CWA Action Plan Implementation Priorities:
Changes to Improve Water Quality, Increase Compliance and
Expand Transparency
May 2011
Office of Compliance
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW (MC 2221-A)
Washington, D.C. 20460
http://www.epa.gov/compliance/civil/cwa/cwaenfplan.html
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CWA Action Plan Implementation Priorities: Changes to Improve
Water Quality, Increase Compliance and Expand Transparency
May 11, 2011
EXECUTIVE SUMMARY
EPA, in consultation with a working group of state CWA agency representatives, has
developed a suite of new approaches to revamp the National Pollutant Discharge Elimination
System (NPDES) permitting, compliance and enforcement program. These approaches are
aimed at improving water quality by using 21st century information technology and "best
practices" to more effectively and efficiently achieve greater pollution reductions at the universe
of approximately one million NPDES water pollution sources. There are four key changes to
how we implement the NPDES program:
1. Switch existing paper reporting to electronic reporting with automated compliance
evaluations and improved transparency.
2. Create a new paradigm in which our regulations and permits compel compliance via
public accountability, self-monitoring, electronic reporting and other methods.
3. Address the most serious water pollution problems by fundamentally re-tooling key
NPDES permitting and enforcement practices, while continuing to vigorously enforce
against serious violators.
4. Conduct comprehensive and coordinated permitting, compliance, and enforcement
programs to improve state and EPA performance in protecting and improving water
quality.
Some of the specific, creative new approaches included in these significant changes are:
> Require electronic reporting of key permitting, compliance and enforcement information to
reduce resource burdens associated with a paper-based system.
> Secure better, more transparent accountability from regulated sources through innovations
in regulatory and permit requirements and public information systems.
> Align EPA/State planning and improve performance metrics and accountability to effectively
direct limited regulatory resources to serious water quality problems related to NPDES
regulated sources.
> Systematically evaluate all NPDES sources and watershed-specific concerns to identify key
water quality problems and associated violations, and deploy appropriate solutions. This
evaluation should use all relevant existing water quality data to drive better decision-making.
> Use a new multi-tier violation classification framework to categorize violations for appropriate
responses to more effectively remedy noncompliance.
> Deploy new tools for improving compliance at self-reporting sources.
> Improve transparency by providing the public with better, more complete information on
pollutant discharges, whether such discharges are in compliance, and how the government
is addressing noncompliance.
These new approaches represent fundamental overhauls to some of the tools, policies, and
regulations by which the states and EPA implement the NPDES permitting and enforcement
program. Major changes require time and effort to deliver: thus, EPA and states will be at work
for several years to realize the vision and complete these changes. And, these changes do not
reduce the need for continued vigorous enforcement of the Clean Water Act.
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INTRODUCTION
Since EPA Administrator Lisa Jackson issued the Clean Water Act (CWA) Action
Plan in October 2009, EPA and state co-regulators have collaboratively researched and
debated a wide range of new approaches for fundamentally changing how we
implement the National Pollutant Discharge Elimination System (NPDES) permitting and
enforcement program. This constructive dialogue between state Clean Water Act
agencies and EPA has facilitated a long-term, goal-oriented commitment to improving
compliance with the Clean Water Act. These approaches address numerous challenges
facing EPA and state agencies as we implement the NPDES program in this decade:
• The type and number of significant water quality stressors have grown
substantially since the CWA was enacted. Today's NPDES regulated universe
includes approximately one million diverse and widely dispersed water pollution
sources ranging from traditional wastewater treatment facilities to several acre
construction sites to concentrated animal feeding operations (CAFOs);
• Many of our most serious water pollution problems involve pollutants from these
sources, including nutrients.
• State and EPA resources are not adequate to ensure compliance across large
regulated universes via the traditional individual inspection and enforcement action
approach.
• Compliance information about many regulated entities is unavailable to regulators
and the public without exhaustive on-site inspections and/or information requests;
• Many state and EPA compliance and enforcement tools and policies were
designed for more traditional, end-of-pipe wastewater dischargers and do not work
well for the broader universe, especially wet weather sources.
• The information we have on noncompliance for those dischargers submitting
discharge monitoring reports that were evaluated in a nationally consistent,
automated manner, indicates a high noncompliance rate: 22% of majors in serious
noncompliance at least once in FY2009, while 46%of non-majors were in serious
noncompliance at least once in calendar year 2009. And for many of these
violations, there was no response from the government.1
• Permitting and enforcement programs are stove piped.
These challenges demand that States and EPA adapt and retool many permitting
and enforcement practices and approaches that were developed for more traditional
industrial and municipal facilities to realize significant future gains in environmental
performance and water quality. Collectively, these new approaches and tools will
provide critical missing elements of the NPDES regulatory program and will improve the
environmental performance of NPDES sources impacting water quality.
This document presents the four key changes needed for the revamped NPDES
program and describes the new features of the retooled system, including the specific
1 See Annual NonCompliance Report (ANCR), Calendar Year 2009, at http://www.epa-echo. gov/echo/ancr/us/.
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actions, tools, policies and regulations that EPA believes are most important for
implementing the new system starting in FY2011.2 The four critical changes are:
1. Switch existing paper reporting to electronic reporting with automated compliance
evaluations and improved transparency.
2. Create a new paradigm in which regulations and permits compel compliance via
public accountability, self-monitoring, electronic reporting, and other methods.
3. Address the most serious water pollution problems by fundamentally re-tooling
key NPDES permitting and enforcement practices, while continuing to vigorously
enforce against serious violators.
4. Conduct comprehensive and coordinated permitting, compliance, and
enforcement programs to focus state and EPA efforts on improving water quality.
In general, many of the new approaches envisioned as key components of these
bold changes are not quick or easy fixes. These are major changes that will require
time and effort to deliver. Thus, EPA and states will be at work for several years to
realize the vision and complete these changes.
NEED FOR CHANGE
Originally, the NPDES permitting, compliance, and enforcement program focused
on pollution from the large individual sources, such as factories and sewage treatment
plants. These sources, called "majors" (approximately 6,700 facilities) are subject to
detailed national regulations and policies that govern permitting, compliance monitoring,
violation classification (e.g., reportable and significant noncompliance (RNC and SNC)),
enforcement response and national information collection. We now face more complex
challenges. The NPDES regulated universe has expanded from the roughly 100,000
traditional point sources to approximately one million dispersed and sometimes
transient sources, such as CAFOs, construction sites, and other types of storm water
dischargers. Many of these sources discharge pollutants that cause serious water
quality problems. The NPDES regulations, policies, and tools that EPA and states use
to set permitting, compliance, and enforcement priorities, plan activities, and provide
benchmarks and performance standards have been modified in a piecemeal manner
over the last 25 years with each change to the scope of the NPDES program (e.g.,
CAFOs, pretreatment, biosolids, storm water, vessels, and pesticides). A strategic
revision of the appropriate permitting, enforcement and water quality assessment
policies, practices and, where needed, key regulations, to better aim and leverage our
resources and fully utilize 21st century information technologies is overdue and vital to
our success in securing better water quality for our communities and ecosystems.
2 While there were numerous good ideas identified by EPA and the states for improving the NPDES permitting and
enforcement program, EPA recognizes the practical need to focus EPA and state resources. This document
identifies the changes to the NPDES permitting and enforcement program selected for development and
implementation in FY2011 and FY2012.
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FUNDAMENTAL CHANGES
EPA has identified four fundamental changes needed to revamp the NPDES
permitting, compliance and enforcement program to better address today's serious
water quality problems. EPA and states will take specific actions to implement these
changes to enhance and retool the NPDES program over the next several years as
described below.
1. Switch existing paper reporting to electronic reporting with automated
compliance evaluations and improve transparency.
EPA and states will use electronic reporting and 21st century information
technology to increase the speed, quality and scope of the information that EPA,
states, regulated facilities, and the public receives on permits, water pollution, water
quality, and government agencies' actions to implement the NPDES permitting,
compliance, and enforcement program. Electronic reporting is a key component of
the new system and will greatly reduce the burden on states, EPA, and regulated
facilities involved in submitting, processing, reviewing, and evaluating traditional
paper forms. To improve transparency, EPA and States will undertake a series of
actions in FY2011 to provide nationally consistent information on NPDES regulated
sources, the applicable permits, the pollutants they are permitted to discharge, their
compliance status and the actions of regulatory agencies (permit renewals,
inspections, enforcement actions).
a. EPA will propose an NPDES Electronic Reporting Rule by Fall 2011 and a final
rule by Fall 2012. This proposed rule is anticipated to contain five key provisions
as set forth below. The plan for how these provisions will be phased in will be
addressed in the proposed rule.
i) Require all facilities subject to discharge monitoring reports (DMRs) to submit
this information electronically to the states and/or EPA using the Exchange
Network to ensure that EPA and states have immediate access to the
information without duplicate data entry.
ii) Convert existing paper program reports, currently required of regulated
sources through permits, to electronic reports and require their electronic
submission to EPA and states using the Exchange Network. This electronic
conversion will not substantively change what information must be reported
pursuant to the existing paper reporting requirement. The existing paper
reports that are under consideration for conversion to electronic include:
(1) Annual reporting requirements for concentrated animal feeding operations
(CAFOs). 40CFR5122.42(e)(4). This subsection requires CAFO
permittees to submit an annual report regarding their operation.
(2) Combined sewer overflow (CSO), separate sewer overflow (SSO), and
bypass incident reports in the context of twenty-four hour and five-day
reporting of noncompliance. 40 CFR§122.41(I)(6). This subsection
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requires the permittee to report orally within 24 hours any noncompliance
that "may endanger health or the environment." This oral report would
then be followed by an electronic (rather than written, as currently
required) submission within 5 days of the time that the permittee became
aware of the circumstances.
(3) Annual pretreatment reports from publicly owned treatment works
(POTWs). 40 CFR5403.12(i). This subsection requires POTWs with
approved pretreatment programs to provide a report at least annually to
the pretreatment approval authority describing their pretreatment
implementation and enforcement activities.
(4) Annual biosolids reports for land application, surface disposal or
incineration of sewage sludge. 40 CFR55503.18, 503.28 and 503.48.
These subsections require all sewage sludge management facilities (e.g.,
POTWs and treatment works treating domestic sewage [TWTDSs]) that
prepare biosolids (sewage sludge) for land application, apply sewage
sludge to the land, prepare sewage sludge for surface disposal, or
incinerate sewage sludge, to submit a biosolids annual report.
(5) Annual reports by municipal separate storm sewer systems (MS4s). 40
CFR SS122.34(g)(3) and 122.42(c). These sub-sections require annual
reports from the MS4 operators and identify what these reports must
include.
(6) Pretreatment reports by significant industrial users located in cities without
approved local pretreatment programs: periodic reports on continued
compliance for categorical industrial users, as required by 40 CFR
§403.12(e), and periodic reports on continued compliance for non-
categorical industrial users, as required by 40 CFR §403.12(h).
iii) Using the Exchange Network, require all facilities subject to a general permit
(state or EPA issued) to electronically submit notices of intent to be covered
to a national or state electronic information system (similar to EPA's existing
eNOI system), and then make this information publicly accessible.
iv) Using the Exchange Network, require States and EPA regions to
electronically exchange more complete NPDES program performance and
results information for majors and non-majors, including basic facility and
permit information (e.g. facility name, location and limits), inspections,
violations and enforcement actions.
v) After states provide EPA with more complete information electronically, EPA
will eliminate the state obligation to provide paper versions of the Quarterly
Non-Compliance and Annual Non-Compliance Reports in 40 CFR§123.45.
EPA may integrate and modernize these two reports to reduce redundancy
and support new ways to identify, categorize and respond to the most serious
violations pursuant to the fundamental change #3 described below.
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b. EPA will implement six projects to improve transparency of the NPDES
program:
i) Pollutant Loadings Tool. In December 2010, EPA launched the beta version
of a new analytic tool that shows the pounds of pollution (pollutant loads)
being discharged from sources submitting discharge monitoring reports. This
tool provides the public, EPA, and states with more understandable
information about who is discharging what pollutants and to where. Later in
FY2011, EPA will: a) convert the "beta" version to a "final" version; b) provide
more recent facility pollutant discharge and watershed data; and c) integrate
compliance data (ECHO) with the loadings data which will allow users to view
pollutant releases and violations on one screen. (See
www.epa.gov/pollutantdischarges.)
ii) General Permits Web Inventory. EPA and states use general permits to
regulate over 90 percent of NPDES regulated sources. Information about
these permits, including what each permit requires, who is covered, and
where they are located is not readily available nationally. In FY2012, EPA will
release a national web-based inventory of all non-stormwater general permits
issued by states and EPA. The inventory will provide the public, EPA, and
states for the first time with easily accessible information on master general
permits, such as: permit numbers, sector/activities subject to the permit,
issuance and expiration dates, and estimated number of facilities covered by
each master general permit. Where a general permit is available on state
websites, the web inventory will provide links so that the specific terms of the
general permit can be easily reviewed by the public. Where a general permit
is not already posted on the state website, EPA will encourage states to make
them available. EPA will use existing data sources to build this inventory. As
information becomes available on the specific facilities covered by general
permits (e.g., thru electronic reporting of eNOIs), EPA may enhance this Web
inventory or use other tools provide public access to facility specific
information.
iii) Quick Fixes to NPDES SNC Information. EPA will correct two data
problems that make the use and analysis of quarterly information about
violations difficult. The first change will be to update software in the national
systems to not present stale noncompliance data pertaining to missing old
DMRs as a current SNC violation. The second software upgrade will create a
distinction between facilities that have reported their DMRs (but the state was
not able to enter the data into the national system in time), and violators that
have not submitted their DMRs. These corrections are expected to be
implemented in FY2012. These two changes will save resources, improve
public transparency, and allow states and regions to more effectively focus on
water quality.
iv) Make existing NPDES data easier to access, understand and
appropriately use. To improve information access and transparency, in
FY2010 EPA launched a new interactive state map with information about
non-major dischargers subject to an individual NPDES permit. In March
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2011, EPA made several improvements to this site including: a) expanding
mapping to majors, b) incorporating trends information, and c) adding state
dashboard reports. EPA's plan for future years is to continue adding more
data content for other segments of the NPDES universes. (See
http://www.epa-echo.gov/echo/ancr/us/.)
v) EPA will provide a single public repository of EPA and state Memoranda
of Agreement (MOAs), which are used to define baselines and collaborative
expectations for enforcement and compliance activities, to improve
transparency and access to these important agreements.3
vi) Promoting use of electronic reporting prior to final promulgation and
implementation of E-Reporting Rule. EPA will promote voluntary use of
electronic reporting of DMRs using NetDMR and similar state tools while the
electronic reporting rule is under development. EPA will also, as appropriate,
require e-reporting of key compliance information as injunctive relief in its
federal enforcement actions.
2. Create a new paradigm in which regulations and permits compel compliance
via public accountability, self-monitoring, electronic reporting and other
methods.
EPA, states, and the public can no longer primarily rely on the traditional single
facility inspection and enforcement approach for assessing and ensuring compliance.
With approximately one million regulated NPDES facilities, EPA and states cannot rely
on on-site inspections and enforcement actions as the primary way to identify and
remedy noncompliance, and promote compliance. Instead, we must consider
structuring key regulations and permits so that facilities are required to take periodic,
objective actions to self-monitor, maintain and/or demonstrate their compliance
pursuant to objective standards and provide that information electronically to states,
EPA and the public. This will offer a new level of transparency and accountability and
yield accompanying pressure for facilities to comply, regardless of when a government
inspector arrives.
a. In FY2011, EPA will choose key regulated sectors that have both the
potential for significant water quality impacts and sparse compliance
information to evaluate whether one or more of the approaches described
below are appropriate to include in new regulations. In doing these
evaluations, EPA will consider that there are many ways to enhance and promote
compliance and one approach may not fit all situations. Some options to
consider include:
i) Self-monitoring, including continuous emissions monitoring and ambient
monitoring. The obligation to periodically monitor (sample and test) using
established, objective methods is often an effective way to compel
3 This implements Recommendation 2-4 in the OIG report, "EPA Should Revise Outdated or Inconsistent EPA-State
Clean Water Act Memoranda of Agreement," Report No. 10-P-0224, September 14, 2010.
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compliance. The NPDES DMR is one such example. In contrast, self-
monitoring in which there are not established test methods and/or the criteria
are subjective is not likely to be as effective. The threat of criminal liability for
submitting false or fraudulent information is also an important part of this tool.
ii) Self-certifications for qualitative requirements. If a regulated entity is subject
to requirements that cannot be quantified and monitored with established test
methodologies, having the regulated entity periodically certify that it is in
compliance with the specific requirements (such as nutrient management
plans) may enhance compliance. Further, having the regulated entity publicly
document this compliance certification information may enhance the
effectiveness of such self-certifications.
iii) Third party verification of a regulated source's compliance can be effective if
the program is structured appropriately. For example, a recent article
identified six factors to consider in evaluating whether information reporting
from a third party will be effective in promoting compliance.4 One key factor is
whether there is an arm's length relationship between the regulated entity and
the third party certifying agent such that the possibility of collusion is
minimized. Another key factor is whether the third party certification is based
on objective standards and established methodologies. Some states, such as
New York, have already implemented such programs for NPDES.
iv) Direct public disclosure. The public disclosure of objective compliance
information by regulated entities to their customers, ratepayers, investors, and
the local community has been shown to generate real reductions in pollution.5
If objective information on compliance status is not available, public
disclosure of who is regulated and their compliance plans (e.g., best
management plans for stormwater management) may create new incentives
for compliance.
v) Electronic reporting to government, and subsequent public access. The
submission of paper reports and forms by regulated entities to EPA and the
states should be avoided. Thus, where a rule requires reporting, electronic
reporting should be considered as the preferred choice if feasible. To be
effective, electronic reporting must be carefully developed and implemented
with objective data elements, electronic signature requirements, automatic
data validation checks, and clear user interfaces.
4 Leandra Lederman, Reducing Information Gaps to Reduce the Tax Gap: When is Information Reporting
Warranted", 78 Fordam Law Review, 1733, March 2010.
5 The 1998 Safe Drinking Water Act amendments required larger utilities to directly mail annual Consumer
Confidence Reports (CCRs) to water consumers. An analysis of Massachusetts facilities showed total violations
reduced by 30%-44% and more severe health violations reduced by 40-57% based on this new reporting
requirement. The study concluded: "The public disclosure of compliance status information, in and of itself, can
generate real, measurable, and significant additional deterrence even when underlying substantive regulatory
requirements are unchanged." Bennear & Olmstead; The Impacts of the "Right to Know" Information Disclosure
and the Violation of Drinking Water Standards, JEEM Vol. 50, Iss. 2; pp. 117-130 (2008).
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The approaches set forth above should be used strategically based on the
specific regulatory requirements, the technology practically available for
monitoring compliance, and other considerations.
b. EPA will continue research on identifying new ways to compel compliance
using the above tools and other tools. EPA will consult with the states in
doing this research. In FY2011, we will provide training for EPA staff engaged in
developing new regulations and general permits to promote these new regulatory
approaches for compelling compliance. In FY2012, EPA will provide training to
the states on how to apply this to the rules and permits the states issue. This
research and training will not be restricted to the CWA, but will be applied to all
environmental programs.
C. In FY 2011, EPA will identify options for modifying the EPA rule
development process so that new proposed regulations are better
structured to ensure that regulated entities have a strong incentive to
comply via self-monitoring, self-certification, public accountability,
electronic reporting and other tools.
3. Address the most serious water pollution problems by fundamentally re-
tooling key NPDES permitting and enforcement practices, while continuing to
vigorously enforce against serious violators.
To effectively manage, analyze, and prioritize violations, compliance,
enforcement and permitting actions that are critical in improving water quality, EPA
and states will change how we identify and address serious water pollution violations
by deploying a suite of new approaches, including using improved analytical tools,
implementing new national polices, and where needed, revising federal regulations
starting in FY2011 and beyond.
Too many sources submitting DMRs are in violation today and receive limited to
no government responses. In addition, many existing policies, metrics and tools
have been developed in a piecemeal fashion over the past twenty-five years and
focus only on a narrow piece of the NPDES regulated universe, the traditional
majors group. EPA will need to deploy the "next generation" of analytic tools and
approaches to address/respond to remaining serious water quality problems.
Important NPDES water pollution stressors today can include clusters of smaller
regulated sources in particular watersheds (including sources who have failed to
apply for NPDES permits altogether), in addition to large factories and municipal
POTWs. The transient nature of construction sites, vessels and pesticides
applications points to the need for new techniques and strategies. New information
technologies present us with many opportunities to create these exciting new
capabilities for identifying serious water quality problems, exposing those regulated
entities who fail to obtain required authorization to discharge their pollutants, and
showing the magnitude of the pollutant contributions from the full spectrum of
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regulated NPDES point sources. While state water quality assessments (e.g.,
impaired waters) provide useful information on water quality problem areas,
significant variations in state assessment methodologies and a large percentage of
unassessed watersheds limits the effective use of this information for setting
regulatory priorities. To improve national consistency in using some of these new
approaches and tools, EPA needs to restructure national policies, guidance, and
regulations to ensure that limited resources are focused on the most important water
pollution problems and violators.
EPA also recognizes that in many instances the largest stressors to water quality
may involve non-point sources, not regulated by the NPDES program. The Agency
is examining other strategies to address these issues as described in EPA's March
2011 strategy Coming Together for Clean Water6
EPA is moving forward with the following set of actions over the next several
years to implement these changes:
a. EPA will develop and implement the "next generation" of analytical tools
and approaches aimed at uncovering serious water quality problems
related to the compliance and regulation of the full universe of NPDES
point sources. These tools will use 21st century information technologies and
will serve multiple priority-setting and transparency needs related to permitting
actions, compliance monitoring efforts, enforcement actions and water quality
assessments.
i) Loadings Tool (see description in #1 above). In FY2011, EPA will provide
training on how EPA and states could use this tool for enforcement targeting
purposes as well as prioritizing permitting and water quality assessment work.
ii) Better use of existing water quality monitoring and assessment data to drive
improved decision-making. There are substantial limitations today to using
and understanding existing water quality information. While state water
quality assessments (e.g., impaired waters) provide useful information, there
are significant variations in state assessment methodologies and wide
variation across states in how many waters have been assessed for purposes
of determining whether a water is impaired. Thus, using impaired water data
by itself can lead to uneven targeting for permitting and enforcement. To
overcome these limitations and improve the ability of states and EPA to use
watershed monitoring data in setting priorities for permitting and compliance
oversight activities, in FY2011, EPA will develop options for new tools to
array, analyze and use existing water quality monitoring data, in addition to
assessment data, to identify vulnerable waters for prioritizing the use of state
and EPA permitting and enforcement actions. These tools could help states
identify when monitoring data supports the delisting of impaired waters and
help states prioritize future assessment work. EPA will develop these water
quality tools in consultation with the State-EPA Monitoring and Assessment
6 See http:^log.epa.gov/waterforum/
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Partnership. EPA began this effort with the presentation of a straw proposal
to this Partnership in February 2011. This effort is neither intended to alter
state water quality standards nor how states perform water quality
assessments.
iii) EPA and the states need to improve the infrastructure for collecting and qeo-
referencinq state water quality attainment decisions per CWA Sections 303(d)
and 305(b). In FY 2011, EPA will identify the necessary steps for
streamlining the collection and geo-referencing of state water quality
attainment decisions reported under CWA Sections 303(d) and 305(b). EPA
will then work with the states to develop a data standard for this data flow for
more consistent and timely reporting while allowing states flexibility in
implementing their programs. EPA will improve the Exchange Network data
flow for Integrated Reporting (assessed and impaired waters), and will
streamline the geo-referencing of attainment decisions.
b. In FY2011, EPA will deploy new approaches for improving compliance at
NPDES sources who self-report their pollutant discharge amounts to EPA
and states. Compliance rates at segments of the NPDES universe reporting
discharge monitoring reports to states and EPA need to be improved.7 A
preliminary analysis indicates that there are a large number of self-reported
violations, and that a focused use of administrative enforcement authorities can
be an effective approach to improving compliance rates.
i) In FY2011, EPA will analyze self-reported DMR noncompliance and launch
tailored compliance and enforcement strategies to address a range of
compliance problems, including those that are sector (e.g., mining) and
watershed (e.g., Chesapeake Bay) focused. EPA will also take administrative
enforcement actions (including issuing penalty orders) to augment state
enforcement efforts where warranted.
ii) In FY 2012, EPA will pilot a program for using expedited administrative
compliance/penalty actions to improve compliance at selected sources.
EPA analyzed FY2008 available information and found that approximately 25% of the "majors" were in
SNC for at least one quarter. A general explanation of why they were in SNC:
• 46% were in SNC because of effluent violations, meaning they discharged pollutants substantially
above their permit limits for multiple months.
• 11% were in SNC because they violated a compliance order. These orders generally require facilities
to upgrade their pollution control equipment to correct existing violations, and thus these violations
often are associated with effluent violations as well.
• 41% were in SNC because EPA had not received the required discharge monitoring data. This
means that EPA lacked critical information on whether these facilities were complying with their limits.
Some of these facilities may have submitted their DMRs in a timely manner to the state, but the state
did not provide this data to EPA as required. We expect this problem to be partially fixed by
implementation of our "Quick Fixes" proposal in 2011, and in the longer term, the NPDES Electronic
Reporting Rule will fully fix this problem.
• 2% were in SNC because they failed to submit required reports pursuant to the terms of an
enforcement order.
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iii) Starting in FY2012, EPA will develop electronic methods compatible with
expanded electronic reporting information to use compliance assistance and
informal enforcement responses in responding to "minor" violations (to be
defined by EPA). EPA may build this functionality into ICIS-NPDES for states
to use, or states may implement this through their own systems. EPA will
encourage states to use electronic methods to deliver compliance assistance
and respond to "minor" violations.
c. In FY2011 and beyond, EPA will review, revise, and integrate current
regulations, policies, and tools to guide how EPA and states prioritize
permitting and enforcement actions and address serious problems. As
described below, EPA will develop a detailed proposal for doing this in FY2011.
i) These regulations, policies, and tools include: the Significant Non-
Compliance (SNC) Policy, Reportable Non-Compliance (RNC), the Interim
Wet Weather Significant Non-Compliance Policy, the Quarterly Non-
Compliance Report (QNCR), the Annual Non-Compliance Report (ANCR),
the Watch List, the definition of priority permits, and the definition of majors.
EPA and states will use these revised policies and tools in joint planning and
performance discussions, including new sets of program performance criteria
and metrics to guide more focused discussions on how to improve/correct
specific water quality problems most impacting our nation's communities and
critical ecosystems.
ii) EPA will work with states to align and integrate the appropriate changes to
policies and regulations implemented above in c(i) through a new multi-tier
violation classification framework to categorize violations and drive
appropriate and nationally consistent responses. Using more robust
information obtained through electronic reporting and improved analytical
tools that draw from a variety of information sources, including those outside
of EPA and state data systems, this new classification framework will
evaluate the seriousness of violations and water quality problems not just on
an individual source basis, but at corporate, sector, watershed, and
geographic levels. This will replace the current system which limits violation
classification to an individual facility basis and only includes the "majors"
universe. This new framework will facilitate better use of all tools for
identifying serious violations and for responding to a variety of other
violations, including compliance assistance, informal responses (e.g., NOVs),
administrative orders, administrative penalty orders, civil actions, criminal
actions, and transparency (public disclosure).
d In FY 2011 to 2013, EPA will implement CWA NPDES National Enforcement
Initiatives and will continue to vigorously enforce against serious violators.
These initiatives will use new, creative targeting approaches aimed at addressing
serious, national noncompliance problems by requiring sustainable solutions to
several of our nation's biggest water quality challenges: getting raw sewage,
polluted storm water runoff and animal wastes from illegal discharges out of our
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communities' waterways. In addition to these national initiatives, EPA is currently
pursuing targeted federal enforcement involving polluting sectors causing large-
scale water quality concerns in certain geographic regions, such as Appalachia
and the Chesapeake Bay.
4. Conduct comprehensive and coordinated permitting, compliance and
enforcement programs to improve state and EPA performance in protecting
and improving water quality.
EPA and states will integrate and improve how we set priorities for permitting,
monitoring, and enforcement programs to solve serious water quality problems. There
is considerable variation between EPA regions in how annual planning processes are
conducted. In many cases, EPA and states conduct planning discussions and NPDES
program performance reviews separately for permitting and enforcement program
components, thereby missing critical opportunities to identify and implement more
strategically coordinated solutions to water quality problems. On October 26, 2010, the
Assistant Administrators for the Office of Enforcement and Compliance Assurance
(OECA) and Office of Water (OW) invited States to engage with EPA in this effort.
a. Beginning in FY2011, EPA Regions and states will develop joint annual
NPDES work plans, which will consider all available resources and tools to
get work done, such as federal and state work sharing and
watershed/pollutant-based strategies. On June 22, 2010, OWand OECA
jointly issued Interim Guidance on Strengthening EPA and State Performance
and Oversight to begin implementing this new practice. See
http://www.epa.ciov/compliance/resources/policies/civil/cwa/interim-ciuid-npdes-
062210.pdf
b. On October 22, 2010, OECA and OW jointly issued a memorandum "Using
the Results of NPDES Permit and Enforcement Reviews to Address
Significant Issues" which requested the regions implement three actions to
enhance our oversight of state programs. (1) incorporate an evaluation of
past permit and enforcement review results into the FY2012 planning process;
(2) before conducting an SRF or permit quality review, to evaluate past
performance issue and determine if progress has been made to improve those
areas of performance; and (3) as part of regular state progress meetings (twice a
year, or more frequently as appropriate), look at outstanding performance issues
and work plan commitments to ensure that appropriate progress is being made to
improve performance.
c. In FY2011, EPA will begin to integrate and streamline NPDES enforcement
and permitting oversight activities. On August 30, 2010, OW and OECA
jointly issued a memorandum informing the regions that OECA's State Review
Framework and OWs Permit Quality Review oversight tools should be integrated
and streamlined. In FY2011 and FY2012, OW and OECA will develop and issue
guidance and provide training to EPA Regions on how to integrate and
streamline NPDES enforcement and permitting oversight activities. In FY2012,
these integrated reviews will be piloted in selected states.
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d. In FY2011, EPA will initiate systematic efforts to improve permits by
ensuring that lessons learned from permit quality reviews and compliance
monitoring and enforcement actions are used to improve the quality,
including the enforceability, of newly issued permits, especially general
permits. In FY2011, EPA will implement a new permit feedback process for
several general permits, most likely for the federal Multi-Sector General Permit
(MSGP), and a subset of state and/or EPA general permits for CAFOs and
MS4s.
e. OECA has developed a High Priority Performance Goal (HPPG) as one
initial measure of implementing the Action Plan in FY2011. The goal, as
publicly posted on OMB's website, states that by the end of FY 2011, EPA will
increase pollutant-reducing enforcement actions in waters that do not meet water
quality standards, and post results and analysis on the web. The HPPG applies
nationwide, but only to enforcement actions taken by EPA. OECA issued final
guidance to implement the HPPG in November 2010.
CONCLUSION
EPA and states must ensure that vigorous enforcement continues to occur while
these changes are being made to improve the effectiveness, efficiency and
transparency of NPDES permitting, compliance and enforcement. These changes will
better equip EPA and states to improve water quality through their regulatory efforts,
provide the public with information it needs to understand and participate in water
quality improvement involving sources in their communities, and motivate regulated
sources to comply by creating a more certain level playing field that is more visible and
transparent to regulators and the public. The end result of all these changes will be
improved water quality for our citizens.
These changes offer a broad range of new approaches, going well beyond
traditional end-of-pipe based compliance and enforcement programs, and better
integrating key components of the NPDES regulatory program, including permitting,
water quality assessments and standards, and compliance and enforcement.
The actions reflect thoughtful discussions between EPA and representatives of
states which considered resource implications to states and EPA, and the need to re-
think how EPA and states implement the NPDES program. A key foundation for these
efforts is the use of 21st century technology to reduce resource burdens and facilitate
more reliable information for decision-making and transparency. The goal of these
efforts is to achieve better water quality and to provide the public with clear,
understandable information about their water quality, the pollution sources impacting its
quality and the actions taken by government officials to protect their waterways.
EPA and states recognize that many of today's water quality problems are
predominately caused by nonpoint sources that are not regulated by the NPDES
program. Thus, EPA held the April 2010 "Coming Together for Clean Water" event to
identify federal and state efforts to address nonpoint source problems while recognizing
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the importance of implementing more effective regulatory programs for point sources
whose discharges can cause serious water quality problems if not properly controlled.
The CWA Action Plan's series of new approaches and program improvements
are aimed at critical NPDES pollution contributions, including those involving
concentrated animal feeding operations, urban storm water discharges and municipal
sewage treatment and collection systems. Some of these actions are already underway
and will be completed and fully implemented this year. Others will require a longer-term
effort and commitment to develop and complete over the next several years. EPA and
states will continue their teamwork and commitment to implement the changes
described above to protect and improve our nation's water quality. As technology and
science is ever changing and evolving, so too must EPA's leadership and vision for the
NPDES program if we are to provide the public with cleaner and better protected water.
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