Last month, the Environmental Protection Agency finalized a long overdue rule that was designed, according to EPA’s description, to move the agency “into the 21st Century.” Since many of the rules’ provisions still will not be in effect more than two decades after the turn of the century, this rulemaking plays right into the hands of those who insist that the federal government cannot work efficiently — ironic, because efficiency is the very purpose of the eReporting rule. In this case, the absurdly slow pace of the rulemaking process and the final rule’s protracted implementation schedule also serves the critics’ agenda. Even after more than a decade in the making, the final rule hampers EPA’s ability to shine a light on the problem of underreporting of water pollution in the United States.
The National Pollutant Discharge Elimination System (NPDES) has long been the centerpiece of EPA efforts to implement the Clean Water Act. The success of the NPDES regime is largely attributable to the requirement that large “point sources” of pollution monitor their effluent discharge and provide publicly available reports on this pollution and any violations of their permits. This simple and transparent regulatory system provides a strong incentive for facilities to reduce pollution on their own, inviting legal action by EPA, the states, and concerned citizens for those who do not. Unfortunately, several decades into the digital age, many NPDES regulated point sources are still submitting mountains of paper work that rarely see the light of day, rather than easily obtainable, downloadable, and usable electronic data.
Given this central role of self-reported monitoring and compliance data to the Clean Water Act, it is fair to ask why it has taken EPA so long to bring NPDES fully into the digital age? In fairness, today’s eReporting rule traces its roots all the way back to 2002 when the agency began collaborating with states on an effort to modernize the self-reporting requirements for certain point source sectors. Unfortunately, it took another five years for EPA to merely complete a draft policy statement and then three more years to finalize this policy. In 2010, EPA finally embarked on the process of writing a first draft of what would become today’s rule. But this drafting process took another three years to complete, culminating in the proposal’s publication in the Federal Register in July 2013.
As if this 11-year regulatory development process weren’t bad enough, the proposal then fell into the regulatory abyss that is the White House Office of Information and Regulatory Affairs (OIRA). Instead of proceeding through the normal public comment period, during which EPA responds to reasonable comments, the rule was hijacked by OIRA and held up for almost a year and a half — more than a year longer than called for in the executive order that empowers OIRA review. Now that the final text of the rule has been released, along with the regulatory docket of public comments, we can get a glimpse into what may have been happening behind the scenes at OIRA while the rule was sitting in bureaucratic purgatory.
A glance at the 228 public comment submissions received by EPA on the initial rule proposed in July 2013 and the supplemental notice published in December 2014 show that, besides the many state and interstate entities tasked with implementing many of the changes under the rule, the main source of comments was from industry, with the agricultural industry a prolific source of comments. This lobbying certainly paid off. The final rule was significantly weakened by EPA compared to the initial proposal, and many of the most important changes made directly benefitted animal feeding operations.
In addition to reducing paperwork and increasing the standardization of information submitted by traditionally regulated point sources, one of the other primary benefits of the eReporting rule was supposed to be an expansion of the universe of point sources subject to comprehensive electronic reporting. Many of the gains made under the Clean Water Act have been accomplished by individually permitted major facilities, with smaller facilities and other sources of pollution such as municipal storm sewers and animal feeding operations subject to less effective general permits and fewer reporting requirements. As framed by EPA, a key purpose of the eReporting rule is putting all point sources on a relatively level playing field by requiring each state and industry to report a nationally uniform and consistent set of data available to state and federal regulators and the public through the Environmental Compliance History Online (ECHO) database. But EPA failed to achieve this with the final rule.
EPA apparently caved under pressure from industry and some states (perhaps representing, in part, the interests of favored industries within those states) to delay, from two years to five years, the timeframe for moving from the first phase of the rule to the second phase. The first phase of the rule, which takes effect one year from the effective date of the regulation (to be determined), affects traditional facilities submitting discharge monitoring reports (DMRs) and requires states to submit to EPA certain enforcement and compliance and state performance data. But the second phase of the rule, which would have begun two years after the effective date of the regulation (perhaps late 2017) under the proposed rule will be delayed under the final rule until likely sometime in 2020. Thus, “wet weather” dischargers of polluted runoff such as confined animal feeding operations (CAFOs) and municipal sewer systems (MS4s) may continue to keep environmental data effectively out of the public eye and away from EPA’s valuable ECHO database until well into the next decade.
Not only did the final rule significantly delay the effective date of phase two, but it also recoded several important sources of information from phase one data to phase two data, thereby delaying the date by which such information will become subject to the rule’s requirements. This data includes general permit reports, which in some cases are among the only sources of information available to the public about the facilities covered under a general permit. Worse yet, EPA announced through the final rule that, separate from this rulemaking, it would begin masking basic information that is currently available about animal feeding operations due to “privacy concerns” expressed by the agricultural industry to EPA while the rule was being held up. After firmly and repeatedly pushing back against many of the criticisms posed by agricultural interests in public comments to the proposed rule, EPA later decided, contrary to the very purpose of this rule, to make information about CAFOs less transparent and publicly available under the final rule. Finally, adding insult to injury, EPA expanded the effect temporary waivers for facilities, such as CAFOs, operated by individuals that may not have broadband access by granting additional flexibility to states regarding how they will implement the rule’s waiver provisions. In short, it may be a very long time before EPA regulators, much less concerned citizens, have a full grasp of the nature of agricultural pollution from animal feeding operations.
In the face of continuing and crippling cuts to EPA’s enforcement budget, the agency has had to get creative in how it tries to combat polluters. Recent initiatives such as “Next Generation Compliance” and “Making a Visible Difference” rely on increasing citizen’s access to public health and environmental information about their own communities. Providing comprehensive, accurate, and easily accessible data gives citizens tremendous leverage, which supplements waning state and federal enforcement resources and incentivizes industrial and municipal entities to correct violations and reduce their pollution. EPA has blown a tremendous opportunity to show that these newfangled enforcement ideas can indeed reduce pollution. The agency has done a disservice to itself and the public with a weakened final eReporting rule.