Clean Water Act Discharge Permits to go Electronic

Since the National Pollution Discharge Elimination System (NPDES) permit requirements were first adopted by EPA back in 1972, the program has undergone significant changes. Categorical limitations, storm water permitting, toxics control, and biotoxicity testing are just a few of the many issues that have been implemented or significantly changed over the past 40 years. However, one aspect of the NPDES program has remained remarkably unchanged over this period. For a significant portion of the regulated community, permit compliance is still demonstrated in the same manner as always. The permittee will collect samples of his discharge, analyze the samples for the pollutants of concern, fill out a paper copy of his Discharge Monitoring Report (DMR) – often by hand – and then mail a copy of the report to the permitting authority. As proposed by EPA July 30, this approach will go the way of the typewriter. EPA is proposing to require most of the regulated community to submit monitoring data and other reports electronically to be compiled into a nationwide database.

Most states have already implemented an electronic reporting option for DMR data and other reports. For example, Pennsylvania has had a reporting program in place (eDMR) for approximately five years. EPA also has electronic systems for the compilation of data, including the Integrated Compliance System (ICIS–NPDES) and NetDRM. The problem with the existing electronic data system is that it is voluntary. EPA estimates that electronic reporting of DMRs accounts for less than half of the total number of reports submitted by the regulated community. Most reports are still submitted in hard copy form, entered manually into state, tribe, or territory databases, and then transferred into the national database. The current approach is inefficient and time-consuming, and human error creates significant problems with the accuracy of the compiled data.

The proposed new regulation will not change the permitting, data collection or reporting requirements for the regulated community. It will, however, require that this information be submitted electronically by the permitted parties. Under the proposal, EPA will require that reports submitted in writing (DMRs, Notices of Intent to discharge in compliance with a general permit, other general permit waivers, certifications, and notices of termination of coverage and program reports) be submitted electronically by the NPDES holder to EPA through the National Environmental Information Exchange Network, or to the authorized state, tribe or territory NPDES program.

How to do it: EPA has not yet developed the reporting tools and protocols that will be required in order to implement these changes. As part of the proposal, EPA is requesting input on the type of platform to be used and whether third-party software will be able to submit data into the system. The intent of EPA is that the database of submitted information will operate as an open platform, and NPDES permitted facilities will be able to use software developed by EPA, by the states, or by third parties to input the require data. At this time, EPA’s only requirement is that all systems must be compliant with the EPA’s Cross-Media Electronic Reporting Regulations (CROMERR) (see 40 CFR part 3).

Sector-Specific Issues: EPA is also requesting comments on numerous other aspects of the proposal, especially as to issues related to pretreatment programs, concentrated animal feeding operations (CAFOs), combined sewer overflows (CSOs) and municipal separate storm sewer systems (MS4s).

• Pretreatment Programs. EPA and the states oversee approximately 1,500 authorized pretreatment programs. These pretreatment programs in turn oversee around 20,000 Significant Industrial Users (SIUs). This is more than three times the number of major facilities with direct discharge NPDES permits. The size of the program creates significant problems. In addition, numerous reports and submissions are unique to the pretreatment program. Finally, there is a wide variety in the methods in which the data is collected and submitted to EPA (if it is submitted at all). EPA is requesting comments on which data should be submitted electronically, whether program requirements should be changed, and whether or not SIUs should be included in the electronic program.
• CAFOs. EPA recognizes that issues may be associated with implementation of electronic reporting for CAFOs and is considering a temporary exception in certain instances.
• CSOs. EPA is requesting input on whether sewer overflow, sanitary sewer overflow, and bypass reports should be reported electronically, and is requesting input on the data that should be submitted regarding CSOs.
• MS4s. A wide variety of MS4 permits are issued among the various states, and the required reports also vary tremendously. EPA is requesting input on standardization of the reporting requirements for MS4 permittees.

Impact on NPDES Program: There is no doubt that if EPA is successful in developing a completely electronic reporting system for the NPDES program, it will provide numerous benefits. EPA’s goals for the program, beyond the savings in manpower, include improving transparency of the information on compliance and enforcement activities in each state, connecting collected data to local water quality, and providing the public with real-time access to the monitoring data.

The proposed changes to the NPDES program are ambitious, but ultimately necessary. The current system in place for compiling data was focused primarily on major industrial and municipal dischargers. It does not allow for the efficient capture of data associated with the larger universe of non-major facilities, storm water discharges and general permits. The development of electronic reporting tools should result in a more consistent and effective system for permitting and regulating these discharges.

Potential to Correct NPDES Problems: While not discussed in the background documents, it is possible that this standardized reporting procedure may result in correction of persistent problems present in the NPDES program. Some of the issues that could be addressed include:

• Development of a consistent and technically accurate way to handle data below the detection limit. Many effluent limitations based upon water quality standards are set below the ability of current test methods to detect. There is no consistent method among states for performing data analysis and determining compliance with limitations when some data results are less than detect.
• Development of a consistent and technically accurate way to handle data above the detection limit and below the quantitation limit. Test methods for the analysis of compounds in water have two separate low-level reporting limits. The detection limit is lowest concentration of a pollutant that can be identified, measured, and reported with confidence that the pollutant concentration is not zero. The quantitation limit is the lowest level of a pollutant that can be reported with a specified degree of confidence and accuracy. The quantification limit is typically an order of magnitude higher than the detection limit. The detection limit cannot be used to determine whether a discharge is above or below the specified limitation. Nevertheless, the detection limit is often, and incorrectly, used to determine compliance.
• The impact of electronic reporting on the thousands of laboratories that perform analysis and reporting of data to permit holders. Laboratory errors are a major source of reporting and compliance problems. Implementation of a consistent reporting program, especially with the integration of laboratory reporting into the NPDES reporting program, would likely reduce the magnitude of this problem.
• What to do with data from continuous monitoring for parameters such as pH, temperature and conductivity.

Opportunity to Influence the Final Rule: The EPA issued the NPDES Reporting Rule as proposed. Under the current schedule, public comments to the proposed rule can be made to EPA on or before October 28, 2013. Interest in this rulemaking is likely to be significant among the regulated community, and other stakeholders. Congress, particularly in the House with its recent history of disagreements with the Agency, may also pay close attention to the rulemaking process.

Because of the scope of these proposed changes, and because of the technical challenges associated with the implementation, EPA is looking to the regulated community and other interested parties to provide input and assistance in developing the program. Reed Smith has attorneys experienced in all aspects of the NPDES program, and we are available to answer any questions you might have or provide other assistance in evaluating and contributing to this rulemaking process.

Client Alert 2013-232