Memorandum

From: 	Carey A. Johnston, P.E.
      USEPA/OECA/OC
      ph: (202) 566 1014
      johnston.carey@epa.gov

To:	EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)

Date:	16 July 2013

Re: 	Memorandum Documenting Changes to the Proposed NPDES Electronic Reporting Rule Made During E.O. 12866 Review [DCN 0075]
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      Consistent with Section 6(a)(3)(E)(ii) of Executive Order 12866, this memorandum identifies the substantive changes made by EPA to the proposed NPDES Electronic Reporting Rule after EPA submitted this proposed rule to the Office of Information and Regulatory Affairs of the Office of Management and Budget for review on 20 January 2012. This memorandum also includes the substantive comments EPA received from other Federal agencies and the changes EPA made to the proposed rule at the suggestion or recommendation of OMB. OMB concluded their review on 1 July 2013. On 15 July 2013, Acting Administrator Bob Perciasepe signed the proposed NPDES Electronic Reporting Rule for publication in the Federal Register.
      
      

                                       
     Figure 1: Screenshot of OMB Website (NPDES Electronic Reporting Rule)


      In addition to OMB comments EPA received comments on the proposed NPDES Electronic Reporting Rule from:
      
         *          U.S. Department of Transportation (DOT)
         *          U.S. Department of Agriculture (USDA)
         *          U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service (NOAA-NMFS)
         *          U.S. Department of Defense (DoD)
   The following sections provide the written comments and EPA responses. 


    EPA Response to OMB Comments on the Proposed Electronic Reporting Rule 

Page Number: 	1
Section Number: Summary
OMB Comment Number: 1a

This summary is very long, and much longer than it needs to be.  Please edit it to be shorter and answer the three following questions: "what," "why," and "effect" of the document

EPA Response: EPA reviewed the Office Register Document Drafting Handbook (DDH), page 1-8, and confirmed that the focus of the summary is to answer the following question:

   * What action is being taken?
   * Why is this action necessary?
   * What is the intended effect of this action?
EPA proposes to use the following text for the SUMMARY.

EPA is proposing a regulation that would require electronic reporting for current paper-based NPDES reports. This action will save time and resources for permittees, states, tribes, territories, and EPA while improving compliance and providing better protection of the Nation's waters. The proposed Clean Water Act regulation would require permittees and regulators to use existing, available information technology to electronically report information and data related to the NPDES permit program in lieu of filing written reports. With full implementation, the anticipated savings for the states is $28.5 million annually, for the permittees, $1.1 million annually, and for EPA $0.7 million annually. The proposal will also allow better allocation and use of limited program resources and enhance transparency and public accountability by providing regulatory agencies and the public with more timely, complete, accurate, and nationally-consistent set of 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 those more targeted to solving water quality and noncompliance issues. This in turn will contribute to increased compliance, improved water quality, and a level playing field for the regulated community.

Given the large scope of this proposal, EPA commits to offer an additional opportunity for transparency and engagement should we receive comments on the proposed rule that require significant changes by publishing a supplemental notice. States, tribes, territories, permittees, and other stakeholders can review and comment on the supplemental notice which will reflect how EPA revised the parts of the proposed rule that generated significant amount of comment. EPA plans to publish the supplemental notice within 120 days after the public comment period for this proposed rule has closed.
Page Number: 	1
Section Number: Summary
OMB Comment Number: 1b

OMB suggests deleting the following sentence from the summary "given the executive summary and costs/benefits presented there."

"With full implementation, the anticipated savings for the states is $28.5 million annually, for the permittees, $1.1 million annually, and for EPA $0.7 million annually."

EPA Response: EPA will delete this sentence from the Summary.

Page Number: 	2
Section Number: Summary
OMB Comment Number: 1c

We suggest deleting this entire sentence;  it's not clear if this will happen as a result of the rule.  If this is not deleted, suggest changing "will" to "may."

"This in turn will contribute to increased compliance, improved water quality, and a level playing field for the regulated community."

EPA Response: EPA will change "will" to "may" in the above sentence.

Page Number: 	2
Section Number: Summary
OMB Comment Number: 1d

Suggest deleting this, since the prior sentence explains why you would issuing a supplemental and implies what you are saying here.

"States, tribes, territories, permittees, and other stakeholders can review and comment on the supplemental notice which will reflect how EPA revised the parts of the proposed rule that generated significant amount of comment."

EPA Response: EPA will make the suggested edit.

Page Number: 	2
Section Number: Summary
OMB Comment Number: 1e

Why is this time frame being given?  We think that you might be constraining yourself unnecessarily.

"EPA plans to publish the supplemental notice within 120 days after the public comment period for this proposed rule has closed."

EPA Response: EPA is committed to moving forward in the regulatory process as expeditiously as possible. We believe this timeframe is feasible given the resources we are dedicating to this effort.

Page Number: 	1
Section Number: Summary
OMB Comment Number: 2

The electronic submittal of data will result in improved water quality and long term cost savings for the states, as well as savings for the permittees, tribes and EPA, when the rule is fully implemented.  {OMB flagged with comment: Why is this?}
EPA Response: The benefits of electronic reporting should allow NPDES-authorized programs in states, tribes, and territories to shift precious resources from data management activities to those more targeted to solving water quality and noncompliance issues. This in turn will contribute to increased compliance, improved water quality, and a level playing field for the regulated community. Solving water quality and noncompliance issues will lead to improved water quality.

Page Number: 	3
Section Number: Summary
OMB Comment Number: 3

{OMB suggests moving this paragraph to the preamble.}

EPA anticipates that the proposed rule will save money for states, tribes, and territories as well as EPA and NPDES permittees, while resulting in a more complete, accurate, and nationally-consistent set of data about the NPDES program. With full implementation, the anticipated savings for the states is $28.5 million annually, for the permittees, $1.1 million annually, and for EPA $0.7 million annually. As an example demonstrating the benefits of electronic reporting, the State of Ohio's electronic reporting program for Discharge Monitoring Reports has resulted in a 99.9 percent adoption rate, has increased data quality and improved environmental protection, while also saving significant time and resources (e.g., Ohio was able to shift resources from five full-time staff to less than one to support the DMR program). 

EPA Response: EPA agrees with OMB and will move this paragraph to the preamble. 

Page Number: 	3
Section Number: Summary
OMB Comment Number: 4

Other anticipated benefits for the proposed rule ...... financial assistance to facilitate the transition to a more efficient and effective electronic reporting approach.

EPA Response: EPA agrees with OMB and will move these paragraphs to the preamble. 

Page Number: 	5
Section Number: Summary
OMB Comment Number: 5

{OMB suggests deleting five paragraphs from the summary.}

Given the large scope of this proposal, EPA commits to offer an additional opportunity for transparency and engagement should we receive public comments that make us consider significant changes in the direction of the proposal.  {OMB: we should have a follow up conversation about this  -  what does EPA mean by direction?  Is there another word or term that would be more precise?}

EPA Response: EPA proposes to simplify the language with the following edit.

"Given the large scope of this proposal, EPA commits to offer an additional opportunity for transparency and engagement should we receive public comments that require significant changes to rule."

Page Number: 	10
Section Number: 1
OMB Comment Number: 5a

OMB: Consistent with guidance give to agencies on 1/2/2012, this section should include an executive summary.

Appendix 
Suggested Template for Executive Summaries (generally 3-4 pages of a double-spaced Word document maximum, although unusually complex or lengthy regulatory actions may require longer executive summaries) 

I. Purpose of the Regulatory Action 
a. The need for the regulatory action and how the action will meet that need 
b. Succinct statement of legal authority for the regulatory action (explaining, in brief, the legal authority laid out later in the preamble) 

II. Summary of the Major Provisions of the Regulatory Action In Question 
(Each major provision should be described clearly and separately, along with a brief 
justification) 
III. Costs and Benefits 
please include a table summarizing the assessment of costs and benefits, both quantitative and qualitative I 

Memo can be found here:
http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/clarifying-regulatory-requirements_executive-summaries.pdf

EPA Response: EPA will add an Executive Summary at the beginning of Section 1.

Page Number: 	10
Section Number: 1
OMB Comment Number: 5b

OMB suggests deletion of the following text in the Executive Summary.

      "To promote transparency and accountability, EPA intends to make this more complete set of data available to the public, providing communities and citizens with easily accessible information on facility and government performance. Such data provides a powerful incentive to improve performance by giving government, permittees, and the public ready access to compliance information. This can serve to elevate the importance of compliance information and environmental performance within regulated entities, providing opportunity for them to quickly address any noncompliance.. It opens the opportunity for two-way communication between authorized NPDES programs or EPA and regulated facilities to immediately address data quality issues and to provide compliance assistance or take other action when potential problems are identified. Complete and accurate data also will allow EPA to compare performance across authorized programs.

EPA Response: EPA will make the suggested edits.

Page Number: 	10
Section Number: 1
OMB Comment Number: 5c

OMB suggests deletion of the following text in the Executive Summary.

      To fully implement this regulation, there will be initial investment costs associated with needed changes to information technology and infrastructure. EPA plans to develop NPDES electronic reporting tools, or states may choose devote their resources to develop their own such tools while meeting the regulatory requirements of 40 CFR 3, 40 CFR 122.22, and 40 CFR 127.  EPA is committed to working with the states, tribes, and territories to develop their electronic databases and capabilities in a cost-effective manner.

EPA Response: EPA will make the suggested edit.

Page Number: 	10
Section Number: 1
OMB Comment Number: 5d

OMB suggests deletion of the following text in the Executive Summary.

      The electronic submittal of data may result in improved water quality and will result in significant cost savings for the states, as well as savings for the permittees, tribes and EPA, when the rule is fully implemented. The proposal will also reduce the reporting burden currently borne by the states, improve overall facility compliance, allow better allocation and use of limited program resources, and enhance transparency and public accountability by providing the public with timely information on potential sources of water pollution.

EPA Response: EPA will make the suggested edit.

Page Number: 	26
Section Number: II
OMB Comment Number: 6

The most recent state water quality assessment reports submitted under CWA section 305(b) and compiled by EPA in the National Water Quality Inventory Reports indicate the growing significance and link between nonmajor sources and impairments in water quality of U.S. waters, particularly from precipitation-induced or "wet-weather" point sources of pollutants.
{OMB Comment: It would be helpful to have a more precise link to the specific report or reports that supports this statement.  The url provided goes to a general page with the most repcent report being a 2004 report to Congress.}

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

Page Number: 	26
Section Number: II
OMB Comment Number: 7

Therefore, EPA and the public do not currently have complete information or facilitated notification on these additional sources of pollution. {OMB flagged with comment: Why was this inserted?  Suggest deleting.}

EPA Response: The purpose for adding "public" is to note that the public will also benefit from the proposed the improvements and efficiencies for NPDES program data collection and management. The emphasis on providing the public with better access to NPDES program data is detailed in the Clean Water Act Action Plan. The Plan is a collaborative effort by EPA and state environmental agencies. The goals of the Plan include improving and enhancing the information available on compliance and enforcement activities in each state, connecting this information to local water quality, and providing the public with real-time, easy access to this information. As noted elsewhere in the preamble, the need for electronic reporting includes empowering the public by improving transparency and accountability through the provision of more complete and accurate information about sources of water pollution in their communities. EPA recommends retention of "and the public" in this sentence.

Page Number: 	32
Section Number: III
OMB Comment Number: 8

Moving many of the NPDES program's reporting requirements to electronic submission may provide significant benefits, such as:

{OMB Comment: These statements listed below are fairly specific  -  this edit is provided to soften EPA's claims and give wiggle room if switching to electronic reporting doesn't result in these dramatic changes}

EPA Response: EPA suggests changing "will" to "will likely," which provides more wiggle room than will but provides a stronger statement than "may."

Page Number: 	33
Section Number: III
OMB Comment Number: 9

Furthermore, these benefits will accrue sooner if electronic reporting of NPDES information is required, has significant national consistency, and happens in a timely manner rather than by stretching the process out over the course of the next decade. {OMB deletion}

EPA Response: EPA will make this deletion but notes that this deletion does not affect the overall implementation plan of the rule (i.e., the two-phased approach). 

Page Number: 	33
Section Number: III
OMB Comment Number: 10

Requiring electronic reporting is the best way to achieve complete data on the expanded NPDES regulated universe in an efficient and cost-effective manner. {OMB comment: What evidence do you have for this?  we suggest deleting or softening.}

EPA Response: EPA suggests the following change: "Requiring electronic reporting is the most efficient way to achieve complete data on the expanded NPDES regulated universe in an efficient and cost-effective manner." 

Additional OMB Comment: OMB made the following suggested edit to leave "open the possibility for alternative suggestions during the public comment period."

Requiring electronic reporting is an efficient way to achieve complete data on the expanded NPDES regulated universe in an efficient and cost-effective manner.

EPA Response: EPA will make the suggested edit.
Page Number: 	40
Section Number: III
OMB Comment Number: 11

EPA would need to certify or approve the methods used by the software to authenticate, encrypt, and send compliance monitoring and other data. {OMB flagged this text with comment: We should flag for discussion the amount of time it's taken for states to have their CROMERR systems approved.  Does EPA believe that this process could be faster/more efficient for a third party platform, or will the same kinds of delays occur?}

EPA Response: As of February 2013, EPA/OEI has received 73 total applications and approved 35. Of the remaining applications, 22 have a status of incomplete and likely represent the applicants in most need of support. EPA received a majority of the 22 incomplete applications between 2008 and 2010. Given the latency, the viability of the application and interest of the applicant must be re-established. EPA/OEI has a two-phased effort to clear this backlog and includes additional EPA support and resources to states for successful completion of their applications. Phase 1 will provide CROMERR shared services to enable integration into system architectures and the corresponding CROMERR compliance applications. The objective of Phase 2 is to help address the backlog of CROMERR applications by working directly with those States with pending applications to identify outstanding issues and the resources necessary to address these issues; and to create a portfolio of materials available to new applicants to streamline the development of their applications.

Page Number: 	41
Section Number: III
OMB Comment Number: 12

EPA shares with the public NPDES information that is currently available (except for that information which is specifically exempted from disclosure by statute, or confidential enforcement and business information), but recognizes that increased transparency of NPDES program implementation and compliance is essential. {OMB deletion}

EPA Response: EPA will make the suggested edit.

Page Number: 	41
Section Number: III
OMB Comment Number: 13
      
Increased information may also help the public to press for improved performance from the regulated community, federal, state, tribal, and territorial governments, and for a cleaner, more resilient, and sustainable environment. {OMB flagged text with the following comment: "Instead of this language, could you use language from EPA's mission statement"}
      
EPA Response: EPA will change text to "and for better protection of human health and the environment."


Page Number: 	42
Section Number: III
OMB Comment Number: 14
      
The web interface ultimately provides citizens the public, government officials, investors, and staff with environmental reports and compliance information. {OMB flagged text with the following comment: "EPA staff"}
      
EPA Response: This sentence will be clarified and changed to read: "The web interface ultimately provides the public, government officials, and investors with environmental reports and compliance information."

Page Number: 	42
Section Number: III
OMB Comment Number: 15
      
The proposed rule would provide a complete inventory of NPDES-permitted facilities, which can be included in ECHO;
      
EPA Response: EPA will make the suggested edit. 

Page Number: 	42
Section Number: III
OMB Comment Number: 16

All violations identified through inspections and other compliance monitoring activities by EPA, states, tribes, and territories would be made available through public search. {OMB comment: "Is this something  that EPA can do now?  If not, please add a little text about why this proposed rule leads to this outcome.}

EPA Response: EPA will add the following text: "All violations identified through inspections and other compliance monitoring activities by EPA, states, tribes, and territories would be made available through public search. Currently, the EPA PCS Policy Statement (as amended) states that state NPDES programs must enter inspection related violation determinations into EPA's data system for facilities with NPDES permits designated as majors and pretreatment related violations associated with POTWs that have an approved pretreatment program. States are not currently expected to enter any other inspection related violation determinations into EPA's data system."

Page Number: 	42
Section Number: III
OMB Comment Number: 17

Compliance information would become available from smaller facilities, such as DMRs and program reports, closing important knowledge gaps;

EPA Response: EPA will make the suggested edits. 

Page Number: 	42
Section Number: III
OMB Comment Number: 18

Information on enforcement actions and associated penalties would be more complete. {OMB comment: How is this different from the "violations" information identified two bullets before?  We suggest deleting.}

EPA Response: EPA notes that a violation determination, which is the focus of the OMB referenced bullet, must be made prior to initiating an enforcement action or an action for seeking a penalty. EPA recommends keeping this bullet as currently written.

Page Number: 	42
Section Number: III
OMB Comment Number: 19

Documents related to noncompliance would be more accessible, resulting in increased efficiency in tracking and resolving noncompliance status. {OMB comment: Let's discuss what this means  -  greater clarity would be helpful here.}

EPA Response: The proposed rule will create a new periodic report  -  the NPDES Noncompliance Report (NNCR), which will replace the current Quarterly Noncompliance Report (QNCR). The QNCR currently tracks noncompliance at majors and the proposed NNCR will track noncompliance for both majors and nonmajors. Identifying noncompliance for nonmajors currently requires states to manually submit data to EPA or the public and is not as accessible as noncompliance data for majors. 

EPA recommends the following change: "Documents related to noncompliance (e.g., the proposed NPDES Noncompliance Report) would be more accessible, resulting in increased efficiency in tracking and resolving noncompliance status." 

Page Number: 	42
Section Number: III
OMB Comment Number: 20

Comparative analysis would be made easier by utilizing a national consistent set of data. {OMB comment: Suggest saying instead "with data that uses a nationally consistent model."}

EPA Response: The proposed rule will create a set of data (i.e., Appendix A) that is consistent across all NPDES programs. EPA recommends the following change: "Comparative analysis would be made easier by utilizing a national consistent set of data (i.e., Appendix A to Part 127)."


Page Number: 	42
Section Number: III
OMB Comment Number: 21

Integration of permit and water quality assessment information would also be improved. {OMB comment: How so?}

EPA Response: The proposed rule will require facility locational data (e.g., latitude and longitude data) and information on the receiving waters (e.g., Receiving Waterbody Name for Permitted Feature). This improved linkage will help permit writers and the public better understand the connection between permitted discharge and any impairments of the receiving waterbody. EPA recommends the following change: "Integration of permit and water quality assessment information would also be improved through better linkage of facility locational data (e.g., latitude and longitude data) and information on the receiving waters (e.g., receiving waterbody name for permitted feature)."

Page Number: 	43
Section Number: III
OMB Comment Number: 22

Informing national program decisions and rulemakings;

EPA Response: EPA will make the suggested edit.

Page Number: 	43
Section Number: III
OMB Comment Number: 23

Managing and overseeing national and state, tribal, or territorial program management and oversight; {OMB Comment: Establishing program performance indicators is a part of this, right?}



EPA Response: EPA recommends the following change: "Managing, overseeing, and reporting on national and state, tribal, or territorial program performance, management, and oversight."

Page Number: 	44
Section Number: III
OMB Comment Number: 24

Developing trend data on facility compliance and government performance;

 {OMB Comment: This also seems to fall within the scope of "managing and overseeing" bullet above.} See OMB Comment Number 23.

EPA Response: EPA will make the OMB suggested edit along with the EPA suggested edit to OMB Comment Number 23.
Page Number: 	44
Section Number: III
OMB Comment Number: 25

Each of these EPA uses of NPDES information is described in more detail in DCN 0015. {OMB Comment: Please provide this to the interagency group.}

EPA Response: See attached memo to the record, "Example EPA Uses of NPDES Information," which will be DCN 0015 in the rulemaking record.

Page Number: 	44
Section Number: III
OMB Comment Number: 26

4. Key Characteristics for Data. {OMB Comment: What is the purpose of this section and why is it relevant to the rulemaking?  Suggest deleting and just referencing a supporting document.  If this cannot be done, we need to talk about the specifics in this section and why this supports the need for the rule (the title of this section)}

EPA Response: This section provides a discussion on the data quality expectations for NPDES program data. Specifically, these data should be current, nationally consistent, complete, and accessible by EPA, states, and the public. We recommend keeping this section; however, we could also summarize this section and put this text in a memo to the record.
Page Number: 	46
Section Number: III
OMB Comment Number: 27

The data should be made available so that the basis for EPA program evaluation and subsequent planning is transparent and reproducible. {OMB Comment: This isn't a characteristic of the data  -  this is treatment of the data.}

EPA Response: An important data quality measure is to make NPDES program data available to all interested stakeholders (EPA, states, public). Having data easily accessible will enable users to more fully understand the performance of NPDES programs and to reproduce related analyses. Making NPDES program data available also helps identify data errors for correction.

Page Number: 	47
Section Number: III
OMB Comment Number: 28

The National Environmental Information Exchange Network (NEIEN) {OMB comment: It would be helpful to add a sentence or two explaining how this supports the need for the regulation.  IF that's challenging, should this section be moved someplace else?}

EPA Response: The following sentences will be added near the beginning of this section: "The proposal rule utilizes the NEIEN for sharing NPDES program data between regulated entities, NPDES permit programs, and EPA. This information sharing network helps facilitate the reporting and information sharing requirements in the proposed rule."

Page Number: 	47
Section Number: III
OMB Comment Number: 29

Many environmental problems cross jurisdictions and involve a web of natural systems that interact with human communities in complex ways. {OMB comment: "I'm not sure what this means  -  suggest deleting."} The business of managing and solving these problems has become very information-intensive. Environmental policymakers and other stakeholders need access to timely, accurate, and consistent data that present a holistic picture of the environment. in order to make better decisions regarding the environment. {OMB comment: Why?  Please add a rationale at the end of the sentence.  We've suggested a change}

EPA Response: EPA will make the suggested edits.

Additional OMB Comment: Suggest the following deletion since seems redundant given other changes.

Environmental policymakers and other stakeholders in order to make better decisions regarding the environment.

EPA Response: EPA will make the suggested edit.

Page Number: 	47
Section Number: III
OMB Comment Number: 30

      Many of the current approaches to environmental information exchange today are ineffective and often burdensome. {OMB comment: Do we know this?  Suggest deleting.} Currently, most environmental data are stored in electronic data management systems. Electronic data sharing between agencies is often not a simple and automatic process because many of these systems are incompatible with each other. Even similar systems can have difficulties exchanging information when the data are not identically structured.

EPA Response: EPA suggests the following change to the first sentence: "Previous approaches to environmental information exchange were often inefficient." EPA will make OMB's edits to the third sentence in this paragraph.

Page Number: 	48
Section Number: III
OMB Comment Number: 31

For example, states in the Pacific Northwest are using the NEIEN to share high-quality water data to control conditions that threaten regional watersheds and rivers . {OMB comment: What kind of conditions?  Can you be more specific?} Laboratories are able to quickly share sampling results with regulators, allowing real-time monitoring of drinking water for public health and homeland security concerns.

EPA Response: EPA suggests the following change and reference to the first sentence: "For example, states in the Pacific Northwest are using the NEIEN to share high-quality ambient water quality data to improve decision-making for the protection of water quality.

Page Number: 	48
Section Number: III
OMB Comment Number: 32

Today, the NEIEN is making environmental protection more efficient and helping to improve the quality of the decision-making processes. {OMB Comment: This sentence implies that this is currently in place, yet the text in the proceeding bullets points to the proposed requirements.  Can you be more clear?  Why has this lengthy section on NEIEN been included in the proposal?}

EPA Response: EPA proposes to move this sentence to the beginning of this section with the proposed text in OMB Comment Number 28.

Page Number: 	50
Section Number: III
OMB Comment Number: 33

{OMB Suggest the deletion of the following text and made the following note: "Rathere than referencing Congressional testimony, can you refer to EPA's regulatory retrospective document?"}

EPA Administrator Jackson also then announced to the Committee on Transportation and Infrastructure of the United States House of Representatives that, as part of the CWA Action Plan, she was directing her staff to "quickly develop a proposed rule requiring electronic reporting from regulated facilities, to replace the current paper based system."  

EPA Response: EPA will add a footnote to the following sentence in this section: "The CWA Action Plan recognizes that EPA lacks nationally consistent and complete information on the facilities, permits, pollutant discharges, and compliance status of most NPDES-regulated facilities."

Page Number: 	50
Section Number: III
OMB Comment Number: 34

{OMB moved the following paragraph from Page 50 to Page 51, preceding the paragraph starting with "As currently drafted."

Through the Clean Water Act Action Plan Discussion Forum, EPA solicited ideas from the public that encompassed a broad range of perspectives (DCN 0017). Outreach to states, tribes, territories, community groups, industry, and environmental organizations ensured an opportunity for participation in the forum.

EPA Response: EPA will make the suggested edit.

Page Number: 	51
Section Number: III
OMB Comment Number: 35

In an effort to address state concerns over escalating reporting requirements, EPA and the Environmental Council of the States (ECOS) launched the Burden Reduction Initiative in October 2006. {OMB comment: Can you provide a footnote with a url to where the reader can find it, or place it in the docket?} This initiative aimed to identify and reduce high-burden reporting requirements for various media (e.g., air, water, waste).

EPA Response: EPA will add the following footnote: "In an effort to address state concerns over escalating reporting requirements, EPA and the Environmental Council of the States (ECOS) launched the Burden Reduction Initiative in October 2006." EPA will also make the suggested edit.

Page Number: 	52
Section Number: III
OMB Comment Number: 36

      Several states identified NPDES compliance reporting as a priority area for burden reduction.  Specifically, those states recommended that reporting requirements for three NPDES reports required under EPA's NPDES regulations (40 CFR 123.45) be reduced or eliminated. They recommended that EPA reduce the reporting frequency for the Quarterly Noncompliance Report (QNCR) required under 40 CFR 123.45(a) and eliminate both the Semi-Annual Statistical Summary, required under 40 CFR 123.45(b), and the Annual Noncompliance Report (ANCR), required under 40 CFR 123.45(c). {OMB comment: Perhaps add a sentence about why they recommended these changes  -  e.g. was the data not being used? }

EPA Response: EPA will make the suggested edits and add the following sentence: "States suggested the elimination of these reports to reduce their burden of implementing the NPDES program."

Page Number: 	52-53
Section Number: III
OMB Comment Number: 37

      The QNCR is a quarterly report regarding major NPDES-regulated facilities in noncompliance; under 40 CFR 123.45(a), this report is required to be submitted to EPA by states, tribes, and territories authorized to implement the NPDES program. These reports are used by EPA, states, tribes, and territories to track progress and assess the effectiveness of NPDES compliance monitoring and enforcement activities. {OMB comment: In this paragraph and the next, suggest deleting text about what EPA uses this information for and limit to a description of these reports.}
      
      The ANCR is an annual report submitted to EPA by states, tribes, and territories authorized to implement the NPDES program; in this report, as required under 40 CFR 123.45(c), the states, tribes, and territories provide information regarding the total number of nonmajor NPDES-regulated facilities that have been reviewed for the purpose of making compliance determinations, the number of non-complying nonmajor permittees, the number of enforcement actions taken against these nonmajor NPDES-regulated facilities, and the number of permit modifications extending compliance deadlines for these nonmajor NPDES-regulated facilities. {OMB comment: Suggest deleting.}

EPA Response: EPA will make the suggested edits.

Page Number: 	53
Section Number: III
OMB Comment Number: 38

As part of the proposed rule, EPA is seeking comment on changes to 40 CFR 123.45, entitled "Noncompliance and program reporting by the Director." The purposes of these changes would be to: 1) reduce the state reporting burden by phasing out reports that can be produced automatically by EPA from a national data system - (such as the QNCR); {OMB comment: Suggested insert if the above text is deleted.}

EPA Response: EPA will make the suggested edits.

Page Number: 	54
Section Number: III
OMB Comment Number: 39

8.	Response to Early Public Comments {OMB comment: This may not be the appropriate place for this section (Purpose and Need)  -  perhaps in Section V or VI.}

EPA Response: EPA will move this section to the beginning of Section V ("Matters for Which Comments Are Sought").

Page Number: 	69
Section Number: IV
OMB Comment Number: 40

Existing federal regulations already require each of these reports to be submitted to the permitting authority. Currently, most of these compliance reports are submitted on paper. EPA is soliciting comment on switching the submission of these reports from paper reporting to electronic reporting. Each of the data types associated with these reports is described in more detail in Section IV.

EPA Response: EPA will make the suggested edits.

Page Number: 	71
Section Number: IV
OMB Comment Number: 41

The DMR submission process that is most frequently used requires the permittee to mail a hard-copy form of a pre-printed form (OMB Control No. 2040-0004) to the authorized NPDES permitting authority. {OMB comment: We're not sure why the first sentence is important, but does this edit work?}

EPA Response: EPA will make the suggested edits.

Page Number: 	72
Section Number: IV
OMB Comment Number: 42

EPA's PCS Policy Statement (as amended) created the expectation that the permitting authority enter facility information for all permitted facilities and DMR information from major facilities into ICIS-NPDES. {OMB Comment: Required?  Please explain.}

EPA Response: Current regulations require state permit programs to "keep such records and submit to the Administrator such information as the Administrator may reasonably require." See 40 CFR 123.43(d). To implement this and other regulations, EPA has issued guidance on the information to be submitted electronically to a national database. In particular, the PCS Policy Statement (as amended) and the PCS Quality Assurance Manual identify the timeliness, accuracy, completeness, and consistency expectations for state data entry into ICIS-NPDES. 

Both guidances where originally developed by EPA for use with PCS but were subsequently adapted and are still in effect for ICIS-NPDES. However, EPA cannot use guidance as a substitute for a legislative rule, which is an agency action which has the force and effect of law. Consequently, the two guidance documents do not directly impose data sharing requirements on state NPDES programs. EPA mainly uses two mechanisms for requiring data sharing between state NPDES programs and EPA: Memorandum of Agreement and CWA Section 106 Work Plans.

This text reflects the fact that for major facilities the permitting authority should enter facility information for all permitted facilities and DMR information into ICIS-NPDES in accordance with their MOA and/or CWA Section 106 work plan.

Page Number: 	73
Section Number: IV
OMB Comment Number: 43

Because there is a significant burden on states, tribes, or territories associated with manually entering DMR data into a data system, some states, tribes, or territories found that they were not able to meet their regulatory requirement [see 40 CFR 123.26(e)] to evaluate all DMR data for violations (see 2008 and 2009 Clean Water Act Annual Noncompliance Reports, DCN 0016 and 0025) or meet EPA's ICIS-NPDES data entry policy expectations (see DCN 0026). {OMB comment: See previous comments.}

EPA Response: See response to OMB Comment Number 42.

Page Number: 	74
Section Number: IV
OMB Comment Number: 44

Some of these tools allow for a properly formatted file [e.g., comma-separated value file or Extensible Markup Language (XML) file] to be shared between EPA, states, tribes, and territories, which is one step towards automation. {OMB comment: Is automation the goal?  Please explain  -  this is a new idea.}

EPA Response: EPA proposes to make the following change to the text: "Some of these tools allow for a properly formatted file [e.g., comma-separated value file or Extensible Markup Language (XML) file] to be shared between EPA, states, tribes, and territories, which is an important step towards more efficient data sharing."

Page Number: 	74
Section Number: IV
OMB Comment Number: 45

The adoption rate, or percent of permittees that use electronic reporting, in the states where electronic reporting of DMRs is an option as of October 1, 2011, is generally less than half.  EPA believes this is because electronic reporting is not required, and/or release of electronic reporting tools is relatively recent (see DCN 0027).  

EPA Response: EPA will make the suggested edit.
Page Number: 	79
Section Number: IV
OMB Comment Number: 46

This means that neither EPA nor the authorized state, tribe, or territory programs will have information regarding exactly which facilities are regulated under these general permits. General permits cover a wide range of facility types that range from the very large (e.g., offshore oil and gas facilities, seafood processors) to very small discharges. Discharges from facilities covered under general permits include a variety of pollutants, such as total suspended solids, biochemical oxygen demand, oil and grease, bacteria, nutrients, hydrocarbons, metals, and toxics. {OMB comment: Suggest deleting. EPA should be careful not to undercut the general permit program  -  which has been used to provide an efficient, streamlined way for regulated entities to obtain permits.}

EPA Response: EPA will make the suggested edit.

Page Number: 80
Section Number: IV
OMB Comment Number: 47
      
In general, there is significantly less data in ICIS-NPDES on facilities covered by general permits than facilities regulated under individual permits. States, tribes, territories, and EPA regions are required to enter data concerning the general permit and some limited data regarding general permit covered facilities. However, states, tribes, and territories do not consistently report data on general permit covered facilities to ICIS-NPDES, nor are they required to. {OMB comment: OMB has concerns that OECA would like to alter the general permit program.  It is our understanding that with this rule, you are only trying to require electronic reporting of items that are currently required to be collected.  If it is your intention to change the reporting requirements, we should have a conversation.}

EPA Response: EPA is not altering the general permit program or adding new reporting requirements on NPDES regulated entities. The NPDES Electronic Reporting Rule is converting paper-based reporting of general permit documents (e.g., NOIs, NOTs, LEWs, and NECs) but does not add additional data elements or reporting requirements. The statement highlighted in OMB's comment reflects the fact that not all states put in WENDB required data elements for facilities covered by general permits. This is particularly true for facilities covered by stormwater general permits. EPA suggests the following change: 

"In general, there is significantly less data in ICIS-NPDES on facilities covered by general permits than facilities regulated under individual permits due to reduced state reporting requirements for non-major facilities. Most facilities covered by general permits are classified as non-majors. States, tribes, territories, and EPA regions are required to enter data concerning the general permit and some limited data regarding general permit covered facilities. Limited data on general permit covered facilities impedes an accurate assessment of this part of the NPDES program."

Page Number: 89
Section Number: IV
OMB Comment Number: 48a

EPA recognizes that electronic reporting could be problematic for certain CAFO facilities, particularly those located in remote rural areas. {OMB comment: What do you mean?  Do you mean burdensome?  Onerous?  Infeasible?} Although 65 percent of American adults use high-speed Internet broadband at home, only 50 percent of rural residents have broadband.{OMB comment: What about dial up? Is there a better source?} One in ten rural non-users of broadband say they cannot get broadband where they live, which is more than twice the national average. Id.

EPA Response: EPA suggests the following edit: "EPA recognizes that electronic reporting could be impracticable for some CAFO facilities and other facilities located in rural areas, particularly those that do not have broadband access to the internet. FCC data shows that internet access speeds tend to be lower in rural areas as compared to urban areas. In general, electronic reporting tools require faster internet connection speeds to work most effectively." EPA will make the suggested deletion.

Page Number: 93
Section Number: IV
OMB Comment Number: 48b

The reference has been deleted, so the Id now references nothing, but the prior question stands  -  is this the best reference to use for this point?  Suggest deleting this sentence.  

"One in ten rural non-users of broadband say they cannot get broadband where they live, which is more than twice the national average. Id."

EPA Response: EPA will make the suggested edit.

Page Number: 	96
Section Number: IV
OMB Comment Number: 49

CSO, SSO, and bypass events are of special concern with respect to public health because they can expose citizensthe public to bacteria, viruses, intestinal parasites, and other microorganisms that can cause serious illness such as cholera, dysentery, hepatitis, cryptosporidiosis, and giardiasis.

EPA Response: EPA will make the suggested edit.

Page Number: 	121
Section Number: IV
OMB Comment Number: 50

EPA also notes that the transaction cost for authentication has dropped from tens of dollars per user to less than pennies per user (e.g., DCN 0035). {OMB comment: Please provide this to us.}

EPA Response: EPA will share this document with OMB.

Page Number: 	121
Section Number: IV
OMB Comment Number: 51

If the signatory authority plans to have someone else sign and submit the electronic DMRs, for example, then this individual must be a duly authorized representative of that signatory authority in accordance with 40 CFR 122.22(b). EPA worked with the U.S. Department of Justice to ensure that CROMERR requirements satisfy both civil and criminal enforcement needs. {OMB comment: Suggest deleting. This is referencing the work for the CROMERR rule, rather than a recent discussion, right?  If so, it doesn't seem salient to this proposal.}

EPA Response: EPA will make the suggested edit.

Page Number: 	141
Section Number: IV
OMB Comment Number: 52

Violation determinations may also be made based upon other information available to the states, , tribes, territories, or EPA, such as inspection information, review of program report information, citizen complaints, information collection requests, incident reports, etc. {OMB comment: Is this a legal term?  If not, suggest changing to "public complaints"}

EPA Response: EPA will make the suggested edit.

Page Number: 	143
Section Number: IV
OMB Comment Number: 53

In addition, some compliance-related data are tracked at the basic permit level, including whether noncompliance tracking is occurring automatically in EPA's NPDES national data system, and the noncompliance status and fiscal quarters of noncompliance. A complete listing of these data is provided in Appendix A to 40 CFR part 127. The proposed rule also updates 40 CFR 123.26 to reflect the new electronic reporting requirements. {OMB comment: Unless I've missed it, where does EPA flag and seek comment on the change to123.26 that revokes state's control of NPDES information if they don't submit data to EPA in a timely fashion?  Why does EPA need ot include this? Similar changes to the regulatory text were also made in 123.41(a) and 123.43(d),.}

EPA Response: EPA will add a solicitation for comment on the initial recipient determination procedure outlined in the proposed rule. Specifically, EPA will solicit comment on this topic in the section title "Procedure for Determining Initial Recipient of Electronic NPDES Information." It is important to note that EPA is not proposing to limit the state's access and ability to use or manage NPDES program data. EPA will share all NPDES program data that it receives with all state partners. The initial recipient procedure ensures that the authorized state, tribe, or territory receiving NPDES program data from an NPDES regulated entity complies with CROMERR's signatory, certification, and security standards (40 CFR 3) and the data sharing requirements identified in the proposed rule. EPA suggests the following text:

"The purpose of the initial recipient procedure is to ensure that the authorized state, tribe, or territory receiving NPDES program data from an NPDES regulated entity complies with the CROMERR signatory, certification, and security standards (40 CFR 3) and the proposed NPDES Electronic Reporting Rule (40 CFR 127). Built into the proposed procedure is an understanding that EPA will support any authorized state, tribe, or territory that wishes to be the initial recipient for electronically reported NPDES program data and will help the authorized state, tribe, or territory resolve any issues that temporarily prevent it from being the initial recipient of electronically reported NPDES program data." 

Page Number: 	155
Section Number: IV
OMB Comment Number: 54

Methods of detection of non-numeric violations include inspections; information collection requests; state, tribal, or territorial referrals; annual reports, noncompliance reports, and other program reports required under the permit enforcement order, or regulation; facility self-audits; and citizen complaints. {OMB comment: Same comment as before}

EPA Response: EPA will change "citizen" to "public."

Page Number: 	155
Section Number: IV
OMB Comment Number: 55

Under this proposed rule, as currently drafted and subject to public comment, EPA retains the existing lists of Group I and Group II Pollutants in Appendix A to 40 CFR 123.45 that are evaluated as part of the Category I and Category II definition for effluent limit violations, while also proposing regulatory changes that provide Group III for other pollutants of special concern and a periodic review and updates to the pollutant lists through EPA policy or guidance changes. {OMB comment: WE need to flag this for discussion.} Periodic review and update of these lists is consistent with the original intent of the regulation (as specified on page 34651 of EPA's preamble for the final rule for 40 CFR Part 123, NPDES Noncompliance and Program Reporting -- FR, Vol. 50, No. 165, Monday, August 26, 1985). 

EPA Response: EPA will remove the reference to Group III pollutants from the proposed rule and solicit comment on how it should update and revise the list of pollutants in Appendix A to 40 CFR part 123.45. EPA proposes to put this discussion in Section V ("Matters for Which Comments Are Sought") and in the section titled: "Categorizing Violations".

"EPA is seeking comment on how it should evaluate, update, and revise the lists of pollutants in Appendix A to 40 CFR 123.45. These lists are used to determine Category I (most serious) and Category II noncompliance. EPA's preamble for the final rule for 40 CFR Part 123, NPDES Noncompliance and Program Reporting (FR, Vol. 50, No. 165, Monday, August 26, 1985) describes the conventional and nonconventional/toxic pollutants as lists of general types. It was expected that new parameters may be added from time to time. EPA has never revised these lists in part due to the complexity of re-opening the regulation to make such changes. This has resulted in a situation where, the most frequent cause of water impairment, pathogens, (which is directly related to pollutants such as fecal coliform and eColi) are not listed as pollutants that cause a Category I listing in the regulations. This means is that a violation of a pathogen effluent limit alone (no matter how severe) is not required to be reported to EPA under 40 CFR 123.45 and, therefore, will not automatically trigger evaluation of the violation for "significant noncompliance (SNC)" status. EPA also seeks comment on eliminating the need for pollutant specific lists such as the current one in Appendix A and instead requiring that all effluent limitations in NPDES permits be considered noteworthy when involving exceedances greater than a certain, specified amount and basing the threshold amounts on whether or not the limit is a water-quality based effluent limit or a technology-based limit.
 
In addition, when the 40 CFR 123.45 noncompliance reporting requirement were originally developed, EPA believed that violations of monthly average permit effluents limits were indicative of more serious long term noncompliance problems. However, EPA's thinking has evolved on this point and, in consultation with Regions and States, EPA revised its management tool (i.e., EPA's NPDES Significant Noncompliance Policy) in 1995 to also identify egregious NPDES violations of non-monthly permit effluent limits that meet EPA's criteria. EPA is specifically seeking comment on whether noncompliance reporting of permit effluent limits in 40 CFR 123.45 should be limited to monthly average permit limit violations and those violations that are of a specific magnitude and frequency.
 
EPA would like public comment on how a defined policymaking process could be structured as a possible replacement to Appendix A  -  allowing the program to keep pace evolving technology and pollutants. Commenters are encouraged to provide information on relative merits of keeping Appendix A current through regulatory updates."

Page Number: 	206
Section Number: VII
OMB Comment Number: 56

As a result, electronic reporting will allow the states, tribes, territories, and EPA to quickly highlight important information, and it will allow government and citizensthe public to identify, pursue, and address pollution problems.

EPA Response: EPA will make the suggested edit.

Page Number: 	207
Section Number: VII
OMB Comment Number: 57

Electronic reporting  -  and the timely and more accurate information it provides  -  can help provide the public with access to information on the performance of both regulated facilities and governments, and help them make government accountable for results. Electronic reporting also levels the playing field by giving the public, including other regulated entities, the information they need in order to determine whether comparable violations are being treated similarly.

EPA Response: EPA will make the suggested edits.

Page Number: 	208
Section Number: VII
OMB Comment Number: 58

In a similar vein, EPA could explore potential new electronic reporting-supported options such as cross-checking DMR data with TRI data and data in citizen complaints. {OMB comment: See similar comment on "citizen"}

EPA Response: EPA will change "citizen" to "public."

Page Number: 	252
Section Number: VII
OMB Comment Number: 59

The proposed rule will also support meaningful participation by potentially impacted community members in regulatory proceedings, including permitting and compliance, designed to improve the ability of EPA, states, tribes, and territories to protect and preserve water quality.

EPA Response: EPA will make the suggested edit.

OMB Comment Number: 60

OMB request that EPA delay start of electronic reporting of NOIs for CAFOs from one year to two years after the effective date of the final rule.

EPA Response: EPA will make this change and seek public comment on whether to start the electronic reporting of NOIs for CAFOs one year or two years after the effective date of the final rule.

OMB Comment Number: 61

OMB request that EPA include a 90 day OMB review for the supplemental notice. 

EPA Response: EPA will make this change. This pushed the publication of the supplemental notice from 120 days after publication of the proposed rule to 180 days after publication of the proposed rule.




       Detailed Responses to U.S. Department of Transportation Comments

Page Number: 	175
Section Number: Phase 2 Implementation
DOT Comment Number: 1

   * EPA's proposed rule will place an undue technical and financial burden upon the States, tribes, territories, and permittees to implement the transition, as currently drafted. It is unclear how EPA will technically and financially assist these entities in implementing the needed changes to information technology and infrastructure.

   * FHWA strongly urges that EPA reassess the feasibility and practicability of the two-year proposed transition period from paper submissions to electronic format. 
EPA Response: EPA will add the following language to the preamble to the proposed rule to re-emphasize its commitment to identify alternative options that might reduce implementation costs on authorized NPDES programs and permittees while also preserving the proposed implementation schedule and benefits of electronic reporting.

"EPA also notes that it will be providing technical assistance, support, and some funding to help states, tribes, and territories with this transition to electronic reporting. EPA is also open to considering other options for phasing the collection of the information under this proposed rule. Specifically, EPA would like to hear from authorized NPDES programs that have experience in implementing electronic reporting, especially their experience in phasing the implementation so that it is successful. EPA seeks additional data on alternative options that might reduce implementation costs on authorized NPDES programs and permittees while also preserving the proposed implementation schedule and benefits of electronic reporting."

                        EPA Responses to USDA Comments
                On the Proposed NPDES Electronic Reporting Rule

Background:  Concentrated animal feeding operations (CAFOs) that are permitted under the NPDES permit program have a number of reporting requirements. These include:

   *    Notice of Intent (NOI): Many states use general NPDES permits to regulate their CAFOs. A CAFO can seek coverage under a state issued NPDES general permit by submitting a NOI [see requirement at 40 CFR 122.23(d)(1)]. This form provides the state NPDES program with enough information to determine whether the state should grant coverage under the state NPDES general permit or whether the CAFO should seek an individual NPDES permit.
   
   *    Notice of Termination (NOT): A CAFO that has coverage under a state issued NPDES general permit but wishes to terminate this coverage will submit this form. The state will use this form to determine if all regulatory requirements have been met by the CAFO and update its records as appropriate.

   *    CAFO Annual Program Report: NPDES-permitted CAFOs are required to submit an annual report to the State Director or Regional Administrator pursuant to 40 CFR 122.42(e)(4). This reporting requirement applies to CAFOs that are individually permitted or are permitted through a general permit. EPA created this reporting requirement in the 2003 and 2008 rulemakings. The annual report must include the following information: 
         o       the number and type of animals, whether in open confinement or housed under roof;
         o       estimated amount of total manure, litter, and process wastewater generated by the CAFO in the previous 12 months (tons or gallons);
         o       estimated amount of total manure, litter, and process wastewater transferred to other persons by the CAFO in the previous 12 months (tons or gallons);
         o       total number of acres for land application covered by the CAFO's nutrient management plan;
         o       total number of acres under control of the CAFO that were used for land application of manure, litter, and process wastewater in the previous 12 months;
         o       summary of all manure, litter, and process wastewater discharges from the production area that have occurred in the previous 12 months, including date, time, and approximate volume; 
         o       a statement indicating whether the current version of the CAFO's nutrient management plan was developed or approved by a certified nutrient management planner; and 
         o       specified supporting agricultural data and calculations including the actual crop(s) planted and actual yield(s) for each field, and the actual nitrogen and phosphorus content of the manure, litter, and process wastewater.

Importantly, the proposed NPDES Electronic Reporting Rule does not create any new reporting requirement for CAFOs (or any other NPDES regulated entity). This proposed rule is only changing the mode by which currently-required information is submitted (i.e., paper to electronic).  Additionally, EPA recognizes that some facilities may not yet have adequate broadband access at their location; therefore, the proposed rule has included provisions for temporary waivers from electronic reporting.  Such temporary waivers may be particularly beneficial to CAFOs located in remote areas.	
Page Number: 	83
Section Number:  IV  -  Discussion of Key Features of This Rule
USDA Comment Number: 1

Preamble Text: In most cases, a business or facility will only be required to submit such forms once during each permit cycle.  

USDA comment on text: This says information will be supplied each permit cycle.  But it states later CAFOs will submit the information yearly.  Why should CAFOs need to supply the information on a yearly basis rather than once per permit cycle as do other designated point sources?}

EPA Response:    EPA understands USDA's concern of the appearance of increased reporting requirements; however, that is not what this rule proposes.  CAFOs covered by an individual permit have a duty to re-apply for a new permit once their current permit expires. See 40 CFR 122.41(b). Similarly, CAFOs covered by a general permit are required to submit an NOI for each new applicable general permit. This is the same requirement for any facility that seeks coverage under a general NPDES permit. The CWA limits the duration of permit to fixed terms not to exceed five years. See CWA Section 401(b)(1)(B). Additionally, all permitted CAFOs (i.e., CAFOs that have an individual permit and CAFOs that are permitted through a general permit) are required to submit an annual report per 40CFR 122.42(e)(4), which summarizes NPDES related information about their operations. This annual reporting requirement under 40CFR 122.42(e)(4) was promulgated in 2003.  As there is no conflict between these two reporting requirements and no increase in reporting burden to CAFOs, EPA suggests no changes to the preamble text in response to this comment. 

Page Number: 	87
Section Number: IV - Discussion of Key Features of This Rule
USDA Comment Number: 2

USDA General Comment: There are a large number of data items that will have to be submitted by CAFOs on an annual basis.  A number of these will have to be supplied on a field specific basis, compounding the number of data items by the number of fields receiving CAFO manure.  The accompanying economic analysis to this proposed rule indicates that time involved with assembling and submitting the data on an electronic basis is negligible.  In the case of a CAFO, spreading manure on a large number of fields, this is not the case.  Gathering and supplying the information to EPA on an annual basis will be time and resource consuming, and will not provide EPA with any information that leads to better management of the CAFO.  The CAFO has to have a NMP that contains this information before a NPDES permit will be issued.  There is little reason for the information to be submitted to EPA annually, when it was submitted for the permit application.  Even submitting annual information on how many discharges and where discharges occur (to the specificity of actual latitude and longitude) probably does not mean a great deal given that the accompanying economic analysis to this proposed rule indicates that an annual average of 0.02 reported discharges  from permitted CAFOs, result in action by EPA.

EPA Response:  EPA thanks USDA for their comment, and understands their concern of increased reporting burden.  EPA plans to "carry forward" data from one year to the next as part of its new electronic reporting tool. NPDES permitted CAFOs will benefit by only having to update the data that has changed in the new reporting year. This would reduce the data entry burden for the NPDES permitted CAFO. EPA has successfully used this approach in the TRI-ME electronic reporting tool software, which is used for EPA's Toxics Release Inventory (TRI) program. 

As previously noted, the proposed rule does not change the amount of data that is currently required to be submitted under existing regulations.  Currently, CAFOs covered by a general permit are required to submit NOIs once per five year NPDES permit cycle and all permitted CAFOs are required to submit an annual report per 40CFR 122.42(e)(4), which summarizes NPDES related information about their operations. EPA accounted for the reporting burden for these reports when it promulgated the implementing regulations. The proposed NPDES Electronic Reporting Rule does not add any new reporting requirements for NPDES permitted CAFOs or any other NPDES regulated entity.   Also, the economic analysis for the proposed rule addressed the burden of the changing the existing reporting from paper to electronic. EPA suggests no changes to the preamble text in response to this comment. 

Page Number:   88
Section Number: IV - Discussion of Key Features of This Rule
USDA Comment Number: 3

USDA General Comment:  This information will have to be supplied to EPA on a yearly basis. Once EPA has the information, if there are not changes to the operation, then there is no real need to update the information with EPA.  Suggest updating the information with EPA at such time that the structures, animal capacity, or some other major point changes.

EPA Response: EPA thanks USDA for their comment. As noted above, the draft proposed rule is not changing the frequency of the existing regulatory requirements for NOIs, NOTs, or annual CAFO program reports; rather, the draft rule is changing the paper reporting requirements to electronic. Also as noted above, EPA plans to "carry forward" data from one year to the next as part of its new electronic reporting tool. NPDES permitted CAFOs will benefit by only having to update the data that has changed in the new reporting year. This would reduce the data entry burden for the NPDES permitted CAFO. 

Page Number: 	89
Section Number: IV - Discussion of Key Features of This Rule
USDA Comment Number: 4

Preamble Text:  The electronic submission of annual reports would help permitting authorities collect and process CAFO information more efficiently, and aid in the evaluation of the compliance status of NPDES-permitted CAFOs.  

USDA comment on text:  Are CAFOs being singled out for scrutiny by EPA more than other point sources?  What is the reason?  The accompanying economic analysis to this rule shows rates of discharge from permitted CAFOs that are much lower than from a number of other point source categories.  If CAFOs were discharging at a higher rate than other point sources, there might be call for greater examination, but in this instance it is probably not the case.  Recall the 2[nd] Circuit Decision on CAFOs -- EPA cannot presume discharge.

EPA Response:  EPA thanks USDA for their comment. The proposed rule does not single out CAFOs or another sector.  The proposed rule simply changes existing reporting requirements from paper to electronic.

The proposed NPDES Electronic Reporting Rule converts NOI and NOT reporting for all general permit (except the Pesticides General Permit, and the Vessels General Permit) covered facilities from paper to electronic. Likewise, there are a number of other program reports that EPA is converting from paper to electronic submissions (e.g., pretreatment, biosolids, sewer overflows, MS4s, and CAFOs). These program reports are described in Section IV of the preamble. EPA suggests no changes to the preamble text in response to this comment.
    
Page Number: 	225
Section Number: VII  -  Non-Monetary Benefits and Economic Analysis
USDA Comment Number: 5

USDA General Comment: Earlier in the proposed rule it mentions over 9000 CAFOs with general permits and that the whole universe is over 14000 CAFOs.  By using this number in the table, with the heading "number of permits" it gives the impression that over 14000 CAFOs have or will have permits (in the future).  Past court actions (second and fifth circuits) have stressed that EPA cannot presume a discharge, nor require a permit from CAFOs that do not discharge, or propose to discharge.  Therefore the number in the table needs to be dropped to the number that have permits.

EPA Response:  EPA thanks USDA for their comment.  EPA will update Table IV.1 and VII.1 the preamble to clarify EPA's estimate of the number of NPDES permitted CAFOs. In particular, EPA will use the following text is in Section IV of the preamble: "In general, EPA's Office of Water estimates there are approximately 14,400 large or medium CAFOs nationwide. The Office of Water estimates that of this universe, approximately 8,300 CAFOs have NPDES permits. Of the remaining large and medium CAFOs, it is unknown how many of them discharge and need permit coverage (see DCN 0029)." EPA notes that it's economic model uses a more conservative estimate of 9,000 CAFOs as having NPDES permits in order to provide a likely upper bound on the implementation costs for the proposed rule.

                    EPA Responses to NOAA-NMFS Comments on 
                   Proposed NPDES Electronic Reporting Rule

Page Number: 	1
Section Number:  Summary
NOAA-NMFS Comment Number: 1

General NOAA Comment: The e-reporting rule will improve the quality, completeness, and consistency of compliance and enforcement information available for NPDES authorized discharges.  NOAA Fisheries uses this type of information in our ESA Section 7 consultations to characterize baseline conditions throughout the range and critical habitat for our species and in our programmatic consultations with EPA when it plans to issue or re-issue General NPDES permits evaluate to what extent EPA:

   * knows or can reliably estimate the probable number, location, and timing of activities that will be authorized
   * knows or can reliably estimate the physical, chemical, or biotic stressors that are likely to be produced as a result of activities that would be authorized
   * has structured permit implementation to encourage, monitor, and enforce compliance

These elements help demonstrate whether and to what extent EPA can identify and address potential threats posed by the actions it authorizes to listed resources. Also note that e-reporting is not required for PGP and VGP permits.  

This does not pose a problem for NOAA Fisheries.  NOAA Fisheries consulted on both permits. The absence of e-reporting for the VGP will not impair the next Section 7 consultation on the reauthorization of the VGP, provided EPA implement the Additional Actions to Protect Listed Resources specified in the sections starting on page 45 of the Biological Opinion.  These conditions require EPA to develop a monitoring and compliance plan to assess the performance of the permit in protecting listed resources, along with a summary of inspection data provided to the Services annually.  EPA's implementation of the PGP is currently fulfilling the Reasonable and Prudent Actions (RPAs) specified in the Biological Opinion to protect NMFS species.  These include addressing our information needs by allowing NOAA fisheries review of NOIs for discharges within critical habitat along with annual reporting for discharges made within the critical habitat of NMFS listed species.

EPA Response:  EPA suggests no changes to the text. EPA thanks NOAA for their support of the rulemaking.

Page Number: 	26
Section Number:  II - Background
NOAA-NMFS Comment Number: 2

Preamble Text:  Therefore, EPA and the public do not currently have complete information or facilitated notification on these additional sources of pollution.  

NOAA-NMFS comment on text:  Facilitated notification for different HUCs or facilities (automatic e-mails) would assist NOAA Fisheries  - ESA Section 7 consultations by helping to demonstrate whether and how EPA's administration of the NPDES program addresses threats to listed resources.  The public, communities, NGOs, etc., might also want to set up notifications for waters of interest/concern.}

EPA Response:  EPA thanks NOAA for their comment but notes that this comment is outside the scope of this rulemaking. The features requested by NOAA in this comment would occur after states and EPA electronically collect NPDES program data, which is the focus of this rulemaking. EPA will use separate efforts to identify features that NOAA and other stakeholders would like to utilize with these electronic NPDES program data. EPA suggests no changes to the text. 

Page Number:   44
Section Number:  III  -  Purpose and Needs
NOAA-NMFS Comment Number: 3

Preamble Text:  The data should be current.  

NOAA-NMFS comment on text: Historical data on discharges is important for diagnosing the causes of aquatic impairments and characterizing events leading to baseline conditions for ESA section 7 consultations.  There needs to be a source for this information. We suggest this provision be revised to reflect that both historical and new/recent data provides value.

EPA Response:  EPA notes that historical data collected by states and EPA and transmitted to PCS or ICIS-NPDES will continue to remain available for all interested stakeholders. However, EPA also notes that the NPDES Electronic Reporting Rule does not require states and EPA Regions to input into ICIS-NPDES more NPDES program data than current policy requires prior to rule's implementation schedule. This also means that states and EPA Regions will not be required to input into ICIS-NPDES historical NPDES program data (e.g., states will not need to add DMRs for non-major facilities prior to the rule's implementation schedule). EPA suggests no changes to the text.

Page Number: 	89
Section Number: IV - Discussion of Key Features of This Rule
NOAA-NMFS Comment Number: 4

Preamble Text: Finally, EPA is soliciting comment on eliminating the reporting of "time" of discharge from the annual report [see 40 CFR 122.42(e)(4)(vi)]. EPA estimates that the reporting of the "date" of a discharge is sufficient for permitting and compliance determinations. EPA solicits comment on this proposed change.  

NOAA-NMFS comment on text: We do not believe it is advisable to eliminate the requirement to report the time of discharge.  There are important ecological considerations related to discharge timing.  Water bodies have diurnal dissolved oxygen and pH patterns and organisms have diurnal activity patterns.  As such, the time of discharge can influence the fate, transport, toxicity (e.g., pH - ammonia) and probability that organisms would be exposed to discharges.   Such information is helpful in diagnosing the causes of biotic assemblage impairments or adverse events (e.g., fish kills).  Fixed text for general time of day (e.g., predawn, morning, afternoon, evening, night) may be preferred to temporal precision (hh:mm:ss).

EPA Response:  EPA thanks NOAA for their comment. As stated, EPA is soliciting comment on maintaining or eliminating this data element. EPA will take this comment into consideration for the final rule. EPA suggests no changes to the text

Page Number: 	90
Section Number: IV - Discussion of Key Features of This Rule
NOAA-NMFS Comment Number: 5

Preamble Text: EPA is considering providing a temporary exception not to exceed 1 year...  

NOAA-NMFS comment on text: We suggest that the waiver be temporary and time limits be specified in the rule.

EPA Response:  EPA thanks NOAA for their comment. A key decision in this proposed rule is determining whether electronic reporting requirements would be relatively easy to meet for most of the NPDES-regulated universe of facilities. For example, 50 percent of rural residents have broadband. Although not a necessity, broadband access makes it easier to submit NPDES reports that would be required under this proposed rule. Therefore, broadband access or other measures of the availability of sufficient upload speed may serve as reasonable indicators regarding possible computer access difficulties, particularly in the more remote rural areas. At this time, EPA solicits comment on the need for such temporary waivers or exemptions as well as which criteria should apply for the granting of such temporary exemptions. This proposed rule includes provisions for temporary waivers extending up to a maximum of one year, but comments are sought on all of these options or any other viable options which might be suggested during the official comment process. EPA suggests no changes to the text as this temporary waiver is already reflected in the proposed rule CFR requirements.  

Page Number: 	97
Section Number: IV - Discussion of Key Features of This Rule
NOAA-NMFS Comment Number: 6

Preamble Text: EPA also solicits comment on whether these sewer overflow reports should be limited to sewer overflows at a threshold volume or include de minimis releases (minor volumes associated with routine operation and maintenance). Finally, EPA also solicits comment on whether the list of minimum federal data for sewer overflows and bypasses (Appendix A to 40 CFR 127) provide sufficient distinction between the different types of sewer overflows and bypasses.  

NOAA-NMFS comment on text:  De minimis reporting should be required, given that pathogens are the number one cause of aquatic impairments in the nation.  Nutrients and organic enrichment rank at number three and four, respectively, among impairments in waters of the US.  Further, small continuous discharges can contribute substantial pollutant loads into a waterbody.}

EPA Response:  EPA notes that proposed rule solicits comments on what SSOs (if any) should be exempt from electronic reporting (e.g., de minimis discharges such as minor volumes associated with routine operation and maintenance). EPA will take this comment into consideration for the final rule. EPA suggests no changes to the text.

Page Number: 	125
Section Number: IV - Discussion of Key Features of This Rule
NOAA-NMFS Comment Number: 7

Preamble Text:  At this time, EPA solicits comment on the need for such temporary waivers or exemptions as well as which criteria, such as duration of waivers, should apply for the granting of such temporary exemptions.  

NOAA-NMFS comment on text:  The need for temporary waivers in emergency situations is understandable.  Duration of waivers should be scaled to the duration of the upset.  NOAA Fisheries asks the following questions:  Should many discharges suffer an IT limiting incident at the same time, how would EPA prioritize reviewing paper reports?  Would EPA implement a triage system prioritizing review of reports from high risk dischargers or dischargers in sensitive areas?

EPA Response:  Understandably, it is difficult for EPA to anticipate all possible scenarios involved with large scale temporary exemptions for emergency situations. Nevertheless, EPA will work with states and NPDES regulated entities to develop a notification system to alert affected NPDES program and regulated entities when electronic reporting requirements are suspended and what steps must be take after the temporary emergency situation is stabilized. EPA suggests no changes to the text.

  EPA Responses to DoD Comments on Proposed NPDES Electronic Reporting Rule 

Page Number: 	2-3
Section Number: Summary
DoD Comment Number: 1

Preamble Text: This proposed rule would require that reports submitted in writing now (i.e., Discharge Monitoring Reports (DMRs), Notices of Intent to discharge in compliance with a general permit, and program reports) be submitted electronically by NPDES-permitted facilities to EPA through the National Environmental Information Exchange Network or to the authorized state, tribe, or territory NPDES program. 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-permitted facilities under existing regulations. 

DoD comment on text: Require states or third party vendors to develop completely web-based reporting tools to ensure compatibility with DoD computer systems. DoD is willing to work with EPA and/or test software systems to ensure compatibility.

EPA Response: In implementing the rule, various e-reporting tools will be developed by EPA, states, and possibly third party vendors.  EPA recognizes DoD's concern that these electronic reporting tools may not be compatible with DoD's computer systems; however, EPA cannot develop electronic reporting tools to be used exclusively by any one facility or agency.  There may be opportunities for DoD to work with EPA, states, and third party vendors during the development and testing phases to facilitate compatibility between the electronic reporting tools and DoD's computer systems. In particular, EPA notes that it's electronic reporting tools will be web based and will be able to work with any DoD computer that is web enabled.

Page Number: 	41
Section Number: III
DoD Comment Number: 2
 
 Preamble Text:  2. Transparency Improvements That Would Accrue from the Rule 

DoD comment: While confidential business information or enforcement-sensitive information is mentioned as being subject to an exclusion from release to the public, there is little to no mention of information that may be subject to an exclusion from release under the Freedom of Information Act (FOIA), 5 U.S.C. 552.  The Department of Defense (DoD) has unique infrastructure and operational security concerns.  Given these concerns, the Secretary of Defense has been given the authority to exempt certain information from release under the Freedom of Information Act (FOIA), 5 USC 552(b)(3).  One such exemption was defined in the National Defense Authorization Act of Fiscal Year 2012, Section 1091.   This section provides that the Secretary of Defense may exempt from disclosure, under the authority of 5 USC 552(b)(3), critical infrastructure security information.  40 CFR 2.105 recognizes the exemptions expressed in FOIA, Section 552(b).  Among those exemptions recognized is 5 USC 552(b) (3); providing that exempted information includes that information specifically exempted from disclosure by statute.  Further, 40 CFR 2.103 requires that when EPA receives a request for a record that originated with another Federal agency, EPA will consult with, or refer requests to, that other Federal agency.   

Additionally, DOD is concerned about the security of the state and local information technology systems.  It is not clear whether information that is submitted electronically to such systems will be sufficiently protected from inadvertent disclosure or hacking.   

Recommendation: DoD recommends that the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule incorporate changes reflecting FOIA limitations on releases.  Further request that a clause be added stating the following:  "To ensure the protection of DoD critical infrastructure and operational security, prior to releasing DoD information submitted pursuant to the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule, federal, state and local authorities will consult with DoD."  The following is a list of some additional proposed changes.  These changes seek to incorporate the concerns for releasing, to the public, that information which may be exempted from disclosure under the FOIA.

EPA response: The rule proposed today does not expand the data universe on information that may be gathered by various reports. Rather, only the means by which data are collected will be modified from submission by paper to electronic reporting. EPA proposes to include the following language in the preamble and regulatory text. 

Draft Preamble Language regarding "critical infrastructure security information"
Suggested Placement: Immediately Preceding Section IV

EPA and the Department of Defense (DOD) wish to clarify how this rule will intersect with recent amendments to the Freedom of Information Act (FOIA) as enacted in The National Defense Authorization Act of 2012 (NDAA). Under NDAA, the Department of Defense (DOD) may designate "critical infrastructure security information" that can be withheld from release under FOIA (see 10 USC §130e). If DOD receives a FOIA request for information on NPDES-regulated federal facilities, it may designate particular data as critical infrastructure security information that is then withheld from public release in response to the FOIA request. NPDES program data designated as critical infrastructure security information in response to a FOIA request will also be withheld from public release under this rule. DOD will contact EPA and identify the specific data elements for specific NPDES-regulated entities that are to be withheld from public disclosure under a FOIA request because it has been designated as critical infrastructure security information. 

EPA will not release information that has been designated as critical infrastructure security information in response to a FOIA request to the public. The critical infrastructure security information designation is expected to be used rarely for the type of information required to be electronically reported by this rule and any determination by DOD to withhold information from public release will be made at the data element level (see Appendix A to Part 127) for each DOD facility. Additionally, the DOD process for designating particular data as critical infrastructure security information (see DCN 0067) is prospective and does not affect data already publicly available (i.e., the DOD process will not be used to withdraw data that is already available to the public). In the instance where an NPDES program data element for a particular facility is designated as critical infrastructure security information in response to a FOIA request, a separate filtered set of data without the redacted information will be shared with the public; however, all NPDES program data will continue to be provided to EPA and the authorized state, tribe, or territorial NPDES program.

Draft CFR Text 

127.1  -  Purpose and Scope

(c) Under 10 USC 130e the Secretary of Defense may exempt Department of Defense "critical infrastructure security information" from disclosure under FOIA. NPDES program data designated as critical infrastructure security information in response to a FOIA request will be withheld from the public. In the instance where an NPDES program data element for a particular facility is designated as critical infrastructure security information in response to a FOIA request, a separate filtered set of data without the redacted information will be shared with the public; however, all NPDES program data will continue to be provided to EPA and the authorized state, tribe, or territorial NPDES program.

Page Number: 	253
Section Number: VIII
Comment Number: 3

DoD comment: Regulatory text at 40 CFR 123.41(a) should be amended to add the underlined text as shown to indicate that "If EPA obtains information from an authorized state NPDES program, which is not claimed to be confidential, EPA may make that information available to the public without further notice unless that information may be subject to an exemption from disclosure under the Freedom of Information Act, such as information containing DoD critical infrastructure security data.  In which case, EPA will consult with the agency submitting the information prior to making that information available to the public."  

-  Regulatory text at 40 CFR 123.45(a)(3) should be amended to add the underlined text as shown to indicate that "EPA shall exclude from public release any information which is specifically exempted from disclosure by statute, confidential business information or enforcement-sensitive information associated with the NNCR."

EPA response: See EPA's response to DoD Comment Number 2. 
