B-158552.OM, AUG 12, 1980

B-158552.OM: Aug 12, 1980

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DISCUSSED BELOW IT IS OUR POSITION THAT THE PERMIT FORMS SHOULD BE SUBMITTED FOR CLEARANCE. ALTHOUGH THE PERMITS ARE PRIMARILY DESIGNED TO ESTABLISH DISCHARGE LIMITATIONS FOR SPECIFIC POLLUTANTS. MORE STRINGENT REPORTING REQUIREMENTS ARE SET WHEN TOXIC POLLUTANTS ARE DISCHARGED. YOUR AUDIT HAS INDICATED THAT SIGNIFICANT AMOUNTS OF TIME ARE REQUIRED TO MEET RECORD KEEPING AND REPORTING BURDENS THAT ARE COVERED BY PERMIT REQUIREMENTS OTHER THAN THOSE CONTAINED IN THE DISCHARGE MONITORING REPORTS ALREADY SUBMITTED TO OMB. REFLECTS EPA'S BELIEF THAT "THE REPORTING OF COMPLIANCE DATA IS NOT THE KIND OF ROUTINE DATA COLLECTION ADDRESSED BY THE FEDERAL REPORTS ACT. "INFORMATION" IS DEFINED BY 44 U.S.C.

B-158552.OM, AUG 12, 1980

SUBJECT: APPLICABILITY OF FEDERAL REPORTS ACT TO EPA NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM PERMIT FORMS - B-158552-O.M.

DIRECTOR, GCD:

THIS REFERS TO THE FINAL OF A SERIES OF REQUESTS MADE BY MR. MCGRAIL, SUPERVISORY AUDITOR, PHILADELPHIA REGIONAL OFFICE, IN CONNECTION WITH YOUR DIVISION'S CURRENT EVALUATION OF THE PAPERWORK BURDEN IMPOSED BY THE ENVIRONMENTAL PROTECTION AGENCY'S (EPA) REGULATORY PROGRAM AND ITS COMPLIANCE WITH CLEARANCE REQUIREMENTS OF THE FEDERAL REPORTS ACT. HE HAS ASKED WHETHER THE FORMS USED BY EPA FOR NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM (NPDES) PERMITS ISSUED UNDER AUTHORITY OF THE CLEAN WATER ACT (33 U.S.C. SECS. 1251 ET. SEQ. (SUPP. I 1977)) SHOULD BE SUBMITTED TO OMB FOR CLEARANCE UNDER THE FEDERAL REPORTS ACT. DISCUSSED BELOW IT IS OUR POSITION THAT THE PERMIT FORMS SHOULD BE SUBMITTED FOR CLEARANCE.

ALTHOUGH THE PERMITS ARE PRIMARILY DESIGNED TO ESTABLISH DISCHARGE LIMITATIONS FOR SPECIFIC POLLUTANTS, COMPLIANCE SCHEDULES FOR SUCH DISCHARGES AND SELF-MONITORING REQUIREMENTS OF WASTEWATER FLOWS AND OF SPECIFIED POLLUTANTS, THEY ALSO CONTAIN SEVERAL REPORTING AND RECORD KEEPING REQUIREMENTS. PART B OF THE PERMIT ESTABLISHES A SCHEDULE FOR COMPLIANCE WITH SPECIFIED DISCHARGE LIMITATIONS AND REQUIRES EACH PERMITTEE WITHIN 14 CALENDAR DAYS OF EACH DATE IN THE SCHEDULE TO SUBMIT A

"*** WRITTEN REPORT OF PROGRESS OR, IN THE CASE OF SPECIFIC STEPS REQUIRED BY IDENTIFIED DATES, A WRITTEN NOTICE OF COMPLIANCE OR NON COMPLIANCE, AS APPROPRIATE. IN THE LATTER CASE, THE NOTICE SHALL INCLUDE THE CAUSE OF NONCOMPLIANCE, ANY REMEDIAL ACTIONS TAKEN, AND THE PROBABILITY OF MEETING THE NEXT SCHEDULED STEP."

PART C OF THE PERMIT ESTABLISHES A REQUIREMENT FOR SUBMITTING DISCHARGE MONITORING REPORTS, A FORM WHICH HAS BEEN CLEARED BY OMB. PARAGRAPH 5 OF PART C LISTS INFORMATION THE PERMITTEE MUST RECORD FOR EACH MEASUREMENT AND SAMPLE TAKEN, AND PARAGRAPH 7 ESTABLISHES A THREE YEAR RECORDS RETENTION REQUIREMENT.

FINALLY, PART II OF THE PERMIT REQUIRES THE PERMITTEE TO PROVIDE THE EPA REGIONAL ADMINISTRATOR AND THE STATE WITH WRITTEN NOTICE OF FAILURE TO COMPLY WITH ANY MAXIMUM EFFLUENT LIMITATIONS SPECIFIED IN THE PERMIT WITHIN FIVE DAYS OF BECOMING AWARE OF THE NONCOMPLIANCE AND SETS FORTH THREE SPECIFIC CATEGORIES OF INFORMATION TO BE INCLUDED IN THE NOTICE. MORE STRINGENT REPORTING REQUIREMENTS ARE SET WHEN TOXIC POLLUTANTS ARE DISCHARGED.

ALTHOUGH EPA DID SUBMIT THE NPDS PERMIT APPLICATION FORM AND THE DISCHARGE MONITORING REPORT FORM TO OMB, YOUR AUDIT HAS INDICATED THAT SIGNIFICANT AMOUNTS OF TIME ARE REQUIRED TO MEET RECORD KEEPING AND REPORTING BURDENS THAT ARE COVERED BY PERMIT REQUIREMENTS OTHER THAN THOSE CONTAINED IN THE DISCHARGE MONITORING REPORTS ALREADY SUBMITTED TO OMB. THUS THE QUESTION ARISES AS TO WHETHER THE PERMIT FORM ITSELF, IN ADDITION TO THE PERMIT APPLICATION FORM AND THE DISCHARGE MONITORING REPORT FORM, SHOULD BE SUBMITTED TO OMB FOR APPROVAL.

THE MEMORANDUM OF A DISCUSSION HELD WITH EPA OFFICIALS ON JUNE 5, 1980, SUBMITTED BY MR. MCGRAIL, REFLECTS EPA'S BELIEF THAT

"THE REPORTING OF COMPLIANCE DATA IS NOT THE KIND OF ROUTINE DATA COLLECTION ADDRESSED BY THE FEDERAL REPORTS ACT, AND THEREFORE, DOES NOT FALL WITHIN THE PURVIEW OF OMB."

THE EPA REPRESENTATIVES ALSO MAINTAINED THAT THE ADDITIONAL PERMIT REPORTING REQUIREMENTS, SPECIFICALLY THOSE FOR DATA ON CONSTRUCTION COMPLIANCE SCHEDULE MILESTONES AND FOR VIOLATIONS OF DAILY MAXIMUM DISCHARGE LIMITS FOR SPECIFIC POLLUTANTS, DO NOT RESULT IN IDENTICAL INFORMATION COLLECTIONS FROM MORE THAN NINE RESPONDENTS.

WE DISAGREE. THE MANDATORY REPORTING AND RECORD KEEPING REQUIREMENTS INCLUDED IN THE NPDES PERMIT CONSTITUTE IDENTICAL COLLECTIONS OF INFORMATION OR PLANS FOR COLLECTION OF INFORMATION FROM 10 OR MORE PERSONS AS DEFINED BY THE FEDERAL REPORTS ACT AND OMB CIRCULAR NO. A 40. "INFORMATION" IS DEFINED BY 44 U.S.C. SEC. 3502 AS

"FACTS OBTAINED OR SOLICITED BY THE USE OF WRITTEN REPORT FORMS, APPLICATION FORMS, SCHEDULES, QUESTIONNAIRES, OR OTHER SIMILAR METHODS CALLING *** FOR ANSWERS TO IDENTICAL QUESTIONS FROM 10 OR MORE PERSONS OTHER THAN AGENCIES, INSTRUMENTALITIES, OR EMPLOYEES OF THE UNITED STATES

UNDER 44 U.S.C. SEC. 3509 (1976), FEDERAL AGENCIES ARE PROHIBITED FROM CONDUCTING COLLECTION OF INFORMATION ON IDENTICAL ITEMS FROM 10 OR MORE PERSONS UNLESS "THE PLANS OR FORMS, TOGETHER WITH COPIES OF PERTINENT REGULATIONS AND OF OTHER RELATED MATERIALS" SPECIFIED BY OMB HAVE BEEN SUBMITTED IN ADVANCE OF THE "ADOPTION OR REVISION OF ANY PLANS OR FORMS TO BE USED IN THE COLLECTION," AND THE OMB DIRECTOR "HAS STATED THAT HE DOES NOT DISAPPROVE THE PROPOSED COLLECTION OF INFORMATION."

ALTHOUGH THE FEDERAL REPORTS ACT DOES NOT SPECIFICALLY DEFINE THE "PLANS" FOR COLLECTING INFORMATION, OMB'S REGULATIONS DEFINE "PLANS" IN A MANNER WHICH WOULD CLEARLY INCLUDE THE EPA PERMITS. A "PLAN" IS DEFINED AS

"ANY SPECIFIC REQUIREMENT OR GUIDE FOR THE REPORTING OF INFORMATION OR THE ESTABLISHMENT OR MAINTENANCE OF RECORDS *** WHICH ARE TO BE USED OR BE AVAILABLE FOR USE IN THE COLLECTION OF INFORMATION; ANY SUCH REQUIREMENT OR INSTRUCTION AFFECTING THE CONTENT, PREPARATION, RETURN, OR USE OF A PLAN OR REPORT FORM; OR ANY CONTRACT OR AGREEMENT WHICH WILL RESULT IN THE COLLECTION OF INFORMATION ON IDENTICAL ITEMS FROM 10 OR MORE RESPONDENTS." ATTACHMENT A TO OMB CIRCULAR NO. A-40, PARAGRAPH (D) (1976).

BOTH GAO AND OMB HAVE RECOGNIZED THAT PLANS AND REPORTS FOR THE COLLECTION OF INFORMATION ARE NOT LIMITED TO QUESTIONNAIRES AND APPLICATION FORMS. SEE, E.G., B-180224-O.M., JULY 12, 1979. THE BROAD PURPOSE OF THE FEDERAL REPORTS ACT, I.E., TO REQUIRE COLLECTION OF INFORMATION BY FEDERAL AGENCIES FROM THE PUBLIC WITH A MINIMUM BURDEN UPON PERSONS REQUIRED TO FURNISH THE INFORMATION AND WITHOUT UNNECESSARY DUPLICATION OF EFFORT, PRECLUDES USE OF A NARROW DEFINITION. THUS, EVEN THOUGH THE SPECIFIC INFORMATION SUBMITTED BY RESPONDENTS ON CONSTRUCTION COMPLIANCE SCHEDULE MILESTONES AND POLLUTANT DISCHARGE LIMITS WILL VARY FROM RESPONDENT TO RESPONDENT, THE "PLAN" FOR THE SUBMISSION OF SUCH INFORMATION IS THE SAME FOR ALL.

THE EPA PERMITS ESTABLISH REQUIREMENTS FOR COLLECTIONS OF IDENTICAL ITEMS OF INFORMATION FROM THE REGULATED INDUSTRIES AND SET FORTH PLANS FOR THE MANNER AND TIMING BY WHICH SUCH INFORMATION IS TO BE SUPPLIED. THEREFORE, WE CAN SEE NO REASON FOR DISTINGUISHING THE PERMIT FROM THE CLOSELY RELATED APPLICATION FORM AND DISCHARGE MONITORING REPORTS WHICH ARE ALREADY SUBMITTED TO OMB. OF COURSE, THE ULTIMATE AUTHORITY FOR DECIDING WHETHER THE PERMIT FORMS SHOULD BE SUBMITTED FOR CLEARANCE RESTS WITH OMB.