MEMORANDUM

TO:		Public Record for the NPDES Electronic Reporting Rule  -  Phase 2 Extension
		EPA Docket Number EPA-HQ-OECA-2019-0408 (www.regulations.gov)	

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

DATE:		30 October 2019

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SUBJECT:	Notes from State Outreach Meeting (29 October 2019) [DCN 0010]
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Overview

EPA convened this meeting with state NPDES program staff to discuss initial concepts for the NPDES eRule Phase 2 Extension Rule. The meeting was chaired by Mr. Carey Johnston (EPA/OECA). Mr. Johnston provides an overview of the three main aspects of the NPDES eRule Phase 2 Extension Rule:

 Phase 2 Compliance Dates
 Alternative Phase 2 Compliance Dates
 Clarifying Edits for More Efficient Implementation & 2019 NPDES Updates Rule Changes

Mr. Johnston also made the following announcements before starting the discussion with state staff.

 This meeting is not a venue for a formal decision-making body. Meeting participants are expected to individually develop, research, and evaluate options for their own consideration.
 There are no formal quorum rules for this meeting. Scheduled teleconferences will proceed with whomever can participate.
 There will be no formal voting or consensus of meeting participants. Instead, meeting participants are expected to try to develop recommendations reflecting their individual various perspectives, not achieve consensus.
 Summaries of the meeting discussions will be documented for the rulemaking record. The discussions summaries will outline the major elements of the discussions and feedback.

Mr. Randy Hill (EPA) thanked Sean Rolland (ACWA) for his help in gathering state NPDES program staff to participate in this meeting. Mr. Johnston also noted that this meeting will not be the only time states can provide input to EPA. This forthcoming proposed rulemaking will be made available to states and the public through a notice and comment rulemaking process.

Phase 2 Compliance Dates

EPA provided an overview of how it plans on changing the Phase 2 dates in the NPDES regulations (Parts 122, 127, 403, and 503). EPA noted that it will propose changing all references to the December 21, 2020, date to December 21, 2023. EPA will also include new language that will reference two new provisions for alternative compliance dates. EPA is changing the dates in Table 1 to 40 CFR 127.16 as well as in the implementing NPDES regulations (Parts 122, 403, and 503). The following is an example of how EPA is proposing to change the regulatory text for the Low Erosivity Waiver electronic reporting requirement:

Low Erosivity Waivers - Amend § 122.26(b)(15)(i)(C) to read as follows:
As of December 21, 20230 or an EPA approved alternative date (see 40 CFR 127.24(e) or (f)) all certifications submitted in compliance with paragraphs (b)(15)(i)(A) and (B) of this section must be submitted electronically by the owner or operator to the Director or initial recipient, as defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR part 3 (including, in all cases, subpart D to part 3), §122.22, and 40 CFR part 127. Part 127 is not intended to undo existing requirements for electronic reporting. Prior to this date, and independent of part 127, owners or operators may be required to report electronically if specified by a particular permit or if required to do so by state law.
Ms. Christy Monk (Alabama DEM), Ms. Laurie Fleet (Texas CEQ), and Mr. David Pruitt (Oklahoma DEQ) asked about how EPA will handle the scenario where states are collecting the Phase 2 data but EPA is not ready to receive these data. Mr. Johnston noted that this topic is covered in the second aspect of the NPDES eRule Phase 2 Extension Rule with the proposed alternative compliance date provisions (40 CFR 127.24(e) or (f)).
   
Alternative Phase 2 Compliance Dates

Mr. Johnston outlined the basic concepts of the proposed alternative compliance date provisions. He noted that the proposed language at 40 CFR 127.24(e) would provide a means for states to request more time beyond December 21, 2023 to implement Phase 2 of the NPDES eRule. Mr. Johnston provided an example of how states can use this new provision. Under 40 CFR 127.24(e) a state may submit a request to EPA for an alternative compliance date for electronic reporting of one or more general permit reports, program reports, and related data elements (see Table 2 to appendix A). EPA is proposing to limit each alternative compliance date request to three years. EPA sought comment on the following conditions for this new alternative compliance date provision:

 It is the duty of the authorized NPDES program to re-apply for a new alternative compliance date. 
 The alternative compliance date request must:
 be submitted to EPA by the Director, as defined in 40 CFR 122.2;
 identify each general permit, program report, and related data elements covered by the request and the corresponding alternative compliance dates;
 identify each facility covered by the request and the corresponding alternative compliance dates (Mr. Johnston noted that this requirement only will apply if the request covers some but not all facilities within the general permit or program report requirement);
 be submitted 120 days prior to the compliance dates in Table 1 to 40 CFR 127.16 or a previously EPA approved alternative compliance date; 
 describe how the program will provide notice to NPDES permittees, facilities, or entities covered by the request if EPA approves the request; and
 provide a rationale for the delay and enough details (e.g., tasks, milestones, roles and responsibilities, necessary resources) to clearly describe how the program will successfully implement electronic reporting for general permit, program report, and related data element covered by the request.

Mr. Johnston noted that EPA is proposing to include a requirement in this new alternative compliance date provision for EPA to review each alternative compliance date request and approve or reject the request within 120 days. EPA will also provide notice to the authorized NPDES program. The new alternative compliance date provision also allows the authorized NPDES program to re-apply if the initial request is rejected by EPA.

EPA is also proposing to include in this alternative compliance date provision a requirement for EPA to update its website information on each alternative compliance date request and the corresponding Agency approval or rejection notice. EPA is also proposing to update its website to clearly identify the approved alternative compliance dates for each facility, general permit report, program report, and related data element by authorized NPDES program.

A state representative asked about the scenario where EPA was not able to receive Phase 2 data from states. EPA noted that this scenario is covered in the second alternative compliance date provision (40 CFR 127.24(f)). Mr. Johnston noted that he would discuss this in more detail later in the meeting. 

A state representative asked if there would be a way to subscribe to the website to see if there is new information available (e.g., EPA approves a new alternative compliance date in response to a state request). Mr. Hill noted that the mechanism for communicating this information is still being developed but that we would do our best to get the information out to states through multiple channels. 

Ms. Courtney Cswercko (Iowa DNR) asked if EPA could provide notice to the state with respect to the state's alternative compliance date request. EPA noted that the alternative compliance date provisions include a requirement for EPA to provide notice to states.

Ms. Cswercko suggested that the alternative compliance date provision for states not include a requirement for states to, "describe how the program will provide notice to NPDES permittees, facilities, or entities covered by the request if EPA approves the request." She noted that this seems unnecessary as states are already coordinating with NPDES-regulated entities for implementing the NDPES eRule. Mr. Rolland (ACWA) noted that this language sounds like a best practice and not a regulatory requirement. Mr. Johnston noted that EPA will consider this request. 

A state representative asked if EPA could include a specific URL in the alternative compliance date provisions so that states and NPDES-regulated entities can easily identify all approved alternative start data requests and approved dates. Mr. Johnston noted that EPA will consider this request.

Ms. Monk asked about EPA's rational for limiting the alternative compliance dates to three years per request. 
Mr. Johnston noted that three years is a reasonable amount of time to plan and develop electronic reporting tools and data sharing protocols. He also noted that this allows for states to request funds (either through state funding or through EPA's Exchange Network grant program). Finally, Mr. Johnston noted that the Information Collection Request (ICR) accompanying the proposed rule is typically re-authorized on a three-year cycle. The ICR authorizes the burden associated with the new state waiver requests. Limiting each alternative compliance date request to three years will allow EPA to more accurately estimate the burden associated this this new burden.

Ms. Monk asked if EPA's national NPDES data system (ICIS-NPDES) will be re-worked in three years. She doubted that ICIS-NPDES will be ready in three year to receive the eRule Phase 2 data. Mr. Johnston noted that implementing the NPDES eRule and re-working ICIS-NPDES are occuring simultaneously. He noted that the second alternative compliance date provision (40 CFR 127.24(f)) allows EPA to grant states more time if EPA is not ready to receive one or more general permits, program reports, or related Phase 2 data elements.

Ms. Monk noted that it would reduce burden if the new provisions could allow EPA to approve extensions of five years instead of three years. Mr. Hill noted that three years is a reasonable amount of time for states to plan and develop electronic reporting tools. The three-year time frame helps keep implementation moving forward as expeditiously as possible.

Mr. Pruitt asked if EPA could take an alternative approach to first finish the necessary updates to ICIS-NPDES and use that completion date as a starting point for Phase 2 implementation. He noted that his state would like ICIS-NPDES to be finished before they start collecting and sharing any eRule Phase 2 data. He prefers this approach as opposed to implementing the Phase 2 data collection and sharing in stages. Other state representatives agreed with the comment from Mr. Pruitt.

Mr. Johnston noted that EPA considered the approach outlined by Mr. Pruitt and decided that the best approach is to push the Phase 2 date out three years and then create new flexibility for states to request and for EPA to approve alternative compliance dates that would give states even more time. Mr. Hill noted that is possible that there could be more than one way in which EPA collects and manages these data. For example, he is planning to develop electronic reporting tools in EPA's software for the program reports over the new three years.

Mr. Strickland (Wisconsin DNR) noted that technology might change within three years. He noted that EPA might go in a different direction in collecting and managing the NPDES data. He noted that states are worries about investing significant sums of money to upgrade their systems to collect and share Phase 2 data and they be required to make updates to reflect any changes in EPA's ICIS-NPDES. Mr. Hill noted that one of EPA's strongest design goals to not have that happen. 

Ms. Jaime Bates (Vermont DEC) noted that there are many components to the issue of collecting, sharing, and managing Phase 2 data. She noted that some states use open node and exchange network, which are compatible with EPA's national NPDES data system (ICIS-NPDES). Ms. Bates want to know if EPA is providing communication to the public on any changes to its ICIS-NPDES. She noted that it can be difficult to inform NPDES-regulated entities how much of ICIS-NPDES is still working as there are a lot of components. 

Mr. Johnston noted that he is hearing that states would like EPA to provide more information on any future changes to ICIS-NPDES. Mr. Johnston noted that any future development will build off of the basic concepts in the Clean Water Act and the NPDES program (e.g., facilities, permits, inspections, enforcement). Mr. Hill noted that EPA has a lot of the existing networks in place. We have the Exchange Network ICIS-NPDES Integrated Project Team and several eRule implementation work groups (e.g., EPA-state NNCR work group). He noted that these workgroups are working on these issues around the edges. Mr. Hill stated that he is interested in hearing how EPA can improve its communication on any future changes to ICIS-NPDES.
      
Ms. Fleet noted that they have a problem now with their prior communication with NDPES permittees. They noted that they have included electronic reporting requirements in NPDES permits and now EPA is proposing to delay the Phase 2 compliance date. She noted that they have, "hodgepodge of provisions for electronic reporting for biosolids." She asked two related questions: (1) How are we supposed to deal with the permits that already have this listed as a permit provision?; and (2) What do we do with the new permits that don't already have the new provision? We're mid-implementation and we need guidance.

On the first question Mr. Hill noted that EPA's NPDES regulations allow for states to make a minor modification of NPDES permits (40 CFR 122.63). This eliminates much of the process associated with modifying a permit. Ms. Fleet noted that Texas state implementing regulations prevent them from using this flexibility provided in EPA's NPDES regulations. Regarding the second question, Mr. Johnston noted that any new citation to the Phase 2 date can include reference to the forthcoming alternative state provisions if it is finalized: "As of December 21, 2023 or an EPA approved alternative date (see 40 CFR 127.24(e) or (f))." Mr. Johnston noted that this language can only be used after EPA takes final action of the proposed rulemaking. Mr. Johnston also noted that he is working with TX CEQ staff on their biosolids annual report to evaluate options. Texas has elected to use EPA's NPDES Electronic Reporting Tool ("NeT").

Clarifying Edits for More Efficient Implementation & 2019 NPDES Updates Rule Changes

Mr. Johnston closed out the meeting with an overview of the three aspects of the NPDES Phase 2 Extension rulemaking. He noted that he would go into more details on each proposed change at the next meeting. He shared with meeting participants that some edits are very minor (e.g., correcting CFR titles) and other edits reflect state questions on NPDES eRule implementation and recent changes to the NPDES program and applications. For example, EPA noted that Ms. Monk previously asked if the electronic reporting requirement for Notice of Terminations (NOTs) applies to individual NPDES permits. Mr. Johnston stated that the currently regulatory language could be interpreted to mean that individual NPDES permits must file their NOTs electronically. He noted that one suggested change in the forthcoming NPDES Phase 2 Extension rulemaking would make it clear that this electronic reporting requirement only applies to general permit covered facilities. 

Mr. Johnston asked if there were any other comments before he closed out the meeting. Mr. Pruitt asked if it were possible for EPA to start engaging with states on any future updates to ICIS-NPDES. He noted that success that EPA and states had when they developed the data elements for the NPDES eRule and the implementing technical workgroups. He suggested that EPA start a workgroup with states to talk about ICIS-NPDES changes. Mr. Strickland seconded this suggestion. Ms. Courtney Cswercko (Iowa DNR) noted that some ICIS data acceptance protocols make data transfer from state NPDES systems to ICIS-NPDES difficult and sometimes impossible.

Ms. Monk asked if EPA could provide the working document that EPA is using for the proposed rule. Mr. Hill noted that his staff will need to first touch base with other EPA offices.

Participants
 Carey Johnston (EPA)
 Randy Hill (EPA) 
 Sean Rolland (ACWA)
 Christy Monk (Alabama) 
 Veronica Kenkel (Colorado) 
 Courtney Cswercko (Iowa) 
 David Pruitt (Oklahoma) 
 Laurie Fleet (Texas) 
 Jamie Bates (Vermont) 
 Wade Trickland (Wisconsin) 
 Courtney Tuxbury (EPA) 
 Jane Wallace (EPA) 
 Jonathan Haynes (Texas) 
 Ann Ruthstrom (Texas) 
 Stacia Bax (Missouri) 
 Tami Dahl (Minnesota) 
