On July 30, 2013, the U.S. Environmental Protection Agency (EPA) announced a new regulatory program that would make every construction company’s stormwater permit records and compliance history accessible to the public. The proposed National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule would require all construction site operators covered by an NPDES permit to submit a variety of permit-related information electronically instead of using paper reports. The proposed e-reporting rule would make each company’s site-specific information, such as inspection and enforcement history, pollutant monitoring results, and other data required by permits accessible to the public through EPA’s website.
The NPDES Electronic Reporting Rule (e-reporting rule) could potentially apply to all construction firms and may well have widespread implications for the industry. Stormwater permits are a component of the Clean Water Act NPDES permit program [40 CFR 122.26] – discharges of stormwater from construction activities that disturb one acre or more of land must be covered under a Construction General Permit (CGP). In addition, discharges of stormwater from certain industrial activities operated by many construction companies (e.g., landfills, asphalt or concrete batch plants, gravel pits, and associated processing operations used to support road and bridge construction) require coverage under a “Multi –Sector” General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP).
Reliance on Technology to Improve Public Access to Data
According to EPA’s proposal, one of the top goals of the e-reporting rule is to provide the public broad and simplified access to compliance and enforcement information about every regulated entity that reports under the NPDES permitting program. Environmental groups, as well as enforcement authorities, are certain to make extensive use of the central databases of all NPDES information that the agency plans to make available. The availability of information will empower communities to play an active role in compliance oversight and improve the performance of both the government and regulated entities, according to EPA.
Specifically, under the proposal, any reports or forms that are currently being submitted to an NPDES permitting authority in written paper format would instead need to be submitted electronically by the permittee to EPA through the National Environmental Information Exchange Network. Under the proposal, electronic submission would be required from for the following data types—
- Discharge Monitoring Reports (DMRs)
- Notices of Intent (NOI) to discharge in compliance with a general permit
- Notices of Termination of coverage (NOT)
- Certifications (e.g., no-exposure certification)
- Low-erosivity waivers and other general permit waivers
- Program reports
While the proposed rule changes the method by which information on NPDES permits is submitted, it does not increase the amount of information required from NPDES-permitted facilities under existing regulations. Authorized NPDES permitting authorities (e.g., states, tribes and territories) would continue to receive this information, and could have the opportunity to be designated to receive the information first and pass it along to EPA.
The proposed rule would also require states, tribes, and territories that are authorized to implement the NPDES program to report to EPA information they currently maintain on NPDES-permitted sites and facilities, including the following information:
- Facility information from NPDES permit applications;
- Permit information including outfalls, limits, and permit conditions;
- Compliance determination information including that from inspections;
- Enforcement response information; and
- Other information provided electronically by the NPDES-regulated facility to the authorized NPDES program rather than to EPA.
The proposed implementation schedule for the e-reporting rule would be a phased approach following final promulgation of the rule. Six months after the effective date, basic facility information and permit information would be provided to EPA headquarters by states and EPA regions. One year after the effective date of the rule, EPA and states would electronically receive DMR information from facilities and information from facilities seeking coverage under or operating under Federally-issued general permits. Within the second year of the rules promulgation, states would electronically receive information from facilities seeking coverage under or operating under state-issued general permits and program reports from all facilities.
EPA is accepting comments on the current proposal through Oct. 28, 2013. The proposed e-reporting rule has a large scope and would have broad applicability. For that reason, EPA has already committed to publishing a supplemental notice 180 days after the closure of the public comment period if comments are received that would prompt significant changes to the proposed rule. Once final, the e-reporting rule is certain to bring more opportunity for engagement between NPDES-permitted construction sites and public and regulatory agencies regarding “real-time” environmental performance data. The construction industry would be wise to stay ahead of these technology advances and learn to understand them – and direct questions and comment to EPA – before they become requirements.
EPA has acknowledged that some states already provide e-reporting for their NPDES permit holders. In such cases, EPA would allow the state to continue to manage its e-reporting system as long as it meets the minimum standards set forth in the proposed rule and signature requirements (40 CFR parts 3 and 122.22). States that currently do not require electronic reporting will have to establish the requirement. If there is deficiency in the state electronic reporting system or NPDES permit, the regulated entity would need to report to both the state permitting authority (if hard-copy paper reporting is required in the permit) and EPA (electronic reporting compliant with 40 CFR 3, 122.22, 127) during this transition period .
Click here to read the entire proposed rule in the Federal Register and for additional information.
EPA’s National Enforcement Initiatives Pledges Public Access to Compliance Information
EPA recently announced that it will keep the same national enforcement priorities for another three years; however, it will incorporate into its work new approaches to identify violations, including the imposition of the abovementioned electronic reporting on sources. EPA has been prioritizing the same six enforcement initiatives since FY 2011. EPA will continue to focus on preventing contaminated water (e.g., stormwater) discharges, reducing air emissions from the largest sources, and ensuring energy extraction complies with environmental regulations. EPA will augment these existing initiatives with its “Next Generation Compliance” program, which emphasizes electronic compliance reporting and greater public availability of compliance information (see above). EPA decided to employ Next Generation Compliance despite concerns that it may override state regulations and impose new burdens on regulated industries.
EPA also indicated that it will not just be looking at traditional “bad actors’ within each industry sector but at all companies within the industry sectors.
The agency reviews its national enforcement initiatives every three years to determine where it best may deploy its resources and identify the most pressing environmental problems where noncompliance is a contributing factor. Click here for EPA’s announcement on FY 2014-2016 enforcement initiatives.
For more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at firstname.lastname@example.org.