MEMORANDUM

TO:		Public Record for the NPDES Electronic Reporting Rule
		EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)	

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

DATE:		14 September 2015

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SUBJECT:	Notes from Technical Meeting with States (27 May 2015) [DCN 0229]
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Overview 

      This was the twenty-seventh meeting between EPA and individual representatives from authorized NPDES programs. These meetings provided greater clarity regarding public comments on the NPDES Electronic Reporting Rule (eRule). Participants are listed below in Tables 1 and 2. EPA is summarizing the notes from these discussions for the docket in order to provide transparency on EPA's outreach during the rulemaking process (see Table 3). EPA also met with other stakeholders to discuss public comments. 
      
Meeting Notes
      
     EPA (Mr. Carey Johnston) started the meeting by reminding state participants that in addition to raising questions during these meetings, states can email their questions on the proposed rule (including the data elements) to EPA. Questions on all aspects of the proposed rule can be sent to Mr. Johnston. Mr. Johnston also reminded everyone that this outreach does not constitute a decision-making body (see "Quick Reminder" section below).
     
     Mr. Johnston started the technical discussion by reviewing some state comments on the rulemaking on EPA's options for the final rule. The following is a summary of the discussion.

   1. Initial Recipient: Will this process be Opt-in or Opt-out? Will states have to affirmatively take action to sign up as the initial recipient for a data set?  
      
      As published in the supplemental notice to the proposed rule, EPA is considering an `opt-out' process for authorized state, tribe, or territory NPDES programs. Under this process, an authorized NPDES program must notify EPA within 120 days of the effective date of the final rule if it wishes EPA to be the Initial Recipient for a particular NPDES data group. If EPA receives no such notification, EPA will designate the authorized state, tribe, or territorial NPDES program as the Initial Recipient for all NPDES data groups.

   2. State Readiness Criteria: 
      
      a. Will EPA phase in the participation rate requirements (e.g. Year 1 = 20%, Year 2 = 40%, Year 3 = 60%, Year 4 = 80%, Year 5 = 90%)? Is 90% still the target goal?
         
         EPA solicited comment on the 90 percent participation rate metric that EPA used to develop its implementation plan. Commenters noted difficulties in outreach and training for the large number of NPDES-regulated entities that will need to switch from paper to electronic reporting. As published in the supplemental notice to the proposed rule, EPA is considering providing more time for authorized NPDES programs to switch their processing of Phase 2 NPDES program data (e.g., general permit reports, program reports) from paper to electronic. This additional implementation time can help authorized NPDES programs build or adopt electronic reporting tools for Phase 2 data as well as register and train NPDES regulated entities. EPA is still considering the proposed one-year schedule for the DMR data flow since many authorized NPDES programs and NPDES permittees are already e-reporting DMRs, many using NetDMR and eDMR tools. EPA is also considering the retention of the 90 percent participation rate goal as this single simple measure will be an effective tool to prompt NPDES regulated entities and authorized NPDES programs to switch from paper to electronic reporting within a reasonable time period.
         
         EPA is considering whether to only include the 90 percent figure in the preamble to the final and the accompanying Information Collection Request (ICR) as a goal to promote electronic reporting and as a reasonable estimate of the number of entities that EPA may directly contact. If this goal is included in the preamble, EPA will work with states if there is a significant delay in the adoption of electronic reporting and re-assess the 90 percent participant rate goal as necessary.
         
         Finally, EPA anticipates that the use of its CWA authority to compel electronic reporting will likely not be a widespread occurrence as electronic reporting, over the long term, reduces burden for the reporter. EPA estimates that any use of its CWA authority to compel electronic reporting will taper off over time as more NPDES-regulated entities utilize electronic reporting and as we learn more about electronic reporting. It is also important to note that many facilities have already made the switch to electronic reporting (e.g., most DMR filers in Ohio are using Ohio's e-DMR tool).

      b. If EPA uses their authority to require electronic submission, will EPA require the data to come to the state vs EPA?
         
         EPA is proposing to phase in the electronic reporting requirements of this final rule over several years. In accordance with the proposed schedule, and as a means to "fill in the gaps" where NPDES-regulated entities are not yet reporting electronically, EPA is proposing to use its authority as appropriate under CWA sections 101, 304(i), 308, 402(b), and 501 to require NPDES-regulated entities to electronically report their NPDES program data (Appendix A to 40 CFR 127). EPA initially proposed to have these data come directly to EPA. Authorized NPDES programs suggested that instead EPA should require NPDES regulated entities to use state, tribe, or territorial electronic reporting systems, which are in compliance with the final rule, as this would be more efficient. As published in the supplemental notice, EPA is considering the adoption of this approach.

      c. States may choose to manually enter data  -  will those facilities be vulnerable to 3rd party lawsuits based on the rules requirements?
         
         EPA does not see the potential for NPDES regulated entities to be subject to 3[rd] party lawsuits when these entities are properly submitting their NPDES data in accordance with a state approved waiver. EPA is considering whether to provide authorized NPDES programs with more flexibility in how they may grant waivers. This can help authorized NPDES programs better implement electronic reporting. 
 
   3. Data Correction - Is EPA clearly articulating in the rule the roles and responsibility for addressing data discrepancies? 
      
      EPA is considering how best to eliminate the potential for data discrepancies. In particular, EPA is considering whether it should require NPDES regulated entities to use state, tribe, or territorial electronic reporting systems, which are in compliance with the final rule, as this would be more efficient. EPA also confirm that the proposed rule does not change the current requirements or definition for the `Copy of Record.'  Furthermore, EPA confirmed that the permitting authority remains the data steward for the information collected under the proposed rule. Under current practice, authorized NPDES programs can make corrections to the data it has already submitted to EPA at any time. This proposed rule does not change EPA's error correction process.
      
   4. Unpermitted Facilities - Is EPA planning to require electronic data submission for unpermitted facilities? 
      
      This proposed rule does not change the existing requirements for NPDES programs to report information on certain unpermitted facilities to EPA. Under the 2014 Clean Water Act National Pollutant Discharge Elimination System Compliance Monitoring Strategy authorized NPDES programs can propose an alternative Compliance Monitoring Strategy (CMS) plan, which could include the state's plan to conduct "focused inspections" or "off-site desk audits" instead of "comprehensive inspections" for certain facilities. As a condition for EPA approval of the alternative CMS plan, the state must commit to share the compliance monitoring data for the focused inspections and/or off-site desk audits with EPA. For more details, see Part 1 of the 2014 NPDES CMS. Additionally, EPA policy calls for authorized NPDES programs to share compliance monitoring data with EPA on unpermitted facilities found to be in violation of the Clean Water Act (e.g., discharging without an NPDES permit).  
 
   5. Construction Stormwater - Did EPA agree that the construction stormwater universe should be optional unless an enforcement inspection/action has occurred?
      
      As an alternative to use of a CROMERR electronic reporting system one commenter suggested that EPA modify the final rule to allow initial recipient the option to use automatic identification and data capture technology [e.g., two dimensional barcodes such as Quick Response (QR) codes, optical character recognition]. In particular, in discussions with EPA, authorized NPDES programs have noted their difficulty in getting construction operators to apply for and maintain electronic signatures for use with CROMERR electronic reporting systems for stormwater related discharges. Authorized NPDES programs suggested that EPA provide some flexibility in the final rule that would allow construction operators the ability to electronically submit data from construction stormwater general permit reports but without an electronic signature. EPA solicited comment on this approach in the supplemental notice to the proposed rule. Several comments expressed support for EPA to include this option in the final rule as a means to provide authorized NPDES programs with more options in implementing the final rule. EPA is considering the option for the initial recipient, which may also be the authorized NPDES program, to use automatic identification and data capture technology for construction stormwater general permit reports (i.e., NOIs, NOTs, NECs, LEWs).
      
      EPA is also considering the option to only required to share with EPA SEV data from a construction stormwater inspection when the authorized NPDES program also issues a formal enforcement action against the inspected construction site. As noted in the proposal, EPA made this distinction based on the large number of facilities in this segment of the NPDES universe (approximately new 200,000 construction sites each year).

   6. Implementation Schedule - If EPA is not allowing state-specific implementation plans, how much flexibility will each state be provided to customize their implementation approach? How much total time is EPA going to give states?
      
      As noted above, EPA is considering the retention of the proposed one-year schedule for the DMR data flow since many authorized NPDES programs and NPDES permittees are already e-reporting DMRs, many using NetDMR and eDMR tools. EPA is considering the option to allow authorized NPDES programs to have five years to begin electronically collecting, managing, and sharing the remaining set of data in Appendix A in 40 CFR 127. This data include: (1) general permit reports [Notice of Intent to be covered (NOI); Notice of Termination (NOT); No Exposure Certification (NEC); Low Erosivity Waiver (LEW)]; Biosolids Annual Program Report (where the state is the authorized NPDES biosolids program); and all other remaining NPDES program reports (e.g., CAFO Annual Report, Pretreatment Program Annual Report).  EPA is considering the option where states will be required to submit to EPA and implementation plan within one year after the effective date of the rule with key milestones describing how they will implement the Phase 2 data collection.
 
   7. Waivers - What is the complete list of waiver justifications or did EPA decide to allow states to set the criteria? 
      
      As noted in the supplemental notice  -  EPA is considering whether to provide authorized NPDES programs with more flexibility in how they may grant waivers. EPA is considering whether the waiver provision should only have the following two requirements: (1) temporary waivers cannot exceed five years; and (2) authorized NPDES programs must seek EPA review and approval on how they plan to implement waivers every five years. EPA is considering to require states to include their waiver process in the implementation plan they submit to EPA.  This could allow EPA and authorized NPDES programs to assess the effectiveness of the waiver process against advances in information technology.

   8. Resources - During the implementation period, will OECA actively pursue §106 funding increases to support the NPDES eReporting Rule implementation?
      
      This is not addressed by the rulemaking. However, OECA continues to advocate for §106 funding increases and other funding mechanisms to support the NPDES eReporting Rule implementation.

   9. Will the final rule or associated materials articulate all of the other areas where states can receive support to implement the rule? (relate grant programs, use of NeT, use of the CROMERR Shared Services, new dedicated EPA resources to support the transition, updated electronic permit application forms, etc.)   
      
      Yes. EPA is currently developing a suite of tools and resources to help states implement electronic reporting. These tools and resources will be made available through a new website, online training, printed materials, webinar training, individual training, and dedicated staff.



Quick Reminder
   *    The technical workgroup is not a decision-making body. Members of the workgroup provide clarity on their comments and suggest options for consideration by EPA and state senior management.
   
   *    There are no formal quorum rules for the workgroup. Scheduled teleconferences will proceed with whichever workgroup members call in to participate.

   *    There will be no voting or consensus of the workgroup. Instead, members of the workgroup are providing individual input reflecting their various perspectives.

   *    Summaries of the workgroup's discussions will be prepared for and reviewed by the workgroup, for presentation to EPA senior management and other states and the rulemaking record.


Table 1: State Technical Workgroup Members  -  27 May 2015

                                 Main Contact
                             State or Organization
                              Main Contact Email
                         State/Org. Present? (Yes/No)
                                 Sean  Rolland
                                     ACWA
                             srolland@acwa-us.org
                                      Yes
                                 Karen Lechner
                                      AK
                           karen.lechner@alaska.gov
                                      Yes
                                 Christy Monk
                                      AL
                             cvm@adem.state.al.us
                                      Yes
                                 Eric Cleckler
                                       
                          ecleckler@adem.state.al.us
                                       
                                  Glenda Dean
                                       
                             gld@adem.state.al.us
                                       
                                 Teresa Marks
                                      AR
                            marks@adeq.state.ar.us
                                      No
                                   Pat Goff
                                       
                             goff@adeq.state.ar.us
                                       
                                   Mo Shafii
                                       
                            shafii@adeq.state.ar.us
                                       
                                 Karen Bassett
                                       
                           bassett@adeq.state.ar.us
                                       
                                 David Ramsey
                                       
                            ramsey@adeq.state.ar.us
                                       
                                Ellen Carpenter
                                       
                          carpenter@adeq.state.ar.us
                                       
                                Wendy LeStarge
                                      AZ
                           lestarge.wendy@azdeq.gov
                                      No
                                 Robin Belley
                                       
                            belley.robin@azdeq.gov
                                       
                                  David Lelsz
                                       
                            lelsz.david@azdeq.gov;
                                       
                         Darren Polhemus             
                                      CA
                         dpolhemus@waterboards.ca.gov
                                      No
                       Renee Purdy                      
                                       
                        renee.purdy@waterboards.ca.gov
                                       
                        Deborah Smith                  
                                       
                           dsmith@waterboards.ca.gov
                                       
                       Vicky Whitney                   
                                       
                          vwhitney@waterboards.ca.gov
                                       
                                  Andy Putnam
                                      CO
                           andrew.putnam@state.co.us
                             goff@adeq.state.ar.us
                                      No
                                 Elisa Willard
                                       
                           elisa.willard@state.co.us
                                       
                                 Bob Zimmerman
                                      DE
                         robert.zimmerman@state.de.us
                          stephanie.bower@state.de.us
                                      Yes
                                   Tom Tyler
                                     ECOS
                                ttyler@ecos.org
                                      No
                                  Chris Klena
                                      FL
                         chris.m.klena@dep.state.fl.us
                                      Yes
                              Jessica Kleinfelter
                                       
                      jessica.kleinfelter@dep.state.fl.us
                                       
                                 Edward Smith
                                       
                        edward.c.smith@dep.state.fl.us
                                       
                               Frances Carpenter
                                      GA
                       frances.carpenter@dnr.state.ga.us
                                      No
                                Scott Miyashiro
                                      HI
                        scott.miyashiro@doh.hawaii.gov
                                      No
                                 Tom Easterly
                                      IN
                             teasterl@idem.in.gov
                              ckoontz@idem.in.gov
                                      Yes
                               Jeremy Chenevert
                                       
                             jcheneve@idem.in.gov
                                       
                                 Mark Stanifer
                                       
                             mstanife@idem.in.gov
                                       
                               Courtney Cswercko
                                      IA
                        courtney.cswercko@dnr.iowa.gov
                                      No
                                 Ed Dillingham
                                      KS
                            edillingham@kdheks.gov
                                      No
                                 Steve Caspers
                                       
                              scaspers@kdheks.gov
                                       
                             Shelly Shores-Miller
                                       
                              sshoresm@kdheks.gov
                                       
                                Shawn Hokanson
                                      KY
                             shawn.hokanson@ky.gov
                                      No
                                  Grace Scott
                                      MI
                              scottg@michigan.gov
                                      Yes
                                Carla Davidson
                                       
                            davidsonc@michigan.gov
                                       
                                 Ruth Wallace
                                      MO
                            ruth.wallace@dnr.mo.gov
                                      Yes
                                  Walter Fett
                                       
                            walter.fett@dnr.mo.gov
                                       
                              Christopher Miller
                                       
                            epermitting@dnr.mo.gov
                                       
                                  Tamara Dahl
                                      MN
                            tamara.dahl@state.mn.us
                                      No
                                 Paul Scheirer
                                       
                           paul.scheirer@state.mn.us
                                       
                                  John Murphy
                                    NEIWPCC
                              jmurphy@neiwpcc.org
                                      No
                        Deborah Gore                   
                                      NC
                            deborah.gore@ncdenr.gov
                                      No
                        Bradley Bennett               
                                       
                          bradley.bennett@ncdenr.gov
                                       
                                 Jason Lonardo
                                      NJ
                         jason.lonardo@dep.state.nj.us
                                      Yes
                                 Julio Collazo
                                       
                         julio.collazo@dep.state.nj.us
                                       
                                 Robert Wither
                                      NY
                          rewither@gw.dec.state.ny.us
                                      No
                                 Joseph DiMura
                                       
                          jxdimura@gw.dec.state.ny.us
                                       
                      Alan Tinney                        
                                  Dave Gaskin
                                      NV
                              atinney@ndep.nv.gov
                                      No
                                       
                                       
                              dgaskin@ndep.nv.gov
                                       
                    Brian Hall                             
                                      OH
                            brian.hall@epa.ohio.gov
                                      No
                     Erin Sherer                          
                                       
                           erin.sherer@epa.ohio.gov
                                       
                             Shellie Chard-McClary
                                      OK
                       shellie.chard-mcclary@deq.ok.gov
                                      Yes
                                  Roy Walker
                                       
                             roy.walker@deq.ok.gov
                                       
                                 David Pruitt
                                       
                            david.pruitt@deq.ok.gov
                                       
                                 Jim Billings
                                      OR
                         billings.jim@deq.state.or.us
                                      Yes
                                 Sean Furjanic
                                      PA
                               sefurjanic@pa.gov
                                      No
                                Kent Woodmansey
                                      SD
                          kent.woodmansey@state.sd.us
                                      No
                                   Tim Flor
                                       
                             tim.flor@state.sd.us
                                       
                                Albert Spangler
                                       
                          albert.spangler@state.sd.us
                                       
                               Lawrence Bunting
                                      TN
                           lawrence.bunting@tn.gov  
                                      Yes
                                 Yatasha Moore
                                       
                            yatasha.moore@tn.gov   
                                       
                                  Kim Wilson
                                      TX
                           kim.wilson@tceq.texas.gov
                                      No
                               Rebecca Villalba
                                       
                        rebecca.villalba@tceq.texas.gov
                                       
                                 Lynley Doyen
                                       
                          lynley.doyen@tceq.texas.gov
                                       
                               Kimberly Shepard
                                       
                        kimberly.shepard@tceq.texas.gov
                                       
                                 Jeff Studenka
                                      UT
                              jstudenka@utah.gov
                                      No
                                 Jerome Brooks
                                      VA
                        jerome.brooks@deq.virginia.gov
                                      No
                                Deborah Debiasi
                                       
                       deborah.debiasi@deq.virginia.gov
                                       
                                  Phani Eturu
                                       
                         phani.eturu@deq.virginia.gov
                                       
                                Stephen Bernath
                                      WA
                              sber461@ecy.wa.gov
                                      No
                                  Dave Knight
                                       
                              dakn461@ecy.wa.gov
                                       
                                  Nancy Kmet
                                       
                              nkme461@ecy.wa.gov
                                       
A state representative from West Virginia also participated in this meeting.

Table 2: EPA Technical Workgroup Members

                                     Name
                                  EPA Office 
                                     Email
                               Present? (Yes/No)
                                John Dombrowski
                                 OECA/OC/ETDD
                            dombrowski.john@epa.gov
                                      Yes
                                  Andy Hudock
                                 OECA/OC/ETDD
                             hudock.andrew@epa.gov
                                      Yes
                                   Lisa Lund
                                 OECA/OC/ETDD
                               lund.lisa@epa.gov
                                      Yes
                                Carey Johnston
                                 OECA/OC/ETDD
                            johnston.carey@epa.gov
                                      Yes
                                 Jackie Clark
                                  OW/OWM/WPD
                             clark.jackie@epa.gov
                                      Yes
                                 Aditi Prabhu
                                    OGC/WLO
                             prabhu.aditi@epa.gov
                                      No
                                 David Apanian
                                   Region 4
                             apanian.david@epa.gov
                                      Yes
                                  Sandra Chew
                                   Region 9
                              chew.sandra@epa.gov
                                      No
                                  Glynis Hill
                                 OP/ORPM/PRAD
                              hill.glynis@epa.gov
                                      No

Other EPA representatives included Region 1, 3, 5, 6, 8, and 10.
Table 3: State Technical Workgroup Discussions to Discuss Public Comments
      
                                      DCN
                                     Date
Topic
Data Source
                                   DCN 0219
                                  02/05/2015
Basic Facility and Permit Data
Ind. Permit Applications/NOIs
                                   DCN 0220
                                  02/12/2015
Basic Violation and Enforcement Action Data 
States & Ind. Permit Applications/NOIs
                                   DCN 0221
                                  02/26/2015
Municipal Separate Storm Sewer System (MS4) Information
Ind. Permit Applications/NOIs & MS4 Program Report
                                   DCN 0222
                                  03/05/2015
Construction and Industrial Stormwater Information
Ind. Permit Applications/NOIs
                                   DCN 0223
                                  03/12/2015
CSO & Collection System Information & Sewer Overflow Data
Ind. Permit Applications/NOIs & Sewer Overflow Event Reports
                                   DCN 0224
                                  03/19/2015
Pretreatment Data
Ind. Permit Applications/NOIs & Annual POTW Pretreatment Program Reports, CIU/SIU Reports When EPA or State is Control Authority
                                   DCN 0225
                                  03/26/2015
Cooling Water and Thermal Variance Data
Ind. Permit Applications/NOIs
                                   DCN 0226
                                  04/02/2015
Biosolids Data
States & Ind. Permit Applications/NOIs & Annual Biosolids Reports
                                   DCN 0227
                                  04/09/2015
CAFO Data
Ind. Permit Applications/NOIs & Annual Biosolids Reports
                                   DCN 0228
                                  05/13/2015
Review of Appendix A
All NPDES program data
                                   DCN 0229
                                  05/27/2015
Review of State Representative Questions to EPA
All NPDES program data


