Permit ‘eReporting’ for the National Pollutant Discharge Elimination System: What's at Stake?
The main tool available to the Environmental Protection Agency (EPA) to limit the amount of pollution that entities discharge into the nation’s waterways is to issue permits and to then enforce their provisions. This permitting scheme, known as the National Pollutant Discharge Elimination System (NPDES), requires permittees to monitor their operations and report back to the EPA or an approved state environmental agency. The reports submitted by the regulated entity contain information on whether the polluter met the terms of its permit and are among the most important compliance assurance and enforcement tools available to the EPA, the states, and, by extension, the communities affected by polluting operations.
The reports provide critical compliance information, but they also generate mountains of paperwork. The reports arrive by mail and regulators must enter the information into a database, an error-prone process that can take over-burdened agencies years to complete. Budgets of federal and state environmental agencies have been slashed, and funding for enforcement efforts has been hit hard. Faced with these restraints, the EPA recently announced that it intends to dramatically scale back on enforcement, bringing 28 percent fewer civil cases against industry scofflaws over the next five years than in the previous five, for example.[i] States, which do the lion’s share of on-the-ground enforcement, have also slashed budgets. State environmental agency budgets shrank by approximately $17.5 million from fiscal year 2011 to fiscal year 2012, an average decline of $357,000 per state.[ii]
Between the growing workload and shrinking budgets, the EPA and state agencies are increasingly forced to make tough choices about how they use their scarce resources, sometimes declining to pursue certain enforcement actions even in cases where corporate polluters are blatantly violating the law and causing significant damage to water resources.
A rule requiring permittees to submit their reports electronically could help greatly to alleviate these problems. Such a rule not only makes sense in the 21st century but would also make management, monitoring, and enforcement of NPDES permits more effective and efficient. With ready access to a more complete and accurate set of performance data, the EPA and state agencies could do a better job of making sure the nation’s waterways are clean.
Critically, an electronic reporting rule would help the EPA and its state partners save money, which would free up needed resources to take necessary enforcement actions. Once the rule is in place, states are expected to save up to $28.5 million annually because agency staff will spend significantly less time processing paper submissions and correcting data that were inputted improperly. The EPA, which processes less paperwork than the states, is projected to save $0.7 million for the same reasons. An electronic reporting rule would also deliver significant economic benefits to NPDES permittees. By spending less on paper and postage, the regulated community is estimated to save $1.1 million. The rule is a win-win if there ever was one.
The rule would also enhance transparency and accountability by providing the public with timely information on potential sources of water pollution. By making this more complete set of data available to the public, the EPA would provide communities and citizens with information on facility and government performance that is not currently available. The rule would shine much-needed light on polluters’ performance, which could spur them to address environmental problems faster than they do now.
What’s the Holdup?
In July 2013, the EPA published in the Federal Register a proposed rule that would require electronic reporting for current paper-based NPDES reports.[iii] This followed a nearly 18-month-long review by the White House Office of Information and Regulatory Affairs (OIRA), well beyond the four months that are usually allowed for such reviews. After one extension, the comment period on the proposal closed on December 12, 2013, and the agency received 170 comments, mostly from state agencies.
In April 2014, the EPA went through the highly unusual step of sending a draft supplemental notice of proposed rulemaking to OIRA. Now, seven months later, the draft is still sitting at OIRA. It is unclear what motivated the EPA to take this step or what the supplemental notice contains, as it is not yet public. What is clear is that it will add months or perhaps even more than a year of delay to this critical rulemaking.
What Should the Rule Do?
This proposed rule should require that entities with NPDES permits electronically submit Discharge Monitoring Reports, General Permit reports, and program reports instead of submitting them in paper form. To bolster accountability and transparency, the EPA should make these data available to the public in real time. Since the information provided by the program will be generated by industrial sources, the EPA and state agencies should also develop procedures to carefully verify the data.
Update: In October 2015, the EPA finally published its long overdue final rule establishing eReporting procedures for electronic submissions of Discharge Monitoring Reports to improve implementation of the agencies NPDES water pollution-control program. Unfortunately, the final rule is considerably weaker than the original proposal that the EPA had considered. Most notably, the final rule will delay be several years each of the two phases of implementation of the rule’s requirements. It appears that these changes were made at the behest of corporate polluters, particularly those in the industrial agriculture sector. These delays will no doubt benefit these industry groups, enabling them continue to keep the public in dark about their polluting activities. But, they are huge loss for the public interest, as state and federal efforts to control water pollution will continue to be hampered by inadequate data and reporting, and as public resources will continue to be wasted on inefficient paper reporting processes.