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Published byScot Pierce Modified over 8 years ago
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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
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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
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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
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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
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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
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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.
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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)
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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
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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
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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
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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
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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
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QUESTIONS
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