicits comment on whether it should make available in the
final rule permanent waivers for NPDES-regulated entities located in
religious communities where electronic reporting would not be
consistent with the community's religious beliefs (e.g., Amish,
Mennonite, and Hutterite).

F. Miscellaneous Issues

    1. EPA is soliciting comment on how to improve public accessibility
and usability of the data. EPA notes that this proposed rule does not
change the Agency's public disclosure regulations (40 CFR 2).
    2. EPA reviewed the minimum set of federal NPDES data (Appendix A
to 40 CFR part 127) and is seeking comment on potential changes to some
of these data elements (see DCN 0108).
    3. EPA solicits comment on the practicality of using the DMR form
to collect data for the Biosolids Annual Report. EPA also solicits
comment on allowing POTWs to use state eDMR systems to submit their
Biosolids Annual Report when the state is not authorized for the
biosolids program.
    4. EPA also solicits comment on changing the deadline for
submission of these Biosolids Annual Reports from Phase 2 (two years
after the effective date of the final rule) to Phase 1 (one

year after the effective date of the final rule).

V. Outreach

    Section VI of the proposed rule details EPA extensive outreach
efforts prior to the proposed rule. EPA continued this outreach during
the public comment period on the proposed rule (DCN 0111). In
particular, EPA held over 30 webinars and meetings with over 1,200
people to discuss the proposed rule.
    Upon publication of this notice, EPA will provide a new comment
period and will conduct additional stakeholders meetings to further
discuss and refine particular aspects of the rule prior to
promulgation. Outreach to stakeholders will continue to be supported
through the NPDES Electronic Reporting Rule Web site; however, the Web
site may be expanded to include more robust rule schedules as the rule
nears promulgation, as well as additional rule documentation that may
or may not be included as part of the formal docket library.
Stakeholders that wish to hold a meeting with EPA should send an email
to Messrs. Hudock or Johnston (see FOR FURTHER INFORMATION CONTACT
section).
    Finally, EPA would also continue to provide technical assistance
and support to states, tribes, and territories during the transition to
electronic reporting. Outreach from EPA to the states, tribes, and
territories may be very useful in the identification of specific needs
and the development of such assistance, support, and funding. EPA also
solicits comment and suggestions on how to reach and inform the broad
range of facilities affected by this proposed rulemaking.

VI. Executive Orders 12866 and 13563

    Under Executive Order (EO) 12866 [58 FR 51735 (October 4, 1993)]
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under Executive Orders 12866 and 13563 and any changes made in
response to OMB recommendations have been documented in the docket for
this action.

List of Subjects

40 CFR Part 122

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

40 CFR Part 123

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

40 CFR Part 127

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

40 CFR Part 403

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

40 CFR Part 501

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

40 CFR Part 503

    Reporting and recordkeeping requirements, Sewage disposal.

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