Number range CHAPTER

**\*\*\*\* DRAFT \*\*\*\***

**Supporting Statement for the Information Collection Request for the**

**Proposed NPDES and ELG Regulatory Revisions for**

**Concentrated Animal Feeding Operations**

May 2006

EPA ICR NO. 1989.03

U.S. Environmental Protection Agency

Office of Wastewater Management

1200 Pennsylvania Ave., N.W.

Washington, DC 20460

Prepared with support from:

Tetra Tech, Inc.

10306 Eaton Place

Fairfax, VA 22030

EPA Contract #EP-C-05-046

Tetra Tech Project \# 16759-07

This Page Intentionally Left Blank

**TABLE OF CONTENTS**

[1. IDENTIFICATION OF THE INFORMATION COLLECTION
1](#identification-of-the-information-collection)

[1(a) Title of the Information Collection
1](#a-title-of-the-information-collection)

[1(b) Short Characterization/Abstract
1](#b-short-characterizationabstract)

[1(c) Relationship of NPDES CAFO Program ICRs
3](#c-relationship-of-npdes-cafo-program-icrs)

[2. NEED FOR AND USE OF THE COLLECTION
3](#need-for-and-use-of-the-collection)

[2(a) Need and Authority for the Collection
3](#a-need-and-authority-for-the-collection)

[2(b) Practical Utility/Users of the Data
4](#b-practical-utilityusers-of-the-data)

[3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA
5](#nonduplication-consultations-and-other-collection-criteria)

[3(a) Nonduplication 5](#a-nonduplication)

[3(b) Public Notice Required Prior to ICR Submission to OMB
5](#b-public-notice-required-prior-to-icr-submission-to-omb)

[3(c) Consultations 6](#c-consultations)

[3(d) Effects of Less Frequent Collection
6](#d-effects-of-less-frequent-collection)

[3(e) General Guidelines 6](#e-general-guidelines)

[3(f) Confidentiality 7](#f-confidentiality)

[3(g) Sensitive Questions 7](#g-sensitive-questions)

[4. THE RESPONDENTS AND THE INFORMATION REQUESTED
7](#the-respondents-and-the-information-requested)

[4(a) Respondents/SIC Codes 7](#a-respondentssic-codes)

[4(b) Information Requested 9](#b-information-requested)

[5. THE INFORMATION COLLECTED---AGENCY ACTIVITIES, COLLECTION
METHODOLOGY, AND INFORMATION MANAGEMENT
12](#the-information-collectedagency-activities-collection-methodology-and-information-management)

[5(a) Agency Activities 12](#a-agency-activities)

[5(b) Collection Methodology and Management
12](#b-collection-methodology-and-management)

[5(c) Small Entity Flexibility 13](#c-small-entity-flexibility)

[5(d) Collection Schedule 13](#d-collection-schedule)

[6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION
14](#estimating-the-burden-and-cost-of-the-collection)

[6(a) Estimating Respondent Burden 14](#a-estimating-respondent-burden)

[6(b) Estimating Respondent Costs 17](#b-estimating-respondent-costs)

[6(c) Estimating Agency Burden and Cost
19](#c-estimating-agency-burden-and-cost)

[6(d) Estimating the Respondent Universe and Total Burden and Costs
19](#d-estimating-the-respondent-universe-and-total-burden-and-costs)

[6(e) Bottom Line Burden Hours and Costs Tables
22](#e-bottom-line-burden-hours-and-costs-tables)

[6(f) Reasons for Change in Burden 23](#f-reasons-for-change-in-burden)

[6(g) Burden Statement 25](#g-burden-statement)

[REFERENCES 28](#references)

[APPENDIX 29](#appendix)

**LIST OF TABLES**

[Table 4--1. CAFO Standard Industrial Classification codes and size
thresholds 8](#__RefHeading___Toc131825362)

[Table 4--2. CAFO universe and discharging CAFOs
10](#__RefHeading___Toc131825363)

[Table 5--1. SBA and EPA Small Business thresholds for animal sectors
13](#__RefHeading___Toc131825364)

[Table 6--1. CAFO respondent burden 15](#__RefHeading___Toc131825365)

[Table 6--2. State respondent burden 16](#__RefHeading___Toc131825366)

[Table 6--3. Wage rates used to value CAFO-related burdens
18](#__RefHeading___Toc131825367)

[Table 6--4. CAFO labor rates 18](#__RefHeading___Toc131825368)

[Table 6--5. Annual average respondents burden and cost
20](#__RefHeading___Toc131825369)

[Table 6--6. Annual average Agency burden and cost
21](#__RefHeading___Toc131825370)

[Table 6--7. CAFO burden and cost summary
22](#__RefHeading___Toc131825371)

[Table 6--8. State burden and cost summary
23](#__RefHeading___Toc131825372)

[Table 6--9. Agency burden and cost summary
23](#__RefHeading___Toc131825373)

[Table 6--10. Hour and burden totals for all respondents
26](#__RefHeading___Toc131825374)

# 1. IDENTIFICATION OF THE INFORMATION COLLECTION

## 1(a) Title of the Information Collection

ICR: Proposed NPDES and ELG Regulatory Revisions for Concentrated Animal
Feeding Operations EPA ICR: 1989.03

OMB Control Number: 2040-0250

## 1(b) Short Characterization/Abstract

On February 12, 2003, EPA promulgated a final rule that revised and
updated regulations for the National Pollutant Discharge Elimination
System (NPDES) and Effluent Limitations Guideline (ELG) requirements for
concentrated animal feeding operations (CAFOs) (68 FR 7176; also see ICR
1989.02). Subsequently, on February 28, 2005, the United States Court of
Appeals for the Second Circuit vacated certain provisions in the 2003
regulations and remanded others to EPA *(Waterkeeper Alliance et al.* v.
*EPA*, 399 F.3d 486 (2^nd^ Cir. 2005)). In response to the decision of
the Second Circuit, referred to in this ICR as the Waterkeeper decision,
EPA has developed a proposed regulation that addresses the vacated and
remanded regulations.

The 2003 CAFO rule was accompanied by an ICR that covered the new CAFO
program rules (ICR No. 1989.02). That ICR expires in July 2006, and is
being renewed in a separate action as ICR No. 1989.04.

This ICR provides an estimate of the information collection hour and
cost burden impacts associated specifically with the proposed regulation
to address the Waterkeeper decision from 2005.[^1] It includes the
burden and cost increase expected to result from the proposed rule's
response to the court's decision to add certain requirements related to
Nutrient Management Plans (NMPs). It also includes the burden and cost
reductions expected to result from the court's decision to require NPDES
permits only from dischargers. This reduction was calculated from a
baseline of the paperwork burden from the 2003 CAFO rule, as updated to
2006. (See Exhibit G in the Appendix.)

This ICR addresses the following proposed rule requirements:

 EPA has adjusted the number of respondents according to the Court's
determination that only those CAFOs that discharge or that propose to
discharge must apply for an NPDES permit.

 EPA is proposing that Nutrient Management Plans (NMPs) required to be
prepared by CAFOs under the 2003 rule must be submitted to the permit
authority with the permit application or notice of intent to be covered
under a general permit.

 EPA is proposing that NMPs submitted to the permit authority must be
reviewed by the permit authority and that the permit authority must
develop terms of the NMP for the permit.

 EPA is proposing that NMPs and terms of the NMP for the permit be made
available to the public for review and comment, including potential
hearings.

The Federal Water Pollution Control Act (1972), also known as the Clean
Water Act (CWA), prohibits the discharge of pollutants from a point
source to waters of the United States except for discharges authorized
and regulated by the NPDES permit program established by section 402(a).
CAFOs are classified as point sources and, thus, may be subject to
permit requirements at 40 *Code of Federal Regulations* (CFR) Part 122
and the feedlot ELG requirements at 40 CFR 412. NPDES permits typically
include requirements for permit applications, recordkeeping, reporting,
and other information collection activities.

Section 402(b) provides that States (including U.S. Territories and
Indian Tribes) may be authorized to administer NPDES programs once the
Agency is assured that a State program meets minimum federal
requirements. As of September 2005, 45 States and one Territory (U.S.
Virgin Islands) had received approval from EPA to administer the NPDES
base program, which includes the federal requirements that are
applicable to CAFOs. Of these, 44 are responsible for issuing NPDES
permits to CAFOs (called "authorized States" hereafter).[^2] EPA and
authorized State permitting authorities typically receive, review,
management, and report information collected under the NPDES permitting
program, including CAFO permits.

Information collected by the NPDES Program Director (of either an
authorized State or EPA) about waste management facilities and operating
procedures will be used to determine the applicability of permit
coverage and to document that a permittee is in compliance with permit
requirements. Information will be collected using permit application
forms and annual reports and through compliance evaluation inspections.
Permitting authorities enter data into Permit Compliance System (PCS) or
the Integrated Compliance Information System (ICIS), the Agency\'s old
and modernized NPDES program databases.

It is noteworthy that the majority of the burden estimated under this
ICR would fall on the permit authorities. This ICR addresses only the
burden associated with changes EPA is making to the 2003 CAFO rule to
address the provisions that were vacated and remanded by the Second
Circuit Court of Appeals.

EPA estimates that the burden for this information collection request
results in an annual average decrease of 777,366 hours for all
non-Federal respondents, including an increase in 30,293 hours for State
respondents and a reduction of 807,659 hours for all CAFO respondents.
This estimate includes the time required to review instructions, search
existing data sources, gather and maintain all necessary data, and
complete and review the information collected. On average, there will be
approximately 6,356 fewer CAFO owners/operators respondents and 46,334
fewer responses per year. The capital or operation and maintenance (O&M)
costs savings as a result of the proposed rule are estimated to be
\$2,679,189.

## 1(c) Relationship of NPDES CAFO Program ICRs

The existing CAFO ICR covers the period from June 2003 to June 2006 (ICR
\# 1989.02). Implementation of the NPDES CAFO regulations that were
promulgated in February 2003 are addressed under the 2003 ICR (1989.02).
The scope of this current ICR (Proposed Rule ICR) is limited to
addressing changes to the 2003 NPDES CAFO regulations resulting from the
February 2005 Second Circuit Court of Appeals decision. Consistent with
ICR requirements, EPA will renew, in a separate analysis to that herein,
the entire ICR for the NPDES CAFO program in 2006 to address
implementation of the program through 2009. The 2006 ICR will merge the
burden from the 2003 CAFO Rule ICR (1989.02) and the burden reflected in
this Proposed Rule ICR into a single CAFO NPDES Program implementation
ICR. (This ICR uses updated baselines that will be consistent with the
upcoming CAFO program ICR renewal.)

# 2. NEED FOR AND USE OF THE COLLECTION

## 2(a) Need and Authority for the Collection

EPA has authority to undertake the information collection activities
characterized in this document under Sections 308 and 402 of the CWA,
and Title 33 Sections 1311, 1318, and 1342 \[402 counterparts\] of the
United States Code (U.S.C.). CAFOs are defined as point sources for
purposes of the NPDES program (33 U.S.C. Sec. 1362). Under 33 U.S.C.
Section 1311 and Section 1342, a CAFO must obtain an NPDES permit and
comply with the terms of that permit, which may include appropriate
conditions on data and information collection. Furthermore, 33 U.S.C.
Section 1318 provides authority for information collection (i.e., record
keeping, reporting, monitoring, sampling, and other information as
needed), which applies to point sources.

EPA and authorized States need the information generated by the proposed
regulatory revisions that pertain to CAFOs to respond to the Second
Circuit Court of Appeal's decision in *Waterkeeper Alliance v. EPA* and
to effectively implement CWA requirements. This proposed rule would
revise the final 2003 CAFO rule, which updated EPA's original ELG (40
CFR. Part 412) and NPDES (40 CFR. Part 122) regulations for CAFOs
promulgated in the mid-1970s.

The proposed revisions would respond to the court ruling while
maintaining the nation's water quality and effectively ensuring that
CAFOs properly manage the manure that they generate. The revisions alter
the mandatory duty for CAFOs to apply for a permit, requiring only those
CAFOs that discharge or propose to discharge to apply for a permit.
Additionally, EPA is revising the 2003 CAFO rule to allow greater public
participation in the implementation of the nutrient management plan,
requiring CAFOs seeking permit coverage to submit their NMP to the
permitting authority as part of the application or notice of intent
(NOI) and requiring that the permitting authorities review the plans and
provide public notice and an opportunity for public comment. As the
court decided that NMP is the heart of the effluent limitation
guideline, NPDES permits issued under the proposed rule must include the
plan's key terms and conditions. Finally, the 100-year, 24-hour storm
containment structure standard for new large swine, poultry, and veal
facilities would be removed.

EPA needs to collect information from authorized States to ensure that
their NPDES programs implement the final rule. Under 40 CFR Part 123,
State NPDES programs must, at all times, be in compliance with federal
regulations. When new federal requirements are enacted, States have one
year to update their regulations to meet the new requirements or have 2
years if they must also update statutes.

## 2(b) Practical Utility/Users of the Data

EPA and authorized State permitting authorities use the information
routinely collected through NPDES applications and compliance
evaluations in the following ways:

 to issue NPDES permits with appropriate limitations and conditions
that will protect human health and the environment

 to allow for public participation in the permitting process

 to update information in EPA\'s databases that permitting authorities
use to determine permit conditions

 to calculate national permit issuance, backlog, and compliance
statistics

 to evaluate national water quality

 to assist EPA in program management and other activities that ensure
national consistency in permitting

 to assist EPA in prioritizing permit issuance activities

 to assist EPA in policy development and budgeting

 to assist EPA in responding to Congressional and public inquiries

Other users of the data include regulated CAFOs and the general public.
CAFOs will use the data they collect to improve operation efficiency and
evaluate facility maintenance needs. The general public can use
information collected through the NPDES permit process to support
efforts to protect local environmental quality and quality of life.

# 3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

## 3(a) Nonduplication

The information collection pursuant to the regulatory changes is
site-specific and, therefore, not available from existing sources of
information.

As part of its overall CAFO initiative, EPA has undertaken efforts to
identify existing sources of relevant information as well as to
coordinate with other Federal agencies that collect information in the
agricultural sector \[e.g., United States Department of Agriculture
(USDA), United States Geological Survey (USGS), Food and Drug
Administration (FDA), National Oceanic and Atmospheric Administration,
Centers for Disease Control (CDC)\] and States. To support development
of the USDA/EPA Unified National Strategy for animal feeding operations
(AFOs) and the 2003 regulatory changes, EPA formed and administered a
data and analysis group that included 18 representatives from EPA, USDA,
and USGS. This group worked to identify and access existing sources of
CAFO data. Although some useful general data were identified, including
EPA and USDA information (e.g., STORET, 305(b) and 303(d) information),
no other Federal agency has the facility-specific data addressed under
the CAFO regulations. In addition, EPA used publicly available
information to a significant extent.

There are a few national databases maintained by the Federal government
that store some information about CAFOs. A search for relevant databases
identified the following:

 EPA's Permit Compliance System (PCS)

 USDA Census of Agriculture

EPA's PCS database is used to store information about facilities that
hold NPDES permits. It helps EPA monitor the compliance status of
permitted facilities. PCS holds only data items associated with existing
NPDES permits and focuses on discharge requirements. This information
collection is not duplicative of data already in PCS.

USDA's National Agricultural Statistics Service (NASS) is responsible
for maintaining a large amount of information on agricultural
operations, including AFOs, through the Census of Agriculture, which is
administered every 5 years. Census of Agriculture data are subject to
restrictions with regard to what type of data may be released, when, and
to whom. Generally, facility level data may not be released. Therefore,
the information in the Census of Agriculture database cannot fulfill
EPA's data needs for purposes of administering the NPDES program, and
this information collection is not duplicative of the data available
from NASS.

## 3(b) Public Notice Required Prior to ICR Submission to OMB

A summary of the ICR will be published in the proposed rule notice in
the Federal Register. The notice will include a request for comments on
the content and impact of the proposed rule on the regulated community.
Comments on the proposed rule are used to substantiate or refute the
burden estimates for respondents. A summary of this ICR will accompany
the final rule submission to OMB, as will be noted in the public notice
for the submission.

## 3(c) Consultations

To facilitate the 2003 CAFO regulation development, EPA actively
involved interested parties in the development of the final 2003 rule.
As part of those efforts, EPA provided many opportunities for input in
the 2003 rule-making process, including 11 public outreach meetings on
the Draft Unified National AFO Strategy and a stakeholder conference
call including small entities. In addition, EPA meets with various
members of the stakeholder community on a continuing basis. Those
meetings with environmental organizations, producer groups, and
producers representing various agricultural sectors gave EPA the
opportunity to interact with and receive input from stakeholders about
the Unified Strategy and the NPDES and ELG regulatory revisions. While
most of those outreach activities have not targeted small entities
explicitly, many included small business participation. Examples of
specific consultations were documented in the 2003 CAFO Rule ICR (OMB
NO: 2040-0250, EPA ICR: 1989.02).

EPA has developed this proposed rule and accompanying ICR in response to
the Court's vacature and remand of certain provisions in the 2003 CAFO
rule. EPA has worked with EPA Regions and numerous States, as well as
USDA, to develop the proposed requirements described in this ICR. During
the implementation of the 2003 NPDES CAFO Rule and in developing this
proposed rule in response to the Second Circuit Court decision, EPA has
continued to meet with environmental organizations, producer groups, and
producers representing various agricultural sectors.

## 3(d) Effects of Less Frequent Collection

EPA has made every effort to establish NPDES permit and associated
information collection requirements that minimize the burden on
respondents while promoting the protection of water quality. NPDES
permit applications are the primary form of information collection for
regulated CAFOs, and these facilities must reapply for NPDES permits
before their existing permits expire. Section 402(p) of the CWA requires
that NPDES permits be issued for fixed terms with a maximum term of 5
years, thereby disallowing less frequent collection than anticipated by
this ICR. Compliance evaluation inspections \[and section 308 requests\]
are conducted as needed to assure compliance and less frequent
collection would hamper compliance assurance efforts. Furthermore, most
inspections will be conducted by authorized States, which means that
collection frequency is largely a matter of State discretion.

## 3(e) General Guidelines

This information collection complies with Paperwork Reduction Act
guidelines (5 CFR. 1320.5(d)(2)).

## 3(f) Confidentiality

Under the proposed rule, permitted CAFOs must submit nutrient management
plans and keep a record on-site. These plans might contain confidential
business information. When this is the case, the respondent can request
that such information be treated as confidential. All confidential data
will be handled in accordance with 40 CFR. 122.7, 40 CFR. Part 2 (40
CFR. 2.201 et seq.), and EPA\'s Security Manual Part III, Chapter 9,
dated August 9, 1976.

Whenever possible, EPA encourages public involvement in the NPDES
regulatory process. However, EPA also recognizes the legitimate concerns
of operators regarding protection of confidential business information
and potential delays in processing of permit applications and NOIs.

## 3(g) Sensitive Questions

This ICR does not ask AFO or CAFO operators sensitive questions
concerning private matters (e.g., religious beliefs).

# 4. THE RESPONDENTS AND THE INFORMATION REQUESTED

This ICR covers the information collection activities expected to occur
over the 3-year period from January 1, 2006, through December 31,
2008.[^3] \[Review Note - The data provided in this document are valid
for that time-frame. This may need to be adjusted based upon the
ultimate date of publication for the final rule.\]

## 4(a) Respondents/SIC Codes

The two categories of respondents are the owners or operators of CAFOs
and the 44 authorized States that issue permits to CAFOs. Among CAFO
respondents, those that discharge must apply for a permit.

EPA categorizes CAFOs on the basis of the primary type of animal
produced by the operation. Table 4-1 lists the major categories along
with their North American Industry Classification System (NAICS) codes
and the corresponding four-digit Standard Industrial Classification
(SIC) codes. Note that some industry classification codes may overlap
more than one of the categories defined by EPA under the final
regulations. For example, swine of any size have the same NAICS or SIC
codes.

Table 4-1 also provides the applicable animal thresholds. EPA uses these
thresholds to distinguish which AFOs are CAFOs. All large AFOs are
defined as CAFOs. An AFO in the medium size category is defined as a
CAFO if it meets one of two discharge criteria:

-   pollutants are discharged to U.S. waters through a man-made ditch,
    flushing system, or other similar man-made device

-   pollutants are discharged directly into U.S. waters that originate
    outside of the facility and pass over, across, or through the
    facility or otherwise come into direct contact with the confined
    animals

[]{#__RefHeading___Toc131825362 .anchor}Table 4--1. CAFO Standard
Industrial Classification codes and size thresholds

+-----------------+--------------------+--------+------------+--------+
| **NAICS code**  | **Animal type**    | **Size |            |        |
|                 |                    | thresh |            |        |
| **(SIC code)**  |                    | olds** |            |        |
+=================+====================+========+============+========+
|                 |                    | **L    | **Medium** | **S    |
|                 |                    | arge** |            | mall** |
+-----------------+--------------------+--------+------------+--------+
| 112111 (0212,   | Beef cattle,       | \>     | 300--1,000 | \< 300 |
| 0241), 112112   | heifers, calves or | 1,000  |            |        |
| (0211)          | veal for either    |        |            |        |
|                 | slaughter or       |        |            |        |
|                 | replacement        |        |            |        |
+-----------------+--------------------+--------+------------+--------+
| 112111, 112120  | Dairy              | \> 700 | 200--700   | \< 200 |
| (0241)          | cattle---mature    |        |            |        |
|                 | dairy cattle       |        |            |        |
|                 | (whether milked or |        |            |        |
|                 | dry cows) and      |        |            |        |
|                 | heifer replacement |        |            |        |
+-----------------+--------------------+--------+------------+--------+
| 112210 (0213)   | Swine---each       | \>     | 750--2,500 | \< 750 |
|                 | weighing over 25   | 2,500  |            |        |
|                 | kilograms---or     |        |            |        |
|                 | approximately 55   |        |            |        |
|                 | pounds             |        |            |        |
+-----------------+--------------------+--------+------------+--------+
|                 | Immature           | \>     | 3,0        | \<     |
|                 | swine---each       | 10,000 | 00--10,000 | 3,000  |
|                 | weighing less than |        |            |        |
|                 | 25 kilograms, or   |        |            |        |
|                 | approximately 55   |        |            |        |
|                 | pounds             |        |            |        |
+-----------------+--------------------+--------+------------+--------+
| 112310 (0252)   | Chickens---laying  | \>     | 9,0        | \<     |
|                 | hens, using liquid | 30,000 | 00--30,000 | 9,000  |
|                 | manure handling    |        |            |        |
|                 | system             |        |            |        |
+-----------------+--------------------+--------+------------+--------+
| 112310 (0252)   | Chickens---laying  | \>     | 25,0       | \<     |
|                 | hens, if other     | 82,000 | 00--82,000 | 25,000 |
|                 | than liquid manure |        |            |        |
|                 | handling system    |        |            |        |
+-----------------+--------------------+--------+------------+--------+
| 112320 (0251)   | Chickens other     | \>     | 37,50      | \<     |
|                 | than laying        | 1      | 0--125,000 | 37,500 |
|                 | hens---broilers,   | 25,000 |            |        |
|                 | fryers and         |        |            |        |
|                 | roasters, if other |        |            |        |
|                 | than liquid manure |        |            |        |
|                 | handling system    |        |            |        |
+-----------------+--------------------+--------+------------+--------+
| 112330 (0253)   | Turkeys            | \>     | 16,5       | \<     |
|                 |                    | 55,000 | 00--55,000 | 16,500 |
+-----------------+--------------------+--------+------------+--------+
| 112390 (0259)   | Ducks, wet manure  | \>     | 1,         | \<     |
|                 | handling           | 5,000  | 500--5,000 | 1,500  |
+-----------------+--------------------+--------+------------+--------+
|                 | Ducks, dry manure  | \>     | 12,0       | \<     |
|                 | handling           | 40,000 | 00--40,000 | 12,000 |
+-----------------+--------------------+--------+------------+--------+
| 112410 (0214)   | Sheep or lambs     | \>     | 3,         | \<     |
|                 |                    | 10,000 | 000-10,000 | 3,000  |
+-----------------+--------------------+--------+------------+--------+
| 112920 (0272)   | Horses             | \> 500 | 150-500    | \< 150 |
+-----------------+--------------------+--------+------------+--------+

An AFO in the smallest size category may become a CAFO through
designation only following an on-site inspection. Medium AFOs that are
not defined CAFOs, may be designated as CAFOs. Under the 2003 CAFO rule,
all CAFOs had a duty to apply for an NPDES permit[^4] either by
submitting an NOI to be covered by a general permit or by submitting an
application for an individual permit. Under this proposed rule, this
requirement is narrowed such that *only* those CAFOs that discharge or
propose to discharge must apply for a permit.[^5]

In the interim period from when the 2003 CAFO Rule ICR was prepared and
the development of this Proposed Rule ICR, the animal agricultural
industry has continued to change. These changes have included further
consolidation reflected in an increased number of AFOs that meet the
threshold for being defined as a Large CAFO. The estimates also reflect
better estimates from states and EPA regions. Table 4-2 documents
changes to the number of Large CAFOs between 2003 and 2005 and reflects
the numbers used in developing each ICR. This Proposed Rule ICR accounts
only for changes being made to the NPDES CAFO permit program resulting
from the Second Circuit Court of Appeals decision. The 2003 Rule ICR
addresses all other aspects of the NPDES CAFO permit program. It is
important to consider changes to the industry that have been accounted
for when comparing information in each ICR.

Table 4-2 shows the number of CAFOs that have operational
characteristics associated with discharges to waters of the United
States, which subjects them to NPDES permit requirements. The
information presented in Table 4-2 was generated using data from the
1997 and 2002 Census of Agriculture, NASS bulletins, National Animal
Health Monitoring System (NAHMS) species reports, 2003 Demographics
Report and industry data sources and comments. According to this
information, EPA estimates that, as of the time of this rulemaking,
approximately 14,100 CAFOs would discharge to waters of the United
States. (EPA, October 14, 2005, *Memo to Record: Estimated Number of
Permit Applications from CAFOs.*) These figures include both facilities
defined as CAFOs that have discharges as well as facilities designated
as CAFOs due to discharges. Table 4-2 provides an accounting of the
number of CAFOs by animal type as well as operation size. Exhibit H in
the appendix provides more detailed information about the CAFO universe,
including the total permitted facilities by year.

## 4(b) Information Requested

> **4(b)(i) Data Items, Including Record-keeping Requirements**
>
> ***CAFO Data Items***

[Submittal of Nutrient Management Plan (NMP)]{.underline}. (Proposed 40
CFR. 122.21(i)(1)(x)) An NMP must be part of an NPDES permit
application. In addition, an NOI to obtain coverage under a general
permit must include an NMP. The 2003 CAFO rule required that facilities
required to develop an NMP had to maintain the NMP on-site and make it
available to the permit authority upon request. The 2003 rule specifies
the content of the NMP, which has not changed under this proposed rule.

[Major Modification to NMP]{.underline}. (Proposed 40 CFR.
122.62(a)(17)) Any substantial changes to an NMP must be made in
accordance with the requirements for a permit modification under section
122.62 (e.g., draft permit, notice, comment, opportunity for public
hearing). Nonsubstantial modifications may be incorporated as minor
modifications under proposed section 122.63(h), provided the revised NMP
is submitted to the permit authority.

[]{#__RefHeading___Toc131825363 .anchor}

Table 4--2. CAFO universe and discharging CAFOs

+-----------+----------+---------+----------+----------+-------------+
| **Animal  | **2003   | **2003  | **2005   | **2005   | **          |
| type**    | CAFO     | -2005** | CAFO     | CAFOs    | 2006-2008** |
|           | Un       |         | Universe | needing  |             |
|           | iverse** | **Pr    | ^a^**    | permits  | **Increase  |
|           |          | ojected |          | ^b^**    | in number   |
|           |          | %       |          |          | of CAFOs    |
|           |          | c       |          |          | during      |
|           |          | hange** |          |          | 3-year ICR  |
|           |          |         |          |          | period due  |
|           |          |         |          |          | to industry |
|           |          |         |          |          | growth**    |
+-----------+----------+---------+----------+----------+-------------+
| Large     |          |         |          |          |             |
| CAFOs     |          |         |          |          |             |
+-----------+----------+---------+----------+----------+-------------+
| Beef      | 1,766    | 1.02    | 1,801    | 1,540    | 53          |
+-----------+----------+---------+----------+----------+-------------+
| Veal      | 12       | 0.99    | 12       | 8        | 0           |
+-----------+----------+---------+----------+----------+-------------+
| Heifer    | 242      | 1.02    | 247      | 200      | 15          |
+-----------+----------+---------+----------+----------+-------------+
| Dairy     | 1,450    | 1.13    | 1,639    | 1,657    | 857         |
+-----------+----------+---------+----------+----------+-------------+
| Swine     | 3,924    | 1.41    | 5,533    | 4,019    | 4,409       |
+-----------+----------+---------+----------+----------+-------------+
| Broilers  | 1,632    | 1.32    | 2,154    | 245      | 492         |
+-----------+----------+---------+----------+----------+-------------+
| Layers:   | 729      | 1.02    | 744      | 74       | 0           |
| Dry       |          |         |          |          |             |
+-----------+----------+---------+----------+----------+-------------+
| Layers:   | 383      | 0.98    | 375      | 375      | 2           |
| Wet       |          |         |          |          |             |
+-----------+----------+---------+----------+----------+-------------+
| Ducks     | 21       | 1.21    | 25       | 18       | 8           |
+-----------+----------+---------+----------+----------+-------------+
| Horses    | 195      | 1.10    | 215      | 179      | 28          |
+-----------+----------+---------+----------+----------+-------------+
| Turkeys   | 388      | 1.07    | 415      | 42       | 10          |
+-----------+----------+---------+----------+----------+-------------+
| TOTAL     | 10,742   |         | 13,160   | 8,363    |             |
| Large     |          |         |          |          |             |
| CAFOs     |          |         |          |          |             |
+-----------+----------+---------+----------+----------+-------------+
| Medium    | 4,625    | 1.22    | 5,641    | 5,641    |             |
| CAFOs     |          |         |          |          |             |
| **^c^**   |          |         |          |          |             |
+-----------+----------+---------+----------+----------+-------------+
| TOTAL     | 15,367   |         | 18,801   | 14,100   | 5,874       |
+-----------+----------+---------+----------+----------+-------------+
| Notes     |          |         |          |          |             |
|           |          |         |          |          |             |
| a\.       |          |         |          |          |             |
| P         |          |         |          |          |             |
| rojection |          |         |          |          |             |
| based on  |          |         |          |          |             |
| NAHMS     |          |         |          |          |             |
| species   |          |         |          |          |             |
| reports,  |          |         |          |          |             |
| 2003      |          |         |          |          |             |
| Dem       |          |         |          |          |             |
| ographics |          |         |          |          |             |
| Report,   |          |         |          |          |             |
| and 2002  |          |         |          |          |             |
| Census of |          |         |          |          |             |
| Ag        |          |         |          |          |             |
| riculture |          |         |          |          |             |
| changes   |          |         |          |          |             |
| from 1997 |          |         |          |          |             |
| Census.   |          |         |          |          |             |
| (This     |          |         |          |          |             |
| reflects  |          |         |          |          |             |
| the       |          |         |          |          |             |
| percent   |          |         |          |          |             |
| increase  |          |         |          |          |             |
| in column |          |         |          |          |             |
| 2 times   |          |         |          |          |             |
| the       |          |         |          |          |             |
| number of |          |         |          |          |             |
| CAFOs in  |          |         |          |          |             |
| column 1) |          |         |          |          |             |
|           |          |         |          |          |             |
| b\. The   |          |         |          |          |             |
| figures   |          |         |          |          |             |
| by sector |          |         |          |          |             |
| include   |          |         |          |          |             |
| both      |          |         |          |          |             |
| f         |          |         |          |          |             |
| acilities |          |         |          |          |             |
| defined   |          |         |          |          |             |
| as CAFOs  |          |         |          |          |             |
| that have |          |         |          |          |             |
| d         |          |         |          |          |             |
| ischarges |          |         |          |          |             |
| as well   |          |         |          |          |             |
| as        |          |         |          |          |             |
| f         |          |         |          |          |             |
| acilities |          |         |          |          |             |
| d         |          |         |          |          |             |
| esignated |          |         |          |          |             |
| as CAFOs  |          |         |          |          |             |
| due to    |          |         |          |          |             |
| di        |          |         |          |          |             |
| scharges. |          |         |          |          |             |
|           |          |         |          |          |             |
| c\.       |          |         |          |          |             |
| Med       |          |         |          |          |             |
| ium-sized |          |         |          |          |             |
| CAFOs,    |          |         |          |          |             |
| because   |          |         |          |          |             |
| of how    |          |         |          |          |             |
| they are  |          |         |          |          |             |
| defined,  |          |         |          |          |             |
| will      |          |         |          |          |             |
| still     |          |         |          |          |             |
| need      |          |         |          |          |             |
| permits.  |          |         |          |          |             |
|           |          |         |          |          |             |
| Sources:  |          |         |          |          |             |
|           |          |         |          |          |             |
| U.S. EPA  |          |         |          |          |             |
| (2002).   |          |         |          |          |             |
| Estimates |          |         |          |          |             |
| of CAFO   |          |         |          |          |             |
| Universe  |          |         |          |          |             |
| EPA ICR   |          |         |          |          |             |
| No.       |          |         |          |          |             |
| 1989.02.  |          |         |          |          |             |
|           |          |         |          |          |             |
| EPA,      |          |         |          |          |             |
| October   |          |         |          |          |             |
| 14, 2005, |          |         |          |          |             |
| *Memo to  |          |         |          |          |             |
| Record:   |          |         |          |          |             |
| Estimated |          |         |          |          |             |
| Number of |          |         |          |          |             |
| Permit    |          |         |          |          |             |
| App       |          |         |          |          |             |
| lications |          |         |          |          |             |
| from      |          |         |          |          |             |
| CAFOs*    |          |         |          |          |             |
+-----------+----------+---------+----------+----------+-------------+

> ***State Data Items***

[Submittal of NMP]{.underline}. (Proposed 40 CFR. 122.21(i)(1)(x))
Authorized States receive the NMPs as part of each NPDES permit
application or NOI to obtain coverage under an NPDES general permit.

[Public Notice/Comment]{.underline}. (Proposed 40 CFR. 122.21(i)(1)(x)
and 122.42(e)(1)) Authorized States must provide notice and opportunity
for comment on draft NMPs and NMP terms for permits. (Existing NPDES
regulations require notice and comment on draft NPDES permits---see 40
CFR 124.10, and ICRs 0168.08, 0226.17, 1427.07, and 0029.08.)

[Major Modification to NMP]{.underline}. (Proposed 40 CFR.
122.62(a)(17)) Authorized States must review major modifications to
NMPs.

[Public Hearing]{.underline}. (Proposed 40 CFR. 122.21(i)(1)(x) and
122.42(e)(1)) Authorized States must provide opportunity for a public
hearing when there is significant public interest in the NMP provisions
of a draft NPDES CAFO permit. (Existing NPDES regulations provide for
the opportunity for a public hearing for a draft NPDES permit---see 40
CFR 124.11, and ICRs 0168.08, 0226.17, 1427.07, and 0029.08.)

> **4(b)(ii) Respondent Activities**
>
> ***CAFO Activities***

[Submittal of NMP]{.underline}. (Proposed 40 CFR. 122.21(i)(1)(x)) All
CAFOs that discharge or propose to discharge must submit an NMP as part
their NPDES permit application. In addition, NOIs to obtain coverage
under an NPDES general permit must include an NMP. For purposes of
comparison, the 2003 CAFO rule required that facilities required to
develop an NMP had to maintain the NMP on-site and make it available to
the permit authority upon request.

[Major Modification to NMP]{.underline}. (Proposed 40 CFR.
122.62(a)(17)) Permitted CAFOs that make substantial changes to their
NMP must comply with the requirements for a permit modification under
section 122.62 (e.g., draft permit, notice, comment, opportunity for
public hearing). Nonsubstantial modifications may be incorporated as
minor modifications under proposed section 122.63(h), provided the
revised NMP is submitted to the permit authority.

> ***State Activities***

[Review of NMP]{.underline}. (Proposed 40 CFR 122.21(i)(1)(x))
Authorized States must review the NMP, as part of the permit application
and permit, for compliance with applicable NPDES CAFO regulations.
(Existing regulations require the review of application information, the
use of application information in developing permit requirements, and
the drafting of permit conditions on the basis for the permit record.
See, 40 CFR sections 124.3, 124.6 and 124.9, as well as 123.25. Also see
ICRs 0168.08, 0226.17, 1427.07, and 0029.08.) *Note: The burden for
developing the NMP terms for the permit is not costed in this ICR since
the permit development burden is not typically included in information
collection analysis.*

[Public Notice/Comment]{.underline}. (Proposed 40 CFR 122.21(i)(1)(x)
and 122.42(e)(1)) Authorized States must provide public notice and an
opportunity for comment on the NMP and the NMP terms for the permit.
(Existing NPDES regulations require notice and comment on draft NPDES
permits---see 40 CFR 124.10, and ICRs 0168.08, 0226.17, 1427.07, and
0029.08.)

[Major Modification to NMP]{.underline}. (Proposed 40 CFR 122.62(a)(17))
Authorized States must review any major modifications to an NMP.

[Public Hearing]{.underline}. (Proposed 40 CFR 122.21(i)(1)(x) and
122.42(e)(1)) Authorized States must conduct a public hearing when there
is significant public interest in the NMP provisions of a draft NPDES
CAFO permit.

# 5. THE INFORMATION COLLECTED---AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT

## 5(a) Agency Activities

EPA has permitting responsibilities in the six States where it is the
permitting authority for CAFOs. In those States, the Agency's permitting
activities would be similar to the activities described for authorized
States (see section 4(b) of this document). These activities are not
included in the burden and cost estimates for this ICR in accordance
with the 1999 EPA ICR Handbook.

The active CAFOS NPDES ICR (OMB NO: 2040--0250, EPA ICR: 1989.02)
accounts for burden to evaluate the requests for program modifications
submitted by authorized States to implement the final rule. EPA expects
any additional changes resulting from the amended rule to be minor.

## 5(b) Collection Methodology and Management

CAFO respondents will submit the requested information to their NPDES
permitting authority. EPA will manage a portion of the information
collected electronically. As under the existing NPDES program,
respondent data pertaining to facilities permitted under the revised
regulations would be catalogued in the automated PCS or ICIS NPDES
database. The PCS database is a national database that contains
information on permit issuance, permit limits and monitoring, and other
facility information. It is being replaced by a modernized system, ICIS
-- NPDES. Appropriate information provided on permit application forms
or NOI forms will be entered into PCS (or ICIS-NPDES) or an NOI
database.

## 5(c) Small Entity Flexibility

The current NPDES program distinguishes Small CAFOs on the basis of the
number or concentration of animals. Small, medium, and large operations
are defined in Table 4-1.

Whereas EPA establishes thresholds on the basis of the number of
animals, the Small Business Administration (SBA) uses revenue-based
thresholds to distinguish small agricultural operations from larger
operations. Consequently, EPA developed a model to convert the SBA's
revenue thresholds to the number of animals by sector. EPA used the
SBA's revenue-based definitions (except for laying hens) and data from
USDA and the industry for this effort. The SBA and EPA thresholds are
shown for each sector in Table 5--1. A comparison of the SBA-based
animal thresholds with EPA's animal thresholds indicates that most
medium and small CAFOs are small entities and some large CAFOs will be
small entities as well.

[]{#__RefHeading___Toc131825364 .anchor}Table 5--1. SBA and EPA Small
Business thresholds for animal sectors

+---------+---------------+------------+---------------+--------------+
| **NAICS | **Animal      | **SBA      | **            | **CAFO Size  |
| code**  | sector**      | t          | Corresponding | Threshold**  |
|         |               | hreshold** | SBA animal    |              |
| **(SIC  |               |            | threshold**   | **(number of |
| code)** |               | **(revenue |               | animals)**   |
|         |               | in         | **(number of  |              |
|         |               | mill       | animals)**    |              |
|         |               | ions)^a^** |               |              |
+=========+===============+============+===============+==============+
| 112112  | Beef cattle   | \$1.5      | 1,400         | Large: \>    |
| (0211)  | feedlots      |            |               | 1,000        |
+---------+---------------+------------+---------------+--------------+
| 112111, | Dairy farms   | \$0.75     | 300^b^        | Large \> 700 |
| 112120  | and dairy     |            |               |              |
| (0241)  | heifer        |            |               | Medium \>    |
|         | replacement   |            |               | 200          |
|         | production    |            |               |              |
+---------+---------------+------------+---------------+--------------+
| 112210  | Hogs          | \$0.75     | 2,100^c^      | Large \>     |
| (0213)  |               |            |               | 2,500        |
|         |               |            |               |              |
|         |               |            |               | Medium \>    |
|         |               |            |               | 750          |
+---------+---------------+------------+---------------+--------------+
| 112310  | Chicken eggs  | \$1.5^d^   | 61,000        | Large \>     |
| (0252)  |               |            |               | 30,000       |
+---------+---------------+------------+---------------+--------------+
| 112320  | Broiler,      | \$0.75     | 375,000       | Large \>     |
| (0251)  | fryer,        |            |               | 125,000      |
|         | roaster       |            |               |              |
|         | chickens      |            |               |              |
+---------+---------------+------------+---------------+--------------+
| 112330  | Turkeys and   | \$0.75     | 37,500        | Large \>     |
| (0253)  | turkey eggs   |            |               | 55,000       |
+---------+---------------+------------+---------------+--------------+
| a\. SBA |               |            |               |              |
| thr     |               |            |               |              |
| esholds |               |            |               |              |
| ef      |               |            |               |              |
| fective |               |            |               |              |
| F       |               |            |               |              |
| ebruary |               |            |               |              |
| 22,     |               |            |               |              |
| 2002.   |               |            |               |              |
| Classif |               |            |               |              |
| ication |               |            |               |              |
| is met  |               |            |               |              |
| if the  |               |            |               |              |
| op      |               |            |               |              |
| eration |               |            |               |              |
| has     |               |            |               |              |
| revenue |               |            |               |              |
| equal   |               |            |               |              |
| to or   |               |            |               |              |
| less    |               |            |               |              |
| than    |               |            |               |              |
| the     |               |            |               |              |
| th      |               |            |               |              |
| reshold |               |            |               |              |
| cited.  |               |            |               |              |
|         |               |            |               |              |
| b\.     |               |            |               |              |
| Mature  |               |            |               |              |
| dairy   |               |            |               |              |
| cattle. |               |            |               |              |
|         |               |            |               |              |
| c\.     |               |            |               |              |
| Each    |               |            |               |              |
| w       |               |            |               |              |
| eighing |               |            |               |              |
| over 25 |               |            |               |              |
| kil     |               |            |               |              |
| ograms. |               |            |               |              |
|         |               |            |               |              |
| d\. EPA |               |            |               |              |
| co      |               |            |               |              |
| nsulted |               |            |               |              |
| with    |               |            |               |              |
| SBA on  |               |            |               |              |
| the use |               |            |               |              |
| of this |               |            |               |              |
| alte    |               |            |               |              |
| rnative |               |            |               |              |
| defi    |               |            |               |              |
| nition; |               |            |               |              |
| the     |               |            |               |              |
| o       |               |            |               |              |
| riginal |               |            |               |              |
| th      |               |            |               |              |
| reshold |               |            |               |              |
| is      |               |            |               |              |
| \$9.0   |               |            |               |              |
| m       |               |            |               |              |
| illion. |               |            |               |              |
|         |               |            |               |              |
| Note:   |               |            |               |              |
| Certain |               |            |               |              |
| animal  |               |            |               |              |
| sectors |               |            |               |              |
| (e.g.,  |               |            |               |              |
| sheep   |               |            |               |              |
| and     |               |            |               |              |
| lambs,  |               |            |               |              |
| horses, |               |            |               |              |
| and     |               |            |               |              |
| ducks)  |               |            |               |              |
| are not |               |            |               |              |
| subject |               |            |               |              |
| to ELG  |               |            |               |              |
| requir  |               |            |               |              |
| ements, |               |            |               |              |
| and EPA |               |            |               |              |
| has not |               |            |               |              |
| de      |               |            |               |              |
| veloped |               |            |               |              |
| corres  |               |            |               |              |
| ponding |               |            |               |              |
| small   |               |            |               |              |
| b       |               |            |               |              |
| usiness |               |            |               |              |
| animal  |               |            |               |              |
| thr     |               |            |               |              |
| esholds |               |            |               |              |
| for     |               |            |               |              |
| those   |               |            |               |              |
| s       |               |            |               |              |
| ectors. |               |            |               |              |
+---------+---------------+------------+---------------+--------------+

As in the 2003 CAFO rule, EPA's premise continues to be that any
regulatory burden should focus on those operations posing the greatest
risk to water quality and public health---especially operations with
large numbers of animals. As section 6 shows, this proposed rule would
result in a net reduction in burden on CAFO respondents, including small
entities, due to the reduced number of operations that would be required
to obtain a permit. In addition, any new estimates of burden on small
entities are relatively small. The proposed rule does not alter the fact
that the CAFO ELG requirements apply to Large CAFOs, and that permitting
authorities, which are mainly State agencies, will establish
technology-based requirements for Small and Medium CAFOs on the basis of
best professional judgment.

## 5(d) Collection Schedule

This ICR, when final, will cover the initial 3-year period following
promulgation of the final rule. For this Proposed Rule ICR, estimates
are based on the three-year period from January 1, 2006, through
December 31, 2008.

The requirement for permitting only those CAFOs that discharge became
effective upon the Court's ruling of February 28, 2005. This change,
which is being initially codified in regulations under the proposed
rule, will have the effect of reducing the information collection burden
on CAFOs relative to the 2003 CAFO rule. Thus, the burden and cost
reflected in the ICR developed for the 2003 CAFO Rule ICR has been
reduced, and these reductions are reflected in this ICR. In some
instances, these reductions may be affected by industry changes such as
continuing consolidation.

Under the proposed rule to address the Second Circuit Court decision, an
NMP must be submitted as part of the permit application. This ICR
assumes that one-fifth of existing permitted CAFOs would renew their
permits in each year covered by the ICR (based on the 5-year NPDES
permit term). In addition, a specific number of new and designated CAFOs
were assumed to seek permits in each of these years.

Based on EPA's experience with other permit modifications, changes to
existing NMPs are assumed to be made to one percent of permitted CAFOs.
These changes would trigger permit modification requirements.

# 6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION

The summaries below provide brief descriptions of the CAFO and State
activities, and Tables 6‑6 and 6--7 summarize the burden assumptions.

Exhibits A through F in the Appendix provide additional information
regarding the burden and cost assumptions. Because none of the technical
requirements were affected by the court's decision, no separate Economic
Analysis was conducted to support these proposed requirements.

## 6(a) Estimating Respondent Burden

> ***CAFO Burden***

For the active CAFO NPDES ICR (OMB NO: 2040--0250, EPA ICR: 1989.02),
EPA calculated average plan development burden for average CAFO by
animal type. These numbers were used to calculate a weighted average
plan burden of approximately 50.7 hours according to the number of CAFOs
of each type. For purposes of this ICR, EPA estimates that the burden to
modify an NMP would be 20 percent of the development burden. EPA's
burden estimate for submitting the plan is 30 minutes.

Under the proposed rule to address the Second Circuit Court decision,
CAFOs will incur burden associated with submitting NMPs to the permit
authority and submitting significant modifications to the permit
authority. Note that all other burden associated with the 2003 CAFO rule
are addressed in the existing EPA ICR No.1989.02. Table 6-1 specifies
the burden hours per response for each CAFO under this proposed rule.

All CAFOs that discharge or propose to discharge must submit an NMP as
part their NPDES permit application (proposed 40 CFR. 122.21(i)(1)(x)).
In addition, NOIs to obtain coverage under an NPDES general permit must
include an NMP. For purposes of comparison, the 2003 CAFO rule required
that facilities required to develop an NMP had to maintain the NMP
on-site and make it available to the permit authority upon request. EPA
estimates that submittal of an NMP will require 0.5 hours every 5 years.

[]{#__RefHeading___Toc131825365 .anchor}Table 6--1. CAFO respondent
burden

+---------------------------------------------+----------+------------+
| **Activities**                              | **Hours  | *          |
|                                             | per      | *Frequency |
|                                             | re       | of         |
|                                             | sponse** | response** |
+---------------------------------------------+----------+------------+
| **Nutrient Management Plan**                |          |            |
+---------------------------------------------+----------+------------+
| Modify Nutrient Management Plan ^a,b^       | 10.1     | every year |
+---------------------------------------------+----------+------------+
| Submit Nutrient Management Plan             | 0.5      | every 5    |
|                                             |          | years      |
+---------------------------------------------+----------+------------+
| a\. It was assumed that every year, 1       |          |            |
| percent of NMPs would change enough to      |          |            |
| trigger review.                             |          |            |
|                                             |          |            |
| b\. The burden estimate is 20 percent of    |          |            |
| the burden to develop an NMP. See active    |          |            |
| CAFOS NPDES ICR (OMB NO: 2040-0250, EPA     |          |            |
| ICR: 1989.02)                               |          |            |
+---------------------------------------------+----------+------------+

In addition, permitted CAFOs that make substantial changes to their NMP
must comply with the requirements for a permit modification under
section 122.62 (e.g., draft permit, notice, comment, opportunity for
public hearing). Nonsubstantial modifications may be incorporated as
minor modifications under proposed section 122.63(h), provided the
revised NMP is submitted to the permit authority (proposed 40 CFR.
122.62(a)(17)). EPA estimates that permit modifications will result in a
burden of 10.1 hours.

Under the proposed rule to address the Second Circuit Court decision,
the provision in the 2003 CAFO rule that required that all CAFOs had a
duty to apply for an NPDES permit, either by submitting an NOI to be
covered by a general permit, or by submitting an application for an
individual permit was narrowed such that *only* those CAFOs that
discharge or propose to discharge must apply for a permit. This change
will reduce the CAFO facility information collection burden associated
with all of the items covered under the 2003 CAFO rule ICR (e.g., permit
application, NMP development, recordkeeping and reporting, no potential
to discharge notification, etc)

> ***State Burden***

Under the proposed rule to addressed the Second Circuit Court decision,
authorized States will incur burden associated with reviewing NMPs and
providing public notice of the NMP portion of each permit, opportunity
to comment and, potentially, public hearings. All other categories of
burden associated with the 2003 CAFO rule are addressed in the existing
EPA ICR No.1989.02. Table 6-2 specifies the burden hours per response
for each permit authority under this proposed rule.

Authorized States must review the NMP, as part of the permit application
and permit, for compliance with applicable NPDES CAFO regulations.
(Existing NPDES regulations require the review of application
information, the use of application information in developing permit
requirements, and the drafting of permit conditions. See 40 CFR sections
124.3, 124.6 and 124.9, as well as 123.25. Also see ICRs 0168.08,
0226.17, 1427.07, and 0029.08.) (See proposed 40 CFR. 122.21(i)(1)(x)).

Authorized States must provide public notice and an opportunity for
comment on the NMP portion of draft NPDES CAFO permits. (Existing NPDES
regulations require notice and comment on all other elements of draft
NPDES permits---see 40 CFR 124.10, and ICRs 0168.08, 0226.17, 1427.07,
and 0029.08.) (See proposed 40 CFR. 122.21(i)(1)(x) and 122.42(e)(1)).

Authorized States must review major changes to an NMP which result in
modification of the permit, and must provide an opportunity for public
comment if indicated. (See proposed 40 CFR. 122.62(a)(17)).

[]{#__RefHeading___Toc131825366 .anchor}Table 6--2. State respondent
burden

  ---------------------------------------------- ------------ -------------
  **Activities**                                 **Hours per  **Frequency
                                                 response**   of response**

  **State General NPDES Permit Application                    
  Activities**                                                

  Public hearings                                200.0        every 5 years

  Review NMP (administrative)                    20.0         every 5 years

  **State Individual Permit Application                       
  Activities**                                                

  Review NMP (administrative)                    20.0         every 5 years

  **State General NPDES Permit Application                    
  Activities Due to Significant NMP                           
  Modifications^a^**                                          

  Review and approve NOIs/record keeping         4.0          every year

  Public hearings                                40.0         every year

  Review NMP (administrative)                    4.0          every year

  Notify public, respond to comments             1.0          every year

  **State Individual Permit Application                       
  Activities Due to Significant NMP                           
  Modifications^a^**                                          

  Review and approve permits/record keeping      20.0         every year

  Public hearings                                40.0         every year

  Review NMP (administrative)                    4.0          every year

  Notify public, respond to comments             1.0          every year

  a\. It was assumed that every year, 1 percent               
  of NMPs would change enough to trigger review.              
  ---------------------------------------------- ------------ -------------

Note that all other burden associated with the 2003 CAFO rule is
addressed in the existing EPA ICR No.1989.02. Table 6-2 specifies the
burden hours per response for each CAFO under this proposed rule. For
the State burden estimate, most of the assumptions regarding level of
effort and frequency of response were carried forward from the 2003 CAFO
Rule CAFOS NPDES ICR (OMB NO: 2040-0250, EPA ICR: 1989.02). New
assumptions for this ICR are:

-   Based on communication from EPA Regional staff, EPA estimates that
    certain states already go beyond the 2003 rule requirements in that
    49 percent of CAFOs are currently required to submit their NMP to
    the permit authority, and 24 percent of CAFOs in authorized States
    are subject to comprehensive technical review of their NMP.

-   Nonauthorized states have 3.4 percent of CAFOs (Kellogg et al.,
    2000). This number is used for purposes of estimating the number of
    CAFOs where EPA is the permitting authority.

Under the proposed rule to address the Second Circuit Court decision,
the provision in the 2003 CAFO rule that required that all CAFOs had a
duty to apply for an NPDES permit either by submitting an NOI to be
covered by a general permit or by submitting an application for an
individual permit was narrowed such that *only* those CAFOs that
discharge or propose to discharge must apply for a permit. This change
in which CAFOs must apply for an NPDES permit will reduce the state
information collection burden in all items covered under the 2003 CAFO
rule ICR (e.g., facility inspection, annual report review)

## 6(b) Estimating Respondent Costs

This section describes how EPA derived the cost per respondent for each
of the activities described above.

> **6(b)(i) Estimating Labor Costs**
>
> ***CAFO Labor Costs***

To obtain cost estimates at the CAFO level, EPA multiplied the burdens
reported in Table 6-1 by the wage rates in Table 6--3. Table 6--4
identifies the wage rate used for each activity and reports the annual
cost per CAFO by activity.

[]{#__RefHeading___Toc131825367 .anchor}Table 6--3. Wage rates used to
value CAFO-related burdens

+--------------+--------+---------------------+-------------+---------+
| **Labor      | **Or   | **Source**          | **C         | *       |
| category**   | iginal |                     | onversion** | *Hourly |
|              | rate** |                     |             | rate**  |
|              |        |                     |             |         |
|              |        |                     |             | **(\$   |
|              |        |                     |             | 2005)** |
+--------------+--------+---------------------+-------------+---------+
| Farm         | \$18   | BLS: 45-1011        | 2004 to     | \$28.48 |
| Op           | .50/hr | First-Line          | 2005        |         |
| erator/Owner |        | S                   |             |         |
|              |        | upervisors/Managers | 1.5         |         |
|              |        | of Farming,         | benefits    |         |
|              |        | Fishing, and        | multiplier  |         |
|              |        | Forestry Workers    |             |         |
+--------------+--------+---------------------+-------------+---------+
| Farm Laborer | \$9    | BLS: 45-2093        | 2004 to     | \$13.96 |
|              | .07/hr | Farmworkers, Farm   | 2005        |         |
|              |        | and Ranch Animals   |             |         |
|              |        |                     | 1.5         |         |
|              |        |                     | benefits    |         |
|              |        |                     | multiplier  |         |
+--------------+--------+---------------------+-------------+---------+
| A            | \      | BLS: BLS: 19-1013   | 2004 to     | \$41.06 |
| gronomist^2^ | $26.67 | Soil and Plant      | 2005        |         |
|              |        | Scientists          |             |         |
|              |        |                     | 1.5         |         |
|              |        |                     | benefits    |         |
|              |        |                     | multiplier  |         |
+--------------+--------+---------------------+-------------+---------+
| Note:        |        |                     |             |         |
| Original     |        |                     |             |         |
| rates are    |        |                     |             |         |
| from the May |        |                     |             |         |
| 2004         |        |                     |             |         |
| National     |        |                     |             |         |
| Indus        |        |                     |             |         |
| try-Specific |        |                     |             |         |
| Occupational |        |                     |             |         |
| Employment   |        |                     |             |         |
| and Wage     |        |                     |             |         |
| Estimates    |        |                     |             |         |
| from the     |        |                     |             |         |
| Bureau of    |        |                     |             |         |
| Labor        |        |                     |             |         |
| Statistics.  |        |                     |             |         |
| EPA adjusted |        |                     |             |         |
| the wage to  |        |                     |             |         |
| 2005 dollars |        |                     |             |         |
| using the    |        |                     |             |         |
| Employer     |        |                     |             |         |
| Costs for    |        |                     |             |         |
| Employee     |        |                     |             |         |
| Compensation |        |                     |             |         |
| Index values |        |                     |             |         |
| for the      |        |                     |             |         |
| first        |        |                     |             |         |
| quarter of   |        |                     |             |         |
| 2004 (16.71) |        |                     |             |         |
| and the      |        |                     |             |         |
| first        |        |                     |             |         |
| quarter of   |        |                     |             |         |
| 2005 (17.15) |        |                     |             |         |
| and a fringe |        |                     |             |         |
| rate of 50   |        |                     |             |         |
| percent.     |        |                     |             |         |
+--------------+--------+---------------------+-------------+---------+

[]{#__RefHeading___Toc131825368 .anchor}Table 6--4. CAFO labor rates

  ----------------------- ------------------- ---------------------------
  **Activities**          **Labor rate used** **Labor rate**

  **Nutrient Management                       
  Plan**                                      

  Modify Nutrient         Agronomist          \$41.06
  Management Plan                             

  Submit Nutrient         Farm Manager        \$28.48
  Management Plan                             
  ----------------------- ------------------- ---------------------------

> ***State Labor Costs***

EPA used a wage rate of \$37.98 to value State labor burden, which was
based on the mean hourly wage rate of \$23.13 for Conservation
Scientists (SOC 19-1031) from the May 2004 National Industry-Specific
Occupational Employment and Wage Estimates for NAICS 999200---State
Government (OES designation). EPA adjusted the wage to 2005 dollars
using the Employer Costs for Employee Compensation Index values for the
first quarter of 2004 (16.71) and the first quarter of 2005 (17.15) and
a fringe rate of 60 percent.

> ***Agency Labor Costs***

EPA used an hourly wage rate for a GS12, Step One Federal employee to
estimate the cost of the Agency staff. The U.S. Office of Personnel
Management 2005 General Schedule reported an hourly rate of \$25.98.
Multiplying this rate by 1.6 to incorporate typical Federal benefits
(OPM, 1999), EPA obtained a final hourly rate of \$41.57.

> **6(b)(ii) Estimating Capital and Operation and Maintenance
> (O&M)Costs**
>
> ***CAFO Capital and O&M Costs***

The proposed rule to respond to the Second Circuit Court decision would
not impose additional capital or O&M costs on CAFOs. On the contrary,
due to the Second Circuit Court decision that *only* those CAFOs that
discharge or propose to discharge must apply for a permit, the capital
and O&M costs estimated in the 2003 CAFO rule ICR will be reduced since
fewer facilities need to comply with these regulations. These reductions
are not reflected in this ICR but will be reflected in the renewal of
the 2003 CAFO ICR.

> ***State O&M Costs***

The proposed rule to respond to the Second Circuit Court decision would
not impose O&M costs on states.

> **6(b)(iii) Capital Start-up vs. Operation and Maintenance (O&M)
> Costs**

See 6(b)(ii), above.

> **6(b)(iv) Annualizing Capital Costs**

See 6(b)(ii), above.

## 6(c) Estimating Agency Burden and Cost

EPA has the same burden as states for the five States where it is the
NPDES permitting authority for CAFOs. For unauthorized States, EPA will
incur burden associated with reviewing NMPs, providing public notice,
opportunity to comment, and, potentially, hearings.

## 6(d) Estimating the Respondent Universe and Total Burden and Costs

Table 6--5 presents the annual burden and costs for all respondents to
the proposed rule to address the Second Circuit Court decision. In Table
6--6 annual agency cost and burden is presented.

[]{#__RefHeading___Toc131825369 .anchor}Table 6--5. Annual average
respondents burden and cost

<table>
<colgroup>
<col style="width: 20%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 8%" />
<col style="width: 8%" />
<col style="width: 7%" />
<col style="width: 11%" />
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 9%" />
</colgroup>
<tbody>
<tr class="odd">
<td></td>
<td>Burden per response (hours)</td>
<td><p>Labor rate</p>
<p>($)</p></td>
<td>Cost per response</td>
<td>Responses (number)</td>
<td>Total burden (hours)</td>
<td>Costs (labor)</td>
<td>Costs (capital)</td>
<td>Costs (O&amp;M)</td>
<td>Total costs</td>
</tr>
<tr class="even">
<td colspan="10"><strong>CAFOs</strong></td>
</tr>
<tr class="odd">
<td colspan="10"><strong>Nutrient Management Plan</strong></td>
</tr>
<tr class="even">
<td>Modify NMP</td>
<td>10.1</td>
<td>$41.06</td>
<td>$414.7</td>
<td>177</td>
<td>1,788</td>
<td>$73,403</td>
<td>$0</td>
<td>$0</td>
<td>$73,403</td>
</tr>
<tr class="odd">
<td>Submit NMP</td>
<td>0.5</td>
<td>$28.48</td>
<td>$14.2</td>
<td>2,608</td>
<td>1,304</td>
<td>$37,143</td>
<td>$0</td>
<td>$0</td>
<td>$37,143</td>
</tr>
<tr class="even">
<td colspan="5"><strong>CAFOs Increase (new provisions to address the
Waterkeeper ruling)</strong></td>
<td><strong>3,092</strong></td>
<td><strong>$110,546</strong></td>
<td><strong>$0</strong></td>
<td><strong>$0</strong></td>
<td><strong>$110,546</strong></td>
</tr>
<tr class="odd">
<td colspan="5"><strong>CAFOs Decrease (NPDES permits only from
dischargers)</strong></td>
<td><strong>810,751</strong></td>
<td><strong>$13,434,707</strong></td>
<td><strong>$123,242</strong></td>
<td><strong>$1,907,469</strong></td>
<td><strong>$15,465,417</strong></td>
</tr>
<tr class="even">
<td colspan="5"><strong>Total Net CAFOs Change</strong></td>
<td><strong>(807,659)</strong></td>
<td><strong>($13,324,161)</strong></td>
<td><strong>($123,242)</strong></td>
<td><strong>($1,907,469)</strong></td>
<td><strong>($15,354,871)</strong></td>
</tr>
<tr class="odd">
<td colspan="10"></td>
</tr>
<tr class="even">
<td colspan="10"><strong>States</strong></td>
</tr>
<tr class="odd">
<td colspan="10"><strong>State general NPDES permit application
activities</strong></td>
</tr>
<tr class="even">
<td>Public hearings</td>
<td>200</td>
<td>$37.98</td>
<td>$7,596.0</td>
<td>387</td>
<td>77,467</td>
<td>$2,942,184</td>
<td>$0</td>
<td>$0</td>
<td>$2,942,184</td>
</tr>
<tr class="odd">
<td>Review NMP (administrative)</td>
<td>20</td>
<td>$37.98</td>
<td>$759.6</td>
<td>2,453</td>
<td>49,070</td>
<td>$1,863,675</td>
<td>$0</td>
<td>$0</td>
<td>$1,863,675</td>
</tr>
<tr class="even">
<td colspan="10"><strong>State Individual Permit Application
Activities</strong></td>
</tr>
<tr class="odd">
<td>Review NMP (administrative)</td>
<td>20</td>
<td>$37.98</td>
<td>$759.6</td>
<td>1,051</td>
<td>21,030</td>
<td>$798,718</td>
<td>$0</td>
<td>$0</td>
<td>$798,718</td>
</tr>
<tr class="even">
<td colspan="10"><strong>State general NPDES permit application
activities due to significant NMP modifications</strong></td>
</tr>
<tr class="odd">
<td>Review and approve NOIs/ record keeping</td>
<td>4</td>
<td>$37.98</td>
<td>$151.9</td>
<td>120</td>
<td>479</td>
<td>$18,180</td>
<td>$0</td>
<td>$0</td>
<td>$18,180</td>
</tr>
<tr class="even">
<td>Public hearings</td>
<td>40</td>
<td>$37.98</td>
<td>$1,519.2</td>
<td>14</td>
<td>573</td>
<td>$21,775</td>
<td>$0</td>
<td>$0</td>
<td>$21,775</td>
</tr>
<tr class="odd">
<td>Review NMP (administrative)</td>
<td>4</td>
<td>$37.98</td>
<td>$151.9</td>
<td>120</td>
<td>479</td>
<td>$18,180</td>
<td>$0</td>
<td>$0</td>
<td>$18,180</td>
</tr>
<tr class="even">
<td>Notify public, respond to comments</td>
<td>1</td>
<td>$37.98</td>
<td>$38.0</td>
<td>120</td>
<td>120</td>
<td>$4,545</td>
<td>$0</td>
<td>$0</td>
<td>$4,545</td>
</tr>
<tr class="odd">
<td colspan="10"><strong>State individual permit application activities
sue to significant NMP modifications</strong></td>
</tr>
<tr class="even">
<td>Review and approve permits/ record keeping</td>
<td>20</td>
<td>$37.98</td>
<td>$759.6</td>
<td>51</td>
<td>1,026</td>
<td>$38,958</td>
<td>$0</td>
<td>$0</td>
<td>$38,958</td>
</tr>
<tr class="odd">
<td>Public hearings</td>
<td>40</td>
<td>$37.98</td>
<td>$1,519.2</td>
<td>6</td>
<td>240</td>
<td>$9,115</td>
<td>$0</td>
<td>$0</td>
<td>$9,115</td>
</tr>
<tr class="even">
<td>Review NMP (administrative)</td>
<td>4</td>
<td>$37.98</td>
<td>$151.9</td>
<td>51</td>
<td>205</td>
<td>$7,792</td>
<td>$0</td>
<td>$0</td>
<td>$7,792</td>
</tr>
<tr class="odd">
<td>Notify public, respond to comments</td>
<td>1</td>
<td>$37.98</td>
<td>$38.0</td>
<td>51</td>
<td>51</td>
<td>$1,948</td>
<td>$0</td>
<td>$0</td>
<td>$1,948</td>
</tr>
<tr class="even">
<td colspan="5"><strong>State Increase (new provisions to address the
Waterkeeper ruling)</strong></td>
<td><strong>150,739</strong></td>
<td><strong>$5,725,071</strong></td>
<td><strong>$0</strong></td>
<td><strong>$0</strong></td>
<td><strong>$5,725,071</strong></td>
</tr>
<tr class="odd">
<td colspan="5"><strong>State Decrease (NPDES permits only from
dischargers)</strong></td>
<td><strong>120,446</strong></td>
<td><strong>$4,574,549</strong></td>
<td><strong>$0</strong></td>
<td><strong>$648,478</strong></td>
<td><strong>$5,223,027</strong></td>
</tr>
<tr class="even">
<td colspan="5"><strong>Total Net State Change</strong></td>
<td><strong>30,293</strong></td>
<td><strong>$1,150,522</strong></td>
<td><strong>$0</strong></td>
<td><strong>($648,478)</strong></td>
<td><strong>$502,044</strong></td>
</tr>
<tr class="odd">
<td colspan="10"></td>
</tr>
<tr class="even">
<td colspan="5"><strong>Total Respondents Net Change</strong></td>
<td><strong>(777,366)</strong></td>
<td><strong>($12,173,639)</strong></td>
<td><strong>($123,242)</strong></td>
<td><strong>($2,555,947)</strong></td>
<td><strong>($14,852,827)</strong></td>
</tr>
</tbody>
</table>

[]{#__RefHeading___Toc131825370 .anchor}Table 6--6. Annual average
Agency burden and cost

<table>
<colgroup>
<col style="width: 22%" />
<col style="width: 11%" />
<col style="width: 5%" />
<col style="width: 9%" />
<col style="width: 10%" />
<col style="width: 8%" />
<col style="width: 8%" />
<col style="width: 6%" />
<col style="width: 6%" />
<col style="width: 9%" />
</colgroup>
<tbody>
<tr class="odd">
<td></td>
<td>Burden per response (hours)</td>
<td><p>Labor rate</p>
<p>($)</p></td>
<td>Cost per response</td>
<td>Responses (number)</td>
<td>Total Burden (hours)</td>
<td>Costs (labor)</td>
<td>Costs (capital)</td>
<td>Costs (O&amp;M)</td>
<td>Total Costs</td>
</tr>
<tr class="even">
<td><strong>Agency</strong></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr class="odd">
<td colspan="10"><strong>Federal general NPDES permit application
activities</strong></td>
</tr>
<tr class="even">
<td>Review NMP (administrative)</td>
<td>20</td>
<td>$41.57</td>
<td>$831.4</td>
<td>114</td>
<td>2,280</td>
<td>$94,791</td>
<td>$0</td>
<td>$0</td>
<td>$94,791</td>
</tr>
<tr class="odd">
<td colspan="10"><strong>Federal Individual Permit Application
Activities</strong></td>
</tr>
<tr class="even">
<td>Review NMP (administrative)</td>
<td>20</td>
<td>$41.57</td>
<td>$831.4</td>
<td>49</td>
<td>977</td>
<td>$40,625</td>
<td>$0</td>
<td>$0</td>
<td>$40,625</td>
</tr>
<tr class="odd">
<td colspan="10"><strong>Federal General NPDES Permit Application
Activities Due to Significant NMP Modifications</strong></td>
</tr>
<tr class="even">
<td>Review and approve NOIs/ record keeping</td>
<td>4</td>
<td>$41.57</td>
<td>$166.3</td>
<td>4</td>
<td>16</td>
<td>$703</td>
<td>$0</td>
<td>$0</td>
<td>$703</td>
</tr>
<tr class="odd">
<td>Public hearings</td>
<td>40</td>
<td>$41.57</td>
<td>$1,662.8</td>
<td>1</td>
<td>27</td>
<td>$1,109</td>
<td>$0</td>
<td>$0</td>
<td>$1,109</td>
</tr>
<tr class="even">
<td>Review NMP (administrative)</td>
<td>4</td>
<td>$41.57</td>
<td>$166.3</td>
<td>4</td>
<td>17</td>
<td>$703</td>
<td>$0</td>
<td>$0</td>
<td>$703</td>
</tr>
<tr class="odd">
<td>Notify public, respond to comments</td>
<td>1</td>
<td>$41.57</td>
<td>$41.6</td>
<td>4</td>
<td>4</td>
<td>$176</td>
<td>$0</td>
<td>$0</td>
<td>$176</td>
</tr>
<tr class="even">
<td colspan="10"><strong>Federal individual permit application
activities due to significant NMP modifications</strong></td>
</tr>
<tr class="odd">
<td>Review and approve permits/ record keeping</td>
<td>20</td>
<td>$41.57</td>
<td>$831.4</td>
<td>2</td>
<td>36</td>
<td>$1,507</td>
<td>$0</td>
<td>$0</td>
<td>$1,507</td>
</tr>
<tr class="even">
<td>Public hearings</td>
<td>40</td>
<td>$41.57</td>
<td>$1,662.8</td>
<td>-</td>
<td>-</td>
<td>$0</td>
<td>$0</td>
<td>$0</td>
<td>$0</td>
</tr>
<tr class="odd">
<td>Review NMP (administrative)</td>
<td>4</td>
<td>$41.57</td>
<td>$166.3</td>
<td>2</td>
<td>7</td>
<td>$301</td>
<td>$0</td>
<td>$0</td>
<td>$301</td>
</tr>
<tr class="even">
<td>Notify public, respond to comments</td>
<td>1</td>
<td>$41.57</td>
<td>$41.6</td>
<td>2</td>
<td>2</td>
<td>$75</td>
<td>$0</td>
<td>$0</td>
<td>$75</td>
</tr>
<tr class="odd">
<td colspan="5"><strong>Agency Increase (new provisions to address the
Waterkeeper ruling)</strong></td>
<td><strong>3,351</strong></td>
<td><strong>$139,990</strong></td>
<td><strong>$0</strong></td>
<td><strong>$0</strong></td>
<td><strong>$139,990</strong></td>
</tr>
<tr class="even">
<td colspan="5"><strong>Agency Decrease (NPDES permits only from
dischargers)</strong></td>
<td><strong>4,290</strong></td>
<td><strong>$178,315</strong></td>
<td><strong>$47,708</strong></td>
<td><strong>$0</strong></td>
<td><strong>$226,023</strong></td>
</tr>
<tr class="odd">
<td colspan="5"><strong>Total Net Agency Change</strong></td>
<td><strong>(939)</strong></td>
<td><strong>($38,325)</strong></td>
<td><strong>($47,708)</strong></td>
<td><strong>$0</strong></td>
<td><strong>($86,033)</strong></td>
</tr>
</tbody>
</table>

## 6(e) Bottom Line Burden Hours and Costs Tables

Table 6-7 presents a yearly cost increase breakdown and 3-year ICR
period summary for CAFOs subject to the new provisions in the proposed
rule that addresses the Second Circuit Court of Appeals decision. There
will be a total of 7,825 CAFO respondents over the 3-year period with an
average of 2,608 respondents for each year under this ICR. Total CAFO
respondent costs over the 3-year period will be \$331,637 with an
average annual total cost for all respondents of \$110,546.

Respondents for each year represent the facilities that will incur
additional information collection activities as a result of the new
provisions in the proposed rule that addresses the Second Circuit Court
of Appeals decision. These are either new facilities or facilities due
to renew their permits.

[]{#__RefHeading___Toc131825371 .anchor}**Table 6--7. CAFO burden and
cost increase from new provisions**

+---------+-------------+--------------+-------------+-------+------+
|         | **Year 1**  | **Year 2**   | **Year 3**  | **3-Y | **An |
|         |             |              |             | ear** | nual |
|         |             |              |             |       | a    |
|         |             |              |             | **to  | vera |
|         |             |              |             | tal** | ge** |
+---------+-------------+--------------+-------------+-------+------+
| *       | **Jan       | **Jan        | **Jan       |       |      |
| *Item** | 2006--Dec   | 2007--Dec    | 2008--Dec   |       |      |
|         | 2006**      | 2007**       | 2008**      |       |      |
+---------+-------------+--------------+-------------+-------+------+
| Burden  | 2,791       | 3,077        | 3,408       | 9,276 | 3    |
| (hours) |             |              |             |       | ,092 |
+---------+-------------+--------------+-------------+-------+------+
| Resp    | 2,431       | 2,598        | 2,796       | 7,825 | 2    |
| ondents |             |              |             |       | ,608 |
| (       |             |              |             |       |      |
| number) |             |              |             |       |      |
+---------+-------------+--------------+-------------+-------+------+
| Re      | 2,587       | 2,774        | 2,995       | 8,356 | 2    |
| sponses |             |              |             |       | ,785 |
| (       |             |              |             |       |      |
| number) |             |              |             |       |      |
+---------+-------------+--------------+-------------+-------+------+
| Costs   | \$99,312    | \$109,984    | \$122,342   | \$33  | \    |
| (labor) |             |              |             | 1,637 | $110 |
|         |             |              |             |       | ,546 |
+---------+-------------+--------------+-------------+-------+------+
| Costs   | \$0         | \$0          | \$0         | \$0   | \$0  |
| (c      |             |              |             |       |      |
| apital) |             |              |             |       |      |
+---------+-------------+--------------+-------------+-------+------+
| Costs   | \$0         | \$0          | \$0         | \$0   | \$0  |
| (O&M)   |             |              |             |       |      |
+---------+-------------+--------------+-------------+-------+------+
| **Total | *           | *            | **          | **\   | *    |
| Costs** | *\$99,312** | *\$109,984** | \$122,342** | $331, | *\$1 |
|         |             |              |             | 637** | 10,5 |
|         |             |              |             |       | 46** |
+---------+-------------+--------------+-------------+-------+------+

Table 6-8 presents a yearly cost increase breakdown and 3-year ICR
period summary for the 44 States authorized to issue NPDES permits.
These numbers reflect only burden and cost associated with the new
provisions in the proposed regulatory changes to the NPDES CAFO
regulations that address the February 2005 Second Circuit Court of
Appeals decision. There will be a total of 13,277 responses during the
3-year ICR period with an average of 4,426 responses for each year under
this ICR. Total State burden over the 3-year period is 452,217 hours
with an average annual average state burden of 150,739 hours. State
costs will total \$17,175,213 for the 3-year ICR period with an average
annual cost of \$5,725,071.

[]{#__RefHeading___Toc131825372 .anchor}**Table 6--8. State burden and
cost increase from new provisions**

+---------+-------------+--------------+-------------+--------+-------+
|         | **Year 1**  | **Year 2**   | **Year 3**  | **3-   | **A   |
|         |             |              |             | Year** | nnual |
|         |             |              |             |        | aver  |
|         |             |              |             | **t    | age** |
|         |             |              |             | otal** |       |
+---------+-------------+--------------+-------------+--------+-------+
| *       | **Jan       | **Jan        | **Jan       |        |       |
| *Item** | 20          | 2            | 20          |        |       |
|         | 06**--**Dec | 007**--**Dec | 08**--**Dec |        |       |
|         | 2006**      | 2007**       | 2008**      |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| Burden  | 140,789     | 150,181      | 161,247     | 4      | 15    |
| (hours) |             |              |             | 52,217 | 0,739 |
+---------+-------------+--------------+-------------+--------+-------+
| Resp    | 44          | 44           | 44          | 44     | 44    |
| ondents |             |              |             |        |       |
| (       |             |              |             |        |       |
| number) |             |              |             |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| Re      | 4,112       | 4,408        | 4,757       | 13,277 | 4,426 |
| sponses |             |              |             |        |       |
| (       |             |              |             |        |       |
| number) |             |              |             |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| Costs   | \$5,347,182 | \$5,703,888  | \$6,124,143 | \$17,1 | \     |
| (labor) |             |              |             | 75,213 | $5,72 |
|         |             |              |             |        | 5,071 |
+---------+-------------+--------------+-------------+--------+-------+
| Costs   | \$0         | \$0          | \$0         | \$0    | \$0   |
| (O&M)   |             |              |             |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| **Total | **\$        | **\          | **\$        | **\$   | **\$5 |
| Costs** | 5,347,182** | $5,703,888** | 6,124,143** | 17,175 | ,725, |
|         |             |              |             | ,213** | 071** |
+---------+-------------+--------------+-------------+--------+-------+

Table 6**--**9 presents a yearly cost increase and 3-year ICR period
summary for EPA. EPA is responsible for the implementation of the NPDES
CAFO permit program where no other agency has been authorized to do so.
These numbers reflect only burden and cost associated with the new
provisions in the proposed regulatory changes to the NPDES CAFO
regulations that address the February 2005 Second Circuit Court of
Appeals decision. There will be a total of 3,753 responses during the
3-year ICR period with an average of 1,251 responses for each year under
this ICR. Total agency burden is 10,103 hours for the 3-year period with
an average annual burden of 3,368 hours. Agency costs will total
\$419,970 for the 3-year ICR period with an average annual cost of
\$139,990.

[]{#__RefHeading___Toc131825373 .anchor}**Table 6--9. Agency burden and
cost increase from new provisions**

+---------+--------------+--------------+-------------+--------+------+
|         | **Year 1**   | **Year 2**   | **Year 3**  | **3-   | **An |
|         |              |              |             | year** | nual |
|         |              |              |             |        | a    |
|         |              |              |             | **t    | vera |
|         |              |              |             | otal** | ge** |
+---------+--------------+--------------+-------------+--------+------+
| *       | **Jan        | **Jan        | **Jan       |        |      |
| *Item** | 2006-Dec     | 2007-Dec     | 2008-Dec    |        |      |
|         | 2006**       | 2007**       | 2008**      |        |      |
+---------+--------------+--------------+-------------+--------+------+
| Burden  | 3,121        | 3,368        | 3,613       | 10,103 | 3    |
| (hours) |              |              |             |        | ,368 |
+---------+--------------+--------------+-------------+--------+------+
| Re      | 1,130        | 1,245        | 1,378       | 3,753  | 1    |
| sponses |              |              |             |        | ,251 |
| (       |              |              |             |        |      |
| number) |              |              |             |        |      |
+---------+--------------+--------------+-------------+--------+------+
| Costs   | \$129,759    | \$140,014    | \$150,198   | \$4    | \    |
| (labor) |              |              |             | 19,970 | $139 |
|         |              |              |             |        | ,990 |
+---------+--------------+--------------+-------------+--------+------+
| Costs   | \$0          | \$0          | \$0         | \$0    | \$0  |
| (O&M)   |              |              |             |        |      |
+---------+--------------+--------------+-------------+--------+------+
| **Total | *            | *            | **          | *      | *    |
| Costs** | *\$129,759** | *\$140,014** | \$150,198** | *\$419 | *\$1 |
|         |              |              |             | ,970** | 39,9 |
|         |              |              |             |        | 90** |
+---------+--------------+--------------+-------------+--------+------+

Table 6-10 presents a yearly breakdown and 3-year ICR period summary for
the burden and cost reduction expected to be experienced by CAFOs as a
result of the court's decision in 2005 to require NPDES permits only
from dischargers. There will be a total of 19,068 fewer CAFO respondents
over the 3-year ICR compared with what would have been required under
the 2003 CAFO rule period as a result of the Second Circuit decision to
require NPDES permits only from dischargers (under the 2003 rule there
would have been 72,107 CAFOs that required permit, under this ICR over
the 3-year ICR period 53,038 CAFOs are estimated to require permits).
The difference (19,068) represents fewer CAFO respondents over the
3-year ICR period that will be subject to the regulations. Under this
ICR there will be an average of 6,356 fewer CAFO respondents for each
year. Total CAFO respondent costs will be \$46,396,251 less than it
would have been under the 2003 CAFO rule, with an average annual total
cost of reduction to CAFOs of \$15,465,417.

Table 6--10. CAFO burden and cost reductions summary

+---------+-------------+-------------+-------------+--------+--------+
|         | **Year 1**  | **Year 2**  | **Year 3**  | **3-   | **     |
|         |             |             |             | Year** | Annual |
|         |             |             |             |        | ave    |
|         |             |             |             | **t    | rage** |
|         |             |             |             | otal** |        |
+---------+-------------+-------------+-------------+--------+--------+
| *       | **Jan       | **Jan       | **Jan       |        |        |
| *Item** | 2006--Dec   | 2007--Dec   | 2008--Dec   |        |        |
|         | 2006**      | 2007**      | 2008**      |        |        |
+---------+-------------+-------------+-------------+--------+--------+
| Burden  | 711,713     | 805,165     | 915,375     | 2,4    | 8      |
| (hours) |             |             |             | 32,253 | 10,751 |
+---------+-------------+-------------+-------------+--------+--------+
| Resp    | 5,543       | 6,310       | 7,214       | 19,068 | 6,356  |
| ondents |             |             |             |        |        |
| (       |             |             |             |        |        |
| number) |             |             |             |        |        |
+---------+-------------+-------------+-------------+--------+--------+
| Re      | 37,465      | 42,434      | 48,296      | 1      | 42,732 |
| sponses |             |             |             | 28,195 |        |
| (       |             |             |             |        |        |
| number) |             |             |             |        |        |
+---------+-------------+-------------+-------------+--------+--------+
| Costs   | \           | \           | \           | \$40,3 | \$13,4 |
| (labor) | $11,888,814 | $13,347,017 | $15,068,288 | 04,120 | 34,707 |
+---------+-------------+-------------+-------------+--------+--------+
| Costs   | \$103,771   | \$122,075   | \$143,880   | \$3    | \$1    |
| (c      |             |             |             | 69,725 | 23,242 |
| apital) |             |             |             |        |        |
+---------+-------------+-------------+-------------+--------+--------+
| Costs   | \$1,666,575 | \$1,893,982 | \$2,161,849 | \$5,7  | \$1,9  |
| (O&M)   |             |             |             | 22,406 | 07,469 |
+---------+-------------+-------------+-------------+--------+--------+
| **Total | **\$1       | **\$1       | **\$1       | **\$   | **\$   |
| Costs** | 3,659,160** | 5,363,074** | 7,374,017** | 46,396 | 15,465 |
|         |             |             |             | ,251** | ,417** |
+---------+-------------+-------------+-------------+--------+--------+

Table 6-11 presents a yearly breakdown and 3-year ICR period summary for
the 44 States that have been authorized to implement the NPDES CAFO
permit program. These numbers reflect only burden and cost reduction
expected to result from the court's decision in 2005 to require NPDES
permits only from dischargers. There will be a total of 32,440 fewer
responses during the 3-year ICR period with an average of 10,813
responses for each year under this ICR. Total State burden reduction is
361,339 hours with an average annual average reduction of 120,446 hours.
State total costs will be reduced by \$15,669,081 for the 3-year ICR
period with an average annual cost reduction of \$5,223,027.

**Table 6--11. State burden and cost reduction** summary

+---------+-------------+--------------+-------------+--------+-------+
|         | **Year 1**  | **Year 2**   | **Year 3**  | **3-   | **A   |
|         |             |              |             | Year** | nnual |
|         |             |              |             |        | aver  |
|         |             |              |             | **t    | age** |
|         |             |              |             | otal** |       |
+---------+-------------+--------------+-------------+--------+-------+
| *       | **Jan       | **Jan        | **Jan       |        |       |
| *Item** | 20          | 2            | 20          |        |       |
|         | 06**--**Dec | 007**--**Dec | 08**--**Dec |        |       |
|         | 2006**      | 2007**       | 2008**      |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| Burden  | 109,462     | 119,794      | 132,083     | 3      | 12    |
| (hours) |             |              |             | 61,339 | 0,446 |
+---------+-------------+--------------+-------------+--------+-------+
| Resp    | 0           | 0            | 0           | 0      | 0     |
| ondents |             |              |             |        |       |
| (       |             |              |             |        |       |
| number) |             |              |             |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| Re      | 9,631       | 10,746       | 12,063      | 32,440 | 1     |
| sponses |             |              |             |        | 0,813 |
| (       |             |              |             |        |       |
| number) |             |              |             |        |       |
+---------+-------------+--------------+-------------+--------+-------+
| Costs   | \$4,157,357 | \$4,549,786  | \$5,016,503 | \$13,7 | \     |
| (labor) |             |              |             | 23,646 | $4,57 |
|         |             |              |             |        | 4,549 |
+---------+-------------+--------------+-------------+--------+-------+
| Costs   | \$603,148   | \$645,677    | \$696,610   | \$1,9  | \$64  |
| (O&M)   |             |              |             | 45,435 | 8,478 |
+---------+-------------+--------------+-------------+--------+-------+
| **Total | \$4,760,505 | \$5,195,464  | \$5,713,113 | **\$   | **\$5 |
| Costs** |             |              |             | 15,669 | ,223, |
|         |             |              |             | ,081** | 027** |
+---------+-------------+--------------+-------------+--------+-------+

Table 6--12 presents a yearly breakdown and 3-year ICR period summary
for EPA. EPA is responsible for the implementation of the NPDES CAFO
permit program where no other agency has been authorized to do so. These
numbers reflect only burden and cost reduction expected to result from
the court's decision in 2005 to require NPDES permits only from
dischargers. There will be a total of 7,486 fewer responses over the
3-year ICR compared with what would have been required under the 2003
CAFO rule period as a result of the Second Circuit decision to require
NPDES permits only from dischargers, with an average of 2,495 responses
for each year under this ICR. Total agency burden reduction is 12,869
hours with an average annual reduction of 4,290 hours. Agency total
costs will be \$678,068 less for the 3-year ICR period with an average
annual cost reduction of \$226,023.

**Table 6--12. Agency burden and cost reduction** summary

+---------+--------------+--------------+-------------+--------+------+
|         | **Year 1**   | **Year 2**   | **Year 3**  | **3-   | **An |
|         |              |              |             | year** | nual |
|         |              |              |             |        | a    |
|         |              |              |             | **t    | vera |
|         |              |              |             | otal** | ge** |
+---------+--------------+--------------+-------------+--------+------+
| *       | **Jan        | **Jan        | **Jan       |        |      |
| *Item** | 2006-Dec     | 2007-Dec     | 2008-Dec    |        |      |
|         | 2006**       | 2007**       | 2008**      |        |      |
+---------+--------------+--------------+-------------+--------+------+
| Burden  | 3,865        | 4,202        | 4,801       | 12,869 | 4    |
| (hours) |              |              |             |        | ,290 |
+---------+--------------+--------------+-------------+--------+------+
| Re      | 2,239        | 2,482        | 2,765       | 7,486  | 2    |
| sponses |              |              |             |        | ,495 |
| (       |              |              |             |        |      |
| number) |              |              |             |        |      |
+---------+--------------+--------------+-------------+--------+------+
| Costs   | \$160,680    | \$174,684    | \$199,581   | \$5    | \    |
| (labor) |              |              |             | 34,945 | $178 |
|         |              |              |             |        | ,315 |
+---------+--------------+--------------+-------------+--------+------+
| Costs   | \$44,377     | \$47,508     | \$51,238    | \$1    | \$47 |
| (O&M)   |              |              |             | 43,123 | ,708 |
+---------+--------------+--------------+-------------+--------+------+
| **Total | \$205,058    | \$222,192    | \$250,818   | *      | *    |
| Costs** |              |              |             | *\$678 | *\$2 |
|         |              |              |             | ,068** | 26,0 |
|         |              |              |             |        | 23** |
+---------+--------------+--------------+-------------+--------+------+

## 6(f) Reasons for Change in Burden

This is a proposed rule ICR to address the Second Circuit Court decision
and is not a renewal or modification of an existing ICR. Calculations
from this ICR will be merged with the overall CAFO program ICR when that
ICR is renewed in July 2006.

## 6(g) Burden Statement

Table 6**--**13 summarizes the total increased burden and cost of
changes to CAFOs and States associated with the new requirements in the
proposed rule to address the Waterkeeper decision.

The annual public reporting and recordkeeping burden increase associated
with the new provisions from the proposed regulatory changes is
estimated to average 153,831 hours, including 150,739 hours for State
respondents and 3,092 hours for all CAFO respondents. The annual average
estimate of 2,652 respondents includes 44 States and 2,608 CAFO
respondents. The annual average number of responses is 7,211, which
includes 4,426 State responses and 2,785 CAFO responses. The annual
average burden per State response is 34 hours and 1.1 hours for CAFO
responses

**Table 6--13. Hour and burden increase for all respondents from new
provisions**

  ---------------------------------- ----------------- ------------------
  **Item**                           **3-year total**  **Annual average**

  Total respondent burden (hours)    461,493           153,831

  Total respondents (number)         7,869             2,652

  Total responses (number)           21,633            7,211

  Total respondent labor costs       \$17,506,850      \$5,835,617

  Total respondent capital and O&M   \$0               \$0
  costs                                                

  Total respondent cost for all      \$17,506,850      \$5,835,617
  activities                                           
  ---------------------------------- ----------------- ------------------

Table 6**--**14 summarizes the total net change in labor burden and cost
from the proposed rule to address the Waterkeeper decision. These
calculations reflect both the burden increase due to the added NMP
provisions as well as the burden reduction resulting from the court's
decision to require NPDES permits only from dischargers. This
information is broken down by category of respondent in Table 6-5.

[]{#__RefHeading___Toc131825374 .anchor}

Table 6--14. Hour and burden change for all respondents

  ---------------------------------- ----------------- ------------------
  **Item**                           **3-year total**  **Annual average**

  Total respondent burden (hours)    -2,332,099        -777,366

  Total respondents (number)         -19,068           -6,356

  Total responses (number)           -139,002          -46,334

  Total respondent labor costs       \$(36,520,916)    \$(12,173,639)

  Total respondent capital and O&M   \$(8,037,567)     \$(2,679,189)
  costs                                                

  Total respondent cost for all      \$(44,558,483)    \$(14,852,827)
  activities                                           
  ---------------------------------- ----------------- ------------------

Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed to
review instructions; develop, acquire, install, and use technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information. An 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 are listed at 40 CFR Part 9
and 48 CFR Chapter 15.

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, including the use of automated collection techniques,
EPA has established a public docket for this ICR under Docket ID Number
EPA-HQ-OW-2005-0037, which is available for online viewing at
www.regulations.gov, or in person viewing at the Water Docket in the EPA
Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue,
NW, Washington, D.C. The EPA Docket Center Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Reading Room is (202) 566-1744,
and the telephone number for the Water Docket is (202) 566-2426. An
electronic version of the public docket is available at
www.regulations.gov. This site can be used to submit or view public
comments, access the index listing of the contents of the public docket,
and to access those documents in the public docket that are available
electronically. When in the system, select \"search,\" then key in the
Docket ID Number identified above. Also, you can send comments to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street, NW, Washington, D.C. 20503, Attention: Desk
Officer for EPA. Please include the EPA Docket ID Number
EPA-HQ-OW-2005-0037 and OMB Control Number 2040-0250 in any
correspondence.

# REFERENCES

Kellogg, R.L., C.H. Lander, D.C. Moffitt, and N. Gollehon. 2000. *Manure
Nutrients Relative to the Capacity of Cropland and Pastureland to
Assimilate Nutrients: Spatial and Temporal Trends for the United
States*. United States Department of Agriculture, Natural Resources
Conservation Service, Economic Research Service, Washington, D.C.
\[http://www.nrcs.usda.gov/technical/land/pubs/manntr.pdf\])

USDA (U.S. Department of Agriculture). 1999. *1997 Census of
Agriculture*. U.S. Department of Agriculture, National Agricultural
Statistics Service, Washington, D.C.

USDA (U.S. Department of Agriculture). 2004. *2002 Census of
Agriculture*. U.S. Department of Agriculture, National Agricultural
Statistics Service, Washington, D.C.

USEPA (U.S. Environmental Protection Agency). February 1999. ICR
Handbook: EPA's Guide to Writing Information Collection Requests Under
the Paperwork Reduction Act of 1995. U.S. Environmental Protection
Agency, Office of Environmental Information, Collection Strategies
Division, Washington, D.C.

USEPA (U.S. Environmental Protection Agency). October 14, 2005. *Memo to
Record: Estimated Number of Permit Applications from CAFOs.* (Docket ID
No. EPA-HQ-OW-2005-0037.)

USEPA (U.S. Environmental Protection Agency). December 2002. *Supporting
Statement for the Information Collection Request for the Final NPDES and
ELG Regulatory Revisions for Concentrated Animal Feeding Operations*
(EPA ICR NO. 1989.02). U.S. Environmental Protection Agency, Office of
Wastewater Management, Washington, D.C.

USDOL (U.S. Department of Labor). 2005. *Employer Cost for Employee
Compensation*. U.S. Department of Labor, Bureau of Labor Statistics,
Washington, D.C.

USDOL (U.S. Department of Labor). 2004. *May 2004 National
Industry-Specific Occupational Employment and Wage Estimates*. U.S.
Department of Labor, Bureau of Labor Statistics, Washington, D.C.

OPM (Office of Personnel Management). 1999. *Work Years and Personnel
Costs: Fiscal Year 1998*. OMSOE-OWI-98-1, Office of Personnel
Management, Washington, D.C.

OPM (Office of Personnel Management). 2005. *Salary Table 2005-GS,
Hourly/Overtime Rates by Grade and Step*. Office of Personnel
Management, Washington, D.C.

Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2^nd^ Cir. 2005)

# APPENDIX 

This Page Intentionally Left Blank

[^1]: This ICR includes an appendix that describes aspects of this
    proposed rule that affect the 2003 CAFO ICR, and presents summary
    information regarding expected adjustments.

[^2]: EPA retains authority for NPDES discharge permits for agricultural
    facilities in Oklahoma; thus, only 44 States are authorized to issue
    permits to CAFOs. EPA is not aware of any CAFOs in the U.S. Virgin
    Islands.

[^3]: Note that the burden estimated in this ICR will be merged into the
    CAFO Program ICR (No. 1989.02) burden when that ICR is renewed.

[^4]: Or seek a "no potential to discharge" determination.

[^5]: This change took effect following the Second Circuit decision, but
    is being first codified under this proposed rule.