[Federal Register Volume 76, Number 204 (Friday, October 21, 2011)]
[Proposed Rules]
[Pages 65431-65458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27189]
[[Page 65431]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 122
[EPA-HQ-OW-2011-0188; FRL-9481-7]
RIN 2040-AF22
National Pollutant Discharge Elimination System (NPDES)
Concentrated Animal Feeding Operation (CAFO) Reporting Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA co-proposes two options for obtaining basic information
from CAFOs to support EPA in meeting its water quality protection
responsibilities under the Clean Water Act (CWA). The purpose of this
co-proposal is to improve and restore water quality by collecting
facility-specific information that would improve EPA's ability to
effectively implement the NPDES program and to ensure that CAFOs are
complying with the requirements of the CWA. Under one co-proposed
option, EPA would use the authority of CWA section 308 to obtain
certain identifying information from all CAFOs. Under the other option,
EPA could use the authority of CWA section 308 to obtain this
information from CAFOs that fall within areas that have been identified
as having water quality concerns likely associated with CAFOs (focus
watersheds). However, EPA would make every reasonable effort to assess
the utility of existing publicly available data and programs to obtain
identifying information about CAFOs by working with partners at the
Federal, state, and local level before determining whether an
information collection request is necessary. This information would
allow EPA to achieve more efficiently and effectively the water quality
protection goals and objectives of the CWA. EPA also requests comment
on three alternative approaches to gather information about CAFOs,
which could be used to achieve the objectives of this proposed action
in protecting water quality.
DATES: Comments on this proposed action must be received on or before
December 20, 2011. EPA plans to hold two Webinars in November, 2011 to
provide an overview of, and answer questions about, the proposed rule
requirements.
ADDRESSES: Comments: Submit your comments, identified by Docket ID No.
EPA-HQ-OW-2011-0188, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected], Attention Docket ID No. EPA-HQ-
OW-2011-0188.
Fax: (202) 566-9744.
Mail: Water Docket, Environmental Protection Agency,
Mailcode: 28221T, Attention Docket ID No. EPA-HQ-OW-2011-0188, 1200
Pennsylvania Ave., NW., Washington, DC 20460. In addition, please mail
a copy of your comments on the information collection provisions to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW.,
Washington, DC 20503.
Hand Delivery: EPA Docket Center, EPA West, Room 3334,
1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No.
EPA-HQ-OW-2011-0188. Such deliveries are accepted only during the
Docket Center's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2011-
0188. EPA's policy is that all comments received will be included in
the public docket without change and could be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means that EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment because of
technical difficulties and cannot contact you for clarification, EPA
might not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses. For additional information about EPA's
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on
submitting comments, go to the SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Water Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC
20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding Federal holidays. The telephone number
for the Public Reading Room is (202) 566-1744, and the telephone number
for the Water Docket is (202) 566-2426.
Webinar: EPA plans to hold two Webinars in November, 2011 to
provide an overview of, and answer questions about, the proposed rule
requirements. Information about how to register and access the Webinar
can be found on EPA's Web site at http://cfpub.epa.gov/npdes/afo/aforule.cfm no later than October 24, 2011.
FOR FURTHER INFORMATION CONTACT: For additional information contact,
Becky Mitschele, Water Permits Division, Office of Wastewater
Management (4203M), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202)
564-6418; fax number (202) 564-6384; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
C. Under what legal authority is this rule proposed?
II. Background
A. The Clean Water Act
B. Environmental and Human Health Impacts of CAFOs
C. United States Government Accountability Office Report
D. United States Office of Management and Budget Report
E. Litigation Regarding the 2008 Revised NPDES Permit Regulation
and Effluent Limitations Guidelines for CAFOs in Response to the
Waterkeeper Decision
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III. This Proposed Action
A. Proposed Action Overview and Objectives
B. CWA Section 308 Data Collection and EPA's Approach Toward
Collecting Facility-Specific Information From CAFOs Through
Rulemaking
C. Option 1 Would Apply to All CAFOs
1. What information would EPA require as part of an information
gathering survey for CAFOs and why is EPA proposing to require this
information?
2. What information would EPA not require as part of the
collection request survey for CAFOs?
3. Who would be required to submit the information?
4. When would States that choose to submit the information be
allowed to provide the information to EPA and when would CAFOs be
required to submit the information to EPA?
5. How would CAFOs submit the information to EPA?
6. How would States submit the information to EPA?
D. Option 2 Would Apply to CAFOs in a Focus Watershed
1. How would EPA identify a focus watershed?
2. Considerations When Determining Whether a Focus Watershed
Meets the Criteria for Water Quality Protection
3. How would EPA identify CAFOs from which additional
information is needed?
4. What information would EPA require as part of an information
gathering survey for CAFOs in a focus watershed?
5. How would EPA geographically define a focus watershed?
6. How would EPA inform CAFOs of their responsibility if they
were required to respond to an information request?
7. When would CAFOs in a focus watershed be required to submit
the information to EPA?
8. How would CAFOs in a focus watershed submit information to
EPA?
E. Failure To Provide the Information as Required by This
Proposed Action
F. Alternative Approaches To Achieve Rule Objectives
1. Use of Existing Data Sources
2. Alternative Mechanisms for Promoting Environmental
Stewardship and Compliance
3. Require Authorized States to Submit CAFO Information From
Their CAFO Regulatory Programs and Only Collect Information From
CAFOs if a State Does Not Report
IV. Impact Analysis
A. Benefits and Costs Overview
B. Administrative Burden Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Does this action apply to me?
This proposed rulemaking would apply to concentrated animal feeding
operations (CAFOs) as defined in the National Pollutant Discharge
Elimination System (NPDES) regulations at 40 CFR 122.23(b)(2), pursuant
to section 502(14) of the Clean Water Act (``CWA''). An animal feeding
operation (AFO) is a CAFO if it meets the regulatory definition of a
Large or Medium CAFO (40 CFR 122.23 (b)(4) or (6)) or has been
designated as a CAFO (40 CFR 122.23 (c)) by the NPDES permitting
authority or by EPA. The following table provides the size thresholds
for Large, Medium and Small CAFOs in each animal sector.
Table 1--Summary of CAFO Size Thresholds for All Sectors
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Sector Large Medium \1\ Small \2\
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Cattle or cow/calf pairs........... 1,000 or more........ 300-999.............. Less than 300.
Mature diary cattle................ 700 or more.......... 200-699.............. Less than 200.
Veal calves........................ 1,000 or more........ 300-999.............. Less than 300.
Swine (weighing over 55 pounds).... 2,500 or more........ 750-2,499............ Less than 750.
Swine (weighing less than 55 10,000 or more....... 3,000-9,999.......... Less than 3,000.
pounds).
Horses............................. 500 or more.......... 150-499.............. Less than 150.
Sheep or lambs..................... 10,000 or more....... 3,000-9,999.......... Less than 3,000.
Turkeys............................ 55,000 or more....... 16,500-54,999........ Less than 16,500.
Laying hens or broilers (liquid 30,000 or more....... 9,000-29,999......... Less than 9,000.
manure handling system).
Chickens other than laying hens 125,000 or more...... 37,500-124,999....... Less than 37,500.
(other than a liquid manure
handling system).
Laying hens (other than a liquid 82,000 or more....... 25,000-81,999........ Less than 25,000.
manure handling system).
Ducks ( other than a liquid manure 30,000 or more....... 10,000-29,999........ Less than 10,000.
handling system).
Ducks (liquid manure handling 5,000 or more........ 1,500-4,999.......... Less than 1,500.
system).
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Notes:
\1\ May be designated or must meet one of the following two criteria to be defined as a medium CAFO: (A)
Discharges pollutants through a man-made device; or (B) directly discharges pollutants into waters of the
United States which pass over, across, or through the facility or otherwise come into direct contact with the
confined animals. 40 CFR 122.23(b)(6).
\2\ Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis. 40 CFR
122.23(b)(9).
That table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
proposed rulemaking. The table lists the types of entities that EPA is
currently aware of that could be regulated by this action. Other types
of entities not listed in the table could also be CAFOs. The owners or
operators of AFOs that have not been designated and that do not confine
the required number of animals to meet the definition of a Large or
Medium CAFO are not required to submit information.
To determine whether your operation is a CAFO, you should carefully
examine the applicability criteria in 40 CFR 122.23. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
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B. What should I consider as I prepare my comments for EPA?
1. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency might ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
2. Submitting Comments to EPA
Direct your comments to Docket ID No. EPA-HQ-OW-2011-0188. EPA's
policy is that all comments received will be included in the public
docket without change and could be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means that EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment because of
technical difficulties and cannot contact you for clarification, EPA
might not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
3. Submitting Confidential Business Information
Do not submit CBI information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part of or all the
information that you claim to be CBI. For CBI information on a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
C. Under what legal authority is this proposed action issued?
Today's proposed rulemaking is issued under the authority of
sections 301, 304, 305, 308, 309, 402, 501, and 504 of the CWA, 33
U.S.C. 1311, 1314, 1315, 1318, 1319, 1342, and 1361.
II. Background
A. The Clean Water Act
Congress passed the Federal Water Pollution Control Act Amendments
of 1972, (``Clean Water Act'' or ``CWA'') to ``restore and maintain the
chemical, physical, and biological integrity of the nation's waters''
33 U.S.C. 1251(a). Section 301(a) of the CWA prohibits the ``discharge
of any pollutant by any person'' except in compliance with the Act. 33
U.S.C. 1311(a). Among the core provisions, the CWA establishes the
National Pollutant Discharge Elimination System (NPDES) permit program
to authorize and regulate the discharge of pollutants from point
sources to waters of the United States. 33 U.S.C. 1342. Section 502(14)
of the CWA includes the term ``CAFO'' in the definition of ``point
source;'' specifically, the term ``point source'' is defined as ``any
discernible, confined and discrete conveyance, including but not
limited to any * * * concentrated animal feeding operation * * * from
which pollutants are or may be discharged * * *'' 33 U.S.C. 1362(14).
Section 501 authorizes the Administrator to promulgate rules to carry
out the Administrator's functions under the CWA. EPA has issued
comprehensive regulations that implement the NPDES program at 40 CFR
parts 122-124.
Section 308 of the CWA authorizes EPA to collect information from
the ``owner or operator of any point source'' for the following
purpose:
To carry out the objectives of [the CWA], including but not limited
to (1) developing or assisting in the development of any effluent
limitation, or other limitation, prohibition, or effluent standard,
pretreatment standard, or standard of performance under [the CWA];
(2) determining whether any person is in violation of any such
effluent limitation, or other limitation, prohibition or effluent
standard, pretreatment standard, or standard of performance; (3) any
requirement established under [Sec. 308 of the CWA]; or (4)
carrying out [sections 305, 311, 402, 404 (relating to state permit
programs), 405 and 504 of the CWA]. * * * 33 U.S.C. 1318(a).
Section 308(a)(3)(A) of the Act provides that, in furtherance of
the stated objectives, EPA may require owners or operators of point
sources to establish and maintain records; make reports; install, use,
and maintain monitoring equipment; sample effluent; and provide such
other information as EPA may reasonably require to carry out the
objectives of the Act. 33 U.S.C. 1318(a). Section 309 of the CWA
authorizes EPA to assess penalties for violations of section 308 of the
CWA. 33 U.S.C. 1319.
B. Environmental and Human Health Impacts of CAFOs
Despite more than 35 years of regulating CAFOs, reports of water
quality impacts from large animal feeding operations persist. At the
time of the 2003 CAFO rulemaking, the Agency received estimates from
USDA indicating that livestock operations where animals are confined
produce more than 300 million tons of manure annually. 68 FR 7180. On
the basis of that figure, EPA estimated that animals raised in
confinement generate more than three times the amount of raw waste than
the amount of waste that is generated by humans in the United States.
Id. For the 2003 CAFO rulemaking, EPA estimated that CAFOs collectively
produce 60 percent of all manure generated by farms that confine
animals. Id.
Pollutants from manure, litter, and process wastewater can affect
human health and the environment. Whether from poultry, cattle, or
swine, the manure, litter and process wastewater contains substantial
amounts of nutrients (nitrogen, phosphorus, and
[[Page 65434]]
potassium), pathogens, heavy metals, and smaller amounts of other
elements and pharmaceuticals. This manure, litter, and process
wastewater commonly is applied to crops associated with CAFO operations
or transferred off site. Where over-applied or applied before
precipitation events, excess nutrients can flow off of agricultural
fields, causing harmful aquatic plant growth, commonly referred to as
``algal blooms,'' which can cause fish kills and contribute to ``dead
zones.'' In addition, algal blooms often release toxins that are
harmful to human health.
To improve the Agency's ability to estimate ecological and human
risk for chemical and microbial contaminants that enter water
resources, EPA is continuing research to evaluate the effect of CAFOs
on surface and ground water quality. Effective control of pathogens
originating in livestock manure or poultry litter could improve human
and ecosystem health through reductions in waterborne disease organisms
and chemicals. More than 40 diseases found in manure can be transferred
to humans, including causative agents for Salmonellosis, Tuberculosis,
Leptospirosis, infantile diarrheal disease, Q-Fever, Trichinosis, and
Giardiasis. Exposure to waterborne pathogen contaminants can result
from both recreational use of affected surface water (accidental
ingestion of contaminated water and dermal contact during swimming) and
from ingestion of drinking water derived from either contaminated
surface water or groundwater. JoAnn Burkholder, et al., Impacts of
Waste from Concentrated Animal Feeding Operations on Water Quality, 115
Env't Health Perspectives 310 (2007).
Heavy metals such as arsenic, cadmium, iron, lead, manganese, and
nickel are commonly found in CAFO manure, litter, and process
wastewater. Some heavy metals, such as copper and zinc, are essential
nutrients for animal growth--especially for cattle, swine and poultry.
However, farm animals excrete excess heavy metals in their manure,
which in turn is spread as fertilizer, causing potential runoff
problems. U.S. EPA, Risk Assessment Evaluation for Concentrated Animal
Feeding Operations, EPA-600-R-04-042 (2004); and U.S. EPA, Development
Document for the Final Revisions to the National Pollutant Discharge
Elimination System Regulation and the Effluent Guidelines for
Concentrated Animal Feeding Operation, EPA-821-R-032-001 (2002). EPA
reported approximately 80 to 90 percent of the copper, zinc, and
arsenic consumed is excreted. Possible adverse effects reported in the
literature include the risk of phytotoxicity, groundwater contamination
and deposition in river sediment that may eventually release to pollute
the water. U.S. EPA, Risk Assessment Evaluation for Concentrated Animal
Feeding Operations, EPA-600-R-04-042 (2004), pp. 43-46. Repeated
application of manure above agronomic rates could result in exceedances
of the cumulative metal loading rates established in EPA regulations at
40 CFR part 503, thereby potentially impacting human health and the
environment. U.S. EPA, Preliminary Data Summary Feedlots Point Source
Category Study, EPA-821-R-99-002 (1999), pp. 26-27. The health hazards
that may result from chronic exposure to heavy metals at certain
concentrations can include kidney problems from cadmium, Public Health
Statement Cadmium (CAS 7440-43-9), available at http://www.atsdr.cdc.gov/PHS/PHS.asp?id=46&tid=15; nervous system disorders,
and neurodevelopmental problems (IQ deficits) from lead, Lead and
Compounds (inorganic) (CASRN 7439-92-1), available at http://www.epa.gov/iris/subst/0277.htm; and cardiovascular effects, diabetes,
respiratory effects, nervous system problems, and reproductive effects
and cancers from multiple tissues from arsenic, NRC Arsenic in Drinking
Water, National Academy Press (2001), available at http://www.nap.edu/openbook/0309076293/html/R1.html.
To promote growth and to control the spread of disease,
antibiotics, growth hormones and other pharmaceutical agents are often
added to feed rations or water, directly injected into animals, or
administered via ear implants or tags. The annual amount of
antimicrobial drugs sold and distributed in 2009 for use in food
animals was 13.3 million kilograms or 28.8 million pounds. U.S. Food
and Drug Administration, 2009 Summary Report on Antimicrobials Sold or
Distributed for Use in Food-producing Animals (2010). This was a
significant increase in the annual use from 8.8 million kilograms or
approximately 18 million pounds reported in 1995. U.S. Congress, Office
of Technology Assessment, Impacts of Antibiotic-Resistant Bacteria,
OTA-H-629 (1995).
Most antibiotics are not metabolized completely and are excreted
from the treated animal shortly after medication. As much as 80-90
percent of some administered antibiotics occur as parent compounds in
animal wastes. Scott Bradford et al., Reuse of Concentrated Animal
Feeding Operation Wastewater on Agricultural Lands, 37 J. Env't Quality
97 (2008). Synthetic steroid hormones are extensively used as growth
promoters for cattle in the United States. Id. Steroid hormones are of
particular concern because there is laboratory evidence that very low
concentrations of these chemicals can adversely affect the reproduction
of fish and other aquatic species. Id. The dosing of livestock animals
with antimicrobial agents for growth promotion and prophylaxis may
promote antimicrobial resistance in pathogens, increasing the severity
of disease and limiting treatment options for sickened individuals.
U.S. EPA, Detecting and Mitigating the Environmental Impact of Fecal
Pathogens Originating from Confined Animal Feeding Operations: Review,
EPA600-R-06-021 (2005).
In the most recent National Water Quality Inventory, 29 states
specifically identified animal feeding operations as contributing to
water quality impairment. U.S. EPA, National Water Quality Inventory:
Report to Congress--2004 Reporting Cycle, January 2009. EPA-841-R-08-
001. The findings of this report are corroborated by numerous reports
and studies conducted by government and independent researchers that
identify the animal livestock industry as an important contributor of
surface water pollution. For example, the GAO found in its 2008 Report
to Congressional Requesters that since 2002, 68 studies had been
completed that examined air and water quality issues associated with
animal feeding operations. Fifteen of those have directly linked air
and water pollutants from animal waste to specific health or
environmental impacts. GAO-08-944 (2008). For further discussion of
this Report, see the section United States Government Accountability
Office Report of this preamble.
Water quality impacts from CAFOs may be due, in part, to inadequate
compliance with existing regulations or to limitations in CAFO
permitting programs. EPA believes that basic information about CAFOs
would assist the Agency in addressing those problems. Complete and
accurate information allows governments, regulated communities,
interest groups and the public to make more informed decisions
regarding ways to protect the environment.
C. United States Government Accountability Office Report
In September 2008, the United States Government Accountability
Office (GAO) issued a report to congressional requesters, recommending
that EPA ``should complete the Agency's effort to develop a national
inventory of
[[Page 65435]]
permitted CAFOs and incorporate appropriate internal controls to ensure
the quality of the data.'' U.S. Gov't Accountability Office,
Concentrated Animal Feeding Operations--EPA Needs More Information and
a Clearly Defined Strategy to Protect Air and Water Quality, GAO-08-944
5 (2008), page 48. EPA officials stated that ``EPA does not have data
on the number and location of CAFOs nationwide and the amount of
discharges from these operations. Without this information and data on
how pollutant concentrations vary by type of operation, it is difficult
to estimate the actual discharges occurring and to assess the extent to
which CAFOs may be contributing to water pollution.'', Id. page 31. The
report also stated that ``despite its long-term regulation of CAFOs, *
* * EPA has neither the information it needs to assess the extent to
which CAFOs may be contributing to water pollution, nor the information
it needs to ensure compliance with the Clean Water Act.'' Id. page 48.
The GAO report contains a review of EPA's data on permitted CAFOs,
and the GAO determined that data obtained from state agencies ``are
inconsistent and inaccurate and do not provide EPA with the reliable
data it needs to identify and inspect permitted CAFOs nationwide.'' Id.
page 17. EPA had received its data from EPA Regional offices and from
the states relating to permits issued to CAFOs between 2003 and 2008.
GAO interviewed officials in 47 states to determine the accuracy and
reliability of the data EPA collected. On the basis of that
information, GAO determined that EPA's data was not reliable and could
not be used to identify trends in permitted CAFOs over the five-year
period. In addition to reviewing EPA's data on CAFOs, the GAO also
reviewed data from other Federal agencies. GAO concluded that no
Federal agency currently collects accurate and consistent data on the
number, size, and location of CAFOs as defined by the CAFO regulations.
Id. page 4. EPA responded to the draft GAO report stating that the
Agency would develop a comprehensive national inventory of CAFOs. Id.
page 76.
D. United States Office of Management and Budget Report
More recently, the Office of Management and Budget (OMB) issued a
report to Congress that describes the value of data collection efforts
that minimize burden on reporting entities and have practical utility.
In this report, OMB identifies the benefits and costs of Federal
regulations and unfunded mandates on states, local and tribal entities.
U.S. Office of Management and Budget, 2011 Report to Congress on the
Benefits and Costs of Federal Regulations and Unfunded Mandates on
State, Local, and Tribal Entities (2001). This report stressed the
importance of ensuring that regulations are ``evidence-based and data-
driven and hence based on the best available work in both science and
social science.'' Id. page 5. Specifically, the report briefly outlines
steps and best practices that are consistent with OMB's recent
recommendations for ``flexible, empirically informed approaches;
increased openness about costs and benefits; and the use of disclosure
as a regulatory tool.'' Id. page 5. EPA believes that today's co-
proposed rulemaking would be consistent with OMB's recommendations by
promoting transparency and providing a comprehensive body of data that
would serve as a basis for sound decision-making about EPA's CAFO
program.
E. Litigation Regarding the 2008 Revised NPDES Permit Regulation and
Effluent Limitations Guidelines for CAFOs in Response to the
Waterkeeper Decision
EPA's regulation of discharges from CAFOs dates to the 1970s. EPA
initially issued national effluent limitations guidelines and standards
(ELGs) for feedlots, on February 14, 1974 and NPDES CAFO regulations on
March 18, 1976. 39 FR 5704; 41 FR 11458. In February 2003, EPA issued
revised CWA permitting requirements, ELGs and new source performance
standards for CAFOs. 68 FR 7176. The 2003 CAFO rule required the owners
or operators of all CAFOs to seek coverage under an NPDES permit,
unless they demonstrated no potential to discharge. With implementation
of the 2003 rule, EPA and state permitting authorities would have
obtained information about the universe of CAFOs. However, both
environmental groups and industry challenged the 2003 final rule, and
in February 2005, the U.S. Court of Appeals for the Second Circuit
issued its decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486
(2d Cir. 2005). Among other things, the court held that EPA does not
have authority under the CWA to require CAFOs that have only a
potential to discharge to obtain NPDES permits.
In 2008, EPA issued revised regulations in response to the
Waterkeeper decision. Among other changes, the revised regulations
required only those CAFOs that discharge or propose to discharge to
obtain an NPDES permit. Subsequently, environmental groups and industry
filed petitions for review of the 2008 rule, which were consolidated in
the U.S. Court of Appeals for the Fifth Circuit. EPA signed a
settlement agreement with the environmental petitioners in which EPA
committed to propose a rule, pursuant to CWA section 308, that would
require CAFOs to provide certain information to EPA. The settlement
agreement provides the context and timeline for this proposed
rulemaking.
The settlement agreement commits EPA to propose, by October 14,
2011, a rule under section 308 of the CWA, 33 U.S.C. 1318, to require
all owners or operators of CAFOs, whether or not they have NPDES
permits, to submit certain information to EPA. EPA agreed to propose a
rule requiring CAFOs to submit the information listed below; or, if EPA
decides not to include one of the items in the proposal, EPA would
identify the item(s), explain why EPA chose not to propose requiring
that information and request comment on the excluded items. EPA
committed to take final action on the rule by July 13, 2012. The
settlement agreement does not commit EPA to the substance of any final
action. The settlement agreement expressly states that nothing in the
agreement shall be construed to limit or modify the discretion accorded
EPA by the CWA or by general principals of administrative law. Nor does
the CWA require EPA to collect the information proposed in today's
notice.
The items listed in the settlement agreement to be addressed in the
proposal include the following:
1. Name and address of the owner and operator;
2. If contract operation, name and address of the integrator;
3. Location (longitude and latitude) of the operation;
4. Type of facility;
5. Number and type(s) of animals;
6. Type and capacity of manure storage;
7. Quantity of manure, process wastewater, and litter generated
annually by the CAFO;
8. Whether the CAFO land-applies;
9. Available acreage for land application;
10. If the CAFO land-applies, whether it implements a nutrient
management plan for land application;
11. If the CAFO land-applies, whether it employs nutrient
management practices and keeps records on site consistent with 40 CFR
122.23(e);
12. If the CAFO does not land apply, alternative uses of manure,
litter and/or wastewater;
13. Whether the CAFO transfers manure off site, and if so, quantity
transferred to recipient(s) of transferred manure; and
[[Page 65436]]
14. Whether the CAFO has applied for an NPDES permit
On March 15, 2011, the Fifth Circuit Court of Appeals vacated the
requirement in EPA's 2008 CAFO rule that CAFOs that ``propose'' to
discharge obtain NPDES permits and held that CAFOs are not liable under
the CWA for failing to apply for NPDES permits. Nat'l Pork Producers
Council (NPPC) v. EPA, 635 F.3d 738 (5th Cir. 2011) (herein referred to
as NPCC). The Fifth Circuit held that there must be an ``actual
discharge to trigger the CWA requirement to obtain a permit.'' NPPC,
635 F.3d at 751. EPA's authority to collect information under section
308 from ``point sources'' is broader than EPA's authority to require
and enforce a requirement to apply for an NPDES permit, as interpreted
by NPPC. In particular, EPA is authorized under section 308 to collect
information from any point source, and point sources are defined to
include ``any discernible, confined and discrete conveyance, including
* * * any * * * concentrated animal feeding operation * * * from which
pollutants are or may be discharged.'' 33 U.S.C. 1362(14). Today's
proposed rulemaking is therefore not affected by this ruling of the
Fifth Circuit Court of Appeals.
In vacating the requirement that CAFOs that propose to discharge
apply for an NPDES permit (the ``duty to apply'' provision), the court
held that ``there must be an actual discharge into navigable waters to
trigger the CWA's requirements and the EPA's authority. Accordingly,
EPA's authority is limited to the regulation of CAFOs that discharge.''
NPPC, 635 F.3d at 751. The court's holding that EPA may regulate only
those CAFOs that discharge is limited to the specific type of
regulation at issue before the court: the duty to apply for a permit.
Today's notice proposes options for gathering basic information from
CAFOs; it does not require them to obtain permits.
EPA proposes to gather information from CAFOs pursuant to its
authority in CWA section 308 to collect information. This information-
gathering authority is broader than EPA's authority to require permit
coverage, which was at issue in NPPC. Section 308 authorizes
information collection from ``point sources,'' which includes CAFOs
that discharge or may discharge. 33 U.S.C 1318(a); 1362(14) (the term
``point source'' is defined as ``any discernible, confined, and
discrete conveyance, including * * * any * * * concentrated animal
feeding operation * * * from which pollutants are or may be discharged
* * *''). The plain language of section 308 expressly authorizes
information collection for a list of purposes including assistance in
developing, implementing, and enforcing effluent limitations or
standards, such as the prohibition against discharging without a
permit. 33 U.S.C. 1318(a). The information EPA proposes to collect is
limited to basic information about CAFOs and would enable EPA, states,
and others to determine the number of CAFOs in the United States and
where they are located and would assist EPA in developing,
implementing, and enforcing the requirements of the Act.
III. This Proposed Action
A. Proposed Action Overview and Objectives
The purpose of this co-proposal is to improve and restore water
quality by collecting facility-specific information that would improve
EPA's ability to effectively implement the NPDES program and to ensure
that CAFOs are complying with the requirements of the CWA, including
the requirement to obtain an NPDES permit if they discharge pollutants
to waters of the U.S. Section 402 of the CWA authorizes EPA to regulate
all point source discharges through the NPDES permitting program. The
NPDES program regulates discharges from such industries as
manufacturing and processing plants (e.g., textile mills, pulp and
paper mills), municipal wastewater treatment plants, construction sites
and CAFOs. Unlike many other point source industries, EPA does not have
facility-specific information for all CAFOs in the United States.
Facility location and basic operational characteristics that relate to
how and why a facility may discharge is essential information needed to
carry out NPDES programmatic functions, which include the following:
Evaluating NPDES program effectiveness;
Identifying and permitting CAFOs that discharge;
Conducting education and outreach to promote best
management practices;
Determining potential sources of water quality impairments
and taking steps to address those impairments;
Estimating CAFO pollutant loadings--by facility, by
watershed, or some other geographical area; and
Targeting resources for compliance assistance or
enforcement.
The six categories listed above represent key activities necessary
to ensure that CAFOs are meeting their obligations under the CWA
regarding protection of water quality from CAFO discharges and can be
carried out most efficiently and effectively when EPA and states have
access to facility contacts and other basic information about CAFOs.
This information could be used to better protect public health and
welfare of communities near CAFOs, including environmental justice for
minority, indigenous or low-income communities.
In today's proposed rulemaking, EPA co-proposes two options by
which the Agency may achieve today's rule objectives: Option 1 (Section
C.) would apply to all CAFOs; Option 2 (Section D) would identify focus
watersheds where CAFO discharges may be causing water quality concerns
and EPA could use its section 308 authority to obtain information from
CAFOs in these areas. However, EPA would make every reasonable effort
to assess the utility of existing publicly available data and programs
to identify CAFOs by working with partners at the Federal, state, and
local level before determining whether requiring CAFOs to provide the
information is necessary. Both of these options propose revisions to
the NPDES regulations, which would allow EPA to obtain necessary
information from CAFOs, including their contact information, location
of the CAFO's production area, NPDES permitting status, number, and
type of animals, and number of acres available for land application.
Section F. Alternative Approaches to Achieve Rule Objectives discusses
alternative approaches to a regulatory information request for CAFOs
that may achieve similar outcomes (i.e., ensuring that CAFOs are
complying with their obligations under the CWA).
B. CWA Section 308 Data Collection and EPA's Approach Toward Collecting
Facility-Specific Information From CAFOs Through Rulemaking
The proposed rulemaking utilizes EPA's authority under section 308
of the CWA, which authorizes EPA to collect information from point
sources when necessary to carry out the objectives of the CWA. Since
the 1970s, EPA routinely has used its authority under section 308 of
the Act to collect information from large groups of point sources when
developing and reviewing ELGs. An ELG survey typically will request
industrial sources to provide information such as the type and amount
of pollutants discharged, technologies available to treat waste
streams, the performance capability of these technologies, and
financial data. EPA uses this information to determine the appropriate
control requirements and to assess the economic feasibility of such
additional controls. As an
[[Page 65437]]
example, when reviewing the ELGs applicable to the steam electric
industry, EPA determined that the data available at that time did not
include all wastewater streams generated by the steam electric
industry. To address this deficiency, EPA issued detailed
questionnaires to the industry, which required the industry to respond
to questions including contact information, facility address,
pollutants in wastewater discharges, volume of discharges, and types
and performance of technologies employed to treat the wastewater along
with financial information. When developing ELGs for coal bed methane
extractions, EPA conducted an industry survey to evaluate the volume of
water produced from extraction; the management, storage, treatment and
disposal options; and the environmental impacts of surface discharges.
Information collection under the CWA, thus, has been a frequently used
tool to develop appropriate and environmentally protective standards.
There is precedent for EPA using its section 308 authority to
collect information from entities not currently required to obtain
NPDES permits. Recently, EPA conducted surveys to gather information to
help assess the impact of potential changes that the Agency is
considering to its existing stormwater requirements. As part of this
effort, EPA sent questionnaires to regulated Municipal Separate Storm
Sewer System (MS4s), non-regulated MS4s, transportation MS4s, NPDES
permitting authorities, and owners and operators of developed sites.
EPA can use a variety of methods to obtain data required by
information collection requests under section 308. The most common
method is to mail questionnaires directly to industry contacts.
However, because EPA does not know the names and addresses of all
CAFOs, mailing surveys to CAFOs is not possible; therefore, a rule is
necessary to collect the information. The final Federal Register notice
would contain the information collection request form (see the proposed
form at the end of this preamble). Under Option 1, CAFOs would be
required to respond to the request as issued in the Federal Register
unless a state chooses to provide the information on behalf of a CAFO.
Under Option 2, CAFOs in a focus watershed would be required to
respond, but EPA would make every reasonable effort to assess the
utility of existing publicly available data and programs to identify
CAFOs by working with partners at the Federal, state, and local level
before determining whether requiring CAFOs to respond to a survey
request is necessary. This request would be accomplished through a
locally-applicable notice in the Federal Register along with other
forms of local outreach. In the Federal Register, EPA also would
include the description of the focus watershed and the reasons for its
selection. To implement the rule effectively, EPA intends to conduct
extensive outreach to the CAFO industry to ensure that all CAFOs know
of the existence of this rule and any requirement to respond. The
owners or operators of AFOs that have not been designated and that do
not confine the required number of animals to meet the definition of a
Large or Medium CAFO are not required to submit information under this
proposed rulemaking.
The rulemaking process is an appropriate way to collect information
from CAFOs because rulemaking is a transparent, equitable, and
efficient method of collecting information from a large universe of
entities. Moreover, allowing the states to submit the information
required by this proposed action on behalf of a CAFO, included in the
proposed option that would require all CAFOs to submit information,
would allow states to collaborate with EPA in reducing the burden on
some CAFOs to report the information to EPA. The proposed rule is a
reasonable exercise of CWA section 308 authority because the
information to be submitted would enable EPA to carry out and ensure
compliance with the NPDES permitting program and other CWA requirements
for CAFOs. See, e.g. Natural Resources Def. Council, Inc. v. EPA, 822
F.2d 104, 119 (DC Cir. 1987); In re Simpson Paper Co. and Louisiana-
Pacific Corp., 3 E.A.D. 541, 549 (1991).
EPA requests comment on obtaining the information through options
in this co-proposed rulemaking or whether EPA should explore
alternative approaches as described in the Alternative Approaches to
Achieve Rule Objectives section of this preamble.
C. Option 1 Would Apply to All CAFOs
1. What information would EPA require as part of an information
gathering survey for CAFOs and why is EPA proposing to require this
information?
Proposed paragraph Sec. 122.23(k)(2) specifies the information EPA
would require respondents to provide to the Agency. Under this proposed
option, EPA would require respondents to submit the following
information:
(i) The legal name of the owner of the CAFO or an authorized
representative, their mailing address, e-mail address (if available)
and primary telephone number. An authorized representative must be an
individual who is involved with the management or representation of the
CAFO. The authorized representative must be located within reasonable
proximity to the CAFO, and must be authorized and sufficiently informed
to respond to inquiries from EPA on behalf of the CAFO;
(ii) The location of the CAFO's production area identified by the
latitude and longitude or by the street address.
(iii) If the owner or operator has NPDES permit coverage as of [the
effective date of final rule], the date of issuance of coverage under
the NPDES permit, and the permit number. If the owner or operator has
submitted an NPDES permit application or a Notice of Intent as of [the
effective date of final rule] but has not received coverage, the date
the owner or operator submitted the permit application or Notice of
Intent;
(iv) For the previous 12-month period, identification of each
animal type confined either in open confinement including partially
covered area, or housed totally under roof at the CAFO for 45 days or
more, and the maximum number of each animal type confined at the CAFO
for 45 days or more; and
(v) Where the owner or operator land applies manure, litter, and
process wastewater, the total number of acres under the control of the
owner or operator available for land application.
Proposed paragraph Sec. 122.23(k)(2)(i) would require CAFOs to
provide a point of contact for the CAFO. EPA proposes to allow CAFOs to
provide contact information for either the owner of the CAFO or an
authorized representative. An authorized representative must be an
individual who is involved with the management or representation of the
CAFO. The authorized representative must be located within reasonable
proximity to the CAFO, and must be authorized and sufficiently informed
to respond to inquiries from EPA on behalf of the CAFO. For example, an
employee who manages the CAFO or an attorney employed by the CAFO could
be an appropriate authorized representative. Respondents would be
required to provide complete contact information, including name,
telephone number, e-mail (if available), and mailing address. Owners or
authorized representatives may provide a P.O. Box in lieu of a street
address in the contact information section. All individuals who qualify
under 40 CFR. 122.22 can serve as a CAFO's authorized representative,
including the operator of a CAFO. EPA proposes to allow qualifying
individuals to serve as a CAFO's point of contact to preserve the
privacy of a CAFO owner
[[Page 65438]]
if desired. With this information, EPA would be able to communicate
directly with CAFOs when necessary. EPA seeks comment on whether an
authorized representative should be permitted to sign the survey form
instead of the CAFO owner or operator.
In addition to providing contact information, proposed paragraph
Sec. 122.23(k)(2)(ii) would require CAFOs to provide the location of
the CAFO's production area in either latitude and longitude or by the
street address of the CAFO's production area. (Note that a P.O. Box
would not substitute for a street address in the location information
section, since it would not identify a CAFO's location). EPA believes
that knowing the location of the CAFO's production area, as specified
in proposed paragraph Sec. 122.23(k)(2)(ii), is essential for
determining sources of water quality impairments and potential
mitigation measures. A CAFO's proximity to waterbodies also is relevant
to whether it may cause water quality impacts. Comprehensive compliance
assistance and education and outreach efforts, which are facilitated by
knowing facility location and contact information, are tools a
regulatory program can use in partnerships with industry to proactively
protect and maintain water quality.
Information related to a CAFO's permit status (proposed paragraph
Sec. 122.23(k)(2)(iii)) would indicate whether additional information
is publicly available, thus avoiding duplicative efforts to seek
information from NPDES permitted CAFOs. Permitting status information
also would show which CAFOs are operating without NPDES permit
coverage. Even where a facility is not discharging and therefore is not
required to be covered by a permit, knowing about the existence of
these facilities gives EPA a basis for understanding how many
facilities within each sector are actually able to completely prevent
discharges. This information might be transferable to other facilities
in that sector that currently discharge. EPA or states would be able to
provide technical assistance, extend compliance assistance, or inspect
such CAFOs where appropriate.
EPA proposes (as specified in proposed paragraph Sec.
122.23(k)(2)(iv)) to collect data on the number and type (cattle,
poultry, swine, etc.) of animals because the scale of the operation and
the types of animals confined relate to the type and volume of manure
generated and related environmental considerations, and also determine
applicable CWA permitting requirements. Specifically, the number and
type of animals provides an indication of the quantity and
characteristics of the CAFOs' manure (i.e., wet or dry and possible
constituents), which then informs EPA as to the possible environmental
effects of that manure. EPA also proposes to collect information about
the amount of land available for application (proposed paragraph Sec.
122.23(k)(2)(v)). A CAFO's available land application area is likely to
affect the amount of manure that can be land applied for agronomic
purposes and the potential amount of nutrients that could flow into
surrounding waters of the United States. Combining information about
manure quantity and characteristics with land available for application
would indicate where issues might exist regarding excess manure.
Section 308(b)(1) of the CWA requires that information collected by
the Agency shall be available to the public, except upon a satisfactory
showing to the Administrator that any part of the information, report,
or record is confidential business information. Under existing
regulations, an owner or operator may assert a claim of confidential
business information (CBI) with respect to specific information
submitted to EPA. 40 CFR part 2, subpart B. Under section 2.208,
business information is entitled to confidential treatment if, ``the
business has satisfactorily shown that disclosure of the information is
likely to cause substantial harm to the business's competitive
position.'' A claim of confidentiality must be made at the time of
submission and in accordance with the requirements of 40 CFR 2.203(b).
Id. at Sec. 2.203(c). EPA would follow all the requirements related to
information submitted with a claim of confidentiality including the
required notification to the submitter and rights of appeal available
before releasing any information claimed to be confidential. EPA seeks
comment on whether any information required by this proposed rule could
reasonably be claimed as CBI and the reasons for making this claim.
EPA requests comment on the information that CAFOs would be
required to submit as specified by proposed paragraph Sec.
122.23(k)(2). Specifically, EPA is aware that providing latitude and
longitude information might raise security or privacy concerns for CAFO
owner/operators, many of whom are family farmers. EPA seeks comment on
alternatives to submission of the latitude and longitude that would
provide general information on a facility's location but not specific
coordinates. For example, the survey could request the name of the
nearest waterbody to the CAFO. Local knowledge, U.S. Geological Survey
topographical maps or internet programs such as Google Maps could be
used by the CAFO to make this determination of the nearest waterbody to
the CAFO. This would allow EPA to identify the watershed in which a
CAFO is located, and to potentially model discharges from the CAFO and
their impacts on water quality, but without providing specific
information that could be misused to target the CAFO for inappropriate
or illegal purposes. EPA also seeks comment on using other systems such
as the Public Land Survey System (PLSS) (i.e. township, range and
county information) to identify the location of a CAFO's production
area. The PLSS encompasses major portions of the land area of 30
southern and western United States. EPA seeks comment on other possible
alternatives as well, such as requesting a business address and county
where located, or some other general locational information. Commenters
suggesting such alternative should discuss the advantages and
limitations of such information both for protecting the security and
privacy of CAFOs, and for fulfilling the CWA purposes for which EPA
needs the data (discussed above). EPA also seeks comment on how this
type of location information would compare with respect to operator
burden, accuracy of location identification, and usefulness of the
information to identify the production area location. EPA also seeks
comment on whether CAFOs would know the operation's latitude and
longitude.
Related to the concern discussed above is a concern that providing
specific information on the type and number of animals at a CAFO might
also raise potential security issues. EPA requests comment on allowing
CAFOs to report numbers of animals confined in ranges, rather than
providing specific numbers. One option would be to use ranges
corresponding to the definitions of large, medium and small CAFOs. EPA
also requests comment on collecting the information as specific
numbers, but making it available to the public only as ranges.
Additionally, EPA requests comment on the most appropriate 12-month
span of time for a CAFO to determine the number of animals at the CAFO
(i.e. fiscal year or calendar year, or the previous 12 months prior to
completing the survey).
EPA seeks comment on whether CAFOs would understand the questions
asked and on the technical appropriateness of the questions. The
[[Page 65439]]
proposed survey form that EPA would use to collect the information is
included as an appendix to this preamble.
The settlement agreement with the environmental petitioners
specifies that EPA would release the information collected pursuant to
this rule to the public, except where it is entitled to protection as
confidential business information. This is required by section 308 of
the CWA. However, neither the settlement agreement nor section 308
specify the venue or format in which the information is to be released.
EPA is aware of both security and privacy concerns, referenced above,
regarding the potential public release of the information to be
collected by this rule. EPA requests comment on any such concerns, on
appropriate ways to address those concerns (consistent with section
308), and on appropriate formats or venues to make it available to the
public. EPA also requests comment on whether the requirement to make
any information collected pursuant to section 308 available to the
public (except confidential business information) should factor into
its determination about what information, if any, to collect from
CAFOs.
2. What information would EPA not require as part of the collection
request survey for CAFOs?
In the settlement agreement with the environmental petitioners,
arising out of litigation over the 2008 CAFO rule, EPA agreed to
propose a rule that would require CAFOs to submit information on 14
items of information; or, if EPA decided not to include one of the
items from the settlement agreement in the proposed rule, EPA would
identify the item(s), explain why EPA chose not to propose requiring
that information and request comment on the excluded items.
This proposed rulemaking requests information on only some of those
14 items because the Agency believes it can effectively obtain site-
specific answers for the remaining questions directly from states,
other Federal agencies, specific CAFOs, or other sources, when
necessary. EPA also is striving to balance the need for information
with the burden associated with providing the information to EPA.
EPA seeks comment on its proposal not to collect the following
items specified in the settlement agreement:
Name and address of owner/operator (if the name and
address of an authorized representative is provided instead of the name
and address of an owner or operator of the CAFO);
The survey would allow the CAFO's a choice in providing
location data of the production area either by the longitude and
latitude or the street address of the production area, instead of
requiring both;
If contract operation, name and address of the integrator;
Type and capacity of manure storage;
Quantity of manure, process wastewater, and litter
generated annually by the CAFO;
If the CAFO land-applies, whether it implements a nutrient
management plan for land application;
If the CAFO land-applies, whether it employs nutrient
management practices and keeps records on site consistent with 40 CFR
122.23(e);
If the CAFO does not land apply, alternative uses of
manure, litter and/or wastewater; and
Whether the CAFO transfers manure off site, and if so,
quantity transferred to recipient(s) of transferred manure.
3. Who would be required to submit the information?
Under this option, proposed paragraph Sec. 122.23(k)(1) would
require all owners or operators of CAFOs to submit the information
specified in proposed paragraph 40 CFR 122.23(k)(2). However, an
exception is provided by proposed paragraph Sec. 122.23(k)(5), that
would allow states with an authorized NPDES program to provide the
information proposed to be collected to EPA for CAFOs in the state. The
option for a state to submit the information specified by proposed
paragraph Sec. 122.23(k)(2) is voluntary. This proposed option would
allow states to submit the information because states may have
collected all of the information required to be submitted by this
proposed rule. A state may have obtained this information through
permit applications, annual reports, inspection documentation, or other
means and may keep records of this information in a form that is
readily transferable to EPA. EPA does not have a preference regarding
whether individual CAFOs submit the information or whether states
submit it for them. EPA expects that states that do not possess the
CAFO information requested would not choose to participate. In other
words, EPA does not anticipate that states would submit the data, if it
would require them to undertake additional efforts to collect this
information from CAFOs. Proposed paragraph Sec. 122.23(k)(2) provides
flexibility to states by allowing each state to determine if it can
easily submit the information to EPA given the state's resources.
Under proposed paragraph Sec. 122.23(k)(5), in order to submit the
information on behalf of its CAFOs, a state would only be allowed to
provide information on behalf of a CAFO if it submits all items of
information as specified by proposed paragraph Sec. 122.23(k)(2).
States that choose to submit this information would be required to use
the Agency's information management system to ensure reporting
consistency among states choosing to provide the information to EPA.
CAFOs for which a state submits all of the required information would
be referred to as ``listed'' CAFOs. States may submit information for
CAFOs with NPDES permit coverage or CAFOs without NPDES permit
coverage, such as CAFOs with state permits only.
In the case of states for which EPA is the NPDES permit authority
and where the NDPES CAFO general or individual permits have been
updated in accordance with the 2008 CAFO rule, EPA would provide the
information as if it were the state. EPA issues updated NPDES CAFO
permits in the states of Idaho, New Mexico, Oklahoma, New Hampshire,
and Massachusetts.
The voluntary state submission option does not preclude any CAFO
that wishes to do so from submitting the information required by the
proposed rule even where a state previously submitted the information
for that CAFO. The next section of this preamble, When would states
that choose to submit the information be allowed to provide the
information to EPA and when would CAFOs be required to submit the
information to EPA?, identifies the time frames for submitting the
information to EPA that would be required by proposed paragraph Sec.
122.23(k)(2).
Under this proposed option, EPA seeks comment on whether to allow
the state submission option as proposed by paragraph Sec.
122.23(k)(5), or whether all CAFOs should be individually required to
submit information to EPA. Specifically, EPA solicits comment from CAFO
owners or operators as to their willingness to have the state
permitting agency submit operation information to EPA on their behalf.
EPA also solicits comment from states on the availability of the
information as specified by proposed paragraph Sec. 122.23(k)(2);
whether states plan to provide all the required information on behalf
of CAFOs; and alternatively, if given the opportunity, whether states
would provide partial information on behalf of CAFOs. EPA also solicits
comments on whether NPDES authorized states
[[Page 65440]]
should be required to provide the information for their permitted
CAFOs.
4. When would states that choose to submit the information be allowed
to provide the information to EPA and when would CAFOs be required to
submit the information to EPA?
Following the release of the Agency's information management system
and the availability of the proposed survey form, the proposed rule
would allow an owner or operator of a CAFO or states to submit the
information to EPA any time during their respective reporting periods.
EPA proposes the following submission deadlines:
Required Reporting Period for States Who Chose to Report:
As specified by proposed paragraph Sec. 122.23(k)(5)(iii), states that
choose to submit information would be required to submit the
information in proposed paragraph Sec. 122.23(k)(2) [within 90 days
from the effective date of the rule].
Notification Period: [Within 60 days after the end of the
state reporting period], EPA plans to make publicly available a list of
all CAFOs by name, permit number, if applicable, and state (``listed
CAFOs'').
CAFO Reporting Period: CAFOs that do not appear on the
CAFO list would be required to submit the information on an individual
facility basis to EPA within [90 days after the end of the notification
period]. CAFOs that appear on the CAFO list may choose to review the
information submitted by the state and override the state's submission
by submitting its own information, but CAFOs must do so within [90 days
after the end of the notification period].
Table 2 summarizes the timeframes for submitting the information as
specified in proposed paragraph Sec. 122.23(k)(2) to EPA.
Table 2--Proposed Timelines for Submitting the Information Required as
Specified by Proposed Paragraph Sec. 122.23(k)(2)
------------------------------------------------------------------------
Entity Timeframe
------------------------------------------------------------------------
States that choose to report........... Must submit information within
90 days of the effective date
of the rule.
EPA.................................... Makes publicly available within
60 days of the end of the
state reporting period a list
of CAFOs for which the states
have submitted data.
CAFOs not appearing on the CAFO list... Must submit information within
90 days of the end of the
notification period.
CAFOs on the CAFO list that prefer to May submit information within
provide information themselves. 90 days of the end of the
notification period.
------------------------------------------------------------------------
EPA requests comment on allowing 180 days rather than 90 days for
states to submit information to EPA on behalf of CAFOs. This would
allow additional time for unpermitted CAFOs wishing to be covered by
NPDES permits to apply for permit coverage (e.g., submit an NOI in the
case of a general permit) such that states could submit the information
for them.
To maintain an updated inventory, EPA proposes that CAFOs without
NPDES permits submit the information specified by proposed paragraph
Sec. 122.23(k)(2) or update previously submitted information every ten
years. EPA proposes a ten-year resubmission period for unpermitted
CAFOs because the Agency does not expect the information to change
significantly within this ten-year period. Specifically, proposed
paragraph Sec. 122.23(k)(4)(iii) would require CAFOs without NPDES
permit coverage to submit or update the required information between
[January 1 and June 1, 2022] and every tenth year thereafter between
those dates. Operations that have NPDES permit coverage or obtain
permits before the 2022 resubmission date, or that become CAFOs after
[July 2012]--either newly defined, designated, or a new source--and
obtain NPDES permit coverage would not be required to submit or update
the required information. For example, a CAFO that does not have an
NPDES permit as of [July 2012] but obtains NPDES permit coverage before
January 1, 2022, would not be required to re-submit the information
that today's rulemaking proposes to collect.
Under this proposed option, CAFOs with NPDES permits would not need
to update their information every ten years because EPA believes it
would be able to maintain an updated inventory for permitted CAFOs from
their annual reports and permit applications when renewing permit
coverage. EPA invites comments on the schedule for when states and
CAFOs would be required to submit the information to EPA. EPA also
seeks comment on the requirement for CAFOs without NPDES permit
coverage to resubmit the information as specified in proposed paragraph
Sec. 122.23(k)(2) every ten years.
5. How would CAFOs submit the information to EPA?
Proposed paragraph Sec. 122.23(k)(3) would require owners and
operators of CAFOs to use an official survey form provided by EPA to
submit, either electronically or by certified mail, the required
information to EPA. EPA would not mail surveys to individual CAFOs to
request information, as the locations of many CAFO operations are
unknown. Rather, the survey form would be available on EPA's Web site
or by requesting a hard copy from EPA Headquarters from the EPA contact
information provided in the final rule. EPA would conduct extensive
outreach with the regulated community, industry groups, environmental
groups and states in its effort to notify all stakeholders about the
requirements of the rule and how to submit the required information.
Proposed paragraph Sec. 122.23(k)(3) would require the owner or
operator of a CAFO to submit the survey form electronically using the
Agency's information management system available on EPA's Web site. The
Agency's Web-based information management system would be the most
effective, inexpensive way to submit the information. The Web-based
information management system would leverage components of the Central
Data Exchange (CDX) on the Environmental Information Exchange Network.
CDX provides a single and centralized point of access for states and
CAFO owners or operators to submit information electronically to EPA.
CDX is supported by the Cross-Media Electronic Reporting Regulation
(CROMERR), which provides the legal framework for electronic reporting
under EPA's regulations. CROMERR requires any entity that submits
electronic documents directly to EPA to use CDX or an alternative
system designated by the Administrator. CDX would ensure the legal
dependability of electronically submitted documents and provide a
secure environment for data exchange
[[Page 65441]]
that would also protect personally identifiable information (PII).
The supporting CAFO information management system would leverage
Agency standards and enterprise technologies to perform logic checks on
the data entered to ensure quality assurance and quality control. Logic
checks would reduce the reporting errors and limit the time involved in
investigating, checking and correcting submission errors at all levels.
While not required, the CAFO owner or operator would be able to print a
copy of the information submitted through the Agency's information
management system to maintain on site or at a nearby location.
EPA proposes an option to waive the electronic submission
requirement if the information management system is otherwise
unavailable or the use of the Agency's information management system
would cause undue burden or expense over the use of a paper survey
form. A CAFO owner or operator would be allowed to request a waiver
from this electronic reporting requirement at the time of submission
and would not need to obtain approval from EPA before submitting a hard
copy of the form. If submitting a hard copy of the survey form, the
CAFO owner or operator would be required to check the electronic
submission waiver box and explain why electronic submission causes an
undue burden on page 1 of the proposed survey form. EPA requests
comment on whether it should allow CAFOs to submit a hard copy of the
form without requesting a waiver.
CAFOs completing a hard copy of the survey form would submit the
information in proposed paragraph Sec. 122.23(k)(2) to EPA via
certified mail. The official paper survey form is attached as an
appendix to this preamble. There are two ways that a CAFO owner or
operator who cannot submit the information electronically would be able
to access the official paper survey form and instruction sheet, which
are included as Attachment A of this preamble. First, the owner or
operator would be able to request a form and instructions from EPA. A
form may be requested from EPA Headquarters from the EPA contact
information provided in the final rule. Alternatively, the owner or
operator would be able to download the form and instructions, which
would be available at http://www.epa.gov/npdes/afo/. After receiving
the official form, the CAFO owner or operator would complete and return
the survey form to EPA using certified mail postmarked by the
appropriate deadline specified by proposed paragraph Sec.
122.23(k)(4).
EPA plans to coordinate with states, tribal governments, and
interested stakeholders to notify CAFOs about the proposed official
survey form and the availability of the Agency's information management
system. EPA seeks comment on the data submission approach in proposed
paragraph Sec. 122.23(k)(3). EPA also seeks comment on the most
effective ways to notify CAFOs, when the rule is finalized, that they
must submit the information required as specified by proposed paragraph
Sec. 122.23(k)(2).
6. How would states submit the Information to EPA?
Only states with an authorized NPDES program would have the option
to submit the information on behalf of CAFOs within their states. EPA
requests comment on this limitation. In states where EPA is the
permitting authority for CAFOs, EPA would submit the information. To
participate in the voluntary submission option provided by proposed
paragraph Sec. 122.23(k)(5), states would electronically submit the
information required by proposed paragraph Sec. 122.23(k)(2) using the
Agency's information management system. The electronic submission
process for states is similar to the electronic submission process for
CAFOs. The electronic submission process would entail submitting
information via the information management system through CDX. Proposed
paragraph Sec. 122.23(k)(5)(ii) would limit states to providing only
current data, including data obtain from the state's most recent
application process or from a CAFO's most recent annual report. Because
states choose whether to submit information on behalf of CAFOs, EPA
anticipates that a state would submit the information only when
electronic submission is not overly burdensome.
To clearly identify which CAFOs would not need to submit the
information to EPA during the CAFO reporting period, EPA proposes to
make available on the Agency's Web site (http://www.epa.gov/npdes/) a
final list of CAFOs for which the states have submitted information on
behalf of a CAFO. The CAFOs would be listed by name, location and
permit number for NPDES permitted CAFOs, and by name and location for
unpermitted CAFOs. EPA would also make available the information
provided by the states for each CAFO [within 60 days after the end of
the 90-day state submission timeframe]. As explained in the section,
When would states that choose to submit the information be allowed to
provide the information to EPA and when would CAFOs be required to
submit the information to EPA?, of this preamble, CAFOs that do not
appear on the CAFO list would be required to submit the information
[within 90 days of the list and responses being published]. CAFOs on
the CAFO list would not be required to submit the information; however,
they would be able review and change any information provided by a
state.
States would be required to provide the electronic data files in an
Extensible Markup Language (XML) format that is prescribed by EPA and
compatible with Agency standards in support of regulatory data and
information flows by the deadline specified in proposed paragraph Sec.
122.23(k)(5)(iii). If states already store CAFO information within
their respective databases, states would need to map their CAFO
database elements to the prescribed XML CAFO schema for data exchange.
States that do not store CAFO information electronically or maintain
records in hardcopy would need to manually populate the CAFO survey
using the Web-based submission form, thus using the same submission
process as an individual CAFO owner or operator.
In contrast to implementing and enforcing the existing CAFO
regulations in 40 CFR part 122, which is a required program element for
authorized states, EPA emphasizes that the state submission option
would be voluntary. This proposed option would not require that states
divert resources from regulatory implementation and enforcement efforts
to submit the information required by proposed paragraph Sec.
122.23(k)(2) to EPA. EPA anticipates that states that choose to report
on behalf of their state's CAFOs would already possess this information
and therefore, would not need to undertake additional efforts to
collect this information from CAFOs. EPA assumes the states that choose
to provide the information to EPA would be the states for which this
task would not be overly burdensome. This proposed option does not
express a preference as to whether states or CAFOs submit the
information. EPA plans to coordinate with states to help them prepare
to submit the information if the state chooses to provide the
information to EPA. EPA seeks comment on the proposed data collection
approach regarding the way in which states would submit the information
to EPA on behalf of CAFOs, and on whether NPDES authorized states
should be required to submit the information on behalf of permitted
CAFOs.
[[Page 65442]]
D. Option 2 Would Apply to CAFOs in a Focus Watershed
EPA also proposes an option that would first identify focus
watersheds with water quality problems likely attributable to CAFOs,
and then potentially identify CAFOs in a focus watershed to respond to
a survey request. EPA would make every reasonable effort to assess the
utility of existing publicly available data and programs to identify
CAFOs by working with partners at the Federal, state, and local level
before determining whether an information collection request is
necessary. This proposed rulemaking option would allow EPA to list the
criteria used to define the focus watersheds, specify the methods to
determine the geographic scope of the focus watersheds, survey groups
of CAFOs in the selected focus watersheds if the necessary information
was not available from other sources, and define the amount of time
required for outreach so that CAFOs in these focus watersheds know if
and when they are required to respond to a survey request.
Under this proposed option, EPA would focus on collecting
information regarding CAFOs in focus watersheds where there are water
quality concerns likely associated with CAFOs. EPA would use existing
data sources to determine which geographic areas would be identified as
a focus watershed for collecting information about CAFOs and to attempt
to obtain the necessary data before using its 308 authority to collect
it directly from CAFOs.
EPA could use existing data sources to identify areas of water
quality concern that correspond with locations of CAFOs. For example,
modeling estimates could be used to identify watersheds at an
appropriate Hydrologic Unit Codes (HUCs) level with high nitrogen and
phosphorus loadings likely originating from agricultural sources.
Publicly available data could also be used to identify watersheds with
high concentrations of CAFOs. Data from these sources could be further
complemented by numerous other existing data from EPA, states,
universities, research centers and other sources. EPA would collaborate
with states, other Federal agencies, and interested stakeholders to
identify other available sources of data pertaining to CAFOs and water
quality, including but not limited to watershed characteristics,
sources of water quality impairments, pollutant loadings from
agriculture, CAFO locations, characteristics of CAFO operations, and
CAFO manure management practices when selecting focus watersheds. EPA
would make its methodology for identifying focus watersheds and the
results of its assessments available to the public.
EPA, other Federal, state, and local agencies, and interested
stakeholders could also use the collected information to target their
outreach to CAFO owners and operators, target technical and financial
assistance that helps CAFOs apply the most effective manure management
practices, and implement monitoring and assessments of the effects of
these practices. Leveraging stakeholder resources and more precisely
focusing on areas of concern could yield strong results in a shorter
period.
Identifying focus watersheds could produce additional benefits in
addressing water quality impairments. In focus watersheds, Federal and
state agencies could partner with industry groups and non-governmental
organizations to increase outreach and education to CAFO owners and
operators. Additionally, this option could assist EPA and other Federal
and state agencies in working with agricultural producers in the focus
watershed to develop and implement a coordinated program of manure
management practices needed to attain water quality goals, including
state water quality standards. EPA could also evaluate results from
existing or future water quality monitoring and modeling and provide
these results to the public periodically. Such education and outreach
efforts could promote the implementation of best management practices.
Interested stakeholders could use information collected by this
proposed option to target delivery of its technical and financial
assistance including conservation systems tailored to the water quality
needs and resource profile of each livestock producer.
With this proposed rulemaking option, EPA would collect the
information specified in proposed paragraph Sec. 122.23(k)(3) only
from CAFOs located in identified focus watersheds. EPA would make every
reasonable effort to assess the utility of existing publicly available
data and programs to identify CAFOs by working with partners at the
Federal, state, and local level before determining whether an
information collection request is necessary. EPA seeks comment on this
proposed option that would require CAFOs in focus watersheds to report
the information specified in proposed paragraph Sec. 122.23(k)(4) if
it were not otherwise available.
1. How would EPA identify a focus watershed?
EPA would identify focus watersheds based on water quality concerns
associated with CAFOs, including but not limited to nutrients (nitrogen
and phosphorus), pathogens (bacteria, viruses, protozoa), total
suspended solids (turbidity), and organic enrichment (low dissolved
oxygen). EPA also recognizes that there is a variety of sources,
including sewage treatment plants, and industrial discharges that are
sources of nutrients and sediment related to water quality impairments.
However, for purposes of this survey, this proposed option would
require that a focus watershed be one associated with water quality
concerns likely to be associated with CAFOs or land application of
manure.
Under section 303(d) of the CWA, states are required to assess
their waters and list as impaired those that do not meet water quality
standards. The 303(d) impairment listings would be one source to
consult in identifying a focus watershed based on water quality
concerns. EPA's ATTAINS database, which includes listings of impaired
waters reported to EPA by states, pursuant to CWA section 303(d), is
available to help identify impacted watersheds.
However, relying on impaired waterbody information is limited
because many waterbodies have not been assessed or the impairment cause
has not been identified. Additionally, in these impaired waterbodies
some states have not established water quality standards for all of the
pollutants in these impaired waterbodies that might be associated with
CAFO discharges. In particular, many states have not set standards for
nutrients, which are a key indicator for animal agriculture's impact on
water quality. To address this limitation, EPA also could use other
data indicating water quality concerns relating to CAFOs, such as
nutrient monitoring data from state or Federal agencies. EPA solicits
comment on what sources of data could be used to determine where
waterbodies are likely to be impacted due to CAFOs.
EPA also could rely on existing partnerships to identify
waterbodies with impacts associated with CAFOs. For example, a March,
2011 memorandum reaffirmed EPA's commitment to partnering with states
and collaborating with stakeholders to make greater progress in
accelerating the reduction of nitrogen and phosphorus loadings to the
nation's waters. In addition, some states are working on strategies for
reducing nitrogen and
[[Page 65443]]
phosphorus pollution. U.S. EPA Memorandum, Working Effectively in
Partnership with States to Address Phosphorus and Nitrogen Pollution
Through Use of a Framework for State Nutrient Reductions (2011),
available at http://water.epa.gov/scitech/swguidance/standards/criteria/nutrients/upload/memo_nitrogen_framework.pdf. The
information collected by today's proposed rulemaking could assist
states as they identify areas with water quality concerns by providing
data for their strategy development and implementation. EPA requests
comments on sources of information that could be used to identify
watersheds with a likelihood of water quality impacts associated with
CAFOs.
In addition to being areas where water quality issues of concern
are likely to exist due to CAFOs, a focus watershed would be identified
based on one or more of the additional following proposed criteria:
a. High priority watershed due to other factors such as vulnerable
ecosystems, drinking water source supply, watersheds with high
recreational value, or outstanding natural resources waters (Tier 3
waters);
b. Vulnerable soil types;
c. High density of animal agriculture; and/or
d. Other relevant information (such as an area with minority,
indigenous, or low-income populations).
EPA solicits comment on whether minimum standards for selection of
a focus watershed should be adopted and what such standards might be.
EPA also solicits comment on whether the results of a focus watershed
assessment, including decisions to focus or not to focus on an area,
should be made available to the public. EPA also solicits comment on
how frequently EPA should review and/or revise its identification of
focus watersheds.
2. Considerations When Determining Whether a Focus Watershed Meets the
Criteria for Water Quality Protection
a. High Priority Watershed Due to Other Factors (Such as Vulnerable
Ecosystems, Drinking Water Supply Source, Watersheds With High
Recreational Value or Outstanding National Resource Waters (Tier 3
Waters))
EPA could identify focus watersheds where waters require a greater
degree of protection than other waters of the United States. These
include waters with excellent water quality, including high quality
waters, where water quality conditions must be maintained and protected
in accordance with 40 CFR 131.12(a)(2) and outstanding national
resource waters, where the waters have exceptional recreational,
environmental or economic significance and must be protected in
accordance with 40 CFR 131.12(a)(3). Areas near drinking water sources
may also be areas identified for survey requests. EPA and its partners
would work with CAFOs located within these watersheds in order to
promote improved nutrient management practices and to ensure that the
applicable CWA requirements are met. EPA would review state and tribal
water quality standard data to locate these watersheds. EPA seeks
comment on high priority watershed due to other factors as a criterion
to identify a focus watershed.
b. Vulnerable Soil Types
Vulnerable soil types include soils with high nutrient levels. High
nutrient soils in a watershed indicate that there may be more nutrients
being land applied than being utilized by the crops. For example, there
is an increased risk of phosphorus runoff in areas where phosphorus
soil test levels are high, particularly in areas that are close to
surface waters or have steep slopes. To evaluate and determine which
watersheds have soils with high nutrient levels, EPA could review
reports on nutrient levels such as the Mid-Atlantic Watershed Program's
report of phosphorus; reports prepared for Congress, such as Animal
Waste Management and the Environment: Background for Current Issues and
Animal Waste Pollution in America: An Emerging National Problem. U.S.
Congressional Research Service, CRS-98-451 (1998) available as of
September 2011 at http://www.cnie.org/nle/CRSreports/Agriculture/ag-48.cfm; Tom Harkin, Animal Waste Pollution in America: An Emerging
National Problem, Report Compiled by the Minority Staff of the United
States Senate Committee on Agriculture, Nutrition, & Forestry for
Senator Tom Harkin (Dec. 1997). Data compiled by state conservation
districts and data from land grant universities that evaluate the
nutrient levels of soils also could be sources of information to
support identifying a focus watershed because of high nutrient levels
in the soil. In addition to soil nutrient level, estimating areas where
manure production is more than the surrounding crop lands can utilize
may also be an indicator to focus information collection requests. For
example, where the amount of manure generated greatly exceeds the
capacity of available land for agronomic application of manure, it is
more likely that CAFOs will apply manure in excess of crop nutrient
requirements or experience issues associated with inadequate storage
capacity. EPA seeks comment on vulnerable soil types as a criterion to
identify a focus watershed.
c. High Density of Animal Agriculture
EPA could target outreach and information collection efforts to
those geographic regions where Ag Census data, which is publicly
available aggregate data, shows a high density of animals or reports a
high number of operations that meet the CAFO animal size thresholds as
specified by paragraph 40 CFR 122.23(b). EPA could review the aggregate
data from the Ag Census to determine counties, geographic regions or
sub-regions that have a high density of CAFOs. This type of census data
is accessible to both EPA and the public through USDA's existing on-
line report generating function and other sources. EPA seeks comment on
using high densities of CAFOs as a criterion to identify a focus
watershed.
d. Other Relevant Information
EPA anticipates cases in which a need to collect information from
CAFOs could arise because of factors other than the three criteria
described above. For example, CAFOs often are located in minority, low-
income, and indigenous communities that are or may be
disproportionately impacted by environmental pollution. Supporting this
statement is a report from The Lawyers' Committee for Civil Rights
Under Law stated that ``there are 19 times more CAFOs in North
Carolina's poorest communities than in wealthier communities and five
times more in nonwhite neighborhoods than in white neighborhoods.''
(Daria E Neal et al. Now is the Time: Environmental Injustice in the
U.S. and Recommendations for Eliminating Disparities, page 56 (2010)
available as of July 2011 at http://www.lawyerscommittee.org/admin/site/documents/files/Final-Environmental-Justice-Report-6-9-10.pdf).
Working with CAFOs in those communities to address water quality
problems would help fulfill the Agency's environmental justice goals.
EPA seeks comment on the factors listed above and seeks suggestions of
other factors the Agency could use as a criteria to identify a focus
watershed. EPA would consider other factors suggested for inclusion in
taking final action on this proposal.
[[Page 65444]]
3. How would EPA identify CAFOs from which additional information is
needed?
After establishing an area with a water quality impairment or water
quality concerns likely associated with CAFOs, or otherwise identified
as a focus watershed based on the factors identified above, EPA would
make every reasonable effort to assess the utility of existing publicly
available data and programs to identify CAFOs by working with partners
at the Federal, state, and local level before determining whether an
information collection request is necessary. However, where EPA was
unable to obtain the necessary basic information from such sources, EPA
would require CAFOs in the focus watershed to provide the necessary
information. EPA requests comment on alternative sources of information
that could be used to gather the necessary information.
4. What information would EPA require as part of an information
gathering survey for CAFOs in a focus watershed?
Under this proposed option, EPA would seek to collect the same
information as under the proposed option for using section 308 to
collect information from all CAFOs, outlined in section III.(C)(2).
Specifically, EPA might require CAFOs in a focus watershed to submit
the following information as specified by proposed paragraph Sec.
122.23(k)(4), if the information were not available from other sources:
(i) The legal name of the owner of the CAFO or an authorized
representative,\1\ their mailing address, e-mail address (if available)
and primary telephone number;
---------------------------------------------------------------------------
\1\ An authorized representative must be an individual who is
involved with the management or representation of the CAFO. The
authorized representative must be located within reasonable
proximity to the CAFO, and must be authorized and sufficiently
informed to respond to inquiries from EPA or the state about the
CAFO.
---------------------------------------------------------------------------
(ii) The location of the CAFO's production area identified by the
latitude and longitude or by the street address;
(iii) If the owner or operator has NPDES permit coverage as of [the
effective date of final rule], the date of issuance of coverage under
the NPDES permit, and the permit number. If the owner or operator has
submitted an NPDES permit application or a Notice of Intent as of [the
effective date of final rule] but has not received coverage, the date
the owner or operator submitted the permit application or Notice of
Intent;
(iv) For the previous 12-month period, identification of each
animal type confined either in open confinement including partially
covered area, or housed totally under roof at the CAFO for 45 days or
more, and the maximum number of each animal type confined at the CAFO
for 45 days or more; and
(v) Where the owner or operator land applies manure, litter, and
process wastewater, the total number of acres under the control of the
owner or operator available for land application.
Under this proposed option as well as the other proposed option,
CAFOs in a targeted area would be able to assert a claim of
confidential business information with respect to specific information
submitted to EPA. 40 CFR part 2, subpart B. A claim of confidentiality
must be made at the time of submission and in accordance with the
requirements of 40 CFR 2.203(b). For further discussion of CBI, see
section, What information would EPA require as part of an information
gathering survey for CAFOs and why is EPA proposing to require this
information?, of this preamble.
5. How would EPA geographically define a focus watershed?
If EPA did ultimately need to use section 308 to focus on CAFOs in
a specific geographic area, that area must be defined in some way so
that CAFOs would know if their operation is located within the area,
and thus, would be required to respond to the survey request. EPA
proposes to define the targeted areas geographically by either Zip
Codes, counties, HUC codes, or watersheds. EPA solicits comment on the
most effective way to define a focus watershed so that CAFOs would know
of their need to respond to EPA.
6. How would EPA inform CAFOs of their responsibility if they were
required to respond to an information request?
Where certain areas or groups of CAFOs are required to respond to
an information collection request, EPA would conduct a variety of
informational outreach efforts. First, EPA would publish in the Federal
Register a notice describing the boundaries of the targeted area(s) and
the information submission requirements for CAFOs within those areas at
least [30] days before the beginning of any information submission
period. EPA would also conduct extensive outreach with the regulated
community and interested stakeholders to notify CAFOs in the focus
watershed of their responsibility to provide information. EPA would
work with the state and local authorities in providing this outreach.
For example, EPA might hold public meetings in the area, place notices
in newspapers, and use other available local media. EPA notes that the
owners or operators of AFOs that have not been designated and that do
not confine the required number of animals to meet the definition of a
Large or Medium CAFO would not be required to submit information as
specified in proposed paragraph Sec. 122.23(k)(4) to EPA.
Under proposed paragraph Sec. 122.23(k)(3), EPA would conduct
outreach to CAFOs in the targeted area for at least [30 days] prior to
the start of any reporting period to notify operations that they are
required to report the information specified in proposed paragraph
Sec. 122.23(k)(4) to EPA. EPA seeks comment on ways to inform and
reach CAFOs in targeted areas if they are required to provide
information. EPA also seeks comment on the timeframe provided for
outreach to CAFOs in targeted areas.
7. When would CAFOs in a focus watershed be required to submit the
information to EPA?
If EPA needed to use 308 authority to collect information from
CAFOs, after the end of EPA's outreach period for CAFOs in the targeted
area, CAFOs would have [90 days] to submit the information to EPA. EPA
would identify the specific deadline for submitting the information
during EPA's outreach period as well as by publishing the deadline in
the Federal Register notice, which is required at least [30] days
before the beginning of any information submission period.
EPA seeks comment on the amount of time a CAFO in a targeted area
would need to submit the information to EPA.
8. How would CAFOs in a focus watershed submit information to EPA?
If EPA needed to use 308 authority to collect information from
CAFOs, CAFOs in focus watersheds would submit the information in the
same manner as specified in proposed option 1 for collecting
information from all CAFOs. Specifically, proposed paragraph Sec.
122.23(k)(5) would require the owner or operator of a CAFO to submit
the official survey form electronically using the Agency's information
management system available on EPA's Web site. EPA proposes to waive
the electronic submission requirement if the information management
system is otherwise unavailable or the use of the Agency's information
management system would cause undue burden or expense over the use of a
paper survey form. See section How would CAFOs
[[Page 65445]]
submit the information to EPA of this preamble for a detailed
discussion. EPA seeks comment on the data submission approach in
proposed paragraph Sec. 122.23(k)(5).
E. Failure To Provide the Information as Required by This Proposed
Rulemaking
Under Option 1, and under Option 2 in cases where EPA used its
section 308 authority to collect information from CAFOs in focus
watersheds, CAFO owners or operators that failed to submit the
information in accordance with the requirements specified in proposed
paragraph Sec. 122.23(k) would be in violation of the CWA. Section 309
of the CWA provides for administrative, civil and criminal penalties
for violations of section 308 of the Act. 33 U.S.C. 1319. EPA assesses
monetary penalties associated with civil noncompliance using a national
approach as outlined by the Agency's general penalty policy. More
information on the amounts and calculations of civil penalties is
available at http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/. Additional information on criminal noncompliance, is
available at http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/.
F. Alternative Approaches To Achieve Rule Objectives
The objective of this proposed action is to improve and protect
water quality impacted by CAFOs. However, EPA recognizes that there may
be other ways to achieve this objective, and the Agency solicits
comment on alternative approaches to meet the objectives of this
proposed rule. Such alternative approaches may require rulemaking. EPA
would consider any such suggested alternative approaches in developing
the final rule.
EPA describes three such alternative approaches in this section and
seeks public comment on these approaches. EPA seeks public comment on
alternative approaches to a data collection request for CAFOs
including: (1) An approach that would obtain data from existing data
sources, (2) an approach that would expand EPA's network of compliance
assistance and outreach tools and (3) an approach requiring NPDES
authorized states to submit the information as specified by proposed
paragraph Sec. 122.23(k)(2) to EPA, which would require rulemaking.
EPA also seeks comment on other alternative approaches besides the
three discussed herein that could achieve the same objectives. Any one
of these three alternative approaches could be enhanced by stewardship
and recognition programs, education or assistance programs or incentive
based programs, carried out in coordination with other partners such as
states, industry or USDA, and could result in improvements in industry
practices more quickly than a data collection effort. EPA solicits
comment on programs such as these that could be employed to ensure that
CAFOs are implementing measures to protect water quality.
1. Use of Existing Data Sources
One alternative approach to the proposed rule would be to rely on
the use of available existing sources of data on CAFOs, such as
information from USDA, states, environmental organizations and other
interested stakeholder groups. The discussion below describes the
sources of information that currently exist, identifies some of the
limitations EPA faces in using these sources and seeks comment on ways
in which EPA could leverage these sources collectively to address
impacts from CAFOs.
a. U.S. Department of Agriculture Data
The U.S. Department of Agriculture is a leading source of national,
publicly aggregated agricultural data. Federal law prohibits USDA from
disclosing or using data collected unless the information has been
converted into a statistical or aggregate form that does not allow the
identification of the person who supplied particular information 7
U.S.C. 2276(a); see also 7 U.S.C. 8791(b)(2)(A); Confidential
Information Protection and Statistical Efficiency Act, 44 U.S.C.
3501(2002). Accordingly, USDA withholds any county-level data if that
information would identify individual producers. In counties where no
data are available, the USDA indicates where data is omitted because of
disclosure limitations or because no CAFOs are in operation.
EPA currently uses the publicly available aggregate data from USDA
categorized by animal size thresholds defined by the CAFO rule to
refine estimates of the CAFO universe, assess animal densities by
counties, and identify the number of operations in those counties. EPA
also can determine from the USDA aggregate data the cumulative number
of acres that are available for land application at CAFOs, as the total
number of acres by county but not by facility. To obtain facility-
specific data, EPA is considering ways in which the Agency could
combine the publicly available, aggregated data from USDA with other
data sources to obtain a comprehensive, consistent national inventory
of CAFOs to assess and address their impacts on water quality.
b. State Permitting Programs
State NPDES permitting programs should have data on permitted
CAFOs, which could provide answers to the proposed survey questions in
today's notice. EPA estimates that approximately 8,000 CAFOs out of a
total universe of 20,000 CAFOs have obtained permit coverage under the
NPDES program. Authorized states have information from permit
applications and annual reports for CAFOs with permit coverage.
Although not all states have made this information electronically
accessible, some states have online databases or maps that display CAFO
data. For example, Missouri requires permit coverage for all CAFOs as
well as a subset of operations with less than 1,000 animal units and
displays a map of these operations in relation to waters of the state
(http://www.dnr.mo.gov/env/wpp/afo.htm). Missouri Department of Natural
Resources uses this information to link permitted operations with
specific classified stream segments in order to facilitate water
quality based planning, total maximum daily load (TMDL) development and
reports required under section 305(b) of the CWA. Similarly, in North
Carolina all animal feeding operations with a permit, whether under the
NPDES program or under other state permitting programs, are listed in a
spreadsheet that can be downloaded (http://portal.ncdenr.org/web/wq/aps/afo/perm). The spreadsheet contains information on the number of
animals at the operation, type of permit issued to an operation and
latitude and longitude information for 2,711 operations.
While those two states are examples of comprehensive sources of
information that are electronically available, other states maintain
CAFO records in paper copy, which may not be complete or readily
available. In addition, information on unpermitted CAFOs generally is
not available via state records. Currently, EPA provides registered
users, such as states, the ability to track permit issuance, permit
limits and monitoring data through the Integrated Compliance
Information System (ICIS) or through the Online Tracking Information
System (OTIS), which integrates ICIS data with information from other
databases such as EPA's Permit Compliance System (PCS). EPA estimates
that only 15 to 20 percent of CAFO permit data is stored in one of
these two systems because many states use separate databases to manage
and implement permitting programs. A further challenge in
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aggregating state permitting data is that the information collected is
not based on a national standardized reporting scheme. Reporting
inconsistencies across jurisdictions would prevent EPA from compiling a
consistent national summary of CAFO information. Thus, a national
inventory based solely on state data would not be comprehensive.
EPA solicits comment on ways in which data from state permitting
authorities could be used in conjunction with other sources of
information, such as the publicly available aggregate data from USDA,
to obtain a comprehensive, consistent national inventory of CAFOs to
assess and address their impacts on water quality.
c. State Registration or Licensing Programs
Permitting programs administered by the state are not the sole
source of state information on CAFOs. Many state agriculture
departments have registration or licensing programs that collect
information from livestock farms separately from environmental
permitting requirements. Such sources could be used as a source of
information for the unpermitted universe. However, EPA's investigation
of those data sources indicates that registration or licensing programs
typically provide only contact information.
Despite the limited information available from registration and
licensing programs, these sources may nevertheless provide a
comprehensive list of facilities in a particular sector, which EPA
could use to supplement information available from a state permitting
program. For example, in Arkansas, state law requires poultry
operations confining 2,500 or more birds on any given day to register
with the county conservation districts. Information that could be
obtained from this registration list includes: Number and kind of
poultry housed; location of the operation; litter management system
used and its capacity; acreage controlled by the operation; litter land
applied during the last year; amount and destination of litter
transferred; amount of litter utilized by the producer and the type of
utilization; and the name of the poultry operation's processor.
Similarly, dairy licensing programs contain site-specific
information, which may be publicly available. For example, the Ohio
Department of Agriculture requires milk producers of grade A and
manufactured milk to obtain a license prior to operation. As part of
this process, a milk producer must provide evidence of a safe water
supply and submit prepared plans for the milkhouses, milking barns,
stables and parlors at the operation. Ohio Department of Agriculture
provides a list by county of the number of active dairy farms in the
state (http://www.agri.ohio.gov/apps/DairyFarmsReport/FarmsReportPage.aspx). This information could be used in conjunction
with the USDA's publicly available aggregate data to determine CAFO
locations by county in Ohio.
EPA seeks comment on the availability of registration and licensing
lists and whether information obtained from such programs could be
shared with EPA. If so, such data could also be used as part of a
comprehensive effort to address CAFO impact on water quality. EPA seeks
input on ways in which data from these lists could be used in
conjunction with other sources of information, such as USDA's publicly
available aggregated data, to obtain a comprehensive, consistent
national inventory of CAFOs to assess and address their impacts on
water quality.
d. Satellite Imagery and Aerial Photographs
EPA, states, and academic institutions have used satellite imagery
to locate and map CAFOs. For example, through a cooperative agreement
with EPA, Jacksonville State University and Friends of Rural Alabama
(JSU and FRA) created the American Environmental Geographic Information
System (http://www.aegis.jsu.edu/) to assist in watershed analyses and
planning. This system provides maps and environmental data for a
variety of industries, including animal feeding operations, in a select
number of eastern states. JSU and FRA visually scanned satellite images
for structures commonly used to confine animals. Clusters of long,
white buildings were identified as poultry operations or as swine
operations, when an open-air pit or lagoon system was visible.
EPA also has used aerial flyovers to obtain real time aerial
photography for a variety of purposes, including identifying and
updating the universe of CAFOs, identifying potential illegal
discharges from CAFOs to waters of the United States. and prioritizing
follow-up site inspections. While resource intensive, flyovers can be
used to cover specific geographic areas and/or areas with difficult
terrain.
These methodologies present certain limitations as a source of data
on CAFOs. While satellite imagery and aerial photographs may identify
location information for some animal feeding operations, a user may not
be able to determine whether structures actually contained animals,
whether an operation met the regulatory definition of a CAFO or had
NPDES permit coverage. Therefore, this information source is most
useful when supplemented by on-the-ground efforts to confirm site-
specific information. For example, location information from aerial
photography or satellite images may be combined with state and county
Web sites that provide tax parcel information, building histories and
permit histories, so as to identify animal feeding operations that may
meet the CAFO requirements for obtaining a permit. EPA solicits comment
on other ways to augment information from satellite images and aerial
photography location information to obtain a comprehensive, consistent
national inventory of CAFOs to assess and address their impacts on
water quality.
e. Reporting Requirements Under Other Programs
EPA's Assessment, TMDL Tracking and Implementation System (ATTAINS)
database (http://www.epa.gov/waters/ir) displays water quality findings
reported by the states under section 305(b) and section 303(d) of the
Clean Water Act. These findings represent state decisions as to whether
assessed waters are meeting their water quality standards. Assessment
decisions are made by the states based primarily on monitoring targeted
to areas known or suspected to be impaired and may not fully represent
all conditions within a state. While not all waters are assessed, the
database identifies which watersheds are impaired. The findings are
updated in the database as new state Integrated Reports (305b and 303d)
are received, reviewed and posted and may reflect 2010, 2008, or 2006
data from states, depending on their latest submission. EPA seeks
comment on ways in which impairment information from this source can be
compared to CAFO data, such as animal density or number of operations,
to inform efforts to address water quality impacts from CAFOs.
Although on a separate track from this proposed rule, EPA is
currently in the process of developing a rulemaking to amend reporting
requirements for livestock operations on air emissions under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) section 103 and (Emergency Planning & Community Right-to-Know
Act) EPCRA section 304. This information collection effort may offer an
alternative means of collecting data on livestock operations that would
meet the Agency's Clean Water Act needs. As the Agency moves forward
with the CERCLA/EPCRA reporting requirements
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proposed rulemaking, there is an opportunity to explore how to leverage
reporting to EPA from livestock operations to meet information needs
under CERCLA/EPCRA and the CWA simultaneously. EPA solicits comment on
ways in which this could be achieved to obtain a comprehensive,
consistent national inventory of CAFOs to assess and address their
impacts on water quality.
f. Other Sources of Data
Nongovernmental entities have published reports on CAFOs, such as
the Food & Water Watch Report--Factory Farm Nation: How American Turned
Its Livestock Farms into Factories and the Pew Commission report--
Putting Meat on the Table: Industrial Farm Animal Production in
America. These reports provide helpful background information and case
studies. EPA currently uses the results of these studies to identify
research needs but solicits comments on how such reports could enhance
additional EPA efforts to reduce water quality impairments from CAFOs.
Extension agents and conservation programs also have information on
CAFOs. EPA solicits comment on how the Agency could work with state
cooperative extension programs, land grant universities and other
conservation programs to gather information on CAFOs and to coordinate
efforts to protect water quality. In general, these sources only
release aggregated data and may not specifically focus on operations
that meet EPA's definition of a CAFO.
In summary, through this alternative approach, EPA could combine a
variety of existing data sources to determine where CAFOs are located
and overlay this information with existing data on impaired waterbodies
to determine where regulatory activities should be focused. While
existing data sources are not consistent and are not comprehensive
nationwide, the Agency seeks comment on how these sources, as well as
additional sources not described herein, could be used collectively to
protect water quality from CAFO discharges rather than promulgating a
survey requirement for all CAFOs to provide information.
2. Alternative Mechanisms for Promoting Environmental Stewardship and
Compliance
Under this alternative approach, EPA would expand its network of
compliance assistance, outreach tools and partnerships with industry to
assist in addressing the most significant water quality problems.
Comprehensive compliance assistance and outreach efforts are tools a
regulatory program can use in partnerships with industry to proactively
protect and maintain water quality.
EPA recognizes that stewardship and recognition programs, education
or technical assistance programs and incentive based programs, often
carried out in coordination with other partners such as states,
industry, or USDA, could result in improvements in industry practices
more quickly than a data collection effort. Two current examples of
such programs are: (1) The Ag Center, (http://www.epa.gov/agriculture),
which provides compliance and environmental stewardship information
related to animal feeding operations and partners with USDA and state
land grant universities to promote environmental stewardship and
improve manure and nutrient management practices; and (2) EPA's
partnership with USDA's extension program, offering a wide range of
compliance and environmental stewardship information for livestock
operators through the Livestock and Poultry Environmental Learning
Center available at http://www.extension.org/animal_manure_management. EPA solicits comment on how best to use alternative
mechanisms such as these to ensure CAFOs are implementing measures to
protect water quality. This approach would not require a rulemaking;
rather it would focus on the use of activities that already are
authorized under existing regulations. The success of such efforts
would depend in large part on coordination with EPA's state partners
and the cooperation and assistance of industry and environmental
groups.
3. Require Authorized States To Submit CAFO Information From Their CAFO
Regulatory Programs and Only Collect Information From CAFOs if a State
Does Not Report
This alternative regulatory approach, is a variation of the
proposed approach and would require NPDES authorized state regulatory
agencies to submit the information proposed by paragraph Sec.
122.23(k)(2). Many states may know the universe of CAFOs in their state
to ensure proper implementation and enforcement of the CWA's permitting
requirements and to protect water quality.
Although EPA recognizes that states may not have information on all
CAFOs in their state, this alternative approach would require states to
provide information for CAFOs for which they do have information as
part of their CAFO regulatory programs. As a result, the data EPA would
collect would not necessarily be comprehensive. Under this approach,
EPA would only require information from CAFOs where a state failed to
provide the required information to EPA.
It is likely that a number of states already have the information
that would be required by proposed paragraph Sec. 122.23(k)(2) for
NPDES permitted CAFOs. Some states require CAFOs that have not sought
coverage under an NPDES permit to obtain a separate state permit. For
example, Maryland requires CAFOs that discharge to obtain NPDES CAFO
permits and CAFOs that do not discharge to obtain state Maryland Animal
Feeding Operation (MAFO) permits. Other states may have access to other
data sources for CAFOs that could be used to provide the information.
Under this alternative approach, each state would be required to
report the information to EPA. States would be required to submit the
information within a given timeframe, and EPA would compile that
information into a database. CAFOs would be required to provide
whatever information a state fails to provide.
EPA seeks comment on whether authorized states should be required
to provide information from their CAFO regulatory programs on behalf of
the CAFOs within their boundaries. EPA also seeks comment on whether it
should allow states to submit data from CAFO from sources other than a
state regulatory program. EPA also seeks comment on, if it selects this
alternative, whether EPA should allow or require CAFOs to review the
information in the database.
IV. Impact Analysis
A. Benefits and Costs Overview
When EPA issued the revised CAFO regulations on February 12, 2003,
it estimated annual pollutant reductions due to the revisions at 56
million pounds of phosphorus, 110 million pounds of nitrogen and two
billion pounds of sediment. This proposed rulemaking would not alter
the benefits calculated in the 2003 rule. The effect of the proposed
rule would be to enable full attainment of the benefits calculated in
the 2003 rule by furnishing EPA with information on the universe of
CAFOs. To date, EPA estimates that approximately 58 percent of CAFOs do
not have NPDES permits. The information collected under this proposal
would help ensure that CAFOs that discharge have NPDES permit coverage
necessary to achieve these environmental benefits.
The proposed rulemaking would not alter any permitting requirements
or the
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technical requirements under the Effluent Limitations Guidelines and
Standards (ELGs), so CAFOs would not incur any compliance costs
associated with modifications to structures or operational practices.
The only cost associated with this rule to affected entities is the
reporting burden to provide the required information to EPA as
specified in this proposal.
B. Administrative Burden Impacts
Since there is no change in technical requirements, cost impacts to
CAFOs are exclusively due to changes in the information collection
burden. To determine the administrative burden for the Paperwork
Reduction Act (PRA) analysis, the Agency projected the burden that
CAFOs would incur because of the new requirements.
To complete this projection, the Agency started with its current
estimate of the total number of CAFOs in the U.S. and then examined the
administrative burden that would be incurred by these operations. It is
important to note that while EPA's estimates of CAFOs are adequate for
purposes of completing the impact analyses required under statute and
executive order, the data are insufficiently detailed for purposes of
identifying precise locations of specific CAFOs or clusters of CAFOs,
understanding their operational practices and assessing their potential
environmental impacts.
EPA's most recent information on the number of CAFOs in the U.S.
shows that as of 2010 there were approximately 20,000 CAFOs, both
permitted and unpermitted. To estimate the reporting burden faced by
these CAFOs under the proposed rule requirements, EPA examined its
prior PRA analyses. These analyses had assumed that CAFOs applying for
NPDES permit coverage would incur a nine hour administrative burden to
complete and file NPDES permit applications or notices of intent. Based
on comparing the reporting items for permit applications to the
reporting items in the proposed rulemaking, EPA estimated that a CAFO
would need one hour to gather and submit the information on the
proposed survey form to EPA as indicated in the proposed rulemaking.
This burden estimate reflects both the time to understand the reporting
requirements as well as time to complete the survey form electronically
or by paper, when necessary.
EPA's PRA analysis combines the updated estimates of numbers of
CAFOs and the estimates of the reporting burden to project that CAFO
operators would collectively experience an increase in total annual
administrative burden of approximately $0.2 million under the first
proposed option where all CAFOs would submit their information to EPA.
The costs associated with the option to collect information only from
CAFOs in focus watersheds would be a subset of these costs.
Under the requirements as laid out in proposed paragraph Sec.
122.23(k)(5) for the first proposed option, state permitting
authorities would not incur any administrative burden arising out of
the rulemaking since CAFOs would report their information directly to
EPA. States would have the option of submitting information on their
CAFOs electronically; however, EPA anticipates that the states that
would choose this option are those for whom this type of batch
reporting would not impose an undue burden.
This Federal Register notice also includes an alternative approach
that would require states to provide information on CAFOs in their
state. EPA costed this alternative approach separately in the proposed
rule supporting analysis. Under this approach, the reporting burden
would shift from CAFOs to states since states would be responsible for
reporting the data proposed to be collected to EPA. To complete a cost
estimate for this approach, EPA estimated a cumulative incremental cost
based on an assumption that all states would submit their CAFO records
as paper files to the Agency. For purposes of costing this scenario,
EPA estimated that it would take states one hour to prepare and submit
records for 20 facilities. This labor burden combined with photocopying
costs yielded a total state respondent average incremental annual cost
of $16,391. EPA solicits comment on the burden analysis regarding the
requirement for states to submit CAFO information from their regulatory
programs.
The documentation in the public record on the PRA analysis for this
proposed rulemaking discusses more fully the assumptions used to
project the associated administrative burden, including the burden
faced by CAFOs that subsequently may need to update any information
submitted previously.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under Executive Order 12866 (58 FR 51,735; October 4, 1993), this
proposed action is a ``significant regulatory action.'' Accordingly,
EPA submitted this proposed action to the Office of Management and
Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR
3821, January 21, 2011) and any changes made in response to OMB
recommendations have been documented in the docket for this proposed
action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this proposed action. This analysis is
summarized in Section IV of this preamble above, entitled Impact
Analysis. A copy of the supporting analysis is available in the docket
for this action.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA was
assigned EPA ICR No. 1989.08.
The proposed rule would require CAFOs to provide EPA with basic
facility information. This action would provide EPA with the
information on the universe of CAFOs it needs to ensure compliance with
the CWA. EPA projects that the proposed rule would cause CAFO operators
to experience an increase in annual administrative burden of 6,960
labor hours annually, which translates into an increased annual
administrative cost of $0.2 million. The increase in administrative
costs is based on projecting submission costs for all CAFOs, and is
derived exclusively from the recordkeeping and reporting requirements
associated with submitting the required information to EPA as detailed
in the proposed rule. EPA assumed for purposes of the PRA analysis that
a CAFO would incur a labor burden of one hour for filing the required
information. The proposed action would not impose any new capital costs
on affected entities. The burden for the initial reporting is averaged
over three years for purposes of calculating burden under the PRA. EPA
requests comment on its estimate of burden and costs for CAFOs to
comply with the reporting requirements in the two co-proposed rule
options.
Under the proposed rule, states would have the option of providing
EPA with datasets on their CAFOs with existing NPDES permits. However,
the effort to generate these datasets is not costed as part of the ICR
since EPA assumes that the states that choose to provide the datasets
to EPA would be the ones for whom this task would not be overly
[[Page 65449]]
burdensome, and the burden the states would incur would be in lieu of a
comparable burden avoided by CAFOs that the states reported for.
Additional details on the assumptions and parameters of the PRA
analysis are available in the ICR document referenced above, which is
available in the docket supporting this proposed rulemaking. Burden is
defined at 5 CFR 1320.3(b).
A Federal agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this proposed rule, which includes the ICR, under Docket ID number EPA-
HQ-OW-2011-0188. Please submit any comments related to the ICR to EPA
and OMB. See ADDRESSES section at the beginning of this notice for
where to submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after October 21, 2011, a comment to OMB is best
assured of having its full effect if OMB receives it by November 21,
2011. The final rule would respond to any OMB or public comments on the
information collection requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires a Federal
agency to prepare a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule would not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business based on
Small Business Administration (SBA) size standards at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district, or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this rule on small
entities, I certify that this proposed action would not have a
significant economic impact on a substantial number of small entities.
This proposed rule does not change any of the substantive requirements
for CAFO operators. While it does increase the net paperwork burden
faced by facilities compared to the burden imposed under the 2003 CAFO
rule, these incremental costs are small compared to the existing
paperwork burden faced by CAFOs and represent an increase in annualized
compliance costs that is significantly less than one percent of
estimated annual sales for any of the affected entities. To reach this
determination, EPA examined sales figures reported in USDA's publicly
available aggregated data and concluded that it is unlikely that the
estimated upper-bound burden impact of one hour per CAFO would exceed
one percent of the average annual sales of any of the livestock
operations for whom sales figures were reported.
Additionally, this proposed rule would not affect small
governments, as the permitting authorities are state or Federal
agencies and the information would be submitted directly to EPA.
EPA continues to be interested in the potential impacts of the
proposed rule on small entities and welcomes comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, tribal governments
and the private sector. Under section 202 of UMRA, EPA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``federal mandates'' that may result in
expenditures by state, local and tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates and informing, educating and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for state, local and tribal governments, in the aggregate, or the
private sector in any one year. The proposed rule also presents an
alternative approach that would require states to submit information on
CAFOs. EPA determined that this alternative approach, which principally
would involve photocopying, would also not result in a burden above the
threshold. Thus, this rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
EPA has determined that this rule would contain no regulatory
requirements that might significantly or uniquely affect small
governments. There are no local or tribal governments authorized to
implement the NPDES permit program and the Agency is unaware of any
local or tribal governments who are owners or operators of CAFOs. Thus,
this rule is not subject to the requirements of section 203 of UMRA.
E. Executive Order 13132: Federalism
This proposed action does not have federalism implications. Since
the reporting under the proposed rule would require CAFOs to submit
their information directly to EPA, it would not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. The proposed rule would offer states the
option of submitting information on behalf of the state's CAFOs.
However, the proposed rule would not require states to adopt
[[Page 65450]]
this option; therefore, EPA does not consider this proposed rule to
have a substantial impact on states. Thus, Executive Order 13132 does
not apply to this proposed action.
EPA is requesting comment on alternative approaches for gathering
CAFO information. One of these approaches would require States to
submit information on their CAFOs. EPA examined costs associated with
this alterative and concluded based on a conservative estimate of
burden impacts that the alternative would not trigger federalism
concerns.
In the spirit of Executive Order 13132 and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicits comment on this proposed action
from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications, as
specified in Executive Order 13175 (65 FR 67249, November 9, 2000),
because there are currently no tribal governments authorized for the
NPDES program. In addition, EPA is not aware of any Indian tribal
governments that own CAFOs that would be subject to the proposed
reporting requirements. Thus, Executive Order 13175 does not apply to
this action.
This proposed rulemaking could have the effect of providing
increased opportunities for the tribal governments to obtain
information on all CAFOs within their governmental boundaries and, as
such, may facilitate their interactions with entities of possible
concern.
In the spirit of Executive Order 13175 and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA would also distribute information on the outcome of the rulemaking
process once the rulemaking action is finalized.
EPA solicits comment on the Agency's approach to meeting its
obligations under E.O. 13175 for the proposed action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19,885; April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866 and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not economically significant as defined in Executive Order 12866
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this proposed action
present a disproportionate risk to children. The benefits analysis
performed for the 2003 CAFO rule determined that the rule would result
in certain significant benefits to children's health. (Please refer to
the Benefits Analysis in the record for the 2003 CAFO final rule.) This
proposed action does not affect the environmental benefits of the 2003
CAFO rule.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. EPA has concluded that this rule is not
likely to have any adverse energy effects since CAFOs in general do not
figure significantly in the energy market, and the regulatory revisions
finalized in this rule are not likely to change existing energy
generation or consumption profiles for CAFOs.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve the use of technical
standards. Therefore, EPA is not considering the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies and activities on minority populations and low-income
populations in the United States.
EPA has determined that the information collected by this rule
could benefit minority and low-income populations by providing
information on nearby CAFOs with potential effects on neighboring
communities. In addition, the Agency anticipates that the information
to be collected under the rulemaking would aid EPA's consideration of
environmental justice concerns as the Agency moves forward with
implementation of the NPDES CAFO program.
As part of EPA's continued effort to meet its obligations under
E.O. 12898, the Agency has completed an analysis to identify those
portions of the country where there are both large numbers of CAFOs as
well as concentrations of minority and low-income populations. These
regions include parts of the Carolina lowlands, central California and
the Delmarva Peninsula on the Chesapeake Bay.
EPA solicits comment on the ability of the questions as proposed to
support consideration of environmental justice (EJ) concerns related to
future design and implementation of the NPDES CAFO program. EPA seeks
comment on what other questions beyond those proposed would support EJ
concerns and be valuable to EJ communities. EPA welcomes suggestions
for EJ groups who could help shape the Agency's outreach to EJ
communities. EPA also seeks comment on its analysis supporting E.O.
12898, which shows where large numbers of CAFOs and EJ communities co-
exist. The supporting analysis is contained in the docket for the
proposed rulemaking.
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INSTRUCTION SHEET
GENERAL INSTRUCTIONS
Defined Terms
Terms in italics below are specifically defined in the Survey Form
Definitions section of these instructions. Refer to this section for
specific meaning of these terms.
Purpose of Form
Owners of concentrated animal feeding operations (CAFOs) must use
this survey form to submit the information required by 40 CFR
122.23(k).
Who Must File
Owners of CAFOs are required to submit the information specified at
40 CFR 122.23(k) regardless of whether the CAFO is required to seek
NPDES permit coverage. For the purposes of this survey, a CAFO means an
animal feeding operation (AFO) that is defined as a Large CAFO or
Medium CAFO by 40 CFR 122.23(b), or that is designated as a CAFO in
accordance with 40 CFR 122.23(c). Further definitions for the purpose
of this form are in the section, Survey Form Definitions. The owners of
AFOs that have not been designated and that do not confine the required
number of animals to meet the definition of a Large or Medium CAFO are
not required to submit information.
Where to Submit
Send the completed and signed survey form to:
U.S. EPA, Office of Water, Office of Wastewater Management, Mail Code
4203M, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
When to Submit
Under proposed option 1, owners of CAFOs must submit the survey
form to EPA [within 90 days after EPA makes available a list of CAFOs
for which a state has provided the information] and under proposed
option 2, owners of CAFOs must submit the survey form by [the deadline
specified in a separate Federal Register Notice]. NPDES authorized
states that choose to submit the information on behalf of a CAFO would
be required to submit the information to EPA [within 90 days after the
effective date of the rule]. Subsequently, under proposed option 1,
owners of CAFOs not authorized by an NPDES permit must resubmit the
survey form between [January 1 and June 1, 2022] and every subsequent
tenth year thereafter between [January 1 and June 1]. The survey form
provides a checkbox that indicates such resubmissions.
Entering Responses
CAFOs must provide the information on this survey form
electronically except where electronic submission would cause an undue
burden or expense. Electronic submissions may be made via the Agency's
information management system. Please go to www.epa.gov/npdes/afo for
more information on how to submit.
However, EPA is making paper filing available in recognition that
not everyone has internet access. If using a hardcopy of the form to
submit the information, use blue or black ink only to complete a
hardcopy of the survey form. Mark the electronic submission waiver box
and provide a reason why the respondent is providing the information by
completing and submitting a hard copy of this survey form.
Please print clearly. Mark all applicable checkboxes with an ``X''.
Changes at the operation after the owner submits this information
are not required to be reported, except that CAFOs not authorized by an
NPDES permit must resubmit the survey form every 10 years as specified
above.
Confidential Business Information
Regulations governing the confidentiality of business information
are contained in the Code of Federal Regulations (CFR) at Title 40 Part
2, Subpart B. Under sections 2.208, business information is entitled to
confidential treatment if, ``the business has satisfactorily shown that
disclosure of the information is likely to cause substantial harm to
the business's competitive position. You may assert a business
confidentiality claim covering part or all of the information you
submit, as described in 40 CFR 2.203(b):
``(b) Method and time of asserting business confidentiality claim.
A business which is submitting information to EPA may assert a business
confidentiality claim covering the information by placing on or
attaching to the information, at the time it is submitted to EPA, a
cover sheet, stamped or typed legend, or other suitable form of notice
complying language such as `trade secret', `proprietary,' or `company
confidential.' Allegedly confidential portions of otherwise
nonconfidential documents should be clearly identified by the business,
and may be submitted separately to facility identification and handling
by EPA. If the business desires confidential treatment only until a
certain date or until the occurrence of a certain event, the notice
should so state''
[[Page 65454]]
If you claim any response as CBI, you must specify the portion of
the response or document for which you assert a claim of
confidentiality by reference to page numbers, paragraphs, and lines, or
specify the entire response or document. This information must be
provided as part of the submission of the completed survey form. Note
that EPA will review the information submitted and may request your
cooperation in providing information to identify and justify the basis
of your CBI claim. Information covered by a claim of confidentiality
will be disclosed by EPA only to the extent of, and by means of, the
procedures set forth in 40 CFR Part 2, Subpart B. In general, submitted
information protected by a business confidentially claim may be
disclosed to other employees, officers, or authorized representatives
of the United States concerned with implementing the Clean Water Act.
SURVEY FORM INSTRUCTIONS
Submission Information
Please check the appropriate box to indicate whether the CAFO is
supplying information for the first time or resubmitting the survey
form. A CAFO may also voluntarily update their information if the
operation is no longer a CAFO.
Section 1. Contact Information
Use legal names. Provide the mailing address for the owner of the
CAFO or authorized representative. The address may be a business
address, a post office box, or the address of the CAFO owner or
authorized representative. A county road number may indicate the
operation's street address.
Section 2. Location Information
Provide location of the production area either by the latitude and
longitude for the production area or by the street address of the
CAFO's production area. Please provide latitude or longitude in degree
decimals. For CAFOs that have multiple production areas, such as
facilities under common ownership, that either adjoin each other or use
a common area or system for waste disposal, the entrance to the
production area for the largest portion of the CAFO should be provided.
For the purposes of this form, the entrance to the production area
may be a road leading to the confinement houses or the central point of
access to the operation. This information is commonly included in a
nutrient management plan or, alternatively, the respondent may
determine the latitude and longitude for the entrance to the production
area by using interactive maps available on the internet. Latitude or
longitude information can be obtained at the following websites: http://www.satsig.net/maps/lat-long-finder.htm, http://earth.google.com/, and
http://www.census.gov/geo/landview/. If the units for the CAFO's
latitude or longitude is in minutes/seconds, this information can be
readily converted through a variety of free internet applications.
The respondent need only provide either the CAFO's latitude and
longitude or the street address of the CAFO's production area.
Section 3. NPDES Permit Information
Use the appropriate checkbox to indicate whether the CAFO has a
current NPDES permit. A current NPDES permit would provide coverage to
the CAFO as of the date the report is submitted. If you have an NPDES
permit, check the ``Yes'' box and provide the NPDES permit number and
the date of issuance for NPDES permit coverage. NPDES permit coverage
may have been issued to the CAFO after submitting an individual NPDES
permit application or a Notice of Intent (NOI) for coverage under a
general NPDES permit. CAFOs should find their NPDES permit number on
the copy of the permit for an individual permit or on the written
notification from the permitting authority acknowledging receipt of the
NOI. States may refer to the NPDES permit number as a tracking number,
operating permit number, or state identification number. For example,
Maryland identifies its general NPDES permit as ``MDG01,'' whereas,
Missouri's general operating permit number ``MO-G010000.''
If you do not have an NPDES permit, check the ``No'' box and go to
Section 4. Type and Number of Animals. If you applied for an NPDES
permit but have not received any notice of coverage, please check the
``Pending'' box and provide the date that the NOI or NPDES permit
application was submitted.
Section 4. Type and Number of Animals
Use the table to indicate the maximum number of animals for each
animal type held either in open confinement including partially covered
or housed totally under roof held at the CAFO for a total of 45 days or
more in the previous 12 months.
CAFOs with multiple production cycles should provide the maximum
number of animals confined for any given production cycle. Multiple
production cycles are common at poultry and swine operations. CAFOs
under common ownership should report the cumulative number of animals
confined for 45 days or more.
It is important to note that the 45 days do not have to be
consecutive, and the 12-month period does not have to correspond to the
calendar year. The 12-month does not have to correspond to the calendar
year. If an animal is confined at an operation for any portion of a
day, it is considered to be confined for a full day. Please see
definition of an animal feeding operation of these instructions.
EXAMPLE: A calf/cow operation that has the capacity to hold 2,000
head of cattle. The facility operates year-round and never confines
less than 1,000 head of cattle at any one time. The facility has both
pasture and partially opened barns. The operation meets the definition
of a CAFO because: 1) it confines the required animal numbers to meet
the Large CAFO threshold, 2) confines the animals for more than 45
days, and 3) the confinement area does not sustain vegetation. For the
last 12-month period, the cow/calf operation split its calving between
fall and spring. During the fall, the operation confined 1,500 head of
cattle for 45 days or more and during the spring, the operation
confined 1,000 head of cattle. This operation should report in the
table under calf/cow pairs and list 1,500 under the column for ``Open
Confinement (include partially covered)''.
Section 5. Land Application
Provide the amount of acres available for land application. Report
in whole acres, rounding up to the nearest whole number if necessary.
Include land associated with the CAFO, whether in production or not.
Include all land that the owner or operator owned or rented during the
previous 12-month period, even if only for part of the year, and any
land that is owned by or rented or leased to others in which the owner
or operator of the CAFO retains nutrient management decisions. This may
also include situations where a farmer releases control over the land
application area, and the CAFO determines when and how much manure is
applied to fields not otherwise owned, rented, or leased by the CAFO.
Exclude residential or other land not used for agricultural purposes.
Section 6. Signature Requirements
A responsible official in accordance with 40 CFR 122.22 must sign
the certification statement provided on the form. Print the name of the
signatory. Provide the date of signature and title of the signatory.
[[Page 65455]]
SURVEY FORM DEFINITIONS
The definitions provided below are for the purposes of this
information gathering survey form. All terms not defined below shall
have their ordinary meaning, unless such terms are defined in the Clean
Water Act, 33 U.S.C. Sec. 1362, or its implementing regulations found
at 40 CFR parts 122 and 412 respectively, in which case the statutory
or regulatory definitions apply.
1. ``Animal feeding operation'' means a lot or facility (other than
an aquatic animal production facility) where animals have been, are, or
will be, stabled, confined, and fed or maintained for a total of 45
days or more in any 12-month period and crops, vegetation, forage
growth, or post-harvest residues are not sustained in the normal
growing season over any portion of the lot or facility. (40 CFR
122.23(b)(1)). Two or more AFOs under common ownership are considered
to be a single AFO for purposes of determining the number of animals at
an operation, if they adjoin each other, are next to, sharing property
lines or if they use a common area or system for manure management or
the disposal of wastes. (40 CFR 122.23(b)(2)).
2. ``Authorized representative'' means an individual who is
involved with the management or representation of the CAFO. An
authorized representative must be located within reasonable proximity
to the CAFO, and must be authorized and sufficiently informed to
respond to inquiries from EPA on behalf of the CAFO.
3. ``Concentrated animal feeding operation'' (CAFO) means an AFO
that is defined as a Large CAFO or as a Medium CAFO by the terms of
this paragraph, or that is designated as a CAFO in accordance with
paragraph (c) of this section. Two or more AFOs under common ownership
are considered to be a single AFO for the purposes of determining the
number of animals at an operation, if they adjoin each other or if they
use a common area or system for the disposal of wastes.
4. ``Large concentrated animal feeding operation'' means an AFO
that stables or confines as many as or more than the numbers of animals
specified in any of the following categories: (i) 700 mature dairy
cows, whether milked or dry; (ii) 1,000 veal calves; (iii) 1,000 cattle
other than mature dairy cows or veal calves. Cattle includes but is not
limited to heifers, steers, bulls and cow/calf pairs; (iv) 2,500 swine
each weighing 55 pounds or more; (v) 10,000 swine each weighing less
than 55 pounds; (vi) 500 horses; (vii) 10,000 sheep or lambs; (viii)
55,000 turkeys; (ix) 30,000 laying hens or broilers, if the AFO uses a
liquid manure handling system; (x) 125,000 chickens (other than laying
hens), if the AFO uses other than a liquid manure handling system; (xi)
82,000 laying hens, if the AFO uses other than a liquid manure handling
system; (xii) 30,000 ducks (if the AFO uses other than a liquid manure
handling system); or (xiii) 5,000 ducks (if the AFO uses a liquid
manure handling system).
5. ``Manure'' includes manure, or bedding or bedding material, hay,
compost, and raw material or other materials commingled with manure
that is to be land applied or set aside for disposal.
6. ``Medium concentrated animal feeding operation'' means any AFO
with the type and number of animals that fall within any of the ranges
listed in paragraph (b)(6)(i) of this section and which has been
defined or designated as a CAFO. An AFO is defined as a Medium CAFO if:
(i) The type and number of animals that it stables or confines falls
within any of the following ranges: (A) 200 to 699 mature dairy cows,
whether milked or dry; (B) 300 to 999 veal calves; (C) 300 to 999
cattle other than mature dairy cows or veal calves. Cattle includes but
is not limited to heifers, steers, bulls and cow/calf pairs; (D) 750 to
2,499 swine each weighing 55 pounds or more; (E) 3,000 to 9,999 swine
each weighing less than 55 pounds; (F) 150 to 499 horses; (G) 3,000 to
9,999 sheep or lambs; (H) 16,500 to 54,999 turkeys; (I) 9,000 to 29,999
laying hens or broilers, if the AFO uses a liquid manure handling
system; (J) 37,500 to 124,999 chickens (other than laying hens), if the
AFO uses other than a liquid manure handling system; (K) 25,000 to
81,999 laying hens, if the AFO uses other than a liquid manure handling
system; (L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid
manure handling system); or (M) 1,500 to 4,999 ducks (if the AFO uses a
liquid manure handling system); and (ii) Either one of the following
conditions are met: (A) Pollutants are discharged into waters of the
United States through a man-made ditch, flushing system, or other
similar man-made device; or (B) Pollutants are discharged directly into
waters of the United States which originate outside of and pass over,
across, or through the facility or otherwise come into direct contact
with the animals confined in the operation.
7. ``Owner or operator'' means the property owner or any person who
owns, leases, operates, controls, or supervises the operations at the
CAFO. Any person who operates an AFO subject to regulation under the
NPDES program may be involved with making day-to-day decisions about,
or doing, such things as planting, harvesting, feeding, waste
management, and/or marketing. The operator can include, but is not
limited to, the owner, a member of the owner's household, a hired
manager, a tenant, a renter, or a sharecropper.
8. ``NPDES Permit'' means an authorization, license, or equivalent
control document issued by EPA or an ``approved State'' to implement
the requirements of the CWA NPDES permitting program and implementing
regulations at 40 CFR parts 122, 123, and 124.
9. ``Process wastewater'' means water directly or indirectly used
in the operation of the AFO including but not limited to: spillage or
overflow from animal or poultry watering systems; washing; cleaning, or
flushing pens, barns, manure pits, or other AFO facilities; direct
contact swimming, washing, or spray cooling of animals; or dust
control. Process wastewater also includes any water which comes into
contact with any raw materials, products, or byproduct including,
manure, litter, feed, milk, eggs, or bedding.
10. ``Producer'' means any grower, breeder, or person who otherwise
raises animals for production.
11. ``Production area'' means that part of an AFO that includes the
animal confinement area, the manure storage area, the raw materials
storage area, and the waste containment areas. The animal confinement
area includes but is not limited to open lots, housed lots, feedlots,
confinement houses, stall barns, free stall barns, milkrooms, milking
centers, cowyards, barnyards, medication pens, walkers, animal
walkways, and stables. The manure storage area includes but is not
limited to lagoons, runoff ponds, storage sheds, stockpiles, under-
house or pit storages, liquid impoundments, static piles, and
composting piles. The raw materials storage area includes but is not
limited to feed silos, silage bunkers, and bedding materials. The waste
containment area includes but is not limited to settling basins, and
areas within berms and diversions which separate uncontaminated storm
water. Also included in the definition of production area is any egg
washing or egg processing facility, and any area used in the storage,
handling, treatment, or disposal of mortalities.
12. ``Storage pond'' means an earthen impoundment used to retain
manure, bedding, process wastewater (such as parlor water) and runoff
liquid.
[[Page 65456]]
13. ``Waste'' and/or ``wastes'' means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt, and
industrial, municipal, and agricultural waste, including but not
limited to manure, litter, and/or process wastewater, discharged into
water.
Federal regulations require the certification to be signed as
follows:
A. For a corporation, by a principal executive officer of at least
the level of vice president.
B. For a partnership or sole proprietorship, by a general partner
or the proprietor, respectively; or
C. For a municipality, State, Federal, or other public facility, by
either a principal executive officer or ranking elected official.
Paper Reduction Act Notice
The public reporting and recordkeeping burden for this collection
of information is estimated to average one hour per response. The
estimate includes time for reviewing instructions, searching existing
data sources, gathering and maintaining the needed data, and completing
and reviewing the collection of information. Send comments on the
Agency's need for this information, the accuracy of the provided burden
estimates, and any suggested methods for minimizing respondent burden,
including through the use of automated collection techniques to the
Director, Collection Strategies Division, U.S. Environmental Protection
Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Include the OMB control number in any correspondence. Do not send the
completed survey form to this address.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.
Dated: October 14, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, chapter I of Title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001,
2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C.
9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326,
1330, 1342, 1344, 1345(d) and (e), 1361; Executive Order 11735, 38
FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243,
246, 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1,
300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-
7671q, 7542, 9601-9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by adding an entry in
numerical order under the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
40 CFR citation OMB Control No.
------------------------------------------------------------------------
* * * * *
EPA Administered Permit Programs: The National Pollutant Discharge
Elimination System
* * * * *
122.23(k)................................. 2040-0250
* * * * *
------------------------------------------------------------------------
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
3. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
4. Section 122.23 is amended by adding paragraph (k) to read as
follows:
Sec. 122.23 Concentrated animal feeding operations (applicable to
state NPDES programs, see Sec. 1223.25)
* * * * *
Option 1 for Paragraph (k)
(k) Information Gathering Survey for CAFOs. (1) All CAFOs must
submit information to EPA. The owner(s) or operator(s) of a CAFO, as
defined in 40 CFR 122.23(b), must provide the information specified in
paragraph (k)(2) of this section to the Administrator, except in cases
where a state voluntarily fulfills this requirement on behalf of the
owner(s) or operator(s) of CAFOs located within that state, according
to the procedures specified in paragraph (k)(5) of this section.
(2) Information to be submitted to the Administrator. The owner or
operator of a CAFO or a state must provide the following information to
the Administrator:
(i) The legal name of the owner of the CAFO or an authorized
representative, and their mailing address, e-mail address (if
available) and primary telephone number. (An authorized representative
must be an individual who is involved with the management or
representation of the CAFO. The authorized representative must be
located within reasonable proximity to the CAFO, and must be authorized
and sufficiently informed to respond to inquiries from EPA on behalf of
the CAFO);
(ii) The location of the CAFO's production area identified by the
latitude and longitude; or by the street address;
(iii) If the owner or operator has NPDES permit coverage as of [the
effective date of final rule], the date of issuance of coverage under
the NPDES permit, and the permit number. If the owner or operator has
submitted an NPDES permit application or a Notice of Intent as of [the
effective date of final rule] but has not received coverage, the date
the owner or operator submitted the NPDES permit application or Notice
of Intent;
(iv) For the previous 12-month period, identification of each
animal type confined either in open confinement including partially
covered areas, or housed totally under roof at the CAFO for 45 days or
more, and the maximum number of each animal type confined at the CAFO
for 45 days or more; and
(v) Where the owner or operator land applies manure, litter and
process wastewater, the total number of acres under the control of the
owner or operator available for land application.
(3) Submission process for CAFOs. The owner or operator of a CAFO
must submit the information specified in paragraph (k)(2) of this
section using the survey form provided by the Administrator. The owner
or operator of a CAFO must submit the survey form to the Administrator,
either by certified mail, or electronically, through the Agency's
electronic information management system by the deadline specified in
(k)(4) of this section. If submitting the survey form by certified
mail, the owner or operator of a CAFO must indicate on the survey form
that an electronic submission waiver applies and provide justification
as to why
[[Page 65457]]
electronic submission would cause an undue burden or expense.
(4) Deadline for submissions by owners or operators of CAFOs. (i)
An operation defined or designated as a CAFO as of [the effective date
of the final rule], where a state did not provide the required
information to EPA in accordance with paragraph (k)(5) of this section.
Where a state does not provide the information required by paragraph
(k)(2) of this section in accordance with paragraph (k)(5) of this
section, a CAFO must submit the information required by paragraph
(k)(2) in accordance with paragraph (k)(3) [within 90 days] after EPA
makes available a list of CAFOs for which a state has provided the
information.
(ii) CAFOs for which a state has provided the required information
to EPA in accordance with paragraph (k)(5) of this section. CAFOs for
which a state submitted the information required by paragraph (k)(2) of
this section in accordance with paragraph (k)(5) of this section, may,
but are not required to, provide information to EPA [within 90 days]
after EPA makes available a list of CAFOs for which a state has
provided the information.
(iii) Resubmission requirement for CAFOs not authorized by an NPDES
permit. CAFOs not authorized by an NPDES permit must submit the
information specified in paragraph (k)(2) of this section or update
information previously submitted, pursuant to the procedures specified
by paragraph (k)(3) of this section, between January 1 and June 1 every
ten years following 2012 (e.g., 2022, 2032, etc.). The periodic
submission requirement applies to all CAFOs not authorized by an NPDES
permit at the time of these dates, whether or not CAFOs at one point
had permit coverage at any time prior to these dates. CAFOs established
after the first 2012 information submission period that do not have
NPDES permits are subject to this ten-year resubmission requirement.
(5) Elements of state voluntary submissions. In order to fulfill
the requirements of paragraphs (k)(1) and (k)(2) of this section on
behalf of CAFOs, a state must:
(i) Use the Agency's electronic information management system to
submit the information.
(ii) Submit information from the state's most recent application
process, from a CAFO's most recent annual report, or from another
current information source,
(iii) Submit the information [within 90 days after the effective
date of the rule].
Option 2 for Paragraph (k)
(k) Information Gathering Survey for CAFOs in Focus Watersheds. (1)
CAFOs in focus watersheds must submit information to EPA. The owner(s)
or operator(s) of a CAFO, as defined in 40 CFR 122.23(b), located in a
focus watershed as identified by EPA as provided in paragraph (k)(2) of
this section, must, if so notified as provided in paragraph (k)(3),
provide the information specified in paragraph (k)(4) of this section
to the Administrator according to the procedures specified in paragraph
(k)(5) of this section by the deadline specified in (k)(6) of this
section.
(2) How will EPA identify a focus watershed? To identify a focus
watershed, EPA shall:
(i) Determine that the area has water quality concerns associated
with CAFOs, including but not limited to nutrients (nitrogen and
phosphorus), pathogens (bacteria, viruses, protozoa), total suspended
solids (turbidity) and organic enrichment (low dissolved oxygen), and
consider one or more of the following criteria;
(A) High priority watershed due to other factors such as vulnerable
ecosystems, drinking water source supplies, watersheds with high
recreational value, or watersheds that are outstanding natural resource
waters (Tier 3 waters);
(B) Vulnerable soil type;
(C) High density of animal agriculture; and/or
(D) Other relevant information; and
(ii) Define the geographical location and extent of the focus
watershed using Zip Codes, counties, hydrologic unit codes (HUCs), or
other relevant information that would define the geographical location
and extent of an area.
(3) How will EPA notify CAFOs in a focus watershed if they have an
obligation to provide information? If EPA is unable, after reasonable
effort, to obtain the information in paragraph (k)(4) of this section
from all CAFOs in a focus watershed, EPA will:
(i) Conduct outreach in the focus watershed regarding the need for
CAFOs to submit the information specified in paragraph (k)(4) of this
section for a minimum of [30] days.
(ii) Provide notice to the CAFOs of the need to submit information
and the timing for such request by notice in the Federal Register and
other appropriate means in the focus watershed.
(4) Information to be submitted to the Administrator. The owner or
operator of a CAFO located in a focus watershed identified by EPA as
provided in paragraph (k)(2) of this section must provide the following
information to the Administrator, if so notified in accordance with
paragraph (k)(3) of this section:
(i) The legal name of the owner of the CAFO or an authorized
representative, and their mailing address, e-mail address (if
available) and primary telephone number. (An authorized representative
must be an individual who in involved with the management or
representation of the CAFO. The authorized representative must be
located within reasonable proximity to the CAFO, and must be authorized
and sufficiently informed to respond to inquiries from EPA on behalf of
the CAFO);
(ii) The location of the CAFO's production area identified by the
latitude and longitude; or by the street address;
(iii) If the owner or operator has NPDES permit coverage as of [the
effective date of final rule], the date of issuance of coverage under
the NPDES permit, and the permit number. If the owner or operator has
submitted an NPDES permit application or a Notice of Intent as of [the
effective date of final rule] but has not received coverage, the date
the owner or operator submitted the NPDES permit application or Notice
of Intent;
(iv) For the previous 12-month period, identification of each
animal type confined either in open confinement including partially
covered areas, or housed totally under roof at the CAFO for 45 days or
more, and the maximum number of each animal type confined at the CAFO
for 45 days or more; and
(v) Where the owner or operator land applies manure, litter and
process wastewater, the total number of acres under the control of the
owner or operator available for land application.
(5) Submission process for CAFOs in focus watersheds. The owner or
operator of a CAFO located in a final focus watershed, if so notified
by EPA, must submit the information specified in paragraph (k)(4) of
this section using the survey form provided by the Administrator. The
owner or operator of a CAFO located in a focus watershed and so
notified must submit the survey form to the Administrator, either by
certified mail, or electronically, through the Agency's electronic
information management system by the deadline specified in paragraph
(k)(5) of this section. If submitting the survey form by certified
mail, the owner or operator of a CAFO located in a focus watershed must
indicate on the survey form that an electronic submission waiver
applies and provide justification as to why
[[Page 65458]]
electronic submission would cause an undue burden or expense.
(6) Deadline for submissions by owners or operators of CAFOs in
focus watersheds. The owner or operator of a CAFO located in a focus
watershed and so notified must submit the information required by
paragraph(k)(4) of this section in accordance with paragraph (k)(5) of
this section [within 90 days] after EPA notifies CAFOs of such
obligation in accordance with paragraph (k)(3).
[FR Doc. 2011-27189 Filed 10-20-11; 8:45 am]
BILLING CODE 6560-50-P