THE NEW CLEAN WATER ACT E-REPORTING RULE: WHAT ELECTRONIC DATA REPORTING AND SHARING MEAN FOR YOUR OPERATIONS By: Damien M. Schiff Principal Attorney Pacific Legal Foundation

ROAD MAP  Background on data reporting and e- rule’s development  Data reporting requirements under the e-rule  Implementation timeline  Impacts on monitoring and enforcement

THE BASICS  Clean Water Act generally requires permits for discharges of pollutants from industrial, agricultural, construction-site, sewage, and other facilities  Individual permits require direct monitoring reports  General permits require notices of intent  Clean Water Act requires permit-issuing entities to collect and provide information to EPA  E.g., non-compliance and statistics reports

E-RULE DEVELOPMENT  2002: discussions began on updating data collection  2007: EPA published draft policy statement on types of information that EPA would want to collect from permitting agencies  2010: EPA began research on feasibility of e-reporting, costs, types of information to be collected  2013: Proposed rule published  2014: Supplement to proposed rule published

E-RULE PROMULGATION  Signed September 24; will go into effect 60 days following publication in the Federal Register  Does not impose new data reporting requirements on regulated entities  But, does result in greater sharing of data with EPA and the general public  The rule will be implemented gradually over a five- year time-period

E-RULE: PHASES I & II FOR REGULATED ENTITIES  Phase I (one year after promulgation)  Discharge monitoring reports for individual permittees  Sewage sludge/biosolids annual program reports  Phase II (five years after promulgation)  Everything else: general permit reports, CAFO reports, Significant Industrial User reports, etc.

PHASES I & II FOR EPA AND PERMITTING AUTHORITIES  Effective date: all reports for individual permits (new and existing) must be electronically submitted  How to accommodate for existing permits?  Paper submission may not be expressly required  Permit may expire before e-rule requires electronic submission  Enforcement discretion agreement to forego paper submission in light of electronic submission  Authorization for use of minor modification process (does not require notice)

PHASES I & II FOR EPA AND PERMITTING AUTHORITIES  “Initial recipient” designation  Defined as the entity to whom the regulated party will submit the required information electronically  The e-rule defaults “initial recipient” to the existing permitting entities  Permitting entities may request to opt-out with 120 days of rule’s finalization  Within seven months of rule’s finalization, EPA will publish and post a list of “initial recipients” on state/data group basis  Within nine months, permitting entities will submit to EPA basic permit information re Phase I

PHASES I & II FOR EPA AND PERMITTING AUTHORITIES  One year after finalization, permitting entities must submit implementation plans detailing how Phase II will be achieved  Starting 18 months after finalization (and every year thereafter), EPA will review electronic participation rates; if less than 90%, EPA may commence enforcement  Within six years after finalization, permitting entities will stop preparing compliance reports

COMPLIANCE TIPS FOR REGULATED ENTITIES  Tables 1 & 2 of Appendix A to new 40 CFR Part 127  Table 1 lists ten data groups that organize the types of information to be submitted, e.g., “Core NPDES Permitting, Compliance, and Enforcement Data,” “Discharge Monitoring Reports”  Table 2 lists each datum to be submitted and assigns it to one or more of the data groups listed in Table 1  Refer to EPA’s list of Initial Recipients to determine to whom data in each data group should be submitted  Submission of some data to the permitting agency and some data to EPA may be required  Familiarity with the Cross-Media Electronic Reporting Regulation (CROMERR) as well as permitting agency analogues may be required

COMPLIANCE TIPS FOR REGULATED ENTITIES  Waivers  Temporary waivers  Specifics to be developed in implementation plans  Cannot last for more than five years  Special disaster waivers for four days  Permanent waivers  For permittees who, for religious reasons, do not use technologies required for e-reporting  “Hybrid approach” for construction stormwater general permit  If adopted, permittee would still submit some (or possibly all) of the required data by paper, and permitting entity would digitize the information.  NB: a permitting agency may require information in addition to that contained in Appendix A, in any format

IMPACTS TO REGULATED ENTITIES  No new information gathering required, although some technological training may be necessary  Permittee compliance (or non-compliance) will be easier for EPA and permitting agencies to assess (especially for “nonmajor” dischargers)  Probably likely to see an increase in citizen suits  Regulated entities without permits (e.g., some CAFOs):  EPA will catalogue all unpermitted CAFOs that have not committed a violation  EPA will mask identifying information re these CAFOs only on its online database  “Single event violation” (SEV)  Formerly, no EPA-sharing requirement for nonmajors  Under e-rule, all SEVs will be shared with EPA

QUESTIONS